AH - 167
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN PACIFIC POLICE ASSOCIATION
IN THE MATTER OF THE GRIEVANCE OF CONSTABLE F.F. MACDOUGALL
SOLE ARBITATOR: Professor F. Bairstow
There appeared on behalf of the Company:
M. Bistrisky -Assistant General Solicitor, Headquarters
Dr. W. May -Chief, Medical Services, Headquarters
J. Machan -Superintendent, Investigation Department, Montreal
J. Maguire -Manager, Labour Relations, Montreal
D. Brazier -Labour Relations Officer, Montreal
And on behalf of the Union:
F. James -President
W. Rinder -Vice President
James Conway -Representative, Security Guard Association, Montreal
M. Doucette -Secretary
F.G. MacDougall -Constable
A hearing in this matter was held at Montreal, Quebec, on the 25th day of February, 1974.
Mr. Frank MacDougall, of Toronto, age 46, commenced service with the CPR on April 20, 1958. He was transferred to the Department of Investigation as a Constable on January 4, 1965.
In October of 1972, Mr. MacDougall was operated on in Toronto, Ontario, by Doctor James A. Keys of the Toronto General Hospital for coronary artery disease. Following this operation, Mr. MacDougall was told that he could return to work and carry out his normal activities.
On December 21, 1972, being given clearance by his personal Doctor to return to work, Mr. MacDougall then underwent a physical examination given by Doctor H.H Varty of Toronto, Medical Officer for C.P. Ltd., Ontario area. Doctor Varty declared Mr. MacDougall fit to resume regular duties.
On December 22, 1972, he was assigned duties in the Police Office at Toronto. He remained until May 31, 1973, following which he was assigned to regular Patrol duties. He remained until May 31, 1973, following which he was assigned to regular Patrol duties. He remained at work in this capacity until he was released by the Company on October 31, 1973. No time was lost at work due to his former ailment.
On July 17, 1973, Mr. MacDougall reached the age of 46 and under Company regulations was required to have compulsory physical examination. Dr. G. Sharkey of Toronto, the Company Medical Officer, after examination, gave Mr. MacDougall a Medical Form which indicate that it would be all right for him to return to work.
It is at this point that the two versions of what took place next differ. Mr. MacDougall’s version or understanding of the physical examination was that there were no restrictions on the type of duties he could undertake. According to the Employer, on the Medical Form filled out by Dr. Sharkey, in answer to the question “No. 17. Is this person fit to be employed as or continue in his present position?”, Dr. Sharkey answered “Yes - light work”.
However, Mr. MacDougall was not given to understand that there were restrictions on his working activities whereas the Company was given this form with the full information on it. Dr. William L. May, Chief of Medical Services of the Company, located at headquarters in Montreal, received and approved the above form on July 20, 1973. On July 23, Dr. May wrote a letter to Superintendent McGowan of Toronto 9Mr. MacDougall’s supervisor) stating that Mr. MacDougall should be transferred to alternative employment.
From that period onwards, Mr. MacDougall continued duties as assigned until his subsequent release on October 31, 1973. His services were terminated at the end of October for medical reasons. Since that date he has been on sick pay. This pay continues pending the Award of the Arbitrator in the instant case.
The instant Arbitration arose out of the medical discharge action. It is the Union’s position that Mr. MacDougall is medically fit to perform the duties of a constable and should be returned to his former position.
The Company’s position is that, on medical grounds, Mr. MacDougall is unable to continue as constable in the Department of Investigation.
The Company has indicated that it would make serious attempts to find another job for constable MacDougall within the Company, although no position would be available within the same Department or bargaining unit. Mr. MacDougall stated unequivocally that he would not consider any other employment in the Company which would be outside of his normal bargaining unit because according to union rule re bargaining unit seniority list of another union.
In his view, not only would he be likely to be among the first laid off in the eventuality of curtailment of services, but he would probably earn about $3000 a year less than his current earnings. If he lost his job as a constable, he would prefer to take his medical discharge (carrying a permanent allotment of approximately $204 a month) and try to get a position in another company.
In the course of the Arbitration Hearing, it was learned that medical opinion is not unanimous in the case of Constable MacDougall. An important distinction was made between opinions as to the success of the surgical operation which was performed on him (all agreed the operation was a success) and between medical opinion as to his future prospects.
