IN THE MATTER OF AN ABITRATION
Between;
Canadian Pacific Railway Company
(the “Company”)
and
Unifor and its Local 101R
(the “Union”)
Re: The dismissal of John Veldhoen (the “Grievor”)
Arbitrator: William D. McFetridge Q.C.
1. In my decision dated February 24, 2014 I ordered:
- the immediate reinstatement of the Grievor without loss of seniority and with full compensation for all wages, overtime and benefits lost since he was taken out of service on March 20, 2013;
- all pension contributions or adjustments necessary to put him into the position he would have been in had he not been dismissed and had continued to work since March 20, 2013;
- interest on the above amounts payable in accordance with the rates set out in the applicable legislation;
- the above amount payable will subject to required statutory deductions however the Company will co-operate with the Grievor’s reasonable tax planning directives;
- damages for mental distress in the amount of $5000;
- all reference to this incident is to be removed from the Grievor’s record;
- I retained jurisdiction with respect to matters arising in the implementation of this award.
2. The parties were unable to resolve a number of issues associated with the implementation of the Award and have requested that I rule on the outstanding matters in dispute.
Medical Fitness Examination
3. The Company claims that the Grievor cannot be reinstated unless he first submits to a medical fitness examination that includes drug and alcohol testing. The Company says this is its “normal practice” for employees returning to safety sensitive positions following a lengthy absence. The Union disputes this and argues that employees who are absent for non-medical reasons or who are reinstated after having been improperly terminated, need only provide a non-medical Functional Ability Form (FAF) filled out by their own doctor. The Union further argues that the FAF is essentially the same information as the Grievor provided when he submitted his Class 1 Motor Vehicle License renewal.
4. The Company referred me to SHP 704, an arbitration award where a dismissed employee was reinstated but with a significant suspension. In this case the employee was required to submit to a medical fitness exam including drug and alcohol testing before he could return to work.
5. The Union argued that SHP 704 has no application in this case as it involved very different circumstances. In SHP 704 the Grievor’s misconduct was associated with a longstanding mental health problem. The Union provided seven prior arbitration awards involving this same Grievor including three previous dismissals that were reduced to suspensions. The Union argued that in SHP 704, the medical fitness tests were required due to the Grievor’s medical history, the fact that the misconduct which resulted in significant discipline was associated with his medical problem and because his absence was for more than 24 months.
6. The Company also referred me to SHP 706, a decision involving an employee who was reinstated following a serious safety violation but with a significant suspension. The employee was off work from June 8, 2011 until May 2, 2013. He was ordered reinstated but without back pay and the period of absence was recorded as a suspension. The decision does not disclose that the employee was required to undergo a medical examination or alcohol and drug testing.
7. The Union argued that where employees return to work following prolonged non-medical absences, they are not normally required to submit to medical examinations or drug and alcohol testing. As evidence of this the Union provided form letters sent by the Company in October, 2012 to employees returning to safety sensitive positions following prolonged absences. The returning employees were not required to submit to medical exams or drug and alcohol testing. The letters state:
You have been recalled to, or are returning to, a Safety Sensitive Position after being away from your job for between 6-24 months. Before returning to a Safety Sensitive Position a declaration is required from your treating physician to determine your fitness to safely perform the duties of a Safety Sensitive Position.
You are requested to book an appointment with your treating or family physician immediately. Please ask your physician to complete the enclosed Functional Abilities Form and return it to the attention of: Robert Shaw, Production Manager – Alyth Locomotive Reliability Centre to facilitate your return to work.
Once all this information has been received and reviewed I will be able to commence your return work. (emphasis added)
8. The Union pointed out that these letters reveal the Company’s “normal practice” where employees return to Safety Sensitive Positions following a prolonged, non-medical absence of between 6 – 24 months. Here, the Grievor’s absence was for 11 months, well within the 6 – 24 month range and was not for medical reasons. The Union argued that there is no reason why the Grievor should be required to submit to a medical examination or drug and alcohol testing.
9. The Company justifies its demands for the Grievor to submit to a medical examination, including drug and alcohol testing on the basis that he is “operating machinery near live track” but that was not the evidence. Even before the Grievor was dismissed he had announced his intention to take early retirement when he became eligible. Once he is reinstated he will be eligible for early retirement and it is his intention to do so.
