BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

J. W. Asprey

A. Manocchio

J. A. McGuire

A hearing in this matter was held in Montreal on March 13, 1980.

The Joint Statement of Fact and Issue in this matter is as follows:

* * *

It is not necessary to elaborate on the facts to any substantial extent. The grievor did not immediately lose any work, following the incident referred to in the joint statement. His hearing had returned, it seems, by the following shift. During that shift, however, a loud engine noise produced a similar effect: the grievor lost his hearing again. Following that shift, he was examined by a doctor.

The first diagnosis, given, by hypoacousis, is not, it would seem, particularly informative. It was recommended that the grievor not work in a noisy area for a period of twelve days. About two weeks later, the, grievor was examined by a specialist who recommended that the grievor work in a non-noisy environment for six months.

The grievor was given other work but there is no doubt that the arrangement was not satisfactory either for the grievor or for the company. The grievor seems to have felt that he was being persecuted and the management may have felt the grievor was not performing sufficiently. The grievor was eager to improve himself, but there was little opportunity to do so, given the restrictions imposed on his activity and given the noise level which undoubtedly prevails at the shops.

On February 9, 1979, the grievor's doctor advised that due to his diminished hearing, the grievor was totally unable to work for an indefinite period. The grievor was thereafter on medical leave and properly so. It appears that be received Workmen's Compensation payments and that he underwent extensive tests in respect of his hearing difficulties. These tests appear to have revealed that, generally, the grievor's hearing capacities were within normal limits and there appears to have been no specific determination of any particular defect.

On April 30, 1979, Dr. Normand Gagnon, a well-respected specialist who had examined the grievor, noted in a letter prepared for the Workmen's Compensation Commision (but not delivered until later), that the grievor had no permanent partial disability, but that he would see the grievor again. On the same date, April 30, 1979, Dr. Gagnon issued a certificate that the grievor was able to return to his work on May 7, 1979.

The grievor reported to work on that date and presented the doctor's certificate but was not allowed to work in his classification of Machinist.

In these circumstances and it is to be remembered that the grievor, on reporting to work, presented a specialist's certificate stating, without qualifications, that the grievor was able to work – there is an onus on the company to demonstrate that it was justified in refusing to allow the grievor to work. There is, as was said in the Firestone case, 3 L.A.C. (2d) 12, an entitlement in an employer to satisfy itself as to the fitness of its employees to carry out their assigned tasks. Indeed, the employer is under an obligation in that regard. But where the employer does refuse work to an employee apparently qualified to do it, and who is, as the grievor was, otherwise entitled to it then the employer must, justify the refusal.

The main ground on with the company appears to rely in this case is the note dated May 14, 1979, which Dr. Gagnon appended to his report dated April 30, 1979 and which was subsequently sent to the Workmen's Compensation Commission. In that note, Dr. Gagnon indicated with respect to certain tests that, « le tout est dans les limites de la normale ». With respect to the grievor's returning to work, he noted that the grievor had told him the company did not wish him to return because they were afraid the work would affect his hearing. On this point, in his letter to the Commission, Dr. Gagnon simply said « Je vous laisse décider a ce sujet ». He then concluded with this comment, on which the company particularly relies:

The Union urged that this last remark be ignored as a "gratuitous" comment. In my view, however, I think it must be read as an expression of some doubt or at least reserve on the part of Dr. Gagnon with respect to the desirability, from the point of his hearing, of the grievor's returning to his job.

The important point is, of course, whether or not it was reasonably likely that work as a machinist in the Angus shops would have a seriously adverse effect on the grievor's hearing. That is a question which Dr. Gagnon did not express an opinion on. He left that to the Workmen's Compensation Commission. The Commission, it seems, has refused to grant the grievor any payment on account of any permanent partial disability. The company, which, as an employer, has the responsibility of assigning the grievor to work or not, takes the position that there is a real, danger to the grievor's hearing (and I do not elaborate on the other dangers consequent on that) if the grievor works as a Machinist at Angus shops. Is that position justified – or, more precisely, has, it been shown to be justified?

The company adduced evidence to the effect that while the grievor's hearing as such is within normal limits, and while clinical tests apparently reveal no specific defects, the, grievor has what must simply be called "sensitive ears", and that work in a noisy - environment can be expected to cause incidents such as those which occurred in the grievor's case. "Sensitive ears" is not a condition which can be shown by testing, although it would be revealed by experience.

This conclusion, drawn it seems from the fact of the occurrence of the incidents of hearing loss, is not, I think, consistent with the determination that the grievor had no permanent partial disability. It is certainly not consistent with the unqualified certificate of Mr. Gagnon that the grievor was able to return to work. The company's conclusion is, however one made in good faith and on the basis of real experience. It is consistent with the doubts expressed by Dr. Gagnon in his note made on April 14, 1979.

In all of the circumstances, it is my view that the company has not shown that it was justified in refusing to permit the grievor to return to work and in rejecting – as in effect it did – Dr. Gagnon's certificate (it should be said that the company fully accepts Dr. Gagnon's qualifications and expertise). The company was, nevertheless, justified in raising a question as to the grievor's condition. The difficulty in this case is that the question has not been resolved in an appropriate manner. Dr. Gagnon, for example, seems not to have been asked for an opinion based on information as to the actual circumstances of the grievor's work. There seems to have been no suggestion that some other independent opinion be sought.

Accordingly, it is my view that the grievance must succeed. That Is to say, the grievor should be treated as having been entitled to work in his regular classification from and after May 7, 1979. While it is my award that the grievor be compensated in accordance with the foregoing, I do not now award that the grievor be assigned to work in his classification. The company may require the grievor to be examined by an appropriately qualified doctor or doctors, and the matter of his safe performance of work in his classification should be determined objectively as a medical question, in the light of information as to the circumstances, in which the work is to be performed. If the matter cannot be resolved in this way, then medical evidence on the matter may be presented before me at a further hearing. Any questions as to the compensation, if any, payable to the grievor in respect of the period following the issuing of the medical opnion contemplated by this award may be dealt with at such further hearing, if necessary.

DATED AT TORONTO, this 24th day of March, 1980.

Arbitrator