CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
2ND SUPPLEMENTARY AWARD TO
CASE NO. 4030
Heard in Montreal, Thursday, 16 February 2012
Concerning
CANADIAN PACIFIC RAILWAY COMPANY
And
TEAMSTERS CANADA RAIL CONFERENCE
MAINTENANCE OF WAY EMPLOYEES DIVISION
There appeared on behalf of the Company:
M. Shannon – Counsel, Calgary
M. Moran – Manager, Labour Relations, Calgary
Dr. G. Lambros – Chief Medical Office, Calgary
L. Trueman – Director, OHS, Calgary
P. Wadja – General Manager, Human Resources Planning & Development
G. Wilson – Vice-President, Safety, Environmental and Regulatory, Calgary
M. Chernenkoff – Labour Relations Officer, Calgary
There appeared on behalf of the Union:
Wm. Brehl – President, Ottawa
D. Brown – Legal Counsel, Ottawa
A. R. Terry – Vice-President, Ottawa
2ND SUPPLEMENTARY AWARD OF THE ARBITRATOR
By decision herein dated July 21, 2011, the Arbitrator directed that the grievor be
reinstated into his employment. That reinstatement was subsequently delayed. The
parties again appeared before this Office on September 13, 2011 to resolve an issue of
the process by which the grievor would be reinstated. They then made a written
2nd SUPP 4030
– 2 –
agreement whereby it was understood that the grievor would not be required to meet
with an addiction professional as a condition of his return to duty. It appears that that
condition was challenged by the Company’s Occupational Health and Safety branch.
That resulted in a further hearing on November 10, 2011 and a supplementary award
herein whereby the Arbitrator directed compensation to the grievor and overruled the
Company’s objection to proceeding with the grievor’s reinstatement. In that award,
however, I commented, in part: “For reasons it best appreciates, the Company agreed
to that exception, albeit the grievor, like any employee being reinstated, is obviously
subject to the normal physical examinations and clearances which would otherwise
apply.”
The matter is therefore now returned for further consideration by reason of the
Company’s handling of the grievor’s reinstatement and its ultimate decision to return
him to work in a safety sensitive position, albeit with the restriction that he not perform
certain safety sensitive duties. The record reflects that in fact Mr. Lovett was
compensated by the Company at Group 1 machine operators’ rates between August 8
and December 9, 2011 and that he was returned to active duty on December 12, 2011.
The Union now objects to the fact that the grievor has not been restored to safety
sensitive duties. By way of remedy it requests that the Arbitrator remove the non-safety
sensitive restriction placed upon the grievor and that he be allowed to exercise his
seniority without any limitations.
2nd SUPP 4030
– 3 –
The Arbitrator cannot accede to the Union’s request. The grievor’s return to work
medical review confirmed that the grievor in fact suffers a number of serious conditions
which impact the scope of work which he is able to perform. Among the medical
conditions identified is hypertension, sleep apnea, chronic obstructive pulmonary
disease (COPD), a history of right heart failure, hypercholesterolemia, Type II diabetes
and morbid obesity. Of substantial concern is the impact of COPD, which reduces the
grievor’s ability to oxygenate and which could affect his ability to perform safety
sensitive duties.
I am compelled to agree with the Company that the grievor’s medical condition
confirms the value of conducting a functional ability evaluation, and that pending a more
complete appreciation of his medical picture it was appropriate for the Company to
return the grievor to work which does not involve safety sensitive duties, albeit he
remains paid at the level of a safety sensitive position. In my view the evidence before
me does not confirm that the Company was dilatorious in handling the grievor’s
reinstatement and the medical information which came to its attention. In the
circumstances I do not consider it appropriate to conclude that the Company has not
complied with the directions of this Office or to order any further remedial relief.
February 20, 2012 _______________________________
MICHEL G. PICHER
ARBITRATOR