10. According to the evidence at the hearing, the terms of the Pension Plan require the Grievor to be in active employment to qualify for early retirement This is a technical requirement that is satisfied if the Grievor’s employment status is restored through reinstatement. It is not necessary for him to actually perform his duties and it is certainly not necessary for him to operate machinery near live track. If the Grievor will not be performing the duties of his former position, safety is not an issue, there is no risk and no need for him to prove that he has the ability to perform his duties.
11. My decision is reinforced by the fact that the Grievor’s entitlement to this remedy should not depend on his current fitness to return to work. If the Grievor were today injured in such a way that he could no longer perform the duties of his position, this would not affect his entitlement to reinstatement, damages and his pension.
12. If, however, the Grievor was returning to his former position, I see no reason for him to be treated differently from any other employee returning to a safety sensitive position after an 11 month non-medical absence. He must provide a Functional Ability Form completed by his own doctor in accordance with normal Company practice. His improper termination does not give rise to an obligation to meet different standards than others who were absent for non-medical reasons. My decision might be different if the Company had established some culpable misconduct or evidence of a medical, drug or alcohol problem. There are no such facts before me however and the Grievor should not be required submit to a medical fitness exam or drug and alcohol testing.
Compensation Following the Issuance of the Award
13. The Grievor is entitled to be compensated for the period during which he was held out of work. If that period is extended due to the Company’s refusal to immediately reinstate him, his entitlement to compensation also continues.
14. The parties agree on the number of shifts, rate of pay for straight time and overtime and the amount owing to the Grievor for regular hour of work and Statutory Holidays during the period from March 20, 2013 until February 25, 2014. They also agree on the calculation of interest owing.
Overtime Compensation
15. The parties do not agree on the amount payable to the Grievor for lost overtime. They have each submitted calculations as to what the Grievor would have earned during the period March 20, 2013 until the date of the Award and thereafter.
16. The Union has calculated the Grievor’s lost overtime based on the overtime actually worked by the next most senior Pettibone Operator on the overtime list. It is the Union’s contention that this is the most accurate way to approximate the Grievor’s overtime entitlement during the period in question. For the period March 20 – December 31, 2013, the Union calculates that the Grievor would have worked 514.5 hours of overtime.
17. The Union provided evidence of the overtime hours of all of the Pettibone Operators in order of seniority:
|
Name
|
Jan 1 to Dec 31, 2013 (12 mo) |
Mar 20 to Dec 31, 2013 (9.3 mo) |
Jan1 to Mar 20, 2013 (2.7 mo) |
|
Veldhoen |
? |
? |
155 or 57.4 hrs/mo |
|
Gumienny |
627 or 52.5 hrs/mo |
515 or 55.4 hrs/mo |
112 or 42.5 hrs/mo |
|
Ireland |
595 or 49.6 hrs/mo |
437 or 47 hrs / mo |
158 or 58.5 hrs/mo |
|
Dupius |
515 or 42.9 hrs/mo |
397 or 42.6 hrs/mo |
118 or 43.7 hrs/mo |
|
Green |
449 or 37.4 hrs/mo |
381.5 or 41 hrs/mo |
67.5 or 25 hrs/mo |
|
Duke |
323.5 or 26.9 hrs/mo |
304.5 or 32.7 hrs/mo |
19 or 7 hrs/mo |
18. The above chart shows that the most senior Pettibone Operators were assigned the greatest amount of overtime. The chart also shows that Mr. Gumienny’s average monthly overtime increased substantially (from 42.7 hrs/month to 55.4 hrs/month) after Mr. Veldhoen’s employment was terminated.
19. Although some of the Company’s overtime records were slightly different than those supplied by the Union, they were not uniformly higher or lower. For the above listed Pettibone Operators, some of the Company’s figures were slightly higher and some were slightly lower but the discrepancies were not significant.
20. The Company argued that Mr. Gumienny was not an appropriate cohort to use for comparison purposes because Mr. Gumienny was on the Rule 6 overtime list plus two general overtime lists, whereas the Grievor was only on the Rule 6 overtime list. According to the Company, Mr. Gumienny would have worked much more overtime than the Grievor.
21. Neither of these assertions was supported by any evidence. There was no evidence that the Grievor was only assigned Rule 6 overtime. If such evidence exists, it would have been available to the Company. There was also no evidence that in the past, Mr. Gumienny’s access to overtime from multiple sources resulted in his working more overtime than the Grievor. These were both long term employees, if Mr. Gumienny worked more overtime than the Grievor, the Company could have provided evidence to support its assertion.
