IN THE MATTER OF AN ARBITRATION

A W A R D

This arbitration concerns a termination of employment for innocent absenteeism. The grievor, Rail Car Mechanic employee “S”, was advised of his discharge by reason of his inability to attend work on a regular basis, effective April 8, 2006. The background to the grievance as reflected in the Statement of Fact and Issue filed at the hearing, reads as follows:

Statement of Fact:

After an investigative Statement was taken by the Company on March 29, 2006, Rail Car Mechanic “S” was advised, by way of a Company discipline Form 104 issued April 8, 2006, the following:

‘Please be informed that effective today, April 8^th, 2006, your employment record with Canadian Pacific Railway has been closed for innocent absenteeism as a result of your ongoing inability to attend work on a regular basis ‘

Statement of Issue:

It is the contention of the Union that:

· On the occasions that Rail Car Mechanic “S” left work early he was granted permission to do so by his supervisor and therefore cannot be held culpable;

· Rail Car Mechanic “S” has followed the provisions of Rule 16.1 of the Collective Agreement and therefore cannot be held culpable;

· The Company did not establish wrong doing on Rail Car Mechanic “S”’s behalf sufficient to give the Company cause to discipline or dismiss him;

· The Company did not establish the absentee standard required in order to utilize ‘innocent absenteeism’ as the sole reason to dismiss Rail Car Mechanic “S”;

· Rail Car Mechanic “S” was treated in an arbitrary, discriminatory and an excessive manner in regard to his dismissal;

Therefore, with regard to the foregoing, it is the position of the Union that Rail Car Mechanic “S” should be returned to duty forthwith, without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any moneys owing.

The Company denies the Union’s contentions and claim.

Employee “S” is 44 years old and has been employed by the Company for some 18 years. He has not had an extensively negative discipline record, having previously been disciplined for absenteeism and for track events, for a total of 20 demerits and a caution. In other words, he has been a relatively good employee from the standpoint of discipline. He has, in contrast, been extremely problematic with respect to attendance at work. In his first year of employment, in 1988, “S” registered an absenteeism rate of 6.5%. That, however, increased dramatically over the years. In 1998, he was absent for 137.6 days, for an absenteeism rate of 57.1%. In the years 2003 through 2006, he registered the following absenteeism:

YEAR DAYS %

2003 157.6 66.5

2004 133.4 56.3

2005 78 33.5

2006 25 37.3 (Up to April 7, 2006)

The material filed by the Company, which is not challenged, reflects that the general rate of absenteeism for bargaining unit employees at Golden is considerably lower. For example, in the years between 2003 and 2005 it varied between 2.0% and 2.3%. For the year 2006, up to April 1, the average rate of absenteeism at Golden was 1.8%. By any account, therefore, the grievor has registered chronic absenteeism in highly excessive rates, and has done so on a consistent basis for virtually all years from 1990 to the present.

The material before the Arbitrator confirms that in virtually all cases of absence employee “S” has provided a medical certificate from his doctor to justify his absence. His ailments have been wide-ranging, including flu, cold, fever, virus infections, hemorrhoids, dizziness, headaches, depression, pneumonia, lung infections, asthma, ear infections, an inflamed big toe, intestinal infection, sore knee, sore back, throat infection, upset stomach, food poisoning, bronchitis, heat stroke, muscle strains, tooth ache and dental work. He has also registered absences due to car difficulties, domestic and family problems, child custody issues, an injury to a child, charity work and funerals.

It is well established and innocent absenteeism can justify termination where certain factors are established. Where an employer can demonstrate a sustained and unacceptable high rate of absenteeism, in circumstances where there is little prognosis of any better performance in the future, the decision to terminate the employee for innocent absenteeism may be justified. As the governing principle was expressed by Professor Weiler in Massey-Ferguson Ltd, (1969), 20 L.A.C. 370:

Because the relationship is contractual, and the employer should have the right to the performance he is paying for, the employer should have the power to replace an employee on a job, notwithstanding the blamelessness of the latter. If an employee cannot report to work for reasons which are not his fault, he imposes losses on an employer who is also not at fault. To a certain extent, these kinds of losses due to innocent absenteeism must be borne by the employer. However, after a certain stage is reached, the accommodation for the legitimate interests of both employer and employee requires a power of justifiable termination in the former.

(See also SHP 377, SHP 428.)

In the case at hand, there can be no doubt but that the Company made it clear to the grievor that a continuation of his high degree of absenteeism could result in his termination. That was clearly expressed to him, particularly during the course of an investigation with respect to his absenteeism conducted in October of 2005.

In the Arbitrator’s view, however, there is an important fact which weighs heavily in the case at hand. It is not unreasonable to believe that so serious a rate of absenteeism must have, at its root, an underlying physical or psychological cause. In the case at hand, some six months before his termination, employee “S” was diagnosed by his personal physician as suffering from bipolar disorder. It appears that that condition was treated by medication, obviously not with substantial success, in the period immediately prior to his termination. Documentation filed at the arbitration also confirms that the grievor has undergone mental health counselling since January of 2006 at the Interior Health Clinic. Further, a letter from his treating physician, Dr. T. Larsen Soles, confirms the diagnosis of bipolar mood disorder and explains that medication has now substantially controlled that condition for a period of over a year. Dr. Larsen Soles expresses the view that “S” is now fit to return to work and has a ‘far increased likelihood of success’ in dealing with his bipolar disorder.

On all of the material filed in this case, the Arbitrator is satisfied that this is an appropriate circumstance for the re-instatement of the employee, on conditions fashioned to protect the Company’s legitimate interests. If, as the medical evidence would indicate, there has been some improvement in the treatment of the grievor’s bipolar condition, he may well be in a position to emerge from the pattern of unacceptably high absenteeism which plagued his 18 years of employment. If, in fact, the Doctor’s prognosis does not prove accurate going forward, the Company should be viewed as having attempted to accommodate the grievor to the point of undue hardship, and therefore be justified in no longer continuing his employment.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for any wages or benefits lost. The reinstatement of employee “S” shall be conditioned on his agreeing to maintain a rate of attendance, calculated quarterly, over the period of two years following his reinstatement which shall be not less than equal to the average of the other employees in his bargaining unit at his location. Should “S” fail to meet that standard in any quarter, he shall be liable to be discharged, regardless of the reason for his absenteeism, with recourse to arbitration only for the purpose of determining whether he did fail to meet the conditions of this award.

The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this decision.

Dated at Ottawa this 5^th day of April, 2007.

______________________________

MICHEL G. PICHER

ARBITRATOR

SHP617