BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

D. David

A. Y. de Montigny

And on behalf of the Union:

A. Rosner

R. Laroche

A hearing in this matter was held at Montreal on December 18, 1985.

The grievor, who was hired by the company in March, 1975 and who at all material times was classified as an Electrician, was discharged on May 21, 1985, for accumulation of 75 demerit marks. The determination to discharge the grievor followed the assessment, on that day, of 20 demerits for "unjustified absence following your work accident of August 21, 1984". The parties have submitted different statements of fact and issue, but there is no substantial dispute as to the relevant facts, and the issue is whether or not there was just cause for the assessment of 20 demerits against the grievor’s record and for his subsequent discharge.

The grievor had been discharged in September, 1982, having accumulated in excess of 60 demerits, 40 of those having been imposed on grounds dealt with in an arbitration award dated May 20, 1983, and which are unrelated to the present case. The grievance with respect to the grievor’s discharge at that time was allowed in part, the penalty being reduced and the grievor reinstated in employment without loss of seniority but without other compensation. The penultimate paragraph of the award concluded as follows:

On October 27, 1983, the grievor was given a caution for failure to request leave of absence. On that the occasion he had, on two successive weeks and without any request in advance, simply advised the company that he would not be in to work. The first absence was for one week, the grievor participating in a training session of the Canadian National Bobsled Team at Lake Placid, New York. The second absence appears to have been for one day, when the grievor travelled to Sherbrooke to see one of the team sponsors with regard to raising money for the team. The grievor stated that he did not realize his absence would affect production so drastically.

The caution which was issued (more severe discipline would, it seems clear, have resulted in the grievor’s being subject to discharge), reminded the grievor of the procedure to be followed each time a request for leave of absence was made. It seems that the grievor has often requested leave for the purpose of participating in the events of the bobsled team, and that the company has consistently granted such requests when they have been made.

On August 21, 1984, the grievor sustained a right wrist fracture while at work. On August 22, a cast was applied and on August 27, following examination by an orthopaedic surgeon, another cast was applied. The grievor was off work and in receipt of workers’ compensation thereafter. At the time the second cast was applied, the surgeon gave the grievor a medical certificate indicating that he would be unable to work for the period August 21 - September 27, 1984. There is no doubt as to the propriety of the grievor’s absence from work during that period.

On September 21, 1984, the grievor attended at the hospital for examination. New x-rays were taken and a new cast installed. No certificate as to ability to work appears to have been issued, and the company does not appear to have been advised of the grievor’s progress at that time. The grievor was again examined on October 12. The grievor had in fact suffered two fractures; one of these was now considered healed, the other not. On November 16 the grievor was examined again. At that time, it was noted that the grievor suffered no pain whatsoever, but that the second fracture was still not sufficiently solidified. The cast was removed and a wrist splint prescribed. The grievor was given an appointment for a further examination in six weeks’ time.

Shortly after the grievor’s accident, mention had been made to the grievor of the possibility of his attending at work on light duties. This suggestion was not followed up, either by the grievor or the company. The company prefers that, if possible, employees attend on light duties, even if those duties involve no substantial work. From all of the material before me, it appears that following the removal of the splint on November 16, the grievor would likely have been able to return to work on light duties. He had not provided the company with sufficient justification for his absence at that point, and in the circumstances, he then had a responsibility to advise his employer of the situation, and to explore the possibilities of his return to work.

It is not clear whether or not the grievor obtained a wrist splint in accordance with the prescription given him by the orthopaedic surgeon. He did, however, go to Europe on about the 21st of November, returning in early December. He went to Europe to assist in the coaching of the bobsled team. He did not advise the company (nor, it would appear, the doctor), of this activity, or seek any permission to be absent on that account. He states that he did not make any bobsled runs during that period.

On November 29 (according to the doctor’s report, which is not entirely consistent with the grievor’s account, in terms of dates), the grievor attended on a Doctor Oliver at the "Clinisport" clinic. He appears to have done this at the instance of the Canadian Bobsled team. He did not advise the company, his other doctors or the Labour Health and safety Commission that he was doing so. Dr. Oliver’s report, dated August 28, 1985, reads, in its material portions, as follows:

On November 28, 1984, the company had written to the grievor requesting some justification for his continued absence from work. The grievor did not reply until he caused a letter dated January 11, 1985, to be sent to the company enclosing two doctor’s certificates. These certificates, dated December 18, 1984 and January 10, 1985, respectively, are form letters in which the grievor’s name and the dates involved have been inserted, and which simply state that the person named is an outpatient at the hospital and unable to work. These certificates do not, in my view, constitute sufficient justification for the grievor’s absence from light duty work of the sort the company states it would have available. The grievor had not in fact seen the doctor on either of the dates shown on the certificates, which were sent to him by mail at his request.

The grievor’s letter to the company dated January 11 was in fact sent by the grievor’s wife, the grievor himself having returned to Europe with the bobsled team on December 30. It does not appear that he made any mention of this to the doctors who were treating him, although it may well be that Dr. Oliver was aware of it. He did not advise the company of his whereabouts, nor request any permission to be absent. He did in fact participate in certain competitive bobsled runs in West Germany. It had not been his intention to participate actively in the sport, but the team had suffered injuries, and the grievor felt called upon to fill in. The Canadian team having no doctor, the grievor sought the advice of the East German team doctor, who applied bandages to the plastic brace in order to immobilize the wrist completely. The grievor made the bobsled runs in the position of fourth man or brakeman, and says that he did not use his right hand. He returned to Canada at the end of January, 1985.

The grievor was seen by the orthopaedic surgeon on February 1, 1985, when progress was noted. He was seen again by another orthopaedist on March 15, and at that time it was noted that the fracture was healed and that the grievor could return to work. On his return to work the grievor was called to an investigation with respect to his prolonged absence. At that investigation, on March 20, it was revealed, in answers to questions, that the grievor had been in Europe during the month of January, and that he had in fact participated in competition bobsled runs. At a subsequent investigation, on March 27, it was revealed that the grievor had been in Europe in the latter part of November.

From all of the foregoing, it is clear to me that the grievor, who was under an obligation to inform the company at reasonable intervals as to his condition and to make reasonable efforts to return to work as soon as his condition would permit him to perform what work was available for him, failed to do so. It is clear, too, that the grievor kept from the company and from the orthopaedic surgeons who had been treating him, the nature of his proposed athletic activities which it would be reasonable to think might bear on his recovery. His visits to Dr. Oliver would appear to have been for the purpose of obtaining some form of professional approval for his projected activity, but the giving of such approval (without consultation with the treating surgeon, it seems), leads to the inference, which is not at all contradicted by any other material, that similar approval ought to have been forthcoming for the grievor’s performance at least of light duty tasks for his employer. The grievor had an obligation in that respect. His course of conduct clearly reveals an attempt to avoid that obligation.

Accordingly, it is my conclusion that the grievor’s absence from work, at the very least his absence for the purpose of exploring the possibility of light duties (which duties, from the material before me, would be rather lighter than participation in international bobsled competition, even the limited participation in which the grievor says he engaged), was not justified. The grievor was, in the circumstances, subject to discipline, and I find there was just cause for the assessment of 20 demerits.

Accordingly, the 20 demerits stands on the grievor’s record. The result is that the grievor’s accumulated demerits exceed 60. This is, in my view, a proper case in which to apply the system of discipline in effect: the grievor was subject to discharge, and there was just cause for that result.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 14th day of January, 1986.