AH - 180
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN PACIFIC POLICE ASSOCIATION
IN THE MATTER OF THE GRIEVANCE OF R.E. JOWETT
SOLE ARBITRATOR: J.F.W. Weatherill
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Montreal, Quebec, on the 11th day of December, 1981
The only issue of substance to be determined in this matter is, as will be clear, one of interpretation of the provisions of article 10 of the collective agreement.
The Joint Statement of Issue in this matter is as follows:
JOINT STATEMENT OF ISSUE
1. The Association and the Department are parties to valid and subsisting collective agreement, being Collective Agreement No. I.D. 5 entered into on November 9, 1979 and remaining in effect until December 31, 1981 (the “Collective Agreement”)
2. The Grievor’s employment in the Department commenced on May 9, 1977.
3. On March 12, 1981, the Grievor was discharge, the employer claiming it was for medical reasons rendering him unfit for duty.
4. The procedures provided for in Article 10 of the Collective Agreement were not followed by the Department in the instant case.
Given that the Grievor was discharged for medical reasons rendering him unfit for duty, was the Department under duty to apply the provisions of Article 10 of the Collective Agreement in preceding to discharge the Grievor?
1. The Association seeks an award declaring the discharge was invalid and non effective for failure to comply with the provisions of article 10 and directing the employee (grievor) be reinstated with back pay and benefits from March 12, 1981, ordering the Department to proceed forthwith to the holding of a “fair and impartial hearing”, within the meaning of and applying the procedures set out in Article 10, to consider the issue of the Grievor’s fitness for duty.
2. The Department seeks an award dismissing he Grievance
It will be noted that the Joint Statement succinctly sets out the material facts, without elaboration. The grievor’s employment was terminated (he was “discharged”, as the parties have said), “for medical reasons”. There is nothing before me as to the nature of those reasons, and the question of their sufficiency as grounds for termination of employment has not been put in issue. The Association, it may be added, does not admit that the grievor was unfit for duty.
In discharging the grievor for medical reasons, the company did not follow the procedures provided for in article 10 of the collective agreement. That article provided as follows:
10.01 No employee shall be disciplines or discharged until he has had a fair and impartial hearing and his responsibility is established. Except as otherwise provided in Article 10.04 an employee will not be held out of service in excess of ten working days, pending the holding of a hearing. Such hearing shall be held as soon as possible and where suspension is involved, not later than twenty-five working days from the date of suspension unless otherwise mutually agreed.
10.02 An employee shall be given an advance notice of five working days of such hearing and be advised in writing of the time, place and subject matter of such hearing. An employee may have a fellow employee or a member of the Association present to assist him. The employee shall be furnished with a copy of his statement and copies of all evidence taken at the hearing and shall be present during examination of any witness whose testimony may have a bearing on his responsibility. He may offer rebuttal evidence thereto.
10.03 When suspension pending the holding of a hearing is involved, the employee will be given advice in writing within five working days of his suspension as to the reasons for such suspension.
10.04 A decision shall be rendered within fifteen working days from the date of the bearing. Pending the rendering of such decision, the employee will be held out of service only where the circumstances are considered sufficiently serious to warrant such action. The employee will be furnished with a copy of the decision in writing.
10.05 If the employee considers the decision rendered is unjust, an appeal in writing may be made in accordance with the Grievance Procedure. Where demotion in grade or rank, suspension or dismissal is the discipline, the appeal may commence at Step 3 of the Grievance Procedure within fourteen calendar days from the date that he is advised of the decision in writing.
10.06 If, in the final decision, the charges against an employee are not sustained, his record shall be cleared of the charges; if suspended or dismissed, he shall be returned to his former position and reimbursed for wages lost, less any earnings derived from outside employment during the period so compensated; if the investigation was away from home, he shall be reimbursed for reasonable travel expenses upon presenting receipts.
10.07 Any employee appearing before a disciplinary hearing shall be given the option of using the language (English or French) in which he can express himself most fluently.
