CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 5202

Heard in Edmonton, July 10, 2025 Concerning CANADIAN PACIFIC KANSAS CITY RAILWAY And TEAMSTERS CANADA RAIL CONFERENCE

DISPUTE: Appeal of the dismissal of Conductor Ethan Morgan. JOINT STATEMENT OF ISSUE: Conductor Ethan Morgan was disciplined as shown in his Form 104 as follows, “A formal investigation was conducted on July 10, 2024, to develop all the facts and circumstance in connection the referenced occurrence. At the conclusion of that, investigation it was determined the investigation as a whole contains substantial evidence proving you violated the following:

• T&E Availability Standard Information Bulletin Effective February 1st, 2017, and re- issued January 10th, 2024 In consideration of the decision stated above, please be advised that you are Dismissed from company service effective July 26, 2024.” UNION POSITION For all the reasons and submissions set forth in the Investigation and the Union’s Step 1 grievance as well as this Step 2 grievance and which will be relied on at all steps of the grievance and arbitration process, the Union contends any discipline assessed in this matter is excessive, and in violation of the Canada Labour Code (CLC), and the Collective Agreement. As noted, Mr. Morgan explained that he booked off sick due to a hernia and did not initially provide a doctor's note because he was told it was only necessary if there was a statement. The company did not challenge the veracity of his reason for absence or request these medical notes within the required 15 days after his return, as stipulated by the Canadian Labour Code placing the burden completely on the employee who did confirm during the investigation that he can still provide a doctor’s note. He did not initially provide a doctor's note because he was told it was only necessary if there was a statement. The Company subsequently breached the Collective Agreement by relying on evidence not provided as part of the investigation. The Company has not met its burden, aught have opted to postpone the investigation to allow Mr. Morgan to obtain the doctor’s note as he stated giving him the opportunity to substantiate his claim of illness. The Union believes that the Company in an act of discrimination, viewed Mr. Morgan as a burden due to his health and opted for dismissal. This can be seen in the Company’s step 1 grievance response.

According to the Company's own T&E Availability Standard, medical documentation will be accepted in extraordinary circumstances. Mr. Morgan's situation qualifies as an extraordinary circumstance due to his medical emergency, yet the company refused to consider this. Absolutely no pattern has been established from this, absolutely nothing from this investigation shows Mr. Morgan did anything wrong, the Company has not proven their case, any discipline should be void, as Article 39.05 has been violated. The Company’s attendance policy does not follow the KVP award. The policy is not clear nor unequivocal as it does not comply with Labour code standards, and it is unreasonable in expectation. The policy is under separate grievance. Mr. Morgan followed the rules prescribed in CROR General Rule A item (X) which he must report for duty fit and rested. Mr. Morgan booked sick so that he would not report for work in an unfit/sick state. The Company continually issues bulletins (Company bulletins which the Company holds carriage of) advising employees not to report for work if sick or can face up to and including dismissal. The employee follows this and was still disciplined. As one can see from the investigation nothing within it would justify any discipline being assessed. The discipline in this case is excessive and unwarranted. The Union requests the discipline assessed to Mr. Ethan Morgan be expunged, he be reinstated, compensated for all lost wages, pension and benefits, all to include interest. In the alternative that the penalty, be mitigated as the Arbitrator sees fit. The Union further seeks that damages be awarded to Mr. Morgan. COMPANY POSITION The Company does not agree with the Union’s position nor the requested remedy. The Company maintains that its attendance policy is the subject of a separate grievance and are not properly before the Arbitrator in this dispute. Should the Union attempt to argue the merits of the attendance policy, the Company will raise an objection. The Grievor had five previous assessments of discipline issued with increasing severity, all related to absenteeism or failure to provide medical documentation. Upon dismissal, the Grievor’s discipline record reflected 90 demerits, of which 30 had previously been deferred in accordance with Article 39.13. Moreover, the Grievor had previously been warned that his employment was in a precarious position. The Company submits that the Grievor did not take any proactive measures to advise the Company of any alleged pre-existing or emergent medical conditions that would necessitate emergency book offs. During the investigation, the Grievor stated he would provide a doctor’s note relating to his June 13, 2024 absence, however the doctor’s note he provided was dated July 16, 2024 and did not support his absence. The Company carefully considers the appropriate disciplinary consequence, if any, to be assessed. Discipline was determined following a review of all pertinent factors, both mitigating and aggravating, and maintains the Grievor’s culpability for this incident was established following the fair and impartial investigation into this matter. Moreover, the Company maintains the discipline was properly assessed in keeping with the Hybrid Discipline and Accountability Guidelines and the principles of progressive discipline. The Company disagrees with the Union’s request for damages and maintain they are unwarranted and without merit. The Company’s position continues to be that the discipline assessed was just, appropriate, and warranted in the circumstances and respectfully requests that the Arbitrator dismiss the grievance in its entirety.

For the Union: For the Company: (SGD.) D. Psichogios (SGD.) F. Billings General Chairperson Senior Manager Labour Relations

There appeared on behalf of the Company: S. Scott – Manager Labour Relations, Calgary S. Oliver – Manager Labour Relations, Calgary

And on behalf of the Union: R. Church – Counsel, Caley Wray, Toronto D. Psichogios – General Chairperson, CTY-E, Montreal J. Bishop – General Chairperson, LE-E, Severn D. Fulton – General Chairperson, CTY-W, Calgary J. Hnatiuk – Vice General Chairperson, CTY-W, Mission P. Boucher – National President, TCRC, Ottawa E. Morgan – Grievor, London

AWARD OF THE ARBITRATOR

Background, Issue & Summary

[1] The Grievor is a Conductor, who began his service with the Company in August of 2022.

