AH - 133













(the “Company”)






TEAMSTERS, LOCAL 31 (Prince George)


(the “Union”)








SOLE ARBITRATOR:     H. Allan Hope, Esq.



There appeared on behalf of the Company:

                                Mary E. Saunders



And on behalf of the Union:

                                J.H. Page, Esq.



A hearing was held at Prince George, B.C., on the 30th day of March, 1982


                In this arbitration the Union grieves the dismissal of a long service employee whose attendance at work deteriorated over a period of three years due to an injury he sustained on the job.  The employee, Daniel Kolman, was employed as a truck driver in warehousing and delivery operations carried out by the Employer in conjunction with its railway terminal in Prince George.  The grievor was first employed on January 10th, 1966.  His principal occupation from November of 1966 to November of 1979 was that of truck driver.  Early in his employment he worked briefly as a freight clerk but became a truck driver and expressed a preference for that position.


                On September 6th, 1978 he injured his back while engaged in strenuous work in the course of loading a truck.  In October of 1978 he injured it again while engaged in similar work.  In the evidence there is no suggestion of malingering on the part of the grievor.  The principal evidence as to his condition was given by Dr. A.B. Craddock, his family physician for approximately ten years from 1971 to June of 1981.  Dr. Craddock gave his evidence in response to a Summons and in response to a searching examination by counsel for the Employer.  I will deal with his evidence in greater detail later in this Award.  At this stage I point out that he identified in the condition of the grievor a psychological component and an extremely low tolerance for pain.  He made it clear that he did not consider those factors to be an indication of malingering on the part of the grievor.  In addition he made it clear that the disability of the grievor, whatever its source, is physiological.  in this arbitration the employer did not advance the argument that there was any aspect of culpability in the conduct of the grievor and the absenteeism resulting from his disability.  The Employer relied totally on the inability of the grievor to perform his work and his absenteeism as proof of just cause for the dismissal.


                Dealing first with absenteeism, the record of the grievor is woefully inadequate in any reasonable assessment of the obligation of an employee to report for work regularly and in a condition fit for the work he is to perform.  Commencing with his injury in September of 1978, we find the following record of attendance; from September to December of 1978 he attended work for 36 days.  during the calendar year 1979 he attended at work on 59 days.  During the calendar year 1980 he attended at work on 154 days and in the ten month period between January and October of 1981 he was at work for only six days.  On October 28, 1981 he was dismissed. The letter of dismissal reads as follows:


“Your work record has been thoroughly reviewed, and it is evident that your past absenteeism indicates that you are not physically fit to do the work which the British Columbia Railway is able to provide.  And, since your condition has prevented, and in the future will likely inhibit you from fulfilling your employment obligations, this letter is to advise you that your services with the British Columbia Railway are hereby terminated.”


                In his evidence Dr. Craddock gave a lengthy review of the medical history of the grievor

commencing with his injury.  The history included an explanation of the nature of the injury sustained by the grievor, a back injury that required surgical intervention in an operation that Dr. Craddock described as unsuccessful.  The clear inference form the evidence of Dr. Craddock is that the grievor has a continuing disability by reason of his back injury that has visited upon him a fragility that makes physical exertion uncertain and hazardous insofar as the grievor bent over to tie his shoes and was struck down in pain.  He was hospitalized for a period of nine days and did not return to work for eight months. 


                Throughout the period of treatment Dr. Craddock kept the Employer informed of the condition of the grievor at the request of the grievor at the request of the grievor.  That correspondence was adduced in evidence by the Employer and was referred to by Dr.Craddock in his evidence.  That correspondence confirms the basic fragility of the grievor with respect to any degree of physical exertion.  On September 25, 1979 Dr.Craddock wrote in part, “he (Mr.Kolman) will not be able to return to work involving lifting, which makes him unsuitable for his past job as a truck driver, and his current job in the warehouse.”  He was at that time working as a warehouseman.  In the letter Dr.Craddock suggested he be considered for an office job.  At that time the grievor was unwilling to take a cut in wages, a likely result of a move to an office job, but the Employer was willing to transfer him to any job available in the bargaining unit.


                On May 8th, 1980 Dr. Craddock wrote to the Employer and said in part as follows:


“As I have mentioned i9n the past, this man should not be lifting and weights, and I would suggest that the maximum weight he should lift is about 20 pounds, and that this should not be done regularly…  I have told him repeatedly that he must not lift heavy waits, and I would strongly suggest he be placed in a job category that doesn’t require this type of work.  If this does not happen, there is going to be yet further endless problems over time loss etc.”


