CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 3346
Heard in Montreal, Thursday, 12 June 2003
CANADIAN PACIFIC RAILWAY COMPANY
BROTHERHOOD OF MAINTENANCE EMPLOYEES
Claim of behalf of Messrs. G. NoŽl, J. Bernard and all other similarly affected employees.
BROTHERHOOD'S STATEMENT OF ISSUE:
The Company, by way of letter, advised the grievors (all individuals who were injured and who, as a result, were absent on authorized leave) that "based upon the length of your absence (from duty), we have concluded that you will not be returning to active service. In view of the foregoing please be advised that your personnel file is being closed effective immediately". In response, a policy grievance was filed.
The Union contends that (1.) During the time the grievors were absent form work, the Company failed in its duty to accommodate them; (2.) The duty to accommodate is ongoing and the Company cannot, therefore, simply close the grievors' files; (3.) The Company violated Appendix B-12 of Agreement NO. 14.
The Union requests that the grievors be reinstated into Company service forthwith without loss of seniority and that they be made whole for any and all losses incurred as a result of this matter.
The Company denies the Union's contentions and declines the Union's request.
FOR THE BROTHERHOOD:
There appeared on behalf of the Company:
- Counsel, Calgary
And on behalf of the Brotherhood:
- Counsel, Ottawa
AWARD OF THE ARBITRATOR
This grievance raises a relatively new issue. Is the Brotherhood entitled to notice when the Company decides to close the employment file of an individual who has been absent on a long-term basis by reason of illness or injury, in respect of whom a duty of accommodation is owed?
The dispute is prompted by the Company's closure of the employment files of a number of employees commencing in January 2002, without notice to the Brotherhood. Through a policy grievance the Brotherhood submits that the Company owes a duty of accommodation to any disabled employee up to the point of termination, and cannot, at the point of termination, deal on a one-to-one basis with that employee without involving the Brotherhood, to the extent that the duty of accommodation may still come to bear in the circumstances of the individual concerned. The Company asserts that an individual who may have been the subject of efforts at accommodation and who subsequently remains absent from work for an extended period of time is, like any employee who has been absent for an extended period, liable to have his or her employment administratively terminated by the closing of his or her employment file. In that circumstance, whether it concerns an employee who has failed to return to work upon a recall following a layoff, has been involved in extensive innocent absenteeism or indeed has been terminated for just cause, the employer stresses that there is no obligation upon the Company to advise the bargaining agent, and that the obligations are no different as regards an employee whose extended absence was prompted by a disability.
The instant dispute arises within the context of a larger administrative initiative undertaken by the Company. The evidence confirms that in the last few years the Company has undertaken the implementation of a Human Resources Information System (HRIS). The development of that system brought to light a number of persons whose employment files remained open even though they may not have worked for the Company for a number of years. That process confirmed that in a number of cases stale personnel files had not been closed by reason of administrative oversight. To deal with the closing of stale dated files the Company established a cross-functional committee, including representatives from the departments of Industrial Relations, Employee Relations, Law, Disability Management and Pension Services. On a bargaining unit by bargaining unit basis, the committee proceeded through the list of persons identified for possible file closure, duly assessing them in light of legal, employment, human rights and other considerations that might be appropriate. The circumstances of extended absence dealt with were various, including individuals who had been laid off and did not respond to a recall, persons who suffered from a non-work related illness or injury as well as a work related illness or injury and employees who may have taken a leave of absence and simply never returned. The exercise revealed individuals who had gone missing for a considerable period of time, and in one case as long ago as 1979.
