Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS employee to develop medical lim- itations in the line of work. The health questionnaire in- cluded questions on whether the employee had any previous claims for disability or workers' compensation, functional limita- tions, muscle problems, or joint diseases. Chouinard answered "no" to all of these questions. The questionnaire included a warning that any false informa- tion or failure to declare a past or present medical condition would be "subject to action … up to and including dismissal." One year before he joined the Algoma Central Railway, Choui- nard worked for a subcontrac- tor of a mine. One day, he expe- rienced pain in his upper back and neck, though he didn't file a workers' compensation claim. He took two weeks off — which was part of a shift rotation in which he worked 14 days on and then had 14 days off. The pain eventually cleared up and Chouinard didn't experience any further serious problems, al- though he sought chiropractic treatment. Over the first three years of his employment with Algoma, Ch- ouinard received a three-day sus- pension for not filling out a crane log as required by the drivers' manual, and two written repri- mands — one for the same infrac- tion and another for not backing up his foreman. Previous injury revealed In February 2016, Chouinard hurt his shoulder while swinging a pick axe to break up ice on a guardrail at the rail yard. After reporting the injury to his supervisor, he com- pleted a report of injury form for the Ontario Workers' Compensa- tion Board. He indicated on the form that he had a prior-related work- ers' compensation claim and the shoulder first caused him trouble "with my previous claim." Algoma investigated the in- jury, including Chouinard's health questionnaire that he had filled out after being hired. In an interview, Chouinard said he had previously injured his shoulder working in the mine in 2011 and there was a workers' compensation claim. He also said he had sought treatment for the injury and had taken two weeks off Algoma determined that Ch- ouinard had misrepresented his medical history, as he had not re- vealed the back and neck injury he suffered while working at the mine. The company terminated his employment for giving false infor- mation in a way that amounted to a breach of trust. Chouinard's union — Team- sters Canada Rail Conference — challenged the dismissal, arguing Chouinard did not in fact have a previous disability or workers' compensation claim and he was in good health when he filled out the health questionnaire for Algoma, so he wasn't untruthful. Arbitrator Andrew Sims noted that while Chouinard didn't have a previous claim, according to his answers on the injury reporting form and in his interview, he be- lieved he did. He only later found out he didn't have an official claim, which meant he wasn't upfront with what he understood to be the facts at the time. Chouinard didn't actually draw any benefits or take any days off because of his previous injury, and all his pain had passed by the time he filled out the questionnaire. In addition, he worked successfully for more than four years before the 2016 injury. However, Chouinard's failure to disclose the earlier injury ham- pered the purpose of the ques- tionnaire and Algoma's hiring process. Sims found Chouinard should have mentioned his previous in- jury. Though he didn't have a claim and the time off he took following the injury was part of his normal shift rotation, he sought chiro- practic care, which indicated the injury was noteworthy enough that it could potentially affect his ability to function as a track la- bourer. Since the purpose of the health questionnaire was to allow Al- goma to assess the facts of an employee's medical status, the previous injury should have been disclosed, said Sims. Accurate information important Sims also found that Algoma "de- voted significant resources" to finding qualified employees, as it had experienced a large turnover of workers in recent years. The health questionnaire was one tool the company used to ensure it was hiring "the right people for the right jobs." When someone doesn't prop- erly fill out the questionnaire, it causes not only potential prob- lems for Algoma, but also may give an unfair advantage for scarce positions that are available, said Sims. Sims determined there was no reason for confusion on Ch- ouinard's part and the previous injury should have been "fresh in his mind" when he was hired by Algoma, given the accident, his pain, and his treatment had all happened in the past year. This "deliberate under-report- ing" of his medical history, com- bined with his disciplinary history of one suspension and three repri- mands in his three years with Al- goma, gave the railway sufficient cause for dismissal. Chouinard's grievance was de- nied and his termination was up- held. For more information see: • Algoma Central Railway and Teamsters Canada Rail Confer- ence (Chouinard), Re, 2016 Car- swellNat 6497 (Can. Railway Office of Arb. & Dispute Res.). < Old pg. 1 Company used form to hire 'right people for the right jobs' Photo: kurtjurgen (Shutterstock) Chouinard's previous injury should have been "fresh in his mind."

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