CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 4490

Heard in Edmonton, September 14, 2016 Concerning ALGOMA CENTRAL RAILWAY And MAINTENANCE OF WAY EMPLOYEES DIVISION^ TEAMSTERS CANADA RAIL CONFERENCE DISPUTE: Dismissal of Y. Chouinard. THE UNION’S EXPARTE STATEMENT OF ISSUE:

dismissed by Company for an alleged breach of trust due to false information given by Mr.^ By^ way of^ Form^ 780 dated^ March^ 20,^ 2016,^ the grievor,^ Mr.^ Y.^ Chouinard,^ was Chouinard when he completed a pre-placement health assessment questionnaire on May 31,2012. A grievance was filed.

medical form. He was confused about what he had to disclose as a previous injury.^ The Union contends that the grievor simply made a mistake on the pre-employment The grievor never had a prior WSIB claim and had never missed time because of injury. The Company’s decision to dismiss the grievor was a serious overreaction that was improper and unwarranted in the circumstances. The Union requests that the grievor be reinstated into Company service immediately without loss of seniority and with full compensation for all wages and benefits lost. The Company denies the Union’s contentions and declines the Union’s request.

FOR THE UNION: (SGD.) G. Doherty FOR THE COMPANY:(SGD.) President There appeared on behalf of the Company: F. Daignault – Labour Relations Manager, Montreal A. Daigle L. Waller – – Labour Relations Manager, MontrealWorkers Compensation Officer C. Reid – Engineering Manager, There appeared on behalf of the Union: H. L. Helfenbein – Vice President, Ottawa D. Brown – Counsel, Ottawa

AWARD OF THE ARBITRATOR

On June 19, 2012 Mr. Yves Chouinard started work with Algoma Central Railway as a track labourer. As part of the hiring process he was required to complete a “Preplacement Health Questionnaire”. That form is designed to allow the Employer to learn, before hiring, whether the potential employee has physical or medical issues that might, during the course of what is potentially a long career, have or develop medical limitations on their ability to do their job.

On February 16, 2016 the grievor reported a workplace injury. In the course of the Employer’s investigation of that injury the grievor made statements to management that caused it to explore his pre-employment health record. Following investigation, the Employer concluded that the grievor in the “Pre-placement Health Questionnaire” had misrepresented his history by the answers he gave to the following four questions: 24Q. compensation? Have you ever had any claims for disability or workers’ 24A. No. 25Q.to a workplace injury or disease? Have you ever had functional limitations or restrictions due 25A. No. 82Q.legs or spine including back problems? Have you ever had problems with muscles in your arms, 82A. No. 83Q.arthritis)? Have you ever had diseases of your joints or bones (e.g. 83A. No.

The form contains the following warning, declaration and consent: I understand that if I knowingly have provided false information orhave not declared a medical condition, past or current, I will be

subject to action by CN up to and including dismissal … I also consent for representatives from the Office of the CN Chief Medical Officer to discuss any details of this assessment with my physician.understand that this information will be reviewed for the purpose of I making a fitness to work determination. For those in doubt, the form offers a toll free assistance number.

The Employer concluded that the grievor had given false information in a way that amounted to a breach of trust. After considering the grievor’s disciplinary history, as described in the Form 780, it terminated his employment.

The February 2016 event and disclosures

At the time of his discharge Mr. Chouinard, then aged 29, was working on a track labourer crew. It is a physically demanding job often involving remote work with minimum supervision. On February 11, 2016 he experienced left shoulder pain at work while repetitively swinging a pick axe to try to break up ice on a guardrail at the yard in Oba, Ontario. He initially reported pain to a co-worker and, later that same day, to his supervisor. He went to the hospital in Hearst, Ontario where he was required to fill in a Workers’ Safety and Insurance Board Form 6 – Worker’s Report of Injury. That form asked, in part: “7. Do you have any prior related WSIB/WCB claims” to which he checked “yes – in Ontario” and “9. When did you first start to have problems with this injury/condition?” to which he answered “with my previous claim”. The medical diagnosis for his 2016 pain was scapula bursitis in the shoulder.

