AH 547
BETWEEN:
BC RAIL LTD.
(the “Employer”)
AND:
UNITED TRANSPORTATION UNION
LOCALS NOS. 1778 AND 1923
(the “Union”)
ARBITRATOR: John Kinzie
COUNSEL: Greg Heywood, for the Employer
Theo Arsenault, for the Union
DATES OF HEARING: October 1, 28 and 29, 2002
PLACE OF HEARING: Vancouver, British Columbia
I
This proceeding is concerned with a grievance by Rudy O’Quinn against the Employer’s decision to terminate his employment effective November 2, 2001. That
decision was communicated to the grievor by a letter of the same date from L.J. Guenther, one of the Employer’s Superintendents. That letter read as follows:
“This refers to the hearing conducted on October 30, 2001 in connection with ‘Your use of abusive language over the phone to a company officer, September 10, 2001.’
Following a careful review of the information available, including your evasive and incomplete responses provided during the hearing, please be advised that BC Rail is left with no option other than to advise you that you are being dismissed for your demonstrated unacceptable and insubordinate conduct during your exchange with the Crew Supervisor on September 10, 2001 when you used profane and abusive language when you were advised that your allotted annual vacation could not be changed as you had requested. Your abusive conduct has been continuing and repeated, despite the Company’s efforts to modify and correct your behavior using the progressive approach to discipline.
Human Resources Department personnel will be contacting you directly to make arrangements to pay you your outstanding monies as specified in Article 107(B)(viii) of the UTU Collective Agreement. Your choices regarding your pensionable earnings will be provided at that time as well.”
The grievor had called his crew supervisor, Bob Smith, a “fucking asshole”.
The Union acknowledges that the grievor deserved some discipline for the language he used in his conversation with Smith on September 10, 2001. However, it maintains that dismissal was an excessive response in all the circumstances of the case. It points to the grievor’s age, i.e., 61 years old and close to retirement, his 25 years of service with the Employer, and the fact that he suffers from major depressive disorder. It submits that instead of terminating the grievor’s employment in November, 2001 because of the September 10, 2001 incident, the Employer should have inquired into how the grievor’s disability could have been accommodated while maintaining his employment with the Employer. By way of remedy, it asks that I set aside the grievor’s dismissal, reinstate him to employment, and direct the parties to consider how the grievor’s disability can be accommodated.
The Employer says that the grievance should be dismissed. It maintains that there is no evidence that the grievor’s medical condition of major depressive disorder caused him to use the abusive language he directed at Smith on September 10, 2001. In fact, it submits that the medical evidence is to the contrary. The result is, the Employer says, that this case is a culpable one, and that the grievor has been disciplined for similar insubordinate and belligerent conduct in the past. In light of his past disciplinary history, the continuation of that conduct reflected in the September 10, 2001 incident justified it in terminating his employment. It submits that that response was not an excessive one in all the circumstances of the case.
II
The background facts to this proceeding are as follows.
As stated above, the grievor is 61 years old. His seniority date with the Employer is July 22, 1976. He has worked with the Employer as a trainman. In or about 1995, he became a conductor, the chief operating position on a train. He is married to his second wife. He has one daughter and had a son. His son committed suicide in 1990.
Through his 25 years of employment, the grievor was disciplined on a number of occasions by the Employer. His discipline record must be read in light of the provisions of Article 107 (C) of the collective agreement which reads in part:
“Written reprimands and/or warning letters will be removed from employees’ personal file after a period of two (2) years from date of issue.”
On September 2, 1988, the grievor was given a two day suspension for violating Rule 112 as a result of which “a sideswipe/derailment occurred which resulted in track damage, traffic delays, loss of customer product, and car damage, as well as costs attributed to repair and clean up [the] site.”
On October 21, 1991, the grievor was suspended for five days for having allowed his train to exceed permissible track speeds. On the day in question, he allowed his train to exceed “permissible track speeds by upwards of 10 MPH for a good portion of [the] trip and by excess of 25 MPH over a public crossing at Mile 260.2.” The letter advising him of his discipline noted that both he and the Employer “stand to be criticized very heavily, and rightfully so, if an accident of some type were to happen, while a violation of this nature was taking place.”
On March 25, 1997, the grievor was given a two day suspension for insubordination and remarks he made to his supervisor arising out of his decision to stop his train to eat when he was directed by his supervisor to the contrary. The grievor admitted during the hearing preceding the imposition of the suspension that he was upset and that he had probably said words that he should not have said. He was warned that
“Should you be in disagreement with your Supervisor’s decision, interpretation or alleged violation of your Collective Agreement, Article 104 establishes a process for the settlement of a grievance or dispute.”
The following year, on February 18, 1998, Larry Behnish, one of the Employer’s Regional Managers, gave the grievor a two day suspension for having missed a call on January 21, 1998.
On the same day, i.e., February 18, 1998, Behnish gave the grievor a further five day suspension for having left his shift and gone home on January 24, 1998. In the letter advising the grievor of that suspension. Behnish acknowledged that “several times during your hearing you alluded to being stressed and angry, without relaying too many specifics.” In this regard, Behnish continued:
“I would like to suggest that if there are situations that are causing you undue stress and anger that you should contact the Employee and Family Assistance Program for any assistance they might be able to offer you in dealing with these situations.”
I now interrupt my review of the grievor’s discipline history to reflect some medical events that occurred which impacted on the grievor’s employment. On June 7, 1999, the grievor booked off sick from work claiming depression. On April 24, 1999, Dr. Paul Farrell, the grievor’s family doctor, had reported that he was suffering from depression and that as a result of his condition, the grievor was unable to perform his duties as a conductor. He was ultimately referred to a psychologist, Dr. Roger Marceau, who reported on August 3, 1999, that the grievor was suffering from a major depression condition accompanied by “sleep disturbance, depressed mood, obsessional anxiety, loss of interest, and poor concentration.” Dr. Marceau said in his report that he was treating the grievor with “psychotherapy and stress management and anti-depressant anti-obsessional medication”. He also said that the grievor required “rest and therapy to return to work as a positive and confident employee until retirement”.
