AD HOC – 232
IN THE MATTER OF AN ARBITRATION
THE BRITISH COLUMBIA RAILWAY COMPANY
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL #6
IN THE MATTER OF THE GRIEVANCE MOHAN SINGH DHESI
SOLE ARBITRATOR: Bryan E. Williams
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held in North Vancouver on February 22, 1981.
This arbitration was held on January 23, 1981 in North Vancouver, B.C. It was agreed at the outset that the arbitrator was properly appointed and had jurisdiction to hear evidence under oath and make a final decision binding on the parties.
The matter in dispute is the fact that the grievor, Mohan Singh Dhesi, was terminated effective June 13, 1980, for an unauthorized absence from duty from March 27, 1980 to June 2, 1980.
The Railway’s position is that the grievor’s absence was unauthorized in that on March 26, 1980 the Railway’s Chief Medical Officer had certified him fit for work and he then no longer had authority to be absent from work. The grievor’s position is that he was not fit for work as a result of injury and illness.
JOINT STATEMENT OF ISSUE:
The issues are as follows:
1. Was the grievor’s employment terminated in accordance with the provisions of the Collective Agreement;
2. Did the Railway, in investigating the grievor’s absence from duty March 27, 1980 to June 2, 1980, breach Article 11.2 of the Collective Agreement.
JOINT STATEMENT OF FACTS:
1. The Grievor, Mohan Singh Dhesi, commenced employment with B.C.R. August 25,.1975. His last day of work was June 23, 1979. He was employed as an extra gang labourer.
2. On June 23, 1979, the Grievor was involved in a car accident while he was off duty.
3. On March 26, 1980, at the request of the Railway, the Grievor was examined by the chief medical officer of the Railway, Dr. Osler and certified to be fit to return to work.
4. The Grievor did not report for work or contact the Company until on or about May 27, 1980.
5. An investigation of this matter was held on June 6, 11, and 12, 1980, and during the course of which the investigating officer refused to produce certain correspondence from the chief medical officer. After the investigation the Grievor’s employment with the Company was terminated.
6. At the aforementioned investigation, the Grievor took the position that he had been under the care of Drs. Simon Ngui, Fahrni and Yu, and that he had not been certified to be fit-to return to work by these doctors.
7. All steps in the Grievance Procedure have been complied with.
The Company’s position was that the grievor was requested to be examined by the Chief Medical Officer of the Railway and that the grievor was certified to return to work by the Chief Medical Officer On March 26, 1980. The grievor did not report or contact the Company until May 27, 1980. This failure to report was considered to be an A.W.O.L. and the grievor was terminated in accordance with Article 9.10 of the Collective Agreement. The grievor was not terminated until an investigation was completed in accordance with Article 11.2 of the Collective Agreement.
The Union’s position was that the decision as to whether or not an employee is fit for work does not rest solely with the Chief Medical Officer of the Company. An employee is entitled to disregard the findings of the Company’s medical officer when he is specifically advised by his doctor to refrain from carrying on work. It was submitted that where there is a conflict in the opinion of two or more physicians, a more thorough and far reaching investigation should take place. In order to do so, all of the notes and reports of the Company’s medical officer should be produced so as to enable the grievor to have an opportunity to rebut this opinion.
Throughout the hearing it became evident from the testimony of witnesses and submission of material that there is no clear cut policy or procedure for returning to work after an injury or illness. Neither is there a reference in the Collective Agreement.
There was a great deal of conflicting evidence from several doctors as to when the grievor was fit to return to work. The grievor himself testified that he was still experiencing pain in his left shoulder.
The investigation conducted in accordance with Article 11.1 of the Collective Agreement (Exhibit 15) makes much reference to the Chief Medical Officer’s report. Yet this report was not produced at that investigation in spite of the objections of both the grievor and his representative, Mr. W. Carkner.
Article 9.10 of the Collective Agreement states:
9.10 Notwithstanding the provisions of Section 11.1 of Article 11 and except as may be mutually agreed between the appropriate officers of the Railway and the Union, an employee absent from duty without written authority for a period in excess of five (5) working days shall be considered as having left the services of the Railway of his own accord and Railway shall be under no further obligation to such employee.
Taking the words, " ... and except as may be mutually agreed between the appropriate officers of the Railway and the Union", there was no mutual agreement that the grievor was absent from duty without written authority. Therefore, the grievor was not terminated in accordance with the provisions of the Collective Agreement.
Article 11.2 of the Collective Agreement states:
11.2 When an investigation is to be held, the employee will be notified of the time, place, and subject matter of such hearing. He may, if he so desires, have a fellow employee and/or an accredited representative of the Union present at the hearing and shall be furnished with a copy of his own statement, and, on request, copies of all evidence taken."
The grievor and his representative were not furnished with the evidence which the Company relied-on to conduct the hearing, namely the Chief Medical Officer’s report. Therefore, there was a breach of Article 11.2 of the Collective Agreement.
Because of the contradictory medical evidence, the frail appearance of the grievor and his own testimony that he is still suffering pain in his left shoulder, I am not satisfied that the grievor, since his accident, is or was ever ready or fit to report for work as a general labourer.
It is my finding that the grievor should be reinstated within 9 seven (7) days after he is found to be medically fit to report for work by a medical doctor agreeable to both parties.
DATED AT Langley, B.C. this 22nd day of February 1981.
(signed) BRYAN E. WILLIAMS