There appeared on behalf of the Company:

C. Graham – Labour Relations Officer, Calgary

And on behalf of the Union:

N. Lapointe – Assistant Division Vice-President, Montreal

P. J. Conlon – Assistant Division Vice-President, Toronto

The material before the Arbitrator confirms that the grievor suffers from asthma. Although it appears that recent medical documentation confirming his condition has not been forthcoming, the Company does not dispute that he does suffer from that condition. Further, the evidence confirms that the Company never requested medical certificates of the grievor for certain of the absences in respect of which he was disciplined. There is no indication that he has ever failed to produce a medical certificate if requested to do so. Further, there is some evidence in the file which indicates that Mr. Osask did obtain medical certificates for certain absences, although it seems that he may have simply shown those to a Company officer and retained the original himself. For example, the Union tables original certificates relating to absences due to asthma dated February 3 and May 27, 1997.

The Company’s concern is understandable. It appears that on an annual basis the grievor’s absences total some twenty-four, well in excess of the average for employees in his Winnipeg work centre. Further, it is not disputed that on at least one occassion in the past the grievor falsely claimed illness as a pretext to obtain a day off on July 16, 1993, a matter in respect of which he was disciplined by the assessment of fifteen demerits.

The primary burden of proof in a case of this kind, which involves discipline, is upon the employer. It must establish, on the balance of probabilities, that the grievor was either false in his claim of illness for the absences in question, or that if he was ill there was some negligence or carelessness on his part which contributed to his condition. On the evidence before me I cannot find that those elements are made out with respect to Mr. Osask’s absences which are the subject of this discipline. It is not appropriate to infer false claims of illness based merely on the fact that the grievor admittedly made one such claim in the past, or based on the fact that certain of his absences fall immediately before or after his scheduled rest days. Consequently, the Arbitrator cannot conclude that the Company has discharged the burden which is upon it, to establish on the balance of probabilities that the grievor was either not ill on the dates claimed, or can be said to have contributed to his illness by his own carelessness or irresponsibility.

None of the above conclusions, however, derogate from the right of the Company to deal with the grievor’s medical condition and related rate of absenteeism on a non-culpable basis, should it deem it appropriate to do so. If it can be shown that the grievor maintains a rate of absenteeism which is inconsistent with the fundamental bargain of employment made between himself and the Company, and that his asthmatic condition is such that it cannot be accommodated without undue hardship to the employer, in keeping with the standards of the Canadian Human Rights Act, a different conclusion might obtain. However, it should be noted, as reflected in the material before the Arbitrator, that the grievor has now authorized the Company’s physician to make inquiries of his own doctors as to the nature of his overall medical condition. Hopefully, on the basis of that more detailed information, the parties will be in a position to address the problem of the grievor’s absenteeism in a more constructive manner.

For all of the foregoing reasons the grievance is allowed. The Arbitrator directs that the ten demerits assessed against the grievor be removed from his record forthwith.

June 20, 1997 (signed) MICHEL G. PICHER