Worker was scheduled for surgery
A Canadian Pacific (CP) conductor who had been off work due to a medical condition abruptly had his employment file closed by the company.
David Danchilla was hired by the company in 1988 and had to leave work on March 1, 2012.
But on Aug. 24, 2015, CP decided to close his file and effectively terminate Danchilla’s employment, arguing undue hardship.
The company had been receiving regular updates on his condition while he was at home, despite having to occasionally coerce him to do so.
During his time off, Danchilla underwent several surgeries and it was expected he could eventually return to work full-time but in an accommodated fashion.
Various open positions within the company were investigated but none were judged by CP to be suitable for Danchilla to return to work.
In April 2015, a supervisory position was floated as a potential landing spot for his return to full employment.
This was eventually denied for unspecified reasons.
In June, the company suggested Danchilla work as a flagger, but he declined that possibility because of the hours of work that were proposed.
The union, Teamsters Canada, argued that CP was not open to modifying the hours of work and this prevented Danchilla from being amenable to the flagging job.
It said the company violated the collective agreement under the workplace accommodation policy and the Canadian Human Rights act.
On July 16, 2015, the company wrote to Danchilla informing him his employment file was being terminated because “no suitable open positions were found during the time he had restrictions.”
Danchilla countered and told the company he would try to increase the amount of hours he could work; the company responded by requesting further medical information to be provided by Aug. 15.
The medical report provided said Danchilla could return to work but he would have to be accommodated with a graduated schedule.
It further said he was scheduled for surgery in September and this could further facilitate a full-time return to active duty.
But when the company decided to close his file, the letter said “there is no complete recovery expected in the foreseeable future.”
Arbitrator Graham Clarke upheld the grievance and ordered Danchilla reinstated immediately. “CP has not demonstrated, despite its multiple bona fide efforts, that it had reached the point of undue hardship.”
While Danchilla was lackadaisical in releasing his medical information to the company during his time away from work, this could not be considered a determining factor in the case for undue hardship, said Clarke.
“While Danchilla did not assist his situation at times by being slow to provide updated medical information, it does not seem unreasonable for an employer to wait an additional evaluation period when an employee is scheduled for surgery. While the overall length of an absence is clearly relevant, so are pending surgeries,” he said.
The company simply decided Danchilla was unfit for duty but it did not provide a valid reason, according to Clarke.
“CP has not demonstrated why it concluded it could not accommodate Danchilla. Why were other positions deemed unsuitable? What possible modifications to positions were contemplated to evaluate if Danchilla could perform them? Was any consideration given to bundling duties in order to provide an opportunity for accommodated employment?”
Reference: Canadian Pacific Railway Company and Teamsters Canada Rail Conference. Graham Clarke — arbitrator. Chris Clark for the employer. Ken Stuebing for the employee. Nov. 4, 2016.
