CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4077
Heard in
Concerning
CANADIAN NATIONAL RAILWAY COMPANY
And
TEAMSTERS
EX PARTE
DISPUTE:
Administrative
closure of the employment file of Employee R on
COMPANY’S STATEMENT OF ISSUE:
During a
period of suspension the grievor was contacted by CN Occupational Health
Services and advised that the Chief Medical Officer had reviewed his medical
file and documentation related to the
The Company
instructed the grievor to attend investigations on
The
The
The Company
denied the request and disagrees with the
FOR THE COMPANY:
(SGD.) P. PAYNE
FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
P. Payne –
Manager, Labour Relations,
D. VanCauwenbergh –
Director, Labour Relations,
K. Gilks – Trainmaster, Edson
K. Smolynec – Sr. Manager, Occupational Health Services
There appeared on behalf of the
M. Church –
Counsel,
B. R. Boechler –
General Chairman,
R. A. Hackl –
Vice-General Chairman,
Employee R – Grievor
AWARD OF THE ARBITRATOR
The material
before the Arbitrator confirms that following the investigation of an incident
which occurred on
On
A second notice
of investigation was sent to him for an investigation to be held on
I fear for my safety, my freedom and my ability to earn a living on cn rail or any other place of employment due to this massive very aggressive harassment from cn rail demanding things. … I will not step a foot onto cn rail property with ongoing criminal investigations and very serious allegations being made from cn rail and cn rail tried to force me to see a psychiatrist under the guise of a medical psychiatric examine to see if I was able to occupy a safety sensitive position, when all along it is a form of evidence cn rail is trying to use against me.
The Company
then forwarded to the grievor a letter on
Although the
grievance alleges that the Company improperly required the grievor to attend medical/psychological
evaluations, at the arbitration hearing the
Having carefully considered all of the evidence, the Arbitrator is of the view that this grievance can be partially allowed, but that the Company did not act improperly in demanding that the grievor undergo a medical and psychiatric evaluation, in light of all of the facts in the possession of the Company, some of which are touched upon in CROA&DR 4076. In my view it is appropriate to roll back the closing of the grievor’s file, to give him one final opportunity to accede to the Company’s request that he cooperate in undergoing an independent medical examination to evaluate his physical, emotional and psychiatric fitness to return to work. In the Arbitrator’s view, however, the opportunity for the grievor to comply with that requirement cannot be extended indefinitely, as the parties are entitled to a degree of certainty and finality in this matter.
The grievance is therefore allowed, in part. The Arbitrator directs that the Company restore the grievor to the employment rolls and that it revoke the closure of his employment file accordingly, restoring him to his employment status without loss of seniority and without compensation for any wages or benefits which he has lost. The grievor shall have a period of sixty days in which to comply with the Company’s request that he undergo a physical and psychiatric examination to determine his fitness for duty. Should he fail to comply with that requirement within the sixty day period from the date of this award the Company shall then be justified in closing his employment file.
(signed) MICHEL G. PICHER
ARBITRATOR