CPR worker’s failure to follow safety rules led to potentially dangerous situation, but similar violations by others resulted in suspensions, not dismissal
An Ontario railway worker who was fired after violating safety rules regarding coupling of railcars has been reinstated after his union pointed to similar misconduct by other workers being treated more leniently.
Shomari Giscombe was a yard helper for Canadian Pacific Rail (CPR) in Hamilton, Ont. This position, as all positions dealing directly with trains, was classified as safety critical because of the potentially disastrous outcomes from not following safety procedures — something of which the company was acutely aware in the wake of the Lac-Mégantic, Que., disaster. CPR also encouraged a culture of safety and disciplined safety violations with an eye towards deterring other employees from committing similar infractions.
Hired in January 2011, Giscombe amassed a disciplinary record that included 20 demerit points for shoving through the end of a track that caused a derailment, and three suspensions: seven days for absenteeism, seven days for failing a proficiency test, and 14 days for twice failing to check switch points. All three suspensions were in 2015, though the demerit points were from 2011 and had lapsed by 2015.
On Nov. 15, 2015, Giscombe was working an evening shift. He and his team shoved two railcars into a specified track and Giscombe’s job was to couple them to a railcar that was already there. He watched the pin drop on the coupler, observed the slack roll in and out, and verified that the railcar had its air brakes applied. However, he didn’t test the security of the coupling by stretching it or test the handbrakes to ensure all the railcars would remain safely on the track. The team then applied the emergency brakes.
Over the next few hours, the pressure on the railcar’s air brakes decreased — something that isn’t uncommon and the reason emergency brakes are also applied. When crewmen came back to the rail yard, the two railcars that Giscombe had coupled had come loose and rolled off the side track. It was later discovered that the railcars had not been coupled properly to the standing one and no handbrakes had been applied.
Safety rules a priority
CPR’s general operating instruction included a section that stated: “Equipment left unattended must be secured with a sufficient amount of handbrakes to ensure the equipment may not roll/move on their own. This is a very important safety measure to protect the CP employees and public.” This rule was required for employees to follow. In addition, the CPR rule book for train and engine employees required that couplings be stretched to make sure railcars are well connected.
CPR determined that had Giscombe properly followed the safety rules, the railcars would not have become uncoupled. It was particularly concerned because the consequences could have been serious and it was lucky that the railcars stopped rolling because of the grade of the track within the yard.
The union grieved the dismissal, arguing that termination of employment wasn’t the typical level of discipline for such misconduct. It pointed to multiple instances of employees who violated rules and general operating instructions that were given discipline short of dismissal.
The union referred to four instances of discipline for similar safety violations:
• An employee with 25 years of service who failed to secure railcars and caused a collision and derailment was given 40 demerit points, which was then reduced to 20 by an arbitrator.
• A 30-year employee failed to test a handbrake that caused contact between two railcars. This employee — who had a previous suspension that was substituted for a dismissal by an arbitrator — was dismissed but then reinstated by an arbitrator with a seven-day suspension instead.
• Another long-service employee failed to secure standing equipment, resulting in a derailment and minor damage. This employee had a good safety record, so his suspension was reduced from 40 days to 20.
• A locomotive engineer with 30 years of service was involved in a head-on collision and derailment. He had no past safety violations, the cause of the accident was shared, and he wasn’t directly responsible, so an arbitrator reduced his suspension from 45 days to 20.
The arbitrator noted that all of the cases cited by the union involved employees who had been with CPR for a long period of time and had relatively good records. This wasn’t the case with Giscombe, who had less than five years of service with multiple violations.
However, the arbitrator also pointed out that all of Giscombe’s infractions took place early on in his service with CPR, and he had nearly four years without discipline before this latest incident. This showed an ability to work safely for a sustained period of time after his early hiccups, said the arbitrator.
In addition, the arbitrator found there were no consequences of Biscombe’s safety violation, as no damages or injuries were reported. Combined with consideration of the lighter discipline given to Giscombe’s co-workers for similar mistakes, the arbitrator found dismissal was excessive.
CPR was ordered to reinstate Giscombe with compensation for lost benefits and wages, except for a 45-day period that would serve as a suspension on his record in place of his dismissal. This suspension was serious enough to further CPR’s purpose of deterrence, said the arbitrator.
“The company’s will to instigate a strong culture of safety is a commendable objective,” the arbitrator said. “However, one must look at the usual discipline imposed for violations such as the one committed by Mr. Giscombe. The union submitted several cases where violations of (safety) rules and general operating instructions did not result in a discharge.”
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