SHP 275

IN THE MATTER OF AN ARBITRATION 

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

-and -

BROTHERHOOD OF RAILWAY CARMEN OF CANADA

(the "Union")

GRIEVANCE RE CARMAN H. S. BASI

SOLE ARBITRATOR: M. G. Picher

 

 

APPEARING FOR THE COMPANY:

A. Y. de Montigny

Dr. M. Grimard,

E. R. Ashton

D. J. David

 

 

APPEARING FOR THE UNION:

A. Rosner

J. Munch

 

A hearing in this matter was held in Montreal on July 18, 1989.

 

 

AWARD

This grievance is taken against the closing of Carman H. Basiís file effective June 30, 1988. The parties filed the following Joint Statement of Fact and Joint Statement of Issue:

JOINT STATEMENT OF FACT

On July 3, 1987, Mr. Andre Langlois, Works Manager, confirmed in writing to Mr. Basi that his record was closed and stated in part:

"Ö Due to the fact that this accident occurred on August 9, 1984, and because there is no evidence of improvement at all in your condition even after the opportunity given to you to demonstrate amelioration of your physical condition, we do not have any other alternative other than to close your file with CP Rail as of June 30, 1987."

JOINT STATEMENT OF ISSUE

It is the position of the Brotherhood Railway Carmen that:

Therefore Mr. H. Basi should be reinstated forthwith and reimbursed all rights, benefits and wages lost as provided for in the Wage Agreement.

The Company denies the claim.

The material establishes that the grievor has suffered a chronic condition of epicondylitis, also known as tennis elbow, with a further and more recent complication of bursitis. It is further clear that the grievorís condition makes it impossible for him to safely perform the heavy lifting associated with his position of Carman at the Companyís Ogden Shops in Calgary. From the time of the original injury to the grievorís elbow at work on August 9, 1984, following prolonged periods of absence, treatment, and attempts at assigning him to lighter duties, the Company concluded on June 30, 1987 that his condition would not improve and that it was incompatible with any duties available within the Ogden Shops where the grievor was employed. On that basis it notified him that his record would be closed effective that date.

The first issue is whether the Company violated article 28 of the collective agreement. The Unionís assertion that the grievor was denied the procedural protections of a disciplinary investigation must be rejected for the reasons stated in the arbitration of Carman M.J. Pisciotto, heard in Montreal at the same time as the instant case. The termination of the grievorís employment file was not for disciplinary reason and rule 28.1 of the collective agreement can have no application.

In the instant case, although the Union pleads the protection of section 61.4 of the Canada Labour Code in respect of the grievor, the material before the Arbitrator does not establish that at the time Mr. Basiís file was closed he was actively undergoing treatment or rehabilitation at the expense of a Workersí Compensation authority. The fact that he may have been in receipt of permanent disability benefits, which indeed may be payable for life, would not of itself bring him within the contemplation of that provision. The material establishes to the satisfaction of the Arbitrator that Mr. Basiís chronic medical condition made it impossible for him to undertake any work assignment within the bargaining unit, including assignments involving lighter duties.

As unfortunate as the grievorís circumstances are, the Arbitrator cannot conclude on the basis of the material filed that any violation of the collective agreement is disclosed.

For the foregoing reasons the grievance must be dismissed.

DATED AT TORONTO, this 25th day of July, 1989.

(signed) Michel G. Picher

Arbitrator