BETWEEN:

(the "Railway")

AND

(The "Union")

SOLE ARBITRATOR: H. Allan Hope, Q.C.

There appeared on behalf of the Company:

Kenneth Taylor

And on behalf of the Union:

Tom Wood

A hearing in this matter was held in Richmond, B.C., on September 19, 1995.

The second offence was said to have occurred the following night, August 29, when it was alleged that the grievor was found sleeping in car #8308, approximately seven cars away from his work area. The Railway assessed 20 demerits against the grievor for being out of his work area. An additional 20 demerits was assessed for an alleged failure to follow his supervisor’s instructions. The assessment of the demerits brought the grievor over 60 demerits, being the threshold f or dismissal under the Brown system, and, as a consequence, he was dismissed.

The grievor denied that he was asleep on either occasion. In addition, the position of the Union was that the grievor had two disabilities that contributed to the events giving rise to his dismissal and which the Railway had a duty to accommodate as an alternative to dismissal. In particular, the grievor was said to have a learning disability which affected his ability to understand and follow directions and a diabetic condition which had the potential to affect his energy levels generally, including his energy levels at work.

Even if it is accepted that the grievor was out of his work area and sleeping, said the Union, the facts support the finding that the circumstances arose as a result of his diabetic condition rather than an act of culpable misconduct. It is convenient for reasons I will set out later to assume, in making the relevant findings of fact, that the grievor was found away from his work place and asleep on the occasions in question and to focus on the issues raised by the Union with respect to his disabilities.

The dispute was submitted to arbitration in the form of a joint statement of issue and facts which was filed by the parties on September 14, 1995. The submission is as follows:

The grievor was first employed as a coach cleaner in Prince Rupert on August 30, 1987. He began working in the Vancouver Maintenance Centre (VMC) on February 28, 1988. Filed in evidence was a copy of the grievor’s work and discipline record commencing with his transfer to VMC. The record disclosed numerous incidents of the grievor being absent from work on an intermittent and short-term basis for a variety of injuries and routine illnesses. His first incident of discipline came on October 14, 1989. His discipline record reads as follows:

In addition to the imposition of discipline in the form of warnings and demerits, the grievor was counselled on six recorded occasions between April 5, 1988 and February 14, 1993 with respect to his work performance or discipline record in terms of its implications with respect to his security of employment. In addition, there were 16 absences from work in his work record between June 17, 1988 and June 26, 1994.

On June 26 the grievor left work and did not return until August 6, 1994. In that intervening period it was learned for the first time that the grievor was diabetic. The diagnosis was made by the grievor’s personal physician, Dr. J.H. Bell. As stated, the grievor remained off work from June 26 to August 6, 1994. During that period of absence, treatment began and he was placed on medication. The only medical certification provided to the Railway at that time was from Dr. Bell. It was a note which appears to have been dated August 2, 1994 and reads, "(Mr. Mah) may return to work Aug 6/94". It is not clear when the Railway learned the details of the grievor’s condition.

The grievor left work on June 26, 1994, either because he grew dizzy or because he fainted. It was clear in retrospect that the dizziness or fainting was attributable to his diabetic condition which, at that stage, had not been diagnosed. As early as May 10, 1992, more than two years prior to the diagnosis, the grievor had been experiencing difficulty with sleeping on the job and a series of apparently unrelated ailments that caused him to miss work. In light of those facts, the grievor agreed to submit to a medical examination by a doctor appointed by the Railway.

The examination was conducted on February 2, 1993. In the examination his difficulties, including falling asleep at work, were addressed. The resulting diagnosis was that he was experiencing, "sleep disturbance, which in my opinion has no medical basis but is related to his lifestyle picture". Diabetes was not suspected and no tests were conducted which would reveal it. In retrospect, its seems likely, if not probable, that the grievor’s problems were caused or exacerbated by the onset of diabetes.

At that time it was presumed by the Railway that the grievor’s difficulties arose in large part from the fact that he was running an auto towing business in conjunction with his employment. In questioning in his evidence it was apparent that the grievor was not engaged in running the towing business at any time material to his dismissal. He had participated in running it to a limited extent and, at the time of his dismissal, had no financial interest in the business, which was owned and operated by a family member. His only participation has been on a voluntary and limited basis.

