A locomotive engineer who was dismissed by Canadian National Railway (CN) for alleged sexualized conduct and violating its code of conduct has been reinstated without back pay following an arbitration ruling.
The arbitrator concluded that while the employee engaged in inappropriate workplace conduct, the company failed to prove its most serious allegation that he masturbated in front of a colleague, resulting in a decision that orders reinstatement after a lengthy suspension.
What happened
The dispute centred on the discharge of locomotive engineer A.V. for “violation of CN’s Code of Business Conduct and General Rule A by engaging in inappropriate comments and behaviours towards a co-worker during your trips between Belleville and Toronto and during your layover in Toronto on November 5 & 6, 2022,” as per the investigation report issued on September 15, 2023.
The company terminated A.V.’s employment on October 10, 2023, following an internal investigation that began after a complaint was filed by a female conductor, J.O.
According to the ruling, J.O. and A.V. shared “inappropriate conversations and behaviour” during their trip to Toronto, including time spent in a CN-provided bunkhouse.
Both CN and the Teamsters Canada Rail Conference (TCRC) agreed to appoint a third-party investigator to examine the allegations. The investigator found that A.V.’s actions did not constitute sexual harassment and that J.O. had reciprocated the sexualized conversation. However, the investigator’s report also stated that A.V. “engaged in persistent and sexualized conduct, including masturbating in front of the PP (Principal Party), and in doing so he engaged in unprofessional conduct in violation of the CN Code of Conduct.”
CN challenged arbitrator’s jurisdiction on third-party investigator’s findings
At the arbitration, CN argued that the arbitrator had limited jurisdiction to challenge the third-party investigator’s findings and could only review whether the internal process met the collective agreement’s requirements.
“The Company maintains the arbitrator does not have the jurisdiction to challenge the findings of the neutral third-party investigator,” CN submitted, stressing that the arbitrator should focus on whether the internal formal statement process was fair and impartial.
The TCRC, however, contended that the arbitrator’s jurisdiction under the Canada Labour Code and the collective agreement was broad enough to review all evidence. It argued that while the investigator’s report was one piece of evidence, it was not conclusive.
The union also alleged procedural flaws in CN’s investigation, stating, “The Union objects to the Company’s actions as they violated Article 71 of the Collective Agreement” and arguing that CN had not met the burden of proof. The union asked the arbitrator to reinstate A.V. without loss of seniority or benefits and with full compensation, or to mitigate the penalty as the arbitrator deemed fit.
The ruling
In the decision, the arbitrator found that the internal investigation met the basic fairness and impartiality standards required under the collective agreement. The union’s late-stage objection that it had not been able to question J.O. in person was dismissed.
The arbitrator noted that the union did have an opportunity to pose its questions in writing, and J.O.’s responses were provided before the hearing resumed. “Had such an objection been made at the time of the investigation and maintained throughout the grievance process, this matter could well have been decided differently,” the arbitrator wrote, but concluded that in this case, basic fairness had been upheld.
Just cause for discipline?
The arbitrator then considered whether the company had just cause for discipline. A.V. admitted to violating CROR General Rule A and the Code of Business Conduct in terms of engaging in “sexual conversations that I feel horrible about” and failing to maintain a professional environment while operating a locomotive. “I did not comply with General Rule A,” A.V. stated during the investigation. “I engaged in consensual and sexual conversations… I was not compliant with the Code of Business Conduct.”
The more serious allegation — that A.V. had masturbated in front of J.O. — was contested. A.V. flatly denied it. “I never masturbated in front of her,” he said. The company relied on the investigator’s executive summary but did not present direct testimony or call the investigator or J.O. to substantiate this claim. Given the conflicting evidence and the grievor’s detailed denial, the arbitrator found that CN failed to meet the burden of proof on that point. “I must find that the burden of proof has not been met,” the arbitrator wrote.
Still, the arbitrator held that discipline was warranted. A.V.’s actions, even without evidence of masturbation, were found to be inappropriate and potentially risky. The arbitrator noted, “There are simply too many examples of train disasters caused by employees missing signals,” and emphasized that sexualized conduct while operating a locomotive could be dangerously distracting.
“The actions, whether consensual or not, are entirely inappropriate in a workplace,” the arbitrator stated.
Discharge excessive
As for the penalty, the arbitrator decided that discharge was excessive. The decision reviewed several arbitration precedents. In many cases, even more severe misconduct involving actual sexual acts at work led arbitrators to reinstate employees with suspensions rather than uphold termination. The arbitrator noted that A.V. had 10 years of service, a previously good record, and that this was the first such incident. However, the arbitrator gave “less weight to the grievor’s apology” because it relied heavily on the consensual nature of the conduct, missing the fundamental point that such behaviour does not belong in a safety-critical environment.
Citing comparable cases, including one where an employee engaged in oral sex in a company vehicle and another involving sexual activity while at work, the arbitrator concluded that reinstatement without compensation was the appropriate remedy. By the time of the award, A.V. had been off work for about 13 months, which the arbitrator considered sufficiently punitive. As a result, the arbitrator ordered: “I uphold the grievance to the extent of ordering reinstatement without compensation, but without loss of seniority.”
The arbitrator remained seized with respect to any questions of interpretation or application of the award, ensuring that the parties could return if any issues arose in implementing the decision.
In the end, the arbitrator recognized CN’s legitimate concerns about workplace safety and conduct but decided that A.V. merited a second chance. The employer’s inability to prove the most serious allegation, combined with A.V.’s length of service, tipped the scales away from summary dismissal and toward a long suspension without pay. “A reinstatement now would result in a suspension of some thirteen (13) months,” the arbitrator wrote, comparing it to other cases where lengthy suspensions were deemed appropriate.
For more information, see Canadian National Railway v Teamsters Canada Rail Conference, 2024 CanLII 121069 (CA LA).
