IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW LOCAL 101)
RE: GRIEVANCE OF F.C.
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
Gilles Antinozzi – Vice-President, St-Jean-sur-Richelieu
Daniel St-Louis – National Representative, Montreal
F.C. – Grievor
Appearing For The Company:
Gilles Pépin – Labour Relations Officer, Calgary
A hearing in this matter was held in Montreal on Monday, 13 July 2009.
This arbitration concerns the discharge of employee F.C. from his position as a diesel mechanic at Montreal by reason of the undisputed failure of a drug test. As reflected in the joint statement filed by the parties, F.C.’s termination was (translated from the French) “… failing to respect the conditions contained in his reinstatement agreement dated July 4, 2007, namely having consumed illegal drugs.”
The Union does not dispute the violation committed by the grievor but submits that given his length of service and the facts of his case termination was excessive in all of the circumstances.
The grievor is a long term employee, first hired on February 3, 1979. Being forty-eight years old, he has recorded in excess of twenty-nine years of service with the Company. Unfortunately, in more recent years, F.C. has been the victim of alcoholism and drug addiction, as a result of which he was subject to several measures of accommodation and discipline. The position of the Company is that in its handling of the various steps of discipline assessed against the grievor, it has taken all reasonable steps to accommodate his situation and to attempt to salvage his employment relationship.
The first indication of the grievor’s addiction problems surfaced on June 28, 2004. On that date he reported to duty under the influence of alcohol. While the Company assessed discipline by imposing forty demerits, it does not appear disputed that the grievor then entered the EFAP program and undertook a thirty day in-patient program to deal with his alcohol addiction. According to the Company, he was away from the workplace for approximately one year, in receipt of long term benefits, during which time he had a relapse. Following his return to work, on October 13, 2005 the grievor was involved in a “5 Alive” violation in relation to running over a derail with a locomotive by reason of failing to comply with proper radio procedures. His record was then assessed with fourteen demerits, which placed him in the very dismissible position of having fifty-nine demerits, a measure which the Company described as taken to give the grievor one last chance to improve his behaviour at work.
On August 31, 2006 the grievor was again intoxicated by alcohol while at work. On that occasion not only did he fail to pass a breathalyser test, but the drug portion of the test taken was returned as positive for the consumption of cocaine. The Company then assessed forty-five demerits and discharged the grievor for the accumulation of demerits. One year later, at the urging of the Union, the Company agreed to the compassionate reinstatement of F.C. into service on the basis of agreed conditions. That decision appears to have been influenced, at least in part, by the documentation concerning the grievor’s efforts to deal with his addictions, including his attendance for in-patient treatment at the Bellwood Health Services Centre in Toronto. On July 4, 2007 the grievor was returned to service under the terms of a reinstatement conditions letter which reads, in part, as follows:
In view of your special intercession on behalf of the grievor, the Company is prepared to compassionately reinstate F.C. into Company service, subject to the following terms and conditions.:
1. Before actually recommencing duty in his Diesel Mechanic position, F.C. must first submit to a safety sensitive medical examination, which includes a substance test or any other medical assessment deemed necessary, under the terms and conditions directed by the Occupational Health and Services department. In this regard, F.C. must first be determined to be medically fit to return to service in his normal position, by the Chief Medical Officer.
2. F.C.’s reinstatement is conditional upon successful completion of a screening interview, with your local Manager, concerning your reintegration into the workplace. The purpose of this interview will be to review the many changes that have occurred in the workplace during his extended absence and to ensure that he have a full understanding of the conditions attached to his reinstatement.
3. F.C. will be reinstated without compensation or benefits (without loss of seniority).
4. F.C. will be subject to mandatory unannounced substance testing (Alcohol & Drugs) by the Company for a period of 2 years. F.C.’s continued employment relationship is conditional upon his abstaining from the use of alcohol and prohibited substances. Failing to abstain from the use of alcohol and prohibited drugs will result in F.C.’s removal from service, a formal investigation, and the possibility of disciplinary action up to and including dismissal.
5. F.C. will establish contact with an EFAP Referral Agent prior to returning to a Diesel Mechanic position and F.C. will be monitored through the joint union/management EFAP Program to ensure that he remains in compliance will all EFAP monitoring requirements. F.C. must participate and attend Alcoholics Anonymous meetings weekly for a period of two years, and arrange for reports to be forwarded to EFAP, at least on a quarterly basis.
6. F.C.’s discipline record shall stand at 50 demerit marks coincidental with his reinstatement. It is understood that the following unresolved grievance is withdrawn by yourself and the Union: KMA0030/06ARB/055.
7. Failure to honour the conditions of this reinstatement will result in removal from service, a formal investigation and the possibility of disciplinary action up to and including dismissal.
It appears that the grievor returned to work on or about August 28, 2007 and worked without incident until the following July. It does not appear disputed, however, that he was not subjected to any drug testing during that period. However, on the morning of July 4, 2008 F.C. was advised that he would be required to attend an alcohol and drug test on the following Monday, July 7, 2008.
Notwithstanding that notice, the same evening F.C. consumed cocaine at a party which he attended with friends. He attended on the following Monday for the drug test which subsequently proved positive for the consumption of cocaine. Following a formal investigation on July 18, 2008, during which the grievor admitted his consumption of cocaine and his violation of the terms of his reinstatement, the Company notified F.C. of his dismissal on July 24, 2008 for “… failing to abstain from the use of prohibited drugs as provided for in your reinstatement agreement dated July 4, 2007.”