The culling process clarified the status of various categories of persons. For example, the Pension Department identified forty-one cases of employees who had terminated employment, but whose termination was not reflected in the HRIS records. It appears that some of those individuals had in fact retired and were receiving a CP pension. The forty-one files in question were therefore closed. Persons who were in receipt of job security benefits were identified and removed from consideration, and persons who might be involved in active human rights files, or who might be participating in the Company's return to work program following an injury or illness, were also eliminated from possible file closure. By way of example, the Company notes that in 2002 some 236 employees in the bargaining unit of the Brotherhood were involved in that program, 173 of whom returned to regular duties and 63 to modified duties. Similarly, workers' compensation related files were identified not to be closed unless it was established that the individual in question had plateaued in rehabilitation for at least two years and had no hope of returning to service, either in a regular capacity or through the return to work program. The closure of workers' compensation files obviously did not impact the right of the injured employee concerned to the compensation benefits to which he or she might properly be entitled.
One hundred and forty-five files of employees within the bargaining unit of the Brotherhood were identified for review by the cross-disciplinary committee. Of those it was found that 104 had been laid off and simply failed to respond to recall. It does not appear disputed that such situations are caught by the provisions of article 15 of the collective agreement which provides, in part, as follows:
An examination of the members of the Brotherhood who were identified through the committee process included eighteen individuals absent as a result of compensable injuries who had not been able to return to work. As noted above, such persons were not considered for file closure unless their physical condition had stabilized for a period of at least two years, with no likelihood of being able to return to work. Fifteen people were identified as having left the Company for injuries which were non-work related, and by reason of which they were unable to return, six were found to have left on educational programs under the Employment Security Agreement and two left on personal leave and never returned.
In early 2002 the Company issued letters to the individuals identified for file closure. An example of such a letter placed in evidence before the Arbitrator is the communication of January 24, 2002 sent to employee G. NoŽl of Clive, Alberta. That letter, with confidential financial information deleted, reads as follows:
It appears that a number of employees reacted to the closure of their files by protesting personally to the Company. Counsel for the Company relates to the Arbitrator that in seven cases individuals contacted the Company and were subsequently accommodated and returned to work, three of whom are in the bargaining unit represented by the Brotherhood. It also appears that the process resulted, in some cases, in the return of overdue pension monies to some of the employees concerned.
It should be stressed that the parties to the instant case have an extremely positive record in developing policies and procedures concerning the accommodation of disabled employees. Well in advance of current legislation, or of the decisions of boards of arbitration, human rights commissions and the courts, the parties themselves took pioneering steps to bring a measure of compassion and equity to the treatment of disabled employees in the workplace. As early as April 19, 1982 they signed a joint letter of understanding, presently incorporated as Appendix B-12 of their collective agreement which reads, in part, as follows:
In addition, in more recent times the Company has developed a sophisticated and impressive system for handling disabled employees on a case-by-case basis, a process reviewed with approval in a prior award of this Office (see CROA 3036). There is no question but that both parties before the Arbitrator are fully aware of and sensitive to the duty of accommodation and have an exemplary shared history of progressive achievements in this area.
The instant dispute arises by reason of the Brotherhood's objection to receiving no notice concerning the effective termination of employees who have disabilities and were the subject of accommodation procedures at some time in the past. The Brotherhood asserts that the statutory obligation of accommodation, established under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, continues up to the point of termination. It argues that the consideration of possible options of accommodation are ongoing, and cannot be dealt with unilaterally and in-house by the employer, without the involvement of both the employee and his or her union. From a practical standpoint the Brotherhood stresses that, as acknowledged in the Company's own materials, the closing of the files of certain individuals in fact resulted in protests by the employees which, in some cases, led to their subsequent accommodation and return to work. A related concern raised by the Brotherhood is the quality of information which might be provided to disabled employees, for example in relation to their entitlement to a disability pension.
The Brotherhood takes no issue with the method adopted by the Company insofar as it relates to closing the files of employees who may have simply abandoned their employment, whether by failing to respond to a recall to work following a layoff or not returning from a leave of absence. It does not dispute the position of the Company that there is nothing in the collective agreement or otherwise in law which would give to the Brotherhood the right of notice in respect of the decision of the Company to terminate the employment of persons in that circumstance. The Brotherhood's counsel and representatives argue, however, that substantially different considerations operate where disabled employees are concerned, bearing in mind that, following the decisions of the courts, it is well established that the exercise of reasonable accommodation is one which imposes continuous obligations, and by implication participation, on the employer, the trade union and the employee.
