A CN Rail worker, fired after an incident that resulted in a train hitting a van at a railway crossing, has been reinstated to his job by an arbitrator.
On Aug. 3, 2022, SJ failed to properly conduct a primary battery test, which is essential for the functionality of the railway crossing. Instead, he conducted a timer test. As a result, the railway crossing was left unprotected, and a train traveling at 10 mph collided with a van carrying three passengers.
The passengers were not severely injured but were taken to a hospital by ambulance.
The arbitrator also reduced the imposed demerit points from 60 to 40 and mandated that SJ return to his position without additional compensation.
Background
SJ was initially hired by CN on June 30, 1998, in the Engineering – Track Department represented by the Steelworkers union. He resigned from the company on Aug. 10, 2004.
On Sept. 9, 2019, he was rehired by CN in an S&C position in the International Brotherhood of Electrical Workers (IBEW) bargaining unit.
His employment records account for both stints at CN.
Disciplinary measures and arbitration
CN played a video showing the consequences of SJ’s actions. It showed that large trees obscured drivers’ view of any approaching trains. The public, thus, relied completely on the railway crossing working properly.
“A dark van went through the intersection safely just before the train entered the crossing. A light van which followed was not so lucky,” the arbitrator wrote in the ruling.
“The train hit it right in the middle and pushed it down the tracks and out of the video’s frame. The incident was no doubt horrifying for the three passengers who had no warning a train was coming. Fortunately, the train was going 10mph on this section of the track and the van seemingly stayed upright as it was pushed down the track.”
Following the incident, CN imposed 60 demerit points on SJ, which led to his automatic dismissal. The IBEW contested the disciplinary action, arguing that 25 demerit points would be appropriate given the circumstances.
The arbitrator ruled that although SJ had committed a serious error, there was insufficient evidence to support CN’s claim that his actions were reckless, negligent, or showed an unwillingness to follow rules.
However, it noted the serious consequences for the passengers in the van.
“One can imagine the terror they felt as they crossed a railway crossing which had no flashing warning lights only to have a train smash into them and push their vehicle down the track. That is clearly an aggravating factor in this case,” the arbitrator said. Luckily, there were no serious injuries.
Worker uncertain about task, had no previous discipline
The facts showed SJ was uncertain about the task he had to complete, and he made a significant mistake in asking his colleague about the wrong test. The fact he asked for help mitigates against a finding that he “shows no willingness to comply with the rules,” the arbitrator said.
Nor was there evidence he was a reckless and negligent employee. SJ had no previous discipline on his record, and he accepted responsibility for his actions and indicated what he would do in the future.
It also noted that SJ was not a new employee — pointing to his earlier stint at CN. He had a total of nine years’ service, meaning “he is not the short service employee one might otherwise have initially assumed” when looking at the 2019 rehire date.
As a result, the arbitrator ordered CN to reinstate SJ without compensation and reduced the 60 demerit points to 40 on his disciplinary record.
For more information, see International Brotherhood of Electrical Workers System Council No. 11 v Canadian National Railway Company, 2023 CanLII 93137 (CA LA)
