SHP667

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CANADIAN PACIFIC RAILWAY COMPANY

(the “Company”)

-and-

THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) AND ITS LOCAL 101

(the “Union”)

RE: GRIEVANCE OF EMPLOYEE P CONCERNING THE CLOSING OF P’S EMPLOYMENT FILE

SOLE ARBITRATOR: MICHEL G. PICHER

APPEARANCES FOR THE COMPANY:

Len Wormsbecker - Manager, Labour Relations

Shelley Smith - Officer, Labour Relations

Don Frederickson - Employee Resource Specialist

APPEARANCES FOR THE UNION:

Brian Stevens - National Representative

Richard Broszeit - Vice-President, Local 101

Employee P - Grievor

A hearing in this matter was held in Winnipeg, Manitoba on June 24, 2011.

AWARD

The Union grieves the closing of the employment file of Employee P. It maintains that the Company did not have just cause for what is effectively the termination of the employee and seeks his reinstatement into employment with compensation for wages and benefits lost. The history of events and nature of the dispute are reflected in the Statement of Dispute and Joint Statement of Issue filed before the Arbitrator at the hearing. That document reads as follows:

DISPUTE:

The Record Closure of Electrician Mr. “P”, of the Winnipeg Diesel Shop on November 21, 2007.

JOINT STATEMENT OF ISSUE:

On September 18, 2006, a disciplinary investigation began into Mr. P’s comments made to EMC Supervisor Ken Malcolm during his tour of duty on September 13, 2006. During the discussion with Supervisor Malcolm, Mr. P expressed that he was tired of this, people taking his things, that he has lost tools in the past and that he has brought in his own tools for work. Supervisor Malcolm contends that Mr. P stated that “he was bringing in a knife, and that the next time someone touches anything of his he will cut their hand or head off”.

During the course of the investigation into this conversation, the Company contends that certain remarks were made by Mr. P that caused the Company further concern about his suitability to be returned to the workplace.

At the conclusion of the three (3) day investigation, the Company advised Mr. P that he would continue to be held from service with pay, and that he was required to attend an Independent Medical Evaluation (IME), in order to determine his fitness to return to the workplace.

The Union contends that Mr. P has no prior history of violence in the workplace and if anything, his outburst was as a result of ongoing frustration that Mr. P had with the disappearance of his belongings and the apparent lack of interest by management in addressing his concerns. The Union further contended that Mr. P was being held out of service unreasonably albeit with pay, and that the Company had no reasonable and probable grounds for demanding an IME prior to returning Mr. P to work.

The Company arranged for Mr. P to attend an IME with a Forensic Psychologist on November 9, 2006 and when he failed to attend, on November 30, 2009 (sic) which Mr. P again failed to attend.

On December 9, 2006, Mr. P was advised that he would no longer be compensated while being withheld from service.

On February 15, 2007 the Company contacted Mr. P of the requirement to contact CP’s Occupational Health and Safety to schedule the assessment or his employment file would be closed.

On February 27, 2007, Mr. P advised that he would not comply with the Company’s request to arrange for an assessment with an IME.

On March 16, 2007, the Union advised the Company that Mr. P had left the country to attend to his sick mother in Spain. He did not return to Winnipeg until the end of May 2007.

On November 21, 2007, Mr. P was advised that his employment record had been closed.

During the course of this matter, Mr. P has not been disciplined, however the Union filed three grievances on behalf of Mr. P;

· The first grievance was filed on December 6, 2006 with respect to his being withheld from service.

· The second grievance was filed on March 6, 2007 with respect to his being withheld from service without pay.

· The third grievance was filed on March 15, 2008 with respect to Mr. P’s record being closed.

In order to resolve the three grievances progressed on behalf of Mr. P, the Union has requested that the Company reinstate Mr. P back into service on a compassionate basis, with an ex-gratia payment equivalent to short term disability benefits and with full seniority.

The Company is agreeable to reinstatement on a compassionate basis with full seniority but without compensations conditional on Mr. P attending an Independent Medical Assessment with a Forensic Psychologist as chosen by the Company’s Occupational Health Services Department or as mutually agreed between the Company and the Union and that he be deemed to be fit to return to service. In addition, Mr. P will be subject to any other medical exam or assessment as deemed necessary by the Company’s Occupational Health Services Department.