                On May 30, 1980 the grievor proposed that he be put onto a light delivery truck and

sought the advice of Dr.Craddock as to whether or not his condition would permit.  Dr. Craddock replied in a letter to the employer as follows:


“I yet again told him that if the job does not involve and significant lifting, that is more than twenty pounds, that I thought he should be able to handle it without a great deal of difficulty.”


                On August 11, 1980 the grievor sustained the injury occasioned by bending  over to tie his

shoe laces to which reference was previously made.  After that date he worked only six days before his dismissal.  He returned to work briefly on April 23, 1981 and underwent training for a clerical position.  On May 1st, 1981 he again found himself disabled by his injury and he never did return to work.  The implications of the last incident were addressed by Dr. Craddock in a letter to the Employer dated May 19, 1981.  That letter reads in part as follows:


“This patient came in to see me on May 11th, 1981 having discontinued his new job at the B.C. Railroad…  I feel that the problem is now primarily not one amenable to medical treatment although the workers’ Compensation Board may however wish to look at further rehabilitation.  I would very much doubt whether this was possible.  I feel this matter now has to be dealt with at realizing that this man no longer is able to continue employment and that this is related to his original low back injury and his personality is such that it would not be possible to rehabilitate him.”


                Following that pessimistic view of the potential for the grievor to carry on his employment, the employer initiated meetings with the grievor and the Union aimed at seeking some resolution of the conundrum.  Those discussions were initiated in September of 1981 when the Employer advised the Union that it was giving  consideration to terminating Mr. Kolman because of his inability to perform his work.  That led to meetings between the Employer and the Union with Mr. Kolman in attendance.  The position of the employer was that it would make available to Mr. Kolman and job within the provisions of the Collective Agreement agreeable to the Union.  That initiative on the part of the employer achieved the stage of ultimatum on October 27, 1981.


                On that date the Employer took the position that it would assign any job to Mr. Kolman in the context described if he would designate the job he thought he could perform and convince the Employer that he had the physical capacity to perform it.  In response to that initiative Mr. Kolman and the Union met with the Employer on October 28th, 1981 and expressed a desire to have Mr. Kolman return to work in the capacity of warehouseman in a position from which he had been previously removed by reason of his inability to lift weights in excess of 20 pounds.  The Employer had removed him from that position on July 30th , 1980 because of the lifting restriction imposed on him by his doctor.  In his initial appointment to the position on July 24, 1980 the supervisor of the warehouse was not aware of that lifting restriction.  When he became aware of the restriction he had the grievor removed from the position because the nature of the job required lifting of weight substantially in excess of that limited amount.


                The Union was severely critical in argument of that decision of the Employer, saying that the job was a light duty job if some selection was made in the assignment of duties within the position.  The contemplation of the Union was that the employer could assign all lifting to other warehousemen, leaving the grievor to do work that did not require his participation in the more physically challenging aspects of the job.  The Employer took the position that it could not restructure the position so as to protect the grievor from his disability and it was fearful that he would injure himself further, and perhaps permanently.  That concern on the part of the Employer was neither ill-founded nor unreasonable.  It will be remembered that the injury that caused the grievor to leave work, apart from his short return in 1981, was occasioned by him bending over to tie his shoes.  One cannot imagine placing a man in that precarious condition in a position involving physical exertion.  In any event, the limitation imposed on the grievor by his doctor was a maximum lifting of twenty pounds and the Employer cannot be faulted for adhering to that limitation.  One can only speculate on the position in which the Employer would find itself if, in face of that limitation, it assigned the grievor to more arduous duties and he injured himself again.  In any event, returning to the narrative of the events in October of 1981, the grievor insisted that he was fit to perform that same job and he asserted a seniority claim to it.  He did so, in part, on the basis of a letter from Dr. R. Yenson, a general practitioner in Prince George.  Dr. Yenson was not called to give evidence but a letter from him directed to the Worker’s Compensation Board and dated October 13, 1981 was filled in evidence.  That read, in its entirety, as follows:


“Mr. Kolman ha s been off work for prolonged periods since he suffered a back injury in September of 1978.  Dr. A.B. Craddock who treated him at the time of his injury, suggested that he could work provided he did not lift weights of over 20 pounds.  Mr. Kolman would like that restriction removed and return to work.  I fully agree with this as I feel that Mr. Kolman is rapidly becoming a “low back cripple.”  I have advised him to return to any form of suitable employment where he does not have to put his back under strain and to wear a lumbro-sacral corset during work.”


