Canadian HR Reporter

Canadian HR RepoRteR February 9, 2015 emploYmeNt lAw 5 Worker's angry phone calls not just cause Lack of co-operation with investigation worsened appropriate discipline An arbitrator has ordered the reinstate- ment of a canadian pacifi c railway (cpr) worker who was fi red for harassing and verbally abusing other employees. The 43-year-old worker joined CPR in 1996 and had a clean disciplinary record, but suff ered from anxiety for which he sought medical care from his family doc- tor and a psychologist. On Oct. 1, 2013, the worker contacted CPR's employee re- lations department and filed a harassment complaint against his supervisor. He said the supervisor spoke to him inappropriately and hung up on him. e worker also fi led a claim for benefi ts from CPR's insurance provider, Manulife, as he was off work at the time for medical rea- sons. e claim wasn't approved, so on Oct. 24 he called an employ- ee relations advisor to complain, saying the denial of benefi ts con- stituted harassment by CPR. During the call, the advisor said she hadn't had an opportunity to review the audiotapes of the call with his supervisor. e worker then raised his voice and swore at the advisor while demanding his benefi ts be approved. The next day, the worker called a Manulife case manager to complain about the status of his benefits claim. The case manager then sent CPR an email complaining about the worker's phone calls, alleging he screamed at her and demanded she forward him all emails from CPR relating to his claim. e case manager said she hung up on him and CPR's HR depart- ment wasn't helping matters. Employer investigated worker's conduct On Oct. 28, the employee rela- tions advisor wrote a memo about her conversation with the worker and on Nov. 7, she sent the worker an email advising she had com- pleted her investigation into his complaints and found no evidence of harassment in either case. Both complaints were con- sidered "false complaints of ha- rassment," she said, which were breaches of CPR's discrimination and harassment policy and would be investigated. During the investigation, CPR felt the worker was "confron- tational, adversarial and unco- operative." For example, he didn't ask for recess but simply said he was taking a break. e worker also said he suff ered from a medi- cal condition and if the investiga- tion became too much, he would have to leave and go home. On April 8, 2014, CPR termi- nated the worker's employment for making harassing and ver- bally abusive phone calls to the Manulife case manager and the CPR employee relations advisor, as well as making a false claim of harassment against his supervisor and purposely frustrating the in- vestigation process. Arbitrator disagrees e arbitrator found the worker's conduct was "clearly unacceptable and deserving of some discipline." It was evident he had anger issues that required attention and his behaviour was "inappropriate and unprofessional." Although the worker suff ered from anxiety and was frustrat- ed at how his complaints were being handled, this was no excuse for being disrespectful towards the people on the phone, said the arbitrator. However, the worker's behav- iour didn't include threats or demeaning insults and wasn't on the same scale as a serious indus- trial off ence such as theft, said the arbitrator. In addition, the arbitrator expressed concern about the investigation into the worker's complaints. Because the employ- ee relations advisor continued to investigate the complaints after the worker's inappropriate be- haviour toward her on the phone, it raised questions of impartiality, particularly since it was deter- mined that not only was there no harassment but the worker fi led false complaints. Making such an accusation, rather than just advising there was cause to investigate whether the complaints were false, was go- ing too far, said the arbitrator. is was backed up by union evidence that the worker had fi led unsub- stantiated complaints in the past where CPR had taken no action against him. Worker didn't help his cause e worker's conduct during the investigation was "unacceptable and a complete frustration of the investigative process," said the ar- bitrator, and was an aggravating factor in determining the appro- priate discipline since it "indicated a complete failure to appreciate that his earlier conduct was inap- propriate and unacceptable." But dismissal was too harsh and CPR should have applied progressive discipline to cor- rect the worker's behaviour, said the arbitrator. For his original misconduct, a short suspension or demerits along with an anger management referral would have been appropriate. However, when the worker's unco-operative conduct during the investigation was taken into account, a three-day suspension was an appropriate penalty, said the arbitrator. CPR was ordered to reinstate the worker with a three-day sus- pension in place. For more information see: • Canadian Pacifi c Railway and USW, Local 1976 (Murillo), Re, 2014 CarswellNat 5028 (Can. Railway Offi ce of Arb. & Dispute Resolution). Jeff rey R. Smith is the editor of Canadian Employment Law To- day, a publication that looks at workplace law from a business perspective. He can be reached at jeffre y.r.smith@thomson- reuters.com or visit www.em- ploymentlawtoday.com for more information. RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 190,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 10/8/2014 3:40:37 PM Jeff rey Smith LEGAL VIEW

• Cover