Canadian Employment Law Today

February 19. 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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February 19, 2014 8 Published by Canadian HR Reporter, a Thomson Reuters business 2014 Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, pho- tocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the ser- vices of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any govern- mental body. We acknowledge the financial support of the Govern- ment of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 CNR employee railroaded out of a job for harassment THIS INSTALMENT of You Make the Call features an employee who was fi red 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, West- wood was driving to work along a CNR private access road that led to the facil- ity 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 park- ing area. Two other CNR employees — a man and a woman — arrived at the intersec- tion 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 in- tersecting 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 West- wood approached the male co-worker. They exchanged angry words and West- wood admitted later that he made physi- cal 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 re- ported 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 offi ce and removed from service pending the com- pletion of the investigation. On June 19, 2012, CNR took West- wood's formal statement, in which he said he had complained about his male co-worker's smoking previously, result- ing 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 as- saulting fellow employees on June 7, 2012." The union grieved the dismissal, ar- guing there were confl icting accounts as to what really happened. Westwood claimed that at the intersection, his fe- male co-worker stopped and his male colleague — with whom he had previ- ous disputes — walked at his vehicle. Westwood also argued the male co- worker's account of the incidents was affected by their acrimonious relation- ship and the altercation outside the shop happened because he waited for West- wood to get there instead of going inside fi rst. This was supported by the female co-worker's report that said he waited for Westwood. IF YOU SAID CNR did not have just cause for dismissal, you're right. The arbitra- tor 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 consid- ered 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 im- portant 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-work- er)," 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 inves- tigating manager under the collective agreement. However, they weren't given this opportunity and CNR "ignored the indications of a history between (West- wood 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 termina- tion void and ordered CNR to reinstate Westwood with full compensation. For more information see: •Canadian National Railway and CAW, Local 100 (Westwood), Re, 2013 Car- swellNat 32 (Can. Arb.). You Make the Call Did CNR have just cause for dismissal? OR Was there insuffi cient cause for dismissal? How would you handle this case? Read the facts and see if the judge agrees

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