CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4046
Heard in Montreal, 12 October 2011 Concerning
CANADIAN NATIONAL RAILWAY COMPANY
And
UNITED STEELWORKERS UNION – LOCAL 2004
DISPUTE:
Mr. Santala was discharged for the following reason: “Employee has failed to comply with the rules set out in his Continuing Employment/Reinstatement Contract as set out by the Company”. JOINT STATEMENT OF ISSUE: On April 2, 2011, the grievor was discharged because: “Employee has failed to comply with the rules set out in his Continuing Employment/Reinstatement Contract as set out by the Company”. The Union filed a grievance. The Union submits that Mr. Santala suffers from a disability, is under a doctor’s care and in the process of rehabilitation. The Union submits that the reinstatement contract was, by its terms, a violation of the Canadian Human Rights Act to the extent it did not allow for the possibility of a relapse. The Union submits that the discharge was discriminatory and in violation of the Human Rights Act or, in the alternative, excessive and requests that the grievor be immediately reinstated with full redress. The Company raises the preliminary objection to the arbitrability of this dispute in keeping with the terms of paragraph 5 of the last chance agreement contract signed on June 22, 2010, The Company also disagrees with the Union’s contentions and has declined the grievance. FOR THE UNION: FOR THE COMPANY: (SGD.) M. PICHÉ (SGD.) S. GROU STAFF REPRESENTATIVE SR. MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company: S. Blackmore – Manager, Labour Relations, Edmonton S. Grou – Sr. Manager, Labour Relations, Montreal R. Haggart – Assistant Chief Engineer, Toronto B. Laidlaw – Manager, Labour Relations, Winnipeg C. Gilbert – Manager, Labour Relations, Montreal There appeared on behalf of the Union: M. G. Piché – Staff Representative, Toronto R. Tompkins – Chief Steward, GLR G. J. Santala – Grievor
AWARD OF THE ARBITRATOR
The unfortunate record before the Arbitrator confirms that the grievor has a
substantial history of alcohol addiction and abuse. In the five years of his employment
Mr. Santala recorded extensive periods of absence, generally without leave. In fact, the
five years of his employment included only sixteen months of active service, the balance
being accounted for by sick leave or unauthorized absence. During that relatively short
period he received discipline on three occasions, once for failing to attend at rules’
training and twice for attendance problems.
There is no dispute that the grievor’s condition as an alcoholic became known to
the Company. That condition was first accommodated in February of 2009. At that time
the grievor, while continuing in employment, signed a confidential “Relapse Prevention
Agreement” with the Company’s Occupational Health Services. The Relapse Prevention
Agreement and program involves regular meetings with a representative of
Occupational Health Services, part of which is intended to help identify signs or
symptoms of any impending relapse on the part of an addicted person.
Notwithstanding those efforts the grievor did suffer a relapse causing him to go
AWOL after August 20, 2009. Subsequently the Company decided to give the grievor
yet another opportunity at rehabilitation. The grievor, his Union and the Company
signed a Continuing Employment / Reinstatement Contract on June 22, 2010.
Unfortunately, some four and one-half months after the execution of his
continuing employment contract, the grievor violated its terms. Notwithstanding the
prohibitions of his contract, he consumed alcohol on or about December 16, 2010 which
resulted in legal charges being brought against him.
The Company submits, in part, that the grievance should be viewed as not
arbitrable, to the extent that the grievor violated both his continuing employment
agreement and a relapse prevention agreement which was negotiated within the
framework of his return to work. Alternatively, the Company submits that it did have just
cause to terminate the grievor’s services by reason of his failure to honour the
conditions of his last chance continuing employment / reinstatement contract.
I am not persuaded that the grievance is not arbitrable. Paragraph 5 of the
continuing employment contract states:
Should you fail to comply with the full terms of this contract, including compliance with the Relapse Prevention Agreement, you will be discharged from CN and will not be eligible for continuing employment/reinstatement.
While the foregoing provision is not uncommon in such contracts, it clearly does not
state that in the event of a discharge the grievor will have no right to avail himself of the
grievance and arbitration provisions of the collective agreement. Absent any such
specific language, I cannot agree that the circumstances herein render this matter
inarbitrable.
