Canadian Employment Law Today

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Read the facts and see if the judge agrees 12 YOU MAKE THE CALL Worker goes off the rails over sick note request THIS EDITION of You Make the Call fea- tures a railway worker who complained about his employer's insistence he provide a medical note to validate an absence from work. e 55-year-old worker was a timekeeper for the Canadian National Railway (CNR) in Edmonton. He had 37 years of service with CNR and no active demerits on his record un- der the collective agreement, since he had no instances of discipline for more than a decade. On March 6, 2014, the worker emailed the general manager regarding a collective agreement issue. e email was written in a snappy and somewhat disrespectful tone, and the general manager replied with an ex- planation of CNR's position on the issue and advised the worker that a grievance would be a appropriate response if he disagreed. He also warned the worker that "future ac- tion of this nature will be met with conse- quences." On Aug. 1, 2014, the worker was absent from work. He returned to work three days later, on Aug. 4, at which point CNR asked him to produce a doctor's note to substanti- ate his absence. e worker was disturbed by this request, since he prided himself on his good attendance record and he believed the collective agreement didn't require doc- tor's notes for a certain amount of sick days. Angry over being asked for a sick note, the worker emailed the general manager and explained his concern over the require- ment. His email included statements such as "What part of this do you not understand?" and "After the crap you pulled on me last March why would I even consider bringing in sick notes anyway?" He concluded the email with the warning: "Do not ever ask me for a sick note again." CNR management felt the worker's email was inappropriate and decided to discipline him. e day after the email, the manager of operations met the worker in the parking lot and gave him a notice to appear for an investigative interview on Aug. 7. e man- ager also told the worker he would be taken out of service pending the completion of the investigation. e worker was surprised and angered by this development and told the manager he felt he was being "sucker punched now for the second time." He also told him he was "not f--- king listening to anything, he was done, and "I quit." He grabbed the envelope containing the notice to appear and walked away, saying "I'm not f---ing showing up for that." e worker did show up for the investiga- tion meeting and explained that he didn't feel he needed to bring in a doctor's note. He also said, "if this crap ever happens again the com- pany will be hearing from my lawyer." CNR assigned the worker 45 demerit points for the email incident and scheduled an investigation meeting for the parking lot incident. In the second investigative meeting, the worker said he had been rattled in the park- ing lot and didn't remember saying or doing anything inappropriate. He agreed with the manager's account that he had been dis- turbed but denied using profanities. CNR gave the worker 30 demerits for his behav- iour in the parking lot, which put him over the limit for dismissal. e worker's employ- ment was terminated. YOU MAKE THE CALL Did the multiple instances of misconduct amount to just cause for dismissal? OR Was dismissal not warrented? IF YOU SAID dismissal wasn't warranted, you're correct. e arbitrator agreed with CNR that the worker's email to the gen- eral manager was inappropriate and dis- respectful, as the worker had no right to tell the company it couldn't require a sick note from him. However, the worker had no demerits on his disciplinary record – he received no real discipline for his March 2014 email – so 45 demerits, which was most of the way towards the amount trig- gering dismissal, was excessive for another email similar to the fi rst one, said the ar- bitrator. " e purpose of discipline was to make clear to the (worker) that his actions were not acceptable," said the arbitrator. " e purpose could have been achieved with less severe discipline." e arbitrator found the worker's behav- iour in the parking lot was "momentary in nature" that arose from being surprised in the parking lot and abruptly taken out of service. It was a reaction to what the worker perceived as further injustice. It was impor- tant to note that at the time of the parking lot incident the worker did not yet know he would be receiving 45 demerits for the email incident, so he didn't have a chance to improve his conduct after the latter, said the arbitrator. Given the worker's 37 years of service, the fact the email was a private commu- nication, and the parking lot incident was borne out of frustration and a reaction, the arbitrator determined dismissal was not ap- propriate. CNR was ordered to reinstate the worker with a total of 25 demerits points on his record for the two incidents. For more information see: • Canadian National Railway and Unifor, National Council 4000 (Buchan), Re, 2015 CarswellNat 1143 (Can. Offi ce of Arb. & Dispute Res.).

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