IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY COMPANY
(hereinafter the “Employer”)
AND
UNIFOR
(LOCAL 101R)
(hereinafter the “Union”)
BADER TERMINATIONGRIEVANCE
ARBITRATOR: Tom Hodges
FOR THE EMPLOYER: Mike Moran, Labour Relations Officer
John Bairaktaris, Director Labour Relations
FOR THE UNION: Brian Stevens, National Rail Director
Tom Murphy, President, Local 101R
Cory Bader, Grievor
HEARING: May 26, 2014
AWARD: June 16, 2014
AWARD
JURISDICTION
The parties agree that I have jurisdiction in this matter pursuant to Rule 29 of Collective Agreement No. 101.
BACKGROUND
On November 19, 2012, the grievor, Mr. Cory Bader, a Diesel Mechanic Apprentice at Winnipeg Diesel Facility in Winnipeg, Manitoba, contacted the Local EFAP (Employee and Family Assistance Plan) representative in search of assistance with his substance abuse challenge. Following a preliminary evaluation, the EFAP representative arranged for a more comprehensive assessment to be performed by the Addictions Foundation of Manitoba, and also advised the employer’s OHS (Occupational Health Service) department of the grievor’s situation, including a recommendation that he enter the 21 day residential program at Willard Monson House in St. Rose du Lac, Manitoba. On November 27 OHS directed Mr. Bader to bring a letter of request, for clarification of his medical condition, to his physician, and he did so the following day. On December 11 the grievor entered residential treatment where he remained until January 2, 2013.
On December 27, 2012 the grievor’s long term physician, responded to OHS, summarizing his patient’s prior substance abuse and also indicating participation in a previous four week residential treatment program that ended in February of 2006, prior to the grievor’s commencement of employment with Canadian Pacific Railway (CPR). He also added that Mr. Bader, at that time, maintained only one month of abstinence prior to relapse, but he did not see the grievor again until November 28, 2012 with OHS letter in hand. The Doctor furthered advised that the grievor’s more recent abuse had been confined to crack cocaine, alcohol and marijuana, and that he planned to see him in January of 2013 following the completion of his treatment at Willard Monson House. Mr. Bader met with his doctor on January 17 in order to obtain medical clearance to return to his position as Diesel Mechanic Apprentice. That same day, OHS notified local management of a verified case of non-disclosure (deliberate decision to not truthfully or completely provide) of medical information on the part of the grievor. The grievor was also advised by the employer that he was to be held out of service pending investigation regarding “information you provided to the company’s Occupational Health Service (OHS) Department on your pre-employment medical assessment form dated Dec 5, 2007 and additional medical information you provided OHS on Dec 27, 2012”.
The investigation was conducted on January 22and 24, 2013. On February 7 the employer imposed discipline advising that Mr. Bader was to be dismissed from service for “conduct unbecoming as evidenced by your failure to properly disclose relevant medical information on your pre-employment medical dated December 5, 2007”. On April 17, 2013 the union submitted a Step II grievance on the grievor’s behalf, contending that the termination was without just cause and in any event excessive, given the circumstances.
EMPLOYER POSITION
The employer maintained that Mr. Bader lied outright on his pre-employment medical form by indicating “NO” to the questions:
Have you ever used cocaine, crack, LSD, PCP, heroin, methamphetamine or other illegal drugs? If yes, specify drug and date last used:
And
Have you ever been in a treatment program for alcohol/drug addiction? If yes, specify date(s) and location(s):
In so doing the employer argues that the grievor voided the employment contract. In their view, the grievor knew that he was an unlikely candidate for apprenticeship given his true medical history, and therefore made a conscious and deliberate decision to thwart the employer’s medical fitness process throughout his completion of the Employment Medical Report Form. Mr. Bader was therefore hired into the safety sensitive position of Diesel Mechanic Apprentice without the employer having properly assessed his fitness to perform the required work. As a result the employer determined that the grievor’s actions severed the bond of trust inherent in the employee – employer relationship. The employer requested that the arbitrator uphold the discipline and decline the grievance accordingly.
