SHP 263

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian Pacific Limited

(the "Company")

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(The "Brotherhood")

AND IN THE MATTER OF THE GRIEVANCE OF T. SAMSON

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

A. Rosner

R. Laroche

APPEARING FOR THE COMPANY:

A. de Montigny

D. David

 

A hearing in this matter was held in Montreal on February 21, 1989.

 

 

AWARD

The grievor, who was hired by the company in October, 1970, was discharged effective July 16, 1987, on what may be described as medical grounds. At the time of his discharge the grievor, who had served his apprenticeship with the company, and had worked for a lengthy period as a relief foreman, was employed as an Electrician at the companyís Weston Shop. He appears to have had a bad discipline record in respect of attendance.

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

JOINT STATEMENT OF FACT:

On April 20, 1987, Mr. T. Samson reported unable to attend work on account of a neck injury sustained on April 17, 1987 which he claimed was a recurrence of his previous medical problems of 1985-1986. He subsequently made application for weekly indemnity benefits.

In a letter dated May 5, 1987, the Weston Shopsí Works Manager, Mr. R.C. DeVuono, requested that Mr. Samson have his physician provide a full medical report to the Companyís Chief of Health and Medical Services in connection with his inability to work, to be submitted "two weeks before your return to duty, but no later than June 5, 1987."

In a subsequent letter dated July 7, 1987, Mr. DeVuono wrote the employee saying that no report had been received and that unless one were forthcoming before July 15, 1987, "we will consider your condition permanent and that your return to work on a trial basis (August 24, 1986) was unsuccessful. On that basis we will have no alternative but to close your record."

In a letter of July 16, 1987, Mr. DeVuono wrote again to Mr. Samson and stated:

"Unfortunately no report has been received by our Chief of Health and Medical Services. Therefore we consider your condition permanent and that your return to work on a final trial basis unsuccessful. On that basis we have no alternative but to close your record and terminate your employment with CP Rail effective July 16, 1987."

JOINT STATEMENT OF ISSUE:

The Union contends that the grievorís employment was terminated without just cause. The Union is seeking reinstatement with restoration of lost salary and all other benefits and privileges.

The Company denies the Unionís contentions and declines the claim.

The termination of the grievorís employment was not treated as a disciplinary matter. If the grievorís termination were to be characterized as a disciplinary matter, then I would agree with the union that it was a nullity by reason of non-compliance with the requirements of article 28 of the collective agreement, but that is not this case.

As has often been said, an employer is entitled, and indeed obliged, to ensure that its employees are capable of performing the work assigned. This includes being sure that an employee is physically capable of such work. Where there is good reason to consider that an employee may not, by reason of physical or medical disability, be capable of performing his work, then the employer may properly require assurances in that regard. In the instant case, the company quite properly, I consider, sought such assurances Ė or rather, medical information which would assist in the establishment of such assurances Ė and the grievor was, I think, under an obligation to comply with the companyís request.

The company not receiving the medical report it had requested, it concluded, as it had advised the grievor it would, that his condition was permanent, and advised the grievor that his employment was terminated on that account. The case is presented, then, as one of "innocent absenteeism". In such a case, the onus is on the employer to show, by clear and cogent evidence, (and on the balance of probabilities) that the prognosis is such as to make it unlikely that the grievor could give reasonable attendance at work in the future.

The material before me does not permit such a prognosis to be made. It is true that the companyís presumption in that regard is at least in part attributable to the grievorís failure to ensure that the required medical information was provided promptly. This failure would appear to have been due in part to some confusion, or perhaps even some abruptness on the part of his doctor, and in part to the grievorís own laxity in not responding in a prompt and responsible way to the companyís obviously proper request. These are not, however, circumstances in which the grievor could be said somehow to be estopped from denying the companyís assumptions as to his condition, or putting the company to the proof thereof, nor are they circumstances in which it could properly be said that the grievorís "silence" in the face of the companyís requests for information could be said to give "consent" to the conclusion the company drew.

Accordingly, it my conclusion on the material before me that it has not been shown that the grievorís condition was such that, as the company put it, "he would be unable to resume his position in the foreseeable future". Proper cause for the termination of his employment has not been shown.

The grievorís failure to respond to the companyís request might have been considered as grounds for the imposition of discipline: there is, as is suggested in Shopcraft Case No. 189, an obligation to provide the employer with information in such circumstances. In the instant case, had the grievor been called to an investigation, the matter might be expected to have been properly aired, and the required medical information forthcoming. As has been noted, however, the company did not take that course, and this is not a discipline matter. The grievorís laxity, however, may nevertheless be taken into account in determining the relief to which he may be entitled.

For all of the foregoing reasons, the grievance is allowed. The grievor is to be reinstated in employment forthwith, with compensation for loss of benefits to which he would have been entitled, subject to the furnishing by him of adequate medical proof of such entitlement. Such benefits are to be considered as reinstated as of thirty days following the date of the grievorís termination, and as lasting as long as entitlement thereto can be shown. The grievor may also be entitled to compensation for loss of earnings for such period as he may be able to demonstrate he was physically capable of performing the work available to him.

DATED AT TORONTO, this 17th day of March, 1989.

(signed) J. F. W. Weatherill

Arbitrator