CP foreman on LCA fired after leaving work early in Mission, B.C.

Employee previously dismissed for falling asleep on job

A foreman not only left early during a shift but he forged time sheets for another employee who also left early, triggering a termination.

Extra gang foreman, identified as “K. Mardon” of Mission, B.C., worked for Canadian Pacific (CP) on Feb. 16, 2018, on a shift that began at 7 p.m. and was scheduled to end at 6:25 a.m. the following day.

Supervisor Roy O’Handley had a “trouble call” at 4:40 a.m. that required the assistance of Mardon and fellow employee Chad Brown, who was managed by Mardon. O’Handley sent a crew to the tool house to collect Mardon and Brown at 5 a.m., but they were not there.

Later that day, O’Handley called Mardon at 11:58 a.m. and told him two employees went to the tool house and found nobody there. Mardon replied and said he was there.

But no vehicles were in the compound, indicating no employee was on-site, said O’Handley. Mardon then said that Brown had left early but he maintained that he remained on-site.

An investigation ensued and it was discovered that the time sheets for Brown and Mardon were false.

However, a further review of the sheets showed that Brown left at 3:55 a.m., and that was the time that Mardon indicated he had left.

During the investigation, Mardon said that ever since April 24, 2017, he had experienced intestinal issues and that was why he left early as he was “in pain and (had) severe gastrointestinal distress” on that day.

At the time of the incident, Mardon was operating under a last-chance agreement (LCA). “It shall be considered just cause for the termination of the employment of Mardon,” said the text, if he committed any further discipline-worthy actions.

Previously, Mardon had been dismissed by CP on Nov. 23, 2017, for falling asleep on the job.

Mardon was reinstated on Jan. 29, 2018, but this time he was subject to the terms of the LCA.

On March 13, 2018, Mardon was terminated for violating the LCA.

The letter cited his “failure as a foreman to ensure an employee under your charge worked in accordance with all applicable rules and regulations as evidenced by said employee’s absence from duty without authorization during designated work hours on Feb. 16, 2018, and failure to report same to your supervisor.” It also said Mardon was absent from duty without authorization and he made an “inaccurate time claim.”

The Teamsters Canada Rail Conference, Maintenance of way employees division grieved the firing. It argued Mardon’s illness should be a mitigating factor and, in any case, he didn’t violate the LCA.

As well, the clause in the LCA that allowed the employer to substitute termination for lesser punishment was not followed, said the union.

However, arbitrator Richard Hornung rejected the argument and upheld the dismissal.

“The LCA clearly states that a breach of its conditions is to be considered just cause for termination. It equally clearly restricts my jurisdiction to determining if a breach of the LCA existed and, if so, specifically excludes my jurisdiction to impose a lesser penalty. The LCA ought, therefore, to be enforced according to the clear intention of the parties.”

As well, the lesser-punishment argument was dismissed by Hornung.

“It does not thereby establish a transcending obligation on the company to prove that just cause existed, so as to warrant termination pursuant to the William Scott test. Unless the specific terms of the LCA provide otherwise, a clause — as in this case — which provides the company with the option/authority to choose to impose a lesser discipline in place of dismissal does not compel the employer to prove that its primary choice of dismissal was appropriate in the same fashion as if the LCA did not exist or otherwise was merely another consideration to be taken into account.”

Reference: Canadian Pacific Railway Company and the Teamsters Canada Rail Conference, Maintenance of way employees division. Richard Hornung — arbitrator. D. Brown for the employee. March 8, 2019.

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