IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY
(the “Employer”)
AND:
CAW LOCAL 101
(the “Union”)
(Marcel Gaetz Grievance)
ARBITRATOR: Vincent L. Ready
COUNSEL Mike Moran and
Gilles Pepin for
the Employer
Brian McDonagh and
Vinod Gill for
the Union
HEARING: May 13 and 14, 2003
Calgary, Alberta
PUBLISHED: July 9, 2003
2749.3A
The parties agreed I was properly constituted as an arbitrator under the Collective Agreement with jurisdiction to hear and determine the matter in dispute.
The grievance relates to the accommodation of Carman Marcel Gaetz at the Golden Facility.
BACKGROUND
The grievor first injured his arm in 1994. He returned to full duties in 1997 and sustained another work-related injury to his arm on May 21, 1999. The grievor’s claim for benefits was accepted by the Workers’ Compensation Board (WCB) and he was placed on light duties. On November 4, 1999 the grievor re-injured his right arm and was placed back on light duties.
On December 1, 1999, the Golden Joint Disability Management (DM) Committee, made up of local representatives of the Employer and Union, met with the grievor to discuss his injury. He informed the Employer that he was seeing his specialist in January, 2000 to assess his arm for possible further treatment. A follow up meeting between the grievor and the Joint DM Committee was conducted on January 26, 2000. The grievor was diagnosed with a torn bicep muscle that required permanent restrictions.
The grievor remained at work in a modified duty capacity until July 12, 2000 when he went off work on WCB to have bicep tendon repair surgery. The anticipated recovery time was between four to six months. The WCB referred the grievor for a Functional Capacity Evaluation (FCE), which took place on January 8 and 9, 2001.
The FCE stated that the grievor could not return to his pre-injury occupation of Carman as this would further aggravate his condition and place him at a high risk for re-injury. The FCE also outlined restrictions/limitations for the grievor. The Employer’s Regional Physician, Dr. Coppin, reviewed the findings and the following permanent restrictions were developed:
- No frequent lifting of more than 15 lbs with either arm
- No frequent above shoulder level work with either arm
- No frequent forceful gripping or torquing movements (i.e. forceful turning) with either hand
- Lifting up to 40 lbs. occasionally with both arms
On February 27, 2001, the Return To Work Committee in Golden concluded that Mr. Gaetz could perform the following duties:
- Drive Trackmobile
- Computer and paper work at pit
- Brake tests in yard
- Air tests in shop and trouble shooting
- Can lift wheel barrel up to 40 lbs.
- Sweep floor and area for 1.5 hours a day (plastic shovel)
- Spray out the dates on cars and re-stencil
- Drive fork lift for parts, empty garbage, shoe and steel bins
- Operate overhead cranes
- Inspect and repair small tools in shop, (i.e: hammers, wrenches, punches, air tools and etc.)
- Drive trucks to shops for repairs and go uptown for parts and supplies that are needed on a daily basis
- Wash floors with hose for short periods of time
- Cleaning around the outside of the shop area - picking up paper, rubbish, sweeping the cement area, general clean-up duties
By March 21, 2001, the parties at the local level as well as Employee Health Representative, Ms. Bartkiewicz, were proceeding on the basis that an acceptable accommodation had been achieved by the parties. On March 22, 2001; however, the Employer called a meeting to advise the Union that it had changed its position with respect to the accommodation.
The Employer took the position that the grievor could reasonably perform the duties of a Trackmobile Operator. A trackmobile is a vehicle used to move on-rail equipment. It has both rubber and steel wheels for operating on either the road or on rails. There are four positions for Trackmobile Operators in Golden and all of the incumbents are senior to the grievor. The Union has not agreed to circumvent seniority for this accommodation. As a result, the grievor has remained off work and in receipt of WCB benefits.
Rule 17 of the Collective Agreement sets out the process the parties have agreed to follow in their efforts to find accommodation for employees with disabilities:
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 PARITES
The Union takes the position that Rule 17 places extraordinary requirements on the Employer that compel it to “make every reasonable effort” to accommodate employees such as the grievor.
The Union argues that the accommodation constructed for the grievor by the Joint DM Committee was identical to the modified duties he had performed for at least 14 months prior to his surgery and that the Employer should be bound to return the grievor to service on that basis.
The Union takes the position that the Employer’s suggestion to accommodate the grievor in the Trackmobile Operator position requires the circumvention of seniority which is listed as only a “final resort” under Rule 17.5. The Union contends that Rule 17.5 is consistent with Human Rights legislation and jurisprudence regarding accommodation to the point of undue hardship. From its perspective, the circumvention of seniority is an undue hardship on the Union. While the Union addressed seniority in negotiating Rule 17 it made sure accommodation only effects seniority after all other avenues have been exhausted.
The Union also points out that Rule 17.5 places a requirement on both parties. This wording prevents the Employer from making unilateral and arbitrary decisions with respect to accommodation of disabled employees, in the submission of the Union.
The Union’s position is, simply, that the Employer has not taken the extraordinary steps required of them by Rule 17 and has in fact “stymied” the operation of Local Joint DM Committee by overturning the accommodation for the grievor that had been worked out at that level. Put another way, the Union takes the position that the Employer has not met the test of undue hardship under Human Rights law and is therefore improperly holding the grievor out of service.
For its part, the Employer takes the position that it has made numerous attempts to provide an accommodation for the grievor. The Employer contends that it is fully aware of its obligations under the duty to accommodate and Rule 17 of the Collective Agreement.
The Employer argues that it was unable to accommodate the grievor based on three factors. First, the Employer has determined that there were no positions within the Golden Facility that could be performed by the grievor in a safe manner, with the sole exception of the position of Trackmobile Operator.