However, with respect to the larger question of the merits of the grievance, the
Arbitrator has substantial difficulty with the position of the Union. It argues, essentially,
that the grievor suffers from a condition which is known to involve relapses. In the
Union’s submission the Company’s duty of accommodation for the grievor’s disability in
relation to alcohol addiction was not discharged to the point of undue hardship, and on
that basis his termination should not be sustained.
With respect, I cannot agree. The record discloses that over a period of five
years the Company has been extremely patient and understanding with the grievor and
the difficulties caused by his medical disability. As indicated above, it tolerated a rate of
absenteeism by Mr. Santala which, standing alone, might well have justified the
termination of his employment some time ago. However, the Company, based on its
eventual knowledge of his condition, first gave the grievor the benefit of negotiating a
relapse prevention agreement with its Occupational Health Services in February of
- However, that effort did not prove successful as the grievor’s agreement was
violated by his incurring a DUI charge in August of 2009.
Notwithstanding that background, the Company again entered into a continuing
employment agreement with Mr. Santala on June 22, 2010. Unfortunately, with the legal
charges brought against him for the events of December 16, 2010 it became evident
that the grievor again relapsed into alcohol use, violating the agreement and triggering
his termination.
This Office has previously commented on the importance of last chance
continuing employment agreements, particularly in the context of employees who suffer
from addictions. In CROA 2743 the following comments appear:
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. On the evidence, the Arbitrator is satisfied, on the balance of probabilities, that Mr. [O] did consume a prohibited drug, contrary to the terms of his agreement. The pre-agreed consequence for that infraction is discharge.
Additionally, this Office has recognized that the parties do, on occasion, fashion
last chance agreements precisely as a means of accommodation for a disabled
employee. In CROA 3198 the following analysis appears:
The history of Mr. [D]‘s treatment does not, in the Arbitrator’s view, sustain the Union’s argument that he is the victim of arbitrary or discriminatory disregard of his rights under the Canadian Human Rights Act. On the contrary, the evidence reveals that the Company acknowledged and responded to what it perceived as Mr. [D]’s record of substance abuse dating back to 1990 by providing him an opportunity to pursue a course of follow up treatment as a condition of his continued employment pursuant to the agreement which he and his Union signed on November 12, 1997. I am satisfied that Mr. [D]’s removal at that time from safety sensitive work, and his continued employment under the conditions of the agreement in fact satisfied the requirement of reasonable accommodation to which he was entitled in light of his acknowledged substance abuse problem. Indeed, on the facts of this case the Union’s consent to the continuing employment contract can fairly be construed as an agreement on its own part that that the arrangement was itself a fair accommodation of Mr. [D]’s condition, and that any requirement to employ him in the face of his failure to meet the conditions would constitute undue hardship. … It is my own view that it did constitute reasonable accommodation short of the point of undue hardship, and that the grievor’s eventual termination for his failure to respect the conditions of the agreement did not involve a denial of his right to be further accommodated in conformity with the requirements of the Canadian Human Rights Act , as his continued employment would constitute an undue hardship to the Company. The material before the Arbitrator indicates a long-standing substance abuse problem suffered by Mr. [D], as first noted in 1990 and culminating in his positive drug test in December of 1998. Bearing in mind the safety sensitive nature of his work duties, and the Company’s efforts at accommodating his condition, including the substantive terms of the last chance agreement of November 12, 1997, I am satisfied that this is a case in which this Office should uphold the agreement made by the parties, for reasons well articulated in prior jurisprudence. Such agreements obviously have little value to employers, in the words of Arbitrator Lynk at p. 328 of the Canadian Wastes Services award: … “If they can be easily undone by a grievor’s claim that her or his unexpected or unintended relapse caused … breach of the LCA, …”. (See also CROA 2595, 2632, 2743, 2753, 2965 and 3186 .) For all of the foregoing reasons the grievance must be dismissed.
On the whole, I am satisfied that the Company has been diligent in attempting to
reasonably accommodate the grievor’s medical condition over a substantial period of
years. To require that it continue to do so, in light of the history demonstrated by the
grievor, would, in my view, amount to undue hardship imposed upon the employer.
For all of the foregoing reasons the grievance must be dismissed.
October 17, 2011 (signed) MICHEL G. PICHER
ARBITRATOR