                There was no evidence led to indicate that Dr. Yenson had consulted with Dr. Craddock prior to expressing his opinion.  During treatment under the supervision of Dr. Craddock prior to expressing his opinion.  During treatment under the supervision of Dr. Craddock the grievor was seen by a  number of doctors, including the surgeon who performed the operation on his back.  There is nothing in the evidence to indicate Dr. Yenson consulted with any of those fellow physicians prior to reaching his conclusion.  The letter was put to Dr. Craddock in his examination.  In his view the limitation imposed by Dr. Yenson, that is, “that Mr. Kolman return to suitable employment where he does not have to put his back under strain” was not qualitatively different from the limitation Dr. Craddock himself prescribed.  I cannot, on a balance of probabilities, conclude that the letter of Dr. Yenson demonstrates a medical opinion upon which I can infer that the grievor is capable of performing the work of a warehouseman to the full scope of duties required by the job.


                In his evidence Dr. Craddock agreed that he had not examined the grievor since June of 1981 but the opinions he expressed prior to that date were confirmed by him.  He did express one qualified reservation.  That reservation was with respect to the potential for rehabilitation to be found in the medical condition of the grievor.  In his evidence he stated as follows:


“My prognosis looking back is that there is a remote chance of rehabilitation from the injury.  His tolerance to pain is the factor.  He has no ability to cope with physical or psychological pain.  Pain makes him angry and exacerbates his condition because the anger causes tension which complicates the pain.  If he is to be rehabilitated he must be more relaxed.  If someone could spend a lot of time retraining and supporting him it may eventually be possible for him to be rehabilitated.  He has never accepted that he cannot go back to driving a truck, the only job he wanted  and that is his problem.  There is an extremely small chance he could ever go back to truck driving or lifting.  All doctors who have seen him have the same opinion, that is that he had to be retrained for lighter work.”


                One final fact must be acknowledged before I turn to a consideration of the issues in dispute.  The grievor was assessed by the Workers’ Compensation Board as having a 2% disability and he receives a pension of approximately $23.00 per month in recognition of that disability.  In addition, the Canada Pension Plan incorporates disability benefits and the grievor has been assessed under the program as suffering from a disability of 100%.  On that finding he receives a pension from the Canada Pension Plan in the amount of approximately $367.00 per month.  I note, in passing, that the medical support for that pension came apparently from Dr. Yenson, a  doctor I have assessed in determining whether or not his tentative expression of opinion as to the capacity of the grievor to return to work can be see as an unqualified certification of fitness.  In measuring the facts I must take cognizance of the determination by the Canada Pension Plan authorities that the grievor is totally disabled.  I will comment later on the irony emerging in the finding by one government agency that the grievor is totally disabled and the finding by another government agency that the grievor suffers from a 2% disability.  No evidence was led on the subject of the impact upon the grievor in having his income reduced to approximately $390.00 per month.  Despite the absence of evidence I am prepared to find that the income level of the grievor places him, at best, in the category of subsidized poverty.


                In making those observations I want to make it clear that I am not critical of the Employer in these events in any sense.  The Employer has indeed taken every available step to accommodate the grievor short of providing him with a specialized job designed to accommodate the grievor short of providing him with a specialized job designed to accommodate his severe disability and the reasonable prediction of his future absences.  It has been long recognized in arbitral jurisprudence that an Employer in our industrial society is not obligated, beyond a specific contractual obligation, to maintain the payment of wages and benefits for employees who are unable to perform the work.  No contractual obligation was asserted by the union.  The only reservation I express in that regard will be developed later in the Award.  That reservation, as will be seen, does not relate to the willingness of the Employer to understand and accommodate the difficulties encountered by the grievor.


                I now turn to the specific issues in dispute.  In approaching that aspect of the Award I point out that the facts in this dispute mock the adjudicative process.  The grievor came before me as an employee with a reasonable work history disabled by a work injury.  The injury was sustained in the course of his employment.  In his evidence Dr. Craddock made it clear that while the disability of the grievor had a psychological component, it was real.  In addressing the two-fold basis advanced for the Employer as just cause for the dismissal I draw the obvious inference that the absenteeism of the grievor arose solely as a result of his disability, a disability incurred in the service of the Employer.