On August 30, 1994, after the events that led to the grievor’s dismissal, his physician, Dr. Bell, provided the Railway with the following note:

It was not clear when the Railway received Dr. Bell’s note. As stated, it was dated August 30, 1994, being one day after the second of the two infractions that gave rise to the grievor’s dismissal, but it was not clear if the note had been received prior to the grievor’s dismissal on September 19, 1994. In any event, the transcript of the grievor’s disciplinary interview on September 2, 1994 discloses that the Railway was aware of the grievor’s diabetic condition as of that date, whether or not the letter from Dr. Bell dated August 30 had been received. Further, the transcript reveals that the Railway was aware that the grievor was experiencing some difficulty adjusting to the medication required to keep his condition in balance.

As stated, it is likely on the facts, that certain of the difficulties experienced by the grievor in the months, and perhaps years, leading to the discovery of his affliction were influenced by his condition. After its discovery, there continued to be a significant period during which his medication was being adjusted and during which he was attempting to learn management of his condition. For example, on August 31, 1994, Dr. Bell wrote with respect to the grievor:

The inference to be drawn from the evidence is that the grievor’ s difficulties in the two incidents in question where either directly attributable to his diabetic condition, or were complicated by it. In any event, the finding compelled on the evidence is that the incidents of sleeping and being absent from the work place were not entirely culpable in the sense that they arose, at least in significant part, from the grievor’s condition.

The Union, beyond accepting the grievor’s assertion that he was not sleeping, did not dispute the essential facts with respect to what occurred in the two incidents in question. Instead, it made four points which it saw as explaining those circumstances. They were recorded in a letter dated November 17, 1994 which read as follows:

The response of the Railway was sent by letter dated January 23, 1995. In dealing with the Union’s first point, the Railway wrote:

In these proceedings the facts indicated a misunderstanding on the part of the Railway. That is, it became obvious that the grievor, for whatever reason, perhaps his learning disability, did not make it clear in his answer to Q. 21 that it was not the medication that was making him sleepy. That subject was addressed in more detail in Q. 52 through Q. 55 where the grievor explained that the medication did not make him sleepy. In the evidence in the hearing it became apparent that the sleepiness experienced by the grievor was not caused by his medication, it was caused by his diabetic condition and the fact that he was having difficulty learning to manage that condition so as to avoid fatigue.

Turning to the second point made by the Union, the Railway replied as follows:

In the hearing it became apparent that the concern of the Union with respect to the grievor’s learning disability went beyond the issue of his ability to understand and follow instructions. Its concern was with respect to his ability to learn to understand and manage his diabetic condition so as to keep it in balance. The need to experiment with medication, which was ongoing at the time, was clearly a factor with respect to the grievor’s ability to manage his condition. But, in the view of the Union, there was also a concern about the extent to which his learning disability was a further factor with respect to the adjustment time required to permit him to manage his condition successfully at work. It is worth noting in that same context that the counselling given to the grievor was imposed prior to the discovery of his condition and, of necessity, did not take that condition into account.

The Railway responded to the Union’s third point as follows:

On the facts, it became apparent that the Railway’s view of the evidence was correct in its material particulars. What is not addressed in the context of the question is the grievor’s condition and the compelling fact that he was then in the midst of a period - of adjustment in which he was attempting to learn how to balance his condition through the taking of medication and adherence to a diet regimen which included the selection of the proper foods and the consumption of them at appropriate times. Those factors were clearly at work on the two occasions in question.

It is possible on the facts to conclude, as the Railway did, that the grievor was deliberately f Touting work rules. However, it is more likely on the facts adduced in the hearing that the grievor’s conduct on both occasions was at least influenced by his condition and his attempts to adjust to it.

Finally, in the response to the fourth point, the Railway wrote as follows:

• On February 1, 1993, his disciplinary record stood at 55 demerit marks when he was found sleeping while on duty. Considering Mr. Ma’s precarious position, no discipline was assessed but he was told that this was his last chance.
• On February 2, 1994, he was only given a written reprimand for violation of Rule 45 -Reporting personal injury, accidents and safety violations. Again, his record stood at 55.