The day after the injury, a re-enactment was held. The report of the worker’s initial interview, as part of the re-enactment, records the following: Heshoulder thought it would go away. reported to his foreman that he felt a pain/cramping in his He reported that he had previously injured this shoulder working inthe mine in 2011 and there was a wsib claim. He also reported that he had a previous non work related lower backinjury that he takes medication for but confirmed he has not aggravated lower back pain at work. Mr. Goudreau, who conducted the re-enactment, confirmed these statements in a memo of March 13, 2016. In a similar memo Mr. Merick Letourneau confirmed similar statements made during the initial investigation. On February 19th^ the grievor attended a formal interview over the events of February 11th. Information disclosed then resulted in further inquiries and a requirement to attend for a further investigation on March 16th so that he could give his explanation as to why he had not disclosed his previous medical history on the Pre-placement questionnaire. The transcript of the first investigation indicates the following exchange, following his description of his day on February 11th. 15Q.existing injury? Mr. Chouinard, is this a new injury or a recurrence of a preA. I think it is a new injury. 16Q.happen? Mr. Chouinard, on what date did this original injury A. 2011 17Q.treatment in order to prevent this injury? Mr. Chouinard, after the original injury, did you seek A. Yes, 2 weeks off, probably went to chiropractor.

18Q.the events on Feb 11 Mr. Chouinard, how often did you seek treatment prior toth (^) 2016? A. Always go; can’t remember how often.

19Q.treatment before Feb 11 Mr. Chouinard,th (^) 2016? when was the last time you went for A. Couple months ago, go for my back but not for my shoulderbecause he was back to my regular duties. 26Q.injury on the medical screening prior to hire? Mr. Chouinard did you advise CN Rail on your previous A. I believe not. 29Q.add that may be pertinent to this investigation? Mr. Chouinard, do you have anything further you wish to A. My previous injury in 2011 I was able to return to regular duties for5 years. The 2011 Injury Mr. Chouinard filled in this Pre-placement Questionnaire in 2012. The events in 2011 were only one year before that. The main issue here is whether he was honest and candid when he filled in the questionnaire, given what he knew and understood as he filled in that document. What he may have learnt subsequently is not directly relevant to whether he was being honest, confused, or deceitful at the time. In 2011, the grievor worked for a subcontractor of Goldcorp, a firm operating a mine near Timmins, Ontario. It is not disputed that he experienced pain on the job in

2011. The grievor gave the accounts of this incident described above following the 2016 incident in the Oba Yard. He was questioned further on the 2011 incident, and the steps taken following it, in the March 16, 2016 investigation. Then the grievor said the pain was in his higher back and neck, there was no work time lost, and no WSIB claim was filed as a result of the 2011 injury. He agreed he did not advise CN of the previous

injury on the questionnaire, saying he was not aware he had to disclose every time he had pain. He said at the end of his investigation. I would like to state that I believe I had filled out my pre-employmentquestionnaire in a honest manner. I was not attempting to deceive anyone with my answers.the previous injury as I had not received WSIB or had lost time as I I did not believe it was necessary to report was going on day off after the injury.lingering health issues that I believe I had to report. When I was hired I had no

These answers were all given after the grievor learned that he was under investigation for giving false answers in 2012. The Employer views these answers as disingenuous given the statements he made (before the 2012 questionnaire was raised) following the 2016 incident. I accept that he indeed told Mr. Goudreau, at the time of the re-enactment, that he had injured his shoulder working in the mine and that there was a prior WSIB claim. This is supported by the information the grievor gave the WSIB on his Form 6 where he checked off that he had hurt this area of his body before, that he had a prior WSIB claim, and that he first started to have problems with the (current) injury “with my previous claim”.