Following receipt of the reports of Dr. Farrell and Dr. Marceau and the grievor’s booking off sick, Anne Kendell, the Employer’s Disability Claims Examiner, now Manager, Disability, asked Dr. Alan Buchanan, an Occupational Psychiatrist, to provide the Employer with a disability assessment of the grievor.
None of the physicians involved in treating the grievor testified during this proceeding. The parties agreed to enter their reports with the statements and opinions expressed therein speaking for themselves. Dr. Buchanan submitted his report on his assessment of the grievor to Kendell on September 1, 1999.
Dr. Buchanan met with the grievor prior to preparing his report. The grievor discussed with him the suicide of his son in 1990 and how he felt following it. Dr. Buchanan summarizes their discussions in this area this way:
“His description of this time [following his son’s suicide] sounds like an episode of Major Depression with sleep problems, energy loss, loss of confidence and concentration and his mind racing distracted by other thoughts but no medication prescribed. There is no family history of psychiatric illness that he knows.
His next difficulty came around 1997 and 1998 when a work related situation caused him a lot of concern. He found it impossible to function properly in his job with a decision from the railway to insist on him getting up a (sic) 5:00 a.m. and working until noon and then sleeping until the early evening and then taking a train back home to Lillooet arriving in the middle of the night, and then trying to sleep. He found the problem of trying to sleep during the day impossible to get used to and therefore felt he was not concentrating and ready to fall asleep when driving the train back on the second leg of the trip. He complained about ten times over the next while and was seen in hearings without anything being resolved. He indicates the company’s point of view was, he just had to do this route. There never was (sic) any accidents or technicals as a result of him doing the route. He continued this type of shift through this spring. He notes the onset of significant symptoms of depression, anger, feeling very stressed an (sic) unable to relax beginning in the spring of 1998. Around the summer of 1998 he consulted a psychologist, Dr. Madryga, who saw him on a regular basis through that year and that fall and again in the spring of 1999. Shortly before he left the workplace, he felt there had been no change at all in his symptomatology and he probably was getting worse and this was the reason he booked off work in June. He was fearing an accident considering his state at that time. This was also a time when Dr. Madryga was retiring and he was referred to Dr. Marceau. I understand he had been tried on Paxil 20 mg briefly which caused headaches and irritability and then was put on Zoloft by Dr. Farrell in June.
The response to Zoloft has been positive. There is less anxiety, irritability and more of a sense of calm but there are a number of symptoms which have not improved at all. These include a total lack of interest in sex which has been present for about nine years. He also has no interest at all in his hot tub, seeing friends, hobbies, television, reading, and sometimes not even his wife. He has to push himself very hard to do anything including dressing, cooking, cleaning and has not even picked up his mail for the past two weeks. He only answers the phone if it is someone he knows. He describes marked feelings of irritability, particularly with anyone connected with BC Rail. However this extends also to his wife, which he is feeling very guilty about. His sleep is light and he is sleeping in in the morning, this is most unlike him as he usually gets up a (sic) 5:00 am whether he is working or not. He has experienced a considerable loss of appetite since he started taking the Zoloft medication. This is a man who has a very large appetite normally and as a result he has lost about 12 lbs since June. He notes poor concentration in his reading and he cannot focus on a task at hand and is distracted by competing thoughts. He also describes his memory for people’s names, faces and appointments is quite bad. In the past he has dealt with these sort of feelings with exercise but finds it impossible to get outside and do any walking or running. He is showing the frequent problem in depressed men of being unable to cut his grass all at once and does this in chunks. There are no suicidal or violent thoughts.”
He took a Beck Depression Index of the grievor on the day of his visit and he noted the grievor “scored 28 which is in the moderately severe depressed range.”
Dr. Buchanan then summarized his “impressions and recommendations” as follows:
“1. I agree with the diagnosis of Major Depression-Moderate Severity-
In Partial Remission. There are likely obsessional and perfectionistic personality traits present here which can mask the severity of a depression. In retrospect he should have been on medication quite some time ago. He has had a partial response to Zoloft 50 mg without any side effects and I would estimate his response at around 10-15%.
As far as treatment recommendations, I would recommend that he continue his place to become a patient of Dr. Vik Desai at #4-1380 Summit Drive, Kamloops, BC V2C 1T8. Dr. Desai would be advised to increase the Zoloft immediately to 100 mg a day, wait two weeks and if there are not dramatic changes, try 150 mg. Dr. Desai would be in the best position to decide whether his emotional control and concentration difficulties are returned to normal to allow him to resume his work as a conductor. My expectations on conductors is the same I have for airline pilots. If the Zoloft strategy fails to work, Effexor XR would be the next logical thing to try at a 75-150 mg dose range.
2. The disability consequences of this matter are interesting. There seems to be no psychosocial trigger that is responsible for this current episode of depression. He certainly has a history of a reactive type of depression that did not receive any medication back in 1990. In other words this is his second episode of depression in a background of alcoholism in remission. He also has a number of obsessional personality traits which make him particularly safety conscious, responsible and someone who will take his time in order to do what he considers to be a correct job. We discussed this for a while and some of the pressure he has received from the employer to speed up and alter his rigid standards. He refuses to do this as he has to do it his own particular way. He indicates wanting to stay in employment with BC Rail until he is 65. We had a discussion about the changed nature of management in BC Rail and how it affects him and I sensed he had not accepted this change very well and continues to compare it with the old management style he enjoyed for a number of years. He actively resists being dominated. He has a large number of people who act as his ‘boss’ when he is working and this is quite difficult for him.
The issue of shift work is important. His description is that around 1996 he was forced to work a shift work pattern I described which he feels he was unable to do and his body could not adjust to. After several years of this, if this was fairly continuous, he then develops a Major Depression. There are several reasons why I could recommend that this man not be put back on any sort of shift work pattern. First, anyone who has had two Major Depressions is very likely to be adversely affected by shift work with the production of more depressions in the future. Secondly, it is entirely possible that this type of shift work experience in an older employee could produce the depressive illness we are seeing. As a result, it would be prudent not to put this man back on a shift work schedule that he feels his biological rhythm cannot tolerate.