Position of the Employer
It is the employer’s position that Constable MacDougall is not fully aware of the seriousness of his medical situation. According to the Company’s spokesman in testimony given in he course of the Hearing before the Arbitrator, Mr. MacDougall is not fully aware of the dangers involved in pursuing a rigorous occupation such as that of Constable. Although it can be said that the heart by-pass operation was a success as a surgical achievement, it does not necessarily insure that Mr. MacDougall is guaranteed good health and the ability to continue in his job without peril. The operation relieved the angina condition but basically does not ensure that he will necessarily be fit in the future.
The Company, in support of its position, explained that the job of Constable is a rigorous one. It requires being exposed to extremes of climate, snow, cold, sleet, rain and summer heat. It may, on occasion, necessitate running after individuals engaged in criminal conduct or youths involved in mischief. It can demand that a constable be alert and ready to jump into a staff car at a moment’s notice and make a dash across town to other Company-owned properties to apprehend thieves.
The job requires the carrying of a gun and being able to use it and, in fact, such constables employed in Toronto, are sworn in as Special Constables by the Ontario Provincial Police. Their special duties are also covered under the Railway Act of Canada, Section 400, 401, and 402 as well as the Criminal Code of Canada, Section 2, Subsections 30 and 435.
The Company’s spokesman at the Hearing stressed the Company’s responsibility to the public interest and in performance of its public trust requires that its employees be physically fit to carry out their duties. Under stress in an emergency or necessity for speed, the physical condition of constable MacDougall could deteriorate dramatically to the extent of preventing him from carrying out his duties. It might even cause him to stumble or fall while running, causing his gun to discharge accidentally.
The Company maintained that it has the right and the responsibility to determine the degrees of physical fitness related to specific jobs. Regular medical exams for the company’s employees begin at age 40 and are given every three years. The physical fitness exam establishes the capacity for an employee to remain capable to do the job required within the bounds of normal expectations.
Position of the Union
Union maintains that MacDougall is entitled to restoration of his job as
Constable, since he has demonstrated his ability in over 15 years of service.
Even after the operation in 1972, when he was returned to constabulary duty, he
performed well, never missing a day of work and under conditions of extreme
stress such as a strike in the Company.
MEDICAL TESTIMONY - cited
On behalf of the union:
Dr. Fred Teixeira, Toronto, Constable MacDougall’s physician, in letter written to Dr. May, Chief Medical Officer of the CPR, August 3, 1973: Excerpts:
“Surgically, it is perhaps doubtful how successful the operation was. However, from the standpoint of the patient it was very successful - his angina disappeared completely and he was able to return to his normal work and resume most of his previous activities…
“I believe that he is probably a lightly higher risks (as a result of his cardiovascular disease) of having serious cardiac difficulties than I would have assessed prior to the onset of his coronary problems…
“In Summary, I believe Mr. MacDougall has had significant atherosclerosis, appears to be recovering quite well, and probably can perform his usual job with the same efficiency and very little hazard - as he did prior to having any symptoms of coronary insufficiency…
“P.S. I have spoken to Dr. Froggatt (Cardiologist at Sunnybrook Hospital) who agrees that Mr. MacDougall is capable of handling his job efficiently and who is willing to forward a letter to that effect if necessary”.
Dr. James A. Key, Toronto General Hospital, statement, December 10, 1973:
“This is to certify that Mr. Francis MacDougall has undergone heart surgery for coronary artery disease. I consider his operation (now 14 months ago) successful as the patient has little or no angina now (one nitroglycerine in about two months). He feels well with no sign of cardiac failure.
“I consider Mr. MacDougall as being in the same condition now as a patient who had an attack of coronary thrombosis and recovered without surgery. In some ways Mr. MacDougall may even be more fortunate as he has now a better blood supply to his heart than he had following his heart attack and prior to his surgery.”
MEDICAL TESTIMONY - cited
On behalf of the company:
Dr. James A. Key, (note above reference)
December 15, 1972 - letter to CP Medical Officer-in Charge
“it is now two and a half months since he has had a double aorta-coronary by-pass…
“I think he is quite fit to return to indoor duties as of January 2, 1973”.
August 16, 1973 - letter to Dr. May:
“This patient (MacDougall) has asked me to write to you regarding his present problem and the fact that his employment may be terminated in view of his cardiac problems…
“His progress since (the operation) has been one of gradual improvement, his angina is greatly improved and I understand that he has been doing his regular routine work without difficulty for some time now…
“I can understand the Company being unhappy to employ a security guard who has cardiac problems in view of the emotional or physical stresses which might be demanded of him in the course of his duties but, on the other hand, I think he has been much improved with surgery and is, in fact, in a mush improved with surgery and is, in fact, in a much safer situation than he was prior to operation…
“If your Company and you, in your wisdom, feel that he is not a suitable risk then I certainly would make a very strong plea that some other type of less demanding work try to be found for him”.