UNION POSITION
The union contended that there was no deliberate intent on the grievor’s part to mislead the employer on his pre-employment medical form. They argued that the questions asked were somewhat misarranged and that the grievor believed that he was required only to respond to drug and medication use within the last year, as opposed to any such usage further in the past. The information required by the employer was thus innocently withheld, from their standpoint. The union contends that the grievor was cooperative with EFAP, CP Rail’s OH&S Department and his family physician. Further, the union argues that there is no evidence of obstructiveness in any way, in what is a very personal and confidential matter.
The union argues that the grievor had a relatively unmarked discipline record through his brief career with CPR and there were no reported concerns with either his work performance or his ability to complete the requirements of his training. The union asked that the arbitrator allow the grievance and direct the reinstatement of the Mr. Bader with full compensation for lost wages, benefits, pension contribution and service credit, but without credit towards the fulfillment of his apprenticeship. The union also sought the payment of $5,000 in punitive damages as a deterrent against any employer misconduct in similar circumstances in the future.
DECISION
The dismissal of Mr. Bader was of course tied directly to the CPR pre-employment medical form, and the apparent false responses he provided thereon. He was discharged because he allegedly neglected to disclose relevant medical information on the signed form dated December 5, 2007,effectively lying on his pre-employment medical, and from the company perspective violating the employment contract in the process.
Section B of the form under scrutiny read as follows at the time of the grievor’s hiring:
As can be seen from the form, this section, Current Health Problems, commenced with a series of questions that were to be answered in the context of either “currently” or “in the last year”, followed by a segue to three questions posed from an “ever” standpoint. The employer’s placement of the “ever” questions within the Current Health Problems section of the form, and not the following Section C, Past Health Problems, might be construed as curious, but there is nothing vague at all about the particular questions themselves. For purposes of clarity, they are repeated below:
Have you ever used cocaine, crack, LSD, PCP, heroin, methamphetamine or other illegal drugs? If yes, specify drug and date last used:
Have you ever been in a treatment program for alcohol/drug addiction? If yes, specify date(s) and location(s):
Has the use of alcohol or other drugs ever caused any problems in your life? (e.g. driving convictions, police encounters, injury to you or others, etc). If yes, please describe:
While the questions appear remarkably straightforward, the union argues that it was quite reasonable for the grievor to translate in his mind “ever” as “ever in the last year” given the overall heading for Section B – “Current Health Problems”. During the investigation, the grievor explained that he completed the pre-employment medical form as completely and accurately as possible, and that he viewed his “current health problems” as separate and apart from his “past health problems”. He read the “current health problems” section as reference to “in the last year”, and “past health problems” to mean “has he ever”.
The veracity of the grievor’s position that “ever” was interpreted as “ever in the last year” must be given careful consideration.
The grievor is 29 years of age. At the time of termination he had five years of service and was only a few months away from completion of his apprenticeship as a Diesel Mechanic. In giving evidence the grievor presented himself as an intelligent and articulate man with an apparently sound command of the English language. His apprentice training records consistently indicate test scores in the 86 to100 percent range.
The employer conducted an investigation into this matter which began on January 22, 2013. At the outset of the investigation in connection with information given on the Employment Medical Form the union took the position that the form was only valid for nine months from the date of the signature. Later on the first day of the investigation the grievor objected to the evidence provided by the employer on the basis that it was confidential between him and the Occupational Health Nurse to whom he had given it. Later the grievor objected that the questioning of confidential information was harassment. After acknowledging signing the completed form on December 5, 2007, the grievor again objected on the basis that the form was only valid for 9 months from the date of signing. A 5 minute recess was requested by the union at 11:40. The recess was later extended to the next day. Finally the investigation was extended to resume two days later on January 24, 2013. When the investigation resumed the grievor took the position that he had not disclosed all his past health issues because they were not within a one year time frame stated on the form. Finally, during the grievance procedure the union also took the position that the grievor was being discriminated against as his medical condition constituted a disability under the Human Rights Act.
