CP Rail was justified in firing a worker who allegedly soiled his pants on purpose in an attempt to frustrate an investigation into his wrongdoing, an arbitrator has ruled.
The worker, J.V. Seberras, was assessed 25 demerit points for attempting to remove motor oil, valued at about $2.50, without permission from company vehicles for his own personal use. Under CP Rail’s “Brown System of Discipline” once a worker exceeded 60 demerit points he can be terminated.
Theft, or attempted theft, is not to be treated lightly, the arbitrator said.
“Few acts can more seriously harm the employment relationship and duty of trust than a removal or attempted removal of company property,” the arbitrator said. Even though the value of the oil was minimal, the arbitrator said 25 demerit points was not excessive.
That brought the worker’s record to 35 demerit points. Seberras was assessed another 15 demerit points on May 27, for an incident not grieved, bringing his total to 50. (It’s not clear what the incident was.)
The pant soiling incident
Seberras soiled his pants (by urinating) during an investigation into his theft of the motor oil. CP Rail alleged it was deliberate and an attempt to frustrate the investigation. The company considered the conduct gross insubordination. The union said Seberras could not be disciplined because there was no evidence the soiling was voluntary and therefore there was no evidence of gross insubordination.
On the day in question, Seberras attended, along with his union representative Ray Gallop, at a continuing investigation into the oil incident. Seberras and Gallop were seated at the same side of the table slightly behind the investigating officer, Norm Richards.
At the beginning of the day, Seberras requested a more formal approach of communicating during the investigation. He wanted to raise his hand when he wanted to gain Richards’ attention. Richards granted the request.
The investigation began at 8:50 a.m. and there was a 15-minute recess at 10:10 a.m. and a 12-minute break at 10:57 a.m. Both were requested by Richards. It’s not known whether Seberras left the room during either break, though he clearly had the opportunity to do so.
At noon Seberras apparently raised his hand to get the attention of Richards. Neither Richards nor Gallop had any recollection of this. At one point, Seberras tapped Gallop on the shoulder. Gallop saw the raised hand and called out to Richards, who asked him to wait one minute because he was just finishing typing.
At no time did Seberras tell either Gallop or Richards that he was in distress. At 12:10 p.m. Gallop was told that Seberras had peed his pants and the investigation was adjourned.
Shortly after, Seberras was asked if he had a bladder problem or some other type of medical condition that would account for the incident. He said no.
“(Seberras) had been the object of investigations on numerous occasions prior to this date,” the arbitrator said. “The process was neither new nor foreign to him. He had, on at least one previous occasion, simply excused himself and left the investigation room when he had to go to the bathroom. On the one hand, it defies logic and common sense that an adult would deliberately soil himself. On the other hand, it also defies logic that an adult,
, as (Seberras) claims he was, would sit mute, like a child, with hand upraised, waiting to get the attention of Mr. Richards. It further defies logic and common sense that (he) would simply tap Mr. Gallop on the shoulder without communicating any particular need, particularly if the need was urgent.”
The arbitrator said it was also worth noting that Seberras himself was the one who imposed the hand-raising method of communication. The employer simply acquiesced to his request. Given that the process was not one demanded by the employer, there is no reason why Seberras could not simply have called out, the arbitrator said.
“There was absolutely nothing to stop (him) from simply standing up and excusing himself,” the arbitrator said. “He had done so before without any negative repercussions and there was nothing to suggest he would be punished for it during the course of this investigation.”
The arbitrator concluded that Seberras had the opportunity to avoid soiling himself and the end result was of his own doing.
The worker was assessed 45 demerit points, bringing him well past 60, and was fired. Whether 45 demerit points was appropriate became a moot point because of a further incident.
The SARS incident
Seberras attended the Toronto-area SARS benefit concert on July 20, 2003. He was on modified duties at the time because of an injury. No seating was provided at the concert.
Seberras was spotted by a yard manager who was also attending the concert. The manager, who had known Seberras since 1990 and was aware that he was on modified duties, observed that Seberras did not appear to limp or walk in pain. He called out to him and alleged that Seberras responded with:
“You didn’t see me here, you better not fucking tell anyone you saw me here. I have enough on all of you that I’ll fry all your asses. You didn’t fucking see me here.”
Seberras admitted being at the concert but denied saying those words. CP Rail said threats and verbal abuse, as alleged, can’t be tolerated. The union argued that with the level of noise at the concert, the manager’s perceptions may have been affected. There was no reason why Seberras would have said what he was alleged to have said, the union said.
But the arbitrator had some difficulty with the credibility of Seberras. There was no reason for the manager to have made up what he claimed Seberras said.
“This is to be contrasted with the situation of (Seberras),” the arbitrator said. “He was on modified duties. Showing himself to be able-bodied was problematic for him, especially given the number of demerit points he had accumulated to that point.”
The fact the incident didn’t take place on company property or company time was irrelevant, the arbitrator said.
“It was a threat uttered to a company employee resulting … out of a concern of (Seberras) directly relating to the workplace and his employment status,” the arbitrator said.
CP Rail assessed 45 demerit points for the SARS concert incident.
The arbitrator said that, without even considering the demerit points issued in the soiling incident, Seberras had 50 demerit points on his record.
“Only 10 more demerits were required for the employer to terminate his employment,” the arbitrator said. “Even if it could somehow be argued that 45 demerit points are excessive for uttering a threat (and the arbitrator didn’t think it was excessive), the arbitrator would not reduce the total number of demerits assessed such that the total number of demerits on the (employee’s) record would be below 60.”
For more information see:
Canadian Pacific Railway Company and Teamsters Canada Rail Conference
, Case No. 3567 of the Canadian Railway Office of Arbitration & Dispute Resolution (Montreal, June 15, 2006.)
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