Subject - Termination of Employment
BAKERY, CONFECTIONARY & TOBACCO
WORKERS’ INTERNATIONAL UNION, LOCAL 410
(hereinafter called the “Union”)
EASTERN BAKERIES LIMITED
(hereinafter called the “Employer”)
GRIEVOR: James Murphy
COUNSEL: For the Union
For the Employer
ARBITRATOR: James C. Oakley
The arbitration hearing was held at St. John’s on July 3 1, October 3, and October 25, 2001. The
parties agreed as follows:
1. The Arbitrator was acceptable.
2. There were no preliminary objections going to jurisdiction to hear the grievance.
3. The grievance procedure was properly followed or any requirements waived.
4. The Arbitrator would remain seized of the matter following publication of the Award in the
event there is a question of interpretation or compensation arising from the Award.
5. Witnesses were not excluded from the Hearing.
The following documents were introduced as exhibits at the hearing:
Consent 1 - Collective Agreement between the parties effective 11 May 1998 to 21 August, 1999
Consent 2 - Letter dated January 3,2001 from Robyn Thompson, Manager, Human Resources,
Eastern Bakeries Limited to James Murphy
Consent 3 - Grievance form dated January 8,200 1with Employer answer dated January 17,2001
Consent 4 - Copy of grievance form with Employer answer dated January 24,2001
RT - 1 Workers’ Compensation Commission of Newfoundland and Labrador Employer’s
Report of Injury dated April 5, 1998
RT - 2 Letter dated April 28, 1998 from Workers’ Compensation Commission to Eastern
RT - 3 Letter dated April 26,2000 fi-omEastern Bakeries Limited to Workplace Safety and
Compensation Commission of Newfoundland and Labrador (“WHSCC”)
RT - 4 Letter dated May 18,2000 fi-omWHSCC to Eastern Bakeries Limited
RT - 5 Copy of letter dated May 18,2000 with attached sticky pad note
RT - 6 Letter dated May 18,2000 fi-om WHSCC to James Murphy with attached notes
RT - 7 Letter dated December 18,2000 from WHSCC to Eastern Bakeries Limited
RT - 8 Letter dated January 3, 2001 from Eastern Bakeries Limited to the Grievor with
attached registered mail card
RT - 9 Letter dated October 3 1,2000 from Eastern Bakeries Limited to James Murphy
RT - 1 0 Job Site Analysis of molder operator dated July 20, 1999 with attached
RT - 1 1 Job Site Analysis of pan stacker dated June 4, 1998 with attached correspondence
RT - 1 2 Job Site Analysis of molder operator dated July 11, 2000
EH -1 Collective Agreement between Walsh’s Bakery and Bakery, Confectionary and
Tobacco Workers International Union, Local 381 effective November 27, 1986,
expiry August 14, 1988
EH - 2 Seniority list dated October 25, 1986
JM - 1 Workers Report of Injury dated April 6, 1998 to Workers’ Compensation
Commission of Newfoundland and Labrador
JM - 2 Collective Agreement between Eastern Bakeries Limited and Bakery, Confectionary
and Tobacco Workers International Union, Local 4 10, effective February 22, 1996,
expiry August 16, 1997
JM - 3 Letter from Dr. B. Drover dated May 11, 2001
JM -4 Complaint Form - Newfoundland Human Rights Commission from James Murphy
dated April 23, 2001
Nature of the Grievance
The Grievor, James Murphy, was terminated fiom his employment while he was absent fiom work
and in receipt of Workers’ Compensationbenefits. The Union claims that the Employer discriminated
against the Grievor on the grounds of physical disability and that the Employer did not make a
reasonable attempt to accommodate the Grievor to return to work in violation of the Human Rights
Code and the Collective Agreement. The Employer submitted that the Grievor’s employment was
terminated when the WorkplaceHealth, Safety and Compensation Commission (“WHSCC”) advised
that the Grievor could not return to the workforce. The Employer submitted that it complied with
Article 13.04 of the Collective Agreement because the termination occurred after the Grievor was
absent fiom work in excess of 104 weeks.
The relevant sections of the Collective Agreement are as follows:
Article 3 - Management Functions
3.01 Subject to all provisions of this Agreement, the Union acknowledges that it
is the exclusive fhnction of the Company to:
(a) hire, direct, discharge, transfer, promote, demote or discipline
employees, and maintain order and efficiency, provided that
discriminatory or unreasonable exercise of such fbnctions may be
challenged by way of a grievance and processed as such in accordance
with Article 6 of this Agreement.
Article 9 - Seniority
9.08 Employees shall lose their seniority rights:
(a) in case of disciplinary discharge without subsequent reinstatement
under the grievance procedure provided by this Agreement;
(b) in case of voluntary resignation;
(c) if they have been laid off continuously for a period of nine (9) months;
(d) if they are called back to work af’ter a lay-off and do not report for
work within four (4) working days after receiving notice and have not
given the Company notice that the failing to report is due to illness or
other justifiable cause;
(e) are absent fi-omwork for more than three (3) days without contacting
the Company or without a reason satisfactory to the Company.
Article 13 - Sick Leave
13.04 Any employee receiving Weekly Indemnity or Workers’ Compensation
benefits shall not be laid off or dismissed because of their disability until a
period of 104 weeks has elapsed.
Witnesses called by the Employer were Robyn Thompson, Human Resources Manager and Weldon
Peddle, Operations Manager. Witnesses called by the Union were Edgar Hill, President of the Union
Local, James Murphy, the Grievor and Patricia Slaney, Production Employee.
