shp - 450

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian National Railway Company

(the "Company")

AND

National Automobile, Aerospace, Transportation and General Workers Union of Canada LOCAL 100 (CAW-Canada)

(the "Union")

re: Closure of the Record of Coach Cleaner D. Ross

 

Sole Arbitrator: Michel G. Picher

 

Appearing For The Union:

B. R. McDonagh Ė

J. Moore-Gough Ė President, Local 100, Windsor

 

Appearing For The Company:

M. Stock Ė Labour Relations Officer, Toronto

M. Skopyk Ė Assistant Superintendent Administration, G.L.D.

J. Vaasjo Ė Labour Relations Officer, Toronto

 

 

A hearing in this matter was held in Toronto on Tuesday, September 16, 1997.

 

AWARD

This arbitration concerns the grievance of Mr. D. Ross, on whose behalf the Union alleges a wrongful termination, by the closure of his employment record effective March 4, 1996. Mr. Ross, who was absent by reason of a medical disability pursuant to a work-related injury, had, in the Companyís view, failed to respond to its inquiries as to his medical status and likely date of return. The Union alleges that the grievorís very condition prevented him from communicating directly with the Company. It asserts that, in any event, he did so through an agent, and alleges that the termination of Mr. Ross was in fact without just cause, in all of the circumstances. The nature of the dispute is outlined in the Joint Statement of Issue, which reads as follows:

JOINT STATEMENT OF ISSUE:

On January 17, 1995, Coach Cleaner, D. Ross allegedly sustained a compensable workplace injury. By way of letter dated November 23, 1995, the Workers Compensation Board informed the Company that Mr. Ross was capable of performing the essential duties of his pre-injury position.

Mr. Ross did not report for work. On December 6, 1995, the Company sent a double registered letter to Mr. Ross informing him that it was imperative to contact the Company prior to December 18, 1995, identifying when he would be returning to work.

The Company received a letter from Advocate Paralegal Services dated December 14, 1995, stating that Mr. Ross should be capable of returning to work some time in March of 1996.

On January 9, 1996, the Company sent a double registered letter to Mr. Ross informing him that it did not recognize the correspondence from Advocate Paralegal Services as authorizing his absence. The letter also informed Mr. Ross that he was required to attend an investigation from January 18, 1996 to determine the facts surrounding his unauthorized leave of absence from November 14, 1995.

Mr. Ross did not attend the investigation on January 18, 1996. On January 18, 1996 the Company sent a double registered letter to Mr. Ross informing him that he was suspended from service for failure to attend the formal investigation on January 18, 1996.

The letter also informed Mr. Ross that it was imperative that he reschedule this investigation within 45 days or his file would be closed.

Mr. Ross did not contact the Company to reschedule his investigation. On March 1, 1996, the Company sent a double registered letter to Mr. Ross informing his that as a result of his failure to contact the Company, his file was being closed for "failure to protect your assignment".

It is the Unionís contention that the discipline assessed Mr. Ross was unjust and excessive, and further, that it was in violation of Rule 15.3, Rule 16, Rule 23.30, Rule 28.1 and the memorandum of agreement concerning the application of Rule 28. It is also the contention of the Union that the actions of the Company in this case were in contravention of the Canada Labour Code, Division XIII - Sick Leave, Section 239 and Division XIII-1, Work-Related Illness and Injury, Section 239.1.

The Union requests in settlement of this matter that Mr. Ross be returned to service forthwith, with full seniority and full compensation for any benefits and wages lost, including overtime and interest.

The Company believes that Mr. Rossí continued refusal to contact the Company to explain his absence justified the closure of his file for failure to protect his assignment.

The facts are not in substantial dispute. On January 17, 1995 the grievor was the victim of a severe electrical shock, which he suffered while operating a shampooing machine during the course of his assignment, which was to clean the inside of a GO Train coach at the Willowbrook GO Transit facility. He was immediately taken to Queensway General Hospital for treatment, and has been off work consistently from that time to the present. He was in receipt of Workers Compensation benefits until November 14, 1995. It appears that at that time the Workers Compensation authorities determined that he was fit to return to work, and so advised the Company by letter dated November 23, 1995.

The evidence now placed before the Arbitrator confirms that at that time certain physicians who were involved in the treatment of Mr. Ross were of the view that he was not fit to return to work. Part of the diagnosis of the grievor was performed at the McMaster University Medical Trauma Assessment Unit. It is common ground that part of the injury for which Mr. Ross was being treated was "psychological anxiety", a condition originally recognized by the Workers Compensation Board, and a partial basis for the allowing of his claim. For reasons which are not apparent on the face of the Workers Compensation Board letter, authored by Senior Claims Adjudicator R. Tung, and dated November 23, 1995 the Board directed the grievor to return to work, even though it acknowledged" "there is no psychological consultation report on file." Mr. Tung apparently believed, as further expressed in his letter, that the grievor should have no psychological difficulties if he followed the medical advisorsí precaution "of avoidance of dangerous work around "live wires"".

