IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS
GRIEVANCE RE B. GUILD
SOLE ARBITRATOR: M. G. Picher
APPEARING FOR THE COMPANY:
M. E. Keiran
D. A. Lypka
J. P. Lotecki
I. J. Waddell
D. J. David
APPEARING FOR THE UNION:
A hearing in this matter was held in Montreal on July 18, 1989.
This arbitration is in relation to the removal from service of labourer B. Guild from his employment in the Winnipeg Caboose Shop in November of 1984. The parties filed the following joint statement at the hearing:
JOINT STATEMENT OF FACT
On November 9, 1984, Mr. Barry Guild suffered a major seizure while at work and was subsequently held out of service.
On November 14, 1984, Mr. Guild was requested to have his physician forward a medical report to the Company’s Chief of Medical Services.
On January 10, 1985, Dr. G.A. Habib, Neurologist, replied to the Company’s Chief of Medical Services recommending that Mr. Guild "be permitted to return to work".
On February 4, 1985, he was advised by Mr. G.T. Baker, General Foreman, that his medical condition did not permit his return to work at the Winnipeg Car Department.
On February 13, 1985, a grievance was filed requesting a return to service. On June 27, 1985, Mr. Guild filed a complaint with the Canadian Human Rights Commission alleging discrimination in employment on the basis of a physical disability.
On February 18, 1987, the Canadian Human Rights Commission dismissed Mr. Guild’s complaint "because on the evidence the allegation of discrimination was unfounded."
JOINT STATEMENT OF ISSUE
It is the position of the Union that Mr. Guild is capable of returning and that the Company has wrongfully held him out of service since January 1985.
The Company contends that the issues before the CHRC were identical to those of the present grievance, with the exception of the suitability of positions at Weston Shops. Thus, in accordance with the doctrine of issue estoppel, the Arbitrator does not have jurisdiction to determine those matters which have already been decided by the CHRC.
In the alternative, the CHRC decision constitutes a binding precedent which must be followed.
The Company denied the claim.
The material establishes that the grievor, Mr. Barry Guild, is 36 years old and was first employed by the Company as a labourer in November of 1981. Although he was diagnosed as an epileptic subject to occasional grand ma] seizures since age 3, he did not disclose his illness to the Company at the time of hiring. In March of 1982 the grievor experienced some dizziness, nausea and what the Company has described as some "fainting spells", while working in the sand blasting area of Weston Shops. He then disclosed to the Company that he was an epileptic and was regularly taking prescribed anti-convulsant medication. In July of 1983, while assigned to the Winnipeg Diesel Shop, the grievor again experienced nausea, and appears to have lost consciousness. There is some doubt as to whether the symptoms observed on that occasion were caused by epilepsy, as the Union has tendered in evidence a medical certificate from allergy specialist Dr. James W. Jackson stating that, "in July of 1983, Mr. Guild had a medical condition which appears to have been due to a milk allergy and since eliminating milk from his diet he has had no reoccurrence of this symptom".
In August of 1983, because of its concern for his epileptic condition, the Company determined that the grievor should not work at heights, or on or around moving equipment. By agreement with the Union, he was then transferred to the Winnipeg Car Department. While there is some conflict as to whether he worked initially in the One Spot, it is not disputed that ultimately Mr. Guild came to work in that part of the Winnipeg Car Department known as the Caboose Shop, an area of relatively reduced hazard. His duties in that location primarily involved washing cabooses.
Mr. Guild worked without incident until November 9, 1984. On that date he suffered an epileptic grand mal seizure while working alone in darkness, in an area adjacent to "live" tracks where cars were being switched. He was found lying unconscious on the ground some fifteen feet from the tracks. The record establishes beyond dispute that at the time of the grievor’s grand mal seizure of November 9, 1984, which occurred at the end of a double shift, Mr. Guild had, of his own initiative and apparently without medical authorization, discontinued his use of anti-convulsive medication.
