SHP # 712
In the matter of an Arbitration under Part 1 of the Canada Labour Code
Between:
Canadian National Railway Company
(the “Company”)
– and –
UNIFOR, Local 100
(the “Union”)
Re: Termination of Kristopher Tait Effective September 25, 2012
Arbitrator: Augustus Richardson, QC
Appearances for the Company:
Susan Blackmore, Senior Manager, Labour Relations
Caroline Gilbert, Manager, Labour Relations
Scott Mazerolle, Mechanical Supervisor
Appearances for the Union:
Brian Stevens, National Rail Director
Jacques Ouimet, Local 100 Vice President, St Lawrence and Atlantic Region
Place of Hearing:
Montreal, Quebec
Date of Hearing:
January 21, 2014
Date of Award:
February 21st, 2014
AWARD
DISPUTE:
[1] The Company and the Union (formerly the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 100) are parties to Agreement 12 governing rates of pay and rules of service for shopcraft employees in the motive power and car departments of the Company, effective January 1, 2011 (the “Collective Agreement”).
[2] The matter before me is an appeal of the discharge of Kristopher Tait effective September 25, 2012 for “conduct unbecoming and ongoing harassment of a fellow employee.” The parties were not able to agree on a joint statement of issue, and so each filed individual statements.
The Company’s Ex Parte Statement of Issue
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DISPUTE:
Discharge of Lead Hand Heavy Duty Mechanic (HDM) Mr. Kristopher Tait effective September 25, 2012 for: “Conduct unbecoming and ongoing harassment of a fellow employee.”
EXPARTE STATEMENT OF ISSUE:
On September 10, 2012, Electrician Apprentice Carson Brook filed a formal harassment complaint with Mechanical Supervisor Scott Mazerolle. In this complaint, Mr. Brook referred to a series of four (4) incidents where he described being harassed and intimidated by HDM Kristopher Tait.
An employee investigation was conducted in accordance with the Collective Agreement, and following a thorough review of the investigation and of the evidence, Mr. Tait was discharged for “conduct unbecoming and ongoing harassment of a fellow employee effective September 25, 2012.”
The Union contends that the grievor had personal problems for which he sought assistance from the Employee and Family Assistance Program (EFAP); the grievor was not afforded any chance to correct his behaviour; and the grievor showed regret in his investigation.
The Union is therefore requesting reinstatement of the grievor with full redress.
The Company disagrees with the Union’s contentions and has declined the Union’s grievance.
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The Union’s Ex Parte Statement of Issue
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On or around September 10, 2012 Diesel Apprentice Carson Brook reported to Supervisor Scott Mazerolle a complaint alleging that he was being harassed by Diesel Mechanic Kristopher Tait.
A disciplinary investigation was conducted by Supervisor Lance Richardson on September 18, 2012 during which the company presented to Mr. Tait, anecdotal narratives from employees, Carson Brook, Ryan Yeadon, Vaughan Lawrence and Adam Fleet contending that Mr. Tait was harassing Mr. Carson Brook contrary to the CN Policy on Harassment Free Environment.
Supervisor Richardson issued Form 780 effective September, 25, 2012 authorizing the termination of Mechanic Mr. Kristopher Tait’s employment on the basis of “conduct unbecoming and ongoing harassment of a fellow employee”
It is the Union’s contention that the termination of Mr. Tait was unjust and without cause and that CN was in violation of Rule 43, Appendix XVII, any other applicable Rule(s) of Agreement 12, and further did not adhere to their own Policy on Harassment Free Environment in testing the allegations made against and by Mr. Tait. Additionally, the union contends that there are mitigating circumstances which were not taken into consideration by the company.
The union requests that Mr. Tait be reinstated with full redress and additionally that CN accurately apply it’s Harassment Free Environment Policy, including overseeing that a proper and unbiased investigation be conducted into the claims and counter claims made.
The Company has denied the Union’s contentions.
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[3] In September 2012 the grievor was a Heavy Duty Mechanic Lead Hand working in the Halifax yard of the Company. His responsibilities included the inspection, maintenance and repair of locomotives. He had started work on December 16, 2009, and accordingly had almost two years and eight months of pensionable service at the time of his discharge on September 25, 2012.
[4] The grievor’s termination arose out of a complaint filed by a co-employee, Carson Brook, on September 10, 2012. Mr. Brook was an Electrician, whose responsibilities included the inspection, maintenance and repair of electrical and electronic high or low voltage circuitry on locomotives and rolling stock. His hire date was January 18, 2012. He made his complaint to Mechanical Supervisor Scott Mazerolle. The complaint was reduced to a handwritten statement. The statement does not appear to be in his hand, but it was signed by him. There was no evidence as to who wrote the body of the statement. The statement refers to four incidents, none of which are dated.
[5] Incident 1 involved a time that the complainant and another employee had left the window of an engine open “which got the seat wet & crew was not willing to take the unit.” The statement goes on:
“Mr. Tait took [??? - illegible] out to unit to embarrass me [Mr. Brook] in front of the train crew. All night he told everyone that Mr. Tait talked to that I was the one who made it late. Mr. Tait took me up to the office. He was talking very sternly toward C.B. [Mr. Brook] as if he was a supervisor [sic -and not?] a fellow employee.”