If there is a need for further documentation to support this position, I would be happy to discuss this matter with the Sleep Disorder and Shift Work experts at the UBC Sleep Disorder Clinic. I have done this in the past with other cases and they have routinely supported this position.
In this regard, it would be advantageous that he not return to his previous job situation and he be placed in a situation where he is not exposed to rapid shift changes, particularly having to sleep during the day.
3. I would fully support disability payments to be made to this man since he left the workplace. Considering the safety sensitive nature of his job, I think it was a good idea he was not working at all as I believe he was totally disabled for this occupation and continues to be totally disabled. With a good response to the medication, the earliest he might be able to return to something would be four to six weeks from now.”
Following receipt of Dr. Buchanan’s report, Kendell did canvass the question of whether the grievor could be given an assignment which did not expose him to rapid shift changes. She was advised that the grievor had insufficient seniority to hold a day shift or freight position out of Lillooet where he resided. She was told that in order for the grievor to achieve such a shift, he would have to relocate to another terminal and finish his career on a yard assignment.
The grievor returned to work on January 11, 2000. Just over one month later, the grievor received a warning letter for having refused to accept a call on January 30, 2000.
On November 21, 2000, the grievor was given a two day suspension for having violated Rules 115, 114 and 104 which had resulted in two rail cars being derailed. It also appears the grievor failed to report a broken switch lock.
On January 26, 2001, the grievor was given a five day suspension for having left a crossover switch open after his train used it to access cars on yard trackage. The grievor was advised that:
“This is the second incident in two months you have overlooked a significant step in procedures, resulting in rule violations. In both cases, crew and train safety was compromised.”
He was warned that the Employer “would expect no further incidents of this nature.”
On or about March 1, 2001, the grievor stopped his train in order to have his meal break. His train was late at the time. The Network Operations Manager came on his radio and told him that he was not to stop his train for the purpose of eating. He warned the grievor that any further delay in moving the train would be investigated. The grievor responded that the Manager could investigate all he wanted, but he was going to have his meal break there. The Manager repeated his instructions to the grievor twice again. His last instruction was “I’m instructing you to take your train southward for relief, over.” The grievor responded “have a nice day.”
Despite the grievor’s insubordination, the Employer did not institute discipline proceedings. Instead, Peter Rebagliati, a Regional Manager of the Employer, called Bob Sharpe, the Union’s General Chairman, to see if there was a way of dealing with this matter short of discipline. It was agreed that Steve Edgar, another officer of the Union, would see if he could persuade the grievor to see his doctor to ascertain whether there were any underlying medical explanations for his behaviour in the March, 2001 incident. In the interim, the grievor was removed from service but the Employer continued to pay him the equivalent of the weekly indemnity benefit rate.
Because of the grievor’s safety-sensitive position as a conductor and his two previous suspensions for rule violations which compromised crew and train safety, the Employer was particularly concerned about the grievor’s medications and whether they might be affecting his work performance. Kendell wrote to Dr. Desai on March 13, 2001 regarding these concerns. Dr. Desai did not respond to her, it appears because of patient confidentiality concerns. Ultimately, with the assistance of the Employer’s Chief Medical Officer, Dr. Desai did respond on April 24, 2001. With respect to Kendell’s request for information and concerns, Dr. Desai stated to Dr. Jeffries that:
“Mr. O’Quinn presently is taking Zoloft 100mg po bid, from which he has not shown to be suffering any side effects, and has benefitted. He also takes Trazodone 50 mg at hs on an intermittent basis which supplies him with a sound sleep, but often gives him a headache in the morning, for which he takes two extra strength Tylenols. He also takes plain Tylenol as needed for arthritic pains. To my knowledge, he is on no other medications, nor suffers other side effects of his medications.
Mr. O’Quinn is not presently disabled from work nor has he been disabled from working for medical grounds in the recent past, so though Ms. Kendall (sic) feels an application for short term Disability benefits should be completed, I do not see how it is warranted.
Should you require any further information, please contact me at your convenience.”
Sharpe testified that Dr. Desai’s opinion that the grievor was not disabled from working as a conductor then or in the recent past came as a surprize to him and he suspected to the Employer as well. The Employer returned the grievor to work in his position as conductor. No disciplinary proceedings were instituted in respect of the grievor’s insubordination in refusing to move his train in the incident that occurred on or about March 1, 2001.
On July 19, 2001, the grievor was again insubordinate, refusing to eat and to be relieved in the manner scheduled, and instead eating in the location he wanted with the result that another train was delayed. He also made the following comments to the Radio Traffic Controller:
“OQ [the grievor]: Well, maybe you can get on the horn and get a hold of Esko and get him to the gravel pit pretty quick. You wanna play these here games, you can play these here games, I’m not gonna co-operate one bit. Gordon [the RTC] you can forget about it and this here bullshit that happened at Exeter today, that was a real good finascle there and I’m not gonna put up with it god damn it. I’m not gonna put up with it. If you want to fuck around you can god damn well do it but I’m not gonna tolerate it.
RTC: Ah, first of all we don’t need that sort of language on the air there Rudy and uh. . . .
OQ: Well, you don’t need nothing on the air but you’re gonna get it on the air whether you like it on the air or not. Shut off. Shut the tower off.”
During the hearing held on August 1, 2001, the grievor explained that he had decided to eat where he did because he was “cold, tired, hungry and wet”. He said he took it on his own “that I was going to have beans and I did.” With respect to his profanity towards the radio traffic controller, he said if the controller was offended, he apologized to him. He said it was not directed at him, but instead the Employer’s policies.
On August 7, 2001, Guenther wrote to the grievor informing him that he was suspended for six days because of the July 19, 2001 incident. He also advised the grievor in that letter that:
“Your refusal to take instruction, your profanity and your intentional delaying of your train are individually taken very seriously, and collectively, require a significant response on the part of the railway. You must not defy instructions. You must not use profanity. Your explanation that frustrations overrode common sense in (sic) not acceptable.
Your actions are intolerable, and must not be repeated.
. . .
