CANADIAN
RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3912
Heard in
CANADIAN NATIONAL RAILWAY COMPANY
And
TEAMSTERS
EX PARTE
DISPUTE:
The
dismissal of Employee G of Vancouver, BC on
UNION’S STATEMENT OF ISSUE:
In or about February of 2006 the grievor voluntarily reported to the Company that he suffered from a drug addiction and requested assistance through the Employee & Family Assistance Program (EFAP). The grievor was diagnosed with having a substance abuse disorder and underwent treatment.
In January
2008, the Company notified the grievor to enter into a Continuing Employment
Contract within 21 days or the grievor would “no longer be eligible for
continuing employment/reinstatement.” The grievor entered into the contract on
On
The
The
The Union
requests that the dismissal be expunged from Employee G’s record, that he be
reinstated without loss of seniority or benefits and that he be made whole for
all losses including damages pursuant to the Canadian Human Rights Act. Alternatively, the
The Company
disagrees. The Company contends that there is no dispute regarding the terms
and conditions of the contract and all parties were signatory to the contract.
The Company contends that it properly applied the agreed upon terms and
conditions of the contract. The Company maintains that Employee G’s dismissal
was warranted and has declined the
The
COMPANY’S STATEMENT OF ISSUE:
On
On
The
The Company
disagrees. The Company contends that there is no dispute regarding the terms
and conditions of the Continuing Employment/Reinstatement contract. In fact,
all parties were signatory to the contract. The Company properly applied the
agreed upon terms and conditions of Employee G’s contract. The Company
maintains that Employee G’s dismissal was warranted and has declined the
FOR THE
(SGD.) J. HOLLIDAY (SGD.) D. CROSSAN
GENERAL CHAIRMAN FOR: DIRECTOR HUMAN RESOURCES
There appeared on behalf of the Company:
K. Morris –
Sr. Manager, Labour Relations,
D. Crossan – Manager, Labour Relations, Prince George
B. Laidlaw –
Manager, Labour Relations,
There appeared on behalf of the
J. Holliday –
General Chairman,
W. Martin –
Local Chairman,
G. Geddes –
Local Chairman,
Employee G – Grievor
AWARD OF THE ARBITRATOR
The material before the arbitrator confirms that Employee G struggled with a cocaine addiction. Significantly, he self-reported his condition to the Company’s Occupational Health Services (OHS). To the credit of both the Company and to the grievor, both worked together for some three and one-half years in an endeavour to accommodate his circumstances and to help him overcome his addiction. He was ultimately dismissed for testing positive for cocaine after his return to work under the terms of a continuing employment/reinstatement contract.
The
Counsel for the
The Monitoring Process
Monitoring is arguably the most important component in the treatment of individuals with substance use disorders. Like many other chronic illnesses, addictions are marked by early lapses or relapses, from which the recovering individual will learn valuable information and strengthen their recovery. Personnel providing components of the Monitoring Process provide accountability and support, seeing the recovering individual very frequently early in recovery and less frequently with the prolonged abstinent stability. The risk of further relapse is greatly reduced after a period of two years of uninterrupted abstinent recovery.
…
Relapse
Especially during early recovery when the risk of relapse is greatest, more vigilance is needed by both the recovering individual and those providing relapse prevention support. Although all incidents of non-compliance must be reported to the CMO, not all episodes of substance use will necessarily result in maximum consequences. When the lapse has been brief and the individual demonstrates motivation, behaviour and attitude consistent with recovery, the response of the CMO in consultation with the Addiction Medicine Physician will be more flexible, depending on individual circumstances.
Reference is also made to a
number of judicial and arbitral decisions including Toronto Transit Commission (1998) 75 L.A.C. (4th) 180 (Davie); Canadian Union of Public Employees, Local
234 and City of Cornwall [2006] O.L.A.A. No. 560 (Burkett) and the decision
of Arbitrator Hope in SHP 447
involving Canadian Pacific Limited and CAW Local 101.
The Arbitrator
agrees with the comments of Arbitrator Burkett in the City of
In the case at hand the Company places great reliance on the efforts which it made with respect to the opportunities given to the grievor over a period of some three and one-half years, including an extended leave of absence, to assist in his rehabilitation. It also relies on the continuing employment/reinstatement contract, asserting that that document reflects the agreement of the parties that accommodation had been granted to the point of undue hardship, arguing that the failure of the grievor to honour its conditions did justify the termination of his employment in all of the circumstances.
The Arbitrator
does not consider it necessary to rule on the
Firstly, as
stressed by counsel for the
In the
Arbitrator’s view there are many mitigating and exceptional factors in the case
at hand. The grievor is an employee of thirty years’ service with both BC Rail
and the instant company. As stressed by counsel for the
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for any wages and benefits lost and without loss of seniority, subject to the following conditions which the grievor must accept:
1 He shall refrain from the consumption of alcohol or prohibited drugs.
2 He shall be subject be subject to random drug testing, to be administered in a non-abusive fashion, for a period of not less than two years.
3 He shall continue in the activities of NA and/or AA, providing to the Company and to the Union quarterly written confirmation of his attendance and activities in that regard by an appropriate representative of those organizations, for a period of not less than two years.
4 His return to work shall be conditioned upon his providing a medical certificate of his fitness to perform the duties of the conductor’s craft.
5 Any failure to honour the conditions herein, and any positive drug or alcohol test result, shall render the grievor liable to discipline, up to and including discharge.
ARBITRATOR