The Employer believes the grievor was untruthful when he said the 2011 injury involved no lost time. I accept the grievor’s explanation that this was because he was working on a 14 days on 14 days off rotation and was able to rest during the 14 days off. The Company also argues that at one point he is speaking of his higher back and neck and at another his shoulder. With a diagnosis of scapula bursitis in the shoulder, I find this is not a significant point of difference, and is not of itself any indication of dishonesty.

The Union says the entire answer to the first question about claims for disability or workers’ compensation is that it was in fact true; he had no such claim. The difficulty with that assertion is that the grievor, up until the issue was raised by the Employer’s investigation, believed he in fact had such a claim. I find his comments during the 2016 re-enactment and more particularly his WSIB Form 6, make that fact clear. He only later learnt there was no prior claim, but that subsequent knowledge does not distract from the fact that his 2012 answer was not frank in terms of what he understood to be the facts at the time.

There is no evidence that the grievor’s answers to the second and fourth questions are untrue. That cannot be said of his answer to the third question. The injury at the Goldcorp Mine involved his higher back and neck and led him to take chiropractic treatment. A more forthright answer would have been that he had a problem with his higher back but that it had resolved itself, leaving it to the Employer to check and confirm the veracity of that statement. The Union argues that the question implicitly asked did he have problems of the type that might affect his ability to function as an Algoma Railroad employee. That is too narrow an interpretation. The form is not looking for the employee’s assessment, but for objective facts it can assess itself.

Certainly the form does not require the reporting of every ache or pain, but the event in 2011 was significant enough to seek treatment and to result in chiropractic care. The Union argues that the chiropractic care related to problems the grievor had with his lower back. If that is indeed why he was seeking chiropractic care in 2011, then

it raises the further question of why the grievor did not disclose problems with his lower back. The Union argues that the grievor’s performance, from his hiring in 2012 until the 2016 incident, without restrictions physical limitations or accommodation, is proof positive that the 2011 injury was so insignificant that it did not call for disclosure; that it was not a “problem”.

The Union, in the alternative, argues that if any answers in 2012 were less than appropriate, this is not in any case a situation where dismissal is justified. It relies upon the following extract from Palmer and Snyder, Collective Agreement Arbitration in Canada (5th^ ed): 12.56arbitrators previously considered discharge to be the appropriate Similar to other misconduct issues earlier discussed, response in respect or record falsification.however, has been to move away from this view and, consequently, The trend of authority, an examination of various factors has been necessary to support such a result … 12.58Manufacturing is generally accepted by modem day arbitrators. (The) approach developed by Arbitrator Shime in Gould It unifies elements of the previous approaches and its starting point is that “not every falsification of an application form constitutes just cause for discharge”.

12.59 issues: (^) theOne arbitrator “grouped” these factors into the following nature of the material that was withheld, the circumstances of the withholding, the materiality of the informationwithheld, the actions of the employer and other circumstances that have occurred during the course of the grievor’s employment. I accept that dismissal is not automatic and that the listed factors are relevant consideration. As in the case of theft, another fundamental breach of trust area, the law now requires a more contextual analysis. See: McKinley v. B.C. Tel [2001] 2 S.C.R. 161

The Employer argues that, while dismissal is not automatic, it is nonetheless the norm for material misrepresentation.

The Union relies on CROA&DR 3619 , a case where a grievor had been dismissed for not disclosing a known medical condition during the pre-hire process. The grievor had in the past suffered migraines, did not mention it on the form which did not ask specifically about injuries, but did discuss it with the interviewing company doctor. Finding only a technical breach, Arbitrator Picher substituted a written reprimand for her oversite in filling out her medical history. The Union also provided CROA&DR 2768 , where a dismissal was upheld of a probationary employee who failed to disclose psychiatric issues and medications; something discovered soon after her hiring when she sought accommodation to avoid swing shifts. She compounded her difficulties by misleading her supervisor as to what she had told the interviewing physician.