The position of the Union is that, notwithstanding the directive of Mr. Tung, the grievor was in no psychological or emotional condition to return to work in late November of 1995 when he received a double registered letter from the Company dated December 6, 1995 directing him to communicate with Superintendent R. Garrett. He then retained a paralegal agent who directed a letter to the Company on December 14, 1995 stating, in part:

As you must be aware Darren is off work because of a compensable accident which seriously affected him both physically and psychologically. Physically he may be able to return to work, but this isnít the totality of his disability!

The Company takes the position that the above communication has no status with respect to the grievorís obligation to communicate with his employer. Its representative submits that it had no direct communication from Mr. Ross indicating that the paralegal agent was authorized to make any statements on his behalf, or to be his official agent in communicating with the Company.

Mr. Ross remained off work, and out of touch with his employer. The Company then convened the grievor to a disciplinary investigation scheduled for January 18, 1996 the purpose of which was: "to determine the facts with regard to your unauthorized leave of absence from 14 November 1995." When the grievor did not appear for the investigation the Company again wrote directly to him on January 18, 1996. That letter by Superintendent R. Garrett, reads as follows:

Due to your failure to appear for the formal investigation scheduled for Thursday, 18 January 1996 at 08:30 hours, it has become necessary to process a staff form suspending you from service.

The purpose of that investigation was to determine the facts with regards to your Unauthorized Leave of Absence from 14 November 1995.

It is important that you contact the office of the Superintendent, Willowbrook, Ö as soon as possible to reschedule an investigation to determine the cause of your failure to attend the formal investigation of 18 January 1996.

Failure to do so and report for the investigation within forty-five (45) calendar days from the effective date of 18 January 1996, will result in your file being closed for failure to protect your assignment.

During the delay period of forty-five days, on January 22, 1996, Mr. Garrett received a note from the grievorís doctor at the Levy Medical Clinic. The note stated simply: "This patient remains under my care and is unable to work at this time due to his WCB problems." The Company proceeded to terminate Mr. Ross, as indicated in a letter from Mr. Garrett dated March 1, 1996 which reads as follows:

Further to our letter of 18 January 1996, it has become necessary to close your file for failure to protect your assignment, effective 04 March 1996.

Prior to closure of your file with the Company you were requested to contact the Company concerning your return to work and failing that, then requested to attend a formal investigation in connection with your unauthorized absence neither of which you have chosen to do.

Enclosed is Form CN-4590-B should you wish to apply for refund of pension contributions.

The employerís perspective is, to a certain degree, understandable. To the time of his termination, the Company had heard nothing directly from Mr. Ross. Although its refusal to acknowledge the status of his paralegal agent is questionable, the information received from that source was cryptic, at best. Finally, the note from the grievorís physician with respect to his "WCB problems" was seen as less than satisfactory, to the extent that the Company was aware that the Workers Compensation Board had ruled the grievor fit to return to work. Indeed, it does not appear disputed that the Company was in possession of video tape which showed the grievor performing vigourous workout exercises in a gymnasium. Those workouts were in fact part of his prescribed therapy.

The Unionís case rests entirely on its submissions with respect to the grievorís mental and emotional state at the time of these events. Very simply, it asserts that Mr. Ross was severely disabled in his ability to function normally by reason of acute anxiety and depression. The ample medical record tabled before the Arbitrator bears out the Unionís submission. As early as August, 1995 Mr. Ross was diagnosed as suffering severe psychological problems as a result of the electrocution he experienced. In an e-mail note dated August 24, 1995 a WCB physician, Dr. Aronshtam, wrote, in part: "This I.W. presents with post-traumatic stress disorder, as per his recent assessment by Dr. Birb, psychiatrist. He was started on some meds & supportive psychotherapy. Ö This I.W. needs psychological intervention;". The record further reveals that possible cardio-vascular damage was addressed by the grievor being directed to an intensive exercise program at a gymnasium. Unfortunately, it is this latter event which prompted the Company, which was apparently unaware of the psychological aspect of the grievorís condition, to video-tape the grievorís activities in the gymnasium, and to forward a copy of the transcripts of the video-tape and photographs to Mr. Tung, of the Workers Compensation Board. A memo authored by Mr. Tung on November 8, 1995 goes into great detail as to the physical prowess exhibited by the grievor and concludes as follows:

Analysis / Recommendation

His activities as described in the transcripts and briefly summarized in this memo are demonstrative of a self disciplined, well motivated individual. By participating in a weight training program this would indicate he is a persistent, goal oriented individual with a "positive" frame of mind and a positive attitude.