A suspension of this magnitude indicates that you are at odds with the behavior standards of B C Rail. Any further incidents of this nature could lead to more sever (sic) discipline, including dismissal.”
The grievor was entitled to six weeks vacation for the calendar year 2001. Applications to schedule specific times during the year to take vacations were to be made by February 1 of that year. Preference was granted to employees based on their seniority. Employees were allowed to split their vacation periods. However, where applications for vacations or to change established vacation periods were made after February 1, they were dealt with in order of date submitted and not seniority. In this regard, Article 116 (l) of the collective agreement provides that:
“Insofar as practicable, preference shall be given in order of seniority of the applicants where applications for vacation have been filed on or before January 31st of each year, such preference shall not be granted where applications have been filed after January 31st. Employees must take their vacation at the time allotted, unless otherwise mutually agreed. Those who do not apply for it prior to February 1st shall be required to take their vacation at a time prescribed by the Railway.
Note: Employees entitled to two (2) weeks’ vacation must take such vacation in a continuous period. An employee entitled to three (3), four (4), five (5), six (6) or seven (7) weeks’ vacation may, provided proper application is made prior to January 31st and there is no additional expense to the Railway, take his vacation in two (2) portions, neither of which will be less than one (1) week. An employee taking his vacation in two (2) portions will only be allowed his seniority preference on the first portion. When all men on the seniority list have been granted one (1) choice, then the second portion will be granted in order of seniority.”
Crew supervisors are responsible for, among other things, scheduling crews and scheduling their vacations. The grievor was on vacation at the beginning of September, 2001 when he applied to change his vacation periods so that he could take the last two weeks in December, 2001 off. He said he made this request in order that he could spend some time with his grandchildren in Kelowna. He submitted his application for the change on September 4, 2001 and he called and spoke to Smith about it on September 7th. Smith explained that he had not had time to look at the grievor’s request but that the grievor could call back in a few days.
The grievor called Smith back on September 10, 2001. Calls to the crew supervisors’ office are taped and the following is a transcript of the conversation between Smith and the grievor regarding the grievor’s application to change his vacation periods:
“1. Smith: Crew Supervisor’s Office
2. Rudy: O’Quinn.
3. Smith: Yes, Rudy.
4. Rudy: What about my holidays?
5. Smith: No we got ah, we’re full at Christmas and we got
Deslaurier on the list ahead of you.
6. Rudy: Get out of here.
7. Smith: Yeah! You’re level 3, and we got 3 off.
8. Rudy: I don’t give a God damn about Bob Deslaurier. I
got more seniority.
9. Smith: Well, that doesn’t matter ……… That doesn’t matter.
He applied before you did.
10. Rudy: He APPLIED before I did?
11. Smith: Yeah.
12. Rudy: For fuck sakes. Well, I’m gonna protest it.
13. Smith: Go ahead.
14. Rudy: Well, go ahead that’s all you’ve go (sic) to say eh?
15. Smith: Well what do you expect me to say?
16. Rudy: Fuckin’ asshole you.”
I was also given the cassette tape of the conversation.
Smith reported the grievor’s having sworn at him to his supervisor, Rob Pearson, the Manager of Road Operations for the Cariboo. Pearson said he listened to the tape of the conversation and read the transcript. He decided he had to follow up on the grievor’s language with Smith. He scheduled a hearing for October 30, 2001 in Lillooet and wrote to the grievor to advise him of the date, time, place and subject matter of the hearing. With respect to the subject matter, he advised the grievor it was “your use of abusive language over the telephone to a BC Rail officer September 10, 2001.” Pearson also advised him he could have a representative at the hearing if he wished.
The grievor did not appear at the hearing at its scheduled start time. Pearson called him to which the grievor replied – “you still want to do this do you?” The grievor eventually showed up for the hearing without any representation. As is the practice in these hearings, Pearson posed a number of questions to the grievor which the grievor did not answer. However, when he was asked if he understood that abusive language would not be tolerated by the Employer and that it considered such language to be conduct which could jeopardize his continued employment with it, the grievor replied that he did not understand that at all. Asked if he understood that the use of such abusive language would not be tolerated and would result in disciplinary consequences up to and including dismissal, he replied that he disagreed with that.
Following the hearing, Pearson sent a copy of everything in his possession pertaining to this matter including a transcript of the October 30, 2001 hearing to Guenther. It was Guenther’s decision to terminate the grievor’s employment. Pearson delivered Guenther’s letter dated November 2, 2001, quoted above in Part I of this Award, to the grievor on the same day.
Following the Employer’s decision to dismiss the grievor, Sharpe approached the Employer requesting that the grievor be referred back to Dr. Buchanan for an assessment of his medical and mental status. He testified that this is what the Employer and the Union had anticipated would happen in the spring of 2001 until they were in receipt of Dr. Desai’s letter of April 24, 2001. The Employer agreed with Sharpe’s request, as did the grievor. The grievor met with Dr. Buchanan on December 7, 2001 and his report to Kendell is dated the same day.
Dr. Buchanan introduced his report by commenting that:
“I was instructed by Ms. Kendall (sic) that Mr. O’Quinn has been recently terminated from BC Rail and there is a question as to his psychiatric status around the time of termination. Mr. O’Quinn was informed as to the nature of this assessment which he agreed to. He was seen in the Lonsdale Quay Hotel boardroom on December 7, 2001 for an interview that lasted two hours and twenty minutes. He brought two pieces of documentation with him, which I reviewed, including a short letter from his wife and a medical note from Dr. Desai from November 27, 2001 indicating symptoms of Depression and the need for an indefinite leave from work.”
Dr. Buchanan then records what the grievor related to him regarding his relationship with the Employer since Dr. Buchanan’s September 1, 1999 report. Dr. Buchanan states that:
“Rudy tells me that he returned to work in January or February 2000 to his usual duties as a conductor with no changes in his job or his exposure to shift work. I had recommended that he not work shift work in my report of September 1999 as this would act as a risk factor for future problems with Depression.