It was decided upon agreement by the two parties to forego the personal appearance of Dr. James Key of Toronto before the Arbitration Board for the purpose of giving verbal testimony. Both parties agreed in writing to rest their case on correspondence and written statements read into the formal record of this case.
The formal waivers signed by both parties are part of the Record.
Dr. G.M. Forggatt, Toronto Cardiologist, MacDougall’s physician:
October 1, 1973 - letter to Dr. Teixeira
“As you know, this patient of ours is having difficulty because of the Company policy, in returning to his regular duties as a constable with Canadian Pacific…
“Unfortunately, one cannot argue with Dr. May’s position, as no matter how successful was the surgery, or how good his postoperative status is, he still has underlying coronary artery disease. This therefore, does increase the risks of an untoward event occurring in the line of a constable’s duty)…
“and I presume that even if Mr. MacDougall signed an affidavit to the effect that he would not hold the Company responsible, there would be other medico-legal stumbling blocks to make it difficulty to re-employ him in his former capacity…
“The main difficulty as I see it, and which has been discussed by cardiovascular surgeons here when philosophizing about cardiac surgery is the up-dating of social ethics to modern medical and surgical advancement. Recently it has been much easier for people with congenital heart disease and valvular disease who have had heart surgery to become re-employed and lead completely normal existences. However, if one is conservative, one has to admit that, although arotacoronary bypass surgery is a spectacular advance, long-term prognosis is unknown, and it is purely a palliative procedure. It does not alter the underlying disease entity”
(This letter was not seen by MacDougall prior to the Arbitration Hearing).
Dr. William L. May, Chief, Medical Services, CPR, Montreal
Verbal testimony given at Arbitration Hearing, February
Dr. May submitted in evidence on behalf of the Company, a Medical examination form, dated July 20, 1973 (C-2). The form was signed by Dr. Sharkey and Dr. H.H. Varty of Toronto.
In addition to attesting to previous medical history including the operation and following disappearance of the angina. Dr. Sharkey stated on the form (see above p.3) that Constable MacDougall was fit to be employed but with proviso - “Yes, light work”.
(This section of the form was not seen by MacDougall)
Dr. May in oral testimony stated that such heart by-pass operations as the one Constable MacDougall had were relatively new in medical experience. They have been carried out for only five years, so not a great deal is known as yet about the after effects.
It is Dr. May’s view that in spite of the operations, Mr. MacDougall has significant underlying cardio-vascular disease and that there is a predisposition to further difficulties from this condition. He further maintained that if he were involved in extremes of exertion, exposure or inclement weather, etc. and he were to develop a recurrence of his symptoms, the Company would be held responsible. Also, in such an event, MacDougall might be unable to complete the job at hand. It is his recommendation that alternative work be found for Mr. MacDougall.
In addition to written and verbal testimony cited above the Company produced an expert at the Arbitration Hearing in the person of Dr. Tom Reid Hale, Cardiologist-in-chief of the Reddy Memorial Hospital, Montreal, Associate Physician in Cardiology, Montreal General Hospital, Assistant Professor of Medicine, McGill University and Associate Medical Director, Sun Life Assurance Company of Canada.
Dr. Hale testified that the operation MacDougall underwent is a palliative procedure for the purpose of relieving pain (angina). He stated that there was no evidence that he was aware of that the operation prolongs life, nor does it prevent the natural progression of the disease. If there is any evidence, it is to the contrary, in fact, performing this kind of operation is a controversial matter among physicians.
He added that no insurance company will take a case such as this. He also stated that Mr. MacDougall has had an excellent result from his operation and in his opinion, it would be unwise to subject him to a stressful situation or strenuous activity.
If answer to the Union’s contention that Dr. Hale was giving his opinion without personally examining MacDougall, Dr. Hale replied that it was unnecessary. Dr. Hale’s assessment was based on the future possibilities. This would not show up in an x-ray.
Under stress, the blood pressure might rise, the blood would pump faster and Mr. MacDougall’s condition could deteriorate suddenly.
In summary then, basing its case on the medical opinion of its own physician, expert medical testimony and the interpretation of medical report of MacDougall’s physicians in Toronto, the Company is not willing to re-employ MacDougall as a Constable.
The Employer insists on his right to determine the physical requirements for employees in any position.
