IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY
(the “Company”)
and
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA CANADA)
(the “Union”)
RE: EMPLOYMENT SECURITY CLAIM OF MICHEL COLLIN
ARBITRATOR: MICHEL G. PICHER
Appearing for the Company:
Gilles Pepin Labour Relations Officer
Mario Troli Mechanical Manager, Commuter Services
Gilles St. Pierre Human Resources Co-ordinator
Appearing for the Union:
Abe Rosner National Representative
Sylvain Levert Vice-President, Local 101
Gilles Antinozzi President, Local Car-Side
A hearing in this matter was held in Montreal on July 12, 2002.
A W A R D
This grievance concerns the employment security protection of former Angus employee, Boilermaker Michel Collin. It is common ground that Mr. Collin worked at the Angus shops until their closure on February 3, 1992. He then received employment security protection under the terms of the Angus Special Agreement. That Agreement, which was modified by the interest arbitration of Justice George Adams, provided to the grievor an eight year employment security benefit at 90% of his job rate of Boilermaker, including annual wage increases and full benefits. As a result of the Adams award, however, the grievor became subject to certain obligations, including accepting outside employment at his home location. In that regard the amended Angus Agreement provides, in part, as follows under Appendix “F”, item 4:
“In the fulfillment of their obligations, Angus employees on Employment Security SUB may be required to : 1) fill unfilled permanent vacancies within the Company in the former Atlantic Region; 2) fill temporary vacancies at the home location; and 3) accept work outside the Company at the home location, subject to the approval of the Labour Adjustment Committee.”
Following a period of work at the St. Luc shop the grievor was offered a position at Progress Rail, an independent rail car repair business operating in Montreal. His salary with Progress Rail was $15.00 per hour, duly topped up by the Company to the current Boilermaker’s rate in accordance with the grievor’s special agreement and protections.
It appears that there were some serious labour relations difficulties at Progress Rail, the detail of which need not be elaborated here. On May 3, 2001 the grievor booked sick as a result of a condition of anxiety and stress. Mr. Collin was then advised by his physician to stay off work from May 3 through May 7. During that time the grievor contacted his Union representative on the Labour Adjustment Committee and inquired as to whether he could transfer to another job outside CP Rail. It appears that the Union representative on the Labour Adjustment Committee contacted his company co-chair, Mr. Alain Éthier, to inquire as to what might be done for the grievor. Meanwhile, the grievor was referred to a psychologist and was again advised by his doctor to stay off work until May 21, with a partial diagnosis of “situational anxiety”. On May 10, the grievor’s physician, Dr. Nicole Brunet provided a note which indicated that the grievor should change employment by reason of his condition of anxiety, as a means of maintaining his mental balance.
Based on his own belief that it was permissible for him to leave Progress Rail, the grievor resigned his position there effective May 22, 2001. In fact, however, the co-chairs of the Labour Adjustment Committee had not reached a final decision with respect to Mr. Collin’s status, as they appear to have been awaiting fuller medical documentation of his condition. It appears from the record that Mr. Éthier ultimately took the view that the grievor resigned without permission, as a result of which the Company suspended employment security payments to Mr. Collin.
On October 15, 2001 the grievor commenced work as a welder with another outside employer, Metamax. His employment there lasted through November 16, 2001 when he was again laid off. Mr. Collin was only restored to full ES benefits after December 16, 2001, when Progress Rail ceased operations.
The Company has directed the Arbitrator to no provision of the collective agreement, or of the Special Agreement, which would require that an employee obtain the permission of the Labour Adjustment Committee before resigning from outside employment. It may be, of course, that the abandonment of outside employment might constitute a violation of an employee’s obligation under the terms of the Special Agreement, such as to justify a suspension or reduction of an individual’s employment security payments. In fact, part of the Company’s submission is that when the grievor left Progress Rail he should have forfeited his entitlement to benefits under 7A of the Job Security Agreement.
In support of its position the Company points to the provisions of Appendix F reproduced above and also cites Article 7A.3 of the Job Security Agreement which reads, in part, as follows:
Notwithstanding anything in this Article 7 to the contrary, an employee, in order to be entitled to employment security, will be required to take work at his/her home location in an unfilled permanent vacancy within the Company, in temporary vacancies and work outside the Company. For purposes of application of this provision employees on employment security at each location will be ranked for seniority purposes by cumulative compensated service regardless of bargaining unit. Vacancies will be filled in compliance with the following procedures:
(i) An employee covered by this provision must avail
himself/herself of work at his/her home location in accordance with the following, or forfeit employment security entitlement.
In the Arbitrator’s view the position of the Company as regards Mr. Collin’s circumstances cannot be sustained. Firstly, the only evidence before the Arbitrator concerning the grievor’s status is medical certification confirming that in the opinion of the grievor’s physician his condition of clinical anxiety created a circumstance in which it was necessary for him to seek work at an employer other than Progress Rail. In essence, the Company’s position seems to be based on a rejection of that medical opinion. With respect, in the absence of any contrary medical evidence, the Arbitrator has little alternative but to accept the medical diagnosis and prescription of the grievor’s own physician. This is not a circumstance in which an employee has been discharged for cause on a disciplinary basis for refusing outside employment or has resigned without any valid excuse. On the contrary, what the evidence discloses is that for reasons that are medically certified, the grievor was required to leave the employment of Progress Rail. For reasons which it best appreciates, the Company did not make the grievor’s departure the subject of any disciplinary proceedings and has apparently not sought to obtain a contrary medical opinion.
In the foregoing circumstances the grievor cannot be viewed other than an employee whose medical condition made it impossible for him to fulfill the obligations of the Job Security Agreement for the purposes of maintaining employment security. Nor is there any provision of the Job Security Agreement which would, as Mr. Éthier apparently believes, requires the approval of the Labour Adjudication Committee before an individual can leave an outside employment for medical reasons. That would appear to the Arbitrator to be a particularly difficult proposition to sustain in respect of the termination of an employee’s outside employment for medical reasons supported by documentation. Consequently, the Arbitrator can see no basis upon which the Company can be justified in having suspended the grievor’s job security payments following his departure from Progress Rail, nor can I see any justification for the reduction of his top-up for the period of time he was employed at Metamax, apparently based on the difference in wages he would have earned at Progress Rail.
The grievance is therefore allowed. The Arbitrator directs that the grievor be fully reinstated into his employment security protections, and that he be compensated for all wages and benefits lost as a result of the erroneous adjustments applied by the Company. The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto this 29th day of July 2002.
“Michel G. Picher”______
Michel G. Picher
Arbitrator