Once again, the difficulty for the Union was found in the fact that the work and discipline record of the grievor, in all likelihood, had been affected by his condition. In its view the implication that his misconduct was culpable and that his response to counselling was indicative of an unwillingness to benefit from it was cast into serious doubt by the subsequent discovery of his affliction. The submission of the Union was that the issue raised on the facts in this dispute was whether the grievor’s two disabilities were consistent with him being able to meet and maintain an acceptable standard of conduct and work performance, and, if so, whether there was an obligation on the Railway to accommodate his disabilities.

The Railway’s position was that the facts did not support the conclusion that the grievor’s condition had any bearing on his acts of misconduct. It is only in the absence of fault that deficiencies in work performance can be excused, said the Railway. It relied in that regard on Brown and Beatty, Canadian Labour Arbitration, (1995), para. 7:3200. In making that submission the Railway relied on the fact that the grievor was adjudged fit to return to work on August 6 and had denied that his condition affected his performance.

In terms of the grievor’s condition, the Railway relied on CP Express and TCU, CROA Case No. 2444, January 14, 1994 (Picher) . In particular, the Railway relied on the following comment:

In its reliance on that aspect of the decision of Mr. Picher, the Railway took the position that if the conduct of the grievor was caused in whole or in part by his condition, it nevertheless constituted conduct deserving of dismissal in the sense that it was indicative that he lacked the ability to control his diabetic condition in a work place which is inherently dangerous. Its submission in that regard was that the grievor is required to work in an area where there are train movements and other conditions which make it dangerous for an employee who is susceptible to losing consciousness by reason of a failure or an inability to monitor his condition. That submission was based on part on medical opinion evidence filed by the Union in this hearing. I will make reference to that opinion evidence later.

Returning to the position of the Railway, it acknowledged a requirement in employers to take reasonable steps to accommodate conditions such as diabetes. It cited in that regard the decisions in Re Marianhill and Canadian Union of Public Employees, local 2764 (1990), 10 L.A.C. (4th) 201 (Brown) and Canadian Pacific Limited and Brotherhood of Maintenance of Way Employees, (1989), 7 L.A.C. (4th) 1; CROA Case No. 1928, (M.G. Picher) . However, its position was that the line of authority requiring an employer to accommodate an employee’s disability has no application where the dismissal was in response to misconduct.

The Railway’s position, as articulated in its written submission, was, "But when the dismissal was triggered by discipline, the employer no longer bears an obligation to accommodate the employee". It relied in that regard on the decision in Re Stelco Inc. (Steelwire - Parkdale Workers) and United Steelworkers, Local 5328 (1990), 9 L.A.C. (4th) 129 (Brent). In that case the grievor was dismissed in response to a record of absenteeism that had occurred over a period of years.

The union in that case sought to meet the implications of the history of absenteeism on the basis that the grievor had been using cocaine and marijuana for a period of five or six years and that it was his addiction to drugs that was the cause of his absenteeism. The evidence was that prior to his dismissal the grievor had sought treatment for his drug condition and that, at the time of the hearing in January of 1990, the grievor had not used drugs since October of 1988. The grievance was denied on the basis that it was not established in the evidence that the grievor’s absenteeism was related to his abuse of drugs.

In this dispute, the Railway relied in particular on the following extract from p. 144:

In seeking to apply that reasoning to the facts in this dispute, the submission of the Railway, in effect, was that no relationship had been established between the two acts of misconduct alleged against the grievor and his two disabilities, being his learning disability and his diabetes. The Railway urged that the circumstances supported the conclusion that the conduct of the grievor in the incidents in question constituted conduct, which, in the absence of a satisfactory explanation, was deserving of discipline and that the imposition of demerits was not excessive in the circumstances.