[2] On June 13, 2024, the Grievor booked off sick. June 13, 2024 was a Thursday.

[3] On July 10, 2024, the Grievor was Investigated for this book off. The Company considered it demonstrated a pattern of booking into weekends and resulted in 70 hours off service for the Grievor.

[4] On July 26, 2024, the Company dismissed the Grievor.

[5] The Union filed this Grievance against this dismissal.

[6] Prior to the events in this Grievance, the Grievor had five other instances of discipline on his record, three of which were directly related to missing calls.

[7] By the time of the events in this Grievance, he had amassed 30 demerits for two previous issues. He also had two instances of 30 deferred demerits, both received in April of 2024. The Company indicated it had exercised leniency and not dismissed the Grievor for accumulation of more than 60 demerits under the Brown System, given that the second instance of deferred demerits received in April should have activated the first 30 deferred demerits received earlier in April, bringing the Grievor’s total to 60 demerits accumulated, and therefore dismissal.

[8] The issues between the parties attract the three questions from the Re Wm. Scott framework:

a. Was the Grievor culpable for his absence on June 13, 2024? b. If so, was dismissal just and reasonable? and c. If not, what other discipline is appropriately substituted?

[9] For the following reasons, the Grievance is upheld.

Analysis and Decision

[10] It is not disputed the Grievor booked off sick on June 13, 2024. T

[11] he Grievor’s evidence was he spoke to the Crew Management Centre; and that the CMC checked to determine if a manager wanted to speak to him, which was not the case.

[12] At his Investigation, the Grievor maintained he was off sick due to a hernia. The Grievor’s evidence was he did not provide a doctor’s note because “the last time ” he was told it would only be needed if there was a statement.

[13] While the Grievor received Notice a Statement would be taken on July 10, 2024, he did not bring any doctor’s note to the Investigation. The Grievor indicated at the Investigation that he would be providing a doctor’s note.

[14] The Grievor subsequently provided a note on July 24, 2016 that he was to have “ no lifting greater than 5 pounds until further assessment ”.

[15] As there was no time period set out in that note regarding that restriction and no indication when that restriction began, nor an underlying diagnosis for that restriction, the Company took the position this note did not substantiate the Grievor’s absence on June 13, 2024.

[16] At the Investigation, the Grievor was asked (in an unnumbered question) if “ going forward…can CPKC expect that this behaviour of booking off on weekends will not be continued? ” and answered “ yes ”.

[17] He did not have anything further to add to the Investigation.

[18] On July 24, 2024, the Grievor provided an attending physician form which indicated he suffered from an inguinal hernia, with the ‘first visit’ filled out as July 15, 2024. It was noted he had “ Bulging in lt groin. Pain on palp ”.

[19] That information also noted that the Grievor had had the same symptoms “ last year”, but with “ no pain and it went away ”.

[20] That information noted he could only return to work on “m odified duties of no lifting/pushing/pulling 5-10 lbs, no bending/twisting or prolonged standing/walking ” and that an estimated full return to work “ may not be until after expected surgery .”

[21] The Grievor also provided evidence he ultimately received surgery for an inguinal hernia on an emergency basis, in March of 2025.

[22] Although no diagnosis was made in the July 16, 2024 note, I am satisfied from the evidence that the Grievor provided a reasonable and credible explanation for his absence on June 13, 2024. I am satisfied the information provided in that note served to provide credibility to the Grievor’s explanation that he was having difficulties from a hernia when he booked off sick on June 13, 2024.

[23] I am also satisfied this was a reasonable and credible explanation because the Grievor ultimately provided information to substantiate the hernia’s existence; that it had been a recurring issue for him; and that he ultimately underwent surgery for its repair. If the Company had any questions regarding the medical information or its reach back in time to June 13, 2024, it should have convened a supplemental investigation and questioned the Grievor about that information.

[24] It chose not to do so. Instead, on the same day that this information was provided, the Company dismissed the Grievor.

[25] It is the Company’s burden to establish culpability for the Grievor’s conduct, following the familiar Re Wm. Scott framework. Culpability for discipline in fact is the first question under that framework.

[26] Given the finding that the Grievor provided a reasonable and credible explanation for his absence, I am not satisfied the Company has met its burden to establish that his absence was part of a “pattern”; violated the T & E Availability Standard; and was therefore culpable.

[27] As the Company demonstrated leniency to the Grievor for reaching 60 demerits as of late April 2024, that leniency remains in force.

[28] Although the Grievor is currently at 60 demerits (given the impact of his deferred discipline), he does not stand dismissed.

Conclusion

[29] The Grievance is upheld.

[30] The Grievor’s discipline record stands at 60 demerits. However, his employment continues as before this event, given the Company’s previous decision to demonstrate leniency, before this event occurred. The Grievor is therefore entitled to be reinstated, without loss of seniority and with compensation (after mitigation efforts are deducted in the usual course).

[31] As is usual in such cases, the amount of that compensation is referred back to the parties for their discussion. If the parties cannot agree, either can request that the issue be scheduled for a CROA Session over which I preside.

I retain jurisdiction to address any questions arising from the implementation of this Award; for any further questions arising from its remedial directions; to correct any errors; and to address any omissions, to give it the intended effect.

July 24, 2025

CHERYL YINGST BARTEL ARBITRATOR