SHP 279




(the "Company")

-and -


(the "Union")






P. E. O’Donohue

D. J. David,

Dr. M. Grimard

G. W. McBurney




A. Rosner

J. Munch



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




The Joint Statement of Fact and Joint Statement of Issue filed are as follows:


On May 9, 1988, Mr. B.D. Wilson, Acting Superintendent wrote to Mr. M.J. Pisciotto to inform him that his record was closed for the following:

"In view of the nature of your condition and the fact that there is and never will be the type of work available to you compatible (sic) with your condition, it is necessary that we close your record with the company effective May 12, 1988..."


It is the position of the Brotherhood Railway Carmen that Mr. M.J. Pisciotto has been unjustly discharged by the arbitrary closure of his record and therefore he should be reinstated forth with and reimbursed all rights, benefits and wages lost as provided for in the Collective Agreement.

The Company denies claim.

The material facts are not in dispute. Mr. Pisciotto was hired by the Company in March of 1969, and was promoted to Carman on July 13 of the same year. In July of 1971, as a result of an accident on the job, the grievor suffered a serious back injury which resulted in a leave of absence until August 23, 1971. He was there after placed on light duties for approximately one year. Mr. Pisciotto subsequently obtained a position as Craneman which he worked for approximately eleven years, with some time served in normal Carman’s duties. However in late 1985 when the auxiliary crane was removed from Windsor that work was no longer available to Mr. Pisciotto. For a time thereafter he worked both as a Carman and as Relief Assistant Foreman. As of 1986, however, he was made a working foreman with duties and responsibilities involving heavy physical labour.

It is not disputed that the original injuries suffered to the grievor’s back plagued him over the years. By way of example, from January 1, 1986 to April 15, 1986, he missed some fifteen days work for what he described as back problems. On April 19, 1986 the grievor advised the Company that he was unable to work as a result of his recurring back problems. The Workers’ Compensation Board of Ontario then placed him on full compensation benefits and ultimately awarded him a permanent partial disability pension. It is common ground that the Workers’ Compensation Board assessed permanent medical restrictions on his continued employment which included the prohibition of prolonged, weight-bearing, low-level work,repetitive bending and lifting amounts in excess of seven kilograms. On May 9, 1988 the Company advised the grievor that in view of his condition and the fact that work compatible with his limitations would never be available, his record with the Company would be closed effective May 12, 1988.

The Union makes a number of submissions. Among other things it argues that the grievor was deprived of the protection of an investigation under Rule 28.1 of the collective agreement. The Arbitrator cannot accept that submission. The first sentence of that Rule states:

28.1 Except as otherwise provided herein, no employee shall be disciplined or discharged until he has had a fair and impartial investigation and his responsibility established...

The foregoing provision is plainly drafted in contemplation of the procedural protections of an employee who is subjected to a disciplinary penalty up to and including a discharge as a result of his or her responsibility for some conduct or event inconsistent with the faithful discharge of an employee’s obligations. It does not apply in a case, such as the instant matter, where the services of an employee are terminated for medical incapacity rather than for a disciplinary infraction.

The Arbitrator sees greater merit, however, in the alternative submission of the Union that the termination of the grievor through the closing of his file is contrary to the provisions of Section 61.4 of the Canada Labour Code S.C.1977-78 c.27, as amended, which provides, in part, as follows:

"... No employer shall dismiss, suspend, lay off, demote or discipline an employee because of absence due to illness or injury if

a) the employee has completed three consecutive months of continuous employment of the employer prior to his absence;

b) the period of absence does not exceed twelve weeks or the period during which an employee is undergoing treatment and rehabilitation at the expense of a workers compensation authority, and …"

[emphasis added]

In the instant case it is clear, as disclosed in a letter from General Manager J.A. Linn to Union officer J. Adamo, on June 14, 1988 that at the time the Company closed the grievor’s file, the Workers’ Compensation Board still viewed Mr.Pisciotto as being subject to treatment and rehabilitation. It is common ground that he was then in receipt of full disability benefits. Mr. Linn’s letter contains, in part, the following:

The Workers’ Compensation Board advised that Company on September 14, 1987 they had elected to place Mr. Pisciotto into vocational testing through Dr. Rinas, Psychologist to assist the Board in defining alternative vocational goals and, as a result, he continued to receive full benefits during his retraining.

On June 13, 1988 the Company was advised thatMr.Pisciotto was being retrained at its expense in the capacity of Supervisor, Electrical Trainee.

In the circumstances the Arbitrator is compelled to conclude that at the time the Company purported to close Mr.Pisciotto’s file he was absent for a period during which he was undergoing treatment and rehabilitation at the expense of a Workers’ Compensation authority. It is trite to say that the collective agreement must be deemed to operate in a manner consistent with the Canada Labour Code, and that the termination of an employee in a manner contrary to the provisions of the Code cannot be construed as being for just cause within the contemplation of the collective agreement. For these reasons the Arbitrator must find that the grievance is allowed, to the extent that the Company was not entitled to close the grievor’s file when it purported to do so effective May 12, 1988. The Arbitrator’s conclusion in that regard is, of course, without prejudice to such rights as the Company may subsequently have acquired in light of the grievor’s subsequent status in respect of his Workers’ Compensation benefits.

The Union submits that in the circumstances the grievor has been deprived of the opportunity to obtain alternative employment through the operation of Appendix 15 to the collective agreement. That provision, in the form of a letter of understanding dated March 11, 1987, establishes the possibility of negotiation between an officer of the Company and the General Chairman of the craft of an employee with a view to finding work appropriate to the physical limitations of an injured worker, including the possibility of displacing another able-bodied employee.

With this aspect of the Union’s submission the Arbitrator has greater difficulty. It is common ground that so long as there was work available within the bargaining unit compatible with Mr. Pisciotto’s condition, that work was given to him.Whether the situation of accommodation was reached through the operation of Appendix 15 or otherwise, the Arbitrator is satisfied on the evidence before him that there are no positions within the bargaining unit at present which would accommodate the grievor’s condition nor is there any thing within the collective agreement nor the intent of Appendix 15 to require the Company to employ the grievor in any position outside bargaining unit, including a supervisory position.

For the foregoing reasons the grievance is allowed in part. The Arbitrator must find and declare that by reason of the ongoing status of Mr.Pisciotto as an employee under the protections of Section 61.4 of the Canada Labour Code, the Company was not entitled to terminate his employment relationship effective May 12, 1988. In the circumstances, however, the Arbitrator can see no basis for any further remedial order. I retain jurisdiction in the event of any dispute respecting the interpretation or implementation of this award.

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

(signed) Michel G. Picher