AD HOC 461

IN the MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(the "Union")

re: DISCHARGE GRIEVANCE OF MICHAEL C. KRUPER

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.

AWARD

This arbitration concerns the discharge of Signal & Communication Mechanic M.C. Kruper for his alleged failure to attend disciplinary investigations. The Dispute and Joint Statement of Issue filed at the hearing read as follows:

DISPUTE:

On December 22, 1997, Signal & Communication Mechanic M.C. Kruper, Pin 158735, was discharged from Company service. According to CN Form 780 the reasons were: 1.) Failure to attend 5 formal investigations, 2.) failure to provide any satisfactory explanation for your failure to attend and, 3.) your continued refusal to communicate with the Company.

JOINT STATEMENT OF ISSUE:

The Union contends that the discipline assessed Mr. Kruper is unwarranted and excessive.

The Company denies the Union’s contentions.

The grievor commenced his employment with the Company in 1982, and held the position of signal and communication maintainer at the Company’s Walker Yard in Edmonton at the time of his discharge. It is common ground that in the fifteen years of his employment, a period which did involve some occasions of layoff, the grievor was never once disciplined. On October 31, 1995 he sustained a work-related compensable back injury. There ensued periods of leaves of absence and active work, generally in modified duties. In June of 1997 Mr. Kruper began a program of pain management at the Canmore Pain Clinic in Canmore, Alberta. Shortly before the end of the program he believed that he had re-injured his back performing one of the therapeutic exercises. He obtained an opinion of a local Canmore doctor to that effect, an opinion which the WCB, the sponsor of the Canmore program, rejected. In the result, Mr. Kruper was directed to leave the program two days before its completion, on August 13, 1997.

Subsequently, the Company conducted an investigation into the reasons for Mr. Kruper not completing the program of the pain clinic. The investigation, held on September 25, 1997 was attended by the grievor. It appears that during that time, however, there was some question as to his employment status. When he sought to return to a sedentary position as Call Desk Operator he and his local Union chairman were advised by Mr. R.W. Hillier, Manager S&C Operations, on September 7, 1996, “Mike Kruper will NOT again be employed by the Walker RTCC in any capacity by S&C unless he is accorded such rights by way of the collective agreement.”

Notwithstanding the above directive, it appears that Mr. Kruper did manage to become assigned by his bargaining unit foreman and Union representative to a desk job in the hump yard office where he apparently worked between September 17 and October 8, 1997. On that date he received the following communication from Mr. Hillier:

The Company had created a special extra position in order to accommodate you while your case was being assessed by the Disability Management Department. As your restriction to perform sedentary duties is of a permanent nature, the Company can no longer continue to accommodate you on a special assignment and there are no positions within the Signals and Communications Department suited to your restrictions.

Therefore, please accept this as notice that effective October 8, 1997 the Company is unable to accommodate you on any position given your current medical restrictions. Please contact Cindy Bobowik in the Disability Management Department …

It appears to be common ground that the grievor did not contact the Disability Management department, which is responsible for conducting job searches for suitable work to accommodate the disabilities of employees. In the result, as of mid-October viewed himself as in a position tantamount to laid off, and sought to obtain a record of employment form from the Company to assist him in getting employment insurance benefits. Regrettably, the ROE form contained an administrative error in the form of a comment which states:

Employment terminated – medically unfit to perform duties.

On the basis of the foregoing, apparently fortified by the opinion of a lawyer he consulted independently, Mr. Kruper concluded that he had been fired. He apparently held to that position notwithstanding a verbal apology by Mr. Hillier, coupled with a letter dated October 27, 1997 which reads as follows:

Ref: Employment status

Dear Mike,

It was with quite a surprise that I recently learned that your employment with CN was terminated. I can assure you, in no uncertain terms, that you have NOT been terminated and that you are in fact an employee on leave with cause.

It is unclear at this time why you were shown in this manner other than it is obviously in error.

I must, personally apologize for this obvious administrative error and would hope that you accept my apology.

We are still in the process of assessing your situation insofar as your current medical restrictions will allow.

Sincerely yours,

(signed) RW Hillier

While it is not clear whether the correspondence overlapped in the mail, the grievor’s Union representative immediately filed a grievance against his termination. In a letter dated November 4, 1997, System General Chairman Josh Senenko wrote to the Company as follows:

Dear Sir:

Consider this as step 3 of the grievance procedure in accordance with the provisions of article 11.8 of agreement 1.1, pertaining to grievance filed on behalf of Mr. M.C. Kruper and his termination of employment from C.N. Rail account medically unfit to perform duties.

The Union contends that Mr Kruper has been unjustly dealt with and his employment should not have been terminated. He should have been accommodated as per Occupational Health Services Report dated September 11/1997, which restricted him to sedentary duties with maximum duration of 8 hour shifts.

The Union maintains that this type of work is available to Mr. Kruper as the Company has accommodated him in this capacity from April 19/97 to October 6/1997.

On October 6, 1997 Mr. Kruper received a letter from R.W. Hillier – Manager S&C Operations, advising him that the Company could no longer accommodate him on a special assignment, as per the agreement dated April 18/97 and further advised him to contact the Disability Management Department.

To date the Disability Management Department has not done anything to assist Mr. Kruper in finding alternate employment for Employment Insurance purposes, through this same form, Mr. Kruper was advised that he was terminated.

The Union requests his immediate reinstatement to his former duties as per Special Arrangement Agreement signed April 18, 1997, with all the appropriate compensations. The Union is also prepared to meet with the Company as soon as possible in an effort to resolve this issue.