The Railway further argued that dismissing the grievor in response to his accumulation of demerits was reasonable in the sense that it was in accord with the Brown system and, in the absence of f actors which mitigate against enforcing the system, the accumulation of demerits should be accepted as just cause for dismissal. Its alternative position, as stated, was that if the conduct of the grievor was due to his condition, that explanation did not constitute a reasonable response to his conduct because it demonstrated a condition which he was unable to control in a manner consistent with his continued safe employment.

In responding to the submission of the Railway, the Union said that the facts fell comfortably within the principles enunciated by Mr. Brown in Marian Hill and CUPE and by Mr. Picher in CROA Case No. 1928. The Union said in particular that the facts clearly imposed on the Railway a duty to accommodate the grievor’s disabilities, particularly his diabetes. That obligation arose, said the Union, as soon as the Railway learned of his condition and its implications in terms of him learning to manage it in the work place.

In terms of the Railway’s reliance on the decision of Mr. Picher in CROA Case No. 2444, the Union submitted that it has no application to the facts present in this dispute. In that decision, said the Union, Mr. Picher made it clear that diabetes is not necessarily inconsistent with employment on a railway, even where safety is a factor. They noted that in his decision, Mr. Picher acknowledged that:

Hence, in any case where conduct is seen to be related to a diabetic condition, the governing question is whether the condition can be managed consistent with the requirements of the work place, said the Union. In his decision in CROA Case No. 2444, Mr. Picher concluded that the grievor, who had been diagnosed as having his condition for more than four years prior to the culminating incident that gave rise to his dismissal, had failed to demonstrate an ability to manage his condition in the position he occupied. That decision, said the Union, must be read in light of Mr. Picher’s reference to his earlier decision and his affirmation that diabetes is a disability a railway must attempt to accommodate.

The Union urged that the facts in this dispute compel the conclusion that the alleged acts of misconduct occurred while the grievor was in the course of learning how to manage his condition, a process which was complicated by his learning disability. Its basic submission was that I have jurisdiction on the reasoning in McLeod et al v. Egan et al (1975), 46 D.L.R. (3d) 150 (S.C.C.) to apply the Canadian Human Rights Act to the facts in this dispute and, in particular, to conclude that dismissing the grievor in the circumstances constituted discrimination within the meaning of the Act. In its submission, the Act and the circumstances require the Railway to make a reasonable accommodation of the grievor’s disabilities so as to permit him to retain his employment.

In that same vein, the Union argued that the decision of Mr. Picher in CROA Case No. 1928 supports the conclusion that, quite apart from the Act, there is a duty in the Railway recognized in the arbitral authorities to accommodate the grievor’s disabilities. In that submission the Union noted that an appeal of Mr. Picher Is decision was rejected in Canadian Pacific Limited and Michel G. Picher, January 8, 1990, unreported Quebec Superior Court (Forget, S.C.J.), and that Forget, S.C.J., on pp. 25-26, noted that Mr. Picher, in finding a duty to accommodate a diabetic, "did not have to interpret the Canadian Human Rights Act". Therefore, said the Union, a finding of a duty to accommodate the grievor’s two disabilities could be found on the reasoning of Mr. Picher without relying on the Act.

By way of contrast, the Union cited the decision in Re Canadian Pacific Ltd. and Canadian Human Rights Commission et al. (1988), 40 D.L.R. (4th) 586 (Fed. C.A.), being an appeal from a decision made under the Act, as illustrative of the circumstances in which a disability such as diabetes will constitute reasonable grounds for dismissing an employee who is exposed to a work place where the condition makes safety an issue. The Union contrasted the reasoning in that decision with the decision of Mr. Picher, which, as noted, was upheld on appeal. Its submission was that the two decisions support the conclusion that, under the Act or outside of the Act, the essential issue turns on the particular facts.

The Union further relied on the decision in Re Johnson Matthew Ltd. and United Steelworkers, Local 9046 (1991), 14 L.A.C. (4th) 92 (Baum) to support the proposition that the duty to accommodate cannot be frustrated by an employer taking the position that some adjustment in duties or work scheduling is required to accommodate the particular disability. That is, its submission was that the grievor was entitled to an accommodation which was conducive to successful management of his condition in the work place.