The Grievor was terminated fkom employment by letter dated January 3, 2001 from Robyn
Thompson, Human Resources Manager for the Employer, which stated as follows:
Dear Mr. Murphy:
As a result of your absence fi-omwork exceeding 104 weeks, as per Article 13.04 of
the Collective Agreement your employment with Eastern Bakeries Limited is
terminated as of January 17, 200 1. This notice period will fblfill any requirements
under Labour Standards in Newfoundland.
Effective January 17,2001 your coverage under the company’s group medical plan
(includingLife Insurance, Long Term Disability, Weekly Indemnity, Accidental Death
& Dismemberment, Major Medical and Pay Direct Drugs) will be cancelled. Any
outstanding claims must be submitted within 90 days of the termination of your
coverage in order to be eligible for payment. Your pay Direct Drug card is invalid on
the date your coverage ceases, and should be returned to our office.
Life Insurance Conversion
Our contract with Great-West Life allows for the conversion of your Life Insurance
coverage to an individual policy without providing medical evidence. You must apply
for this conversion within 3 1 days of the termination of your coverage. Rates and an
application form are enclosed.
Manager, Human Resources
The Grievor filed a grievance dated January 8,2001 which stated under the heading “Explain nature
of the grievance as filly as possible” the following: “Termination without just cause. Discrimination,
violation of Collective Agreement”. The grievance form stated under the heading “What do you want
for a settlement”, the following “Reinstatement”, “Compensation for time lost” and “Full redress.
Reinstatement to employment status and job. Requirement to fblfill duty to accommodate”.
The Grievor was employed commencing on July 29, 1969, according to the seniority list. He was
employed in various positions in sales and in the plant. From 1992 he worked in the plant in the
position of molder operator. In that position he had some difficulty with flour getting in his eyes fiom
an overhead pan. As a result, he switched positions with Patricia Slaney who occupied the position
of pan stacker. The foreman and superintendent approved the switch ofjobs. Although the position
of pan stacker was a lower paying job, the Grievor retained his same rate of pay. The pan stacker’s
duties include lifting several bread pans and the position is more physically demanding than the
molder operator position. On April 3, 1998 the Grievor reported to the Workers’ Compensation
Commission that he injured his back at work. He commenced receiving Workers’ Compensation
benefits and he was in receipt of benefits on the date his employment was terminated.
The Workplace Health, Safety and Compensation Commission (“WHSCC”) has taken steps to assist
the Grievor’s return to the workforce. A Job Site Analysis of the pan stacker position was completed
on June 4, 1998. There was no indication at that time whether the Grievor could return to his former
position as pan stacker. In the summer of 1999 the Grievor was invited to tour the plant and identi@
other positions that he could perform. Robyn Thompson testified that she and other representatives
of the Employer and two representatives ofWHSCC attended the tour. Ms. Thompson testified that
during the tour there were two possible positions identified by the Grievor, which were molder
operator and bread monitor. The Grievor later informed the WHSCC he would not be able to
perform the duties of the bread monitor. The Grievor testified that he toured the plant following
receipt of clearance to return to work. He felt he could perform all of the duties of the molder
operator. He testified that during the tour he was told by Robyn Thompson that all positions were
filled including positions on the night shift. The Grievor recalled that he told his WHSCC case
worker that he could also perform the duties of a checker, roll pan stacker and roll monitor, although
he mostly talked about the molder operator position. He did not inquire hrther about any of the
other positions because Robyn Thompson informed him that all positions were filled, He believed
the Employer was reluctant to investigate any of the positions on the night shift such as roll monitor
and roll pan stacker. He believed that while he could not perform the duties of bread pan stacker he
would be able to perform the duties of roll pan stacker because the roll pans were not as heavy as the
bread pans. He had experience lifting the roll pans at the start of his shift on Mondays. The Grievor
also testified that he could perform the duties of thrift store operator. He did not identitjr this
position in 1999 because he did not think about it at the time and it was not a position in production.
Following the tour of the plant, a Job Site Analysis was prepared for the molder operator position
in July, 1999. The Job Site Analysis was completed by an Occupational Therapist with Fit for Work.
The Job Site Analysis contained the following description of the position:
1.02 Brief Description of Job
The employee is responsible for operating the molder, a machine that shapes
the bread dough before it goes into individual pans. He/she sets the guides on
the molder for different sized breads, fills the flour sifter, changes the plan
grouper setting on the in feed conveyor to the grouper, cleans the molder and
the floor aroundunderneath the molder, and ensures that the appropriate
amount of dough goes into each pan.
The report analysed the physical demands of the tasks of observing the molding of dough, cleaning
the molder, filling the flour sifters, setting the guides, sweeping the floor, and adjusting the in feed
to pan grouper. The degree of strenuous was evaluated as “light with seldom minor medium
demands.” The report commented that “light” was the degree of strenuousnessdue to the significant
amount of standingwalking and that “seldom minor medium demands’’ referred to the task of
removing side panels that weigh 45 to 50 lbs. once per week for cleaning.
The Grievor said he was informed by the Employer in August, 1999 that the there were no jobs
available for him and no available easeback program. He understood that the Employer did not
believe he had the tolerance needed to work an eight hour day as a molder operator. The Grievor
testified that in August, 1999 his back was 70% better.