I have considered the factors listed in 12.59 (above). It is material that, in answering about WCIB, while the grievor believed he had had a claim, he had not drawn benefits and had not taken any days off work. It is similarly material that, while he had suffered some shoulder pain, it had passed before the pre-placement form was filled out. That may not be the case with his back issues. The point that the grievor has worked successfully for four years without difficulty at a physical job is also worthy of consideration.

The Employer is however, correct in emphasizing the resources it puts into and the importance of pre-employment screening. It is to make sure that: “which they are being considered in order to safeguard their ownAll selected candidates are fit to perform the duties of the job for health and safety, the health and safety of other employees and that of the general public.”

Algoma has devoted significant resources to hiring new and qualified employees in response to a large turnover in its workforce in the last five years. Screening applications to ensure it is hiring the right people for the right jobs is expensive. It involves the cost of medical assessment, background checks and then training costs.

Requiring honest answers is also important because it promotes evenhandedness between applicants for scarce jobs. There should be no advantage to fudging the pre-employment testing and disclosure requirements so as to obtain priority over other applicants.

The Employer refers to two cases that underscore the importance of trust in the employment relationship. Arbitrator Picher in CROA&DR 2709 said: It is trite to say that a certain degree of trust is essential to theemployment relationship, particularly when the work in question is carried out in a largely unsupervised setting. In the instant case theArbitrator is compelled to conclude that the grievor did falsify records withCompany. For that alone, he was deserving of discipline which would respect to his own workload with a view to deceiving the have placed him in a dismissible position. See also CROA&DR 1344. Those two cases involved a breach of trust during the employment relationship. Arbitrator Hodges addressed a situation to involving the

Pre-employment questionnaire in SHP718 , dismissing a grievance by saying at para. 63: Ironically,employer accommodation of the very same disability that the grievor during the grievance procedure the union argued for wilfully neglected to disclose during pre-employment.Arbitrator Keller from CROA&DR 3475 above, Mr. Bader cannot have To paraphrase it both waysemployment and– first conceal a medical condition to illicitly secure then claim the protections of the collective agreement once the deception has been brought to light, … With a review of this decidedly profound commitment, it cannot comeas any surprise to Mr. Bader or the union that his employment relationship with CPR came to an end, and that it cannot be restoredat this time. As well, given all of the above, the arbitrator was unable to establish any significant level of trust in the grievor during thecourse of the hearing, so it would be highly unlikely under the circumstances to expect that the employer would be able, goingforward, to place any degree of true confidence in him.

The Union argues, based on three decisions; CROA&DR 2771 , 2847 and 3227 that arbitrators must act on “clear and cogent evidence” and “cannot convert suspicion, however strong, into legal conclusions.” Without such evidence, the Employer fails to meet its onus of proof. Here, it says, it is only suspicious that the grievor had an injury from the 2011 incident. All the grievor says is he had pain, from which he quickly recovered.

The Union’s main assertion is that Mr. Chouinard was confused when filling out the questionnaire in 2012. On the whole of the evidence (and leaving aside any reference to the 2016 WCB ruling) I find that is the less probable conclusion. I rely primarily on the grievor’s own statements which I find inconsistent with “confusion in 2012”. In 2012, the 2011 incident would have been fresh in his mind. He had not at that point learnt in fact there had been no formal WCIB claim. He made no mention of

shoulder or lower back issues. I conclude that this was due to deliberate under reporting not to confusion.

Mr. Chouinard’s record over the three years of his employment shows the following: 2015/08/06 3 day Suspension Not Daily crane log not filled out complying with CN Drivers manual, 2015/03/03 Written Reprimand Failure to fill out crane logs 2014/10/08 Written Reprimand Yves did not back up his frmn (foreman)

The Union emphasizes nothing in this record speaks of dishonesty or lack of candour, which I accept. However, I find this is a case of misrepresentation on the prescreening questionnaire. It provides just cause for discipline. It is not a case where mitigation of the penalty is justified. The grievance is denied.

November 9, 2016 _______________________________ ANDREW C. L. SIMS ARBITRATOR