Rudy indicates that he was in a very good state of mind when he returned to work in February 2000 and had asked his doctor to clear him to return. He remembers that an increase of Zoloft to 150 mg prior to his return seemed to eliminate all the lingering symptoms of Depression including sleep difficulties, energy loss, concentration problems and he had a full return of his usual list of interests.
Within two months he was disciplined by the Railway for refusing to continue during a shift because of irregularities in the way his train was delivered to him by the Vancouver office. He was ‘pulled out of service’ for a while and this pattern began repeating through the year where he would disagree with management directives particularly in regards to his mealtime and his shift length. He explained in detail his perception that there is a (sic) ‘A Team and B Team’ of employees in his position, ‘A Team’ are given preferential treatment. He finds himself on the B Team and therefore he has a lot of conflict about acquiring mealtimes when he wants them and trying to avoid doing more than eight hour shifts. A longer shift puts him in a position of being later to home or his hotel and can contribute to problems with his sleep. He indicates that none of his complaints eventually lead to changes in the workplace and he is generally taken out of service.
. . .
I understand his problems with management continued this year. He indicates that he regularly complains to supervisors and dispatchers and that ‘my expectations are not met by this railway.’ If he feels that he is being pressured he can easily become very upset, angry and confrontational. This has led to a number of other ‘out of service’ situations, the longest being 76 days this year. He indicates that the situation with management has not really changed over the last few years but the frequency of being disciplined has increased. He described no particular problems with co-workers, although there are ‘a lot of people I don’t like working with’ and he indicates that his job performance has been without incident. He indicates his problem with management is ‘my attitude and my mouth.’
. . .
His new symptoms are mostly a resurgence of problems that he was having in 1999. He feels ‘disappointed’ that he feels this way which includes hopeless, helpless and whenever he thinks about BC Rail, he is angry.
. . .
While on holidays November 8th or 9th (sic), he called Bob Smith, his supervisor, requesting a change of his holidays to split them up so he could spend some time with his grandchildren around Christmas. This was refused with no reason. Rudy took this as another example of how he is on the ‘B Team’ and believes that someone on the ‘At (sic) Team’ had been given this privilege without any problem. He called Bob Smith ‘a fucking asshole’ and hung up on him. Within a day or two he was dismissed for insubordination. He describes no particular change in his mood as a result of this action or any of his other symptoms. His wife has no doubt that he should retire at this time because of the shifts and poor food that he has been exposed to over the years. Rudy has seen a female labour lawyer who told him that there was a case for a wrongful dismissal.
There is no evidence of any substance abuse, personality disorder or any organic factors. As in my previous assessment in 1999, Rudy presents as a proud man who had definite principles for living and believes that he should be dealt with in a fair and equitable manner by BC Rail management. He has insisted on doing his job when he is alert and not sleepy and takes the safety issues of his job very seriously. He believes the Railway has gone too far in emphasizing schedules over the environmental and public safety issues that he is more concerned with. He admits that if anyone tries to pressure him or dominate him, he instinctively responds negatively and will refuse to continue what he is doing. He has no interest in changing his position on his work habits and believes that this is the only way that he can do a job.”
Dr. Buchanan went on to comment that he did not do a Beck Depression Index on this occasion “as there were only a few symptoms of Depressive Illness present in the interview.” His diagnosis was “major depressive disorder – mild severity”.
Dr. Buchanan next discussed the grievor’s medications and possible changes to them including “Sam-e at a dose of 800 mg”. He then commented:
“On the other hand, if he decides to leave BC Rail and retire, there is a possibility he could make progress with his current symptom picture. I have seen this in other cases where once this decision is made considering the long history of conflict with the railway, that he may feel a lot better going on with a new life. In this situation there would probably be no need to change medications. I still don’t see the need for any psychotherapy in this case as his belief systems are long standing and not likely amenable to therapy.”
Dr. Buchanan then expressed his opinion on the question posed to him by Kendell as well as the options the grievor said he was considering. In this regard, Dr. Buchanan stated:
“At this time and based on this interview and a review of the file, I find Rudy not disabled for his usual occupation as a conductor for BC Rail. He could resume his normal working duties at this time if this was possible.
I find that at the time of his termination or dismissal around the beginning of November 2001 that he was not disabled and able to do all of his usual responsibilities as a conductor for BC Rail. As a result of his termination I find no evidence of any deterioration in his state up until this time.
At the end of our interview, Rudy requested time to discuss his options at this time. His one option is to fight his termination with the help of his lawyer and to be reinstated to his usual job. He is interested to continue working until age 65. He has no strategy to deal with the recurrent conflict he has with his employer and believes that this would simply continue in the future. I discussed a strategy that I have seen other workers use in other situations like this and he rejected this because it is not his personality to submit for any reason, even his own health. His second option is to walk away and retire at this time. This is what his wife wants and he is considering this option because he understands that he will never reach a working relationship with his employer that is without conflict on a recurrent basis. He sees his own personality and values as the primary reason for this situation. He believes in equality, fairness and will actively resist any attempt to be dominated or pressured.
I suspect he is about to reach a decision on one of these positions to take forward in the very near future.”
Following receipt of Dr. Buchanan’s December 7, 2001 report, the Employer did not change its decision regarding the termination of the grievor’s employment. The grievor and the Union decided to pursue his grievance against that decision to arbitration.
During his examination in chief, the grievor explained that he wanted to return to work for the Employer because he had a mortgage. To that point in time, he had not apologized to Smith for having called him a “fucking asshole” on September 10, 2001. However, he did then. He said that while everyone was there, he wanted to apologize to Smith. He commented that some religious groups find swearing offensive, and he apologized for that.
The grievor was then asked about his apology in cross examination. He agreed that he apologized because his words may have offended Smith. Mr. Heywood then said to the grievor that he knew on September 10, 2001 that calling Smith that would offend him. The grievor replied that he was hoping to offend him because he, the grievor, called it as it is. Smith refused to make a change to his vacation schedule when he had ample grounds for doing so. Later, he said, Smith would not talk about it, he just said no. That was just as abrupt as his calling Smith a “fucking asshole”. He said if we could have talked some more, we could have negotiated a deal and he, the grievor, could have had his holidays in December.