In support of its contention that the grievor’s disabilities were not inconsistent with his continued employment, the Union filed two medical opinion letters relating to his separate disabilities. The Union made reference to the following extracts from the opinion written with respect to the grievor’s learning disability:

The Railway did not challenge the conclusions recorded in that letter of opinion. Its position, as stated, was that the grievor should be seen as having deliberately failed to follow instructions in the incident in question and that the facts do not support the conclusion that his learning disability affected his conduct.

In terms of the grievor’s diabetes, the second letter of opinion confirmed that falling asleep on the job was consistent with diabetes. The doctor confirmed that it was difficult to ascertain when the grievor developed his condition and that the symptoms associated with his developing diabetes "could greatly affect his work abilities and productivity". The doctor went on to say that the original medication prescribed for the grievor’s condition proved to be ineffective "as he continued to have extremely high blood sugars and was quite symptomatic". That fact required a change to insulin therapy in the form of daily injections of insulin.

I pause to note that the Railway relied on the opinion written with respect to the grievor’s condition to support its alternative position that it was not safe to permit the grievor to return to work. The Railway relied in particular on the following extract from the letter:

The submission of the Railway was that even if it is assumed that the grievor’s conduct in the incidents in question was related to his diabetic condition, it was clear that the condition continued to affect him and his work performance even as late as the hearing. The Railway emphasized that there are dangers inherent in the coach cleaner position consisting of the movement of trains and similar risks to which a coach cleaner is regularly exposed. Hence, said the Railway, the grievor could not be relied on to perform adequately in those circumstances.

In responding to that observation, the Union relied on the following passage from the letter of opinion:

In the submission of the Union, those facts, including the opinions expressed in the letters, support an entitlement in the grievor to be reinstated and afforded an opportunity to demonstrate that he can work as a coach cleaner. The Union sought reinstatement with compensation on the basis that the grievor should not have been dismissed, as opposed to being given an opportunity to accommodate his condition to the work environment.

I agree with the submission of the Union that it is likely that some, at least, of the grievor’s difficulties were related to the onset of his diabetic condition. Hence, the Railway failed to prove that the conduct of the grievor constituted just cause for his dismissal. However, the facts justified taking disciplinary action against him. An employee who leaves his work place and falls asleep on consecutive shifts, particularly in the safety environment in which the grievor worked, invites a remedial response. That conduct is demonstrably more serious where, as here, the grievor was instructed to inform a supervisor if he found that his condition was affecting him. Hence, removing the grievor from the work place was both justified and required on the same reasoning that was applied by Mr. Picher in CROA Case No. 2444.

However, accepting that his conduct resulted from his diabetes, the grievor is entitled to be recalled to his employment when and if it has been established that, subject to reasonable accommodation, he can manage his condition in a manner consistent with the safe performance of his duties. It is clear in the medical opinion letter filed by the Union that the grievor continues to have difficulty managing his diet and medication. However, the medical opinion also expressed optimism about the grievor’ s ability to master his condition. Further, the doctor speculated that his difficulties - in that regard may have been caused or exacerbated by the stress associated with the loss of his employment.

In the result, the grievor is entitled to be reinstated without loss of seniority and to be recalled to active employment upon establishing that he is medically fit to resume his duties. However, the question of the extent of the Railway’s duty to accommodate the grievor’s condition is premature. That is, there is a duty in the Railway to accommodate the grievor’s condition in the sense defined by Mr. Picher in CROA Case No. 1928, but the question of the extent of that duty and its application to the grievor must await the development of the material facts.

In particular, the extent of the accommodation required to permit the grievor to manage his condition will not be known until he has returned to the work place and his circumstances have been assessed. Hence, this award is limited to an acknowledgement that the grievor is entitled to reinstatement, that he is entitled to be recalled to active employment if he can obtain medical certification of his fitness, and, finally, to a determination that the Railway must provide reasonable accommodation of his condition, including the adjustment of shift times and work assignments, if and when he returns to active employment. On the facts, no case for compensation was made out. If the grievor is not able to return to active employment, his status will have to be addressed and resolved in accordance with the collective agreement.

DATED at the City of Vancouver, in the Province of British Columbia, this 10th day of November, 1995.

Arbitrator