IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY
(the “Employer”)
AND:
CAW LOCAL 101
(the “Union”)
(Aziz Jaffer Grievance)
ARBITRATOR: Vincent L. Ready
COUNSEL: John H. Bate for
the Employer
Brian McDonagh and
Vinod Gill for
the Union
HEARING: May 13 and 14, 2003
Calgary, Alberta
PUBLISHED: July 9, 2003
2749.1A
The issue giving rise to this dispute is the contention advanced by the Union that the Employer has failed to adhere to an arbitration award issued on February 15, 2002 in which I made the following order with respect to the grievor, Mr. Jaffer:
For the forgoing reasons, I find that the dismissal of the grievor was unwarranted. However, that does not end the matter. The evidence establishes that, at the time of his dismissal, the grievor was taking Demerol on a daily basis and that this appears to have continued given the prescriptions tendered as evidence. I am also satisfied that the Company, knowing that the grievor was under the influence of Demerol, would not have permitted him to work. Thus, an order for reinstatement with full back pay would be inequitable for the evidence discloses that the grievor was not capable of working at the time of his dismissal. Therefore, I refer the matter of remedy back to the parties. It is for the parties to determine whether the grievor’s physical condition is such that he is capable of performing either his regular duties or modified duties and furthermore, to come to an agreement on the matter of back pay, if any.
(at 38)
BACKGROUND
Following receipt of the February 15, 2002 arbitration award, discussions took place between the parties between April and July, 2002. On July 26, 2002 the Employer and the Union discussed the grievor’s physical condition and whether he could be returned to employment.
At this point it had been four months since the award was issued and the grievor had not been returned to service. The Union took the position that if the grievor was fit to return to work during this period of time the Employer would be liable for compensation and that if he was not fit to return to work he would be entitled to Weekly Indemnity Benefits. The parties agreed to work together to obtain medical information from the grievor’s previous and current physicians to determine his fitness to return to work.
Upon review of the medical documentation and the grievor’s file, the Employer made a determination that he was unable to work during the period subsequent to his dismissal to the date of the award. This was based on his physical limitations at that time and the fact that he was taking, by prescription, the drug Demerol. The Company then directed the service provider, Sun Life, to forward Weekly Indemnity benefits to the grievor. This was confirmed in a letter dated October 15, 2002. The period of coverage was January 1, 2002 to October 13, 2002, the maximum allowable under the plan.
In August, 2002, the Employer’s Occupational Health and Safety physician, Dr. Cutbill, received a report from the grievor’s physician, Dr. Wadhers, stating that the grievor could not resume his previous duties. He also recommended that the grievor be sent for a Functional Capacity Evaluation (FCE), which was scheduled for September 24-25, 2002 at the Canadian Back Institute.
The FCE concluded that, “Mr. Jaffer did not demonstrate the ability to perform the job of diesel mechanic machinist. He demonstrated abilities to work within the light level”.
After reviewing the FCE and medical documentation, Dr. Cutbill directed the Occupational Health and Regional Team to proceed with attempting a workplace accommodation under the Employer’s return to work policy. That team included a physician, Dr. Lambros and Corporate Occupational Health Advisors who consulted with the employee’s physician. A list of applicable physical limitations and restrictions was developed.
A “Return to Work Assessment Form” was sent to the Local Joint Disability Management (DM) Committee at the grievor’s home terminal. This committee consists of Union representatives and management representatives who then reviewed the physical limitations and restrictions of the grievor to determine if an accommodation could be achieved. The Local Joint DM Committee determined that no accommodation was available. The possibility of accommodating the grievor at his home terminal and other locations was discussed through February, 2003 with the same result.
On March 25-26, 2003, the Union again raised the issue of the grievor’s return to duties. The Union indicated that it had concerns with the Employer’s reliance on the Company physician’s assessment of the grievor’s limitation and suggested it would be contacting the grievor and consulting further with his physician to review his medical restrictions. The Employer also chose to review the medical information and the physical limitations and restrictions previously recommended by the grievor’s physician. On April 29, 2003, Dr. Lambros provided a revised “Return to Work Assessment Form”, and sent this information to the Local Joint DM Committee for their review and re-assessment regarding potential accommodation for the grievor. The grievor’s revised restrictions as of April 29, 2003 are as follows:
No lifting greater than 10 pounds.
No repetitive bending or twisting at the waist.
Avoid work that would place him or his coworkers at risk of injury.
Able to alternate between standing and sitting.
It would be reasonable to have Mr. Jaffer work in an environment where he is not (working) in isolation. I would anticipate that initially on returning to work, Mr. Jaffer would be supervised (closely) in order to avoid harm to him or to others.
Rule 17 of the Collective Agreement sets out the process the parties have agreed to follow in their efforts to find accommodation for employees:
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 regular duties, as a consequence of an occupational or non-occupational disability.
17.2 Cases of this nature will be reviewed on an individual basis by the Company and the Union, taking into consideration the needs of the business and the necessity to provide work assignments which will make a positive productive contribution to the Company's operation. By mutual agreement between the parties, provisions of this agreement may be amended or waived by letter of understanding to meet the needs of the disabled employee concerned and to modify the duties of a particular position.
17.3 Modified or alternate duties encompass any job, task, function or combination of tasks or functions that an employee who suffers from diminished capacity, temporarily or permanently, may perform safely.
17.4 In consideration of accommodating a disabled employee the following shall apply in the order listed below:
First, the disabled employee's present position shall be considered for modification,
Second, positions within the disabled employee's classification shall be considered,
Third, positions within the bargaining unit shall be considered,
Fourth, positions outside the bargaining unit shall be considered,
17.5 Any alteration in seniority shall only be considered as a final resort after all other avenues have been duly considered by both parties. In situations involving lay-off or recalls from lay-off, the provisions of Rule 23 will have priority over any special arrangements that may have been established to accommodate disabled employees.