Robyn Thompson testified that the Employer did not receive any inquiry from the Grievor about
returning to work as a molder operator. She testified that in April, 2000 it was two years since the
Grievor’s workplace injury and the Union had requested the Employer to fill the Grievor’s position
as a permanent position. At that time the Grievor’s position was filled by a part time employee
replacing the Grievor. Part time employees were paid about $3.00 per hour less than permanent
employees and did not receive the same benefits. Ms. Thompson advised the Union that the
Employer could not post the position as a permanent position until 104 weeks had passed since the
Grievor was absent from employment. There was no grievance by the Union seeking to have the
position posted. She advised the Union that either the Grievor came back to the workforce or they
could post the position. Weldon Peddle testified that usually after an employee is absent for 104
weeks the Union requests that the position be posted. Edgar Hill testified that after two years the
Employer usually posts the job so that a full time employee could obtain the job. He testified that the
Union did not make any request to the Employer to terminate the Grievor’s employment or to remove
him from the seniority list. The Union did not intend that filling the position on a permanent basis
would have the effect of terminating the Grievor’s employment.
Ms. Thompson made an inquiry to the WHSCC in April, 2000 to determine the status of the Grievor.
Up to that time the WHSCC had not requested the Employer to have the Grievor return to work in
the position of molder operator. She discussed the matter with Cathy Dormody, Case Manager,
WHSCC and received a written reply dated May 18,2000 which stated as follows:
Dear Ms. Thompson:
RE: James Murphy
Claim No. 648527
This letter is in response to your correspondence dated April 26,2000, in which you
requested information on the current status of Mr. James Murphy. It has been
determined that Mr. Murphy has reached his maximum medical recovery and has
completed medical intervention. Currently, Mr. Murphy has a workday tolerance of
8 hours at the light level of strenuousness. Therefore, Mr. Murphy does not match the
job demands of his preinjury position of pan stacker.
As we discussed in our conversation on April 26, 2000, Mr. Murphy does have a
positive job match with modifications, to the position of molder operator. The
following modifications are required to make this a positivejob match. Mr. Murphy
will need the opportunity to sit if preferred to complete tasks and he will need
assistance lifting side panels (45 to 50 lb.), that need to be cleaned. Since Mr.
Murphy has been out of the workforce for some time now, his doctor has also
requested a short easeback prior to returning to work in the position of molder
Mr. Murphy is now ready to return to work in this alternate position (molder
operator) with the modifications listed above. After you have reviewed this return to
work option for Mr. Murphy, please contact me at area code 709-778- 13 5 1 regarding
Thank you for your consideration in this matter.
Ms. Thompson discussed the Grievor’s possible return to work with Weldon Peddle. She was
advised by Mr. Peddle that the duties of molder operator included stacking roll pans, sanitation work,
and other duties in the plant. Mr. Peddle requested that a new Job Site Analysis be completed. Mr.
Peddle testified that the 1999 Job Site Analysis did not take into consideration the other related duties
that are required to be performed during a full 8% hour shift. Mr. Peddle explained that there had
been a decline in the volume of production and the molder operator was required to perform other
duties in addition to the duties listed in the 1999 Job Site Analysis. The additional duties included
adjusting the conveyors and the pan stop, pushing stacks of pans on pallets on wheels, and performing
sanitation duties including cleaning the machine, taking the guides off the equipment, cleaning the
floor, moving pans on the floor to clear under the pans and using the vacuum cleaner and scraper to
wash the pans and countertops.
A second Job Site Analysis for molder operator was completed in July, 2000. The Job Site Analysis
was completed by a certified assessment specialist with the Mount Pearl Rehabilitation Centre. The
job was assessed a degree of strenuousness of “light with seldom very heavy demands”. The tasks
that were analysed were observing the molding of dough, cleaning the molderhead divider
equipment, filling the flour sifters, setting the guides, sweeping the floor and adjusting the in feed to
the pan grouper. The job had “seldom very heavy demands” because the duties included lifting the
weight ofthe side panels (88 to141 lbs.)once per week.
The Grievor agreed that the duties of molder operator were correctly described in the Job Site
Analysis reports. He said the duties of the molder operator included using sifters to pour flour,
cleaning equipment, lifting and cleaning the side panels once per week, vacuuming chains around the
equipment, vacuuming the floor, mopping the floor and straighteningup the pans. He said the duties
were light, and not strenuous. The Grievor testified that he could perform all the duties of the molder
operator, with the only exception being the task of lifting the side panels once per week where he
would need some assistance. He would also need the opportunity to sit for periods during the day.
Although the letter fiom WHSCC dated May 18,2000 suggested the Grievor could return to work
on easeback, there was no evidence that the Grievor started any easeback program following the
second Job Site Analysis report. Weldon Peddle did not recall the Grievor ever being refbsed an
easeback program. He testified that he heard that the Grievor came to work one day and after he
worked for 15 minutes he had to go home. The Grievor testified he did not recall ever going back
to the plant to work. The Grievor testified that he did not have an easeback program and the
Employer had not done anything to get him back to the workforce. He testified that he visited the
plant four or five times to check on insurance issues. He did not go back to work at any time after
his injury in April, 1998. He informed the WHSCC that he would grieve the termination of his
employment and the Employer’s failure to place him in the position of molder operator with
modifications to the position.
Robyn Thompson testified that she made hrther inquiries to determine the status of the Grievor’s
Workers’ Compensation claim in November, 2000, She spoke with Cathy Dormody, Case Manager,
on December 13, 2000. She was informed that the match for the position of molder operator,
following the second Job Site Analysis, was negative. The Grievor had been approved to perform
other jobs, but none of those jobs were available at the bakery. This conversation was confirmed by
a letter dated December 18,2000fi-omCathy Dormody to Robyn Thompson which stated as follows:
Dear Ms. Thompson:
RE: James Murphy
WHSCC Claim No. 648527
This correspondence is a follow up to our conversation on December 13, 2000,
regarding the status of Mr. Murphy’s claim. Currently, Mr. Murphy has completed
medical and rehabilitative interventions and it has been determined that he has reached
maximum medical recovery for his compensable low back injury.