                By reason of that disability he cannot earn his livelihood.  His employer had adduced evidence that his disability renders him unfit to work at any job he can perform or can be trained to perform.  At the same time the Workers’ Compensation Board has found his disability is limited to the extent of 2%.  His doctor has said he cannot be further rehabilitated except by protracted and intense physical and psychological therapy, and perhaps not even then.  In the result he is unable to work due to a disability that is largely unrecognized by the social agency established to protect workers from the disabilities they have suffered by reason of their employment.  The mockery of the process is that my jurisdiction is limited to determining whether the grievor, absent of culpability, has demonstrated an ability to attend at work fit to perform any of the jobs available in the bargaining unit or any expectation that he will be able to meet that fundamental criteria for employment at any future date.  The Employer has established that the grievor is presently unable to perform any of the work available to him in the bargaining unit.  I must consider whether it has succeeded in establishing that his incapacity will continue into the future.  The same reasoning applies to the absenteeism.  Non-culpable absenteeism is not cause for dismissal in the absence of the inference that the absenteeism will continue in the future.  In addressing the issue of just cause the onus is imposed upon the employer to establish on a balance of probabilities that the absenteeism of the grievor will continue and that his inability to perform the work is of a continuing nature.  That onus arises in contemplation of the limited job security vested in an employee in a collective bargaining relationship.  That concept of job security was described by the Labour Relations Board of British Columbia in Wm. Scott & Company Ltd. And Canadian Food and allied Workers Union, Local P-162 (1977) 1 CLRBR 1.  On page 3 the Board said as follows:


“As a result, an employee who has served the probation period secures a form of tenure, a legal expectation of continued employment as long as he gives no specific reason for dismissal.  On that foundation, the Collective agreement erects a number of significant benefits: seniority claim job in case of lay-off or promotion; service - based entitlement to extended vacation or sick leave;  accumulated credits in a pension plan funded by the Employer.  The point is that the right to continued employment is normally a much firmer and more valuable.”


                It must be remembered that the evidentiary doctrine of balance of probabilities applies with equal force to a consideration of the proof of just cause as it does with respect to other disputed issues of fact.  The question of whether just cause exists for dismissal is, in its primary thrust, a question of fact.  It has never been disputed that the test of a balance of probabilities is not a single test.  It is a test that responds to a consideration of the consequences of a particular finding of fact and the gravity of the result of that finding.  See Smith vs Smith and Smedman (1952) 2 SCR 312 ° 331.  The reasoning in that was applied in Hanes vs Wawanesa Mutual Insurance Company (1966) SCR 154 ° 162 and those authorities have been applied in a number of arbitration awards. In this case the gravity of the consequences of a finding that the grievor is incapable of performing any work in the bargaining unit is profound.  The immediate result is the loss of his employment bases upon a physical incapacity.  A disclosure of medical disability is a routine requirement in an application for employment and it is no distortion of the available inferences for me to conclude that the likelihood of future employment by the grievor would be substantially reduced if not eradicated by his dismissal in the arbitration.  In the result I conclude that the onus of establishing on a balance of probabilities that the grievor is incapable of performing any of the work of the bargaining unit is a heavy burden on the Employer.


                Having said that, I must acknowledge that the Employer has presented a powerful case.  The history of absenteeism makes it plain that the grievor, from at least August of 1980, was totally disabled.  It is true that he attempted to perform a clerical job for a period of approximately six days in April of 1981 but those efforts were immediately visited  with a return of his disability.  Nor is there any doubt  that the Employer is perfectly entitled to respond to that pattern of attendance with a dismissal.  There is an impressive line of authority that stands for the proposition that an employer can dismiss an employee in the circumstances before me.  In Corporation of the District of Burnaby and Canadian union of Public employees, Local 23 (1976) 2 S.L.A.C. 32 (Larson), the arbitrator said as follows on page 40:


“Having regard to all of the circumstances of this cage, the Board is of the opinion that the grievor.  This is, of course, a hard case and hard cases make bad law.  There is no allegation of culpable absenteeism.  It is admitted that the grievor was absent at all times for genuine illness but that the corporation can have no reasonable expectation that the grievor would be able to return to his normally classified position.  Attendance at work is, of course, the whole reason for the employee’s continuing entitlement to wages and remuneration.  The law is clear.


