The Dispute and Joint Statement of Fact and Issue in this grievance is as follows:

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The grievor worked as a machinist at Weston Shops, Winnipeg from March 4, 1974 until the closing of his employment record on July 16, 1987. On that date, for the reasons related in the letter of Mr. R.C. DeVuono the Company removed the grievor from service indefinitely by virtue of his medical incapacity to perform the normal work of the bargaining unit and the absence of any available alternative duties. No grievance was taken against the closing of Mr. Bhugtana's employment record within the time limits stipulated under the collective agreement. The Union submits that the instant grievance, filed on October 13, 1987 is not in relation to the closing of the grievor's employment record, but, rather, protests the alleged failure of the Company to give due consideration to the grievor's return to work as contemplated under Appendix XI of the collective agreement. That Appendix reads as follows:

The substance of the Company's position was summarized in the following terms in a letter dated December 2, 1987 addressed to the Union by Mr. Bartley, the Company's chief mechanical officer. He wrote, in part, as follows:

At the hearing the Company took an additional position which, the Union argues, was not raised during the grievance procedure. It argues, in part, that Appendix XI of the collective agreement can have no application to the grievor once his employment record is closed. Pointing to the phrase "... will meet to see if arrangements can be made to provide employment to the employee concerned within the existing workforce." The Company argues that the right to be considered for special treatment under the terms of the Appendix is limited to employees who remain "within the existing workforce". On that basis it submits that Mr. Bhugtana, having had his employment record closed, was no longer in that position in October of 1987 and could not avail himself of the protections of the Appendix.

With that submission the Arbitrator has some difficulty. Firstly, from a purely grammatical standpoint, the phrase "within the existing workforce" qualifies the word "employment" which is to be found for the disabled employee. It does not, in my view, qualify or impose any condition upon the "employee concerned". So construed, what the sentence conveys is an obligation on the parties to consider whether there is suitable employment for a disabled employee, it being understood that any work that may be identified must be found within the tasks of the existing workforce. That, moreover, is understandable from a purposive point of view. The article so construed relieves the Company of any obligation to create additional tasks or functions which did not previously exist within the existing workforce to accommodate a disabled employee. In my view, however, it does no more than that and certainly does not preclude the consideration of employees who have, because of a disability, been temporarily or indefinitely removed from the active workforce.

In the Arbitrator's view the logic of the provision as it would be applied in practical reality would also be counter to the Company's position. Typically an employee who suffers a serious work related injury might be absent from the workforce for a fairly extended period of time for rehabilitation and recuperation. It is at least arguable that a person in that circumstance might not be considered as falling within the existing workforce, at least for the period of an extended absence. There can be little doubt, however, that when the employee is fit to return to work to a different position which his or her qualifications and abilities allow him or her to perform, the provisions of Appendix XI must be available for his or her benefit. On the language of the Appendix there is no reason to conclude that the parties intended that it would operate only for the benefit of employees who are active within the existing workforce and that it should not apply to those employees who have suffered a work related injury which has caused them to be removed from the workforce. Bearing in mind that in the railway industry employees may require years before they are medically rehabilitated (see CROA 2142) it would in my view be out of keeping with the remedial intention of the parties underlying Appendix XI to accept the position of tie Company that by the employer's unilateral action of closing an employee's record he or she ceases to have any protections under the Appendix.

I turn to consider the merits of the dispute as it relates to the alternative position of the Company concerning the arbitrability of the grievance on the basis of time delay. On a close examination of the facts. I am persuaded that the Employer's position in this regard is more compelling. The record establishes that on July 16, 1987 the grievor was advised that his employment record was closed by reason of his inability to meet the occupational requirements of a machinist. He then had some 35 days to file a grievance against that decision. Well before the expiry of the 35 day lapse, on July 29, 1987 the grievor's personal physician, Dr. Louis Chung advised the Company that the grievor was then fit for regular duties. The evidence therefore discloses that prior to the expiry of the time limits during which the grievor was entitled to grieve the closing of his file, he was aware of the medical opinion which forms the basis of his claim for reconsideration under the terms of Appendix XI of the collective agreement. Given the brief period of time between July 16th and 29th, when the grievor's medical opinion was obtained, I find it difficult to characterize the position which he and the Union take as other than a challenge to the decision taken by the Company effective July 16, 1987 to close Mr. Bhugtana's employment file. It is, in the Arbitrator's view, strained and artificial to argue, as the Union does, that the claim subsequently made on his behalf in October is a different and unrelated matter. During the 35 day period following the closing of the grievor's employment record Mr. Bhugtana had all of the knowledge necessary to challenge the Company's decision, whether by directly grieving the closing of his employment file or, alternatively, grieving any refusal of the employer at that time to apply article XI in his case. No satisfactory explanation is provided by the Union for the delay between July and October of 1987 in its efforts to pursue discussions under article XI. This is not, as the evidence discloses, a circumstance involving an employee who has undergone therapy and medical rehabilitation some considerable time after his or her employment record was closed. There is, in other words, no new evidence arising in October which was not available to the grievor and his Union in July. In these circumstances the Arbitrator is compelled to accept the argument of the Company that the grievance filed by the Union in October of 1987 is, effect, an attempt to indirectly grieve the closing of Mr. Bhugtana's file at or about the same time that he had medical evidence that he was fit to return to normal duties.

For the foregoing reasons the Arbitrator finds and declares that the instant grievance is not arbitrable. It should be emphasized, however, that that conclusion is without prejudice to such right as the grievor may have to be recalled to a vacant position for which he may be qualified and medically fit, based on his established seniority. For the reasons related, the grievance must be dismissed.