Mr. Murphy has a work day tolerance of 8 hours at the light level of strenousness and
therefore he does not match the job demands of his pre-injury position of pan stacker.
Mr. Murphy is however capable of returning to the work force in an alternate
position. As a result, alternate positions at Eastern Bakeries were reviewed and two
positions were identified as possible matches for Mr. Murphy’s physical abilities.
These positions were molder operator and bread monitor. Unfortunately however,
these job matches were unsuccesshl.
In our discussion you confirmed that there were no other alternate positions available
at Eastern Bakeries that you could offer Mr. Murphy. The Workplace Health, Safety
and Compensation Commission Policy RH-03 regarding Return to Work Programs,
“When the injury employer is unable to provide a suitable re-
employment option, the proceeding programs may be used for
returning workers to the workforce with another employer - in the
same of different industry.”
Mr. Murphy will be entitled to a ten week workforce reentry assistance program once
a suitable alternate position with another employer can be identified.
If you have any questions or concerns regarding the above information, please do not
hesitate to contact me at (709) 778- 13 5 1.
Copies of the letters from WHSCC to Ms. Thompson were sent to the Grievor. The Grievor
confirmed that he received copies of the letters. Ms. Thompson understood from the December 18,
2000 letter that WHSCC concluded that the Grievor could not fulfill the duties of molder operator
based on the second Job Site Analysis. As a result, the Grievor’s employment was terminated by
letter dated January 3,2001. There was no indication from WHSCC that the Grievor would return
to the workforce with the Employer. Ms. Thompson stated that the Employer decided to remove the
Grievor from the seniority list as a result of his inability to return to work following his injury. The
Employer relied upon the reports received from WHSCC and did not review any medical reports.
Ms. Thompson testified it was the Employer’s practice to require a functional capacity test to
determine if a worker could safely perform the duties of the job having regard to the safety of the
worker and other workers before permitting the worker to return to work following a workplace
The Grievor testified that he could perform the duties of thrift store operator. Robyn Thompson
testified that there was no job description for the position. The observed tasks included stocking
shelves and loading trucks with bags of product used for animal feed. Weldon Peddle testified that
the thrift store operates six days per week on a day shift. Product that is four or five days old is
moved to the thrift store. The thrift store operator places saleable product from trays on shelves.
Product that is not saleable from the shelves is placed in bags and sold as animal feed. The bags
weigh from 25 to 401bs. Edgar Hill testified that the thrift store operator is required to lift trays of
bread that he estimated weigh about 151bs. The duties include sweeping and washing the floors. Mr.
Hill testified that the employee in the thrift store operator position was off sick commencing in May,
2001. The Union wanted the position posted and not to have the position filled by a part-time
employee. James Murphy testified that he believed he would not have to lift heavy bags of product
used for animal feed because those bags were usually carried by customers and not by employees.
Employer witnesses testified that the Employer had terminated the employment of other employees
who were off sick or in receipt of Workers’ Compensation benefits after a period of 104 weeks.
Sales employees John Snook, Everett Perrier and Dickson Strickland, and production employees
Morris Martin, Burt Crewes and Harry Collins were dismissed after the Employer determined they
would not be returning to work. Robyn Thompson testified that John Snook filed a grievance and
the grievance was dropped. The other employees did not file any grievance. Edgar Hill testified that
most of these employees were off sick or in receipt of long term disability benefits. John Snook was
off work and in receipt of Workers’ Compensation benefits. The Union was in contact with him in
connection with his pension. An attempt was made to place him in a position as merchandiser in
Stephenville but such a position was not available in Stephenville. Mr. Hill did not believe there was
any active grievance for Mi-. Snook.
Edgar Hill testified that the language of Article 13.04 was never discussed during negotiations
between Local 4 10 and the Employer. Article 13.04 was placed in the Collective Agreement when
the employees at the O’Leary Ave. plant were represented by Local 38 1. The same language was
contained in the 1986-1988 Collective Agreement signed by Local 3 8 1. Local 4 10 was established
for the O’Leary Ave. plant in 1989. Mr. Hill also testified that the Union’s position with respect to
James Murphy was that the Employer had a duty to accommodate Mr. Murphy in his attempt to
return to the workforce.
James Murphy testified that he is under the care of various medical doctors as a result of his
workplace injury and other health problems. He testified that he has vascular disease, the blood
disorder polycythemia, angina, high blood pressure, panic attacks and back problems. He testified
that his back problems were resolved five to six months prior to the hearing. He referred to a letter
fiom his family doctor, Doctor B. Drover stating that he could be evaluated by occupational therapy
for a return to work. The letter stated as follows:
RE: James Murphy
Would appreciate your seeing this man for an FCE.
He worked as a baker at Eastern Bakeries and injured his back in April ‘98. Shortly
thereafter he was dx’ed with coronary artery disease, peripheral vascular disease, and
polycythemia. He has had angioplasty and coronary artery shunting, aorta bifemoral
bypasses, and is followed by Dr. Scully for the above. His back is now better. He
also sees Dr. M. Hogan for anxiety related problems.
He never got back to his originaljob and due to some difficulties with that he now has
a lawyer working on the case, and his former employer is being sued. He’s been
advised it will help to know his current fbnctional tolerances, thus he is referred for
evaluation of same.
