CNR employee railroaded out of a job for harassment

Worker nearly hit co-workers with car then had a verbal altercation with them

This instalment of You Make the Call features an employee who was fired after threatening and nearly running down co-workers.

Kevin Westwood was a heavy duty mechanic for the Canadian National Railway (CNR). On June 7, 2012, Westwood was driving to work along a CNR private access road that led to the facility where he was employed. He reached an intersection where he had to turn right on another private road towards the diesel shop and the employee parking area.

Two other CNR employees — a man and a woman — arrived at the intersection at the same time as Westwood, but they were on foot heading back to the shop after parking a locomotive. At the intersection — which had a stop sign — Westwood slowed down to turn right without stopping. At the same time, both co-workers were crossing the intersecting road and Westwood’s truck drove right in front of them. Westwood continued on to the parking area and parked his vehicle.

Westwood and the co-workers arrived at the shop at the same time and Westwood approached the male co-worker. They exchanged angry words and Westwood admitted later that he made physical contact.

The male co-worker pressed his radio microphone so others inside the shop could hear what was going on. The supervisor heard the exchange and reported it to another supervisor and the manager. When Westwood walked by, they asked him what had happened and Westwood said he would be making a formal complaint about the male co-worker’s smoking.

Westwood and the other employees were interviewed and asked to provide written statements. Before Westwood could complete his statement, he was summoned to the manager’s office and removed from service pending the completion of the investigation.

On June 19, 2012, CNR took Westwood’s formal statement, in which he said he had complained about his male co-worker’s smoking previously, resulting in management speaking to the co-worker about it — though no further formal statements from the other two employees. After the investigation was completed, Westwood’s employment was terminated for “harassing and assaulting fellow employees on June 7, 2012.”

The union grieved the dismissal, arguing there were conflicting accounts as to what really happened. Westwood claimed that at the intersection, his female co-worker stopped and his male colleague — with whom he had previous disputes — walked at his vehicle. Westwood also argued the male co-worker’s account of the incidents was affected by their acrimonious relationship and the altercation outside the shop happened because he waited for Westwood to get there instead of going inside first. This was supported by the female co-worker’s report that said he waited for Westwood.

You Make the Call

Did CNR have just cause for dismissal?
Was there insufficient cause for dismissal?

If you said CNR did not have just cause for dismissal, you’re right. The arbitrator found CNR made a mistake in its investigation by not obtaining formal statements from the two co-workers and relying instead on the initial informal statements they made in the wake of the incidents. Had CNR investigated the situation further, it might have considered the smoking complaint and learned more about their disputes. In particular, since it was obvious the two men had an acrimonious relationship, the statement of the female co-worker was important, said the arbitrator.

“A formal statement from (the female co-worker) would have been more important than one from (the male co-worker). She was the only third-party witness to both incidents. Therefore, it would have been potentially useful to explore the level of consistency between her information and (the male co-worker),” said the arbitrator.

The arbitrator also found that since CNR relied on the informal written statements of the co-workers, Westwood and the union should have been allowed to question them through CNR’s investigating manager under the collective agreement. However, they weren’t given this opportunity and CNR “ignored the indications of a history between (Westwood and the male co-worker).”

The arbitrator found the failure to formally interview the co-workers and the failure to take into consideration the history between the two men — and therefore the possibility the male co-worker invited the confrontation — was a breach of Westwood’s entitlement to a fair and impartial investigation.

The arbitrator declared the termination void and ordered CNR to reinstate Westwood with full compensation.

For more information see:

Canadian National Railway and CAW, Local 100 (Westwood), Re, 2013 CarswellNat 32 (Can. Arb.).

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