Probe not completed until many months after charges stayed
After she was arrested at her workplace for drug trafficking, a Canadian National (CN) employee was placed out of service while the charges wound their way through the courts.
Jocelyn Zunti had worked for three years as a dispatcher in Edmonton when on March 21, 2014, police entered her office and arrested her. The arrest was part of a larger effort by police and resulted in 12 other persons being charged with conspiracy to traffic cocaine and possession for the purpose of trafficking and the seizure of $800,000 in cash and 3.3 pounds of cocaine.
After the arrest, CN conducted an investigation and on March 27, Zunti — after receiving advice from her lawyer — told the company that “she was not at liberty” to discuss her situation.
Zunti was placed out of service effective March 25, after declining a leave of absence.
Another investigation was attempted by CN on June 2 but again Zunti was “not in a position to discuss this.” A letter was sent on June 9 that advised Zunti that she would continue to be held out of service until she was more forthcoming about her situation.
Zunti’s union, Unifor, filed a grievance on June 20, but it was held in abeyance until the charges were dealt with.
On Dec. 18, 2017, the union advised CN that all charges against Zunti were stayed.
An investigation was eventually held on April 5, 2018, and Zunti returned to work at CN on April 30.
The grievance was amended on June 25 and it asked for back pay from Dec. 18, when CN became aware the charges were stayed.
In its brief to the arbitration hearing, the company explained its decision to wait so long to reinstate Zunti.
“The rail industry is inherently safety-sensitive. Illicit drugs (for that manner, any impairing substance) have no place in a safety-sensitive work environment. It was necessary for the company to examine the risk posed by an employee who has been not only implicated but formally charged by the Crown for crimes related to drug trafficking. Until such time as the risk could be properly assessed, it was appropriate to withhold her from service. The nature of the offence, and the safety-critical nature of the railroad business, requires this.”
However, Zunti was not employed in a safety-sensitive position, argued Unifor.
“She does not work outside at the company’s Walker Yard or (is) required to wear safety boots or other personal protective equipment. She works inside an office that is not a safety-sensitive work area.”
Arbitrator Graham Clarke ordered CN to pay Zunti wages from Jan. 2 to April 29.
“The arbitrator partially upholds Zunti’s grievance for the time period after CN learned that the charges against her had been stayed. Given the significant length of time she had been held out of service, CN ought to have immediately conducted its investigation. Instead, for reasons unknown, CN did not hold its interview until April 5, 2018. Zunti did not work her first shift until April 30, 2018. CN learned of the stayed charges on Dec. 18, 2017. The arbitrator concludes that, despite the upcoming holiday season, CN could have easily completed all the steps needed to return Zunti to work by Jan. 2, 2018.”
But CN’s argument about leaving her out of service due to the safety-sensitive nature of its business was upheld by the arbitrator.
“CN had a legitimate right to protect its operations and reputation. CN is a major transportation undertaking carrying goods from coast to coast. Zunti worked alongside employees engaged in safety-sensitive duties. This office noted, in different circumstances, a railway’s legitimate concerns whether someone might be distributing illegal drugs in a safety-sensitive workplace,” said Clarke.
“The severity of the charges against Zunti, which arose as part of six highly publicized Edmonton drug busts, and which included cocaine trafficking allegations, tipped the balance in CN’s favour,” said Clarke.
Reference: Canadian National Railway and Unifor. Graham Clarke — arbitrator. B. Kennedy, R. Shore for the employee. Jan. 29, 2019. 2019 CarswellNat 349
Jocelyn Zunti had worked for three years as a dispatcher in Edmonton when on March 21, 2014, police entered her office and arrested her. The arrest was part of a larger effort by police and resulted in 12 other persons being charged with conspiracy to traffic cocaine and possession for the purpose of trafficking and the seizure of $800,000 in cash and 3.3 pounds of cocaine.
After the arrest, CN conducted an investigation and on March 27, Zunti — after receiving advice from her lawyer — told the company that “she was not at liberty” to discuss her situation.
Zunti was placed out of service effective March 25, after declining a leave of absence.
Another investigation was attempted by CN on June 2 but again Zunti was “not in a position to discuss this.” A letter was sent on June 9 that advised Zunti that she would continue to be held out of service until she was more forthcoming about her situation.
Zunti’s union, Unifor, filed a grievance on June 20, but it was held in abeyance until the charges were dealt with.
On Dec. 18, 2017, the union advised CN that all charges against Zunti were stayed.
An investigation was eventually held on April 5, 2018, and Zunti returned to work at CN on April 30.
The grievance was amended on June 25 and it asked for back pay from Dec. 18, when CN became aware the charges were stayed.
In its brief to the arbitration hearing, the company explained its decision to wait so long to reinstate Zunti.
“The rail industry is inherently safety-sensitive. Illicit drugs (for that manner, any impairing substance) have no place in a safety-sensitive work environment. It was necessary for the company to examine the risk posed by an employee who has been not only implicated but formally charged by the Crown for crimes related to drug trafficking. Until such time as the risk could be properly assessed, it was appropriate to withhold her from service. The nature of the offence, and the safety-critical nature of the railroad business, requires this.”
However, Zunti was not employed in a safety-sensitive position, argued Unifor.
“She does not work outside at the company’s Walker Yard or (is) required to wear safety boots or other personal protective equipment. She works inside an office that is not a safety-sensitive work area.”
Arbitrator Graham Clarke ordered CN to pay Zunti wages from Jan. 2 to April 29.
“The arbitrator partially upholds Zunti’s grievance for the time period after CN learned that the charges against her had been stayed. Given the significant length of time she had been held out of service, CN ought to have immediately conducted its investigation. Instead, for reasons unknown, CN did not hold its interview until April 5, 2018. Zunti did not work her first shift until April 30, 2018. CN learned of the stayed charges on Dec. 18, 2017. The arbitrator concludes that, despite the upcoming holiday season, CN could have easily completed all the steps needed to return Zunti to work by Jan. 2, 2018.”
But CN’s argument about leaving her out of service due to the safety-sensitive nature of its business was upheld by the arbitrator.
“CN had a legitimate right to protect its operations and reputation. CN is a major transportation undertaking carrying goods from coast to coast. Zunti worked alongside employees engaged in safety-sensitive duties. This office noted, in different circumstances, a railway’s legitimate concerns whether someone might be distributing illegal drugs in a safety-sensitive workplace,” said Clarke.
“The severity of the charges against Zunti, which arose as part of six highly publicized Edmonton drug busts, and which included cocaine trafficking allegations, tipped the balance in CN’s favour,” said Clarke.
Reference: Canadian National Railway and Unifor. Graham Clarke — arbitrator. B. Kennedy, R. Shore for the employee. Jan. 29, 2019. 2019 CarswellNat 349