Stressing the fact that MacDougall has been a good and conscientious employee, the employer indicated that it is prepared to try to find alternative, less arduous employment within the Company, although not at the same rate of pay as he presently enjoys.
In support of its position, the Union submitted in evidence, citations of cases recently decided in the U.S.:
Owens Corning Fiberglass Corp. and Sheet Metal Workers, Local 183, 73-2 ARB #8834 and
Menasco Manufacturing Company and Machinists, Local Lodge 758, 73-2 ARB # 8387
The Arbitrators in the above cases restored the grievors to their positions on the basis of clearances of grievor’s personal physicians in contrast to the advice of the Company doctors. Both cases involved back injuries.
The Employer submitted many cases of arbitral precedents which supported its position. It must be stated that many of these decisions were based on different medical circumstances, e.g., epilepsy and back injuries.
Regardless of the medical circumstances, arbitral precedents studied by this Arbitrator abound with argument between employers and unions as to whether the employer has the right to establish unilaterally reasonable qualifications for persons in their employ. So far, in Canada, the preponderance of arbitral judgments have reaffirmed the prerogative of employers to establish qualifications if the right is not exercised in a capricious, arbitrary or discriminatory way.
In an arbitration between the Motor Transport Industrial Relations Bureau of Ontario (Husband Transport) and the Teamsters Union, Local 141, June 1, 1973, the grievor suffered a myocardial infarction. Therefore, because of the danger to the applicant, the Company and the public, all persons having suffered such an attack are barred from highway driving. Professor Palmer ruled that the Company has the right to establish such a general physical qualification for employment.
In the Husband Transport case referred to above, thirteen Canadian arbitral decisions and four United States decisions were cited in support of the employer’s position. The Canadian precedents included:
United Automobile Workers & American Standard Products (Can.) Ltd. (1959), 9 LAC 283, Judge E. W. Cross states:
“The Company, it seems to me, has a right and a duty to make certain that its employees are fit for work and this right is in no way encumbered by any provisions in the collective agreement”.
In an unreported case of Judge Lang, The UAW and Canadian Sirocco Co. Ltd., Judge Lang said:
“The Company has the right, at any time, to require a physical or mental examination of any of its employees by the company appointed doctor if the company has reason to believe that such employee, because of physical or mental illness is a source of danger to himself, to his fellow employees, or to company property or is unfit to perform his duties”.
In a 1960 case, United Electrical, Radio & Machine Workers of America and Canadian Westinghouse Ltd., Judge W.S. Lane stated:
“There is no doubt that there is a grave responsibility upon the management to protect the individual worker himself, from himself, as well as to protect the workers in general from any industrial accident and from any unnecessary injury”.
In a 1962 case, the Arbitration Board Chairman, D.W. Reville ruling in Oil, Chemical & Atomic Workers International Union and Fiberglass Canada Ltd., said
“Clearly one of the qualifications which management is entitled to assess in any employee is his physical and mental fitness to do the job in question”.
In pursuance of arbitral reasoning, this Arbitrator found in UAW, Local 399 and Anadconda America brass Ltd. (1966) 17 LAC 289 that Professor H. Arthurs stated:
“…I would hold that in the case of bona fide doubt by the Company’s doctor that the grievor is able to do available work the doctor’s opinion shall prevail unless the union can discharge the onus of showing either that it is in error, or that it is not a bona fide opinion”.
The Arbitrator finds the reasoning of Dean Arthurs compelling, since it goes to the heart of the problem of this case. The question in the end comes down to whether management has acted fairly - or in the absence of a specific clause in the agreement relating to this situation, the action of the employer deprives the grievor of natural justice.
The Union has not demonstrated that the Employer has discriminated against or treated Constable MacDougall in an arbitrary or capricious manner. The Employer, basing its action on the best medical advice available to it, has decided that the continued employment of Constable MacDougall constitutes a risk both to himself and puts the Company’s interest in jeopardy.
The Arbitrator, therefore, finds reasonable cause to dismiss the grievance and sees no alternative but to support the decision of the Company in giving Constable MacDougall a medical discharge. The Arbitrator strongly urges the employer, in line with the medical advice of Dr. Key and Dr. May, to make every effort to provide alternative suitable employment to Constable MacDougall within the Company. In the event of the refusal of Constable MacDougall to accept alternative employment offered, he should be given his medical discharge with full rights of financial allowance as provided in the Medical Discharge Plan. This decision is to be put into effect as of March 25, 1974.
Arbitrator, F. Bairstow
March 19, 1974