Second, the Employer takes the position that the cost to place the grievor on other duties as suggested by the Union constitutes an undue hardship, particularly where those duties do not constitute a full day of useful and productive work.
Third, in terms of the “bundle of duties” suggested by the Local Joint DM Committee, those duties, argues the Employer, do not fall within one specific position in the Shop. Further, the Employer submits that many of the tasks in question are either not essential to the position or do not add up to a full day of productive work.
The Employer argues that Human Rights legislation does not create a "guarantee" to work and the employee in question must possess the basic skill set of a position in order to be considered for that position. In this regard, the Employer’s Return To Work Program sets out certain parameters and once these were exhausted with respect to the grievor, the Employer took the next step and considered employment elsewhere within the Company. The Employer submits that it was prepared to train the grievor for suitable employment in positions that he could reasonably perform given his permanent restrictions, and efforts were taken to improve his resume writing and upgrade other skills so that he may be considered for other positions such as Crew Dispatcher or Rail Traffic Controller.
Finally, the Employer takes the position that its original offer to accommodate the grievor in the Trackmobile Operator position was a reasonable and viable option for Mr. Gaetz. By blocking this accommodation, the Employer submits that the Union unwittingly removed any possibility of securing work for the grievor in his classification in Golden and did not fulfill its obligation to accommodate under Human Rights law.
DECISION
The crux of the dispute before me is whether the grievor can be accommodated along the lines of the “bundle of duties” put forward by the Local Joint DM Committee or whether the parties have reached the point where the only accommodation possible is one that requires the circumvention of seniority under Rule 17.5.
The Employer argues that the bundle of duties put forward is not an appropriate accommodation. Specifically, the Employer refers to a series of cases that state that it is not obligated to accept accommodation that does not provide it a benefit or that does not constitute productive employment.
In Re Hamilton Civic Hospitals and Canadian Union of Public Employees, Local 794 (1994) 44 L.A.C. (4th) 31, Arbitrator Kennedy concludes at page 45:
The thrust of the authorities is that at the end of the day and with whatever reasonable accommodation can be achieved without undue hardship to the employer, the employee must none the less still be able to perform a useful and productive job for the employer. There is no evidence that such would be achievable in the circumstances of this case.
In Re Canada Post Corp and Canadian Union of Postal Workers (1993) 32 L.A.C. (4th) 289, Arbitrator Joliffe made a similar comment about the financial cost to the company to with respect to finding productive work for an employee at pp. 322-324:
I am satisfied that in reviewing the issue of financial cost to an employer the matter of an incapacitated employee's productivity in whatever duties might be fashioned to accommodate his needs, is of significant relevance.
…surely the availability and ability to perform duties must be subject to a test of productivity. In my view the corporation is not under any obligation to create an occupation for the grievor in the nature of performing duties which are entirely foreign to those for which he was hired and which may be of little economic benefit to it…I am not persuaded that the corporation need assemble a number of unrelated sedentary duties for the sole purpose of filling an employee's day without regard to the significance of its production requirements. The productivity aspect is fundamental to a consideration of the financial cost of the accommodation.
…I am not able to conclude that accommodating an employee entails pushing another seniority rated employee out of his/her job altogether. I also have difficulty with the notion of potentially stripping co-workers of the more sedentary aspects of their working day where the rest of their work, day in and day out, is of a relatively heavy labouring nature. It is not much of a stretch to foresee morale problems developing.
Clearly, it is also recognized under the case law that seniority is a fundamental right of employees in a unionized workplace and accommodation and should, as stated in Rule 17.5, only be considered by the parties as a “final resort after all other avenues have been duly considered”. The Union is not in violation of its duty to accommodate by relying on this principle and Rule 17.5 to ensure that circumvention of seniority is only considered as a very last resort in accommodating employees with disabilities.
The question before me is, whether in the circumstances of this case, the parties have reached that point – is the only accommodation available for the grievor the Trackmobile Operator position outside the lines of seniority?
While I accept the Employer’s contention that it is entitled to expect accommodation produce productive work, it is equally true that the duty to accommodate requires more of an Employer than to simply find an existing position that a disabled employee can fill without modification on a full-time basis.
In my view, based on the evidence before me, there are other opportunities to accommodate the grievor short of assigning him a position that would impact the seniority rights of other employees in the Golden Facility. In fact, each of the Union’s witnesses expressed that they believe there to be opportunities to accommodate the grievor other than the position of Trackmobile Operator, which requires the seniority of other employees to be impacted.
Furthermore, the evidence before me establishes that the parties agreed to a trial accommodation for the grievor on February 27, 2001. Mr. Roseberg, who testified on behalf of the Employer, conceded that the parties had indeed agreed to a trial accommodation for Mr. Gaetz.
The list of duties that the Local Joint DM Committee came up with for the grievor is, in my view, quite extensive and was acceptable to the parties at the local level, at least on a trial basis. I cannot believe that, from that list of duties, following a trial period, the parties will not be able to fashion a reasonable accommodation for the grievor that returns him to employment and provides productive work for the Employer.
It is important to note that accommodation is not static nor is it permanent. The parties should review the grievor’s situation on a regular basis to determine if it is working both for the grievor and the Employer. From the evidence before me the Local Joint DM Committee appears to be functioning as it is intended and is the appropriate channel through which to conduct such reviews. If, for whatever reason, accommodation within the Golden Facility cannot be sustained, the Employer is correct to consider as it did, opportunities with the Employer outside the facility. Only once those opportunities have been exhausted should the parties turn to placing the grievor in a position that will impact the seniority rights of other employees.
The grievance is granted.
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