AH 549

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:†††††††††††††††††††††††††††††††††††††††† VIA RAIL CANADA INC.

 

 

AND††††††††††††††††††††††††††††††††††††††††††††††††††† NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA

 

 

AND IN THE MATTER OF THE GRIEVANCE OF D. MORGAN

 

 

SOLE ARBITRATOR:††††††††††††††††††††††† J.F.W. Weatherill

 

 

A hearing in this matter was held at Montreal on October 15, 2003.

 

D. Olshewski, for the union.

 

E. Houlihan, for the company.

 

 

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† AWARD

 

The dispute, and the separate ex parte statements in this matter are as follows:

 

Dispute:

 

Concerning the implementation of a settlement agreement signed between the parties on March 10, 2003 regarding the reinstatement of Mr. Durant Morgan.

 

Unionís Ex-Parte Statement of Issue:

 

Mr. Durant Morgan was dismissed from the Corporation for allegedly filing a fraudulent Workers Compensation Claim.† Following an appeal to the WSIB of Ontario, he was exonerated of the charges against him, and the parties agreed in a settlement agreement that any discipline which arose from the incident would be expunged.† The agreement also provided that Mr. Morgan be reinstated without loss of wages and benefits.† To date, the grievor has never been returned to active employment.


 

It is the Unionís position that the Corporation has failed to live up to the agreement dated March 10, 2003.† It is further the Unionís position that the Corporation has discriminated against the grievor contrary to the provisions of the Human Rights Code, Sections 7(a) and (b) and Section 14(1)(c).† The Union further alleges a violation of Article 15 of the Collective Agreement.

 

The Union seeks an order from the Arbitrator that the Corporation is in violation of the aforementioned agreements and statutes.† The Union seeks full restitution for all wages and benefits lost.† The Union further seeks a reinstatement date, and damages for pain and suffering as a result of discrimination and the violation of the Human Rights Code.

 

Corporationís Ex-Parte Statement of Issue:

 

On July 8, 2002, Mr. Durant Morgan was dismissed from the Corporation for allegedly filing a fraudulent Workers Compensation Claim.† Following an appeal to the WSIB of Ontario, he was exonerated of the charges against him and the parties agreed to a settlement agreement that any discipline which arose from the incident be expunged.† The agreement also provided that Mr. Morgan be reinstated without loss of wages and benefits.† To date, the grievor continues to receive WSIB benefits.

 

The Corporation submits that WSIB has established that Mr. Morgan suffers from a permanent disability which prevents him from performing the essential duties of his pre-injury employment.† The Corporation maintains that Mr. Morganís physical restrictions and ability have limited the possibilities for accommodation.† Nonetheless, the Corporation and the Union agreed to review the possibility of accommodating Mr. Morgan on 4 positions: 1) Station Attendant; 2) Communication Operator; 3) Counter Sales Agent; or 4) Telephone Sales Agent.

 

On September 24, 2003, the Corporation received a medical clearance from Mr. Morganís personal doctor advising that he could perform the Station Services Attendant duties.† As the clearance made no reference to physical restrictions established by WSIB, the Corporation chose to have Mr. Morgan examined by its medical provider on October 10, 2003, to clarify the matter.† Mr. Morgan failed to attend the medical appointment.

 

The Corporation submits that Mr. Morgan has not suffered any loss in wages.† In addition, the Corporation has agreed to compensate Mr. Morgan for any medical expenses incurred since his date of termination, July 8, 2002.

 


The Corporation denies any violation of the Collective Agreement and Human Rights Legislation.

 

The material provisions of the settlement agreement signed on March10, 2003 are as follows:

 

The Corporation agrees to expunge any discipline that arose from the above incident.† The Corporation will also reimburse all lost wages and benefits, if any , arising as a result of this incident, and return Mr.Morgan to full employment status, without loss of seniority.

 

In addition, it is understood that the Corporation and the Union will continue to attempt to accommodate his disability in accordance with his medical restrictions.

 

Although it would appear that the grievor was reinstated to employment status pursuant to the agreement, there is some question whether it should be considered ďfullĒ employment status since certain employee benefits, such as an employee drug card, seem not to have been reinstated.† At the hearing, the company indicated it would reimburse the grievor in respect of drug or other appropriate expenses upon his producing the necessary receipts.† That is proper, but does not entirely compensate for the effects of what, from all of the material before me, can only be described as ďfoot-draggingĒ on the companyís part.