III
I now turn to address the issues that arise for determination in this proceeding.
This is a discharge case. As such, the proper approach to the resolution of those issues is that set out in William Scott & Company Ltd., BCLRB No. 46/76; [1977] 1 Canadian LRBR 1 where the Labour Relations Board of B.C. stated:
“. . . arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?”
(at 5)
The first question that must be addressed then is whether the grievor has given the Employer just and reasonable cause to impose some form of discipline upon him. The Employer submits he did on September 10, 2001 when he called Smith, a crew supervisor, a “fucking asshole” after Smith told him he could not change his 2001 vacation to include the last two weeks of December. The Union does not dispute that the grievor’s remarks to Smith merited some discipline. Its challenge is to the level of the penalty imposed. It says his language directed at Smith did not warrant termination of his employment. In this regard, it refers me to the following comments of the arbitration board in Rolland Inc. (1983), 12 L.A.C. (3d) 391 (MacDowell):
“What is apparent from a perusal of these cases is that the use of profanity in the work place is not, in itself, grounds for discipline. A factory floor is not a Sunday school. The reality of the work place is that vulgar language and pithy epithets are often an ordinary part of everyday conversation. It is not the words themselves but the tone and intention of the user which determine whether profanity should be considered abusive or offensive. Moreover, there is a difference between a mere insult, a momentary outburst, and a course of conduct which represents a serious challenge to the authority of the employer and is incompatible with the continuance of a viable employment relationship. The gravity of the situation can vary substantially and so should the disciplinary response. Finally, an assessment of the surrounding circumstances may serve to mitigate, if not fully exculpate, the grievor’s offence. One must consider such matters as: the relationship of the individuals concerned (i.e., superior/subordinate or two rank-and-file employees); whether there was provocation; the presence or absence of a previous good disciplinary record; whether the incident appears to be part of a pattern of intemperate behaviour; the grievor’s seniority; whether there was an apology; etc.: see Re Dominion Glass Co. and United Glass & Ceramic Workers, Local 203 (1975), 11 L.A.C. (2d) 84 (Linden).”
(at 399)
See also Sauder Industries Ltd. (1985), 21 L.A.C. (3d) 245 (McKee).
I agree that the circumstances surrounding the grievor calling Smith a “fucking asshole” on September 10, 2001 gave the Employer just and reasonable cause to impose some form of discipline upon him. In my view, this occasion did not involve the casual use of profanity in the workplace as “an ordinary part of everyday conversation”. Smith had just denied the grievor’s application or request to change his holidays. He was simply doing his job in accordance with the rules as he understood them. The grievor disagreed with his decision. In using the profanity when he did, the grievor testified that he was hoping to offend Smith. He says he calls it as it is and Smith refused to make a change to his vacation when he had ample grounds, in his view, to do so. In my view, the grievor intended to be “abusive” and “offensive” to his supervisor and this intention transforms the profanity from “everyday conversation” into misconduct justifying discipline.
An affirmative answer to the first question in William Scott & Company Ltd., supra, brings me to the second question – was the Employer’s decision to dismiss the grievor for his use of profanity on September 10, 2001 an excessive response in all the circumstances of the case?
This issue was the principal focus of the Union’s submissions. It referred to the fact that the grievor was 61 years old, only a few years away from retirement. He had worked for the Employer for in excess of 25 years. His use of profanity with a supervisor was an isolated incident, a momentary flare-up and not a premeditated attack on Smith. The conversation was on the telephone, not in person, and over with in a very short period. The Union also contends that the Employer did not follow the “normal steps in suspension without pay” in its own “Guidelines Respecting the Discipline of Unionized Employees”. Those steps are a two day suspension, a five day suspension, and then a ten day suspension. Here, the jump was from a six day suspension to dismissal.
Most importantly, the Union says, the grievor suffers from the medical condition of major depressive disorder and the Employer did not take this fact into account in determining the appropriate penalty that should be given the grievor for his conduct of September 10, 2001. The Union maintains that the grievor’s medical condition must be accommodated and it was not. It submits that the grievor should only have been assessed a written warning and that an accommodation inquiry should have been undertaken with respect to the grievor’s major depressive disorder and his duties and responsibilities as a conductor.
Castlegar & District Hospital (1997), 64 L.A.C. (4th) 107 (Larson) is an example of a case where an arbitrator reached the type of result the Union seeks here. In that case, the arbitrator concluded that the theft of drugs for his own use by a registered nurse from his employer was caused by his addiction to drugs. Mr. Larson commented that:
“While the Employer, in this case, does not dispute that the grievor is addicted to drugs, or that drug addiction is a genuine illness, or even that the prognosis for his recovery is good, it says that is not the real issue in this case. Mr. Lim argued that what distinguishes this case from others of a similar nature, is that the grievor engaged in a systematic program of theft and deception, which converts the matter into one of culpable conduct.
He said that, quite apart from the fact of the addiction, what cannot be avoided is that he stole the drugs from the hospital and then took elaborate measures to cover it up, which themselves, constituted reprehensible conduct. He said that there is no evidence that his cognitive ability was impaired or, in particular, that he did not know that what he was doing was wrong. In fact, he said that the grievor’s thefts were deliberate and elaborately planned. He used the analogy of a disabled employee in a wheelchair, saying that a disability of that nature would provide no defence to wrongful conduct that is not connected to the disability and that, had the grievor gotten the drugs in some other manner, his condition would properly have been treated strictly as an illness.
While the principle enunciated by Mr. Lim cannot be controversial, the evidence does not support the application of it to the facts of this case. A whole answer to that argument was provided by Dr. Baker who stated as follows:
‘Mr. Bergen was demonstrating what doctors and nurses with untreated addictions do: the compulsion provides the irresistible drive to get the drug by any means possible, the loss of control occurs after ingestion of the drug has begun and physical dependence makes cessation of the cycle very difficult and uncomfortable. Added to this is the psychological defense of denial, which delude the addict into grossly underestimating the magniture (sic) of the problem.’