The Grievor testified that Dr. Drover had cleared him to return to work on an easeback program
working up to eight hours per day. Dr. Drover had informed him that it would not be dangerous to
his health to try an easeback program. The Grievor testified that he understood he needed medical
clearance in order to return to work on an easeback program. He had not received a medical
clearance prior to January, 2001. The Grievor testified that he believed he was unjustly terminated.
It costs him $300.00to $400.00 per month for drugs and he was no longer eligible for the group drug
plan when his employment was terminated. He believed he was discriminated against because other
employees had returned to work on easeback and were accommodated and he was not.
Patricia Slaney testified that her job was pan stacker but she had switched jobs with the Grievor
because he had difficulty caused by flour getting in his eyes when he worked as molder operator. The
molder operator was a higher paying position and after one year of working as a molder operator she
started to receive the higher rate of pay. She testified that the job duties of molder operator have not
changed f - m1998 up to the current date. The sanitation and other duties include keeping flour off
the floor, mopping the floor, cleaning other machines and bagging bread crumbs. She testified that
the Job Site Analysis prepared in July, 2000 contained a fair description of the job. She did not lift
the heavy side panels for cleaning, but held the table while two male employees lifted the side panels.
Robyn Thompson testified that after the second Job Site Analysis was completed in 2000, there was
no indication whether the Grievor could perform the duties. The Grievor’s eligibilityto make a claim
for long term disability benefits ended in October, 2000. The Employer removed the Grievor from
the seniority list so that the Employer could post the position. The Grievor’s position could not be
posted until it was vacant. The Employer determined there was no possibility the Grievor would
return to the position when WHSCC indicated he was not coming back to the workforce. The
Employer had no information that the Grievor’s back condition had recovered. The Grievor’s other
health problems did not have any effect on the Employer’s decision. The Employer gave
consideration only to the Grievor’s work related injury. There was no financial cost to the Employer
to keep the Grievor on the seniority list and not terminate his employment except for possible
vacation entitlement. Before the Employer would permit the Grievor to return to work, the Employer
wanted to be assured that he could safely perform the job, both for his own safety and the safety of
The Employer regarded the grievance as a claim of termination without just cause. There was no
clause in the Collective Agreement that prohibited discrimination on the grounds of physical disability.
The Grievor had made a complaint to the Human Rights Commission. The Arbitrator should decline
jurisdiction to deal with any alleged human rights violation and defer to the jurisdiction ofthe Human
Rights Commission. Article 3 did not have the effect of incorporating the Htman Rights Code into
the Collective Agreement. There was no basis upon which to read into the Collective Agreement any
ofthe substantiverights set out in the Human Rights Code. The Arbitrator did not have any authority
to apply the H14man Rights Code. The Grievor claimed he was discriminated against because he
could not remain as a nominal employee to avail of the health plan. The Grievor’s issue was not that
his employment was terminated without just cause. The Grievor alleged a failure of the duty to
accommodate by not allowing him to remain on the seniority list. The Employer submitted that the
Grievor was not treated differently from other employees who were absent from work for more than
104 weeks and were terminated. Article 13.04 recognizes that the Grievor could be terminated after
104 weeks if he was in receipt of Workers’ Compensation benefits. The Employer did not apply
Article 13.04 to mean that there was automatic termination after 104 weeks had elapsed. The
Employer considered the Grievor’s ability to return to work based upon inquiries made to the
Workplace Health, Safety and Compensation Commission. Relying upon information from the
Commission, the Employer determined that the Grievor would not return to the workforce. The
Grievor had not been seeking to return to the workforce. He was doing nothing about returning to
work and the Employer had to make inquiries to the WHSCC to determine his status. There was no
duty to accommodate the Grievor in the absence of a medical clearance to return to work. The
Grievor had the opportunity to identi9 any position and the only position he identified was molder
operator. There were two Job Site Analysis reports completed for the position. The first Job Site
Analysis did not reflect the sanitation and other duties required to be performed in the plant. The only
position identified by the Grievor was determined by the WHSCC not to be a job match. The
Employer had not rehsed to mod@ the duties of the position. The Employer was not required to
retain in employment an employee who is incapable of discharging his employment responsibilities
in a consistent manner. The Employer could terminate the Grievor’s employment because the
Grievor was not disentitled from receiving any vested benefit. The time limit to file a claim for long
term disability (“LTD”) benefits had expired and the termination of the Grievor’s employment did not
have the effect of disentitling the Grievor to LTD benefits. The Employer’s duty to accommodate
was not engaged without medical information. There was no medical information stating the Grievor
was cleared to return to work and therefore the inference could be drawn that he was not fit to return
to work. The was no denial of the Grievor’s seniority rights or the Union’s representation rights.
The Employer requested that the grievance be denied. In the event that any remedy was considered
by the Arbitrator, then, in the alternative, the only remedy that should be considered would be to
return the Grievor to the seniority list, with no order of compensation with the effect that he would
be eligible to return to work when supported by medical reports.