The exercises performed would confirm there are no physical precautions in relationship to the compensable organic injuries received from the accident. I consider him fully recovered with no organic impairment and capable of performing the essential duties of his pre-injury job.

Psychologically, he is also able to perform the essential duties of his job with the precaution of avoiding any dangerous work around "live wires". This precaution will be reviewed when a psychiatric consultation report is received.

Unfortunately, the record is devoid of any indication as to whether Mr. Robert Tung had any knowledge or appreciation of the extent of the grievorís psychological and emotional condition.

It is clear that the physicians treating Mr. Ross had great concern about his mental and emotional state. On August 4, 1995 Dr. H. Bibr of the outpatientsí psychiatry unit of St. Josephís Hospital prepared a report diagnosing the grievor has having suffered post-traumatic stress disorder, major depression and generalized anxiety disorder, and placed the grievor on prescription medication. An extensive trauma assessment report of the McMaster University Medical Centre, Trauma Assessment Unit was done on September 6, 1995. The assessment team concluded in part "Ö ongoing psychiatric assessment is necessary and vital for complete recovery." The report indicates that the grievor was experiencing insomnia and nightmares, mood swings, fatigue, frustration and anger. The report notes the WCBís assessment of the grievor having suffered post-traumatic stress disorder, as well as several other reports, including that of Dr. Richard Levy, indicating that the grievor suffered from anxiety, and was experiencing memory difficulties. Dr. Levyís reports indicate continuing anxiety through July of 1995, resulting in a referral to Dr. Bibr, whose report of August 4, 1995 is referred to above. Consistent with the foregoing, the assessment of the McMaster University Trauma Assessment Unit, on September 6, 1995 contains the following diagnosis and prognosis.

Diagnosis

The opinion of the team is that Darren suffered an electrical burn injury which has resulted in secondary myofascial pain. He is experiencing a post-traumatic stress disorder which in the opinion of the medical team has triggered a major depression. Darren experiences paranoia.

Prognosis or the Likelihood of Meeting Job Demands:

It is anticipated that in six months Darren will be able to return to work, however, the team feels at this time there is no chance as he harbours too many feelings of resentment and anger towards his employer. He also has continuing problems with depression secondary to his injury. Mr. Ross needs a comprehensive (prime therapist driven) programme to pull all his treatment, questions about his health, his anger, physical problems, future direction and work re-entry. If he engages in such a process, he is likely to return to normal functioning.

Medical Restrictions

The medical restriction at this time with Darren is psychologically based. His perception of the accident and the company impedes his ability to function as an employee.

The evidence confirms that the grievorís psychological and emotional frailty continued through and beyond the period of the Companyís attempt to have him attend disciplinary investigations. A report dated July 2, 1996 by Dr. Michel P. Rathbone of the McMaster Trauma Services Unit relates the following with respect to the grievorís emotional condition at that time:

Emotional Issues

Emotional and cognitive issues are a major problem. He doesnít feel as "sharp as previously". This is probably due to the effect of the electric shock. He also suffers from quite severe insomnia. He feels frustrated as he is unable to lead a normal life and go back to work. He feels he is being badly treated over this whole matter that was not his fault in the first place. He feels sad as well as nervous and tense. He become quite angry when he thinks about the situation and is depressed because of it. He has no suicidal ideation.

He feels if his mental status was better and some of the systems issues were sorted out, he would be able to return to work after a period of rehabilitation.

...

General Comments

Again, as I indicated last year, he is physically able to do his job. However, there are a number of very significant emotional issues. He has been seen by a psychiatrist, Dr. Bieber, who felt he was suffering form post-traumatic stress syndrome. Certainly, the behaviours we have seen to date do seem to support that diagnosis. We would further recommend at this point that he be reviewed by another psychiatrist and we are recommending Dr. Trevor Young, Professor in the Department of Psychiatry at McMaster University, who will hopefully be able to again provide us with further information on whether or not he feels this man is able, psychologically, to return to his work at this time.

A more recent report, dated September 12, 1997, prepared by Dr. Trish Murphy, a psychiatrist on the McMaster team, confirms that the grievor still has a serious ongoing condition of "generalized anxiety disorder as a direct result of the work accident of January 17, 1995". Dr. Murphy further comments:

It is clear that in the months following the accident the severity of his anxiety and depressions were much worse. He was unable to fully concentrate and appreciate the nature of his decisions and I think it was entirely appropriate at that time that whomever was working with him may have advised him not to make any major decisions given the nature of his mood. Although I was not working with him at the time, I believe based upon the history and accounts, it was appropriate that Darren did not attend the hearing with his employer in January 1996. At this present time however Darren wants to fully participate in the decision-making process and I found [sic] to be very reliable historian and cooperative client.