The Union requests that:

Mr. P be compassionately reinstated into his employment with an ex-gratia payment equivalent to short term disability benefits for the time out of service, but without loss of seniority and without the requirement that Mr. P first attend a Independent Medical Assessment and any other medical exam or assessment as deemed necessary by the Company’s Occupational Health Services Department and be found fit to be returned to.

The Company declines the Union’s request.

The foregoing document effectively relates the essential facts of the case. To put it simply, based on the comments made by the grievor the Company had a concern as to his continued employability from the standpoint of mental or emotional stability. To that end it required that he undergo a psychiatric assessment to confirm his fitness to work. The grievor took the position that, in the circumstances, subjecting him to a psychiatric assessment was an unduly intrusive affront to his dignity, and he refused to comply with the Company’s request, a refusal that has now in fact extended over a period of some five years.

The disciplinary treatment of the grievor had its root in a report filed by EMC Coordinator Ken Malcolm on September 13, 2006. Mr. Malcolm’s memorandum reads as follows:

On September 13, 2005, at approximately 01:30 I was in the EMC main floor Diesel shop office when I noticed electrician Mr. [P] just outside the office waving for me to come out to him. I walked out of the office and over to Mr. [P]. Mr. [P] told me that someone had taken his meter. As we were talking, another electrician (John Pontes) was walking by and said to us look someone left a meter there, pointing at an electrical outlet box on the shop wall nearby. Electrician John Pointes continued walking past us, and I asked Mr. [P] if that was his meter. Mr. [P] indicated yes, I then took the meter off the electrical box and handed it to Mr. [P]. At this time Mr. [P] looked visibly upset and loudly said that he was tired of this, people taking his things. That he has lost tools in the past and that he has brought in his own tools for work. He then said that he was bringing in a knife, and that the next time someone touches anything of his he will cut their hand or head off. I then said to Mr. [P] that he can’t talk like that at work. Mr. [P] said no, and repeated the threat and walked away.

It should be noted that Employee P, who was first hired by the Company some 30 years ago, and had 26 years of service at the time his employment file was closed, is a native of another country and speaks with a very heavy accent.

It appears from the record before the Arbitrator that at some two hours later in his tour of duty, following his comment to Mr. Malcolm, the grievor was called to a supervisor’s office where he encountered two CP police officers and was joined by Service Manager-Mechanical John Duncan. When it became apparent that Mr. Duncan was going to remove him from service pending an investigation, based on his comments made earlier to Mr. Malcolm, the grievor became extremely concerned. It would seem that he then uttered words which plainly did not assist his case. According to his own statement during a subsequent formal investigation Employee P relates the following:

Duncan I said, I don’t think I deserve this treatment after 26 years of proper service on my side for the company and also after the bad treatment and hard time have received from the company during this time. Please I said, let me present my case first and later you can make your decision, please don’t throw me out Mr Duncan because if you insist on doing this I will pray to my God as a Catholic “That you and your family for three generations will answer to God to make justice for me”, for what you are doing to me today, I am going to pray for this, I want justice to be served to me. Mr. Duncan looked at the Police first like he was asking for their help his eyes were red and he blushed, he was moving in his chair, nervous as if he could not control the situation. He looked at me upset and he was looking at the police officers like he was looking for support, he then looked at me straight in the eyes, now laughing he asked me are you threatening me? I said to him no sir there are witnesses here of what I said. I am going to pray to my God, he is going to do something not me, it is a matter of religion not threats. At this moment I noticed that the police officers were taking notes in their note pad.

Additionally, during his formal investigation several days later, in response to the brief memorandum of Mr. Malcolm which was placed in evidence, the grievor offered the following elaboration:

Q13 Referring to exhibit “A” the memo provided by Ken Malcolm he stated “He then said that he was bringing in a knife, and that the next time someone touches anything of his he will cut their hand or head off”. Could you please explain this comment?

A13 As I said in my statement that there are things that appear in this memorandum that they didn’t take place and there are things that did take place that are not in the memorandum. That’s why I said that a half truth is a big lie. Know I will respond to your specific question. I never said this comment. I was misunderstood by him I think. What I said was that in some countries or societies which I believe are Muslin countries that they have a law that when you are caught stealing they punish you with physical punishment such as cutting off the fingers or the hand or the head depending on the crime. Then what I said afterwards to him was that unfortunately in this yard my tools are being stolen, my toolbox broken into and items taken from the tool box on several occasions. When I report the incidents through what is called here the right channels, including telling you, nothing happens. IF we had the same law in this country and not the stupid law we Christians allow and if the robber was caught “BECAUSE up to today I haven’t received justice, tools have been stolen from me a few tools for example have been stolen from me last week and today for example my tester has disappeared from next to me” the robber who steals these tools would receive the same treatment in the same fashion that these countries apply “they would cut his fingers off or hands”.

