CN Rail has been ordered to reinstate a long-tenured worker it fired after he allegedly threated to hurt people during a conversation with a co-worker about the results of the federal election and the COVID vaccine.
The worker, RM, was fired based on an email one of his colleagues provided to the company. The colleague claimed that RM stated “If I have to hurt people, I will” and that he would throw himself in front of a train at work if he took the vaccine.
RM denied ever making those comments.
Background
RM was hired at CN on June 29, 1988. For most of his career, he held the position of S&C Maintainer at the MacMillan Yard in Vaughan, Ont.
On Sept. 21, 2021, RM’s colleague sent an email to his manager about a discussion he had with him. It read:
“Around 5:50am, I spotted (RM) arriving for his shift at 06:00am. He went to the fridge to put his lunch bag away and then went to change into his work clothes. He then went to the computer area and sat down. I noticed he was looking pretty down so I asked him what was going on. He said that he was upset about the election results and that he still wasn’t going to get the vaccine and he was going to still show up after the November 01st deadline and “If I have to hurt people, I will.” He then continued saying that if he took the vaccine, he would throw himself in front of a train here at work!! He then started saying how the vaccine is causing people to get sick and some of them dying and that it’s our fault that we’ve put him in this position. That’s when I decided to leave and not continue this conversation.”
On Sept. 23, 2021, Canada Life accepted a short-term disability (STD) application from RM. He left work on Sept. 21 following an anxiety attack.
On Nov. 15, 2021, CN introduced its mandatory COVID-19 vaccination policy.
RM’s STD leave ended on Jan. 28, 2022. From that period until March, CN alleged that he did not confirm his vaccination status or co-operate with its Occupational Health Services (OHS) which wanted to assess his fitness to return to work.
Worker held out of service
On March 3, 2022, CN advised his union — the International Brotherhood of Electrical Workers (IBEW) — that once fit for duties RM would be held out of service. It pointed to the alleged conversation he had with his colleague where he made threats against others and himself.
On March 16, 2022, OHS cleared RM to return to work and CN placed him on an unpaid leave since he remained non-compliant with its vaccination policy. RM had told the IBEW he would not take the COVID-19 vaccine.
On June 14, 2022, CN suspended its vaccination policy. From June 18 to July 5, the IBEW was on strike.
In July, CN sent RM a notice to appear for an investigation statement — and the interview took place on July 25, 2022.
During that conversation, RM refuted the allegations made by his colleague via email. While he admitted to being bothered by the results of the federal election, and did say he wasn’t going to get vaccinated, he also said he didn’t think he should lose his job because of it.
“I did not make statements that could even be remotely interpreted as threats to anyone,” said RM. “I also never made any statements regarding suicidal actions. I have a wife and two young children to support.”
RM said the conversation with his colleague left him upset — as they had had the same argument about the vaccine repeatedly — and he left work to go home after having an anxiety attack. As per company rules, he notified his manager and went home and made a doctor’s appointment, he said.
On Aug. 3, 2022, CN dismissed RM for cause. The IBEW grieved the firing. It alleged the company violated the collective agreement by not conducting an investigation within 30 days and that CN did not meet its burden of proof by relying on the email from a colleague and rejecting RM’s statement during the investigation.
The arbitrator’s ruling: Timeliness of investigation
On the issue of the timing of the investigation not being completed in the mandatory 30-day timeframe, the arbitrator sided with CN.
There were exceptions in the collective agreement that applied in this specific case. One of the exceptions was the “unavailability” of the employee in question, RM, who had gone on STD immediately following the alleged incident. The arbitrator cited previous cases to support that an employee’s medical leave could indeed delay an investigation.
Further, the arbitrator agreed that CN was also justified in delaying the investigation when RM decided not to get vaccinated against COVID-19. The delay was deemed reasonable under the “circumstances beyond the control of the company” clause, given that CN had adopted a policy for health and safety reasons that prevented unvaccinated individuals from coming into the workplace.
The arbitrator also acknowledged that while the 30-day rule is the general expectation, both parties could have agreed to conduct an investigation in some other form given the unique circumstances, but they were not obliged to do so.
CN didn’t meet its burden of proof
But it found fault in the company relying on the email from a colleague to dismiss RM, ruling CN did not meet its burden of proof. The arbitrator ruled that simply relying on an email was insufficient to dismiss RM, particularly when he denied making the comments.
The arbitrator noted that CN had several options to resolve the crucial evidentiary conflict, such as requiring the colleague to provide a statement during the investigation or conducting a supplementary investigation. However, CN failed to take these steps.
Given CN’s failure to prove that RM made the comments leading to his termination, the arbitrator granted the IBEW’s grievance. The ruling emphasized that the burden of proof always remained on CN and that the company had an obligation to investigate thoroughly before dismissing a long-term employee.
As a result, the arbitrator ordered CN to reinstate RM without loss of seniority, compensate him for losses resulting from his termination, and remove any reference to the termination from his employment and disciplinary record.
The ruling made no negative findings about the colleague and his email but stressed that allegations differ from investigatory evidence.
For more information, see International Brotherhood of Electrical Workers (System Council No. 11) v Canadian National Railway Company, 2023 CanLII 99782 (CA LA)