[6] Incident 2 involved a time when the grievor, Mr. Brook and another employee (Mr. Adam Fleet) went to Tim Horton’s for coffee. The grievor went in, purchased the coffee and brought it out to them. As Mr. Brook was about to drink from his coffee the grievor said that he had “pissed” into it. Mr. Brook threw the cup down: “As it was on the parking lot I could see it was just hot water and piss cause it was yellow.” The statement goes on:
“He [the grievor] laughed the whole time after I threw the cup out the window. He didn’t feel it was offensive. Mr. Tait told all the carmen what he did. But the next day he denys [sic] it. He now calls me ‘Pee Lips.’ I didn’t laugh or show any signs of it being funny.”
[7] Incident 3 involved a time when Mr. Brook was operating an engine. The grievor acted in such a way that “the consist went into emergency & came to a sudden stop,” causing Mr. Brook’s head to snap back against the seat. The grievor persisted in this activity. Later in the lunch room Mr. Brook suggested that he would speak to the supervisor. The grievor became angry, and used a cell phone to dial the supervisor and then put the phone in Mr. Brook’s hand. The latter said nothing about the incident to the supervisor. After the conversation ended the grievor “got right in my face and began to yell at me telling me ‘who am I to threaten his job’ over and over.” Mr. Brook added that the grievor’s face was “beet red. He came towards me and I was sure he was going to hit me.” The grievor kept calling him “little bitch” and “butters.”
[8] Incident 4 involved a dispute between the grievor and Mr. Brooks as to the proper travel distance for units. According to Mr. Brook the grievor “started to make fun of me by saying ‘I’m Carson Brook, I know everything.’ He was yelling at me that I had to do as he says.” There were no witnesses to this incident identified.
[9] Some corroboration of incident 1 was provided in a handwritten statement signed by Mr. Vaughn Lawrence. He agreed that the engine seat was wet. He said that the grievor “focussed his yelling at” Mr. Brook. The statement also impliedly acknowledges the seriousness of the mistake, in that the seat had to be dried before the crew would operate the engine. The statement also sought to shift some of the responsibility onto the grievor, since if he “would have been there when we finished servicing 121 he would have known the door was open, as I was new and unaware of the consequences of leaving a door open in the rain on a unit–not knowing how wet they may get inside, as the windows were shut.”
[10] Incident 2 was corroborated by Mr. Adam Fleet, although he identified the beverage as hot chocolate (not coffee). He stated that after Mr. Brook “threw the cup on the ground ... [he] watched the very yellow liquid run down the driveway. Gagging I proceeded to tell Tait that was way over the line, and he just kept laughing and calling Carson [Brook] ‘piss lips.’”
[11] Incident 3 was corroborated by statements signed by Mr. Vaughn Lawrence, Mr. Ryan Yeadon and Mr. Fleet.
[12] There was no mention of incident 4 in the statements of Messrs. Lawrence, Yeadon or Fleet.
[13] At some point prior to the commencement of the formal investigation on September 18th the grievor made arrangements through EFAP to seek counselling for stress and anger management.
[14] On September 18, 2012 the formal investigation of the grievor was conducted by Senior Mechanical Officer Lance Richardson. The grievor’s union representative was present. They were provided with copies of the complaint and the three witness statements, and given time to review them. Mr. Mazerolle, the grievor’s supervisor, was present for part or all of the formal interview. He was questioned at one point by the grievor. The grievor answered questions from his union representative regarding aspects of his relationship with Mr. Book. The grievor also introduced a long, hand-written statement dealing with some of the four incidents.
[15] With respect to the incident involving Carson’s coffee (or hot chocolate), the grievor denied that he had actually urinated into the cup intended for Mr. Brook. In the interview he explained what had happened as follows:
“I went and got coffee for Adam and myself and got a thing with half water in it. I then went to the washroom, I filled the rest up with water but gave Adam the impression I was going to pee in the cup. I gave the cup to Carson and before he put it to his mouth I said I peed in your cup. Carson automatically threw the cup on the ground and I went around to the other side of the truck. Me and Adam were laughing about it and he said ‘Oh, I can see the yellow on the ground.’ There was no yellow on the pavement. There was water running down. And there was a cigarette butt where the water was running by. I don’t know if possibly the cigarette butt with water gave it a yellow tinge. I did joke around with Carson with pee lips and everything else and I did tell the carmen that I peed in his cup and gave it to him.”
[16] The grievor then added that a few days later Mr. Lawrence “mentioned to me ... that Carson was really upset about that” and that the next time the two of them “were together I apologized to both of them and told them I did not pee in the cup.” He repeated in his written statement that he had later apologized once he realised how upset Mr. Brook was. On this point I note that Mr. Brooks did not himself complain about this incident at the time it happened. Notwithstanding that to many (including the Company) this would on its face be the most serious of the four incidents listed by Mr. Brooks, he did not complain about it at the time. The fact that he did not lends credence to the grievor’s statement that he apologized to him.