What I take that to mean is that because of the addiction, not only is the drug addict dependent on the drug, both physically and psychologically, but in its active stages, the addict is not able to control the drive to get the drug. In other words, what happened in this case, while unfortunate, is not atypical and that the addiction drives the peripheral behaviour. Accordingly, it cannot be said that the theft of drugs or the methodologies used to cover it up were not inextricably linked to the addiction suffered by the grievor. His actions were not deliberate, in any pernicious sense, even if he knew that what he was doing was wrong – and I am convinced that he did, but he was not able to control his behaviour without help. Of course, there may be cases where that is not so. Every case will turn on its own facts: Re Toronto Transit Commission and A.T.U., Loc. 113 (Mohammed) (1996), 58 L.A.C. (4th) 143 (Springate). But in this case, I am convinced, on the evidence available to me, that what the grievor did to get the drugs was an integral part of his addiction and, while it is difficult to do, it must be treated by the Employer as a manifestation of the illness.”
(at 111-112)
Ultimately, Mr. Larson concluded that:
“Accordingly, on the tests set out in Wm. Scott, I hold that he was properly subject to discipline but, at the same time, because of his addition (sic), I consider that discharge would be excessive.”
(at 117-118)
Mr. Larson found a causal connection between the medical condition and the employee’s misconduct. In other cases, as he points out, the connection has not been proven. See for example Fraser Lake Sawmills (2000), 93 L.A.C. (4th) 407 (Burke). In Fraser Valley Milk Producers’ Co-op Association (Dairyland Foods) Unreported Award dated February 6, 1992 (Glass), the arbitration board concluded that a medical condition had not been proven to exist at the material time, let alone a causal connection between the condition and the misconduct. The union there still argued that the stresses the grievor was experiencing should be taken into account as a mitigating factor. The arbitration board rejected that argument stating:
“In considering mitigation, it is hard to find some middle ground, as Mr. Csiszar for the Employer pointed out. You either make the critical causal connection between a proven mental disorder and the misconduct, or you do not. If you fail, there is really not much basis for a finding of some intermediate mental state diluting the reality of the Grievor’s election to proceed with a dishonest act. In fact, there is no acceptable medical or psychological evidence before the Board to support such a finding. Thus the dishonest act of stealing cannot be found less dishonest because of the stresses the Grievor was under, so this mitigation argument fails.”
(at 16)
I am satisfied that at the time of his telephone conversation with Smith on September 10, 2001, the grievor was still suffering from major depressive disorder, although the condition had been improving since 1999 from moderate severity to mild severity. This conclusion is consistent with Dr. Buchanan’s reports of September 1, 1999 and December 7, 2001. The question is then whether that condition caused the grievor to be abusive and offensive to Smith on September 10, 2001. Because of that condition was the grievor simply unable to control himself when he called Smith a “fucking asshole”?
Having considered all of the evidence and argument, I am not persuaded that this is the case. In my view, it has not been established that there is any causal connection between the grievor’s major depressive disorder and his abusive and offensive language directed at Smith. Instead, I am of the view that the grievor’s reaction to Smith’s denying his request to change his vacation period was a result of his personality and his attitude towards the Employer.
Dr. Buchanan did find the grievor disabled from performing his duties as a conductor in his September 1, 1999 report. Because of the symptoms flowing from his major depressive disorder, Dr. Buchanan concluded he was not capable of performing his duties in a non-culpable sense. It was the grievor who first raised the concern when he booked off sick in June, 1999. As Dr. Buchanan reported “he was fearing an accident considering his state at that time.” That state included depression, anger, as well as feeling very stressed and unable to relax.
Dr. Buchanan then noted that the Zoloft medication was having a positive effect in reducing the grievor’s anxiety and irritability, giving him more of a sense of calm. However, the grievor was still experiencing sleep difficulties, loss of appetite, poor concentration and memory difficulties. In my view, it was these latter difficulties associated with his major depressive disorder condition that caused Dr. Buchanan to conclude that he was not capable of performing his duties as a conductor.
With respect to the grievor’s being capable of returning to work thereafter, Dr. Buchanan suggested that “Dr. Desai would be in the best position to decide whether his emotional control and concentration difficulties are returned to normal to allow him to resume his work as a conductor”. In my view, the grievor’s “emotional control” refers to the anxiety, feeling very stressed and unable to relax, and the irritability he was experiencing. Dr. Buchanan had already noted that the Zoloft medication was having a positive effect on the grievor in this regard.
Dr. Desai did ultimately clear the grievor to return to work in the new year. A little over a year later, i.e., March, 2001, the grievor was removed from service as a result of a dispute with a supervisor over stopping his train for the purposes of eating. The Employer and the Union were concerned that this blatant insubordination may have been caused by the grievor’s major depressive disorder condition and/or the medications he was taking for it. In his April 24, 2001 letter to the Employer’s Chief Medical Officer, Dr. Desai expresses an opinion to the contrary, indicating that the grievor is not disabled from working for medical grounds and that he is not suffering from any medication side effects other than some morning headaches.
When Dr. Buchanan saw the grievor on December 7, 2001, he found a much-improved patient in terms of his major depressive disorder symptoms. Dr. Buchanan commented that the grievor “can be quite engaging, funny at times, lively in conversation and at no time was he tearful, downcast or anxious.” He also noted that “there was no evidence of poor concentration” and that the grievor’s memory for recent events seemed fine. Dr. Buchanan observed that the grievor’s sleep was somewhat more disordered, “but in terms of hours of sleep he is getting enough hours in a 24 hour period.” He also commented that the grievor’s “appetite, concentration, memory are all in the normal range.” The only prominent symptoms of the disorder he found in the grievor at that time were “a lack of energy, motivation and some problems with interest.”
In the end, Dr. Buchanan still was of the view that the grievor suffered from major depressive disorder, but in light of the improvements in his condition from the time he saw him in 1999, he concluded that that condition did not disable him as of December 7, 2001 or November 2, 2001 from performing his duties and responsibilities as a conductor.
