Tolko Industries Limited (High Level Lumber Division) Applicant - v. -, 2013 ABQB 169

Court of Queen ’ s Bench of Alberta Citation: Tolko Industries Limited v. Industrial, Wood and Allied Workers of Canada, Local 1-207, 2013 ABQB 169 Date: 20130318 Docket: 1203 13606 Registry: Edmonton Between: Tolko Industries Limited (High Level Lumber Division) Applicant - and - Industrial, Wood and Allied Workers of Canada, Local 1-207 (Winsor Grievance) Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Alleging unreasonableness and error, the employer, Tolko Industries, asks for judicial review of the decision of an arbitrator in which the arbitrator found that, despite excessive innocent absenteeism by the union member, Gordon Winsor, and despite the absence of any evidence that Mr. Winsor ’ s attendance might improve in the foreseeable future, Tolko had a duty to further accommodate Mr. Winsor to the point of undue hardship by obtaining a current functional assessment and by taking that assessment into account in accommodating the employee.

Tolko further alleges that by choosing remedies which amend the collective agreement and infringe management prerogatives and traditional rights, the arbitrator lost jurisdiction. [ 2 ] The application for judicial review is denied. The single standard of review of the arbitrator ’ s entire decision is

[2] The application for judicial review is denied. The single standard of review of the arbitrator’s entire decision isreasonableness. No standard of correctness applies to the arbitrator’s decision that a current functional assessment was required: thearbitrator’s task was not to answer a narrow question, such as whether there was medical support for a further functional assessment, butrather to answer a much broader question, such as whether, in all the circumstances, the termination was fair.

The arbitrator’s decision onthat point was obviously not irrational; in his lengthy decision, the arbitrator outlined his reasons for coming to his conclusion in anintelligible way.

Moreover, the arbitrator’s decision represents one of the possible outcomes which can be justified on the facts and in thelaw: in situations of innocent absenteeism, the law requires an employer to accommodate an employee so the employee can do his work,and, on the facts, given the broad range of medical issues faced by the employee, it was reasonable to undertake a new functionalevaluation to determine if the employee could work and if he could return to real work in a reasonable time. [3] The arbitrator’s decision to remain involved in the accommodation process was not an usurpation of management.

Anarbitrator has the right to construct practical solutions to a labor problem. In the circumstances here, which were “close to the line” as thearbitrator himself found given the lengths to which the employer had already gone to accommodate the employee, the continuedinvolvement of the arbitrator was a reasonable, neutral, mechanism designed by the arbitrator to ensure, on the one hand, that theemployee made reasonable efforts to do the work his employer was entitled to have performed, and, on the other, that the employer continued to properly accommodate a disabled employee.

The exercise of that power was well within the arbitrator’s remedial powersand was reasonably exercised. Cases and authority cited [4] By Tolko Industries Ltd.: Dunsmuir v. New Brunswick, [2008] S.C.C. 9 (QL); Cuff v. Edmonton School District No.7, 2009ABCA 6 (QL); Alberta v. Alberta Union of Provincial Employees, 2008 ABCA 258 (QL); United Assn. of Journeymen andApprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v.

Bantrel Constructors Co., 2009ABCA 84 (QL); Re International Woodworkers of America, Local 1-118 and Sooke Forest Products Ltd. (1968), (BC CA), 1 D.L.R. (3d) 622 (B.C.C.A) (QL); Regina v. Board of Arbitration, Ex parte United Steelworkers of America, Local 4752, (ON SC), [1970] 1 O.R. 99-109. (QL); R. v. Skogman, (SCC), [1984] 2 S.C.R. 93 (QL); FoothillsProvincial General Hospital v. United Nurses of Alberta (UNA), Local 115 (1993), (AB KB), 140 A.R. 321 (QL);H.F.I.A., Local 110 v. C.G.W.U., Local 92 (1986), 1986 ABCA 142 , 70 A.R. 228 (CA) (QL); AltaLink Ltd. v.