22. The Union disputed the Company’s claim that the Grievor was only assigned Rule 6 overtime and claimed that because he was the senior Pettibone Operator, he was assigned overtime from a number of lists. This contention was supported by evidence that between January 1, - March 20, 2013 the Grievor worked substantially more overtime than Mr. Gumienny. During this period the Grievor worked 155 hours of overtime (57.4 hours/month) whereas Mr. Gumienny worked 112 hours of overtime (42.5 hours/month). There might be other reasons why Mr. Gumienny worked less overtime during this period but the Company failed to provide an explanation for this contradictory evidence.
23. According to the Company’s calculations, the Rule 6 overtime which was assigned to Mr. Gumienny during the period March 20, to December 31, 2013, would have resulted in 337.5 hours (36.2 hours/month) of overtime for the Grievor.
24. The Grievor’s entitlement to compensation for lost overtime cannot be determined with mathematical certainty. He is entitled to the best estimate that the facts allow, but it is hypothetical. It is necessary to allow for contingencies which might have affected his availability or the overtime available for Pettibone Operators. Based on the evidence before me, I believe that an average of the overtime hours recorded for the three most senior Pettibone Operators during the period March 20 – December 31, 2013 would be reasonable. The calculation is as follows: Gumienny 515hrs; Ireland 437hrs; Dupius 397hrs. for an average of 449.6 over 9.3 months or 48.35hrs/mo. The average overtime of 48.35 hours per month is to be applied for the 11 months he was held off work and continue until he is reinstated.
25. The Union provided a statement indicating that the Grievor received $18,038.00 in Employment Insurance benefits while he was off work. The Union offered to provide a confirming letter from Employment Insurance and must do so. The Company has a statutory obligation to withhold and remit the amount of the Employment Insurance the Grievor received, which as a result of the order of reinstatement with full back pay must be repaid.
26. The Company demanded that the Grievor produce his T-4s from 2012 and 2013 to confirm whether he received employment income during the period he was off the Company payroll. The Company argued that this income would be deductable from his entitlement to back pay. The Company also suggested that if he did not earn any income during this period, his entitlement to damages should be reduced in light of his failure to properly mitigate his loss.
27. During the hearing the Grievor testified that he had been unable to obtain any work since his employment was terminated and explained that the contractors who had previously been interested in hiring him had learned of the reason his employment had been terminated and would not hire him. He also testified that other potential employers would not hire him because he could not provide them with the commitment they wanted to justify the training that he would need. The Company cross examined him on this and had an opportunity to present evidence and argument.
28. The issue was addressed in my decision at paragraph 77 of SHP 713. I accepted the Grievor’s evidence that he’d made an effort to find alternative employment, that his efforts were unsuccessful and he was without income or benefits since his employment was terminated. The onus is on the employer to prove both that the employee did not make a reasonable effort to find new work and if he had made the effort he would likely have found comparable employment (See Evans v. Teamsters Union No. 31, 2008 SCC 20 (CanLII), [2008] 1 S.C.R. 661; Red Deer College v. Michaels [1976] S.C.R. 324).
29. There was no evidence to contradict the Grievor’s testimony and no evidence that he would have found work if he had made a more extensive effort. The mitigation issue has been decided and the Company is not entitled to re-litigate it after the fact.
Stay of Proceedings
30. The Company disclosed its intention to request judicial review of SHP 713 and asked that I issue a stay on the damages order. It was not clear whether the Company’s application for judicial review would be with respect to the entire Award, or simply the award of damages for mental distress. That information will undoubtedly be disclosed in the application for judicial review at which time the Court can decide whether to exercise its discretion to grant a stay.
31. As outlined above the Grievor is entitled to be made whole, to be put into the position he would have been in, insofar as money can do so, as if he had not been improperly dismissed. He is entitled to the remedy set out in SHP 713. His entitlement to compensation including average overtime of 48.35 hours per month is to continue following the date SHP 713 was issued until such time as he is reinstated and paid the amounts owing.
32. I retain jurisdiction with respect to matters arising in the implementation of this award.
33. If a formal order is required I will issue one.
Dated at Calgary, Alberta this 7th day of April 2014.
____________________________
William D. McFetridge Q.C.