In view of the evidence given by the grievor, his intelligence, test score results and the changing justifications put forward during the process, it is not credible that he innocently mistook the word “ever” in Section B of the form, to mean “ever in the last year”, as he repeatedly affirmed before this arbitrator. Such a tortured justification for his supposed lapse in this respect defies all reasonable bounds of comprehension. Contending that he was not required to disclose his addiction somewhere within the content of the pre-employment medical form is not credible.
In CROA 3475, a case involving the employer and the RCTC (Rail Canada Traffic Controllers), an employee wilfully withheld a medical condition in her application for employment. Arbitrator Keller stated in part as follows:
The decision of the employer to hire the grievor as an RTC was based, among other reasons, on their conclusion from the Employment Medical Examination Report and the assessment of the CP physician that she could do the work of the position; that there was no medical reason that she could not do the job safely. Sometime later they were confronted with the reality that, according to the grievor's physician she was on an anti-depressant, that she had been on it when hired, she would be on it indefinitely and that she needed to be accommodated. This information was not only new, it was also materially different from the information provided by the grievor at the time of hiring. At the very least, had the information been known to the employer, as well as the reason for the medication, it could have been addressed and an informed decision could have been made by the employer as to whether, given all the circumstances, hiring the grievor into the safety sensitive position of an RTC was appropriate at that time.
The grievor made a decision to withhold information from the employer. She, for very good reasons, did not want her situation broadcast. There were ways, however, to communicate this information confidentially to the medical staff of the employer, herself or through her physician. The employer's medical staff then would have been required to maintain confidential the information disclosed. Armed with this information, the medical staff could have, more than likely, dealt with the situation differently. Her decision deprived the employer of knowledge they needed to determine whether it was safe to hire her as an RTC. In fact, they were under a legal obligation under the Railway Medical Guidelines to ensure this was the case.
And further:
An allusion was made that the employer discriminated against the grievor. The reality is that by her own actions in giving inaccurate and/or misleading information she took it out of the realm of human rights and the duty of accommodation under the Canadian Human Rights Act, and made it simply an issue of the Company's opinion as to whether or not this was a person whose honesty and candor made her a good candidate for the safety sensitive position of an RTC.
Ultimately, no matter how the facts of this case are looked at, the decision of the employer was made based on the information it had at the time as disclosed by the grievor and her physician. The grievor chose to withhold critical information from the employer and the employer cannot now be accused of acting in an arbitrary or discriminatory manner or in bad faith when their decision was based on what they were told by the grievor herself.
In CROA 3619, the grievor in that case was dismissed for failure to disclose a known medical condition and medication consumed when she applied for the position of Conductor three years earlier. The union in that dispute argued that the grievor did not intentionally mislead the company when she completed the applicable portion of the medical questionnaire, contending the document requested a list of all medications or over-the-counter drugs currently being used. The grievor was evidently not then currently using any drug other than Ziaban, employed to assist in smoking cessation, which she listed on the form accordingly. In allowing the grievance and reinstating the grievor with compensation, Arbitrator Picher concluded that:
In the Arbitrator’s view it would merit no more than a reprimand. Nor does there appear to have been any effort on the part of the grievor to conceal from others at work that she had a problem with migraine headaches. The Company’s theory of deliberate and fraudulent concealment is simply not borne out on all of the evidence, albeit a technical infraction is established.
However, in that same award he advised that:
In coming to the conclusion that the grievor is to be believed, the Arbitrator is also influenced by two aspects of the evidence. First, not unreasonably, the medical history form which refers to conditions such as diabetes, cancer and thyroid disease, does not list headaches or migraines as a condition to be reported. It would not in my view be unreasonable to overlook them when filling out the form. Secondly, the grievor did disclose that she had undergone knee surgery for the removal of cartilage, an admission which could well have jeopardized her application to work in a physically demanding job. On the whole, her responses do not appear to be fashioned to mislead or conceal. I am satisfied that this is not a case of deliberate deception, as was found in CROA&DR 3475.