United UtilityWorkers' Assn. (Merrell Grievance), [2012] A.G.A.A. No. 16; Central Okanagan School District No. 23 v. Renaud, (SCC), [1992] 2 S.C.R. 970 (QL); Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec,

section locale 2000, 2008 SCC 43 , 2008 S.C.C. 43 (QL); Callan v. SuncorInc., 2006 ABCA 15 (QL); Colonial Furniture (Ottawa) Ltd. v. Retail, Wholesale Canada - Canadian Service Sector, Division of United Steelworkers of America, Local 414 (Labrecque Grievance) (1995), 47 L.A.C. (4th ) 165 (Ont. Lab. Arb.) (QL); LabourRelations Code RSA 2000, c. L-1, s. 142 (1); Jones & de Villars, Principles of Administrative Law (2004 4th ed.); National Automobile,Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 88 v. CamiAutomotive Inc., [1997] O.J.

No.4545 (QL); Université du Québec à Trois-Rivières v. Larocque, (SCC), [1993] S.C.J. No. 23 (QL). [5] By the Respondent Union: Dunsmuir v. New Brunswick

(2008) S.C.C. 9; Hydro-Québec v. Syndicat des employé-e-s detechniques professionnelles et de bureau d'Hydro-Québec,

section locale 2000 (SCFP-FTQ) (2008), 2008 SCC 43 , 2 S.C.R.561; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal (2007),2007 SCC 4 , 1 S.C.R. 161; Construction Labour Relations v. Driver Iron Inc. (2012), 2012 SCC 65 , S.C.J. No. 65;Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720,2009, ABQB 604; Labour Relations Code, R.S.A. 2000, c. L-1; Nor-Man Regional Health Authority Inc. v.

Manitoba Association ofHealth Care Professionals (2011), 2011 SCC 59 , 3 S.C.R. 616; Newfoundland and Labrador Nurses' Union v.Newfoundland and Labrador (Treasury Board) (2011), 2011 SCC 62 , 3 S.C.R. 708; Voice Construction Ltd. v. Construction& General Workers' Union, Local 92 (2004), 2004 SCC 23 , 1 S.C.R. 609; Alberta Union of Provincial Employees vLethbridge Community College 2004 SCC 28. Appendix A: Extracts from the arbitral award (The full arbitral award is available on LexisNexis under the citation [2012] A.G.A.A. No. 68 ) 1. Background [6] This litigation commenced with the filing of a grievance by Mr.

Winsor, an employee of Tolko Industries Limited, in whichMr. Winsor alleged that his termination constituted a violation of the collective agreement, and was unfair, unjust, arbitrary,discriminatory, without cause and improper. The arbitrator’s task was, therefore, to determine if the termination was unfair.

[ 7 ] The background facts are fully set out in the arbitrator ’ s 50 page decision. Appendix A to these reasons includes only those facts which are necessary for judicial review purposes. [ 8 ] It is obvious from the arbitrator ’ s award that he appreciated that Mr. Winsor ’ s level of absenteeism significantly exceeded the plant average and that the employer had made significant efforts to accommodate Mr. Winsor. It was also obvious that the only comprehensive return-to-work assessment of the employee had been completed at the Millard Health Centre in 2006 and focussed on the employee ’ s hernia problems.

Finally, it was obvious from the medical absence notes and forms completed by the employee over the years and presented in evidence at the arbitral hearing that Mr. Winsor suffered from medical problems other than hernias, such as depression, migraines, disc and back deterioration and gastrointestinal problems. 2. Standard of review [ 9 ] Tolko argues that two standards of review are applicable here. As to the first, it asserts that the arbitrator made an error of law when he made a finding of fact that Mr.

Winsor ’ s medical status situation needed updating in the absence of any expert evidence supporting that finding.

Tolko maintains that this error of law should be reviewed according to correctness. [ 10 ] As to the second, Tolko acknowledges that reasonableness is the appropriate standard of review relating to what it characterizes as unreasonable fact findings for which there was evidence, the arbitrator ’ s misinterpretation of the duty to accommodate in the circumstances here, and the arbitrator ’ s unreasonable choice of remedy. [ 11 ] The union argues that the only standard of review applicable here is that of reasonableness. [ 12 ] I have concluded that the single standard of review of the arbitrator ’ s entire decision is that of reasonableness.

In coming to that conclusion, I rely on the fact that what the arbitrator was asked to do was to provide an answer to the general question - was Mr. Winsor ’ s termination unfair? - not to a specific question - did any medical practitioner recommend a new assessment of Mr. Winsor? [ 13 ] In coming to the conclusion that the arbitrator did not make a finding of fact for which there was no evidence, thereby committing an error of law, I begin by taking into account what the arbitrator was asked to do.

