SHP 543

AWARD

At the commencement of the hearing, the parties confirmed that the Arbitrator had been duly and properly appointed and has jurisdiction to hear and determine the matters at issue. The parties were in agreement that there was no need to exclude witnesses and consequently there was no order of exclusion.

The Collective Agreement between the parties contemplates submission to the Arbitrator of a Joint Statement of Issue. The Joint Statement of Issue reads as follows:

DISPUTE BETWEEN

CANADIAN PACIFIC RAILWAY

AND

NATIONAL, AUTOMOBILE, AEROSPACE, TRANSPORTATION AND

GENERAL WORKERS UNION OF CANADA (CAW-TCA)

LOCAL 101

STATEMENT OF FACT AND ISSUE

Dispute: Dismissal of Electrician, K. Boulhout, Winnipeg Diesel Repair Facility, Winnipeg, Manitoba.

Statement of Fact:

On April 27, 2001 Electrician K. Boulhout was dismissed from service for:

“Defrauding the Company by deliberately misrepresenting your physical capabilities, your refusal to perform any work for your employer during your absence between February 27, 2001 and March 20, 2001 and your attempt to receive Worker’s Compensation Benefits related to an alleged injury on February 26, 2001.”

Statement of Issue:

It is the contention of the Union that:

- the Company did not establish wrong doing on Electrician K. Boulhout’s behalf sufficient to give the Company cause to dismiss him.

- Electrician K. Boulhout was treated in an arbitrary, discriminatory and an excessive manner in regard to his dismissal.

Therefore, with regard to the foregoing, it is the position of the Union that Electrician K. Boulhout should be returned to duty 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 moneys owing.

The Company denies that the Union’s contentions and claim.

FOR THE UNION FOR THE COMPANY

“Glenn Michalchuk” “Doug Cooke”

Vice-President, Prairie Region Manager, Labour Relations

Local 101 CPR

At the outset it will be observed that the allegations are extremely serious and describe conduct that could be best described as wilful, purposeful and fraudulent. Should such allegations be established, on the balance of probabilities, such conduct might well constitute a fundamental breach of the employment relationship thereby justifying termination.

By way of background, Karim Boulhout (“Boulhout”) is 39 years of age. He had been employed by Canadian Pacific Railway (sometimes hereinafter, referred to as “CP Rail” or the “Employer” or the “Company”) since November l, 1994.

It is common ground of the parties, that prior to the dismissal which gives rise to this arbitration, Boulhout had a discipline free record. It appears, as well, that on no occasion in his past work history had he been in receipt of Workers Compensation benefits, although he had experienced some past work related injuries. On each such occasion Boulhout continued to work, with the result, that no time was lost through injury.

It was asserted by the Union (and not challenged by the Employer) that Boulhout had a record of working extensive overtime. Indeed, he apparently worked approximately 764 hours of overtime in the 2 years prior to his dismissal.

At the time of the dismissal, Boulhout was employed in the Winnipeg Diesel Shop Facility. The Winnipeg Diesel Shop is a three shift operation, working 7 days per week and 365 days per year.

The events giving rise to the termination began on Monday, February 26, 2001. At that time, Boulhout’s normal days off were Sunday and Monday. However, on February 26, 2001, he was scheduled to work a double overtime shift of 16 hours.

The specific work task in which Boulhout was involved, related to the inspection and/or replacement of lower brushes on traction motors on a locomotive. This task is performed from a pit which is below the locomotive and apparently allows 4 feet of clearance. It therefore follows that such work may place the employee in an awkward physical position.

At some juncture during the performance of this task, Boulhout experienced a sharp pain in the low back area. There was some discrepancy in the identification as to exactly when or under what circumstance the sharp pain was first experienced. In one reporting, the onset of symptoms appeared to be noticed as Boulhout exited through the pit’s entry/exit portal on the south side of the track. In another reporting, the pain was first experienced when Boulhout completed the first three motors and went to straighten up to proceed to the next three motors. In any event, an ice pack was subsequently applied to the affected area, with beneficial results. Boulhout returned to his duties and completed an additional three hours of work. Thereafter, Boulhout informed his supervisor that he would not be completing his overtime shift and would be attending on his physician.

From the evidence before the Arbitrator, it is clear that on February 26, 2001, Boulhout did in fact attend on his physician, Dr. Patel. Dr. Patel completed a form which was provided to him by Boulhout. This form is identified at the top thereof as a Physician’s Report “for use by CP Rail”. The form contains a series of questions, which are responded to by the Physician as follows:

“Physician’s diagnosis of ailment: Back strain

Is employee capable of performing

regular duties immediately? No

What type of restrictions, if any, will

the employee have when he/she returns

to work? No bending or lifting

Will employee be required to be absent

from work? If so, please indicate estimate

length of disability 1 week”

On February 27, 2001, Boulhout attended at the workplace to provide a copy of the Physician’s Report. At the time of such attendance, a conversation occurred between Boulhout and Don Fredreckson, who occupies the position of Employee Resource Co-Ordinator for CP Rail and additionally is a Management Representative on the Local Disability Management Committee. It is this conversation that is pivotal in the events leading to the discharge.

