Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 More Cases layoff with a return-to-work date of Jan. 26. Unsurprisingly, the company couldn't reach the worker by telephone, so it sent him a registered letter on Jan. 28 advising him of his recall and directing him to contact the company by Feb. 5. e registered letter was returned with the notation "unclaimed." On Feb. 2, the worker contacted his super- visor with a text message from Iran saying his father was in poor health and he needed a leave of absence until January 2016. He men- tioned the request he had faxed to HR and referred to "the emergency situations I was in I had to leave to look after my dad, I'm the only caregiver in the family." Dufferin Concrete didn't grant the leave request because it wasn't considered a prop- er request and he hadn't made it before he left for Iran. ough the worker claimed he had faxed a request to HR, the department didn't have any record of it. e union asked the company to not take any action until all of the employees who were junior to the worker had been recalled. By April, all employees had been recalled and the worker was still in Iran, so Dufferin Concrete discharged him on April 20. According to the worker, when he con- tacted Dufferin Concrete, he violated an order to not contact anyone outside of Iran. As a result, he was imprisoned until late Feb- ruary. After he was released, he continued his efforts to get the necessary documents to leave Iran, which he received in early May. He booked a flight and flew back to Canada on May 26. e arbitrator found that the worker made inquiries to his supervisor about a leave of absence and his supervisor explained the process, but he never submitted a request through the proper channels. e arbitrator also found that the worker never explained the situation in Iran and the difficulty he would have leaving once he got there. e worker contacted the company once he knew he would be in Iran for longer than he originally thought, but the only explana- tion was in the form of a text message refer- ring to an emergency medical situation with his family. It also wasn't true that the worker was the only caregiver for his father, as he had a mother and two sisters in Iran. "e purpose of the (worker's) trip to Iran was not an emergency situation where (he) needed to urgently go to Iran to provide care to his father," said the arbitrator. "Rather, the purpose of the trip was for the (worker) to visit his father and family, not to deal with a family emergency." e arbitrator found the worker's "lack of candour" in his text to Dufferin Concrete was "a serious and aggravating factor," as was the three-day suspension on his record. e worker's dishonesty about his circumstances and his persistence in that "mis-character- ization" following a failure to follow leave request procedure was serious enough to warrant dismissal, said the arbitrator. See Dufferin Concrete and TC, Local 230 (Feli), Re, 2015 CarswellOnt 19573 (Ont. Arb.). No emergency situation with family « from WORKER DISMISSED on page 1 CNR engineer responsible for train collision reinstated by arbitrator A CANADIAN National Railway (CNR) employee has been reinstated by an arbitra- tor after the employee's carelessness con- tributed to a train collision. e CNR employee was a locomotive en- gineer with seven years of service with the railway and two-and-one-half years of ser- vice as an engineer. He had some discipline on his record amounting to 10 demerits. On Nov. 17, 2014, the engineer and a con- ductor were working out of a yard in Win- nipeg. eir assignment was to drive two light locomotives to a receiving yard. e trip required travel eastward, followed by a switch to another track and then westward. ey knew another train of locomotives was on the westward track, so they would have to follow signals to ensure there was sufficient room ahead of them. e locomotives travelled eastward with- out event until they reached the track switch point, where there was a red signal indicat- ing they must stop and wait. Eventually, the signal changed and indicated they could proceed, so they switched tracks and moved onto the westward track, moving in reverse. ey travelled at the maximum track speed of 25 miles per hour until they reached an S-curve in the track. e engineer believed the other train was some distance ahead, so the conductor stayed in the lead engine rather than moving to the other one and taking the leading point during the reversing process through the curve. e engineer thought it was safe to continue reversing, so he moved the throttle immediately from 0 to 8. As they rounded one of the curves, the conductor lost his line of sight and told the engineer. However, the engineer claimed he didn't hear the conductor. Both believed the track was clear, so they didn't do anything else. However, the other train was ahead of them and they collided with it. e result- ing damage to four locomotives in the two trains was almost $1.5 million and both the engineer and conductor of the other train suffered injuries that prevented them from immediately returning to regular duties. CNR had a specific rule that stated a crew member must be on the leading piece of equipment or on the ground when an engine is pushing equipment, so the track can be observed and signals can be given to the en- gineer – unless the track is known to be clear. Following the collision, CNR issued a bul- letin to its operating employees reminding them of this rule. It also added that when re- versing, "a member of the crew must be on the leading platform and/or footboard, and in a position from which signals necessary can be given." CNR determined the engineer was reck- less and was responsible for the collision causing injuries and costing the company a lot of money, as well as breaching its trust. His employment was terminated. e arbitrator noted that the engineer was "clearly mistaken" when he believed the track ahead of him was clear to the point where their sightlines would be enough to see while reversing around the curve in the track. Even though he was mistaken, he still breached the rule requiring a crew member on the leading point. e fact the company issued a bulletin afterwards didn't mean the engineer shouldn't have known the rule; the bulletin "simply clarified what should have been obvi- ous," said the arbitrator. e arbitrator agreed that the crew's fail- ure to follow the rule was a serious breach the led to "a serious collision with substantial financial losses to the company" and injuries that could have been much worse. However, despite CNR's legitimate con- cern about the engineer's serious error, the arbitrator found the employment relation- ship was not beyond saving. Instead, the arbitrator determined a suspension without pay equal to the amount of time since his discharge would serve the purpose intended by discipline and ordered CNR to reinstate the engineer without compensation for any wages or benefits lost. "I am of the view that the imposition of a serious sanction, short of termination, will have the desired rehabilitative impact on this (employee)," said the arbitrator. See Canadian National Railway and Teamsters Canada Rail Conference (Harrower), Re, 2015 CarswellNat 6419 (Can. Railway Office of Arb. & Dispute Res.).

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