The Union submitted that the Employer had acted to take away the Grievor’s seniority rights and
recall rights and in violation ofthe Employer’s duty to accommodate. The Employer was prohibited
by Article 3 from discharging the Grievor in a discriminatory manner. Therefore the Arbitrator had
jurisdiction to apply the Hztman Rights Code. The Grievor should not be limited to pursuing a
complaint to the Human Rights Commission. He would not receive the benefit of Union
representation at a hearing of his human rights complaint because he had named the Union as a co-
respondent in the complaint. The Employer had interpreted Article 13.04 to mean there was
automatic termination after 104weeks had elapsed. However, the interpretation of Article 13.04was
subject to the Hziman Rights Code. Article 13.04 had not been the subject of collective bargaining
between the Employer and Local 410. The Employer has a duty to accommodate the Grievor
according to the test set down by the Supreme Court of Canada in B.C. (Public Service EmpIoyee
Rehtions Commissionj v. B. C. G.E. U. (“Meorin ”) [ 19991 3 S.C.R.3. The Employer could not rely
on the bona fide occupational requirement (BFOR) defence. The Grievor established aprimafacie
case of discrimination. He was physically disabled and the employer discriminated against him by
terminating his employment as a result of his absence fi-om work. An automatic termination clause
will be struck down as offending human rights legislation according to arbitral authority. The
Employer could not deny access to the just cause standard of termination. The Union’s request to
have the Grievor’s former position posted was never intended to have the effect that the Grievor’s
employment would be terminated. The Employer had not adequately explored the Grievor’s options
to return to work. When the Grievor asked about positions on the night shift he was informed that
the positions were filled. The Employer did not accept the first Job Site Analysis report and the
WHSCC reversed its position fi-om stating that there was a positive job match to stating there was
no positive job match. The Union disputed any change in position based on the second Job Site
Analysis report because there was no change in duties. The positivejob match should have remained
in effect. Patricia Slaney testified that the decrease in production had not changed the duties of
molder operator. If there was any change, the duties were easier now than when the Grievor had
occupied the position because there was no longer an overhead proofer. The Employer could have
accommodated the Grievor in the position of molder operator. There was no requirement for heavy
lifting. To keep the Grievor on the seniority list would not impose any hardship on the Employer.
The redress requested by the Union was that the Grievor be reinstated on the seniority list, that
Article 13.04be struck down as offending the Human Rights Code,that the Grievor be placed in the
position of molder operator to determine his capabilities and to continue to occupy that position
subject to his capabilities, and that the Employer pay full compensation to the Grievor.
The Grievor, James Murphy, has been off work and in receipt of Workers’ Compensation benefits
since April, 1998. He was in receipt of benefits on the date he was given notice of termination of
his employment on January 3, 2001. Although the Grievor was not actively at work since April,
1998, his name remained on the seniority list. The Grievor also continued to be eligible for coverage
under the Employer’s group health insurance policy. The Employer submitted that it terminated the
Grievor’s employment for the reason that he was incapable of returning to the workforce and the
termination was justified by Article 13.04.
Was the Grievor incapable ofreturningto the Employer’sworkforce? The Workplace Health, Safety
and Compensation Commission determined in May, 2000 that the Grievor was capable of returning
to work with the Employer and that there was a positive job match to the position of molder
operator, with modifications to the position. The Employer disputed the positive job match stating
that the Job Site Analysis performed in 1999 was incomplete because it did not include the additional
sanitation and other duties required of the position. The Union disputes that there were any change
in the duties and maintains that the WHSCC’s original determination of a positive job match was
correct. However, the WHSCC subsequently stated in a letter dated December 18,2000 that there
was no positive job match with the position of molder operator. The letter stated that the Employer
had confirmed there were no alternate positions available. Subsequent to the termination of his
employment, the Grievor has identified other positions that he believes he is capable of performing,
such as thrift store operator. The Employer maintains that other positions were not considered for
the Grievor prior to the termination ofhis employment, because the Grievor did not identifjl any other
positions that he felt he could perform at the time he was taken on a tour of the plant in 1999 and
asked to identifjl positions.
The authority to dismiss an employee who is incapable, as a result of bona fide injury or incapacity,
from performing duties in the workforce is discussed in Brown & Beatty, Canadian Labow
Arbitration at paragraph 7:3200as follows:
Arbitrators have not left employers without a remedy when they are faced with
employees who, as a result of some infirmity, incapacity or religious belief are unable
either to report for work on a consistent and regular basis or to perform the tasks
expected of them. They have recognized the employer’s right to insist on the benefit
of its bargain and to require the employee to render those services which the contract
of employment anticipates she will perform in return for her remuneration.
Although the rule may be otherwise, where an employee is entitled to substantial
benefits under the agreement or to claim protection under Human Rights legislation,
arbitrators generally have been unwilling to require employers to continue in
employment those who are incapable of discharging their employment responsibilities
in a consistent and adequate manner although at least one board has held that an
employer’s right to discharge for innocent absenteeism and an employee’s right to
LTD benefits are separate legal issues.
The assessment of an employee’s likelihood to perform duties in the workforce is discussed in the
Brown & Beatty text at paragraph 7:3210 as follows:
Thus, where there is clear evidence that the cause (or causes) of an employee’s illness
or incapacity has been or is in the process of being removed or cured, it has been held
that his past record notwithstanding, his prospects for future attendance are
sufficiently positive as to warrant his continued employment. In making this
determination, it should be noted, arbitrators are divided on the question of whether
the time for assessing the prognosis for the grievor’s future attendance is the time the
employer effected its decision to terminate him, or the subsequent date of the
arbitration hearing, or even some later date. Accordingly, an independent medical
assessment initiated by the employer should be carried out prior to discharge.
The authors of the Brown & Beatty text also discuss the circumstance where an employer may
terminate an employeewho is not expected to return to productive employment, at paragraph 7:3220,
The second circumstance in which arbitrators have affirmed an employer’s right to
terminate or alter the employment status of an employee suffering from a physical or
mental illness or infirmity, or even from “personality/adjustment problems”, arises
where the disability is so severe that it can reasonably be concluded either that there
is little or no likelihood that in the foreseeable future the employee will recover
sufficiently to allow him to return to productive employment or, even if it is
anticipated that he will recover to such an extent that he will be able to return to
work, that it cannot reasonably be expected that he will be able to do so without
endangering the person or property of himself, his fellow employees or his employer.
