OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3726
CANADIAN NATIONAL RAILWAY COMPANY
The closure of the employment file of T. Laframboise for his failure to meet the terms and conditions of the reinstatement agreement dated 11 October 2007.
JOINT STATEMENT OF ISSUE:
September 2007, the grievor was involved in an accident in the Company’s
MacMillan Yard in
September 2007, the Union requested of the Company that they reconsider the
grievor’s resignation and that the
On 3 October 2007, CN’s OHS advised the Company that the grievor did not pass the medical fitness for duty because of a positive test as was required under Item (1) of the agreement.
The Union submits that the grievor’s positive test does not indicate or confirm a violation of Rule G, or that he has an addiction problem, and the grievor submitted to a test again on October 29, 2007, which showed a clear test, and which the Union is prepared to forward to the Company.
disagrees with the Union’s contentions and has declined the
(SGD.) J. ROBBINS (SGD.) F. O’NEILL
GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
F. O’Neill – Manager, Labour
R. A. Bowden – Manager, Labour
behalf of the
R. A. Beatty – Transition Director, Sault Ste. Marie
J. Robbins – General Chairman,
P. Vickers – General Chairman,
G. Gower – Vice-General
AWARD OF THE ARBITRATOR
grievor was hired in April 2007. He was working as the Yard Helper on September
17, 2007 at 03:00 hours. This assignment involved the grievor operating a belt
pack, from the point of the movement, while pulling 100 cars from the
grievor took a breathalyser test at 05:45 which tested 0% for alcohol. The
grievor maintains that he was then asked but unable to physically provide a
urine sample. The grievor further claims that he then asked his Company Officer
that he be allowed to return later in the day to provide the urine sample. The
grievor then decided to resign his position while on site and left the premises
at 06:20. Before leaving, he was asked to sign a document acknowledging his
refusal to provide a urine sample. The grievor maintains that he refused to
sign because he had already attempted to provide a urine sample, and also
because he had offered to provide a sample later that same day. As noted in the
Joint Statement of Issue, his resignation was subsequently rescinded after the
The following items will govern Mr. Laframboise’s re-employment and continued employment:
1 Mr. Laframboise will be required prior to returning to service, agree to undergo a Company medical assessment for fitness for duty, including any tests (blood, urine or breath analyses) deemed necessary by the Chief Medical Officer, or designate. Should the fitness for duty assessment determine that Mr. Laframboise is not medically fit to occupy his position, because of a substance use disorder, Mr. Laframboise will no longer be eligible for re-employment and or continued employment, and his file will remain closed with CN.
2. This “last chance” agreement will serve to resolve any and all outstanding issues, including grievances submitted on Mr. Laframboise’s behalf.
3. Mr. Laframboise will be subject to an employment contract for two years following the date of signature and it is understood that violation of the Company’s Drug and Alcohol Policy will result in Mr. Laframboise’s immediate discharge from Company service.
4. Mr. Laframboise’s time out of service between the date of his resignation and re-employment will be without wage or benefit compensation and without loss of seniority.
5. Mr. Laframboise will be subject to an employment contract for a term of two years following the date of a medical approved reinstatement.
6. Mr. Laframboise will be subject to random unannounced drug and alcohol testing for the duration of this contract.
7. Upon successful reinstatement, Mr. Laframboise will be placed on the position he held prior to his resignation.
8. Mr. Laframboise will be required to meet with Mr. Doug Ryhorchuk General Superintendent – MacMillan Yard and/or Mr. Michael Farkough General Manager – Toronto Division and your office to review this document and the overall Company expectations of Mr. Laframboise regarding CN Attendance Management Standard Policy and work performance, which will be monitored. Failure to comply with CN’s AMS policy will result in termination of this contract.
(signed) F. Laframboise
The letter of termination of October 11, 2007 reads in part as follows:
Item Number 1 of the reinstatement agreement provided, that you must pass a medical assessment in order to be eligible for reinstatement. As you failed to meet the terms and conditions of the reinstatement agreement, your employment file with CN will remain closed.
Terminal Superintendent, MacMillan Yard
The basis for the Company’s position that the grievor failed to pass the medical assessment is set out in a letter the Company’s OH&S Department which reads as follows:
Under the terms of the employment contract for Mr. Terry Laframboise signed October 1, a medical assessment of fitness for duty was organized by CN Occupational Health Services. Mr. Laframboise did not pass the medical assessment of fitness for duty because of a positive drug test (illegal drugs).
Please let me know if you need any more information
CN Occupational Health Services
The Company noted that it was Local Chairman Glen Gower who contacted the Company, some two and a half days after the incident, to say that the grievor had been in shock and wished to rescind his resignation. The Agreement was put in place on October 1, 2007 for the grievor’s possible reinstatement. The grievor failed the first condition of his reinstatement when he tested positive for illegal drugs. The illegal substance was identified as THC, a marijuana metabolite. The Company referred to several awards of this office which upheld the dismissal of an employee where there has been a violation of a condition of the reinstatement agreement, including a failed drug test. The Company maintains that its decision to close the grievor’s file was justified under the circumstances.
Arbitrator notes at the outset that the grievor was a new employee, having been
in the service of the Company only since April 2007. The Union states in the
joint statement of issue that the grievor was receptive throughout the process,
lacked experience and had a clear disciplinary record. These factors are not of
any significant weight in this case given that the grievor’s continued
employment, subsequent to his resignation, hinged on his fulfillment of the
conditions set out in the Agreement dated October 1, 2007.
to the pivotal provision which led to the closing of the grievor’s employment
file, Item #1, I note the Union’ s claim that the fitness for duty assessment
by the Chief Medical Officer has two components: first, fitness for duty and,
second, whether the grievor suffered from a substance disorder. The
Arbitrator does not accept the
I do not accept the
The grievor failed to meet one the requirements of his reemployment Agreement. His failure to do so was a consequence of his inability to pass a drug test. Given the nature of the Agreement between the parties, there is no basis for the Arbitrator to interfere with the decision not to reinstate the grievor. Accordingly, the grievance is dismissed.