Heard in Montreal, Thursday, 10 June 1999

concerning

and

The entitlement of employee M. Rousseau to be placed on the furlough board, rather than being placed on laid off status by the Company.

Ms. Rousseau is a protected freight employee. At the time of implementation of the Conductor-Only Agreement, Ms. Rousseau was a medically restricted employee, and was performing work as a switch tender.

On September 27, 28 and 29 and October 28 and 29, 1991, and on subsequent dates, Ms. Rousseau was unable to hold work as a switch tender, and was placed on laid off status by the Company.

It is the Union's position that the grievor is a protected employee and that she ought to have been placed on the furlough board rather than being placed on laid off status. The Union is contending that the Company's actions are contrary to the collective agreement and the Canada Human Rights Act. The Union is requesting the payment of full compensation to Ms. Rousseau.

The Company disputes the Union's position on this matter and has therefore declined to make payments to Ms. Rousseau.

The Company disputes the Union's position on this matter and has therefore declined to make payments to Ms. Rousseau.

There appeared on behalf of the Company:

D. C. McDonnell – Sr. Counsel, Montreal

D. Laurendeau – Labour Relations Associate, Montreal

J. D. Pasteris – Manager, Labour Relations, Montreal

And on behalf of the Council:

P. Sadik – Council, Toronto

R. J. Long – General Chairman, Brantford

J. Orr – Secretary, GCA, London

R. Doiron – Local Chairman, Montreal

R. Michaud – Provincial Legislative Chairman, Montreal

The facts in relation to this grievance are not in dispute. By reason of her seniority, the grievor, Ms. Michelle Rousseau, is a protected employee under the terms of the Conductor-Only Agreement. If she is unable to hold work she is generally entitled to placement on a furlough board, a position which guarantees the continuation of her wages and benefits at an agreed rate. Employees who are on the furlough board are required to protect any work for which they are qualified which may become available.

It is common ground that the grievor is qualified as a conductor, brakeperson, yard foreman and yard helper. On February 21, 1987 she sustained a back injury which caused a permanent disability. As a result of her condition, she has continuously worked in the position of switchtender, a largely sedentary job. In September and October of 1991 Ms. Rousseau was displaced from her switchtender position by a senior disabled employee, for a total of some five days. She then claimed the right to be placed on the furlough board. The Company denied her a furlough board position, as a result of which she was placed on layoff. It does not appear disputed that soon thereafter she resumed her switchtender position, which she has occupied to the present time.

The issue is whether the Company violated the collective agreement or, as the Council alleges, the Canadian Human Rights Act, R.S.C. 1985 c. H-6, by denying the grievor access to the furlough board for the days in question.

Furlough boards are generally governed by the terms of article 91 of the collective agreement which provides, in part, as follows:

The Council alleges, firstly, that the Company has violated article 9.1 of the collective agreement and denied the grievor her fundamental protections under article 55 of the collective agreement, whereby she is not subject to being laid off. In the Council's submission while the grievor has a permanent medical restriction, she is not "disabled" within the meaning of article 91.5. The Council maintains that the only provisions for the exclusion of an employee from the furlough board are found in article 91.4 which provides as follows:

As a second basis of argument, the Council submits that the Company's actions violate the Canadian Human Right Act. It cites sections 7 and 15 of the Act which read as follows:

The Council submits that on the facts disclosed the grievor has been effectively denied work or access to wages by reason of her physical disability. That, it submits, is discrimination on a prohibited basis. In the Council's view the refusal to place Ms. Rousseau on the furlough board is tantamount to a refusal to continue to employ her, to the extent that she is compelled to suffer a layoff. The Council asserts that there has been a failure to accommodate the grievor's medical restriction in denying her a position on the furlough board with its related wages and benefits. The Council maintains that the obligation to protect work while on the furlough board must be adjusted for the grievor, by way of accommodation, so that she must be available to perform the work of the only position for which she is physically qualified, that of a switchtender. The fact that she has qualifications as a conductor, brakeperson, yard foreman or yard helper, positions which she is physically disabled from performing, should not be held against her, in the Council's submission.