[17] The grievor’s statement (both oral and written) also spoke of other incidents at work. For example, as explained by the grievor in his statement to the investigator (and never disputed),
a. the grievor was told at some point “to speak clearly because I was a stupid Upper Canadian over the radio;”
b. Mr. Brook on one occasion “made the comment that my [the grievor’s] colon smelled ‘like essence of fag,’” which the grievor took as a joke;
c. Mr. Brook and Mr. Fleet referred to another employee as “Thick Neck” because of medical condition;
d. Mr. Fleet and the grievor had “a small joke going on about touching each others hands. He [Mr. Fleet] told me [the grievor] he might punch me out of reflex (‘and it was fully understood it was a joke’);
e. Mr. Brook “had also done this too, and incouraged [sic] me a few times to do this in the past few weeks,” although he later asked the grievor to stop and he did;
f. Mr. Brook “on a couple of different occasions had said he would put seamen [sic] in my coffee, I took this as a joke.”
[18] The formal interview then ended. There was no evidence before me to the effect that the Company made further inquiries of the complainant or the witnesses, or of anyone else, regarding the incidents detailed by the grievor in the evidence provided by him to the investigator.
[19] On September 24, 2012 the grievor was discharged effective September 25th for “conduct unbecoming and ongoing harassment of a fellow employee:” Form 780, Ex. E1, Tab 3.
[20] The Union grieved the discharge. In its Step II Letter the Union stated that the grievance arose “because the situation contravene[d] the Rule 43.1 and following and all other Rules pertinent to the application of the collective agreement:” Ex. U2, Tab 11, p.1. It concluded by quoting Rule 43.1, and then added the following: “Appendix XVII have to consider [sic] a part of this grievance. The Rule 6 of the harassment-free policy wasn’t applied promptly as required by the Policy.”
[21] Rule 43 of the Collective Agreement, as amended by Appendix XVII thereto, provides as follows:
a.“It is agreed by the Company and the Union that there shall be no discrimination or harassment towards an employee based on the employee’s age, marital status, race, colour, national or ethnic origin, political or religious affiliation, sex, family status, pregnancy, disability, union membership or sexual orientation.
b. “It is agreed that the terms discrimination and harassment as used in this Rule, shall be defined and interpreted in the Canada Human Rights Act.”
[22] “Rule 6” is a reference to Section 6 of the Company’s “Policy on Harassment-Free Environment” (the “Policy”): Exhibit E1, Tab 6; Exhibit U2, Tab 8. The Policy is dated September 2012. Section 1 provides that the objective of the Policy is “to ensure that all employees are treated fairly and equitably in a harassment-free environment.”
[23] Section 4 notes that the Company
“will act promptly to investigate, resolve and remedy, in a fair and confidential manner, allegations of harassment brought to its attention, whether they are made informally or formally. Where applicable, the Company will act in accordance with the provisions of any applicable collective agreement. As further set out in this Policy, the Company will impose appropriate corrective measures, including disciplinary action up to and including dismissal, on any employee who has acted in a manner constituting harassment.”
[24] Harassment is defined under section 5 to refer to “behaviour or communication, whether written or verbal, which a reasonable person would consider to cause offence or humiliation or affect the dignity of an employee ... and, in the context of employment, results in an intimidating, hostile or offensive atmosphere (‘poisoned environment’).”
[25] Section 6 is titled “Complaint Procedure.” Section 6.1 is sub-titled “Employee’s Responsibility.” Under it employees are said to “have a responsibility to report incidents of harassment to their supervisor or manager and/or Human Resources.” An employee who was subjected to harassment is invited to employ the following steps:
a. speak to the harasser and ask him or her to stop;
b. if that did not work, or if the harasser was too intimidating, the employee could speak to their supervisor, HR or the Company’s Ombudsman, or seek guidance under the Employee and Family Assistance Program (“EFAP”);
c. “Document information such as dates, locations, times, witnesses (if any), the nature of the harasser’s behaviour as well as your own behaviour and actions and speak with your supervisor or Human Resources representative as soon as possible about the situation;”
d. if the employee was not satisfied with the response, or if the harasser was the employee’s supervisor, the complaint could be taken to management.
[26] Section 6.2 is sub-titled “Management’s Responsibility.” It outlines the procedure management was to follow upon receipt of, or observance of, incidents of harassment. Insofar as it relevant to this proceeding, the procedure includes the following steps:
a. Review the allegations and, where necessary, consult with a Human Resources
representative
b. Notify the person identified as a harasser that a complaint has been made
c. Individually interview both the complainant and the alleged harasser as soon as
possible. If a unionized employee is cited in the complaint, the investigation will be
carried out in compliance with the applicable collective agreement.
d. Interview witnesses identified by employees involved or likely to have been present.
e. Document the situation accurately.
f. Render a decision on the complaint as promptly as possible and advise the parties of
the resulting action.
