Lac-Mégantic train engineer’s firing overturned by arbitrator

Railway didn’t conduct investigation required by collective agreement before firing engineer involved in tragic Quebec train derailment

An arbitrator has overturned the dismissal of the engineer involved in the tragic train derailment disaster in Lac-Mégantic, Que., in 2013 because of the employer railway’s failure to hold a sufficient investigation before terminating his employment as required by the collective agreement.

Thomas Harding was a locomotive engineer for the Montreal Maine & Atlantic Railway, hired in January 1980. He was serving in that role on the train carrying oil that, while left unattended overnight, rolled down a hill on the morning of July 6, 2013, into the town of Lac-Mégantic. The train derailed and exploded, killing 47 people and destroying the part of the town’s downtown area.

Two days after the derailment, a railway official spoke with Harding about it. On July 11, Harding went on a medical leave of absence.

During Harding’s leave of absence, the Montreal Maine & Atlantic Railway went bankrupt. Its assets were purchased by a company that founded the Central Maine & Quebec Railway (CMQR) to take over the defunct railway’s business.

The Transportation Safety Board of Canada investigated the disaster and determined that Harding hadn’t supplied sufficient handbrakes on the train before leaving it for the night. Harding was charged with criminal negligence causing death but was acquitted in January 2018.

Fired for breach of trust before returning from leave

On June 19, 2018, Harding’s union, the United Steelworkers, Local 1976 (USW), advised CMQR that Harding’s medical status had improved to the point where he could begin a progressive return to work, with a start date of July 5. One week later, on June 27, CMQR terminated Harding’s employment for cause, saying his involvement in the Lac-Mégantic derailment broke the relationship of trust it needed to have with its engineers to ensure the safe and competent operation of its trains.

USW grieved the termination, arguing that CMQR violated the collective agreement by not conducting an investigation. The collective agreement stipulated that “an employee shall not be dismissed, suspended or disciplined without justification and without a fair and impartial investigation” and set out the required procedures that constituted a fair and impartial investigation — including an investigation notice to the employee and a USW representative, interviewing internal witnesses, and advising the employee of the right to representation and to present evidence.

CMQR argued that a railway representative had spoken with Harding about the derailment to get his perspective on what happened and the Transportation Safety Board of Canada’s investigation should satisfy the requirement for a fair and impartial investigation.

An arbitrator for the Canadian Railway Office of Arbitration and Dispute Resolution (CROA) noted that the steps for an investigation that were set out in the collective agreement — notifying Harding and the union of the investigation, identifying witnesses, and advising Harding of his right to representation and to present evidence — were not followed by CMQR. In addition, the arbitrator said, while the investigation by the Transportation Safety Board may have been fair and impartial, its purpose was different than what an investigation by the railway would be. The board’s investigation could help provide information that could be used by a CMQR investigation, but it didn’t satisfy the requirements of the collective agreement.

The arbitrator also found that it had been established that disciplinary investigations under the term of  a collective agreement don’t need to be as formal as “a full-blown civil trial or an arbitration” — they could be conducted on an informal basis that allows “an expeditious process” in which an employee is given the opportunity to know of what he has been accused, who his accusers are, and given an opportunity to offer his side of things. A failure to meet the standard of a fair and impartial investigation is grounds to void any discipline meted out, said the arbitrator.

The arbitrator referred to past decisions of the CROA that established a faulty investigation as not a minor technical issue, but “highly important as it bears directly on the integrity of the expedited form of arbitration utilized in this office, whereby the record of disciplinary investigations constitutes a substantial part of the evidence before the arbitrator.” It was an issue that was “fundamental” to the collective agreement and the rights of Harding and USW as a collective bargaining agent, said the arbitrator.

In addition to the fact CMQR didn’t follow the collective agreement’s disciplinary rules and procedures, it didn’t recognize USW’s role as a representative of Harding and a party to the collective agreement, said the arbitrator. USW was entitled to proper notice of the investigation so it could fairly represent Harding, which it didn’t receive.

The arbitrator found CMQR didn’t follow the requirement placed on it in the collective agreement to conduct a fair and impartial investigation into Harding’s safety violations before taking disciplinary action — terminating his employment shortly before his scheduled return from medical leave. Though USW wanted Harding reinstated, the arbitrator determined damages in lieu of reinstatement would be more appropriate and remitted the matter back to them for negotiation.

“This case does not examine Harding’s actions in the Lac-Mégantic matter. CMQR’s failure to conduct the mandatory investigation under its collective agreement with the USW prevented it from proceeding to that ‘on the merits’ issue,” the arbitrator said. “The complete failure to investigate, as (the collective agreement) clearly states, prevented CMQR from issuing any valid discipline to Harding.”

For more information see:

Central Maine & Quebec Railway and USW, Local 1976 (Harding), Re, 2019 CarswellNat 101 (Can. Railway Office of Arb. & Dispute Res.).

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