                The employer cited a number of cases that stand for a like proposition by equally distinguished arbitrators and it seems beyond doubt that an Employer can discharge an employee whose physical capacities prevent him from performing the duties for which he is hired and paid.  Nor can we give credence to the assertion by the grievor that he is fir to perform the warehouseman’s job on any rational assessment of the medical evidence.  A similar situation was confronted by the arbitrator in Canadian Safety Fuse Co. Ltd. And International Union of District 50 (1973) 3 LAC (2d) 77 (Moalli) on page 81 - 82, the arbitrator summarized the situation as follows:


“In our opinion, the statement made by the grievor to the effect that at the time of his discharge he was able and willing to work must be valued in the context of the limitations imposed by his physicians.  It was established to satisfaction of the Board, such being the situation, would it be       reasonable to expect the Employer to maintain on its work force an employee considered to some extent to be an invalid?  …the present arbitration board is of the opinion that unless a collective agreement so specifies, an Employer is not obligated to keep on its employment rolls, persons not                 physically fir to do work which the company is able to provide, nor is the Employer compelled to create specific jobs to fit the capabilities of such persons.”


                A similar approach is taken by arbitrators with respect to absenteeism.  Persistent absenteeism is seen as fundamental breach of the employment contract in that the employer is entitled to expect the employee to attend at work and perform the work for which he receives wages and benefits.  An employee who is afflicted by persistent absenteeism, whatever the reason, is seen as being in breach of his employment contract and is thus subject to dismissal.  In United automobiles Workers, Local 397 and Barber-Ellis of Canada ltd. (1968) 19 LAC 163, the arbitrator summarized on page 176 as follows:


“Even though absence is innocent, in order to maintain industrial efficiency the Employer must have the ultimate power to ensure that employees will attend regularly at work.  Therefore, no matter what the reason for absences, is a particular employee is not capable of reasonable regular attendance into the future, an Employer may discharge the employee or at least, may transfer or demote him to a job where regularity of attendance may be less crucial…  under the circumstances where such Employer conduct is justified, it constitutes a necessary accommodation of the legitimate claims of employees to security of employment with the Employer’s necessary discretion to operate the enterprise efficiently.”


                The decision for an arbitrator in these cases, and it is an agonizing decision, is to determine whether an employee whose absenteeism and failure to perform his work is thrust upon him as a result of injuries sustained in the of that work itself id to lose the security of his employment.  It is difficult to contemplate what is to become of an employee who is unable to qualify for jobs within his training and experience because of a physical incapacity and unable to retrain for jobs within his physical capacity due to attitudinal problems and limited learning skills.  I repeat, it is possible, if not probable, that the work record of the grievor with the Employer will impact adversely on his obtaining other employment unless he is taken in hand by some suitable agency of rehabilitation.


                The issue in cases of absenteeism and inability to perform the work is whether the Employer has established that there is no expectation that the grievor will be recovered to a point where we can assume his role as a responsible and productive employee.  That dilemma was described by Prof. Laskin, as he then was in the Dehaviland Aircraft Case at page 43 as follows:


“I hold that the absences…were not enough to establish substantial discontinuity of attendance at work when considered in the light of the previous record and the way in which the company dealt with the grievor up to and including his suspension.  Hence, in my judgement (and the matter is basically one of judging whether the point of no return has been reached) the grievor’s discharge was unjust and he is entitled to reinstatement without loss of seniority.”


                In my view I confront the same question that Prof. Laskin identified for himself, that is, has the Employer established in this case that the point of no return has been passed by reason of the disability of the grievor.  In the Dehaviland Aircraft Case Prof. Laskin concluded that the Employer had failed to establish that fact and he reinstated the grievor without compensation for his time loss and, in effect, subject to a probationary requirement to establish his ability to attend at work and perform his duties.  Dr. Craddock made it clear in his evidence that, from a purely physiological point of view, the potential for the grievor composed of his low tolerance for pain, his limited intellectual capacities and his unwillingness to accept the reality of the physical limitations imposed on him by his condition. I cannot find, as Prof. Laskin did, that there is any basis in the evidence for me concluding that the grievor has any present ability to perform any of the work of the bargaining unit.  Certainly I do not see in the evidence any basis for the assertion of the Union that the grievor is entitled to claim the job of warehouseman despite its continuing risk to his physical well-being.  In that regard see United Co-operative 10 LAC (2d) 396.  …contemplated in the Wm. Scott case, that is , the right to reclaim his job in the event he recovers from his disability to a point that permits him to resume active employment.  In the Dehaviland case the determination of Prof. Laskin was as follows:


“In my view, the best disposition of this case is to order the grievor’s immediate reinstatement, without compensation, and to put him on notice that should his absences in the next four months, even if for justified causes, multiply, the company would be warranted in dispensing with his services.”