At first blush it would seem that the administration of the furlough board operates in a manner that is discriminatory or adverse to the grievor by reason of her disability, or physical restrictions. However, after close examination of the applicable law, the Arbitrator has some difficulty with the position advanced by the Council, both as regards the collective agreement and the Canadian Human Rights Act. In approaching the issues in dispute, it is essential to bear in mind the fundamental nature of the furlough board provisions of the collective agreement. Furlough board standing is a form of continued employment, in lieu of layoff, for which wages and benefits are paid. While the employee on the furlough board may have no immediate assignment which he or she fills, it is the employee's obligation to remain available and to respond to calls for any work for which the individual is qualified. So understood the furlough board is a wage protection provision made available to protected employees of a given seniority, in exchange for meeting certain obligations on their part, which generally includes performing any work for which they are qualified, as needed.

It is evident from the language of article 91.5 that the parties intended that an individual must keep the Company advised of any disability or illness which would prevent the employee from responding to a call for work if required. Similarly, employees are required to maintain rules and medical qualifications. Article 91.3(c) reflects the understanding of the parties that an employee is to be removed from the furlough board if he or she is subject to a leave of absence. The examples cited in article 91.3(c) are a scheduled vacation, leave by reason of a physical disability, or an authorized leave of absence. What the article contemplates is that employees who are on a leave, for whatever reason, and are therefore not available to perform any and all work for which they are qualified, cannot hold a position on the furlough board for the period of their leave.

On the basis of the language of the collective agreement, therefore, the Arbitrator cannot find any violation of its provisions in the actions of the Company in respect of Ms. Rousseau. Article 91.3 contemplates that employees who are on any form of leave, and therefore cannot fulfill all of the obligations to protect work for which they are qualified, are to be viewed as absent from the furlough board. From a purposive point of view that understanding does not appear surprising. To the extent that the furlough board represents a means of providing wages to employees in exchange for being fully available for work for which they are qualified, persons who are on scheduled vacation, authorized leave of absence or a disability leave of absence cannot logically be viewed as entitled to the payment of wages for full availability. While they may be entitled to other benefits, such as short or long term disability payments or payments in relation to certain forms of leave such as maternity or scheduled vacation, they cannot properly claim the payments of wages in exchange for full availability.

The requirements for furlough board standing are not unlike those which have applied elsewhere in the industry to employees who have the wage protection of "employment security", a benefit found generally among the non-operating trades. For example, in CROA 2397 it was found that an employee with medical restrictions was properly laid off, and could not claim an entitlement to employment security payments because her physical disability prevented her from being available to protect work for which she was qualified, an obligation inherent in the bargain underlying the employment security protection. It has also been determined by this Office that an employee who cannot hold work by reason of a physical disability cannot claim layoff benefits (see, e.g., CROA 2533 and 2891). Upon a review of the jurisprudence and the language of the collective agreement, I cannot find any violation of the collective agreement in the denial of a furlough board position to the grievor.

Has there been a violation of the Canadian Human Rights Act in the treatment of Ms. Rousseau? Does the denial to her of wages and benefits in the form of furlough board protection constitute discrimination which is unlawful and prohibited by the Act? This Office, and Canadian arbitrators generally, have had much occasion to consider the application of human rights statutes in the workplace. It is generally accepted that where an employee or trade union establishes a prima facie case of discrimination on the basis of the prohibited ground of disability, the onus then shifts to the employer to establish that the requisite physical fitness is a bona fide occupational requirement (BFOR) (CROA 1585). It is also clear that where general standards of fitness have an adverse impact on persons with a physical disability, causing adverse impact discrimination or indirect discrimination, there is an obligation upon the employer to accommodate the disability of the employee to the point of undue hardship (CROA 2768, 2998 and 3002). Since 1998 section 15(2) of the Act has merged the duty of accommodation into the BFOR analysis (S.C. 1998, c. 9). The cases have generally proceeded on the basis that it is improper for an employee to be discriminated against, where such discrimination threatens the individual's very status as an employee or access to work.

