IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
International Association of Machinists and Aerospace Workers
IN THE MATTER OF THE GRIEVANCE RE H.S.BHUGTANA
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
Abe Rosner – Executive Secretary, CCRSU
C. Robert – System General Chairman, IAM&AW
L. Biniaris – System General Chairman, IAM&AW
H. S. Bhugtana – Grievor
There appeared on behalf of the Company:
A. Y. deMontigny – Supervisor Personnel and Labour Relations, Mechanical Department, Montreal
J. Lotecki – Personnel Development Officer, Weston Shops, Winnipeg
L. G. Winslow – Labour Relations Officer, Montreal
D. J. David – Labour Relations Officer, Montreal
D. E. Guerin – Observer
W. G. Hanson – Observer
A hearing in this matter was held in Montreal on May 13, 1991.
The Dispute and Joint Statement of Fact and Issue in this grievance is as follows:
Arbitrability of a grievance by the International Association of Machinists and Aerospace Workers on behalf of Machinist, Mr. H.S. Bhugtana formerly employed at Weston Shops in Winnipeg.
Statement of Fact:
On July 16, 1987, Mr. R.C. DeVuono, Works Manager at Weston Shops, wrote the following letter to Mr. H.S. Bhugtana:
This is further to my letter of June ,3, 1987 and April 28, 1986 regarding your recurring shoulder problems.
We have now received advice from our Chief of Health and Medical Services that you will be unable to meet the bona fide occupational requirements of a Machinist.
As we are unable to offer you alternate employment we have no option but to close your record and terminate your employment with C.P. Rail effective July 16, 1987.
Please contact the Office Manager at the Weston Shops Administration Building to make arrangements for any monies or disbursements owed to you.
On October 3,1987, Mr. H. Mawhinney, General Chairman wrote to Mr. DeVuono and stated, in part:
This is a grievance on behalf of Machinist H.S. Bhugtana who had his file closed July 16th, 1987...
In both steps of the grievance procedure, the Company representatives took objection to the grievance noting that the time limits were not met and that the matter was closed.
Statement of Issue:
It is the Union's position that the grievance of October 3, 1987 is not, on the face of it, a grievance against the record closure of July 10, 1987 as such, but rather a protest against management's reluctance to meet with the Union and give serious consideration to the re-employment of the grievor in a suitable position, pursuant to Appendix XI of the Collective Agreement. In that respect, the Union claims that the grievance is timely and arbitrable.
It is the company's position that, pursuant to Rule 28.11 of the Collective Agreement, the grievance has been dropped and is not subject to further appeal.
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:
This has reference to discussions during the 1982 contract negotiations with respect to the railways' proposal regarding the desirability of undertaking special arrangements for an employee who becomes physically disabled during the course of his employment and is unable to perform the regular duties of his assigned position and is unable to exercise his seniority on a position which he is capable of performing.
This letter will confirm our understanding that, in such circumstances, the proper officer of the Company and the General Chairman concerned will meet to see if arrangements can be made to provide employment to the employee concerned within the existing work force. The parties may by mutual agreement, place a disabled employee on a position that his qualifications and ability allow him to perform, notwithstanding that it may be necessary to displace an able bodied employee so as to provide suitable employment. The permanently assigned employee so displaced will be allowed to exercise seniority onto a position that he is qualified for and has the ability to perform.
A displaced employee placed on a position shall not be displaced by an able bodied employee so long as he remains on that position except when a senior employee is otherwise unable to hold a position within his seniority terminal.
Should the disabled employee subsequently recuperate, he shall be subject to displacement, in which case such employee will exercise seniority rights. When a senior able bodied employee believes that the provisions of this letter will result in undue hardship, the General chairman may discuss the circumstances with the Company.
The above understanding is to provide guidelines for assisting disabled employees to continue to be employed.
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:
I have reviewed the contents of your letter and must point out firstly that I cannot concur with your Organization's contention that the issue of time limits does not apply in this case. A review of the correspondence shows that Mr. Bhugtana was officially advised by Mr. R.C. DeVuono by registered letter dated July 16, 1987 that since he was unable to meet the bona fide requirements of the classification of machinist, the Company had no other recourse but to close the latter's record with CP Rail. While this decision was rendered in mid-July, 1987, a grievance was only filed on October 3, 1987; this is some two- and one-half (2-1/2) months after Mr. Bhugtana's acknowledgment of the Company's decision on July 20, 1987.
In view of the above I have no other alternative but to deny your grievance on the basis of the provisions of Rule 28.11 of wage agreement No. 51 which reads in part and I quote:
A grievance not progressed within the time limits specified shall be dropped AND SHALL NOT BE SUBJECT TO FURTHER APPEAL ...
Furthermore, without prejudice to the Company's position as expressed above, a review of the merits of this appeal for Mr. Bhugtana's reinstatement reveals that this employee has been absent from work in excess of three hundred (300) working days in the past five (5) years representing some 24 percent of the time. During the course of these five (5) years, the Company asked Mr. Bhugtana and local chairman, Mr. S. Gillen, to let the Company know what other jobs were available that they could suggest and that Mr. Bhugtana could perform. As Mr. Bhugtana refused that offer or any other similar approaches, the latter was put on a trial basis and after failing to demonstrate his ability to meet the requirements of the position on at least three (3) separate trial periods, the Company had to take the decision to sever his employment relationship with the Company.
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.
DATED at Toronto this 29th day of May, 1991.
(sgd) M. G. Picher