No evidence that company failed in its duty to accommodate
An arbitrator has upheld the termination of a Canadian National Railway worker who was fired for using his cellphone while working, despite his claim that he needed to have the phone with him at all times for medical reasons.
The worker was an intermodal equipment operator for Canadian National Railway at the railway’s Brampton, Ont., intermodal terminal. His job involved loading heavy containers on and off trains and trucks, as well as moving such containers to storage areas.
The Brampton terminal had a policy on personal communication devices that prohibited employees from taking cellphones into work area.
This was because the workplace was a safety-sensitive area and employees needed to be focused on the task at hand, without the potential distraction of cellphones.
By September 2015, the worker had accumulated 50 demerit points from various instances of misconduct, including 30 points alone from violating the personal communication devices policy.
On Sept. 7, managers at the terminal observed the worker looking down at something while operating a truck, followed by what they believed to be him putting a cellphone into his back pocket.
When they confronted the worker as he exited the truck, he denied having a cellphone with him.
However, one of the managers noticed a cellphone on the ground nearby and when they called the worker’s cellphone number, the phone vibrated.
The worker initially denied it was his cellphone, but he later admitted that it was.
Investigation launched
Canadian National Railway conducted an investigation into the incident and the worker provided a doctor’s note dated Sept. 8 — the day after the incident — that stated he carried “his cellphone on him partly for medical reasons.”
The worker explained that he had used his cellphone at work to text his brother in relation to a medical issue.
Another doctor’s note two days later indicated the worker was fit to return to work with no restrictions.
On Sept. 18, Canadian National Railway gave the worker 40 demerit points, which put his active total at 90.
Canadian National Railway policy stipulated termination for employees who surpassed 60 demerit points, so Canadian National Railway dismissed him for accumulating too many points.
Union grieves accomodation
About one month later, the union, Unifor Council 4000, provided additional medical information on his behalf and filed a grievance, arguing Canadian Nationa Railway didn’t have just cause for dismissal and it should have accommodated the worker’s medical issue.
Arbitrator Graham Clarke noted the worker’s job involved many safety issues since the containers he lifted were large and there were other employees around.
The distraction caused by cellphones, whether operating equipment or not, raised significant safety concerns, according to the arbitrator.
The arbitrator also considered the worker’s attempts to hide what he did by denying using the cellphone and trying to hide it, as well as the fact he had past misconduct that had put his demerit point total at a high level already.
Given these factors, the arbitrator found no reason to reduce the penalty.
The arbitrator also found the second doctor’s note issued two days after the first one — that tied the worker’s cellphone use to a medical issue — stated the worker had no restrictions.
This seemed to indicate there wasn’t any disability at all at that point, said Clarke.
The worker had provided other medical information to Canadian National Railway's occupational health department, but this wasn’t shared with Canadian National Railway management.
As a result, management only saw the brief notes provided during the investigation that didn’t provide any details about a disability.
“(The worker’s) additional medical evidence, even if admissible, similarly did not demonstrate that any alleged disability was a factor in Canadian National Railway’s decision to terminate his employment,” said Clarke.
Violation caused dismissal
There was nothing indicating that a disability was a factor in the worker’s termination and instead it was for exactly what Canadian National Railway indicated — a breach of policy that was a culminating incident following past breaches.
“The evidence does not disclose how (the worker’s) situation, even if it involved a disability, was a factor in Canadian National Railways decision to terminate his employment. Canadian National Railway terminated (the worker) for his continued failure to abide by the policy and for his initial attempts to hide the fact he had been using his cellphone,” said Clarke.
“The evidence only shows that (the worker’s) violation of the safety-sensitive policy resulted in the culminating incident which led to his dismissal.”
The grievance was dismissed.
See: Canadian National Railway Company and Unifor, Council 4000 (Hearns), Re, 2016 CarswellNat 6266 (Can. Railway Office of Arb. & Dispute Res.).