Before referring to the differing views of what was said in that conversation, it is necessary to have some understanding of the concept of “modified duties” and its place in the work environment. The evidence makes it clear, that both the Employer and the Union share an interest in attempting to accommodate a worker who has suffered illness or injury, by attempting to design duties which may be performed by the employee that are within his physical capabilities having regard to medically determined restrictions. This task is largely performed through the auspices of a committee known as the Local Disability Management Committee, which is comprised of both management and union representatives. Simplistically stated, this Committee will gather medical information which will, where appropriate, lead to a modified work plan for the employee. The modified work plan is presented to the employee for his comment.

Where an appropriate work plan for modified duties is arrived at, which is within the employee’s physical restrictions or limitations, it is the clear expectation (and intention) of both the Employer and the Union (and the perceived obligation of the employee) that the employee will accept and perform such duties. In that way, the employee will be able to (and will) continue to work, notwithstanding the continuance of the injury or illness from which he suffers.

It is apparent from the evidence that this Employer takes seriously its duty to accommodate. Indeed, one of the exhibits provided contained the Canadian Pacific Railway Return to Work Policy including the procedures governing the CP Return to Work Policy as it applies to unionized workers employed in Canada. As well, Rule 17 specifically addresses the issue of disabled employees. The subject of modified duties in the context of the return to work policy had, within the last 2 years, been the subject matter of seminars for employees, including employees at the Winnipeg facility at which Boulhout is employed. Boulhout participated in that seminar.

Returning now to the conversation between Fredreckson and Boulhout of February 27, 2001. By all accounts, this was a brief conversation.

In a memorandum written on March 20^th, 2001, Mr. Fredreckson recorded his recollection of the conversation as follows:

“Conversation took place on February 27, 2001.

Mr. K. Boulhout was asked if he could perform modified duties. Mr. K. Boulhout was in the hallway on the second floor just in front of my office. I believe Jim Hutchinson and Bob Harlow were within hearing distance. Mr. K. Boulhout advised that he had a Physician’s Report and that he would be off. I asked him that if I could find him modified duties would he stay. He said no I am too sore to do modified duties - maybe not the exact words but close.”

Boulhout’s recollection of this conversation appears in the Investigative Statement, the whole of which Statement was provided to the Arbitrator. In referring to the conversation with Mr. Fredreckson, Boulhout stated:

“As I said to him when he approached me in the hallway, asking me if I could do modified work, I replied to him, that at this moment my back is still sore, if there is anything to ask, to contact my doctor. He (Mr. Fredreckson) response was, I was just asking.”.

As noted in Mr. Fredreckson’s memorandum, he believed that Bob Harlow was within hearing distance of the conversation. Mr. Harlow is a Union Representative on the Local Disability Management Committee and the Union grievance officer at the facility at which Boulhout works. Mr. Harlow recorded his version of the conversation in a written notation on October 25, 2001, as follows:

“After receiving the note from Karim, Mr. Fredreckson followed Mr. Boulhout into the hallway where he asked him if would stay, would he work modified duties? Karim stated that he was sore and that he (Mr. Fredreckson) could talk to his doctor. Karim left and Mr. Fredreckson returned to his office”.

Both Mr. Fredreckson and Mr. Harlow gave evidence. In his evidence, Mr. Fredreckson denied that Boulhout had suggested to him to contact his doctor. Furthermore, he indicated that had this been said, he would not, in any event, have contacted the doctor. He testified that he asked Boulhout if he would work if modified duties could be found and that Boulhout’s answer was “no, I am too sore”.

The Company did not challenge the validity of the injury. However, in his evidence, Mr. Fredreckson indicated that at the time of his conversation with Boulhout, he did not believe there was anything wrong with him. He did indicate, as well, that where minor tissue injuries are involved, they have to take the employee’s word and assume that the employee is honest.

Under cross-examination, Mr. Fredreckson acknowledged that the conversation with Boulhout took place after 15:00 and before Boulhout’s normal shift would start at 16:00. Mr. Fredreckson denied, however, that he was asking Boulhout whether he would stay on that particular day to perform modified duties. Mr. Fredreckson admitted, that based on the physician’s report then in his possession, there would not have been sufficient information to determine what modified duties could be offered. Mr. Fredreckson expressed the view that Boulhout understood that he (Mr. Fredreckson) was not referring to modified duties on the day of the conversation, but rather later in the week. Mr. Fredreckson was not, however, able to point to any particular reason or comment from which he gained the insight that Boulhout understood the reference was to the week and not to the day in question.