A distinction has been drawn, however, by both arbitrators and the courts when the alleged discrimination against the disabled does not concern an individual's status as an employee but an entitlement to wages, benefits or other normally earned payments. In applying human rights statutes adjudicators have developed a distinction between access to employment and the claim of a disabled employee that discrimination has deprived him or her of wages and benefits.

That distinction was touched upon by this Office in CROA 2935, which involved the same parties as the instant case. The Council there grieved that employees absent from work on long term disability leaves were discriminated against contrary to the Canadian Human Rights Act by being denied participation in early retirement opportunities made available to active employees under agreements negotiated following job abolishments which were part of a material change implemented by the employer. In that award the arbitrator emphasized that the fundamental bargain in relation to the creation of early retirement opportunities was to minimize the adverse impact on employees by encouraging the withdrawal from the workplace of active senior employees, thereby freeing up work opportunities for remaining junior employees who might otherwise face a layoff. The underlying rationale of the agreement to provide early retirement opportunities was obviously not served if those opportunities were taken up by inactive employees on long term disability leaves of absence. Effectively recognizing that the early retirement opportunities were tantamount to a buying out of employees who were actively employed, the arbitrator concluded that it was not unlawful discrimination if employees who were inactive by reason of disability could not participate in the terms of the special agreement. In that award the following comments appear:

Generally arbitrators have not found discrimination where the facts disclose that an individual's physical disability disqualifies that person from fulfilling obligations which are a condition precedent to the payment of wages, benefits or other earned advantages. One view of the notions underlying that distinction was elaborated in a recent article authored by Arbitrator R. M. Brown: "Human Rights in Employment: Of Participation and Compensation" (1998) 4 Canadian Labour & Employment Law Journal 283. The author expands upon the rationale of the Versa Services decision, noting that it was upheld by the Ontario Divisional Court, in the following passage at p. 300

At p. 301 the following observations appear:

Finally, at p. 303 Arbitrator Brown summarizes the distinction between issues of access to the workplace and the entitlement to wages and benefits:

In a more recent decision, involving the judicial review of the award of the majority of a board of arbitration chaired by Arbitrator Mitchnik in Soldiers Memorial Hospital, the Ontario Court of Appeal took issue with the analysis and approach of Arbitrator Brown in Versa Services. In Soldiers Memorial Hospital, reported as Ontario Nurses' Association v. Orillia Soldiers Memorial Hospital (1999) 42 O.R. (3d) 692 (Ont. C.A.), the Mitchnik board and the reviewing courts dealt with a collective agreement provision whereby nurses on unpaid leaves of absence resulting from a disability were denied the accumulation of seniority and service credits after a certain time. They were also eventually required to pay the premiums for their employee benefit plans. The majority of the board of arbitration found that the denial of premiums and service credits did not constitute discrimination contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The board concluded, however that the denial of accrued seniority did constitute discrimination in violation of the Code.

Both parties in Soldiers Memorial Hospital moved for judicial review of the decision of the board of arbitration. The union sought to quash the board's decision with respect to the denial of premiums and service credits while the employer challenged the conclusion that the denial of seniority accrual was contrary to the Code. The employer prevailed before the Divisional Court, which ruled that none of the collective agreement provisions violated the Code. That conclusion was appealed by the union to the Ontario Court of Appeal which ultimately allowed the appeal, in part, effectively restoring the result of the arbitration award. The Court concluded that the denial of premiums and service credits, both of which relate to the compensation of employees for work performed, was not discriminatory in a manner contrary to the Code, as the denial of compensation advantages applied not only against the disabled, but against all employees who were not available to perform work. In that circumstance there was no discrimination found against the disabled, who were treated no differently than other employees on different forms of leaves of absence. The Court of Appeal found, however, that the truncating of seniority rights, rights which are fundamental to an employee's access to work opportunities in matters such as promotion, lay off and recall, did constitute discrimination contrary to the Code.