[27] Section 6.2 also provides that any employee who violated the Policy “will be subject to corrective measures, including disciplinary action up to and including dismissal.” It added that “[t]he level of discipline will be assessed on a case-by-case basis, taking into account the circumstances of the harassment, and any impact to the business or reputation of the Company which may result from the harassment.”
[28] Following his termination the grievor left Nova Scotia and found employment in Alberta. No evidence was presented as to when he found employment; whether he had sustained any loss of income between the time of his termination and the time he took up his new employment; or the length of the period of unemployment.
[29] There was a preliminary skirmish between the parties as to whether the arbitration should take place in Halifax (the Union’s position) or Montreal (the Company’s position). I decided that the hearing should take place in Montreal: see Re Canadian National Railway Company and UNIFOR, Local 100 (2013) SHP # 711. The arbitration took place in Montreal on January 21, 2014. The grievor was not present. No witnesses gave evidence. As is common practice between the parties, the evidence consisted of the record of the formal interview of the grievor that took place on September 18, 2014. The record included the written statements of the complainant and the witnesses that had been provided to the grievor and his union representative at the commencement of the interview. The Company’s representative presented–and read from–its formal submission: Ex. E1. The Union’s representative made oral submissions, and submitted its formal brief: Ex. U2. The parties agreed to waive the 30 day deadline that would otherwise apply under the Collective Agreement for the delivery of the arbitration award.
The Company’s Position
[30] The Company’s position was that the evidence of the complainant, the witnesses and the grievor himself was clear that the latter had “systematically harassed and bullied a fellow employee on at least four (4) different occasions:” Company’s submissions, para.93. There were “no mitigating factors to outweigh the repeated disrespectful and disgusting nature of his actions:” ibid, para. 94. Threats of physical aggression were grounds for serious disciplinary penalties at the very least: see, for e.g., Re Canadian National Railway Company and United Transportation Union (2008) CROA Case No. 3666. Physical aggression towards a co-worker, at least in the case of a probationary employee; or repeated outbreaks of temper that had been disciplined in the past; or when the aggression involves a threat to use a gun, were all grounds for termination: Re Bombardier Transportation Canada Inc and Teamsters Canada Rail Conference (2011) CROA Case No. 4070;Re Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (2005) CROA Case No. 3511; Re Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (2005) SHP # 710. So too was spitting into the coffee of another employee, inasmuch as it was conduct “below human dignity:” Re Via Rail Canada Inc and Canadian Brotherhood of Railway, Transport and General Workers (1993) CROA Case No. 2337.
[31] There was some uncertainty on the Company’s part as to whether the Union was alleging that the investigation had violated Rule 27.1 and 27.2 (as amended by Appendix III of the Collective Agreement).
[32] Rule 27.1 provides that “[e]xcept as otherwise provided herein, no employees shall be disciplined or discharged until they have had a fair and impartial investigation and their responsibility established.”
[33] Rule 27.2, as amended by Appendix III of the Collective Agreement, establishes the procedure to be followed in the event of a “formal investigation.” The portions of Rule 27.2 that are relevant to this matter are as follows:
“Except as provided in this Rule 27, when a formal investigation is to be held, the employee and the designated union representative will be given 48 hours’ notice of the investigation and will be notified of the time, place and subject matter of such investigation. ...
“When employees are required to make statements on matters affecting the Agreement, Company working rules or compensation, a duly authorized representative of the employees shall be present, except that when employees are required to make statements on matters not affecting the Agreement, Company working rules or compensation, the employee may have a fellow employee or an authorized representative of the Union present.
“At or prior to the commencement of the hearing, the employee (and the authorized representative if present) will be provided with a copy of all the written evidence as well as any oral evidence which has been recorded and which may have a bearing on their involvement. Sufficient time will be allowed the parties to peruse the evidence. However it is not the intent of this to delay the investigation process due to an unreasonable amount of time taken to peruse the evidence. The employee and the authorized representative will have the right to hear all of the evidence submitted and will be given an opportunity through the presiding officer to ask questions of the witnesses (including Company officers where necessary) whose evidence may have a bearing on their involvement. Where witnesses cannot be present, arrangements will be made to permit them to be questioned upon request, where practicable. The questions and answers will be recorded and the employee and the authorized representative will be furnished with a copy of statements and all other evidence taken. In the event that the Company obtains new evidence having a bearing on the employee’s responsibility, and prior to the assessment of discipline, a copy of such evidence will be provided to the employee, and to the duly authorized union representative.”
[34] The Company submitted that if the Union was alleging a breach of Rules 27.1 or 27.2 then any such complaint was not properly before me for adjudication. It argued that there was no mention of a violation of Rules 27.1 or 27.2. It pointed to Rule 27.7 of the Collective Agreement. That rule provides (amongst other things) that at Step II in an appeal from a decision of the Company, “[w]here the appeal concerns the interpretation or alleged violation of the collective agreement, the appeal shall identify the Rule(s) and clause of the Rule(s) or Appendix involved.”
