Worker suffered 18 injuries over 26 years
MARCEL ROY was fired by Glencore Canada after years of excessive absenteeism.
Roy, a welder for the New Brunswick-based employer, seriously injured his back shortly after he began working for the company in 1983. Following the injury Roy was dogged by severe back pain that periodically affected his ability to work.
In 1990, he was terminated for excessive absenteeism. Though he was reinstated in 1992, Roy’s back problems continued to cause him to be absent from work.
Eventually, Roy ceased his work as a welder altogether, taking courses in computer programming for several years before returning as a welder in 2006.
In 2011, Roy found it impossible to continue his work as a welder, so he was accommodated with a position as an attendant in the employer’s main office with permanent restrictions.
He continued to be plagued by back issues, however, and following several more absences, Roy was accommodated once again to work in the employer’s lab.
When the work in the lab proved to be too strenuous for Roy, the employer undertook an examination of all of its bargaining unit positions to target potential accommodations.
It was found Roy was incapable of performing any jobs with the employer and his employment was terminated on the basis of “non-disciplinary frustration of contract.”
Union files grievance
Roy’s union — the United Steelworkers Local 7085 — grieved the dismissal, alleging the employer failed to accommodate him to the point of due hardship.
The union argued the employer clearly made its decision to dismiss Roy because of his physical disability, and its efforts to accommodate him were not made in good faith.
The union further argued that if reinstated, Roy would not need to be accommodated for a long time as he would soon be eligible for a pension under the parties’ collective agreement.
The employer, however, argued the grievance should be dismissed because Roy was in fact accommodated as required under the law.
Roy worked as a welder for the company for 26 years and suffered 18 back injuries in that time. His total time off — not including the more than eight years he spent studying computer programming — was 416 weeks or the equivalent of eight years.
The employer accommodated Roy 13 times during his tenure with the company.
Arbitrator agrees
Arbitrator Guy Couturier agreed with the employer, concluding it acted in good faith in its dealing with Roy. Couturier was further satisfied the employer made every reasonable effort to provide Roy with meaningful work that was suitable to his limitations and it did indeed attempt to accommodate him to the point of undue hardship.
Furthermore, Couturier said, “there appears no likelihood, based on the experience of 2011 through to 2014, that the pattern of absence will change, nor is there any probability that back pain will improve or even be controllable.”
As a result, the grievance was dismissed.
Reference: Glencore Canada Corporation and the United Steelworkers Local 7085. Guy G. Couturier — arbitrator. Jamie Eddy for the employer, Brenda Comeau for the union. Sept. 30, 2015.
