SHP – 466
IN THE MATTER OF AN ARBITRATION
ST. LAWRENCE & HUDSON RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA)
GRIEVANCE RE CLOSING OF EMPLOYMENT FILE OF J. L. HOBBS
SOLE ARBITRATOR:Michel G. Picher
There appeared on behalf of the Company:
A. Y. deMontigny – Labour Relations Officer, Montreal
Chris Barthey – Human Resources Coordinator, Montreal
K. Bossi – Manager, Planning Materials, Toronto Diesel Shop
And on behalf of the Union:
B. McDonagh – National Representative, Vancouver
R. Laughlin – Regional Vice-President, Toronto
J. L. Hobbs – Grievor
A hearing in this matter was held in Montreal on May 28, 1998.
The Union grieves the decision of the Company to close the employment file of Engine Attendant Helper J.L. Hobbs. As a result of a work related injury sustained on May 13, 1989 the grievor suffered an injury to his left shoulder, as well as a tennis elbow. Following his injury the grievor was assigned to modified duties cleaning lunch room tables. It is not disputed that his condition became such he was unable to perform even those modified functions, and that he was found totally disabled on September 5, 1989. When it became evident that the grievor’s condition was permanent, the Company closed his employment record effective June 18, 1991. The Union grieves that action, and submits that the Company has not properly applied the provisions of a letter of understanding governing the treatment of disabled employed. The Dispute and Joint Statements of Fact and Issue, filed at the hearing, read as follows:
The closure of the record of Engine Attendant Helper J.L. Hobbs, Toronto Diesel Shop, Toronto, Ontario.
JOINT STATEMENT OF FACT:
Engine Attendant Helper J.L. Hobbs received a letter from CP Rail dated June 18, 1991 stating in part:
"As a result of your long term unavailability for duty, you service record with CP Rail is closed effective immediately."
JOINT STATEMENT OF ISSUE:
It is the position of the Union that:
The Company has acted in an arbitrary and excessive manner with respect to the dismissal of J.L. Hobbs.
The Company did not properly apply the provisions of the letter of understanding with respect to employees who become physically disabled during the course of his employment and is unable to perform regular duties of his assigned position …
Therefore, Engine Attendant Helper J.L. Hobbs should be reinstated forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any monies owing.
The Company denies the Union’s contentions and claim.
It is established that the Company, and indeed the Union, bear an obligation of reasonable accommodation for an employee who has suffered a physical disability. That obligations also extends to the employee himself or herself. It is incumbent upon the three parties to make all reasonable efforts to determine whether the employee can perform duties of a modified nature, short of imposing undue hardship upon the employer.
The record before the Arbitrator indicates that the parties incorporated into the terms of their own collective agreement an obligation to seek to accommodate an employee who suffers from a disability. A letter of understanding dated July 22, 1982 reads, in part, as follows:
… 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 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 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 disable employee on a position that his qualifications and ability allow him to perform. …
Rule 17 of the collective agreement also reflects the recognition of the parties of the duty of reasonable accommodation. It reads, in part, as follows:
17.1 The Company agrees to make every reasonable effort to provide suitable modified or alternate employment to employees who are temporarily or permanently unable to return to their duties, as a consequence of an occupational or non-occupational disability.
The evidence before the Arbitrator discloses that the parties did make efforts, consistent with the letter of understanding, to place Mr. Hobbs in modified duties. After it became evident that the grievor cannot fulfil even the light duties of cleaning tables in the lunch room, following his abandonment of that work on September 5, 1989, the Company sought further information in the way of medical documentation with respect to the grievor’s limitations and a diagnosis as to his expected ability to return to work. By letter dated September 18, 1989 superintendent R.J. Bell wrote to the grievor requesting that he have his personal physician submit a full report on his condition. When nothing further was heard from Mr. Hobbs for a considerable period of time, and no medical report was forthcoming, Superintendent D.J. McMillan wrote to him as follows on June 18, 1991:
Recent review of your file has shown you have been unavailable for duty at the Toronto Diesel Shop since September 5th, 1989.