To the same effect, the Union has filed a letter signed by Dr. Adrian R.M. Upton, head of the Division of Neurology of the Trauma Services at McMasterís Medical Centre, dated September 16, 1997. It reads as follows:

It is our considered opinion that Mr. Ross was not capable of attending a formal investigation of any sort between the period of November 1995 and May 1996, for the following reasons:

There is ample medical documentation that Mr. Ross had Post Traumatic Stress Disorder, Major Depression and Generalized Anxiety from the electrical accident.

As a result, Mr. Rossís emotional state was impaired. Challenges to his credibility, a perceived imbalance of power or inquisitory approach could well have resulted in a loss of control.

Mr. Ross likely perceived he was excused from attending such investigations by reason of being under the continuing care of this and other medical facilities, all of whom were of the opinion he was not work ready from a psychological and emotional point of view.

Although we have no formal documentation instructing Mr. Ross not to attend employer investigations, the underlying medical opinions at the time suggest such meetings were contra-indicated to his Mental Health.

In our respectful view, Mr. Ross should receive the benefit of the doubt in relation to what can easily be seen as an honestly held belief on his part that he was not required, on medical grounds, to attend work related proceedings.

The record further reveals that the grievor is now appealing the Workers Compensation Board ruling which found him fit to return to work and discontinued his benefits payments. It should be noted, however, that the appeal came after only a very substantial delay on the part of the grievor, and that during the course of its disciplinary investigations the Company had no indication that Mr. Ross was challenging the WCBís position.

What conclusions are to be drawn from the facts and opinions reviewed above? At the outset, the Arbitrator is satisfied, on the basis of the extensive medical documentation tendered, that the grievor has suffered and continues to suffer extensive depression and anxiety as a result of the tragic accident which he sustained in the service of the Company. This Arbitrator is well aware that the reports of physicians can, on occasion, exhibit a degree of bias, to the extent that a doctor might have a natural tendency to become an advocate for his or her patient. In the instant case, however, the extent of the medical record belies any possibility of malingering or the covering over of a doubtful condition. There is no medical opinion before me which in any way questions the legitimacy or seriousness of the grievorís psychiatric and emotional state from the time of his accident to the present. The unqualified and unanimous weight of opinion among a substantial number of physicians, including a number of psychiatrists, confirms that Mr. Ross was severely incapacitated, from an emotional and psychological standpoint, at the time of the disciplinary investigation.

The Companyís representatives submit that none of these factors excuse the grievorís failure to respond directly to the letters sent to him by the Company, or to attend at his disciplinary investigation. I cannot agree. The grievorís avoidance of the Companyís officers and processes is not inconsistent with the behaviour of a person suffering from acute anxiety. To the extent that Mr. Rossís anxiety was in substantial part related to his view of the Company and its involvement in his predicament, his failure to deal with the Companyís officers at the time of these events, although not entirely excusable, is understandable.

Secondly, the Arbitrator cannot share the Companyís view that it no weight should be given to the communications it received from Mr. Rossís paralegal agent. It appears to the Arbitrator that, although the primary onus was on the grievor to be forthcoming with information, it would have required little effort on the part of the Company to make inquiries of the grievor, through his paralegal agent, firstly to confirm that the agent indeed acted for him, and secondly to attempt to obtain a release of medical information with respect to his psychological and emotional condition. What the case discloses is an unfortunate failure of communication.

In the result, the Arbitrator is satisfied that while the Companyís concerns are understandable, it did not have just cause to terminate Mr. Ross. Based on the limited information available to them, the Companyís operating officers concluded that the grievor violated his obligation to provide information to the Company with respect to his condition and expected date of return. Reasonable diligence on its part, however, would in all likelihood have produced information which would have led to a outcome other than termination of the grievorís employment. In the case at hand, however, there is no suggestion that the grievor has, at any time, been fit to return to work. This is not, therefore, a case for an order of compensation in respect of wages. Whether Mr. Ross is entitled to benefits is another matter, and may depend, in part, on the outcome of his Workers Compensation Board appeal.

For all of the foregoing reasons the grievance is allowed. The Arbitrator directs that the Company remove from its records the suspension and termination of Mr. Ross, and that he be reinstated to benefits, if any, to which he may have been entitled during the period of his suspension and termination. I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.

Signed at Toronto, September 29, 1997

(signed) MICHEL G. PICHER

ARBITRATOR