SHP 341

IN THE MATTER OF AN ARBITRATION

BETWEEN

NEWFOUNDLAND DOCKYARD CORPORATION

AND

International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers

Re Grievance of Ralph Perry alleging unjust termination on June 7, 1989. File No. - 90139

 

 

SOLE ARBITRATOR: W. Wayne Thistle

 

 

There appeared on behalf of the Union:

Allan Locke Vice-General Chairman

Ralph Perry Grievor

 

 

There appeared on behalf of the Company:

R.S. Ivany Manager, Human Resources

 

A hearing in this matter was held in St. John's, Newfoundland on October 17, 1990.

 

AWARD

At the hearing the parties agreed as follows:

1. The Arbitrator was acceptable.

2. There were no preliminary objections going to jurisdiction to hear the grievance.

3. The grievance procedure had been properly followed or requirements had been waived.

4. The Arbitrator would remain seized of the matter in the event the parties could not agree on the interpretation of this award or in the event there is a question of compensation arising from the award.

5. Witnesses would be permitted to remain throughout the hearing.

The following exhibits were taken into evidence:

Consent 1 The Collective Agreement

Consent 2 Rules and Regulations

***

The Union filed a grievance on July 10, 1989, alleging that the grievor's services were terminated on June 7, 1989, because the results of his pre-employment medical indicated he was not fit to perform heavy lifting. The grievance form suggested this was wrong because the grievor was cleared for work by the Company's doctor in St. John's, Dr. Crowley. He also had a letter from Dr. Patrick O'Shea that stated "Fit to work at any occupation." The grievor also pointed out he could get a letter from other doctors specifically his Heart Specialist stating he was fit for work.

The Union complained the grievor was not asked to produce medical evidence that he was fit to work as a Labourer before action was taken to terminate him. This should have been requested prior to the termination.

The grievor gave evidence concerning his medical condition. When he applied for a job he told Dr. Crowley he had had a minor heart attack. He explained he had received a clearance from Dr. Simpson, a Heart Specialist. Dr. Crowley told him he could go on to work and gave him forms with the statement that he was "Fit for work."

When the grievor received his letter of termination he went to see his family doctor, Dr. Patrick O'Shea. Dr. O'Shea could not believe it. He gave the grievor another letter saying he was fit for the kind of work involved and, in fact, any kind of work. Shortly after he received another letter from the Company saying he would be reinstated.

The grievor had never been told by the Company they had received anything from a doctor stating he was unfit for work. He had heard some doctor on the mainland had said he was unfit for certain work.

The Union submitted a written argument which is attached hereto as Appendix "A."

The Company contended it had exercised its option to dispense with the services of a probationary employee on the grounds he was unsuitable. It reinstated him when new medical advice was received. The Company maintained it had acted in good faith based on the information it had received and the claim for unjust dismissal is not valid.

The Company submitted a written argument which is attached hereto as Appendix "B."

The Union referred to Article 20.5 in support of its contention the grievor should be reinstated with full pay. This Article states as follows:

RULE 20 INVESTIGATIONS AND GRIEVANCE PROCEDURE

Investigation Procedure

20.5 If it is found that an employee has been unjustly suspended or discharged such employee shall be reinstated with full pay for all time lost. In the event of an employee being otherwise employed pending settlement of his case by reinstatement any pay earned will be credited against time lost.

The issue that I must resolve is whether the Company had acted in violation of the Agreement when, by letter dated June 7, 1989, it had terminated the grievor's services. The letter gave as a reason the fact the results of his pre-employment medical indicated the grievor was not fit to perform heavy lifting which is a requirement of the position of Labourer in the Newfoundland Dockyard.