In stark contrast, the grievor in the instant case embarked on a continuous trail of deception and concealment. The December 5, 2007 pre-employment medical questions that he was required to respond to, in a forthright manner made clear mention of cocaine, crack, other illegal drugs, a treatment program for alcohol/drug addiction, and whether their use had caused life problems. However, he instead elected the mendacious path on his pre-employment medical of evading at every possible turn throughout the investigative process, and opted to register himself as far less than credible during his direct testimony at the arbitration hearing. Regrettably, Mr. Bader has not yet accepted the reality that the severed bond of trust between an employee and an employer can only begin to demonstrate a glimmer of hope in achieving a mending of ways, once complete honesty and full accountability for one’s actions become the order of the day. This void in his comportment served only to compound his original transgression, as lamentable as it may have been on its own.
Ironically, during the grievance procedure the union argued for employer accommodation of the very same disability that the grievor wilfully neglected to disclose during pre-employment. To paraphrase Arbitrator Keller from CROA 3475 above, Mr. Bader cannot have it both ways – first conceal a medical condition to illicitly secure employment and then claim the protections of the collective agreement once the deception has been brought to light. Nor was the grievor harassed by management as alleged during the investigation (Question 19). Responses to the employer’s probing queries were necessary, just as they had been on the pre-employment medical form. Despite his lack of candour, and the accusations mentioned above, he nevertheless indicated his satisfaction with the process at the conclusion of the investigation.
As noted by his doctor, the grievor continued to struggle with addiction since at least 2006. All concerned are united in the hope that he has triumphed, or will eventually triumph over this pernicious, insidious influence. In the words of his long time doctor, “there is no question that his addictions have had a profound negative effect on his life”. But full disclosure at the time of pre-employment was an absolute necessity in order to ensure the safety of the grievor, his fellow employees, and perhaps even the general public in certain circumstances. In this regard, as always, a balancing of interests approach must govern in matters such as the one at hand. The employer was entitled to full disclosure of the grievor’s medical condition at the time of hire as part of its ongoing and paramount obligation to railway safety. Mr. Bader prejudiced that commitment through his calculated and persistent decision to withhold information related to his issues with addiction. His entire period of employment with CPR was predicated on a deception that he alone allowed to fester. On December 5, 2007, the grievor signed the following pledge on the pre-employment medical form:
I, the undersigned, acknowledge that I may occupy a Safety Critical/Safety Sensitive Position and I will report any medical condition, past or current, that may constitute a threat to safe railway operations.
I declare that the information that I have provided or will be providing to the examining physician is truthful and complete. I understand that if I knowingly have provided false information or have not declared a medical condition, past or current, I will be subject to action by Canadian Pacific Railway up to and including dismissal.
With a review of this decidedly profound commitment, it cannot come as any surprise to Mr. Bader or the union that his employment relationship with CPR came to an end, and that it cannot be restored at this time. As well, given all of the above, the arbitrator was unable to establish any significant level of trust in the grievor during the course of the hearing, so it would be highly unlikely under the circumstances to expect that the employer would be able, going forward, to place any degree of true confidence in him.
Finally, the foundation for achieving long-term abstinence is the requirement that the grievor clearly recognize his addiction. As a result reinstatement under a last chance agreement cannot be considered as an option which would reasonably be considered as one which could restore the employment relationship. Nor could such a last chance be regarded as sufficient in this case to protect the safety of the grievor, his fellow employees and the public at this time.
In view of all of the foregoing, the grievance must therefore be respectfully denied. I remain seized should there be any dispute with respect to any aspect of the interpretation, enforcement or implementation of this award.
Dated this 16th day of June, 2014
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Tom Hodges
Arbitrator