AD HOC 460
IN the MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
GRIEVANCE OF MICHAEL C. KRUPER –
CLAIM FOR COMPENSATION FOR BEING HELD OUT OF SERVICE
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
D. J. Wray – Counsel
John E. Platt – International Representative
Luc Couture – System General Chairman
K. Kearns – System General Chairman
M. C. Kruper – Grievor
Appearing For The Company:
Ken Peel – Legal Counsel
Kristin R. Taylor – Legal Counsel
Fran Metcalfe – EFO Labour Relations Officer
Alan E. Heft – Manager, Labour Relations
A hearing in this matter was held in Toronto on January 8, 1999.
The facts in relation to this grievance are not in dispute. The Dispute and Joint Statement of Issue filed at the hearing read as follows:
Claim by Signal & communication Mechanic M.C. Kruper, PIN 158735, for 80 hours’ compensation for being held out of service pending a drug evaluation test, March 17 – 28, 1997.
JOINT STATEMENT OF ISSUE:
The Union contends that Mr. Kruper should receive the compensation claimed, as he was conforming with the Company’s Drug & Alcohol Policy.
The Company denies the Union’s contentions.
The grievor, Mr. Michael C. Kruper, worked for the Company as a Signal & Communication Mechanic, having been first hired in July of 1982. In late October of 1995 Mr. Kruper suffered a low-back injury. His employment thereafter was somewhat sporadic, with leaves of absence for illness and a period of layoff interrupted by brief periods of employment. Following a return to work on January 16, 1997, after approximately a month, Mr. Kruper was reassigned to the call desk at Walker Yard for modified duties. Shortly thereafter he was directed by the Company to attend a scheduled work restriction review and assessment with its contracted medical service, Medcan on March 13, 1997. It appears that during that examination he was advised by the physician that his use of Tylenol 4, a medication containing a substantial dose of codeine, might be in violation of the Company’s new drug and alcohol policy, given that he was in a safety sensitive position. The physician, Dr. Marion Donald, relates in a written report that she asked the grievor to submit to a drug screening test, to which he agreed. Dr. Donald then cleared the grievor to return to the workplace for “sedentary work only”. It appears that Dr. Donald also advised the grievor to consult with his family physician with respect to his use of Tylenol 4, and the possibility of any dependency in that regard.
When Mr. Kruper returned to work, while the results of the drug screening test were still pending, there resulted a bizarre exchange between himself and his supervisor, Mr. Andy Kich, which ultimately lead to the circumstances giving rise to this grievance. It appears that Mr. Kruper, accompanied by his local union representative, approached Mr. Kich and, in Mr. Kruper’s own words, told his supervisor that he was unable to comply with the Company drug policy, and requested “intervention, treatment and rehabilitation.” It appears that Mr. Kich referred the grievor to the EFAP, and advised him to apply for Sun Life benefits. However, Mr. Kich did not view the grievor as being in violation of Company drug policy, in part because of the clearance to return to work which he had received from Dr. Donald. It appears that Mr. Kich then held a telephone conversation with a Medcan representative, also involving the grievor and his Union representative, to clarify the situation. The Medcan representative then indicated that the grievor should remain off work until the results of the drug screening test were known. On that basis Mr. Kruper was relieved of his duties, and returned home for a period of some two weeks.
In the interim, on March 21, 1997 the grievor’s personal physician, Dr. S. Chiu confirmed to the Company that he did not believe that the grievor suffered a Tylenol 4 dependency problem. Mr. Kruper was also re-examined on March 27, 1997 by Dr. Donald when he was again confirmed fit to work. It also appears that the results of the drug screening test posed no problem to his return to work, which occurred after March 28, 1997.
The instant grievance arises from the grievor’s claim for compensation for the period of two weeks for which he was out of service. The Company’s characterization is that the grievor voluntarily took himself out of service without a reasonable basis to do so, and that in the circumstances he is not entitled to compensation. The Union argues that the grievor did not in fact remove himself from work, but simply complied with the directive of his supervisor, the basis of which was not sustained by subsequent medical opinion to the effect that he did not have a Tylenol 4 dependency.
For the purposes of this grievance neither party takes issue with the validity of that portion of the Company’s Policy to Prevent Workplace Alcohol and Drug Problems which concerns the use of medication and reads, in part, as follows:
All employees holding a risk-sensitive or specified management position, and employees in control of a CN vehicle or equipment, are expected to investigate whether the medication will affect safe operations and report any concerns to CN’s designated medical provider (Medcan). A Medcan physician will assess the situation to determine whether the employee can safely perform regular duties. Where it is determined that continued use of the medication will affect the individual’s ability to operate safely, employees are required to adhere to any recommendations including modified work if required and available in order to eliminate safety risks.
It does not appear disputed that Tylenol 4 is specifically listed within the policy as a drug in relation to whose use employees should exercise caution, and consult with their physician as to whether they can continue to work in a safety sensitive position while using the drug.
Upon a review of the facts and submissions, the Arbitrator finds it difficult to sustain the position advanced by the Union. As is evident from the material before me, it is clear that the grievor disclosed his use of Tylenol 4 to a Medcan physician, Dr. Donald, who thereafter expressly judged him fit to return to sedentary duties. Without entering into an inquiry as to whether the sedentary duties assigned to him could conceivably be viewed as safety-sensitive, it appears to the Arbitrator that the grievor’s own precipitous characterization of his circumstances to his supervisor triggered the events which led to his being sent home for the period of two weeks. It should be stressed that the Company’s supervisor expressly disagreed with Mr. Kruper’s assertion that he was in violation of the Company’s drug policy. In the end, it is the grievor’s own insistence, in an over-legalistic way, that he needed rehabilitation which in all likelihood prompted the Medcan representative to direct that he be removed from service. His assertion in that regard, which I judge to have been clearly premature, effectively compelled the Company’s medical service provider to recommend that he be taken out of service, and his own supervisor to follow that directive until such time as his status was ultimately clarified.
In the result, in my view, this is not a situation in which the Company can be said to have improperly directed the grievor to remove himself from service. Nor is it one which would justify a reasonable conclusion that Mr. Kruper should be entitled to compensation for the time he was held out of work by reason of his own unjustified, and in my view unreasonable, claim to a need for “intervention, treatment and rehabilitation.” While there may be circumstances in which an employee is uncertain as to his or her medical status, an can legitimately claim sick leave or some other form of compensation for a period of diagnosis, that is not what transpired in the instant case. In my view, in light of Dr. Donald’s directive returning him to work, the grievor had no reasonable basis to assert that he was in violation of the Company’s policy, much less to request a referral for treatment. He then knew, or reasonably should have known in light of his discussions with Dr. Donald, that he was medically fit to perform the sedentary duties assigned to him, subject only to such further information as might emerge from the pending results of the drug screening test and the opinion of is personal physician.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto, January 18, 1999
(signed) MICHEL G. PICHER