The grievance which started the procedure, found at Tab 30 of the return, alleges that the termination was “ unfair, unjust, arbitrary, discriminatory, without cause and improper ” .

The collective agreement between the parties, which is also included in the return, states that disputes regarding the discharge of an employee which the parties are unable to settle between themselves shall be determined by arbitration, that the decision of the arbitrator regarding the discharge will be final and binding and that if an arbitrator finds that an employee has been unjustly discharged, such employee shall be reinstated with all rights and privileges preserved under the terms of the agreement:

Article VI,

Section 2. [ 14 ] In other words, the mandate given by the parties to the arbitrator was general and comprehensive, and one which included all the circumstances of Mr. Winsor ’ s termination. In such a situation, it is inappropriate to parse the various components of the arbitrator ’ s analysis and to determine jurisdiction according to the treatment given to one segment of the analysis.

Had the arbitrator been asked to answer a specific question - such as, did any physician recommend an up-dated medical assessment of the griever - then, of course, he may have been accountable for any response for which there was no evidence. But that is not the situation here. [ 15 ] On the contrary, here the arbitrator was given the general task of determining if the termination was unfair and he was entitled to look at all of the circumstances surrounding the termination decision. Within those broad parameters, he was certainly entitled to take into account the medical evidence surrounding Mr.

Winsor ’ s hernia condition, including the return to work assessment conducted in October 2006 at Millard Health for the Workers ’ Compensation Board which set out certain work restrictions relating to the hernia condition and the opinions provided in February 2008 from Dr. Miles and in July 2008 from Dr. Game to the effect that those restrictions continued to apply. However, the arbitrator was also entitled to take into account all the additional evidence that was put before him concerning the grievor ’ s medical condition, including: - the 2008 diagnosis of mood disorder;

- the medical evidence developed in 2009 as part of the investigation of Mr. Winsor ’ s back pain, neck pain and tingling in the arms and legs but which might also be somewhat connected to the hernia condition, despite the diagnosis of lumbar strain and groin pain; - the investigations, commenced in 2009, for which there were diagnoses of tendinitis, gastritis, scabies, migraine, and tentative diagnoses of irritable bowel syndrome and colitis; - the 2011 medical opinion from a Dr. Brussow which included the following comments: “ I have attended and examined [Mr.

Winsor] on two occasions only, the dates being that of January 11 and June 2, 2011. This is hardly the attendance of a chronically sick patient. ” as well as the opinion that Mr. Winsor “ should be able to return to work on a full-time basis within the guidelines of his restrictions ” . In

summary, the medical evidence presented to the arbitrator established that the grievor suffered from a “ variety of physical ailments, some related and some unrelated to his hernia ” . [ 16 ] In addition to the specific medical information concerning the grievor, the arbitrator was also entitled to consider the mechanisms, such as the Disability Management Committee, which had been put in place by the employer and the union to deal with health issues within the work force. [ 17 ] In

summary, the arbitrator was asked to make a general determination concerning the fairness of Mr. Winsor ’ s termination. That determination was well within the arbitrator ’ s general background and experience; his determination can only be reviewed on the basis of reasonableness. 3. Was the arbitrator ’ s conclusion that the employer had not yet accommodated Mr. Winsor to the point of undue hardship unreasonable? [ 18 ] I have concluded that the arbitrator ’ s conclusion that the employer had not accommodated Mr.

Winsor to the point of undue hardship was reasonable. [ 19 ] I begin my analysis of this issue by noting that the employer recognized that it had the duty to accommodate Mr. Winsor to the point of undue hardship. [ 20 ] As the Supreme Court held in Dunsmuir , “ In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. ” [ 21 ] Addressing more specifically the situation of innocent absenteeism, in Hydro-Qu é bec the Supreme Court stated: The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. . . . Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided.

If a business can, without undue hardship, offer the employee a variable work

schedule or lighten his or her duties - or even authorize staff transfers - to ensure that the employee can do his or her work, it must do so to accommodate the employee. .. . . If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. . . .

A decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation.

