CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4039
CANADIAN PACIFIC RAILWAY COMPANY
Appeal of the Company’s decision to terminate employees as a disciplinary response for any wilful breach of the Company’s Personal Electronic Device Policy.
JOINT STATEMENT OF ISSUE:
November, 2010, the Company’s Chief Operations Officer wrote to the
disagrees and denies the
(SGD.) D. R. ABLE (SGD.) D. FREEBORN
GENERAL CHAIRMAN FOR: ASSISTANT VICE-PRESIDENT
(SGD.) D. OLSON
There appeared on behalf of the Company:
D. Burke –
Labour Relations Officer,
M. Thompson –
Labour Relations Officer,
R. Hampel –
D. Freeborn –
Manager, Labour Relations,
There appeared on behalf of the
K. Stuebing –
D. Able –
D. Olson –
D. Fulton –
Sr. Vice-General Chairman,
G. Edwards – Sr. Vice-General Chairman, Revelstoke
H. Makoski –
B. Hiller – General Chairman,
T. Beaver –
I. Cole –
S. Kimit –
AWARD OF THE ARBITRATOR
policy was apparently first approved on
Any person who fails to comply with this policy may be subject to investigation and discipline, up to and including suspension or dismissal.
NOTE: For purposes of investigating accidents, injuries, Cardinal Rule Violations, and observed violation of this Policy, employees may be asked to provide records showing the date and times of use of personal communication devices in their possession. Failure to provide the requested records will result in the Company drawing an adverse inference (will assume that the employee was using the personal communication device) in violation of this Policy and/or applicable operating rules.
Further in the policy reference is made to the role of supervisors responsible for its implementation. Among their responsibilities the following is noted: “Cautioning, mentoring and/or disciplining employees who fail to comply;”.
It would appear that the triggering event to this policy grievance is the letter of the Company’s President and Chief Executive Officer, Mr. Fred Green, sent to all employees under a date of November, 2010.
To All Employees
I write to you today about personal safety, both on and off the job.
The growth in the use of personal electronic devices, such as cell phones, has provided us with the ability to communicate with anyone, anywhere, at any time. They have also introduced a new danger into our lives.
There is a wealth of research that has been done on
“distracted driving”. The Use of cell phones, for voice or text communications,
while operating a motor vehicle is dangerous. Those very same issues apply in a
railway operation. As an example, on
Canadian Pacific is adopting a zero tolerance policy for inappropriate use of personal electronic devices for anyone working in our operational environment. We have advised our Unions of this change, and we will also communicate it at the front line level of our workplace.
It is important that you understand the dangers of personal electronic devices, at work and at home, and that you understand the Company’s position on this issue. Any Canadian Pacific employee who wilfully violates our policy on the use of personal electronic devices in our operational environment will be dismissed. This includes condoning unauthorized use by others. Please do not put your job, your safety, or that of others at risk.
If you have any questions about this policy, or its application please speak with your supervisor immediately.
Each of us must work safely.
(sgd) Fred Green
President & Chief Executive Officer
The policy’s rule which stipulates automatic discharge for an employee who violates the policy is unreasonable, and contrary to the just cause provisions of the collective agreements, and is therefore null and void.
the Arbitrator cannot agree with the
In my view the same cannot be said of the Company’s policy and the letter of its President & Chief Executive Officer taken together. Firstly, on its face, the policy clearly seems to recognize that each and every case of cell phone use while on duty must be assessed on its own specific merits. That, it seems to me, is implicit from the Compliance portion of the policy which contemplates discipline “… up to and including suspension or dismissal.” Similarly, the reference to supervisors being involved in: Cautioning, mentoring and/or disciplining employees who fail to comply;” is clearly something less than a mandate of automatic discharge in all cases.
In my view the words of President Green must be taken and understood in their context. What his letter of November of 2010 asserts that where it can be proved that a Canadian Pacific employee wilfully violates the Company’s policy with respect to the use of cell phones or other personal electronic communication devices while working in Company operations, that employee will be dismissed. That assertion, in my view, must be understood as a statement on the part of the Company that the presumptive measure of discipline for a knowing and deliberate violation of the Company’s cell phone policy will be discharge. In that regard it is arguably not dissimilar to the understanding that a violation of General Rule G, involving the use of intoxicants while on duty, will result in the presumptive consequence of dismissal.
Can it be said that the position expressed by the Company’s President & CEO is arbitrary, discriminatory, in bad faith or unrelated to any valid business purpose? I think not. The unchallenged representation of the Company’s spokesperson is that in the summer of 2010 the Company was faced with a rising number of serious incidents involving the use of personal communication devices by employees on duty. Because of that situation, and in part for purposes of deterrence, it was resolved that the Company must communicate a strong rule to all employees to bring home the importance of respecting the Company’s policy on the use of personal communication devices. In my view that was a legitimate business objective which the Company was entitled to pursue and which it did pursue, in my view reasonably, in the formulation of the message from its Chief Executive Officer. If the Company is to be believed, that message has in fact had a positive impact on the rate of incidents involved where violations of the policy have occurred, as the problem has been substantially reduced, according to the Company‘s statistics.
understand the argument of counsel for the
Arbitrator’s view it does not violate the collective agreement for the Company
to put employees on notice that it will exact a disciplinary penalty of
discharge in the case of any employee who was found to have wilfully violated a
particular rule or policy. On its face the Company’s formulation would appear
to address deliberate, knowing and/or reckless conduct in violation of the
Company’s policy. I take it as implicit that the CEO’s communication must be
understood the context of the overall just cause language of the collective
agreement and of the broader disciplinary responses which are reflected in the
language of the policy itself and that its application would plainly depend
upon the factual circumstances of any individual case. In my view the case at
hand is substantially distinguishable from the patently unreasonable position
taken by the employer in SHP 530
where it was declared that a positive test result, entirely unrelated to
possible impairment on the job, would result in automatic dismissal. The
instant case concerns a conclusive finding of a wilful violation of the
Company’s policy by an employee presumably in the operation of a train, as
For all of the foregoing reasons the grievance must be dismissed.