Here, the essential issue is whether the employee’s disability or incapacity is so severe
as to irreparably breach the employment relationship and deprive it of its viability. In
these circumstances, in an effort to balance the interests of the employee in
participating in a meaningfbl and productive work life against the interests of the
employer in being able to secure a competent and able workforce, and in protecting
the person and property of his other employees and customers, arbitrators will
examine the nature of the infirmity, all relevant medical records and reports, the
nature of the work available, and the work environment, in order to determine
whether the employee’s return to work would reasonably accommodate these
competing interests. And at least one arbitrator has ruled that where there was
minimal financial cost to the employer of maintaining a disabled employee on its rolls
following a work-related injury, the employee’s interest in job security clearly
overrode the employer’s interests.
The evidence is not satisfactory to establish that the Grievor was incapable of returning to the
Employer’s workforce. This finding may be based upon the information available on January 3,2001,
or upon the additional information that has been presented at the hearing. There was no indication
that inquiries were made to the Grievor to determine his current medical condition as of January 3,
2001. There is no evidence that the Employer made any inquiry to the Grievor prior to January 3,
2001 to determine his response to the statement from the WHSCC that there was no positive job
match with the position of molder operator. The Employer relied upon the letter fiom WHSCC dated
December 18, 2000. However, with respect to alternate positions, the WHSCC relied upon
information provided by the Employer that there were no alternate positions. The WHSCC reversed
its earlier conclusion of a positive job match with the position of molder operator. Correspondence
fiom the WHSCC in May, 2000 had stated a contrary conclusion that there was a positive job match
with the position. Upon review of the two Job Site Analysis reports, the Arbitrator does not find any
significant difference between the first Job Site Analysis report completed in 1999 and the second Job
Site Analysis report completed in 2000. The Employer maintains that there were additional sanitation
and other duties omitted fiom the first report. However, there was no clear explanation why the
WHSCC reversed its original conclusion that there was a positive job match. The Grievor testified
that he was waiting for clearance from his doctor before returning to work. The Employer should
have given the Grievor an opportunity to provide a current medical assessment prior to the
termination of his employment, especially given the conflicting conclusionsf o WHSCC. However,
there is no evidence that such an opportunity was provided to the Grievor. Also, the letter from
WHSCC states that the Grievor is capable of a work day tolerance of 8 hours at the light level of
strenousness. Even assuming there was no positive job match with molder operator, the Grievor
should have been given another opportunity to identie alternate positions. He had not had such an
opportunity since the summer of 1999. The Arbitrator may also consider the medical report prepared
after the termination of employment and presented at the hearing. A letter from Dr. Drover, the
Grievor’s medical doctor, stated the Grievor could return to work on an easeback basis at which time
his capabilities would be firther assessed. This additional information does not support a finding by
the Employer that the Grievor was incapable of returning to the workforce. Therefore on the basis
ofthe information available to the Employer prior to January 3,2001, or on the basis of the additional
medical information presented at the hearing, the Employer did not have just cause to terminate the
Grievor’s employment on the grounds that he was incapable of returning to the workforce.
The Employer also relies on Article 13.04 as justification to dismiss the Grievor fi-om employment.
Article 13.04 states that an employee receiving Workers’ Compensation shall not be dismissed
because of their disability until a period of 104 weeks has elapsed. Article 13.04 does not state that
an employee shall be terminated fi-om employment after the period of 104 weeks has elapsed.
However, the Employer’s letter of termination suggests that it relied on the expiry of 104 weeks in
accordance with Article 13.04. What is the correct interpretation of Article 13.04? An article in a
collective agreement that provides for automatic termination of employment or automatic loss of
seniority following absence from employment as a result of sickness or disability, may be found to
be null and void as a result of a conflict with Human Rights legislation. (See Brown & Beatty,
Canadian Labozrr Arbitration, paragraph 7:3210). For example, in Re Maple Leaf Meats Inc. and
U.F.C.W. (2000) 89 L.A.C. (4*) 18 (Tims) an automatic loss of seniority clause was struck down as
violating the Ontario Human Rights Code on the basis that it infringed the right to have access to the
“good and sufficient cause” standard for termination of employment and discriminated on the grounds
The Arbitrator has considered whether the Hi4mnnRight.sCode,R.S.N, 1990, c. H-14 has any effect
on the current dispute. The relevant provisions of the HiJman Rights Code are as follows:
2. In this Act
(1) “physical disability” means any degree of infirmity,
malformation or disfigurement of the body suffered by a
person as a result of injury, illness or birth defect, and includes
a handicap resulting from epilepsy, paralysis, lack of co-
ordination, amputation, blindness, deafness, muteness or
reliance upon a dog guide, a wheelchair, a cane or crutch or
other remedial appliance or device.