The grievor had submitted to a medical examination by Dr. Crowley and a "Request for Medical Examination" form was completed on April 20, 1989. Dr. Crowley was appointed by the Corporation to conduct the examination which presumably was a pre-employment examination. The conclusion by Dr. Crowley is noted on the form as follows: "I have today examined the above-mentioned applicant and find him or her Fit." A letter dated May 5, 1989, from Dr. N.S. Richard, Regional Medical Officer, to the General Manager of the Dockyard stated as follows:

Medical Service médical

Canadian National Canadien National

1234 Main Street 1234 rue Main

Moncton, New Brunswick Moncton, Nouveau-Brunswick

E1C 1H7 E1C 1H7

N. Richard, M.D. Dr N. Richard

Regional Medical Officer Médecin-chef régional

5 May 1989

Mr. M. N. Butt

General Manager

Nfld. Dockyard

P. O. Box 97

Water Street

St. John's, Nfld.

A1C 5H5

Dear Mr. Butt:

Re: Ralph F. Perry

This employee is Fit as Labourer.

However, we recommend that he be restricted from very heavy lifting.

Yours truly,

N. S. Richard, M.D.

Regional Medical Officer

There is an obvious disparity between the statement in the letter of termination and the assessment by Dr. Richard. Dr. Richard said he was fit as a Labourer but he recommended he be restricted from "very heavy lifting." The letter of termination said he was "...not fit to perform heavy lifting which is a requirement of the position of labourer ..." There is no objective standard to distinguish "heavy lifting" from "very heavy lifting" but there is an inference from these two different descriptions that Dr. Richard may have had a more extreme type of lifting in mind when he stated a restriction. This, however, is only conjecture, but it does support a finding that he would not have restricted the grievor from the type of lifting normally associated with the Labourer position. I also note that Dr. Richard is the Regional Medical Officer with the Company and must be taken to have knowledge of the type of work comprising the Labourer classification. He did clear the grievor as being "Fit as Labourer."

As events transpired, the Company was in touch by phone with Dr. Richard to clarify the restriction from very heavy lifting recommended by Dr. Richard. According to the Company's argument, the conversation "... indicated that the restriction would prevent Mr. Perry from performing the normal everyday lifting duties required of labourers in the Dockyard ..." It is at this stage that an obvious contradiction arises viz. a letter from Dr. Richard declares the grievor fit as a Labourer and a phone call with no other intervening medical assessment determines him unfit. In view of this contradiction, the Company ought to have had the grievor obtain appropriate medical assessment and information before proceeding with termination action.

Instead, the grievor was summarily issued a letter of termination and he proceeded on his own to get the required clarification. Once it was received and transmitted to Dr. Richard, the case was reviewed and another letter issued by Dr. Richard on June 26, 1989. This letter stated as follows:

Medical Service médical

Canadian National Canadien National

1234 Main Street 1234 rue Main

Moncton, New Brunswick Moncton, Nouveau-Brunswick

E1C 1H7 E1C 1H7

N. Richard, M.D. Dr N. Richard

Regional Medical Officer Médecin-chef régional

26 June 1989

Mr. R. S. Ivany

Employee Relations Officer

Newfoundland Dockyard

P. O. Box 97

St. John's, Nfld.

A1C 5H5

Dear Mr. Ivany:

Re: PERRY, R. F. - PIN 980134

Case reviewed as requested. Since the attending physicians document that this man be allowed to work unrestricted, we concur.

It would on appropriate for you to advise this man that any employee may choose to work in conditions that may result in adverse consequences to his health and enter a notation of such advice onto the personnel record.

Yours truly,

N. S. Richard, M.D.

Regional Medical Officer

The Company issued a letter on June 28, 1989, reinstating the grievor in employment effective immediately.

In its argument, the Company had identified the issue as whether the grievor was unjustly dismissed and entitled to be paid during the period his employment was terminated or whether he was justly terminated on the basis of the medical evidence initially available and properly reinstated when he presented new medical evidence of his employability. Based on the submissions of the parties, I conclude that the Company, when faced with contradictory conclusions by Dr. Richard on the grievor's fitness to perform as a Labourer, should have obtained clarification before initiating termination action. Its failure to do so, although not motivated by bad faith, did contravene the Agreement since, at the time of action, there was insufficient cause to sustain a discharge.

The grievance is upheld and the grievor shall be compensated for lost wages and other benefits as a result of the termination.

90139

DATED AT St. John's Newfoundland, 23 October 1990.

(sgd) W. Wayne Thistle

Arbitrator