Subsequently, on or about March 8, 2001, Mr. Fredreckson forwarded to Mr. Boulhout additional forms for completion by his physician. These forms may never have been completed, as Boulhout returned to work on March 13, 2001. Mr. Fredreckson was questioned as to why these forms were sent out. He indicated that it would be normal practice to send those forms out when the employee’s absence is approaching 21 days.

During his evidence, Mr. Fredreckson indicated that after his discussion with Boulhout on February 27, 2001 he went to see Keith Shearer, the Service Area Manager for CP Rail. In consultation with CP Rail Claims Department, a decision was made to initiate video surveillance of Boulhout’s activities while he was off work. The video surveillance was conducted from March 1 through March 4, 2001 by a private investigation firm, by the name of Quest Investigation Group.

During the Employer’s presentation of its case, the video tape was viewed in its entirety. In very general terms, the video tape showed Boulhout walking, driving his car, attending physiotherapy, going to the grocery store, moving groceries from a cart to his car, walking up and down the stairs of his residence and other such activities.

Subsequent to the review of the video evidence, the Employer consulted its corporate physician, Dr. K. Brett. As a result of Dr. Brett’s review of the video evidence, he provided a brief report, which included the following:

“The tape demonstrates the employee engaging in what could translate into light to medium work capacity. He does not demonstrate any difficulties walking, standing, sitting, lifting (up to approx. 30 to 40 lbs.) bending or carrying.

At the time the video was made the employee appeared capable of working on modified duties in a light to medium capacity”.

It should be noted, that Boulhout applied for Workers Compensation benefits. With respect to employees of C.P. Rail, where Workers Compensation benefits are awarded, the cost thereof (together with an administrative charge) is actually funded by the Employer. By letter dated April 5, 2001, Boulhout was advised by the Workers Compensation Board that:

“It was the opinion of the Rehabilitation Compensation Services that based on the weight of the evidence, including diagnosis, the surveillance tape submitted by your Employer and the WCB Medical Advisor’s opinion that you were fit for modified duties effective March 1, 2001 and your time loss from work beyond February 28, 2001 could have been avoided.”

The Union called Bob Harlow as a witness. Harlow reconfirmed that he had heard the conversation on February 27^th between Boulhout and Mr. Fredreckson. Mr. Harlow stated that he (Bob Harlow) had understood Mr. Fredreckson to be asking Boulhout whether he would stay on that particular day and work. The witness did not understand Mr. Fredreckson’s question to be referable to modified duties at a subsequent time frame.

Mr. Harlow further gave evidence that although there may have been reference by Mr. Fredreckson to modified duties, at no time did Boulhout say no. Rather, Boulhout referred to being “too sore” and (according to the witness) indicated that Mr. Fredreckson could contact Boulhout’s doctor. Mr. Harlow did not understand the conversation to mean that Boulhout would not participate in the modified duties program, but simply that he was too sore on that night to work.

Mr. Harlow confirmed that he had seen the initial physician’s report from Dr. Patel. The witness stated that this physician’s report would not supply enough information from which one could develop a work program of modified duties.

Mr. Harlow indicated that nothing further was pursued by Fredreckson concerning modified duties for Boulhout. Indeed, he indicated that in the normal course, a plan for modified duties is not usually developed where an absence is expected to extend for only one week.

Under cross-examination, Mr. Harlow acknowledged that the version of the conversation outlined in his written notation of October 25^th, 2001, did not represent the exact words, but rather the gist of the conversation.

Further evidence of Mr. Harlow referred to his involvement with the Local Disability Management Committee since 1994/1995. He explained the role of the Committee to facilitate the return to work of members who had occasion to be absent from work owing to injury or illness. He referred to the number of modified duty arrangements over the last two years as involving approximately 50 to 60 people. Mr. Harlow indicated, that the type of physician’s form initially given to employees now, is the second kind of form that was utilized at the time of the Boulhout incident.

Although I have referred only briefly to the evidence given, prior to delivering this award, I have reviewed all of the evidence tendered by the parties.

In its argument, the Union suggested that Mr. Fredreckson’s approach to this matter was simply the product of Mr. Fredreckson not wishing Mr. Boulhout to obtain Workers Compensation benefits (with the attendant cost thereof to the Employer). Simply put, I do not see any justification for such an assertion and the implicit notion of bad faith underlying such assertion. Mr. Fredreckson appears to be an individual who takes seriously the Employer’s responsibilities in connection with assisting a return to work by employees who would otherwise be absent through injury or illness.