Counsel for the Company takes a different approach. He starts with the proposition that, absent any contrary provision in the collective agreement, the Company retains the ability to communicate directly with employees alone concerning the termination of their employment, as for example in instances of discipline and administrative termination for innocent absenteeism. In counsel's view the situation is no different when the employee is absent for an extended period of time by reason of a disability, in circumstances where there is little or no reason to believe that his or her ability to return to active employment will change. He stresses that the ability of an employer to close an employee's file for innocent absenteeism is well confirmed in the arbitral jurisprudence, citing Re Air Canada  M.G.A.D. No. 69 (Chapman); Re Emrick Plastics and CAW, Local 195 (1992), 25 L.A.C. (4th) 19 (O'Shea).
Counsel further refers this Office to the more recent decision of Arbitrator Jackson in Re St. Paul's Hospital and H.E.U. (2001), 96 L.A.C. (4th) 129 (Jackson) where the intersection of the duty of accommodation and the doctrine of termination for innocent absenteeism was considered. In that award the arbitrator commented, in part, as follows:
Reference was also made to CROA 2239 and SHP 284 as confirming the right of an employer to terminate an employee for innocent absenteeism. In particular, reference is made to the following comments of this Arbitrator in SHP 234, an award in a grievance between Canadian Pacific Limited and the International Brotherhood of Firemen and Oilers, dated November 23, 1989:
See also Royal Alexandra Hospital (1992), 29 L.A.C. (4th) 58 (Power).
I turn to consider the merits of the parties' competing submissions. Firstly, it should be stressed that this Office is impressed with the efforts at accommodation and the processes in furtherance of that obligation developed within the Company's administrative structures. Nor does the Arbitrator dispute the correctness of the law argued by counsel for the Company as it pertains to the right of an employer to close the file of an employee where the two-part test has been met under the doctrine of innocent absenteeism. The only qualification might be, as suggested by counsel for the Brotherhood, that boards of arbitration have confirmed that in some circumstances it is appropriate for the employer to give a degree of advance warning to an individual, particularly where his or her condition or pattern of absences might be susceptible to improvement by an alteration of personal habits or otherwise. (See, e.g., Oshawa (City) (1996), 56 L.A.C. (4th) 335 (Brandt); Royal Alexandra Hospital (1990), 10 L.A.C. (4th) 173 (Ponak); Dennison Mines Ltd. (1983), 12 L.A.C. (3d) 364 (Adams).)
With the greatest respect for the position advanced by counsel for the Company, and bearing in mind that there is little if any prior arbitral consideration of this issue, the Arbitrator has some difficulty with the position of the employer concerning the termination of persons to whom the duty of reasonable accommodation is owed. It is now well established that disabled employees are owed a duty of accommodation to the point of undue hardship, now entrenched in section 15(2) of the Canadian Human Rights Act. It is also well settled, through the decisions of the Supreme Court of Canada, that the duty of accommodation involves not only the employer, but also requires the active participation of the employee and his or her trade union (Central Okanagan School District No. 23 v. Renaud (1992), 95 D.L.R. (4th) 577,  6 W.W.R. 193,  2 S.C.R. 970). If a trade union has an obligation to be involved in the accommodation process, an obligation which may perhaps include making allowances under the provisions of its collective agreement, it must surely have a corresponding right of notice to participate in any significant decision affecting the employment status of a disabled employee who is subject to the duty of accommodation.