[35] The Company submitted that the jurisprudence was clear that the Union was not entitled to raise before an arbitrator a ground of appeal that had not been identified at Step II: Re Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (2002) CROA Case No. 3265. Rule 28.7 of the Collective Agreement provided that an Arbitrator “shall not in any case add to, subtract from, modify, rescind or disregard any provision of this Collective Agreement.” I was accordingly not only barred from ignoring the provisions of Rule 27.7, but was bound by the principle of issue estoppel to accept that the failure on the Union’s part to allege violations of Rules 27.1 and 27.2 barred it from raising the issue before me: Re Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (2005) CROA Case No. 3504; Re Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (2005) SHP # 634; CUPE, Local 1253 (King) v. Board of Management (Bladon, unreported, June 28, 2006); Danyluk v. Ainsworth Technologies Inc (2001) 201 DLR (4th) 193 (SCC).
The Union’s Position
[36] There were two prongs to the Union’s position with respect to the investigation that had resulted in the grievor’s termination:
a. the Company did not carry out formal interviews of the employees whose
statements it subsequently relied upon in making its decision, and
b. the Company violated the Policy.
[37] The Union’s representative submitted that this defect in the evidence-gathering process amounted to a violation of the grievor’s right under Rule 27.1 of the Collective Agreement to “a fair and impartial investigation.” Such a violation made the subsequent disciplinary decision void ab initio–that is, void from the start: see, for e.g., Re Algoma Central Railway and United Transportation Union (1976) CROA Case # 550; Re Canadian Pacific Limited and Brotherhood of Maintenance of Way Employees (1986) CROA Case # 1561; Re Canadian National Railway Company and Canadian Council of Railway Operating Unions ( 1997) CROA Case # 2858; Re Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 100 (2013) SHP 700.
[38] Alternatively, the Union submitted that the evidence against the grievor was based entirely upon hearsay statements given by co-workers in the absence of the grievor and his Union representative. As a result there was no opportunity to question the witnesses about various details of their statements: where they were; what opportunity they had to hear or see; and so on. It was dangerous to rely on hearsay evidence to support serious discipline; and arbitrators ought to be reluctant to accept such evidence or to give it much weight: see, for e.g., Re BC Rail Ltd and United Transportation Union, Locals 1778 and 1923 (1984) 17 LAC (3d) 402 (Munroe) at pp.413-14; Re Company A and UFCW-Can, Local 401 (2013) 232 LAC (4th) 70 (Ponak).
[39] With respect to the Company’s submissions concerning my jurisdiction to consider these alleged violations, the Union submitted that the Company’s position was overly technical. The position failed to take into account the fact that the Union representatives who drafted grievances and Step II letters were lay persons. They drafted grievances and appeals in a relatively informal way. Neither the courts nor arbitral jurisprudence required the technicalities of pleading seen in the civil court process: see, for e.g., Re Canadian Pacific Railway Company and the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (2011) SHP # 705 and 706.
[40] In the event that I found that some discipline was warranted, the Union submitted that termination was too severe and that in normal course the grievor ought to be reinstated. However, the Union submitted that because of what it suggested was a clearly poisoned work atmosphere it would not be appropriate to reinstate the grievor. Rather, compensation in lieu of reinstatement ought to be ordered: see, for e.g., Re Highland Ford Sales Ltd and CAW-Canada, Local 4502 (2006) 160 LAC (4th) 132.
The Company’s Reply
[41] The Company’s representative in rely agreed that the atmosphere had been poisoned, but submitted that that was solely because of the conduct of the grievor. She also pointed out that the grievor (who was at the time of the hearing working in Alberta) was not present at the hearing. He was not present to deny the statements given by his co-workers–or indeed his own response during the investigation. With respect to the Union’s submissions respecting the investigation process itself, she submitted that the grievor and his Union representative had had the opportunity to ask questions and supply evidence at the hearing. Nor was there any evidence that either of them had made any attempt to question the co-workers, or to object to the statements that were provided to them. Having failed to exercise that right then, he could not object now.
Analysis and Award
[42] I deal first with the jurisdictional objection of the Company.
[43] The Company and the Union are both right insofar as their respective submissions are concerned. A substantive objection with respect to the Company’s conduct must be raised expressly or by necessary implication at the Step II stage. The reason for that is obvious. It gives the Company a chance to respond to–and perhaps to remedy at an early stage–all substantive complaints. Giving the Company the ability to respond early only furthers the ends of good labour relations. It also gives the Company notice of the objections it will have to meet if the grievance nevertheless proceeds to arbitration. By the same token, however, grievances and Step II letters will not be parsed with a fine tooth comb. If the Union’s objections at arbitration can fairly be said to fall within the scope of the objections outlined in the grievance and the Step II letter that will be sufficient to establish the arbitrator’s jurisdiction.
