Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS As part of the accommodation process, CP required the worker to provide a functional abilities form on a regular basis to support his continued absence. In May 2014, CP's occupational health services (OHS) department requested an updated functional abilities form. On May 12, CP wrote to the worker asking him to have his doctor fill out the form as requested. It also stated that if he didn't provide the form, his employment record might be closed. CP copied the Teamsters Canada Rail Confer- ence (TCRC), its union, on the re- quest to keep it informed. The worker complied with the request and submitted the updat- ed form shortly thereafter. A few months later, in October, the OHS department requested a new functional abilities form from the worker. The department left him two messages on his voice- mail, but the worker didn't re- spond. OHS followed up with a regis- tered letter a couple of weeks later advising the worker that his file might be closed if he didn't pro- vide the updated form. Updated medical information stopped coming in The worker signed for the regis- tered letter on Nov. 15 — confirm- ing he had received it — but didn't contact the OHS department. OHS contacted TCRC to see if it had any information about the worker, but the union's local chairperson didn't have any new information. The chairperson said he hadn't heard from the worker, but thought he might be taking some schooling. CP heard nothing from the worker for the next few months, so in May 2015 it started a process under the collective agreement that required the worker to attend an investigation regarding his continued absence. However, the worker failed to attend and CP sent him an investi- gation letter on June 3, once again requesting his attendance. The worker's silence contin- ued, so CP sent him another let- ter by registered mail in late June, this time forwarding a copy to the TCRC local chairperson and gen- eral chairperson. The worker failed to respond to these latest letters, so CP sent him a final letter dated July 8, forward- ing a copy to TCRC. This letter stated that the worker's employ- ment record with the railway had been closed. TCRC filed a complaint, claim- ing CP's use of the collective agreement provision regard- ing investigations to require the worker to attend a meeting turned the situation from an accommo- dation case into a disciplinary ter- mination. As a result, CP failed to accommodate the worker. In addition, TCRC said it hadn't been included on all of the corre- spondence sent to the worker. The union also said that the worker had been frustrated over the requests for updated functional abilities forms and he had been un- dergoing employment insurance retraining since September 2014. The arbitrator agreed that CP's use of the collective agreement made the nature of the situation less clear, but found it remained an accommodation case. CP's cor- respondence always referred to closing the worker's employment file and never to any disciplinary measures or outright termination of employment. In addition, the subject of the letters was always about a new functional abilities form for the purposes of continuing the ac- commodation. The main reason CP used the collective agreement was to get an explanation from the worker as to why he stopped providing medical information, said the arbitrator. The arbitrator also found that while CP didn't include TCRC on all correspondence to the worker, the union was aware of the work- er's failure to provide updated in- formation fairly early on. In addition, CP sent a copy of the last investigation letter in late June to TCRC, so it had of- ficial notice of what was going on before CP sent the final letter regarding the closure of the work- er's file in July. The arbitrator found the work- er's feelings of frustration and his employment insurance retraining program didn't justify his "com- plete failure to respond to CP's multiple requests for information." The arbitrator determined that CP was justified in closing the worker's employment file for failure to provide medical infor- mation to justify his continued ab- sence from work. "The duty to accommodate does not apply only to the employ- er. The employee has significant obligations as well," said the arbi- trator. "An employee loses the right to maintain an employment re- lationship, despite providing no services, by failing to provide the important medical information and updates an employer requires when managing an accommodat- ed work scenario." For more information see: • Canadian Pacific Railway and Teamsters Canada Rail Con- ference (Lunnin), Re, 2016 Car- swellNat 6522 (Can. Railway Office of Arb. & Dispute Res.). < Both pg. 1 Worker failed to reply to employer requests for 8 months Photo: Syda Productions (Shutterstock) CP was justified in closing the worker's employment file for failure to provide medication information.

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