While these events were unfolding the Company decided to conduct a supplementary investigation with respect to the grievor’s departure from the Canmore Pain Clinic program. Although a letter dated October 19, 1997 advised him that the investigation was to reconvene on October 28, 1997, Mr. Kruper held to the view that he had been terminated and failed to appear at the investigation, or to communicate with the Company that he would not be in attendance. Attempts by the Company to reconvene the investigation on four further occasions produced the same result. Mr. Kruper failed to attend further investigations scheduled for October 28, November 4, November 14, November 27 and December 9, 1997.

There is no doubt that the Company was clear in its notices to the grievor that he risked discharge should he continue to fail to appear for the supplementary investigation. The final notice sent to him dated December 2, 1997, reads, in part, as follows:

Please be advised that a FINAL supplemental investigation in connection with your unauthorized absence from the Canmore Pain Centre commencing August 13, 1997, along with a FINAL investigation in connection with your failing to attend investigations scheduled for October 29, 1997, November 04, 1997, November 14, 1997, and November 27, 1997 has been scheduled for December 9, 1997 at 09:00 hours. Please report to the office of the undersigned at this time. FAILURE TO ATTEND OR FAILURE TO PROVIDE AN ADEQUATE EXPLANATION FOR NOT ATTENDING THIS FINAL STATEMENT WILL RESULT IN YOUR DISMISSAL FROM CN.

Following Mr. Kruper’s failure to respond to the notice or to appear at the investigation on December 9, he was advised of his discharge by a letter dated December 22, 1997 which reads, in part, as follows:

You have failed to appear for a formal supplementary investigation in connection with your unauthorized absence from the Canmore Medical Pain Centre commencing 13 August 97 and formal investigations in connection with your failing to attend investigations scheduled for 28 October 98, 4 November 97, 14 November 97, 27 November 97 and finally on 9 December 97. Nor have you provided any satisfactory explanation for your failure to attend; and in fact have refused to communicate with the Company in any way.

On 19 November 97, you were advised of the importance of complying with Company directives and attending Company investigations. It was further emphasized that failure to comply with Company directives may result in serious consequences up to dismissal. Therefore, your employment relationship with Canadian National Railways is severed effective 15 December 97. Attached is CN For 780-B issued in this regard.

Upon a review of the material presented, the Arbitrator is satisfied that the Company did have grounds to discipline Mr. Kruper for his failure to attend at the investigations, to provide any notice to the Company as to the reasons for his failure to attend and for failing generally to communicate with his employer. The issue then becomes whether discharge is the appropriate disciplinary sanction in all of the circumstances. While the Arbitrator appreciates the frustration which the Company experienced in the instant case, there are mitigating factors which suggest that this may be an appropriate case for a substitution of penalty. Firstly, while I do not endorse or share the perception of his own circumstances which Mr. Kruper apparently had, I am satisfied that his view that he had been discharged by the Company was honestly held, and that it coloured his subsequent actions, including his failure to cooperate any further in the investigation process. The instant case, and a companion grievance heard on the same date, reveal Mr. Kruper to be an individual with a propensity to develop an idiosyncratic perception of the obligations which run between himself and his employer, aggravated by his inability to recognize when he is beyond his depth in dealing with legalities. These problems are not assisted by the obvious fact that he is not a good communicator, either with his employer or with his Union.

While the Arbitrator can appreciate the frustration experienced by the Company in the circumstances disclosed, there are nevertheless mitigating factors to be considered in weighing the appropriate measure of discipline. Firstly, it is important to recognize that the grievor has been an employee of fifteen years’ service without any prior discipline whatsoever. Additionally, he did incur a compensable chronic injury in the service of the Company for which a duty of accommodation is owed, both under the Canadian Human Rights Act and the collective agreement. While I am satisfied that the Company did not intend to shirk its obligations in that regard, the relatively abrupt messages which Mr. Kruper received from his immediate supervisors could reasonably be construed as relatively final with respect to his future employability in any capacity. While that may not have been intended, it is understandable that the tenor of the messages which he received would have contributed to Mr. Kruper adopting a posture of defensiveness and suspicion.

Additionally, it is important to keep in perspective the subject matter of the abortive supplementary investigation which lead to his discharge. While the matter is not strictly before me, it is difficult to conceive that the failure of the grievor to attend two days of the pain clinic, administered by the Workers’ Compensation Board, would have of itself been justification, on any basis, for the termination of a fifteen year employee whose disciplinary record is exemplary. As well, while the Company stresses that there were five refusals to attend the investigation, they were in fact reiterations of a single refusal, based on the grievor’s admittedly tortured understanding of his own rights and circumstances.

In the result, I am satisfied that this is an appropriate case for a substitution of penalty, although it is not one for an order of compensation. The Arbitrator therefore directs that the grievor be reinstated into his employment, without compensation for wages and benefits lost, and without loss of seniority. As a reinstated employee the grievor shall have full access to such rights as he enjoys in respect of the Company’s duty to reasonably accommodate his disability, to the point of undue hardship, under the terms of the Canadian Human Rights Act, as well as such protections as he may have in a similar regard under the terms of the collective agreement. As a condition of reinstatement, however, Mr. Kruper must accept to undergo any further physical examination or assessment, including any functional ability evaluation or similar test to determine the limits of his physical limitations and the nature of work to which he may be suited. For the purposes of clarity, nothing in this award should be construed as conferring upon the grievor or imposing upon the Company rights and obligations beyond those contained in the Canadian Human Rights Act or the collective agreement. Further, Mr. Kruper should henceforth appreciate the importance of communicating openly with his employer at all times, and of letting his Union be the vehicle to analyse and assert his rights under the collective agreement.

I retain jurisdiction in event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Toronto, January 18, 1999

(signed) MICHEL G. PICHER

ARBITRATOR