[44] Having considered the matter I am satisfied that the Company’s objection must fail. The grievance stemmed from an investigation of a complaint of harassment contrary to the Company’s Policy. The Policy outlines certain expectations of both the complainant and management. The Policy also states expressly that any investigation of a unionized employee would be carried out “in compliance with the applicable collective agreement.” The requirements of such an investigation are laid out in Rules 27.1 and 27.2 of the Collective Agreement. The complaint in the Step II letter that the Company had failed to apply the Policy and, in particular, section 6 of the Policy is thus necessarily a complaint that the Company had breached the requirements of Rules 27.1 and 27.2 of the Collective Agreement. Hence I have jurisdiction to consider the Union’s complaint about the manner in which the investigation was conducted and, and in particular, the evidence on which it based its decision to terminate the grievor.
[45] I turn now to the Union’s objection with respect to the investigation.
[46] I agree that as a general rule a failure on the part of the Company to follow the requirements of a formal investigation under Rule 27.2, as provided for in Appendix III of the Collective Agreement, would constitute a violation of a grievor’s right to a fair and impartial investigation under Rule 27.1. I also agree that such a breach could in ordinary course render any subsequent disciplinary action void. However, all of that simply begs the question of what are the procedural requirements of a formal investigation under Rule 27.2.
[47] The Union’s complaint focussed on three aspects of the investigation:
a. the evidence gathering process,
b. the Company’s reliance on hearsay evidence, and
c. the Company’s alleged failure to follow or apply the requirements of investigations
with respect to alleged violations of the Policy.
[48] I will deal with these three overlapping areas separately.
A: Failure to Conduct Formal Interviews of the Witnesses
[49] The Union’s submission here was that
a. the interviews of the witnesses ought to have been conducted in the presence of a
Union representative, so that questions could have asked to elicit additional
information, and
b. the evidence of the witness did not come from them directly, in the presence of the
grievor, but was instead presented in the form of informal written and signed (but not
sworn) statements.
[50] Having reviewed Rule 27.2 carefully I am not satisfied that a formal investigation under Rule 27.2 requires all evidence from witnesses to be in the form of formal statements. There is certainly nothing expressly to that effect in Rule 27.2. The requirement rather is that the employee being investigated must be provided “with a copy of all the written evidence as well as any oral evidence which has been recorded and which may have a bearing on their involvement” (emphasis added). “Evidence” is a word with a broad meaning. It can apply to oral or written statements, which in turn can include sworn or simply signed statements; and direct as well as indirect (that is, hearsay) testimony. Had the parties intended evidence to be gathered by way of formal statements they would have said so. They did not. They referred simply to written evidence, or oral evidence that had been recorded. Moreover, Rule 27.2 goes on to entitle the employee and his or her union representative, “upon request,” to question witnesses–or to ask questions through the presiding officer. This entitlement implies a recognition by the parties that the initial “written evidence” could be in the form of statements–formal or informal, direct or indirect (hearsay)–that were collected by the investigator before the grievor was him- or herself interviewed (as was the case here).
[51] The only requirement under Rule 27.2 is that such evidence be either “written” or, if oral, that it had been recorded. The reason for such a requirement is clear. It is to ensure that the employee being investigated has the same information that the Company has and hence knows the “evidence” that has a bearing on the issue. It is to ensure that the employee knows the case he or she has to meet, and has a chance to either rebut, deny, add to or explain such evidence. That in turn ensures that the Company has all the evidence material to the issue before it makes its decision–which in turn is part of what it means to have a “fair” hearing.
[52] I was accordingly not satisfied that the absence of “formal” statements or interviews from the witnesses constituted a breach of the grievor’s substantive right to “a fair and impartial investigation” under the Collective Agreement.
[53] Nor was I satisfied that there was any breach of the grievor’s substantive right to a fair and impartial investigation insofar as the investigation itself was concerned. The grievor and his union representative were provided with all of the witness statements at the commencement of formal interview, as per the requirement of Rule 27.2. They were provided with approximately 20 minutes to review the statements. They agreed that they had been given “sufficient time to review the evidence and ... [that they were] ready to proceed:” Exhibit E1, Tab 2, p.1. Nor was there any evidence to suggest that the Company relied on any evidence that had not been provided to the grievor and his representative, as, for example, had happened in Re Canadian National Railway Company and Teamsters Canada Rail Conference (2010) CROA Case # 3860 or in Re Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW–Canada) Local 100 (2009) SHP 641.
[54] I note too that there was no evidence that the grievor or his union representative had been denied the right under Rule 27.2 to pose any questions to the witnesses, or to officials of the Company, either through the presiding officer or directly. The record shows that the grievor did question his supervisor Mr. Mazerolle (who was present at the investigation). The grievor also answered supplementary questions posed by his union representative which were clearly designed to flesh out the information surrounding some of the incidents being investigated. At the end the grievor was asked whether he was “satisfied with the manner in which this investigation has been conducted” and he answered that he was: Exhibit E1, Tab 2, p.7. I note too that there was no reference in the Union’s Step II Letter to the grievor having been denied the right to elicit additional information, whether by questioning or otherwise, from the employee’s whose statements had been provided to him at the hearing: see Exhibit E1, Tab 4. The right to pose, ask or conduct such questioning existed “upon request,” but there was no evidence that any such request had been made–or, having been made, had been denied.