Where, as here, the employee has been absent in the past due to illness, the employer has accommodated the employee for several years and the doctors are not optimistic regarding the possibility of improved attendance, neither the employer nor the employee may disregard the past in assessing undue hardship. [ 22 ] It must be underlined, first, that the arbitrator expressly stated that this was a “ close ” decision which came down to the employer bearing the burden and not having discharged that burden.

The arbitrator specifically recognized that there were factors which support the employer ’ s position that it had adequately accommodated Mr. Winsor; he emphasized that the employer had “ tolerated an excessive level of absenteeism for a number of years and, based on medical information at hand, worked diligently to accommodate the grievor in meaningful work within his physical restrictions ” . But the factors which prompted the arbitrator to require the employer to

attempt further accommodation were reasonable. They included the fact that the only functional assessment of Mr. Winsor had been undertaken by Millard Health in 2006 and had focussed on his hernia condition, whereas there was medical evidence, subsequent to 2006 which demonstrated that Mr. Winsor suffered from medical conditions not related to his hernias.

In this context, it is important to note that the evidence presented at the hearing consisted not simply of self-assessments, which would not have been sufficient to have put the employer to additional accommodation obligations, but medical assessments as indicated by the profusion of medical notes supporting absences from work. In those circumstances, it was reasonable for the arbitrator to conclude that a new or updated functional assessment of Mr. Winsor was required and that any such new assessment might expand or at least change the potential positions which Mr. Winsor could occupy.

Arranging for such an updated functional assessment would, of course, require further accommodation by the employer, but, in all the circumstances, that further accommodation would not impose undue hardship on the employer. [ 23 ] Another factor on which the arbitrator relied was the undeniable fact that “ there were glimpses of better attendance in the second halves of 2008 and 2009" which the arbitrator was entitled to take as evidence of Mr. Winsor ’ s capacity for better work attendance. [ 24 ] It must also be underlined that, in recognition of the sincere efforts made by the employer to accommodate Mr.

Winsor, the arbitrator imposed conditions on the grievor ’ s re-instatement with a view to ensuring that Mr. Winsor cooperated in the further accommodation which the employer must provide. In that way, the arbitrator ensured that there would be continuity in the assessment of Mr. Winsor ’ s level of cooperation in the objective of getting him back to full-time employment. [ 25 ] It is simply not possible to say that the combination of those two approaches is unreasonable or irrational. As the arbitrator himself recognized, other conclusions were also rational.

That is presumably why the arbitrator added the safeguard of his continued involvement in Mr. Winsor ’ s re-integration process. [ 26 ] Second, it must be noted that there was no issue about whether the Millard hernia assessment of 2006 continued to be valid; it was accepted by all that the 2006 assessment did indeed remain valid. The issue was whether there were additional medical disabilities, symptoms of which had been observed by physicians over the years as disabling Mr. Winsor from work, that required additional consideration. It may be, of course, that some of Mr.

Winsor ’ s ailments were impossible to accommodate; making that kind of determination is the very purpose of a new functional assessment. 4. Did the arbitrator lose jurisdiction by creating a remedy which amended the collective agreement? [ 27 ] The short answer is, No. [ 28 ] The arbitrator ’ s mandate was a very broad one. Situations of innocent absenteeism due to disability are often complex, as is illustrated by the situation here.

Tolko, a sophisticated, pro-active, employer made real, ongoing, efforts to accommodate an employee with disabilities, but the employee ’ s disabilities continued to evolve and the employee continued to be unable to work. It is precisely in these difficult situations that the assessment of an arbitrator, experienced in the treatment of disability in the workforce, will be of benefit not only to the employer and the employee, but also to society as we continue to refine our expectations of how the disabled can have a real, meaningful, place in the labour force.

As the Supreme Court put it in Hydro- Qu é bec , while the employer does have a duty “ to arrange the employee ’ s workplace or duties to enable the employee to do his or her work. . . . . . the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee ’ s duty to perform work in exchange for remuneration ” . The need to fairly reflect the interests of both employees and employers may well require what have become known as “ last chance ” arrangements such as the one crafted by this arbitrator.

In a disability situation, an employer typically does not have the right to force an employee to provide medical assessments; given the particular background in this case, however, the arbitrator concluded that the only way to establish the proper relationship between the employee ’ s claims and the employer ’ s rights was to require the employee to agree to participate in a new functional assessment. The employer states that, in situations such as these, the employer is the catcher, not the pitcher; the arbitrator ‘ s award attempted to put the employer more fully in the game.