17.6 It shall be the responsibility of the Facility Manager and the duly authorized representative of the Union, or their designates, to jointly investigate and find means to accommodate disabled employees.
POSITIONS OF THE PARTIES
The Union takes the position that the grievor has not been reasonably accommodated further to the arbitration award, the Collective Agreement and the Canada Human Rights Act. Further, the Union argues that it was not kept fully advised or included in the efforts of the Employer to reinstate the grievor.
Specifically, the Union submits that it was not made aware of the Company doctor’s recommendations until February/March of 2003, more than one year after the arbitration award reinstating the grievor. Also, the Union submits that the Local DM committees were only presented with the Company doctor’s assessment of the grievor’s restrictions. In the Union’s view these restrictions are not consistent with the grievor’s treating physician’s assessment or the FCE. The Union further argues that the conflicting recommendations of the Company doctor were designed more to serve the interests of the Employer rather than to facilitate the grievor’s return to duty in a modified position, contrary to the arbitration award of February 15, 2002.
It is the position of the Union that the failure of the Employer to provide the local committees with full information is, in itself, a violation of the intent of Rule 17 of the Collective Agreement. The Union takes the position that Rule 17 places extraordinary requirements on the Employer, compelling it to “make every reasonable effort” to accommodate employees such as the grievor. In the Union’s view the Employer has not, to date, taken those extraordinary steps and is therefore in violation of the Collective Agreement.
Finally, the Union submits that under the Canada Human Rights Act, employers have an obligation, up to the point of undue hardship, to accommodate employees with disabilities. The Union submits that the Employer has not met the tests to establish a bona fide occupational requirement in its consideration of the grievor’s return to work. Further, the Employer has not met the test of undue hardship, argues the Union, and, therefore, is in violation of the Canada Human Rights Act by refusing to employ or continue to employ the grievor.
The Union is requesting that the grievor should be properly assessed and returned to duty without loss of seniority and full compensation as a result of his not being reinstated following the February 15, 2002 arbitration award.
For its part, the Employer takes the position that the only issue of dispute that can be advanced by the Union pertains to an alleged failure to comply with the directions of the award issued February 15, 2002. The Employer argues that anything else is beyond the jurisdiction of the arbitrator. In essence, the Employer submits that it has in fact complied with the award in full.
The Employer argues that the duties and obligations with respect to accommodation in the work place is a tri-partite process and that it has taken the process seriously, paying close attention to the involvement of the grievor and the Union. The Employer submits that it has relied on the Local Joint Disability Management Committees, as well as the expertise of external resources such as Occupational Health and Safety Advisors, Corporate and Regional Physicians, the Canadian Back Institute and two of the grievor’s personal physicians. In the submission of the Employer, this demonstrates compliance with the direction contained in the arbitration award.
The Employer takes the position that it has not abandoned its obligations to continue to find job placements for the grievor within his physical limitations and that it is still pursuing options outside of the bargaining unit.
The arbitrator directed the parties to determine the grievor’s physical condition and whether he is capable of performing either his regular duties or modified duties and to come to an agreement on the matter of back pay, if any. Based on the grievor’s continued restrictions and physical limitations, the Employer argues that he has been incapable of performing either his regular duties or modified duties. The Employer submits that it has pursued an accommodation plan for the grievor in consultation with the Local Joint DM Committees and that the local committees have indicated that they cannot, at this time, provide an accommodation. This, argues the Employer, fulfills its obligations under the February 15, 2002 award.
DECISION
At the outset, I must address the contention of the Employer that the scope of my jurisdiction is limited to the narrow issue of whether the February 15, 2002 award has been properly implemented. With respect, I disagree.
It is well established that the authority of an arbitrator extends to the identification and resolution of the real substance of the dispute and in doing so crafting a final and binding resolution to the matter. This includes the power to interpret and apply statutes and the power to determine the question in dispute and whether or not it is arbitrable [Canada Labour Code, Division III, Section 60].
In the award of February 15, 2002, I found that the grievor was improperly discharged. I did not; however, order reinstatement with compensation and left it to the parties to assess the grievor’s physical capabilities and the time frame within which he could be returned to employment. Implicit in this order is adherence to the principles of the duty to accommodate the grievor’s disabilities pursuant to the Canada Human Rights Act and Rule 17 of the Collective Agreement. As such, it falls within my jurisdiction as arbitrator to make a determination as to whether the Employer has fulfilled these obligations.
Under Rule 17, the Employer is required to “make every reasonable effort to provide suitable modified or alternate employment to employees who are temporarily or permanently unable to return to their regular duties, as a consequence of an occupational or non-occupational disability”. This, in my view, is a stringent requirement and is fully consistent with the requirements of the Act, which prohibit discrimination in employment on the grounds of disability.
At this stage; however, I do not have enough information about the positions and/or duties that are available and have been considered to properly assess whether the parties have fulfilled their obligations under Rule 17 and the Act. As such, I am ordering the parties to re-assess their past efforts to accommodate the grievor and consider the availability of any additional accommodation for the grievor. If an accommodation cannot be found, I will convene a full hearing on the issue of accommodation to determine whether or not the obligations contained in the Collective Agreement and the Canada Human Rights Act have be met with respect to Mr. Jaffer.
It is so awarded.
Dated at the City of Vancouver in the Province of British Columbia this 9th day of July, 2003.
Vincent L. Ready
_____________________________
Vincent L. Ready