Heard at Montreal, Tuesday, 11 May 1993

concerning

and

The Corporation is denying Mr. John Mills access to employment under Agreement No. 2, which is considered unjust, discriminatory and contrary to Article 24 of Agreement No. 2 and the Canadian Human Rights Act.

On or about August 12, 1992, the Union filed a grievance on behalf of Mr. Mills alleging that the Corporation was denying him access to employment under Agreement No. 2.

The Union contends that Mr. Mills attended a medical appointment with a specialist of VIA Rail’s choice, and the Corporation has medical evidence which supports Mr. Mills’ being capable of returning to work.

The Union contends that the Corporation has a duty to accommodate Mr. Mills in accordance with the Canadian Human Rights Act.

The Union contends that the action of the Corporation in denying Mr. Mills the opportunity to return to work is unjust, discriminatory and contrary to Collective Agreement No. 2 and the Canadian Human Rights Act.

The Union requests that Mr. Mills be permitted to return to work and that he be compensated for all lost wages and benefits, including interest. Furthermore, VIA Rail is duty-bound to accommodate Mr. Mills in alternate employment, including return to Employment Security status, if he is deemed unfit to go back to his regular occupation.

The Corporation denied the grievance at all steps of the grievance procedure.

There appeared on behalf of the Corporation:

D. S. Fisher – Senior Negotiator & Advisor, Labour Relations, Montreal

J. R. Kish – Senior Advisor, Labour Relations, Montreal

C. Rouleau – Senior Officer, Labour Relations, Montreal

C. Thomas – Senior Officer, Human Resources, Montreal

And on behalf of the Brotherhood:

T. Barron – Representative, Moncton

G. Gallant – Representative, Moncton

It is not disputed that the grievance rests, in part, on the Brotherhood’s assertion that the grievor was "unjustly dealt with" in alleged violation of article 24.21 of the collective agreement. While at the arbitration hearing the Brotherhood’s representative sought to characterize the matter as one of discipline, that is not reflected in the grievance documentation. The event giving rise to the dispute is the Corporation’s determination that the grievor is unfit to work for reasons of physical or medical incapacity. However, the Brotherhood did not allege that the grievor was suspended without just cause or that he was constructively discharged. In my view, to permit the Brotherhood to now characterize the case as a matter of discipline would involve a departure from the ex parte statement of issue filed by the Brotherhood. Under the rules establishing this Office, and in particular paragraph 12 of the Memorandum, the Arbitrator’s jurisdiction is limited to those matters raised in the statement of issue. That document makes no mention of discipline. It asserts that the treatment of the grievor was "unjust, discriminatory and contrary to Article 24" of the collective agreement. Paragraph 12 of the Memorandum establishing the Office provides as follows:

The Arbitrator therefore concludes that the grievance cannot be considered on any other basis save the grounds articulated in the statement of issue. (See CROA 1163, 1205, 1430, 1440, 1622, 1630, & 1960.)

The first issue to be resolved is whether the alleged violation of article 24.21 is arbitrable. Article 24.21 of the collective agreement provides, in part, as follows:

Article 25.2 speaks specifically to the issues which are unresolved after the exhaustion of the steps of the grievance procedure and which may be referred to the Canadian Railway Office of Arbitration for final determination. It provides as follows:

In the case at hand the Brotherhood maintains that article 24.21 has been violated. In that regard, it submits that the grievor has been "unjustly dealt with" within the meaning of article 24.21.

The Corporation does not deny that the Brotherhood was entitled to assert that the grievor was unjustly dealt with. It submits, however, that the process available in respect of that claim is limited to possible settlement following discussion of the employee’s complaint under the grievance procedure, and does not extend to a submission to arbitration for final and binding adjudication.

In a number of cases boards of arbitration have been called upon to consider the scope of procedural redress available under a collective agreement to an employee who alleges no violation of a specific right, benefit or obligation under a collective agreement, but asserts that he or she has been "unjustly dealt with" in some respect not specifically covered by any provision of the collective agreement.

