Employer also claimed refusal led to job abandonment
A railway company did not have the right to demand an independent medical examination (IME) over concerns it had over a worker’s behaviour, according to an arbitrator. The arbitrator also ruled that the worker’s refusal to attend an IME wasn’t an abandonment of his position.
The worker was an employee of Via Rail, the passenger train service, in the safety-sensitive position of locomotive engineer. He was hired around 1997.
In January 2022, Via Rail placed the worker on an administrative leave of absence for not getting vaccinated against COVID-19, as per company policy. He was terminated in June that year and then reinstated a year later after being cleared for work medically and professionally.
Over time, the Via Rail issued several verbal warnings to the worker that he should perform tasks correctly.
Employer concerns about worker’s behaviour in safety-sensitive position
In September and October 2023, Via Rail identified several behaviours by the worker that raised concerns, including forgetting work material, failing to protect an assignment because of a mix-up in dates, and not wearing personal protective equipment (PPE), and releasing train brakes while employees were working under the train.
The company investigated the incidents and its concern grew due to certain strange comments he made. He also had a phone call from a manager in which the latter made a general reference to security concerns.
On Oct. 30, the company held the worker out of work with pay and told him he would be able to return after being cleared in an independent medical exam (IME). Over the following three months, investigations and correspondence focused on both disciplinary matters and repeated demands for an IME. The worker didn’t attend an IME and repeatedly explained that he had no issues with it, but he wanted Via Rail to prove why it wanted the assessment before he went.
The worker remained off work and Via Rail administratively closed his employment file on Jan. 29, 2024, for abandonment of his position.
IME a privacy violation: union
The union grieved, arguing that the worker’s behaviour wasn’t significant and didn’t justify a privacy violation such as an IME, pointing to a statement by the worker’s physician that he had never had concerns about the worker’s mental health. It also argued that the worker didn’t abandon his position, as the worker remained in contact with the company during the process.
The arbitrator found that the first three incidents cited by Via Rail - forgetting work material, failing to protect an assignment due to a date mix-up, and failing to wear PPE - were grounds for concern, but only at a low level. These incidents could indicate a lack of attention to detail or difficulties with reintegration to work, but did not, in themselves, generate reasonable concern about the worker’s health, the arbitrator said.
The incident where the worker released brakes while employees were working under the train could be more serious, but Via Rail didn’t investigate it or issue discipline, so it couldn’t be considered seriously concerning afterwards, said the arbitrator.
The arbitrator also noted that while the worker required frequent reminders and verbal warnings, and the investigations took a strange turn, the evidence didn’t reveal incoherence or confusion by the worker.
“The Company did have at least some grounds for concern, given the three incidents and 30 demerits that had been given in the space of one month,” said the arbitrator. “It does not seem reasonable, however, that the level of concern would be high.”
Less-intrusive options to IME
The arbitrator also found that Via Rail wasn’t entitled to request an IME, as “employers must have compelling reasons to justify a medical or psychiatric assessment,” and less intrusive options must first be explored. Via Rail may have had some concerns, but it didn’t clearly outline them in writing and the worker’s physician had never raised concerns about his mental health or cognitive capacities, said the arbitrator.
Via Rail didn’t consider the worker’s privacy rights and that an IME by a doctor selected by the company would be a substantial intrusion, the arbitrator said.
As for Via Rail’s assertion that the worker abandoned his position, the company bore the burden of proof, said the arbitrator, noting that the worker and the company were “in almost constant communication with one another from Nov. 15, 2023, until Jan. 29, 2024.”
“There was clearly a dispute about the refusal to accept an IME, but the [worker] and his union cannot be said to have failed to communicate,” said the arbitrator in determining that the worker didn’t abandon his position.
Via Rail was ordered to reinstate the worker without loss of seniority and with compensation for lost wages and benefits, less mitigation income he earned. The company retained the right to require the worker to demonstrate fitness to return to work, which could include a properly requested IME if serious concerns remained and necessary steps were taken before making such a request, the arbitrator said in allowing the grievance.