Following the investigation the Company took the view that guidance should be obtained from its Occupational Health Services (OHS) branch. The Company relates that OHS gave advice that Employee P should remain out of service until an assessment of his mental fitness was done. OHS required Employee P to attend a medical consultation with the Company’s physician, Dr. Albak. It appears that Dr. Albak, having met with Employee P, requested that he attend an Independent Medical Examination (IME) for a psychiatric assessment. The grievor failed to attend an IME appointment on November 9, 2006 and continued to refuse to attend any such appointment, notwithstanding a series of registered letters sent to him by the Company. Although it appears that the intervention of a Union representative at one point gave the suggestion that the grievor would attend such an appointment, the matter dragged on and in fact he never did. After several warnings and continued refusals, finally on November 21, 2007 the Company sent a letter to Employee P telling him that his employment file was closed.

The Company submits that safety justified its actions, and that the threats and the statements uttered by Employee P to Supervisor Malcolm are sufficient to require medical certification that in fact Employee P does not pose a threat to the health and safety of anyone in the workplace. Its representative submits that his statement to Mr. Malcolm, coupled with what the Company characterizes as a further threat to Supervisor Duncan and his family at the point the grievor was about to be escorted from the property, confirms its view that such medical certification is reasonable and necessary in the circumstances.

The Union’s representative argues that it is highly unusual, and generally beyond the prerogatives of an employer, to require an employee to be subjected to a psychiatric examination. The Union stresses that the employee has demonstrated no propensity to violence or threats of any kind over some 26 years of service, arguing that his removal from service and the requirement that he undergo psychiatric assessment based on one day’s events is abusive and excessive in all of the circumstances, and well beyond the prerogative of the employer.

In support of the Union’s position reference was made to reports from the grievor’s own physician, Dr. Luis Canadas. In a report dated March 6, 2007, provided to the Company, the grievor’s physician writes, in part:

Since [April 4, 2005] I’ve seen Mr. [P] on multiple occasions. Mr. [P] has been complaining of abuse and maltreatment at the workplace from co-workers and the administration of same company causing him discomfort at work and concern about work situation.

During multiple interviews, Mr. [P] never showed any signs of mental disturbance, never been delusional, paranoid or psychotic, never been aggressive or maniac and his mood has always been OK, never suicidal or inappropriate behavior. All the time he has demonstrated good judgment and his interactions are very pleasant.

Mr. [P] is a highly educated person, very cooperative, compliant with medical indications and is willing to work all the time.

On June 6, 2007, Dr. Canadas wrote further to the Company’s doctor stating, in part:

This is to give you my opinion related to Mr. [P] from Winnipeg about his health and evolution. I saw him yesterday and he is coming back from Spain after his mother died. He is facing the grieving process and coping very well.

I do not believe Mr. [P] has psychiatric problems as stated in my letter dated March 6, 2007. I consider he has been abused from many years by the company CP Rail co-workers and the administration and no solution has been found for him after having been reported by the right channels.

Mr. [P] is firm in his position that seeing a psychiatrist is a threat to his safety and doesn’t want to be labelled as a psychiatric patient, because attempts to his honor and dignity. He states that he never reacted physically to any co-worker during his twenty six years of work. He also states that Dr. Albak did not find anything wrong and released Mr. [P] to return to work. I also believe Mr. [P] does not need psychiatric evaluation.

This is my position and the way that I maintain my impartial medical assessment after having seen Mr. [P] on:

a) April 5, 2005

b) June 5, 2005

c) June 9, 2005

d) October 27, 2006

e) October 29, 2006

f) November 3, 2006

g) November 10, 2006

h) January 2, 2007

i) February 23, 2007

j) March 6, 2007

k) March 7, 2007

l) March 9, 2007

m) March 16, 2007

n) June 5, 2007

o) June 6, 2007

And he can return to work

I would appreciate a written answer to my letter.

Additionally, on November 14, 2007 Dr. Canadas updated the Company’s doctor as follows:

I am pleased to inform you that Mr. [P] is coping very well with grieving and willing to return to work and does not represent any danger or risk to himself or other people. Further evaluations are not necessary.