The arbitrator ’ s award here incorporates the requirement for such an assessment and certain other measures as arrangements for a final effort to work by the employee and a final duty to accommodate by the employer. As the Supreme Court put it in Lethbridge College : 54 For arbitration to be effective, efficient and binding it must provide lasting, practicable solutions to workplace problems.

Commensurate with the notion of exceptional circumstances as developed in arbitral jurisprudence is the need for arbitrators to be liberally empowered to fashion appropriate remedies, taking into consideration the whole of the circumstances. To rob arbitrators of access to the full breadth of the employment context risks impairing their role as final arbiters of workplace disputes. Arbitrators are

well positioned on the front lines of workplace disputes to weigh facts and assess credibility as the circumstances warrant. 5. Conclusion [ 29 ] In

summary, Tolko has not made out its claim for judicial review; it has not established that the arbitrator ’ s award was unreasonable. 6. Relief [ 30 ] In light of my conclusion that the arbitrator ’ s decision is reasonable and must stand, it is not necessary for me to address the various requests for relief brought by Tolko.

However, because of one of Tolko ’ s proposals - that the court substitute its decision for the decision of the arbitrator - is an unusual request for which Tolko believes that it receives support from the CamiAutomotive case and from Jones and de Villars Principles of Administrative Law , I add a few words on the kind of relief available on judicial review. While there are undoubtedly some cases which are as straightforward as CamiAutomotive , the situation here is not one which is that simple.

If Tolko ’ s view that the arbitrator had misunderstood and misapplied Hydro- Qu é bec had prevailed, the court would presumably have informed the arbitrator of the correct application of the principles of accommodation in situations of chronic absenteeism because of disability. The proper course would then, in my view, have been to return the matter to the arbitrator to make an assessment of the situation given the correct

interpretation of the law. The judiciary should rarely intrude upon the territory of an arbitrator, and then, only to the extent absolutely necessary.

As Jones and de Villars note, in commenting that the ability of a reviewing court to provide a disposition on the merits is generally not appropriate, it may be useful for judges to remind themselves of part of the opinion of Lord Ackner in the House of Lords decision in the Brind decision : There remains however the potential criticism under the Wednesbury grounds expressed by Lord Greene M.R. [1948] 1 K.B. 223, 234 that the conclusion was "so unreasonable that no reasonable authority could ever have come to it." This standard of unreasonableness, often referred to as "the irrationality test", has been criticised as being too high.

But it has to be expressed in terms that confine the jurisdiction exercised by the judiciary to a supervisory, as opposed to an appellate, jurisdiction. Where Parliament has given to a Minister or other person or body a discretion, the court's jurisdiction is limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that discretionary power, so as to ensure that it has been exercised lawfully. It would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits and on that basis to quash the decision.

If no reasonable Minister properly directing himself would have reached the impugned decision, the Minister has exceeded his powers and thus acted unlawfully and the court in the exercise of its supervisory role, will quash that decision. Such a decision is correctly, though unattractively, described as a "perverse" decision. To seek the court's intervention on the basis that the correct or objectively

reasonable decision is other than the decision which the Minister has made, is to invite the court to adjudicate as if Parliament had provided a right of appeal against the decision - that is, to invite an abuse of power by the judiciary. [ 31 ] The approach of the English House of Lords is reflected in recent decisions of the Supreme Court of Canada, such as Dunsmuir , which emphasize the obligation of the judiciary to respect the role of adjudicative bodies by not interfering with their decisions unless the decisions are tainted by irrationality. 7.

Costs [ 32 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 9 th , 10 th and 18 th days of January, 2013. Dated at the City of Edmonton, Alberta this 15 th day of March, 2013. J.B. Veit J.C.Q.B.A. Appearances: Dwayne W. Chomyn, Q.C., Neuman Thompson for Tolko Industries Ltd. David B. Mercer, Nickerson Roberts Holinski & Mercer for Gordon Winsor Appendix A - Extracts from Arbitrator ’ s Decision YEAR GRIEVOR ’ S ABSENTEEISM (%) PLANT AVERAGE ABSENTEEISM (%) 2003 17.9 4.2

2004 47.6 4.7 2005 58.1 5.0 2006 31.7 4.8 2007 41.6 5.1 2008 47.2 8.7 2009 13.4 4.8 . . .