The thrust of the Union’s position is that Mr. Guild learned his lesson with the incident of November 9, 1984, and since that time has faithfully followed his physician’s directions with respect to taking anti-convulsive medication, and has remained free of grand mal seizures. Its representative submits that in the circumstances the Company does not have reasonable grounds to hold Mr. Guild out of service as a labourer. The Union submits that the grievor is capable of working safely within a number of parts of the Winnipeg Car Department, including the Caboose Shop and that he can perform certain custodial functions generally restricted to off ice areas. The Company counters that it is virtually impossible to provide Mr. Guild with a work setting that does not in some measure require his crossing or being near, however briefly, sections of live track, since these virtually surround any part of the operation in which Mr. Guild might be assigned. It disputes the Union submission that the circumstances of the instant case are comparable to those of another epileptic employee, Mr. P. Longval, reinstated into a checker’s position by a prior arbitration award between the Company and the Canadian Division Brotherhood Railway Carmen of the U.S. and Canada, dated June 24, 1986 (Weatherill).
It appears to the Arbitrator to be well established that, as a general matter, employees are not to be discriminated against in respect of their employment on the basis of a medical handicap. Where, however, the employer can establish that given the hazardous nature of a particular job or workplace, freedom from a given handicap is a bona fide occupational requirement, holding a person out of such service cannot be seen as a violation of the collective agreement. Each case must depend on its own merits, having regard to the condition of circumstances of the individual in question (see CROA 1585 and 1923; Re Firestone Tire and Rubber Company of Canada Ltd. and United Rubber Workers, Local 113 (1973), (2d) 12 (Weatherill)).
As the record discloses, it cannot be argued that the Company has exercised any automatic prohibition against epileptics to the detriment of Mr. Guild On the contrary, the grievor’s employment history reveals that when it became aware of his condition the Company knowingly chose to continue Mr. Guild’s employment, albeit in a specific location of reduced hazard and with the condition that he not work at heights or on and around moving equipment. As events subsequently demonstrated, even those restrictions did not remove Mr. Guild from a situation of considerable hazard. His losing consciousness in a dark location, while alone, within only a few feet of live track on November 9, 1984 gave the Company reasonable cause to reconsider the safety of Mr. Guild’s continued assignment to the caboose track.
When all of the material in evidence is taken in to account, the Arbitrator has substantial difficulty accepting the argument of the Union that the Company has acted in an arbitrary and unreasonable manner. While I accept that it is the individual merits of the employee’s condition that must be assessed, in the case of Mr. Guild there are grounds for genuine concern. When first hired, when he knew or reasonably should have known that disclosure of his medical condition to the Company was important, Mr. Guild knowingly withheld vital information respecting his epilepsy. While he was not disciplined for that, and was indeed given great accommodation by the Company once his condition was revealed, that history does not speak well of his candour and reliability. Once the Employer became aware of Mr. Guild’s condition, upon obtaining the fullest medical information and advice, it agreed to assigning him to work in a location of reduced hazard. The grievor then knew, or reasonably should have known, that his continued employment was predicated upon an expectation that he would discharge his responsibilities in respect of controlling his condition both through periodic contact with his physician and the maintenance of appropriate levels of medication. On the contrary, however, apparently without consultation with either his physician or the Company, Mr. Guild chose unilaterally to discontinue his anti-convulsant medication. In the result, he suffered a grand mal seizure of grave proportions in circumstances of obvious peril on November 9, 1984, while at work.
In the Arbitrator’s view the incident of November 9, 1984 is as significant for what it discloses of the reliability of the grievor as it does with respect to his medical condition. For the second time in his employment history Mr. Guild demonstrated a degree of irresponsibility with respect to his medical condition and his obligations towards his employer. Just as the Company was unknowingly put at risk when he was first hired without disclosure of his long standing epileptic condition, it was again placed in jeopardy by Mr. Guild’s apparently undisclosed decision to unilaterally discontinue his anti-convulsant medication. On the whole the Arbitrator does not see in these circumstances a record of conduct that demonstrates a pattern of reliability and control over the grievor’s medical condition that would sustain the Union’s position with respect to his employability within the Winnipeg car department. Consequently I must conclude that any future accommodation which may be reached in respect of the employment of Mr. Guild must be arrived at through negotiation with his bargaining agent. The instant case reveals no violation of the collective agreement, and the grievance must therefore be dismissed.
DATED AT TORONTO, this 25th day of July, 1989.
(signed) Michel G. Picher