As noted above, the facts recited are not in dispute. It is admitted that the grievor is an alcoholic and a drug addict with a documented dependence on cocaine. In the Arbitrator’s view the degree of that dependence is to some degree attested to by the fact that he consumed cocaine on Friday, July 4, 2008 in the full knowledge that he would be tested for drug consumption the following Monday, July 7, 2008. Nor would it be fair to characterize the grievor’s post discharge condition as one of absolute recovery. It appears that since his termination F.C. came under the care of Dr. Juan C. Negrete at the McGill University Health Centre. A letter from Dr. Negrete, filed in evidence by the Union, appears to confirm that the grievor was still using drugs as late as December of 2008, well after the incidents of July which led to his discharge.
The Union stresses that the grievor suffers from a medical affliction which warrants accommodation. Its representative maintains that given the record of recidivism for a person’s dealing with cocaine addiction, some measure of compassion should be allowed so as to permit his return to active service. The contrary view of the Company is that it has dealt fairly and patiently with the grievor, giving him reasonable opportunities at accommodation and recovery, up to including the last chance agreement which F.C. admittedly violated. Stressing the safety sensitive nature of his employment, the Company maintains that discharge is appropriate in all of the circumstances.
Unfortunately, the Arbitrator is compelled to agree with the view of the Company on the facts of the instant case. Firstly, it must be stressed that the work performed by the grievor as a diesel mechanic is highly safety sensitive. In addition to being responsible for the maintenance and repair of locomotives, his duties also require him to operate locomotives in a safety sensitive environment. It should scarcely need stressing that freedom from impairment, whether by alcohol or by drugs, is an essential condition of such ongoing employment. As the record discloses, there were a series of incidents involving the grievor being impaired at work, including reporting for duty unfit in June of 2004 and in August of 2006. The Company applied progressive discipline to attempt to convey to F.C. the importance of sobriety and safety at work, including an initial one year absence from work to secure his rehabilitation and, later, his reinstatement into employment on conditions, after a further one year absence from the workplace. It would not, in the Arbitrator’s view, be fair to characterize any of the actions taken by the Company, or its overall approach to F.C. as one of indifference or a failure to make reasonable accommodations for his condition. There is a point, however, where the obligation to accommodate ceases, where to continue to do so involves undue hardship to the Company, an element which plainly would arise in the event of undue risk to the safety of its operations, its equipment and its employees.
Arbitrators generally show substantial deference to last chance agreements negotiated among a company, a union and an employee. In CROA 2753 the arbitrator reflected on the policy considerations which make arbitrators reluctant to interfere with the consequences of such agreements. In that regard the following comments appear:
In a recent award, CROA 2743, this Office had occasion to consider the consequences to an employee who entered into a similar personal contract with respect to not using marijuana. When he was discharged following a drug test which proved positive, the employee’s grievance was dismissed with the Arbitrator commenting, in part, as follows:
The record before me establishes, beyond any substantial controversy, that during the course of a periodic medical examination, which included a drug and alcohol test, Mr. O’Connell proved positive for cannabinoids, or marijuana. Following a disciplinary investigation, at which a copy of the drug test report in the possession of the Company was provided to the grievor, he was terminated for violation of the terms of his personal contract.
This Office can see no responsible basis upon which to reverse that decision. The ability of employers and unions to make individual employees, whatever their personal problems, subject to strict conditions as a requirement of their continued employment is an instrument of great importance whose credibility should be sustained by employers, unions and arbitrators alike. In CROA 2632 the rationale for the reluctance of arbitrators to interfere with the consequences of the violation of such conditions was expressed in the following terms:
… To [interfere] would be tantamount to disregarding or amending the conditions agreed to between the parties, … As a matter of general policy, such settlements should be encouraged. As reflected in Canadian arbitral jurisprudence, arbitrators do not interfere with the terms of such settlements, as to do so would tend to discourage parties from resorting to them and, ultimately, undermine their utility as an important instrument for resolving disputes. …
See also CROA 2595 and 2704.
The same sentiment was reflected in CROA 3198 in the following terms, quoting Arbitrator M. Lynk in Re Canadian Waste Services Inc. and Christian Labour Association of Canada (2000), 91 L.A.C. (4th) 320:
Accordingly, arbitrators are understandably reluctant to interfere with the terms of a last chance agreement. These LCAs, including the one before me, are usually clearly drafted, and the expectations are well understood by the parties. If they can be easily undone by a grievor’s claim that her or his unexpected or unintended relapse cause the attendance or performance breach of the LCA, the employers would have little incentive to enter into these agreements in the future. As Arbitrator Davie stated in Re Standard Products (Canada) Ltd., at p. 96:
If arbitrators do not uphold or enforce “last chance” agreements, parties would be discouraged from resolving matters and agreeing upon conditions which generally reflect prevailing arbitral jurisprudence and the specific circumstances of an individual case.
The case at hand is as unusual as it is tragic. The Arbitrator is unaware of any precedent in which an employee has consumed a prohibited drug in the full knowledge that he or she is to be tested for drug consumption under the terms of a last chance agreement on his or her next working day. When regard is had to the facts of the instant case, including the entire history of F.C.’s addiction problems, it would appear, on the balance of probabilities, that he was highly addicted and in little or no control of his condition at the time of the incident of July 4, 2008 which led to his termination from service. Further indications within the record would suggest that his recovery was not immediately prompted by his termination and remains relatively tentative, even to this date. In all of these circumstances the Arbitrator is satisfied that the Company was justified in its termination of the grievor’s employment and that there is no responsible basis upon which that decision should be reversed at this time.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Ottawa this 23rd day of July 2009.
MICHEL G. PICHER