SHP 554S





(hereinafter referred to as the “Railway”)





(hereinafter referred to as the “Union”)



(Spatling Arbitration –Compensation)


Arbitrator:                                                        H. Allan Hope, Q.C.


There appeared on behalf of the Railway:


Edward J. Houlihan                                          Senior Manager, Labour Relations

Eero Kuitunen                                                  Director, Equipment Maintenance (West)

Sam Gareb                                                       Foreman , VMC – Via Rail


And on behalf of the Union:


Brian McDonagh                                              CAW, National Representative

John Burns                                                       Vice-President, CAW, Local 100

Norbert Spatling                                               Grievor

Trevor Blair                                                      Local Chairperson, Lodge 773

Richard Brosseau                                             Vice-President, CAW, Local 100


Place of Hearing:                                              Vancouver, B.C.

Date of Hearing:                                               April 1, 2003

Supplementary Award


I – Dispute


[1]               This dispute arose out of a prior Award between these parties published on April 9, 2002 in which the Grievor was reinstated to his employment.  The concluding paragraph of the Award places the issue in perspective.  It reads:


I conclude on the facts that the Railway failed to prove conduct deserving of discipline on the Grievor’s part and he is entitled to reinstatement.  However, I conclude on the authorities that I have, and should exercise, jurisdiction to order a conditional reinstatement with a requirement that the Grievor provide a satisfactory medical assessment of his fitness to return to work.  The assessment is to be conducted on terms agreeable to the parties.  I will retain jurisdiction to impose a process if the parties are unable to agree.  I will also retain jurisdiction to resolve any dispute with respect to whether the Grievor had established his fitness.  The issues of compensation and implementation of the award will be postponed pending a resolution of the issue relating to the Grievor’s fitness.  At the time, if requested, I will assist the parties in addressing those issues.  (emphasis added)


[2]               In response to that direction the parties were able to agree that the Grievor’s fitness to return to work was to be determined by an independent medical specialist.  The specialist selected was Dr. Brian R. Atkinson, a developmental psychologist and neuro-psychologist with extensive practice experience in British Columbia and elsewhere.  He filed his Report on May 28, 2002.  That Report led to the reinstatement of the Grievor effective June 13, 2002.  The parties were unable to reach agreement on compensation for the Grievor for his loss of pay during the period when he was absent from work. 


[3]               The Union presented detailed calculations in these proceedings in support of a claim of compensation in the amount of $112,920.43.  The claim was based upon an absence from work from May 5, 2000 until June 12, 2002 for a total of 25,960 work hours.  Added to the claim was a calculation of overtime payments and statutory holiday pay the Grievor believed he would have received.  Finally, the Union claimed interest on the outstanding balance at the rate of 2.5%.  From that amount the Union deducted Employment Insurance payments the Grievor received for a period of five weeks to arrive at its claim.


[4]               The Union based its claim on the assertion that the report of Dr. Atkinson constituted proof that the Grievor was fit to perform his duties at all material times and that he should therefore be compensated for his wage loss.  As an alternative, the Union submitted:


[I]f it is concluded by the Arbitrator that [the Grievor] is not entitled to his lost earnings or a substantial portion of those earnings, as identified herein, then it should be found that he is at least entitled to the Great West Life Benefits of at least forty-one (41) weeks deducting the five weeks he had received from EI which would have been available to him had he been removed from service due to a medical condition.


[5]               The position of the Railway was that the Award imposed a condition upon the Grievor to provide medical proof of his fitness to perform his duties as a condition precedent to his return to work.  The Grievor met that requirement in the medical opinion of Dr. Atkinson on May 28, 2002 and the Grievor was reinstated in the ordinary course.  Its position was that the Arbitrator acknowledged that the Railway was entitled in the circumstances to “refuse to return [the Grievor] to active employment until the issue [of his fitness] had been addressed”. 


[6]               When the fitness issue was addressed, said the Railway, the Grievor was reinstated.  The Railway conceded in that context that the Union’s alternate submission was consistent with the fact that the Grievor, accepting that he was deemed unfit to perform his duties on medical grounds, was “at least entitled to the Great West Life Benefits”.




[7]               It was concluded in the Award that the conduct of the Grievor that moved the Railway to require him to submit to a medical examination was conduct that justified holding him out of service until he was able to establish his fitness to perform his duties. 


[8]               There is no arbitral authority for the Union’s proposition that an employee held out of service pending proof of his fitness to perform his duties is entitled to be compensated for his resulting wage loss beyond any disability benefits he might be able to claim under the provisions of the collective agreement. 


[9]               In any event, the Atkinson Report does not establish that the Grievor was fit to perform his duties at the time he was dismissed or at the time the Award was published.  The Report addressed the Grievor’s fitness to return to work concurrent with his examination and the writing of the Report.


[10]             Acknowledging that the Railway was entitled to hold the Grievor out of service pending an assessment of his fitness to perform his duties, and acknowledging that the onus was upon the Grievor to establish his fitness, the conclusion on the admitted facts is that he met that onus with the delivery of the Atkinson Report.  On that basis, the appropriate compensation for the Grievor is what is set out in the Union’s alternative submission.


         DATED at the City of Prince George, in the Province of British Columbia, this 8th day of July, 2003.



                                        “H. Allan Hope, Q.C.”                                

                                          H. ALLAN HOPE, Q.C. – Arbitrator