This confirms my opinion expressed in two letters and phone conversations on June 6, 2007 and letter dated March 6, 2007 and June 6, 2007. This opinion is in accordance with the Regional Medical Representative, Dr. R. Albak after he evaluated Mr. [P] twice.

Mr. [P] is doing very well and is highly motivated to return to work and very cooperative.

Thank you for your consideration to this matter, and please do not hesitate to contact me.

I turn to consider the merits of the dispute. It should be noted that boards of arbitration have traditionally exercised extreme caution in dealing with the right of an employer to require an employee to be subjected to a medical examination, including a psychiatric assessment. While arbitrators recognize that the employer has the inherent right to require the medical or psychiatric assessment of an employee to demonstrate his or her fitness for work, boards of arbitration have ruled that an employer must have compelling reasons to justify such a demand. In my view the law and principles were well captured in the decision of Arbitrator Stewart in Re Brinks Canada Ltd. and Teamsters Union, Loc. 141 (1994), 41 L.A.C. (4^th) 422. At pp. 429-30 Arbitrator Stewart reasoned as follows:

The analysis in many of the decisions that I was referred to commences with reference to Re Firestone Tire & Rubber Co. of Canada Ltd. and United Rubber Workers, Loc. 113 (1973), 3 L.A.C. (2d) 12 (Weatherill), where at p. 13 the decision states as follows:

There is no doubt that an employer has both the entitlement and the obligation to satisfy itself as to the fitness of its employees to carry out the tasks to which they will be assigned. What is proper will depend, in each case, on the nature of the work and the circumstances to which it is to be performed.

There is a concise analysis of the relevant authorities in Riverdale Hospital, supra, at pp. 405-6 wherein reference is made to Re Monarch Fine Foods Co. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Loc. 647 (1978), 20 L.A.C. (2d) 419 (M.G. Picher) at pp. 421-2, where it states:

It is well established that persons do not by virtue of their status as employees lose their right to privacy and integrity of the person. An employer could not at common law assert any inherent right to search an employee or subject an employee to physical examination without consent: Latter v. Bradell et al. (1881), 50 L.J.Q.B. 448 (C.A.). Thus there is nothing that can be described as an inherent management right to subject an employee to what would otherwise be a trespass or an assault upon the person. The right of an employer to require an employee to submit to an examination of a doctor of the employer’s choice was reviewed by the Court in Re Thompson and Town of Oakville (1968), 41 D.I.R. (2d) 294 (Ont. High Cr.). In that case two constables were effectively discharged for refusing to submit to a medical examination when ordered to do so by their chief constable. The orders of the municipal council discharging the constables were quashed on certiorari on the basis that there was no lawful authority in the employer to impose the requirement of a medical examination on them … McRuer, C.J.H.C. stated [at p. 302]:

“The right of employers to order their employees to submit to an examination by a doctor of the choice of the employer must depend on either contractual obligation or statutory authority”.

Normally, where an employment relation is governed by a collective agreement, the authority of an employer to require an employee to submit to a medical examination must, apart from statutory authority, be either express or implied in the collective agreement …

The arbitration cases which have dealt with this issue most frequently are those in which an employee returns to work after an absence due to illness and an issue arises as to the ability and fitness of the employee to return to work. Boards of arbitration have consistently held that it is implicit in the rights of management to require that employees be physically fit to perform their work efficiently and safely. Thus it has been found that an employer may, where reasonable and probable grounds exist, require that the employee pass a medical examination by the company’s doctor or by a medical practitioner named by the company to determine an employee’s fitness to return to work: see Re Studebaker-Packard of Canada Ltd. and U.A.W., Local 525 (1960), 11 L.A.C. 189 (Cross); Re Eaton Automotive Canada Ltd. and U.A.W. Local 27 (1969), 20 L.A.C. 218 (Palmer); Re Firestone Tire & Rubber Co. of Canada Ltd. and United Rubber Workers, Local 113 (1973), 3 L.A.C. (2d) 13 (Weatherill).

The issue to be determined is whether in the particular circumstances of this case, reasonable and probable grounds existed for the employer to require that Mr. Matchett attend for a psychiatric evaluation by Mr. Margulies. In considering this matter I agree with Mr. Riendeau’s submission that considerable weight must be given to the fact that Mr. Matchett is equipped with a firearm in the course of his employment. The employer is clearly justified in exercising utmost care in ensuring that an employee is mentally able to deal with that responsibility and to take steps to satisfy itself in this regard. However, an employee’s right to privacy must be taken into account and must not be unnecessarily or unduly interfered with, particularly in connection with a psychiatric assessment.

