CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4033
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEES DIVISION
Dismissal of Employee J.
JOINT STATEMENT OF ISSUE:
contends that: (1) The grievor
complied fully with the conditions of the
denies the Union’s contentions and declines the
(SGD.) WM. BREHL (SGD.) B. LOCKERBY
PRESIDENT LABOUR RELATIONS OFFICER
There appeared on behalf of the Company:
W. Scheuerman –
Labour Relations Officer,
M. Goldsmith –
Manager, Labour Relations,
M. Chernenkoff –
Labour Relations Officer,
L. Trueman – Director, Occupational Health Services
There appeared on behalf of the
Wm. Brehl –
D. W. Brown –
A. Dellaporta – Director, Atlantic Region
AWARD OF THE ARBITRATOR
confirms that the grievor has a long-standing record as an alcoholic, a medical
condition which unfortunately gave rise to discipline over the years of his
service with the Company. It appears that in April of 2010 the grievor was
discharged for being under the influence of alcohol while at work on
2. Before actually recommencing duty or training, [Employee J] must first submit to a safety sensitive medical examination, or any other medical assessment deemed necessary, under the terms and conditions directed by the Occupational Health Services department, which will include a substance test. In this regard, [Employee J] must first be determined to be medically fit to return to service in his normal position by the OHS Department.
In furtherance of the agreement Employee J underwent an independent medical examination with Dr. Brendan Adams. Dr. Adams’ report, which is extensive, found that the grievor’s recovery was less than compelling, and that a number of unanswered questions remained. In that regard the doctor expressed himself, in part, as follows in his report:
Overall, even allowing for the language and culture differences evident today, I am markedly unimpressed with [Employee J’s] recovery, despite the fact that superficially he appears to be doing everything that he has been told to do. He shows no sign of deeper insight into alcoholism and one gets a strong feeling that the has been through the assessment and intake process so many times that his answers are very stereotyped now. He shows no deeper emotional insight into recovery, has not had any significant emotional experiences in recovery, and is unable to articulate in any meaningful sense what the 12 steps really mean to him. It is not apparent to me that he is working very effectively with his sponsor, although he has several individuals that he refers to as sponsors. He is certainly attending more than the mandated three meetings per week. It is interesting when given no direction, at the start of this interview, and asked what it was that brought him here, he focuses on the pure mechanics of returning to work at the railroad as if going down a list and ticking off the boxes. While he does not specifically deny historical items, there is a tendency to minimize and gloss over much of the details of his latter alcoholic career. As such, I do not gain any sense that his recovery is stable and I would certainly be unwilling to certify him as fit for safety sensitive or safety critical work. It is possible that, if accommodation were available in non-safety sensitive work he might be returned to work on a rigorous monitored program. He should have frequent unannounced drug testing, and in particular, attention should be placed on benzodiazepines which have exactly the same neurological effect as alcohol, as he appears to have abused these in the past. If he is able to maintain sobriety for at least one year then further consideration could be given to returning him to safety sensitive work.
Based on the report
of Dr. Adams the Company came to the conclusion that as he failed to comply
with paragraph 2 of the Return to Work agreement Employee J was subject to
dismissal. It appears that on or about
3. It is agreed that [Employee J] must first comply with the conditions set forth, in item 2, before any of the remaining conditions, contained in this agreement, have application.
The position of the Company, therefore, is simply that the grievor failed to be certified as fit to return to service as contemplated in item 2, and that he therefore failed to honour the conditions of reinstatement which resulted in his continuing dismissal.
Upon a review
of the positions of both parties the Arbitrator can understand the position
taken by the Company. The fact remains, however, that the Company’s statutory
obligation under the Canadian Human
Rights Act is to offer reasonable accommodation, short of undue hardship,
to an employee suffering from a disability, as was the case for Employee J.
While it is true that the return to work agreement was an attempt at
accommodation, when it became frustrated by the opinion of Dr. Adams it is
arguable that the Company, and the
confirms, without apparent contradiction, that in fact the grievor has
maintained sobriety for close to a year since the
Based on the evidence before me, and in partial reliance on the opinion of Dr. Adams, I am satisfied that this is an appropriate case for finding that accommodation was not sufficiently explored by the parties in light of the conclusions of Dr. Adams and to direct that the grievor be reinstated to employment rolls forthwith, with the direction that the parties meet to consider the possibility of another Return to Work agreement under such conditions as they deem appropriate, or failing their agreement for the matter to be returned to the Arbitrator to be ultimately resolved by this Office. In my view this is not a circumstance which justifies any order for compensation, although it is to be hoped that the implementation of this award will lead to the grievor returning to gainful employment without unreasonable delay.