[55] In the end then the Union failed to establish on a balance of probabilities that there was any defect either in the manner in which the evidence was collected or the conduct of the investigation. The evidence did not establish that there had been any breach of the grievor’s substantive right under Rule 27.1 to “a fair and impartial investigation.”
B: The Company’s Alleged Reliance on Hearsay
[56] The Union’s objection to the Company’s reliance on hearsay evidence (that is, the written statements of the complainant and the witnesses) cannot in the circumstances of this case be sustained. Arbitrators are not judges; arbitrations are not court proceedings. The law is clear that arbitrators are entitled to admit and consider hearsay evidence. It is true that arbitrators are often reluctant to place much weight on hearsay evidence, particularly where it is the only evidence against a grievor who is alleged to have committed a serious disciplinary offence. But that is not to say that it can never be relied upon. The weight to be accorded hearsay evidence will vary from case to case. It will depend upon such factors as necessity, reliability (whether threshold or ultimate), as well as on the seriousness of the alleged offence. It will also depend on the grievor’s own testimony in response to such evidence. So, for example, much more caution would be required on the part of an arbitrator where the grievor flatly denies the hearsay evidence that is offered against him or her than would be the case where the grievor admits, or qualifies or adds to, the hearsay evidence. In the latter case the hearsay serves as much as a prompt that elicits direct evidence (that of the grievor) as it does evidence that may be relied upon to establish a finding of fact.
[57] In the case before me the hearsay evidence of the complainant and the witnesses fell more into the latter category. The grievor did not deny the incidents. He did not say that the hearsay statements were untrue. He admitted or at least acknowledged that the incidents had happened more or less as stated in the hearsay statements. He sought however to qualify, modify or justify them, or, in the case of the coffee incident, to provide his own version and explanation of what had happened. The grievor’s evidence in effect incorporated–albeit with an explanation or justification–the hearsay statements. That being the case it cannot be said that there is no evidence that can be safely relied upon to determine what happened–or to determine whether the penalty applied for such events was unjust or unreasonable.
C: The Company’s Alleged Failure to Comply With the Policy
[58] The Union’s complaint here was that the employees who were interviewed had not themselves followed section 6.1 of the Policy. They had not first confronted the grievor to tell him that they had been offended. Nor had they documented the dates or times of the incidents. Nor had they spoken to their supervisor (prior to the complaint having been laid). Their failure to follow the steps laid out in section 6.1 meant that the situation was allowed to fester into a poisoned work environment. It also meant that they too played a role in the creation of such an environment. And as a result tensions escalated to the point where discipline was the only apparent remedy. The Union’s representative conceded that this failure was not “necessarily fatal” to the investigation, but it did affect the weight that the Company could place on their evidence.
[59] There is in my view some merit in the Union’s complaint.
[60] A rail yard is not a tea party. Hard labour in a dangerous environment no doubt carries with it a certain about of rough language and crude jocularity. It may be difficult for an employee to know when such conduct crosses the line, particularly when one is dealing with subjective feelings which, by definition, are internal and apt to vary from person to person. A blow to the body delivered in anger is an objective act. Everyone–the recipient, the person delivering the blow and a witness to the act–understands it to be an assault. The same cannot be said of a joke. What is funny to one person may be hurtful to another. Sticks and stones, the saying goes, hurt. So too may words, but because the hurt depends on subjective feelings that are hidden from view it is sometimes difficult for the speaker to know that his or her jokes or jibes do indeed cause pain. That in my view is why section 6.1 urges employees to speak directly to the person who behaviour or speech causes “offence or humiliation or affect ... [their] dignity.”
[61] The failure of the employees in this case to follow the steps outlined in section 6.1 is not fatal to the resulting inquiry. But it is, in my view, a factor that the Company ought to have taken into account in conducting the investigation that it did. In the case of a harassment complaint under the Policy where, as here, there is evidence that some or all of the witnesses or the complainant have engaged in the conduct complained of the Company ought to have taken more steps than it apparently did in order to “[take] into account the circumstances of the harassment.”
[62] Take, for example, the most egregious incident, that involving the coffee (or hot chocolate) into which the grievor was alleged to have urinated. Regardless of whether the grievor actually urinated into the cup or only pretended to, the fact remains that it was a crude and offensive act that could be considered “beneath human dignity.” It was certainly worthy of condemnation. But it also is the case that it was intended as a joke–no matter how offensive–that was made on a person (the complainant) who had himself threatened in the past to put bodily fluids in the grievor’s coffee. I note too that the grievor maintained control of the cup throughout the incident, and told the complainant the punch line before he could drink from the cup. I am also satisfied (as noted above) that the grievor did later apologize to the complainant once he learned how upset the complainant had been. None of this is to justify the grievor’s act, but it is to put it in context. And context is important when one is dealing with horse play, practical jokes and a degenerated working environment.
