CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4055
CANADIAN PACIFIC RAILWAY COMPANY
Appeal of the Company’s failure to accommodate Conductor Tim Toth.
JOINT STATEMENT OF ISSUE:
Tim Toth is
an employee in
Since 2008 Mr. Toth has made consistent efforts in seeking a return to work to a suitable position within his medical limitations. He has undergone retraining and obtained a certificate in Occupational Health and Safety. Significantly, Mr. Toth has applied for numerous Company posted positions which would be within his restrictions. In spite of Mr. Toth’s efforts, the Company has not placed Mr. Toth in a position within his restrictions.
FOR THE UNION: FOR THE COMPANY:
(SGD.) D. OLSON (SGD.) D. FREEBORN
GENERAL CHAIRMAN FOR: ASSISTANT VICE-PRESIDENT
There appeared on behalf of the Company:
D. Freeborn –
Manager, Labour Relations,
M. Thompson –
Labour Relations Officer,
R. Varney –
Director, Return to Work Programs,
J. Bartkiewicz –
Manager, OHS Programs,
There appeared on behalf of the
M. A. Church –
D. Olson –
D. Fulton –
G. Crawford –
T. Toth – Grievor
AWARD OF THE ARBITRATOR
Upon a review
of the evidence and materials presented the Arbitrator has substantial
difficulty with the allegation of the
Of greater concern to the Arbitrator is the fact that the grievor communicated to the Company that he was not willing to accept accommodation in a job which would involve a lower level of earnings than that which he had previously had as a conductor. In particular, Mr. Toth declined to accept an opening into a position as a Rail Traffic Controller because, in part, to do so would involve him taking a more junior position in another trade union.
It is well settled that an employee who seeks to be reasonably accommodated by reason of a disability must be prepared to contribute to the accommodation process. Nor is a disabled employee entitled to be accommodated in the position of his or her choice or in a position which is necessarily at the same earning level as that employee’s prior position. It is of course open to an individual to decline accommodated positions which are offered, but in the face of such declinations it is less than compelling for that same individual to assert that the Company has made no reasonable effort to accommodate him or her.
Having reviewed the entirety of the record, I am satisfied that the Company has not violated its obligations under both the collective agreement and the Canadian Human Rights Act to attempt to reasonably accommodate the grievor by reason of his disabilities.
On the foregoing basis the grievance cannot be allowed. That said, however, the Arbitrator emphasizes that the grievor continues to be an employee entitled to accommodation, subject to reasonable cooperation on his part. There appears to have been some degree of miscommunication between the parties, for example in relation to possible placement of the grievor in an AIR position which would not require him to work on or near moving trains. If an accommodation is possible in that regard, it is the Arbitrator’s hope that the parties will explore that possibility as well as others. As they do so, however, it is clearly incumbent upon the grievor to respond to all communications sent to him by the Company and to be prepared himself to make reasonable adjustments.
For the foregoing reasons the grievance must be dismissed.