It is my view that at the relevant time it was not reasonable for the employer to require Mr. Matchett to undergo a psychiatric assessment. As Ms Huebscher emphasized, it was open for the employer to request further information from Mr. Matchett’s doctor. This avenue was not pursued. Mr. Matchett’s offer to attend to be examined by another general practitioner of the employer’s choice was also not pursued. While it is possible that these avenues of obtaining information may ultimately not have provided the employer with the assurance it reasonably required, it is quite possible that such an assurance could have been provided. In my view, in the circumstances of this case, it was unreasonable for the employer to insist on the significantly more intrusive approach of requiring a psychiatric examination without first exploring the less intrusive options.

(See, also, Re Riverdale Hospital and Canadian Union of Public Employees, Local 79 (1985), 19 L.A.C. (3d) 396 (Burkett); OPSEU and The Crown in Right of Ontario (Ministry of Natural Resources), a decision of the Grievance Settlement Board of Ontario, (Nimal Dissanayake, Vice-Chair) dated May 20, 2008)

Upon a review of all of the facts of the instant case, I am not persuaded that the Company has discharged the burden of proof to demonstrate that it had reasonable and probable grounds to withhold the grievor from service without pay until such time as he agreed to undergo a psychiatric examination. The grievor, an employee of some 26 years service with no history of violence or threats, made what may be characterized as an ill-advised and angry statement to his supervisor, reacting to what he perceived to be the theft of his tools and insufficient protection in that regard from the Company. Unfortunately, when being removed from the workplace he compounded the problem by uttering a statement to the facilities manager, Mr. Duncan, invoking the possibility of God’s revenge upon him and his family. These are obviously not acceptable forms of communication in the workplace. Of themselves they may well have been properly considered insubordinate or unacceptable, so as to justify some form of discipline.

In the Arbitrator’s view, however, these events of a few moments, standing alone, did not give the Company reasonable and probable cause to believe that Employee P was truly a threat to the health and safety of anyone in the workplace, to the extent that psychiatric certification of his mental stability needed to be obtained. That is particularly so given the clear opinion of the grievor’s own family physician, albeit communicated to the Company some time later.

There is also some issue of what precisely was said by Mr. P to Mr. Malcolm. The grievor, who was present at the arbitration hearing and could be cross-examined, explains that in his anger he referred to the law of certain Muslim countries. Mr. Malcolm, whose memorandum makes no such explanation, was not present at the hearing to be cross-examined. It is well established that as a general rule the evidence of a witness who is present at an arbitration and can be cross-examined is to be preferred to the hearsay evidence of a person’s memorandum when that person is not present to be examined.

On the whole, I am satisfied that Mr. P was angry, and that he expressed his anger, but that he neither had nor expressed a true intention to do harm to other employees. In my view his emotional outburst, both to Mr. Malcolm and to Mr. Duncan, on a single day, constitutes an isolated and uncharacteristic incident which does not justify the Company’s insistence that the grievor undergo psychiatric assessment before being allowed to continue in his employment.

To base a requirement for a psychiatric examination on what appears to have been an isolated and uncharacteristic outburst is less than compelling. And that is especially so given the grievor’s own physician’s diagnosis which is not countered by any other medical opinion placed in evidence. It may be noted that Dr. Albak, the Company’s physician, did not himself find the grievor unfit to work, but merely indicated his preference for a specialist assessment. Nor does the report of Dr. Albak suggest any negative expectation of his part. On the contrary he commented: “Based on our conversations, I advised [P] that my expectation was that he would do well with the Independent Medical Specialist Evaluation process.”

In the result, I am not satisfied that the Company did have reasonable and probable grounds to require, as a condition of his continued employment, that the grievor undergo a psychiatric examination. The grievance must therefore be allowed.

There are, however, substantial concerns with respect to remedy. As the record indicates, this matter has gone unresolved for some five years. At any point during that time it was open to the Union to bring the matter directly on for arbitration and resolution. While it may be that the parties worked hard to seek a settlement of the matter, in my view the delay which has occurred in this case is an important consideration in weighing the quantum of compensation.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without any loss of seniority and without compensation for wages and benefits lost. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this Award.

Dated at Ottawa, Ontario this 29th day of June, 2011.

_____________________________

Michel G. Picher

Arbitrator