SHP 202

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

CANADIAN DIVISION BROTHERHOOD RAILWAY CARMEN OF THE U.S. AND CANADA

IN THE MATTER OF THE GRIEVANCE P. LONGVAL

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union: B. McDonagh

L. Lelumière

 

 

There appeared on behalf of the Company: D. J. David

J. H. Blotsky

 

 

A hearing in this matter was held at Montreal on May 28, 1986.

 

AWARD

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

JOINT STATEMENT OF FACT

On April 29, 1985, Carman P. Longval, Employee Number 612974 returned to work under the direction of his family physician.

On April 30, 1985, P. Longval was advised by the Company that he would not be allowed to return to work duo to the state of his health.

P. Longval was farther advised that his return to work would be based on the affirmation of the Director of Medical Services for C.P.

JOINT STATEMENT OF ISSUE

It is the position of the brotherhood that Mr. P. Longval is being held out of service unnecessarily in violation of the provision of the Collective Agreement and that he should be returned to work forthwith and reimbursed all rights, benefits and wages lost as provided for in the Collective Agreement.

The Company denies the claim.

The grievor, who entered the service of the company in March, 1977, was classified as a Carman at the material times. He had long been diagnosed as subject to petit mal epilepsy, but this had, it appears, been controlled by medication, and there is no suggestion that this condition had adversely affected his ability to function effectively, at work or otherwise.

On April 7, 1985, the grievor suffered a grand mal epileptic seizure. He was in hospital undergoing tests until April 9. The attending physicianís statement which accompanied the grievorís claim for sickness benefits indicated that the grievor would be off work until April 28. The grievor was advised by the company, however, that he would be required to submit a complete medical report to the companyís Director of Medical Services, who would establish a time for his return to work. That was, in the circumstances, a proper requirement.

In compliance with this request, the grievor submitted a letter from Dr. Duchastel, a neurologist, setting out the grievorís diagnosis, describing his medication and making the following recommendation:

Ce patient pourra avoir un travail normal mais il faudra éviter quíil soit placé dans des situations où la possibilité de la survenue díune perte de conscience puisse provoquer un danger à son intégrité corporelle.

After consideration of this report, the companyís Assistant Chief of Medical Services wrote to the Superintendent of the St. Luc Car department, where the grievor worked, advising that:

In practical terms, this means insuring that Mr. Longval not work at heights greater than, say, four metres or where heavy moving equipment could seriously injure him should he find himself unconscious in their path.

It is hoped that it would be possible to accommodate Mr. Longvalís return to work with suitably modified carmanís duties.

It appears. however, that no such modified duties could be found. The grievorís case was not, it appears, one for which Workersí Compensation was payable, and the company was not willing to provide, as it sometimes does in such cases, light duty work. The collective agreement does not oblige the company to provide such work in a case such as the instant case.

June 13, 1985, Dr. Remillard, a neurologist and an associate of Dr. Duchastel, wrote to the companyís Director of Medical Services. His letter included the following statement:

Nous croyons personnellement quíil peut reprendre le travail quíil nous a décrit (inspecteur et réparation de wagon) sans aucun préjudice ou danger pour sa santé pourvu quíil ne soit pas exposé à monter à des hauteurs plus élevées que celle díun escabeau par exemple.

This letter was followed by a further letter dated 23 June, 1985, which included that following:

Jíai réquisitionné chez lui une tomodensitométrie cérébrale, son encéphalogramme díavril 1983 ne montrait pas díactivité épileptique et la dysfonction légère temporale décrite à gauche peut encore être considérée dans les limites de la normale cíest-à-dire que plusieurs sujets normaux peuvent avoir cette caractéristique au niveau de leur encéphalogramme.

En conclusion, ce patient nía pas eu de crise épileptique depuis líage de 21 ans excepté une le 7 avril 1985 probablement en relation avec la privation de sommeil.

The restriction now imposed by the grievorís doctors is a relatively minor one, although it would limit to some extent the performance of the full range of a Carmanís duties. In the unionís submission, there were several positions at the shop which the grievor would be able to fill, including certain Checker and Lead Hand positions. Further, several individual employees offered to give up their jobs in favour of the grievor. The local union passed a unanimous resolution in favour of applying the terms of the letter of understanding in the grievorís case.

It would appear to be the companyís position that the grievor, because of his condition, may not properly be allowed to perform any work at the shop, which is one where there is heavy machinery and which involves, there is no doubt, certain physical risks. The grievorís physician, however, having had the grievorís work described to him, has certified that the grievor may safely perform it, subject to what I have called a relatively minor limitation. That does not appear to be a limitation against working in a shop where there is heavy machinery, but it is a limitation which would require a degree of accommodation, given the nature of the workplace and the nature of the grievorís work. From the material before me, such accommodation could be made; certainly it has not been shown that the contrary is the case. Specific jobs have been offered for the grievorís benefit, and no reason, save the general reason that the whole shop is a dangerous place, has been established to show why the grievor should not be allowed to accept such offers. The grievorís medication is, as the companyís medical officer acknowledges, appropriate, and in the normal dose. His provincial driverís licence has been returned to him.

Generally, arbitrators have required employers to demonstrate that there is a greater than average medical risk associated with a grievorís physical infirmity which would either create a potential effect on the safety of the workplace or would render him incapable of performing more than a small portion of the work which could easily be assigned to others, Brown and Beatty, Canadian Labour Arbitration (2d ed.) at p. 325. Reference may also be made to the Walmer Transport case, 9 L.A.C. (2d) 229 (Weatherill), where it was said that such cases must be considered on an individual basis, and that a transport driver who had suffered a heart attack and recovered therefrom, could not be prevented from returning to his work simply on the basis of a general "heart attack" rule, unilaterally imposed by the employer.

In the instant case, the employer would appear to have unilaterally imposed a general rule of this sort. Given that the grievor has now presented a medical certificate from an appropriate specialist indicating that he may return to his work without danger, that the limitation on his work is a relatively minor one, and that his fellow-employees are willing to accommodate him in this respect, there would appear to be no sufficient reason why the provisions of the letter of understanding could not be applied in the grievorís case. Of course the companyís concern is a serious one. It has not been shown, however, that the circumstances of the particular case, and the actual possibilities of employment, are such that the grievor must be refused the right to return to his work with, the company.

For the foregoing reasons the grievance is allowed. Failing agreement by the company that the grievor may take up one of the positions which other employees have offered, or failing some other agreement between the parties with respect to suitable employment for him, it is my award that the grievor be returned to work in his classification. He is entitled to compensation for loss of earnings in respect of the period from and after July 2, 1985, being one week after Dr. Remillardís letter of June 25. It was that report, I find, which constituted satisfactory assurance (subject to proof to the contrary, which, as I have found, has not been made), of the grievor capacity to return to work. I remain seized of the matter to determine any matters necessary for the completion of the award.

DATED AT TORONTO, this 24th day of June, 1986.

(signed) J. F. W. Weatherill

Arbitrator