The article 24.21 issue raised in the instant case is similar to that considered by the board of arbitration in CN Telecommunications CN Telecommunications-Telegraph Workers Local 43 (1975) 11 L.A.C. (2d) 152 (Rayner). In that case, as in the case at hand, an employee was entitled to file a grievance if he or she felt "unjustly dealt with" even though no provision of the collective agreement was violated. The board of arbitration concluded that such a complaint was not arbitrable. Professor Rayner commented, in part, as follows:

The same reasoning has been applied consistently over the years to the collective agreement between the Corporation and the Brotherhood by arbitrators in this Office. In CROA 924 Arbitrator Weatherill dealt with a claim by the Brotherhood, made against the Corporation, that an employee had been unjustly dealt with where the failure to provide a locker had allegedly resulted in the loss of her personal property. There was no obligation on the employer to provide lockers under the terms of the collective agreement. Arbitrator Weatherill found the grievance to be inarbitrable, and commented as follows:

In subsequent cases, including CROA 2157 and 2235, which also involved the Corporation and the Brotherhood, the reasoning in CROA 924 was followed, and it was concluded that grievances founded on the bare allegation that an employee was "unjustly dealt with" can be processed through the grievance procedure, but cannot be taken to arbitration. Significantly, notwithstanding the settled interpretation of articles 21 and 25 of their collective agreement issuing from this Office, the parties have made no material change to the language of those provisions in subsequent renegotiations of the collective agreement. They must, therefore, be taken to have accepted that interpretation as part of their current collective agreement.

The principles which underlie the above noted cases are well reflected in the decision of Arbitrator Christie in a case involving Canada Post Corporation and the Canadian Union of Postal Workers (unreported award dated August 10, 1988) where, as in the CN Telecommunications Case, it was contended by the union that the right of an employee to file a grievance that he or she had been unjustly dealt with implied the right to have such a complaint arbitrated.

The Canada Post case concerned the discharge of a casual employee. The collective agreement conferred on casual employees a number of rights, including the right to file a grievance. It specifically excluded them, however, from the protection against discipline, suspension and discharge for other than just cause which covered permanent employees under article 10 of the collective agreement. The union in Canada Post argued that the arbitrator had jurisdiction to entertain the casual employee’s discharge grievance by virtue of the provisions of the grievance procedure contained in the collective agreement. The articles of the collective agreement relied on by the union, and considered by Professor Christie, included the following:

In considering the Union’s position, Arbitrator Christie noted a prior award, the Heywood grievance, between the same parties issued by Arbitrator Norman, and his analysis of the case law, including the decision of the Supreme Court of Canada in Re the Queen in Right of New Brunswick and Leeming (1981), 118 D.L.R. (3d) 202. In reviewing that case, and the Norman award, Professor Christie relates the following:

Professor Christie was called upon to determine whether the right of the union to grieve that a casual employee had been "treated in an unjust manner" was a procedural right, or whether it also created a substantive right of the casual employee, the alleged violation of which could be taken to arbitration for redress. Firstly he concluded that the prior award of Arbitrator Norman in the Heywood grievance was persuasive authority for the proposition that while articles 9.06 and 9.07 gave the union access to the grievance procedure on behalf of any employee "... [they] are ineffective to create substantive rights in casual employees." Further, at p. 21-22, Professor Christie concluded:

Finally, the learned arbitrator concluded that article 9.29 also reflected the agreement of the parties that only substantive rights should be arbitrable, and commented on the unworkability of the union’s position, which would virtually create rights at large without reference to any objective standards in the text of the collective agreement. At pp. 23-24 Professor Christie further stated:

In the result, for reasons which in my view are fully consistent with the decision of Professor Rayner in CN Telecommunications and the prior awards of the Canadian Railway Office of Arbitration cited above, Professor Christie concluded that the right of the union to file a grievance alleging that an employee was treated unjustly by Canada Post did not confer a substantive right, and found that the grievance before him was not arbitrable.

In the Arbitrator’s view the industrial relations rationale for the above line of arbitral interpretation is fairly obvious. When a trade union is certified as the exclusive bargaining agent of employees under the Canada Labour Code, or under a provincial labour relations statute, the purpose of the certification is to enable the union and the employees it represents to achieve the negotiation of a collective agreement governing, with some degree of certainty, the terms and conditions of employment of the employees represented by the union. The collective agreement becomes the central document of the bargaining relationship. Pursuant to the terms of the Code and similar provincial statutes, binding arbitration becomes the ultimate means of adjudicating unresolved disputes between the parties with respect to the interpretation or alleged violation of the substantive terms of their collective agreement. While parties may agree to allow complaints which are unrelated to the substantive rights and obligations articulated in the collective agreement to be filed and aired for possible settlement in the grievance procedure, they should not, absent clear and unequivocal language, be taken to have intended that such general allegations or complaints can proceed to arbitration. To conclude otherwise is to invite disputes and to promote litigiousness in a manner inconsistent with the purposes of the Canada Labour Code and the most fundamental principles underlying collective agreements in Canada which are intended to promote industrial relations peace and stability.