Dr. Buchanan was aware that the grievor had been dismissed for calling Smith a “fucking asshole”. In my view, he did not connect the grievor’s abusive response to Smith to his major depressive disorder. Instead, in my view, he saw it as being a result of the grievor’s personality and values coupled with an unwillingness to see the other side of a dispute, even when it was the Employer’s. Dr. Buchanan observed that “he has no interest in changing his position on his work habits and believes this is the only way that he can do a job.” Dr. Buchanan considered recommending psychotherapy to assist the grievor, but concluded against it because “his belief systems are long standing and not likely amenable to therapy.” He did try to suggest a strategy to the grievor to deal with these matters of “recurrent conflict he has with his employer” but the grievor rejected it “because it is not his personality to submit for any reason, even his own health.”
In my view, it is also clear from Dr. Buchanan’s December 7, 2001 report that he did not regard the grievor’s personality as a medical condition. He stated that “there is no evidence of any substance abuse, personality disorder or any organic factors.”
In summary, I am of the view that the grievor’s use of abusive and offensive language towards Smith on September 10, 2001 was not caused by any medical condition from which he was suffering. Accordingly, I am satisfied that the grievor’s major depressive disorder is not relevant to my determinations in this case, other than the fact that it is one of the personal circumstances of the grievor of which I should take general note. Other personal circumstances of that same nature are that the grievor is 61 years of age and still interested in working until 65 because he continues to have a mortgage to pay. The suicide of his son in 1990 would have been a personal tragedy. I accept that.
The grievor has worked for the Employer for a considerable period of time, 25 years. However, that long service has been coupled with not infrequent disciplinary actions being taken by the Employer. Much of that discipline in the last few years has concerned inappropriate challenges by the grievor to decisions taken by the Employer. On March 21, 1997, he stopped his train to eat contrary to the instructions of his supervisor. He was assessed a two day suspension. On January 24, 1998, he left his job and went home contrary to instructions from the crew office. He was given a five day suspension for this misconduct. Following his return to work from disability leave in January, 2000, he refused to accept a call into work on January 30th. He was given a written warning. Then, on July 19, 2001, the grievor again stopped his train to eat contrary to the instructions of his supervisor. His insubordination on this occasion was coupled with the use of profanity directed at his supervisor. He was given a six day suspension for this. None of these disciplinary actions were grieved.
Outside of the grievor’s discipline record, he had also stopped his train on a third occasion to eat contrary to the instructions of his supervisor on or about March 1, 2001. The grievor was not disciplined on this occasion, but instead the Employer and the Union looked into the possibility of whether there were medical reasons for his insubordinate behaviour. Behnish had earlier suggested that if the grievor was feeling stressed and angry, that he should contact the Employee and Family Assistance Program for assistance, when he imposed the five day suspension on him for his unauthorized desertion from duty on January 24, 1998. With respect to the March, 2001 incident, Dr. Desai advised the Employer that the grievor was not disabled from performing his duties. However, the Employer did not come back to discipline the grievor for the incident.
Despite the discipline imposed and the warnings given, the grievor’s inappropriate challenges to the Employer’s decisions have continued. In my view, the same misconduct can be seen in his abusive and offensive comment to Smith on September 10, 2001. In the earlier occasions for which he was disciplined, the Employer had given him instructions regarding his work which he refused to obey. September 10, 2001 is different in the sense that the grievor was not given an instruction by the Employer. Instead, on this occasion, he had a request of the Employer, that he be allowed to change his vacation period. Smith, acting on behalf of the Employer, explained that he could not grant that request. The grievor disagreed with that decision and let his disagreement be known to Smith in a personal and offensive way by calling him a “fucking asshole”. In my view, a review of the grievor’s discipline history supports his and Dr. Buchanan’s assessment “that he will never reach a working relationship with his employer that is without conflict on a recurrent basis.” See Dr. Buchanan’s December 7, 2001 report.
The grievor did apologize to Smith during the hearing. However, I am satisfied that this apology did not reflect any change in attitude on the part of the grievor towards the Employer. He similarly apologized to the radio traffic controller he swore at on July 19, 2001 during the August 1, 2001 hearing. He explained that his comments were not directed at him, but instead at the Employer and its policies. On the next occasion he is confronted with an Employer policy or decision he disagrees with, i.e., September 10, 2001, he uses similar abusive and offensive language to the supervisor implementing that policy.
Returning to the mitigating factors discussed in Rolland Inc., supra, there is, in my view, no provocation present in this case. Nor is this a case of “mere insult” or “momentary outburst”. The grievor has a fundamental disagreement with the Employer and its policies which has resulted in a “pattern of intemperate behaviour” despite warnings and corrective discipline. Further, there is no evidence of any change in the grievor’s attitude. This is so even with his apologies. They are made to the individuals involved and, in my view, do not reflect an acceptance of the Employer’s authority to run its railway. That is why, in my view, the grievor’s challenges to that authority continue despite his apologies.
In light of all of the evidence put before me, I have concluded that there is no reasonable expectation that the employment relationship between the Employer and the grievor can be restored. To use the words of the arbitration board in Rolland Inc., supra, again, the grievor has engaged in “a course of conduct which represents a serious challenge to the authority of the employer and is incompatible with the continuance of a viable employment relationship.” I am satisfied that if the grievor was reinstated, the “recurrent conflict” that has occurred in the past would simply continue into the future. Having considered all of the circumstances of the case, I am of the view that the termination of the grievor’s employment on November 2, 2001 was not an excessive response to his use of abusive and offensive language to Smith on September 10, 2001.
I should say as well that I do not find the Employer’s decision to be inconsistent with the Employer’s “Guidelines Respecting the Discipline of Unionized Employees”. That policy contemplates that “discharge action can be taken”
“. . . when the specific incident, no matter how minor it may be, considered together with the employee’s discipline record warrants termination of employment; in such cases, the Company can only support a discharge decision if the employee has a lengthy well-documented poor record and if it can be concluded that there are no means by which the employee’s longstanding pattern of misbehaviour can be corrected.”
In conclusion, the grievance is dismissed.
It is so awarded.
Dated this 13th day of December, 2002.
‘John Kinzie’
JOHN KINZIE
ARBITRATOR