 

The grievor was still properly off work on workerís compensation at the time of the settlement, and could not be expected to return to active employment immediately.† It would be expected, however, that prompt efforts would be made to find suitable work for him.† The company was under a duty to accommodate the grievor in this regard.† The limitations on his physical activity do not appear to have been extreme, although he was not able to return to his former job.† The restrictions included avoiding prolonged standing or walking over rough ground, avoiding squatting and avoiding kneeling activities.

 

On April 4, 2003, the union wrote the company indicating dissatisfaction with delay, and making suggestions for positions the grievor might be able to fill:

 


The Union is aware that his restrictions may impede him from performing some of the positions available, but below are some suggestions that the Corporation may want to consider: namely, Station Service Attendant, Crew Van Driver, Communications Operator, Counter Sales Agent or Telephone Sales Agent.† These may involve training but the Union considers any training justifiable under the circumstances.† These are only some of the positions the Union feels should be considered, but there may be more available after further review by both parties.

 

The company appears to have made no substantial reply to this until July 29, 2003, when it wrote, in material part:

 

As you are probably aware, Mr. Morgan has medical restrictions limiting the type of work he is capable of performing.† All of the agreement no 1 positions, at the TMC, such as locomotive attendant, fork lift operator and stores attendant have a large physical components [sic] to their duties.† There is also significant walking outdoors, over rough and semi-rough ground, along with lifting, squatting and bending.

 

If you have suggestions on a potential job respecting his functional abilities, fell [sic] free to share it with us.

 

It will be obvious that this was not at all responsive to the unionís letter, and the only conclusion to be drawn is that no attention was paid to the unionís suggestions, which were, at least for the most part, for jobs which would appear to be compatible with the grievorís physical limitations.† No suggestion had been made with respect to the jobs referred to by the company, and its reply cannot be taken as a serious step toward fulfilling its obligations either under the settlement agreement or under the applicable legislation.

 

On August 27, 2003, the union wrote the company stating that

 

The union is looking to place Mr. Morgan in Toronto Union Station as an SSA, Communications Officer, Ticket agent, TSO agent.


 

Although the company acknowledged receipt of this letter, it made no substantial reply.

 

The union provided the grievor with a job description for the position of Station Service Attendant, and suggested that he attend his own physician and request his opinion whether or not he could, in light of his restrictions, perform that job.† While there is no evidence before me as to whether or not the grievor did in fact provide his physician with these materials, his doctor did, on September 22, 2003, issue the following certificate:

 

This clears Mr. Morgan to accept the job as Station Service Attendant.

 

This certificate was sent to the company.† On September 26, the company wrote the grievor in part as follows:

 

As you are aware, we are presently looking for a position suitable to your medical condition.† In order to determine the most suitable job you would medically qualify [sic], we are requesting you to attend a medical evaluation where the doctor would let us have his opinion of your capacities.

 

Had such a letter been sent shortly after the March 10 agreement it would, I think, have been appropriate.† In the circumstances, however, it was both unresponsive and inappropriate.† The grievor had provided a medical certificate which, particularly in these circumstances, should have been considered as at least prima facie certification of his ability to perform the job in question.† Where the company has reasonable grounds to consider that an employee may not be physically capable of performing his work, then it may be that it would be entitled to require him to undergo a medical examination.† Here, the grievor, like many employees returning to work after an accident, has furnished a medical certificate.† The company has simply ignored it.

 


In a case such as this, the onus is on the company to show that it made every reasonable attempt to accommodate the grievorís disability short of undue hardship.† See CROA case No. 3036.† While the company has repeatedly acknowledged that it would do this, there is no evidence of any serious effort on its part actually to do so, despite repeated urging by the union.† It is my conclusion, on all of the material before me, that the company is in violation not only of the settlement agreement, but also of its obligations under the Human Rights Code.† As the law has established, it is within my jurisdiction to make an award in that respect, and I consider that† such an award should be made in this case.

 

Having regard to all of the foregoing, I award as follows: the grievor is to be reinstated in active employment, in a position of Station Services Agent, forthwith, and compensated for any loss of earnings in that capacity as of October 1, 2003; he is to reimbursed for all drug and medical expenses as heretofore agreed by the company and as damages for the improper discrimination against him which I find to have occurred, paid the amount of five thousand dollars ($5,000.00) forthwith.

 

I remain seized of the matter for the purpose of determining the amount of compensation which may be payable to the grievor if the parties are unable to agree thereon, and to complete the award.

 

 

DATED AT OTTAWA, this 30th day of October, 2003,

 

 

†††††††††††††††††††††††††††††††††††††† †,

Arbitrator.