                In a review of the jurisprudence that has been developed in confronting the dilemma presented by the compelling circumstances that arise in such cases, arbitrators have resorted to layoff as an alternative to discharge to retain to the employee a right to reclaim his employment in the event he succeeds in regaining his physical health.  I think that is an appropriate disposition of this dispute.  I find the Employer has established on a balance of probabilities that the grievor will not, in the foreseeable future, succeed in achieving the level of rehabilitation necessary to reclaim some job in the bargaining unit and that his seniority rights should be protected for a reasonable period of time to afford to him that opportunity.  I have some concern about my jurisdiction to dispose of the matter on the basis proposed but I will leave it to some other jurisdiction to dispose of that issue.


                My interpretation of section 98 of the Labour code is that I can I respond within my jurisdiction to the particular circumstances and impose what I consider to be appropriate substitute penalty.  The use of the term penalty is somewhat inapt but I don’t think it narrows the broad jurisdiction contemplated by the legislature in Section 98 (d) of the Labour Code as that jurisdiction is contemplated and defined in the Wm Scott Case.  In the result the grievance is granted and the grievor is ordered reinstated to the status of active employment.  The seniority provisions further provide that an employee can reclaim any position for which he is qualified to perform.  The seniority provisions further provide that an employee can reclaim any position for which he is qualified and for which he has sufficient seniority.  Finally, the provisions set out that an employee who remains laid off for a period in excess of twelve months loses his seniority rights.


                It is my determination that the grievor shall be laid off effective from this date of this Award with a continuing right for 12 months to claim any job within his seniority for which he is qualified in the sense of being able to establish that his disability does not operate as a bas to his ability to perform the work and to attend regularly at work.  In addressing the issue of qualification the Employer is entitled to require the employee to provide proof of rehabilitation from his injury or recovery from it sufficient to attend work regularly and perform any job to which he can lay claim.  It will be open to the Employer to compel the grievor to submit to a medical examination as designated by the Employer and to impose on him a notice similar to the one imposed by Prof. Laskin in the Dehaviland Aircraft Case the period imposed was four months but I see no useful purpose in contemplating a specific time period in the facts before me.  The sole question is whether the present inability of the grievor to perform any of the jobs in the bargaining unit implies a continuing inability, particularly in light of the reservation expressed by Dr. Craddock.  Either the grievor will succeed in achieving a satisfactory level of rehabilitation to permit him to return to work or he will continue to experience his disability.  His disability is two-fold in terms of his employment contract, an inability to perform the work and an inability to attend regularly, even if he is placed in a position where he can nominally perform the duties assigned.  The imposition of a time limit that would fetter the future discretion of the Employer to respond to recurring absenteeism would not be in accord with the circumstances.


                I acknowledge in this disposition of the grievance that the layoff provisions of the Collective Agreement are not employed in any usual sense to respond to medical disability, those problem falling normally within the jurisdiction of the Worker’s Compensation Board and whatever provisions exist with respect to sickness and disability.  Nevertheless, I think that the circumstances warrant and permit such an application, either within the strictures of the Collective Agreement itself or in the exercise of the broad jurisdiction bestowed on me under Section 98 of the Code.  The grievor is an employee who lacks the present ability to perform any of the work available in the bargaining unit and circumstance may or may not arise where he acquires the ability by reason of a change in circumstances.  I repeat my misgivings about whether the disposition of the grievance is within my jurisdiction.  Nevertheless, I hesitate to affirm the dismissal of an employee whose conduct is without fault where the potential exists for him to meet obligations to his Employer.  I am hopeful that the grievor may receive through the Workers’ Compensation Board the intense therapy contemplated by Dr.Craddock.  I agree that the Employer, on the evidence, has exhausted its limited potential to accommodate the condition of the grievor.  If the grievor is to be rehabilitated it must be outside that relationship.  Preservation of the seniority rights of the grievor to accommodate that initiative, if it is to come, imposes no burden on the Employer and is responsive to the true nature of the dispute, that is, a dispute where neither party is at fault.  In the result the grievance is granted on the terms described.


Dated at the City of Prince George, in the Province of British Columbia this 7th day of May, A.D. 1982




                                                                                H. ALLAN HOPE - ARBITRATOR