Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 two railcars that Giscombe had coupled had come loose and rolled off the side track. It was later discovered that the railcars had not been coupled properly to the standing one and no hand- brakes had been applied. Safety rules a priority CPR's general operating instruc- tion included a section that stat- ed: "Equipment left unattended must be secured with a sufficient amount of handbrakes to ensure the equipment may not roll/ move on their own. This is a very important safety measure to pro- tect the CP employees and pub- lic." This rule was required for employees to follow. In addition, the CPR rule book for train and engine employees required that couplings be stretched to make sure railcars are well connected. CPR determined that had Giscombe properly followed the safety rules, the railcars would not have become uncoupled. It was particularly concerned be- cause the consequences could have been serious and it was lucky that the railcars stopped rolling because of the grade of the track within the yard. The union grieved the dis- missal, arguing that termina- tion of employment wasn't the typical level of discipline for such misconduct. It pointed to multiple instances of employ- ees who violated rules and gen- eral operating instructions that were given discipline short of dismissal. The union referred to four in- stances of discipline for similar safety violations: • An employee with 25 years of service who failed to secure railcars and caused a collision and derailment was given 40 demerit points, which was then reduced to 20 by an arbi- trator. • A 30-year employee failed to test a handbrake that caused contact between two railcars. This employee — who had a previous suspension that was substituted for a dismissal by an arbitrator — was dismissed but then reinstated by an ar- bitrator with a seven-day sus- pension instead. • Another long-service em- ployee failed to secure stand- ing equipment, resulting in a derailment and minor dam- age. This employee had a good safety record, so his suspen- sion was reduced from 40 days to 20. • A locomotive engineer with 30 years of service was involved in a head-on collision and derailment. He had no past safety violations, the cause of the accident was shared, and he wasn't directly responsible, so an arbitrator reduced his suspension from 45 days to 20. The arbitrator noted that all of the cases cited by the union in- volved employees who had been with CPR for a long period of time and had relatively good re- cords. This wasn't the case with Giscombe, who had less than five years of service with mul- tiple violations. However, the arbitrator also pointed out that all of Giscombe's infractions took place early on in his service with CPR, and he had nearly four years without disci- pline before this latest incident. This showed an ability to work safely for a sustained period of time after his early hiccups, said the arbitrator. In addition, the arbitrator found there were no conse- quences of Biscombe's safety violation, as no damages or injuries were reported. Com- bined with consideration of the lighter discipline given to Gis- combe's co-workers for similar mistakes, the arbitrator found dismissal was excessive. CPR was ordered to reinstate Giscombe with compensation for lost benefits and wages, ex- cept for a 45-day period that would serve as a suspension on his record in place of his dis- missal. This suspension was se- rious enough to further CPR's purpose of deterrence, said the arbitrator. "The company's will to insti- gate a strong culture of safety is a commendable objective," the arbitrator said. "However, one must look at the usual discipline imposed for violations such as the one committed by Mr. Gis- combe. The union submitted several cases where violations of (safety) rules and general operat- ing instructions did not result in a discharge." For more information see: • Canadian Pacific Railway and Teamsters Canada Rail Conference (Giscombe), Re, 2016 CarswellNat 5233 (Can. Railway Office of Arb. & Dispute Res.). Dismissal < pg. 6 Company usually issued suspensions for such misconduct News | January 2017 | CSR stating that her position had be- come redundant in the restruc- turing and expansion. It claimed it only needed one employee for the book room, and the em- ployee that had worked under Podobnik was being retained because of his lower salary. It provided Podobnik four weeks of termination pay. Podobnik filed a labour com- plaint, claiming she was dis- missed because of her health and safety complaints both to the so- ciety and the Ministry of Labour. The board found that the evi- dence indicated the society didn't take Podobnik's health and safety concerns seriously and the exec- utive director thought her refusal to work when she had the large donation of books to process was frivolous and unfounded. However, management's opinion didn't matter if Podobnik's work refusal was in good faith, which the board believed it was. Since the board found Podob- nik's concerns were legitimate and she honestly believed in them, the disciplinary warning she was given was a violation of the Occupational Health and Safety Act's prohibition of re- prisals and the society should have inquired into the matter, said the board. The board also found that the society's stated reason for dis- missing Podobnik — restructur- ing — was called into doubt by the fact she had been involved in health and safety complaints to the Ministry of Labour and a work refusal. This was em- phasized by the fact the society also was expanding as part of its restructuring, which meant it was hiring more employees. Rather than offering Podobnik another position, the society dismissed her, leaving "no doubt in my mind that in terminating Ms. Podobnik on Nov. 10, 2015, the society engaged in reprisal misconduct contrary" to the act, said the board. Since Podobnik didn't request reinstatement, the society was ordered to pay her compensa- tion for lost wages, commission and benefits — minus the four weeks' termination pay — as well as $3,500 in damages for emo- tional pain and suffering, for a to- tal of $15,062. See Leah Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc., (Sept. 27, 2016), No. 3211-15-UR, Kuttner- V-Chair (Ont. Lab. Rel. Bd.). No charity < pg. 3 Worker dismissed 3 weeks after safety complaint e worker had showed an ability to work safely for 4 years after his instances of discipline early on in his enture with the railway.

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