There was evidence adduced at the hearing of this matter to the effect that there have been two occasions during the lines of the collective bargaining relationship between the parties (some nine years) in which employees were released from employment on medical grounds. In neither case, it would appear, was there a hearing held pursuant to article 10 or its equivalent in the collective agreement then in effect. In one case, no grievance was filled. In the other case, a grievance was filed which was ultimately dismissed (apparently on the merits) at arbitration.
I agree with counsel for the Association that no conclusion can be draw from the incidents as to any “past practice” having any significance for the interpretation of article 10. In my view, article 10 is not ambiguous in the sense in which that term is used in arbitration cases, and extrinsic evidence is not admissible as an aid to its interpretation. In any event the two isolated instances referred to may well be explicable on their particular facts, and do not assist in the interpretation of article 10.
The substantial question in the instant case is whether or not, in any instance of “discharge” of an employee, it is necessary as a condition of the action of “discharge” or termination set out in article 10. If that is a condition of such action, then since the procedure was not followed in this case the termination of employment was a nullity and the grievor must be reinstated in employment with compensation for loss of earnings. If, however, the issue before me is resolved in favour of the company (that is, if it is held there was no duty to apply the provisions of article 10 in the circumstances of this case), then, as it is acknowledged, this grievance must be dismissed.
In my view, where it is considered that an employee has become unfit for duty “for medical reasons” (I do not here deal with any other sort of grounds of “unfitness”), there is no obligation to follow the procedures set out in article 10 of the collective agreement. This is not to say (contrary to what was posited as one of the bases of the Association’s argument), that an employee whose employment is terminated for medical reasons may not file a grievance over that action, or may not proceed to arbitration in that respect. In my view, such action may be questioned in grievance and arbitration proceedings, whether by virtue of this collective agreement or of the Canada Labour Code. Indeed, there are instances of such cases involving this employer and other trade unions in which an arbitrator’s jurisdiction to hear and determine the propriety of termination on particular medical grounds was not questioned, and I think could not successfully have been questioned.
An employee, terminated on medical grounds is not therefore without recourse, and the merits of such termination may be litigated in the grievance and arbitration procedure. The determination by the employer that there are medical reasons justifying the termination of a person’s employment - his “discharge” form employment - is not, in itself a matter of discipline. The provisions of article 10 are simply not apposite to such a case.
It is true that article 10 must be followed in cases where an employee is to be (or may be) “disciplined or discharged”. Those terms have separate meanings, but the meaning and effect of each is to be determined having regard to the context in which it appears. Each is a term of fairly broad connotation capable of being used in more that one sense, both in labour relations matters and elsewhere.
Here, there is no suggestion that the grievor was “disciplined” or subject to discipline. He was indeed “discharged” in that his employment was terminated, but he was not “discharge for cause” (where the cause is some matter which would subject him to disciplinary action). It is in this latter sense, in my view, that the term “discharged” is used in article 10. It does not refer o every instance in which employment may be terminated by the employer.
That such is the sense in which the term “discharged” is used in article 10 is, I think, clear from a reading of the article as a whole. The hearing which is called for is one at which the employee’s “responsibility is established”. Leaving aside bizarre instances of self-mutilation, or vague and indeterminate ones such as smoking, drinking or overeating, a person s not “responsible” in the sense of becoming subject to discipline, for his medical condition. It is not a matter of “charges” of which an employee’s “record shall be cleared” (article 10.06).
The hearing called for by article 10 is described in article 10.07 as “a disciplinary hearing”, and it contemplates that discipline may result: “where demotion…suspension or dismissal is the discipline…” (article 10.05). None of this is necessary or appropriate to the case where (as, apparently, here) the company has concluded that an employee is unfit for service on medical grounds. Such a determination may, as I have said, be put in issue by way of the grievance procedure.
For the foregoing reasons, it is my conclusion on the issue put before me that the employer was not under a duty to apply the provisions of article 10 of the collective agreement in proceeding to discharge the grievor. Accordingly, this grievance must be dismissed.
DATED AT TORONTO, this 21st day of December, 1981.