Company argued it was progressive discipline
When Ian Lougheed briefly removed his safety glasses while in his locomotive, his employer terminated him, citing a breach of safety protocol.
On Dec. 19, 2014, Lougheed had been terminated due to ongoing poor attendance. But on March 16, 2015, Lougheed was reinstated to his former position as a conductor.
At the time of his reestablishment, Lougheed signed an agreement with Canadian Pacific (CP) that stated he would receive a suspension instead of a dismissal and that he must remain free of any further disciplinary issues for one year.
The agreement included 15 demerit points to be assessed against him going forward.
On Nov. 18, 2015, Lougheed said he removed his safety glasses to rub his eyes.
He originally said it was only for a brief moment, but after an investigation, it was determined he removed the glasses for longer that he should have. Before he removed the safety glasses, he advised a trainmaster that he was doing so to remove garbage.
In a letter, CP gave the following formal reason for his firing: “For failing T-21 safety proficiency test, for not wearing your safety glasses in the locomotive while in Winnipeg yard.”
The union, Teamsters Canada, grieved the decision arguing the small misstep was not a proper use of progressive discipline and was too harsh.
As well, Teamsters said the company didn’t conduct the investigation in a fair and impartial manner.
Arbitrator Graham Clarke ruled in favour of Lougheed when he ruled the termination should have been imposed only if he continued to have attendance problems, not for the removal of safety glasses.
“For a termination resulting from progressive discipline, the existing disciplinary record and the culminating incident must be clear. The arbitrator then considers the penalty of termination,” said Clarke.
“CP has not established that Lougheed’s most recent incident, when read together with his past record, justified the ultimate penalty of dismissal.”
The company claimed that Lougheed had received previous disciplinary notices when he was found to have removed his safety glasses.
“CP referred to previous E-tests and Lougheed’s alleged failures. Lougheed commented during his interview that he had never been told of some of these failures,” said Clarke.
But because Lougheed was subject to the reinstatement agreement at the time of his dismissal, nothing indicated that he could be terminated due to a safety violation and the culmination of properly administered progressive discipline.
“This case is not one where a party seeks to enforce a last-chance agreement,” said Clarke. “Moreover, a failure to respect critical safety issues is found nowhere in the parties’ March 16, 2015, reinstatement agreement. Rather, the parties’ agreement focuses on attendance/availability at work.”
The employer was ordered to reinstate Lougheed and replace his termination with a written warning.
Reference: Canadian Pacific Railway Company and Teamsters Canada . Graham Clark — arbitrator. Dave Pezzaniti, Dave Guerin for the employer. Ken Stuebing for the employee. Jan. 16, 2017.
