SHP 111

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian Pacific limited

(the "Company")

AND

CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(the "Union")

 

AND IN THE MATTER OF A GRIEVANCE OF J. VACLAVEC

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

M. M. Yorston

 

 

And on behalf of the Union:

W. K. Redhead

 

 

A hearing in this matter was held at Montreal on November 12, 1981.

 

 

AWARD

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

JOINT STATEMENT OF FACT:

On February 4, 1981, Mr. J. Vaclavec, Electrician, Ogden Shops, Calgary, suffered a minor car accident. On the advice of his doctor he took medical leave, reporting as fit for work on March 17, 1981. Mr. Vaclavec was examined by a Company Medical Officer, and was subsequently advised that he was not fit to return to work as an Electrician. His record was closed effective March 31, 1981.

JOINT STATEMENT OF ISSUE:

It is, the position of the Union that under the circumstances Mr. Vaclavec has been unjustly treated.

It is the position of the Company that Mr. Vaclavec no longer meets the physical standard required of an Electrician and that regretfully he can no longer work in that capacity.

The grievor was hired by the company in September, 1972, and has worked since as an Electrician. He has a history of back problems, dating from an automobile accident in 1974. In some instances the performance of his duties at work appears to have caused back pain. The automobile accident of February 1991, referred to in the Joint Statement appears to have caused a whiplash injury.

Although the grievorís doctor certified that he was fit to resume work, it was not improper, in the circumstances, for the company to require him to undergo a medical examination. It is always a condition of employment in a particular job that the employee be physically and mentally capable of performing it. In the grievorís case, it was proper for the company to satisfy itself Ė on medical examination Ė that the grievor met the physical standards appropriate to his job.

It is not necessary to make any general finding as to the propriety or otherwise of the companyís physical requirements of employees in various occupations. In the instant case, the grievor was examined by a company doctor (who was in possession of letters from the grievorís doctor), and the company doctor concluded that the condition causing pain in the grievorís left lower lumbar region was one which would not allow him to work as an Electrician.

It may be said that there is no real conflict of medical opinions, on the material before me. The grievor was, as his doctor certified, generally fit for work, and the whiplash injury had healed. His lower back condition continued however, and it was the opinion of the companyís examining doctor, from his examination of the grievor and his understanding of the work involved, that the grievor could not be allowed to work as an Electrician. In 1980, the grievorís own doctor had stated that degenerative disc disease would be an ongoing problem for the grievor, and that his job as an Electrician would aggravate it.

This opinion was confirmed by the companyís Chief of Medical Services, who had all material reports before him, and who considered the nature of the tasks to be performed by an Electrician, and by the grievor in particular. It was Dr. Mayís evidence that the grievorís work as an Electrician would aggravate the grievorís condition.

The grievor had been assigned to relatively light duties. Even these, as described, involved physical activity of a sort which was considered as involving a substantial risk of serious harm, through aggravation of the grievorís condition. The potential danger, amounting even to paralysis, cannot be ignored.

In these circumstances, it must be concluded that the grievor did not have the necessary physical qualifications to perform his work without unreasonable risk of serious harm. The company was, therefore, justified in removing him from that work. Efforts were made to find other work which would be suitable, but these were unavailing. A question may arise as to the rights of employees who become physically incapacitated, where they may seek to exercise seniority or other rights pursuant to a collective agreement. In the instant case, however, no provisions of the collective agreement were referred to in this regard, and there is no such issue before me.

On the issue before me, it must be my conclusion that the grievor was not unjustly treated, and the grievance is accordingly dismissed.

DATED AT TORONTO, this 18th day of December, 1981.

(signed) J. F. W. Weatherill

Arbitrator