It appears that the Court of Appeal took issue with the reasoning of Arbitrator Brown in the Versa Services case on the arguably narrow basis that he misinterpreted section 11 of the Ontario Human Rights Code by concluding that it allows for drawing distinctions between issues of compensation and participation. For the Court, Rosenberg J.A. asserted what he views as an example of adverse effect discrimination being prohibited in matters of compensation, referring to the decision of the Supreme Court of Canada in Chambly, Commission scolaire régionale v. Bergevin [1994] 2 S.C.R. 525, 115 D.L.R. (4th) 609. The learned judge's reasoning appears to be that if the Jewish teachers who were the subject of the Chambly case could not be denied a paid religious holiday by reason of their religion, similar protections involving compensation should be available to other groups protected by human rights legislation, including the disabled.

It is arguable, I think, that much of the above debate is more academic than real. The notions of equality of treatment which arise in relation to employees denied a religious holiday for which they are paid not to work are substantially different from those involving the wage claims of persons who are disabled from performing work. Moreover, for the purposes of this grievance, there would appear to be no practical difference in the conclusion that would flow from the approach taken by Arbitrator Brown in Versa Services and that taken by Rosenberg J.A. in Soldiers Memorial Hospital, even discounting the fact that this grievance does not involve the interpretation of the Ontario Human Rights Code. The analysis of the Ontario Court of Appeal with respect to comparator groups leads to the common sense conclusion that if the general rule is that employees who are not at work cannot claim wages or benefits, employees on disability leaves of absence cannot claim discriminatory treatment for the denial of wages or benefits. In that regard the reasoning of the Ontario Court of Appeal at pp. 703-04 is instructive:

Stressing the fact that the underlying bargain in the collective agreement is that the employer is to pay for benefit premiums in exchange for active work on the part of employees, the Court commented further as follows at p. 705:

While it is arguable that the foregoing passages, and the decision of the Ontario Court of Appeal in Soldiers Memorial Hospital, are not binding for the purposes of this award, which relates to the application of the Canadian Human Rights Act, in fact there is little to distinguish the substance of that legislation from the provisions of various provincial human rights codes. Moreover, tribunals and courts should not be astute to find distinctions between pieces of federal and provincial human rights legislation, given the over-arching requirements of the Canadian Charter of Rights and Freedoms, and the general principles emerging from the jurisprudence of the Supreme Court of Canada. At a minimum, the Soldiers Memorial Hospital case must be viewed as persuasive authority. I think that it is particularly persuasive for recognizing the importance, as stressed by Rosenberg J.A., of focusing on the purpose of employee wages or benefits in considering whether there has been discrimination.

Taking that approach, what conclusion is to be drawn in the instant case? If the furlough board system is characterized as a form of income insurance, there is a strong case to find unlawful discrimination. If to hold a furlough board position is to be paid for not working, it would appear arguably discriminatory to deny its protections to the disabled while making them fully available to those who are able-bodied. However, that approach misconstrues the fundamental purpose of the furlough board and the bargain which underlies it.

Employees who hold a position on the furlough board are not paid not to work. Rather, they are paid to be within a telephone call of any work for which they may be needed and for which they are qualified. Like a professional athlete on the bench, they are paid to be fully available if needed and called upon. Not surprisingly, employees who are on leaves of absence, for whatever reason, and who are not available to perform work for which they are qualified, are not entitled to hold a position of the furlough board and to receive the wages and benefits which attach to its obligations. In that circumstance a person in the position of Ms. Rousseau is not denied a furlough board position because she is disabled, but rather because she is on an effective leave of absence which renders her unavailable to perform all of the work for which she is qualified.