Year Separate Instances of Short Term Absences Separate Instances of Long Term Absences Comments 2003 4 2 Absent entire months of August & December on STD 2004 10 3 Absent on STD January to mid-March, mid-August to mid- October; accommodated June to December 2005 6 3 Absent on STD mid-January to mid-March; WCB from end of August to end of December (overlapped with periods of STD) 2006 1 3 WCB January to mid-April; off work developing suitable accommodation mid-May to early September; WCB two weeks in October; accommodated mid-October to end of December 2007 4 2 Accommodated January - mid-March and August to December; absent on sick leave and STD mid-March to first week of August 2008 4 1 STD & medical layoff January to mid-July; four weeks paid & unpaid vacation August, September, October 2009 15 0 Intermittent short absences totalling 26 days; production shutdowns 13 weeks 2010 to Feb 4 th 1 0 production shutdown January 11 th - February 5 th

. . . In

summary, I conclude that the Employer has demonstrated that the Grievor ’ s attendance (sic - the arbitrator clearly meant the Grievor ’ s lack of attendance, or absenteeism,) was excessive, that he had been warned about the consequences of the failure to improve, and that, at the time of dismissal there was a lack of evidence of regular future attendance under existing conditions. I am not satisfied, however, that the Employer had fully discharged its obligations to accommodate the Grievor to the point of undue hardship. I am not suggesting that the Employer neglected its duty to accommodate the Grievor.

Rather, at the time of dismissal the Employer (sic) there were more steps that should have been undertaken to determine whether, with an adjusted accommodation, the Grievor would be able to attend regularly. The evidence does not lead to a conclusion that undertaking such steps would have created undue hardship for the Employer. Accordingly, I conclude that the Grievor is entitled to reinstatement to employment with no loss of seniority and that the parties are directed to undertake further efforts to accommodate the Grievor.

Remedy To balance the interests of all parties, the reinstatement is subject to certain conditions. 1. The Grievor must cooperate fully in the accommodation effort and must realize he is entitled to a reasonable accommodation, not a perfect one. 2. The Grievor must be willing to participate in a new functional evaluation as soon as practical, to be paid for by the Employer. 3.

Once the results of the functional evaluation are available, the Grievor, the Union, and the Employer, through the Disability Management Committee as appropriate, must conscientiously work on an accommodation that meets the Grievor ’ s physical limitations and that results in productive work at the sawmill. Should the parties fail to agree on an appropriate accommodation, I will retain jurisdiction to assist the parties in determining an appropriate accommodation. 4. Once accommodated, the Grievor must achieve an acceptable level of attendance within a reasonable time period.

I prefer to leave it to the parties to determine the appropriate level of attendance required, but if they are unable to agree on the level of attendance that the Grievor must achieve, I will impose one, with submissions from the parties as necessary. 5. The Grievor indicated (according to Mr. Stevens' notes of the January 22, 2010 meeting, page 1, point 4) that he did not keep track of his missed days.

At the end of each month, the Grievor should receive a report prepared by the Employer, perhaps in calendar form as in Exhibit 1-36, showing the number of days he attended work and the number of days he was absent from work. 6. Should the Grievor fail to meet the attendance standards mutually set by the parties (or the arbitrator if need be) or has failed to cooperate in the accommodation, the Employer will have fulfilled its accommodation obligations and the Grievor may be dismissed.

With respect to damages, I make no decision at this time as to what damages, if any, the Grievor may be entitled in all the circumstances of this case. I have limited evidence on mitigation or failure to mitigate and it is premature to know what suitable accommodation may be devised, at what salary, and at what hours. If a new accommodation attempt had been undertaken instead of dismissal, it is difficult to know how long the process might have taken and if, and for how long, the

Grievor may have been off work. In addition, a previous adjournment of the arbitration hearing at the Union's request may have to be factored into questions on damages. I will reserve on damages in the event the parties are unable to resolve the question of damages themselves. AWARD The Grievor is reinstated and the parties are directed to make further efforts to accommodate the Grievor as set out in paragraphs 1 - 6 under “ Remedy ” . I will retain jurisdiction to deal with remedial questions that may arise under this award.