[63] So too with the first incident. It may be that the complainant’s berating of Mr. Brook when the latter left the engine window open was an inappropriate method of mentoring (as was argued by the Company). But again, on the evidence the grievor was responding to a thoughtless act on the complainant’s part that had an impact on the Company’s operations (it not having been denied that as long as the seat was wet the engine crew would refuse to operate the engine). Similarly, and with respect to the fourth incident, reading the complainant’s statement together with that of the grievor, the Company was left with what appeared to be a dispute over how best to maintain its equipment. It may be that the grievor’s method of handling that dispute was inappropriate in the circumstances. But on the evidence before it the Company simply had two employees arguing over how to best maintain its equipment.
[64] As for the third incident, the grievor’s angry reaction to the complainant’s suggestion that he had been injured was clearly inappropriate. The reaction was extreme enough to lead the complainant and at least one of the witnesses to fear that an assault was immanent. (I note too, however, that there was no evidence that the grievor had actually made a threat to harm the complainant.)
[65] None of this is to justify the grievor’s conduct. The conduct–particularly that involved in the second and third incident–in my opinion clearly warranted serious discipline. A joke about urinating in a drink is indeed “beneath human dignity.” Screaming at someone in a rage is inappropriate. I also found disturbing the evidence in the third incident that the grievor appeared to have repeatedly and intentionally tripped the unit’s brakes. I cannot imagine that such “jokes” with train units is safe or an appropriate use of Company equipment. However, the fact that some of those incidents took place within the context of mutual crude joking and conduct is a
mitigating fact. So too is the fact that some of the conduct Mr. Brook complained of was in fact conduct that he himself had, albeit jokingly, threatened to play on the grievor. So too is the fact that the grievor did apologize with respect to the coffee incident before he became the subject of an investigation, as is the evidence that he sought counselling for stress and anger management issues prior to the formal interview.
[66] These are all facts that in my view were relevant to “the circumstances of the harassment” (to use the wording form section 6.2 of the Policy). Yet there was no evidence to suggest that the Company took these facts into account when deciding to terminate the grievor. The Company seemed to focus solely on the grievor’s conduct, ignoring both his explanations and evidence of similar conduct of the complainant and some of the witnesses against him. So, for example, the Company’s written submissions at the hearing made no reference to the complainant’s threat to put semen in the grievor’s coffee; nor to the crude, derogatory or demeaning comments or jokes made by some of the other witnesses to the grievor or others in the period leading up to the complaint. Such focus might have been justified were the grievor on the evidence the sole cause of the poisoned atmosphere. But as already noted the evidence did not go that far. The evidence instead suggested that the complainant and at least some of the witnesses engaged in similar conduct, directed at both the grievor and others. Faced with such evidence the Company ought to have gone back to the witnesses to obtain their response to the grievor’s evidence before deciding that termination was the appropriate discipline for the grievor’s conduct. Where there is evidence that all have played a role in creating a poisoned atmosphere it is not reasonable to discipline one as if he or she were the only actor, at least without first considering all the circumstances.
[67] Based on the above, I am satisfied that the Company has established (and the onus was on it) that discipline was appropriate for the conduct of the grievor. I was not satisfied, however, that the Company has established that termination was a reasonable penalty for the grievor’s conduct. The conduct was deserving of serious discipline, but when the circumstances of the harassment do not appear to have been taken into account the Company has not satisfied the onus upon it of establishing that termination was a reasonable penalty.
Remedy
[68] Taking into account seriousness of the grievor’s conduct, as mitigated by the facts discussed above, I would in ordinary course have substituted a suspension of six months in place of the termination, and would have ordered the grievor’s reinstatement. This however is not an ordinary case. It is clear from the evidence that there was a poisoned atmosphere at the grievor’s workplace, and that the grievor played a role in its creation. It is also clear that neither the grievor nor the Company have any faith or trust in each other. There is too the fact that at least some of the grievor’s co-workers have turned against him. As well, the grievor has now been away from the Company’s workplace almost as long as he worked there. Any bonds he would have established are no doubt by now dissipated.
[69] Under these circumstances I have concluded that damages in lieu of reinstatement ought to be ordered. The award, while measured in terms of salary, is not an award of lost income. Rather, it is an award of damages to recognize that the grievor, by not being reinstated, has lost the benefit of working in a unionized environment. The law and jurisprudence with respect to such an award has been discussed in Burke, “Damages in Lieu of Reinstatement: Valuing the Benefit of the Collective Agreement,” and Richardson, “Damages in Lieu of Reinstatement: An Analysis and Restatement,” both in Lancaster House’s Labour Arbitration Yearbook (2nd series), 2012-2013; see also Highland Ford, supra. Given that the grievor had only two years and eight months pensionable service, and given that the grievor’s own conduct played a role in making his reinstatement impossible, I award him damages calculated on the basis of two months’ wages plus 15% of that amount for the loss of fringe benefits.
[70] I will remain seized of the calculation of the damages for 30 days in the event that the parties are not able to resolve the figure between themselves.
DATED at Halifax, NS
this 21st day of February, 2014 ___________________________
Augustus Richardson, QC