It is true, as counsel for the Council submits, that the furlough board rules can impact certain individuals, such as the grievor, more negatively than others. He cites the example of an employee who has a partial disability, but whose disability would prevent him or her from performing only work for which he or she is not formally qualified. Counsel argues that if that individual can have the benefits of holding a position on the furlough board, the less advantageous treatment of the grievor is discriminatory by reason of her disability.

With respect, the Arbitrator cannot agree. That argument fails to appreciate the legitimate and discrimination-neutral bargain which is the essence of the furlough board arrangement, namely that employees receive the wages and benefits of the board if they are fully available to perform all work for which they are qualified, when called to do so. While I agree with counsel for the Council that the appropriate comparator group for the purposes of determining discrimination in the instant case is not all employees, I am satisfied that in the instant case the appropriate comparator group is identical to that identified by the Court in the Soldiers Memorial Hospital case, namely employees who are unavailable to perform service for which they are qualified, whatever may be the cause of their unavailability. Moreover, on the facts of the instant case, if being able-bodied to perform all work for which an individual is qualified can be viewed as direct discrimination against the disabled, I would conclude that the requirement of full availability in exchange for the full payment of the wages and benefits of the furlough board is a bona fide occupational requirement.

If it can be said that the furlough board rules cause either direct or indirect adverse effect discrimination against the disabled (a conclusion which I would reject for the reasons related above) the issue would then become whether there is an obligation, as counsel for the Council argues, to accommodate the grievor short of undue hardship. How, then, could that be done? The only work which Ms. Rousseau can perform is the sedentary duties of a switchtender. Indeed that work has been made available to her by specific accommodation of her disability for many years. There are relatively few automated switchtender positions available within the Company's operations, as compared to the more commonly available road and yard work of conductors, brakepersons, yard foremen and yard helpers, all of which the grievor is qualified for and unable to perform by reason of her disability. To oblige the Company to pay wages and benefits to an employee whose likelihood of being called to active work is negligible by reason of the limited work opportunities he or she might be called upon to fill is, in my view, a legitimate consideration to be taken into account in assessing the issue of undue hardship.

It should be stressed that this is not a situation where accommodation in the form of modification of the physical exigencies of work as a conductor, brakeperson, yard foreman or yard helper are a viable consideration. In the result, as a general rule, for a person in the situation of the grievor to hold a furlough board position is to require the employer to indefinitely pay wages and benefits to an individual whose window of opportunity for active work is extremely narrow. Given the underlying purpose of the furlough board, such an obligation would, in my opinion, constitute undue hardship for the Company within the meaning of that concept as it has evolved in the jurisprudence. To put the matter differently, and to paraphrase the comments of Rosenberg J.A. at p. 715 of the Soldiers Memorial Hospital case, requiring full availability for work in exchange for compensation is a reasonable and bona fide requirement, and little or nothing can be done to accommodate employees who are unable to meet that requirement by reason of illness or disability.

Based on all of the foregoing, I am satisfied that the collective agreement has not been violated, to the extent that the furlough board provisions properly require as a condition of holding a furlough board position that an employee be fully available to perform all work for which he or she is qualified. Additionally, to the extent that furlough board standing is unavailable to all employees who are on leaves of absence, there has been no discrimination against the grievor by reason of her disability, contrary to the Canadian Human Rights Act. It might also be noted that whether Ms. Rousseau was properly to be treated as laid off, or whether she should have been afforded such benefits as might be found under the collective agreement for employees on short term or long term disability, is not an issue which has been argued before me. As noted by Arbitrator Brown, however, there is much to be said for the notion that the disabled are better protected by wage replacement schemes, whether legislated or bargained, than by the broad sweep of human rights legislation, where issues of compensation are concerned. Finally, from a human rights standpoint, it should also be stressed, as touched upon above, that Ms. Rousseau has for many years benefited from the employer's enlightened accommodation of her disability, and apparently .continues to enjoy that benefit.

For all of the foregoing reasons, the grievance must be dismissed.

June 25, 1999 (signed) MICHEL G. PICHER