The Brotherhood asserts that in the case at hand the Arbitrator is bound by two decisions of the Quebec Superior Court quashing prior awards of this Office. They involved separate collective agreements between the Brotherhood of Maintenance of Way Employees and Canadian Pacific Limited (decision dated January 22, 1993) and an earlier decision of the Court (dated February 13, 1992) between the Brotherhood of Maintenance of Way Employees and Canadian National Railway. Those decisions are presently under appeal.

In the Arbitrator’s view, without commenting on the merits of the two cases, the language of the collective agreement at hand is different from that which appears in the agreements which were the subject of Court review, involving the Brotherhood of Maintenance of Way Employees. On that basis alone, the Arbitrator cannot find that they are binding for the purposes of the differently worded collective agreement in the case at hand. Moreover, as noted above, the parties in the instant case have renewed their agreement without change in the full knowledge of the binding interpretations of their agreement rendered in previous cases.

Under the instant collective agreement the kind of disputes which may be referred to this Office for determination through the arbitration process is clearly defined in article 25.2 of the agreement, which in my view bears repeating. That provision is as follows:

It would, of course, have been open to the parties to provide simply that any grievance or appeal not settled at Step 3 may be referred to this Office. However, they did not. This grievance does not involve an appeal that Mr. Mills has been unjustly disciplined or discharged. And to the extent that it rests on the assertion that Mr. Mills has been "unjustly dealt with", by the agreement of the parties, it does not fall within the purview of those matters which can be pursued to arbitration. Therefore, that part of the grievance alleging that the grievor was "unjustly dealt with" within the contemplation of article 24.21 must be found to be inarbitrable.

However, the foregoing conclusion does not fully dispose of the arbitrability of the grievance. It is trite to say that a board of arbitration should, insofar as possible, deal with the substance of a grievance, and avoid excessive technicality which would frustrate the resolution of a genuine dispute under a collective agreement. In the instant case the original grievance, filed by Mr. K. Sing, the Local Chairperson of the Brotherhood alleges, in part: "... Mr. Mills is being held of out of service for no justifiable reason and I would request that he be permitted to return to work effective immediately and compensated for all lost wages and benefits."

In the Arbitrator’s view, the foregoing statement grounds an arbitrable claim. It is an implied term of any collective agreement that an employee who has been justifiably absent due to illness, injury or other medical incapacity is, as a general matter, entitled to return to work when he or she is medically fit to do so. Disputes between employers and unions with respect to the fitness of an employee to return to work are commonly heard and disposed of in this Office. (See, e.g., CROA 2190).

While it is true that the position developed by the Brotherhood in the course of the grievance procedure tended to place the greatest emphasis on the objection that the grievor was "unjustly dealt with", a careful review of the documentation confirms that the position originally articulated by Mr. Sing, reproduced above, has never been abandoned. A reading of the dispute and statement of issue filed by the Brotherhood confirms its continuing position that Mr. Mills has been wrongfully denied access to employment under the collective agreement by reason of a dispute about his medical or physical capacity. In the Arbitrator’s view the grievance, so characterized, must be viewed as arbitrable, and it is so found. The effect, if any, of the Canadian Human Rights Act on the rights of the grievor under the collective agreement may also be addressed when the dispute is heard upon its merits.

The matter is therefore referred to the General Secretary for continuation of hearing.

May 20, 1993 (signed) MICHEL G. PICHER

On Thursday, 15 July 1993, there appeared on behalf of the Corporation:

D. S. Fisher – Senior Negotiator & Advisor, Labour Relations, Montreal

J. R. Kish – Senior Advisor, Labour Relations, Montreal

C. Rouleau – Senior Officer, Labour Relations, Montreal

Dr. M. Pigeon – Witness

And on behalf of the Brotherhood:

T. Barron – Representative, Moncton

R. J. Dennis – Local Chairperson, Moncton

J. S. Mills – Grievor

The Arbitrator directs that Mr. Mills be reinstated into his employment, without compensation and without loss of seniority, with his assignments to be restricted to the position of chef. His reinstatement is conditional upon his undertaking, for a period of not less than two years, the duties and responsibilities of a chef in On-Board Services, on a trial basis. If, for any quarterly period during the course of the two years, Mr. Mills should fail to register attendance comparable to the average of other employees in his classification in VIA Atlantic, the Corporation shall be entitled to consider his reinstatement into that trial service as at an end. Should that occur the parties will be in a position to consider and exercise such rights and obligations as may then apply to Mr. Mills under the terms of the collective agreement. The Arbitrator retains jurisdiction.

July 16, 1993 (Signed) MICHEL G. PICHER