In addition, there is no indication you have attempted to maintain contact with the Manager, Diesel Shop to keep him apprised of your status or intention with respect to your employment.
As a result of your long term unavailability for duty, your service record with CP Rail is closed effective immediately.
Arrangements will be made to process any pension contributions owed to you directly through our Pension Department in Montreal.
The Union grieved the Company’s decision on July 8, 1991. The parties agreed to an extension of time limits to allow the grievor to supply more ample medical records. Following a written request by the Company on September 28, 1992 for such further information the Union advised, by letter dated October 8, 1992, that the grievor’s family physician would supply the required information to the Company’s Chief of Medical Services. Nothing, however, was forthcoming. On May 9, 1994 the Company advised that no further extensions would be allowed, and it did not receive any medical opinion from the grievor’s physician until early 1995, a delay of some four and one-half years.
The Company nevertheless reviewed the medical opinions submitted on behalf of the grievor, both in 1995 and later in July and November of 1997. It formed the opinion that the information there disclosed did not justify a reversal of its decision to close the grievor’s employment file.
Upon a review of the material filed, the Arbitrator must sustain the decision of the employer. The record discloses a note from the grievor’s physician, Dr. Broderick G. Kerr, indicating that Mr. Hobbs would not be fit for work as a mechanic and would require "… retraining in a softer industry such as computers." Initiatives were undertaken through the Workers’ Compensation Board to re-train Mr. Hobbs for work more suited to his permanent condition. The grievor was not co-operative, however. A letter outlining the history of the grievor’s involvement with the WCB indicates that he failed to appear for an appointment on March 20, 1991, and did not call to give any explanation. A letter dated February 5, 1993 addressed to the grievor by the WCB contains the following observations:
The worker did not show for the March 20, 1991 appointment. The worker also did not call to give an explanation.
On March 28, 1991, the Placement Specialist closed the worker’s file under the category, no job obtained. Placement Specialist met the worker on March 28, 1991. At this meeting, the worker did not comply with the tasks given to him by the Placement Specialist …
During the meeting, the Placement Specialist also offered the worker a security guard job and also a parking lot attendant job. The worker declined both of these positions. Based on the above information the Placement Specialist, Joan Sukra, felt that the worker would not benefit from her services.
Further medical reports dating from 1994 and 1997 confirm that the grievor suffers from a permanent condition which prevents him from doing any heavy or repetitive lifting, twisting, pushing, pulling or work above the head. He is also prohibited from doing any repetitive writing or keyboarding.
On the whole, the record discloses that the Company did take reasonable steps, consistent with the letter of understanding, to attempt to find suitable modified work for the grievor. Unfortunately, his physical condition deteriorated to the point that he was unable to perform even the lightest of duties. Significantly, the grievor provided no further medical information to the Company when he was requested to do so, for a period of several years. Additionally, as the record discloses, Mr. Hobbs failed to cooperate with the Workers’ Compensation Board, and declined at least two offers of employment which would have been suited to his condition. Regrettably, in these circumstances, the Arbitrator is compelled to the conclusion that the grievor himself has failed to make reasonable efforts to accommodate his own physical disability. On the evidence before me it appears well established, on the balance of probabilities, that the grievor is unable to perform work, even of a modified type, in any situation which might be available, short of creating undue hardship to the employer. While Mr. Hobbs has not been dismissed from employment, and a subsequent significant improvement in his condition might lead to a different result, on the basis of the information available to the Company at the time of its decision, and indeed at the time of the hearing, it acted reasonably, and in a manner consistent with its obligation of reasonable accommodation towards Mr. Hobbs.
For the foregoing reasons the grievance must be dismissed.
Dated at Toronto, this 25th day of June, 1998. (signed) MICHEL G. PICHER