Inadequate investigation voids termination

A railway worker was fired following an altercation with two coworkers.

The union grieved, arguing that the employer’s failure to conduct an impartial investigation rendered the termination void.

K.W. worked as a heavy duty mechanic employed at the Canadian National Railway Company’s Locomotive Reliability Centre. Previous discipline did not factor into the decision to terminate him on June 19, 2012.

While driving to work at the Diesel Shop on June 7, 2012, K.W. had an encounter at an intersection on company property with two coworkers who were on foot.

K.W. was making a right turn off the main access road. K.W. slowed his vehicle, but did not stop at the stop sign. As he made his turn, K.W.’s vehicle cut across the path of two co-workers — D.H. and S.G. — who were crossing at the intersection.

It was not disputed that K.W. committed two traffic violations by failing to stop and by failing to yield the right of way to pedestrians. However, there was disagreement about how fast K.W. was going and about how close his vehicle came to D.H.

Moments later, after K.W. parked his vehicle, he encountered D.H. and S.G. outside the shop. Words were exchanged and there was some physical contact between K.W. and D.H. initiated by K.W.

The altercation was overheard and the manager made inquiries. D.H. and S.G. were asked to provide written statements. K.W. was also interviewed by the manager and by another supervisor. He was asked to provide a written statement and then he was suspended.

Assault and harassment

The employer undertook an investigation into the incident on June 13, which consisted of taking a formal statement from K.W. according to terms set out in the collective agreement.

On June 19, K.W. was fired.

The employer characterized K.W.’s behaviour as assault and harassment. The employer said that K.W. had used his vehicle to commit a “very serious and potentially lethal assault.” At the altercation outside the shop, K.W. “physically confronted [D.H. and S.G.] in a harassing and abusive manner,” the employer said.

The union said the employer had failed to conduct a fair and impartial investigation and that the termination should be set aside. Alternatively, the union argued that the employer had not satisfied the burden of proof necessary to support the termination. In any event, termination was an excessive response in the circumstances that failed to follow the principles of progressive discipline, the union said.

The Arbitrator agreed.

The employer failed to properly assess and investigate the initial informal written statements given by both D.H. and S.G. Consequently, the employer overlooked evidence in the written statements of an ongoing dispute between K.W. and D.H.

Those untested and informal statements formed the basis of the employer’s case against K.W. That was inadequate, the Arbitrator said.

“These indications of a pre-existing enmity between [D.H.] and the grievor should have given management pause to consider whether their relationship was a factor in the events of June 7. The question which should have surfaced was whether the history between these two contributed in any way to the two incidents which form the basis of [D.H’s] complaints,” the Arbitrator said.

In fact, there was bad blood between D.H. and K.W. stemming from complaints K.W. had filed about D.H.’s smoking.

Differing contract requirements

The history of trouble between the two men raised the real possibility that there was an element of provocation in the June 7 incident, the Arbitrator said.

As well, because D.H. and S.G. were covered by a different collective agreement, they were not subject to the same investigative requirements as K.W.

This raised the question, the Arbitrator said, “whether [K.W.] was denied a fair and impartial investigation because the Company did not interview [D.H. or S.G.] in a manner similar or parallel to the investigation interview contemplated by Appendix III [in K.W.’s contract]?”

The Arbitrator said the investigation was unfair.

“[I] consider the failure to conduct a formal interview of [D.H. and S.G.] to be more than merely a matter of the adequacy of their written statements as evidence. I conclude that it is a failure which goes to the grievor’s entitlement to a fair and impartial investigation establishing his responsibility before the Company decides upon its disciplinary response.”

The Arbitrator ordered that K.W. be reinstated and made whole and the discharge be removed from his record.