CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
SUPPLEMENTARY AWARD TO
CASE NO. 4139
Heard in Montreal, May 15, 2013
CANADIAN PACIFIC RAILWAY COMPANY
TEAMSTERS CANADA RAIL CONFERENCE
There appeared on behalf of the Company:
B. Sly – Director Labour Relations, Calgary
M. Thompson – Manager Labour Relations, Calgary
J. Edwards – Occupational Health Nurse, Calgary
M. Chernenkoff – Labour Relations Officer, Calgary
There appeared on behalf of the Union:
K. Stuebing – Counsel, Toronto
D. Olson – General Chairman, Calgary
D. Fulton – Vice General Chair, Calgary
D. Able – General Chairman, Calgary
M. Villemarie – Grievor, Medicine Hat
Following the Arbitrator’s award herein dated September 18, 2012 the parties have been unable to agree on the appropriate compensation of the grievor with respect to the direction that he be reinstated “…with full compensation for all wages and benefits lost…”. Essentially, the Company takes the position that the grievor’s physical condition at all material times would have prevented him from performing any meaningful amount of work, with or without accommodation, during the period following the termination of his employment to the date of the Arbitrator’s award. It is clear that following the Arbitrator’s award the grievor’s medical condition has not in fact allowed him to return to work, a status which, it would appear, may continue indefinitely. The Company submits that it has effectively compensated the grievor for the period of time covered by the Arbitrator’s direction by ensuring he received full WIB entitlement for certain periods of time in 2010 and 2011. Significant in the Company’s position is that commencing on March 1, 2011 the grievor received full CPP disability benefits, something which he could receive only if he was determined by the Canada Pension Plan to be unfit for any work.
The contrary position of the Union is that the grievor would have been able to work without restrictions as a conductor during all of the period between his termination and reinstatement and should therefore be paid total compensation of $118,283.37.
Having heard both parties, while I am not persuaded that the grievor would have worked at the level of earnings projected by the Union, I am also not persuaded by the Company’s submission that the insurance payments which he received coupled with the top-up paid by the Company placed him in a sufficient position of being made whole. While no precise accuracy can be brought to bear in what is admittedly an exercise in presumptions in a relatively complex case, I am satisfied that in the circumstances the grievor should receive some compensation beyond what the Company has acknowledged. I therefore direct that the grievor be paid compensation in the amount of $ 50,000.00, such amount to be treated as wages paid and calculable as pensionable service.
May 17, 2013 _______________________________
MICHEL G. PICHER