That having been said, I turn now to the issue of whether the Employer has justified its action of termination. On that issue, the Company bears the onus to prove, on a balance of probabilities, the allegations upon which the termination is based and furthermore that such allegations, if proved, justified termination.

In the first portion of the Dismissal Notice it refers to “Defrauding the Company by deliberately misrepresenting your physical capabilities”. I am unable to find in the material and evidence presented any fraudulent or deliberate attempt by Boulhout to misrepresent his physical capabilities. Indeed, most of the information concerning Boulhout’s physical condition was information contained in physicians’ reports or the report of a physiotherapist.

The second portion of the Dismissal Notice refers to a refusal on Boulhout’s part “ to perform any work for your employer during your absence between February 27, 2001 and March 10, 2001". In respect of this portion of the Dismissal Notice, the Employer is particularly relying on the conversation between Boulhout and Mr. Fredreckson on February 27^th, 2001. It may well have been Mr. Fredreckson’s intention to enquire of Boulhout in a general fashion on the subject of modified duties. However, I am particularly cognizant of Mr. Fredreckson’s own version of the conversation in his memorandum of March 20^th, 2001 which includes the following:

“I asked him that if I could find him modified duties would be stay. He said no I am too sore to do modified duties”.

If it was Mr. Fredreckson’s intention to enquire of Boulhout concerning modified duties in a general sense, I am not satisfied that his words would have made this clear. Indeed, the fact that the conversation took place less than a hour prior to Boulhout’s normal start time, coupled with the use of the word “stay” could well have left an impression in the mind of any reasonable person, that the enquiry was specific to the approaching shift. Even Boulhout’s response - “I am too sore to do modified duties” - appears to be a response referable to the time in question and not necessarily a reference to a future condition.

This aspect is somewhat analogous to the situation of discipline on the basis of insubordination, where it is alleged that the employee failed to follow an order from management. It is well accepted in arbitral jurisprudence, that for the discipline to be sustained, the evidence must make it clear that the order was clear and unequivocal and consequently that the employee’s failure to carry out the order was deliberate.

The third aspect of the basis for termination is the allegation that Boulhout attempted “to receive Workers Compensation benefits related to an alleged injury on February 26^th, 2001.”.

There is ample substantiation through the Doctor’s Certificates and physiotherapy reporting, to support the belief that Boulhout was in fact injured on February 26^th, 2001. Indeed, there was no serious effort on the part of the Company to assert that Boulhout did not suffer an injury on February 26^th, 2001. Accordingly, the preparation and filing by Boulhout of an application for Workers Compensation benefits does not, in my view, constitute conduct which justifies a termination.

Having regard to the foregoing, I conclude that the evidence presented by the Employer is not sufficient to establish that Boulhout deliberately engaged in the type of fraudulent conduct alleged.

That having been said, I observe that Boulhout’s conduct was not necessarily consistent in all respects with an employee’s obligations. The conversation on February 27^th, 2001 with Mr. Fredreckson would, at the very least, have conveyed to Boulhout the Company’s intention and interest in the possibility of modified duties. Boulhout had, at an earlier date, participated in the workshop/seminar concerning return to work policies and modified work plans. As such, Boulhout knew, or ought to have known, that there is a reasoned expectation of his co-operation and participation in a return to work with modified duties.

There is ample evidence to support a conclusion that Boulhout’s condition by (approximately) March lst, 2001 was such that he could have performed modified duties. This evidence includes the videotape and the opinion of Dr. Brett. As well, Boulhout’s responses during the Investigation Statement lend further support to this conclusion. Lastly, the Union itself acknowledged that shortly following February 27^th, 2001, Boulhout was, in all probability fit for modified duties.

During the period from February 27^th, 2001 until his return to work on March 13^th, 2001, Boulhout made no effort whatsoever to approach his Employer or the Disability Management Committee concerning a return to work with modified duties, even though it is clear that his condition would have permitted such return. This failure on the part of Boulhout must be regarded as a departure from an employee’s obligations, particularly having regard to the admirable commitment of both CP Rail and the Union to the concept of modified duties.

For the reasons previously stated, the Arbitrator is of the view that the Employer has not proven just cause for termination and as such, Boulhout should be reinstated. However, having regard to Boulhout’s failure as aforesaid, in the Arbitrator’s view, this is not a case in which it would be appropriate to exercise a discretion to order monetary compensation.

In the result, the Arbitrator directs that the Grievor be forthwith reinstated into his employment, without loss of seniority, but without monetary compensation.

The Arbitrator retains jurisdiction should there be any questions relating to the implementation of this Award.

Lastly, I would be remiss if I did not express my thanks to both John Bate and Doug Olshewski for the very clear, able and thorough presentation of their respective positions in this case.

DATED at the City of Winnipeg, in Manitoba this 30th day of November, 2001.

Sidney G. Soronow

Sole Arbitrator