CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3808
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEES DIVISION
Dismissal of Mr. Derek Patterson.
UNION’S STATEMENT OF ISSUE:
By way of letter dated
The Union contends: That the grievance in this case was initiated at Step II of the grievance procedure because of the wording of section 15.6 of the collective agreement, the provisions of the CROA&DR agreement and the long past practice between the parties; That the grievor was injured in 2002 and was in receipt of WCB benefits: That since late 2007 the grievor has not been required to take medication and is capable of returning to full, unrestricted duties with the Company: That the Company has failed in it s duty to accommodate the grievor.
The Company denies the Union’s contentions and declines the
(SGD.) WM. BREHL
There appeared on behalf of the Company:
R. Hampel –
D. Freeborn –
Manager, Labour Relations,
M. Thompson –
Labour Relations Officer,
M. Moran –
Labour Relations Officer,
M. Pilon –
J. Tremblay –
Employee Health Advisor,
N. Chantous –
Employee Relations Specialist,
And on behalf of the
Wm. Brehl –
D. Brown –
K. Deptuck –
National Advisor, Teamsters
D. Patterson – Grievor
AWARD OF THE ARBITRATOR
It is not disputed that the grievor, Mr. Derek Patterson, has
not worked for the Company since he suffered a job-related injury in 2002. By
way of a letter dated
A review of Company records has determined that your
employment status has been inactive since
In view of the foregoing, please be advised that your
employment record will be closed effective
By reason of certain objections raised by the
It is not disputed that the information available to the
Company, on record since at least 2003, is that the grievor was judged by the
WSIB to be permanently disabled. The conclusion which the Company drew from the
information provided by the WSIB was to the effect that Mr. Patterson was not
willing to undertake accommodated or modified work unless it could be in his
home location of
Now Mr. Patterson presents different information. He advises
that he has in fact performed relatively heavy physical work, at least for two
seasons, at a fishing camp in
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.
On the facts of the case presented the Arbitrator sees some
merit in the
For the purposes of clarity, the Arbitrator accepts, as argued by the Company, that the initial obligation was upon Mr. Patterson to communicate with the Company to indicate a significant change in his medical condition or medical restrictions. His failure to do so would, in my view, have justified the Company in closing his employment file without further inquiry. I also accept the Company’s position that no further inquiry should be undertaken by the Company absent a medical opinion, something more than the grievor’s own verbal assertion, to confirm that there was a material change in his physical condition and that he is fit to perform productive duties, whether on an unrestricted or a modified basis.
How, then, is the instant case to be resolved? In the Arbitrator’s view a fair result would be to place the grievor at the same position he was in at the point in time when the Company’s letter requesting further information was provided to him. A conditional order of reinstatement would be appropriate, conditioned upon the grievor obtaining a medical opinion indicating that there has been a significant change in his condition and that he is now fit to perform either modified or unrestricted duties. The presentation of that information to the Company would then allow for the grievor’s reinstatement into his employment, subject to a proper assessment of the possibility of accommodation, should that be necessary. If the medical opinion should indicate that he is fit to work without restrictions, his reinstatement should be into his prior employment. In either case, his reinstatement will be subject to such reasonable verification as the Company might require, by medical examination or otherwise.
The grievance is therefore allowed, in part. The Arbitrator directs that should the grievor provide to the Company, within sixty days of the date of this award, a written medical opinion confirming that he is fit for modified duties or for unrestricted duties, he shall be reinstated into his employment and be made the subject of joint discussions involving the Company, the Union and the grievor with respect to an appropriate accommodation, should that be necessary. For the purposes of clarity, should the grievor take the position that he will not work in any location other than Ignace, and he does have physical restrictions which prevent him from performing his regular duties, the Company’s obligation of reasonable accommodation may well be satisfied.
The Arbitrator returns the matter into the hands of the parties for the purposes of implementing the foregoing, and retains jurisdiction in the event of any dispute.