9. (1) An employer, or a person acting on behalf of an employer, shall not
rehse to employ or to continue to employ or otherwise discriminate
against a person in regard to employment or a term or condition of
employment because of
(a) that person’s race, religion, religious creed, political opinion,
colour or ethnic, national or social origin, sex, marital status,
physical disability or mental disability; or
(b) that person’s age, if that person has reached the age of 19
years and has not reached the age of 65 years.
but this subsection does not apply to the expression of a limitation,
specification or preference based on a good faith occupational
How should Article 13.04 should be interpreted to be consistent with the Human Rights Code? An
interpretation of Article 13.04 that would have the effect that the Employer may terminate
employment solely on the grounds of absence from work receiving Workers’ Compensation benefits
after a period of 104 weeks has elapsed could amount to discrimination contrary to Section 9 of the
Hirmcm Rights Code. The denial of the Grievor’s right to challenge the termination of employment
on the basis of the “just cause’’ standard would effectively deny access to other provisions of the
Collective Agreement and potentially infringe the Hiiman Rights Code. Where there is more than one
reasonable interpretation of a collective agreement provision, an interpretation that conflicts with a
statute should be rejected in favour of an interpretation that does not conflict with a statute (Palmer
and Palmer, Collective Agreement Arbitration in Canada, pages 128 to 130). It is not necessary to
find Article 13.04 null and void. Article 13.04 may be interpreted so that it does not conflict with the
Hirman Rights Code. The Arbitrator interprets Article 13.04 to mean that termination of
employment within the period of 104 weeks is prohibited. Such an interpretation does not conflict
with the Human Rights Code. However, to avoid any conflict with the Human Rights Code, Article
13.04may not be interpreted to mean that absence from work after a period of 104weeks has elapsed
is a ground for termination of employment.
The letter of dismissal advises the Grievor that his employment is terminated “as a result of your
absence from work exceeding 104 weeks as per Article 13.04 of the Collective Agreement”. The
wording used in the letter of dismissal suggests that the reason for the Grievor’s termination of
employment was the fact of his absence fiom work exceeding 104 weeks. However, as stated above,
Article 13.04 may not be used as a ground for termination of employment following absence fiom
work for a period of 104 weeks. The Employer submits that the wording of the letter does not limit
the grounds upon which the Employer may rely to terminate the Grievor’s employment to absence
fkom work exceeding104 weeks and that the Employer is not precluded fiom relying upon the ground
of incapacity to return to the workforce. It is unnecessary to decide whether the wording ofthe letter
restricts the grounds for termination upon which the Employer may rely. The Employer has not
established just cause for dismissal on either the ground of incapacity to return to the workforce or
the ground of absence from work for a period in excess of 104 weeks.
The Arbitrator has considered arbitral authority to the effect that an employer is not permitted to
dismiss an employee for nonculpable absenteeism where the effect is to deprive an employee of access
to a negotiated benefit. This issue was considered in Re British Colmbia Teachers ’Federationand
Union of Teachers’FederationEmployees (1997) 62 L.A.C. ( 4 ~ 209 (Laing). In that case it was
found that the grievor, who was in receipt of LTD benefits, had no prospect of returning to work.
The grievor was totally disabled from performing any work. On the facts of that case there was no
denial of a negotiated benefit and the Employer had cause to dismiss for nonculpable absenteeism.
On the facts of the present case, the termination of the Grievor’s employment has denied access to
a negotiated benefit, in particular his seniority rights and his right not to have discriminatory action
taken against him. The Grievor has the right not to lose seniority rights except in accordance with
Article 9.08. Also, Article 3 of the Collective Agreement states that the Employer may not act in a
discriminatory manner in the discharge of an employee. The reference to “discriminatory or
unreasonable exercise of such functions” in Article 3 .O1 has the effect of incorporating the relevant
sections of the H14man Rights Code into the Collective Agreement. The result is that the Employer’s
duty not to discriminate against the Grievor on the grounds of physical disability, as set out in Section
9 of the Human Rights Code, is incorporated into the Collective Agreement and subject to
enforcement through the arbitration procedure. To the extent that Section 9 of the Human Rights
Code includes a duty to accommodate, such a duty is also incorporated into the Collective Agreement
by Article 3. It is unnecessary to determine for the purpose of this Award whether there has been any
violation of the Grievor’s rights under the Human Rights Code. It is sufficient at this stage of the
proceedings to determine that the Grievor has a negotiated benefit, which is the incorporation of
Human Rights Code into the Collective Agreement, and the effect of dismissing the Grievor from
employment, would have the effect of denying his right to grieve any failure of the Employer to
comply with any statutory duty to accommodate him in his employment.
The Employer did not have just cause to terminate the Grievor’s employment. The appropriate order
is to reinstate the Grievor to the status of employee that he held on the date of termination of his
employment. At that time the Grievor was an employee on the seniority list who was not actively at
work. It would not be appropriate to order the Employer to place the Grievor in a specific position
in the workforce on the basis of the evidence presented. The Grievor’s return to the workforce will
be subject to medical clearance. Therefore, the Employer shall be ordered to reinstate the Grievor
to his former status with effect from the date of the termination of his employment in January, 2001.
The Grievor was not in receipt of wages on the date of the termination of his employment. The
Arbitrator does not have sufficient evidence to conclude that the Grievor would have returned to the
workforce and earned income between January 3,2001 and the date ofthe Award. A medical report
dated May 11,2001 suggests that the Grievor was fit to return to work on an easeback basis. The
Arbitrator can only speculate as to what would have been the outcome of an easeback program.
There is insufficient evidence to support an order for compensation representing wages or loss of
income. The Grievor testified that upon termination of his employment he lost the benefit of the
group health plan. The Grievor may be entitled to compensation as a result of the fact that his group
insurance benefits were terminated upon the termination of his employment. The Arbitrator will
retain jurisdiction to settle any issue of compensation related to group insurance benefits.
The Employer did not have just cause to terminate the Grievor’s employment. It is ordered that the
Grievor be reinstated as an employee on the seniority list who is not actively at work with effect fi-om
the date of his termination in January, 200 1. There is no order of compensation representing wages
or loss of income. The Arbitrator retains jurisdiction to settle any issue of compensation related to
group insurance benefits.
DATED at St. John’s this 9* day of January, 2002.