Some guidance can be obtained from the decision of a board of arbitration chaired by Arbitrator Devlin in Re Abitibi-Price Inc., Iroquois Falls Division and Canadian Paper Workers' Union, Local 90 (1992), 31 L.A.C. (4th) 211 (Devlin). That case concerned the termination for innocent absenteeism of an employee absent for some four years by reason of a work-related injury. While the board found that the Company is entitled to terminate an individual in that circumstance for innocent absenteeism, and that it did not violate the Ontario Human Rights Code, it nevertheless found that termination was improper given the manner in which the Company proceeded. For the majority Arbitrator Devlin writes, in part, at pp. 215-16 as follows:
It appears from the foregoing that the Board considered that some degree of advance notice was appropriate. In a separate addendum the union nominee, D.C. Mayne, added the following personal observations at p.217:
This Office accepts that it may, in the proper circumstance, be appropriate for an employer to terminate an employee for innocent absenteeism, even though that individual may be disabled and be owed a duty of reasonable accommodation. In that circumstance, however, procedure is of the essence. As part of the continuing duty of accommodation it is essential that the employer make all reasonable efforts to verify, prior to the point of discharge, whether the person in question can be accommodated. Given the decision of the Supreme Court of Canada in Renaud, that inquiry necessitates reasonable notice to the employee and to his bargaining agent.
Nor is that requirement necessarily burdensome. In some cases it may involve no more than simple verification that there is little or no change in the individual's condition and little prospect for any significant change in the foreseeable future. However, that communication with the employee and his or her union is important not only to the extent that conditions may have changed for the employee. There may also have been changes within the workplace, whether by the introduction of new technology, different procedures, new vacancies or otherwise, such that the ability to accommodate the individual may have changed since his or her case was last considered. These are not theoretical considerations, as is amply demonstrated in the case at hand. The Company's own brief to the Arbitrator reflects that in fact three of the employees whose files were closed objected, and eventually were returned to active employment, with appropriate accommodation. I am satisfied that in such a circumstance, as a matter of law, the proper course is not for the Company to discharge the employee and then make the inquiry as to whether their action was correct, but to give the appropriate notice in advance. That approach is also more in keeping with the collective bargaining regime to the extent that some individuals may be less able than others to advocate for themselves, particularly where their bargaining agent has been given no notice of their termination and no meaningful opportunity to engender the three party discussion about possible accommodation mandated by the courts.
The foregoing observations obviously do not stand for the proposition that a disabled employee can never be terminated for innocent absenteeism. This award merely confirms the fact that the disabled employee is, as the Brotherhood argues, entitled to a duty of reasonable accommodation, to the point of undue hardship, as long as he or she remains an employee. Termination can therefore not occur unless it can be demonstrated at the point of termination that reasonable accommodation to the point of undue hardship is still not possible, and that there is no reasonable basis to believe that the employee will be able to return to meaningful service in the future.
The grievance is therefore allowed. The Arbitrator finds and declares that the Company was not entitled terminate the employment of any employees who were disabled within the meaning of the Canadian Human Rights Act, without first providing to the employees and to the Brotherhood reasonable notice of the Company's intention, affording both of them the opportunity to participate with the Company in a consideration, at that time, of whether a return to work, with or without accommodation, was then possible. Following proper notice, where it can be shown that such a return to work is not possible at that time or likely in the future, the employer will be entitled to close the employment file of the individual concerned.
With respect to any further remedy beyond the foregoing declaration, the Arbitrator notes the agreement of the parties at the hearing with respect to the fact that each of the cases in question must be considered on an individual basis. With that in mind, the matter is remitted to the parties for the purposes of identifying those employees to whom the statutory duty of accommodation is owed, so that the parties may engage in the necessary discussion with respect to the possibility of accommodated employment for those individuals. Should the parties be unable to agree on any aspect of the possible accommodation of any person so identified, the Arbitrator retains jurisdiction for the purposes of resolving any such disputes, or any other aspect of the interpretation or implementation of this award.
|June 25, 2003||
(signed) MICHEL G. PICHER|