Canadian Labour Reporter

July 24, 2017

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS employees from taking cellphones into work area. This was because the work- place was a safety-sensitive area and employees needed to be fo- cused on the task at hand, without the potential distraction of cell- phones. By September 2015, the work- er had accumulated 50 demerit points from various instances of misconduct, including 30 points alone from violating the personal communication devices policy. On Sept. 7, managers at the ter- minal observed the worker look- ing down at something while op- erating a truck, followed by what they believed to be him putting a cellphone into his back pocket. When they confronted the worker as he exited the truck, he denied having a cellphone with him. However, one of the managers noticed a cellphone on the ground nearby and when they called the worker's cellphone number, the phone vibrated. The worker initially denied it was his cellphone, but he later ad- mitted that it was. Investigation launched Canadian National Railway con- ducted an investigation into the incident and the worker provided a doctor's note dated Sept. 8 — the day after the incident — that stat- ed he carried "his cellphone on him partly for medical reasons." The worker explained that he had used his cellphone at work to text his brother in relation to a medical issue. Another doctor's note two days later indicated the worker was fit to return to work with no restric- tions. On Sept. 18, Canadian National Railway gave the worker 40 de- merit points, which put his active total at 90. Canadian National Railway pol- icy stipulated termination for em- ployees who surpassed 60 demerit points, so Canadian National Rail- way dismissed him for accumulat- ing too many points. Union grieves accomodation About one month later, the union, Unifor Council 4000, provided ad- ditional medical information on his behalf and filed a grievance, ar- guing Canadian National Railway didn't have just cause for dismissal and it should have accommodated the worker's medical issue. Arbitrator Graham Clarke not- ed the worker's job involved many safety issues since the containers he lifted were large and there were other employees around. The distraction caused by cell- phones, whether operating equip- ment or not, raised significant safety concerns, according to the arbitrator. The arbitrator also considered the worker's attempts to hide what he did by denying using the cell- phone and trying to hide it, as well as the fact he had past misconduct that had put his demerit point to- tal at a high level already. Given these factors, the arbitra- tor found no reason to reduce the penalty. The arbitrator also found the second doctor's note issued two days after the first one — that tied the worker's cellphone use to a medical issue — stated the worker had no restrictions. This seemed to indicate there wasn't any disability at all at that point, said Clarke. The worker had provided other medical information to Canadian National Railway's occupational health department, but this wasn't shared with Canadian National Railway management. As a result, management only saw the brief notes provided dur- ing the investigation that didn't provide any details about a dis- ability. "(The worker's) additional med- ical evidence, even if admissible, similarly did not demonstrate that any alleged disability was a factor in Canadian National Railway's decision to terminate his employ- ment," said Clarke. Violation caused dismissal There was nothing indicating that a disability was a factor in the worker's termination and instead it was for exactly what Canadian National Railway indicated — a breach of policy that was a cul- minating incident following past breaches. "The evidence does not dis- close how (the worker's) situation, even if it involved a disability, was a factor in Canadian National Railways decision to terminate his employment. Canadian Na- tional Railway terminated (the worker) for his continued failure to abide by the policy and for his initial attempts to hide the fact he had been using his cellphone," said Clarke. "The evidence only shows that (the worker's) violation of the safe- ty-sensitive policy resulted in the culminating incident which led to his dismissal." The grievance was dismissed. See Canadian National Rail- way Company and Unifor, Council 4000 (Hearns), Re, 2016 Carswell- Nat 6266 (Can. Railway Office of Arb. & Dispute Res.). < Canadian pg. 1 Employee had long history of demerits for past misconduct Photo: SSaplaima (Shutterstock) "The evidence only shows that (the worker's) violation of the safety-sensitive policy resulted in the culminating incident which led to his dismissal."

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