Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2015 News | May 2015 | CSR Medical travel expenses should be paid: Arbitrator Coal miners must go and see specialists in remote areas while away on jobs THE UNION representing em- ployees at a coal operation in British Columbia claimed the company violated the collec- tive agreement when it refused to pay an employee's travel ex- penses to see a specialist — and an arbitrator has agreed. The International Union of Operating Engineers filed a policy grievance against Teck Coal, operating as Line Creek Operations in the East Koote- nay area. According to the collective agreement, the company would pay up to $100 per trip for travel expenses incurred by an em- ployee who is required to see a specialist for consultation, treat- ment or hospitalization. Teck Coal denied any wrong- doing, arguing it was not re- quired to pay expenses when the employee is able to see a spe- cialist within the Elk Valley and vicinity of the Line Creek mine. "Employees are required to 'travel' before they are entitled to have their expenses paid and that requirement necessitates that they must leave their local area," counsel for the employer argued at the hearing. As the company saw it, there was a "common understanding" between the parties that travel expenses within the Elk Valley were not compensated. There are five mine sites owned and operated by Teck Coal in the area and while employees are able to drive their own vehicles to work, the company also provides buses to and from designated pickup locations. These buses operate twice dai- ly, and are not available to trans- port employees at arbitrary times or to arbitrary locations. Because the towns within the Elk Valley are relatively small, most employees have, over time, gained practitioners in the area — though some needing spe- cialized medical attention are required to go to bigger cities such as Calgary or Lethbridge in Alberta. In the past, the employer paid travel expenses for such trips, the union said. The issue arose when an em- ployee, Calvin Hughesman, travelled from his home to a doctor in Elkford, B.C., a 76-ki- lometre distance. Whereas the union said Hughesman should be compen- sated, the employer disagreed, saying payment is not required when a worker can see a special- ist within the Elk Valley area and within the regular bus route. According to John Kinzie, the arbitrator presiding over the case, the issue was a matter of interpretation and language. Of particular concern is the phrase "immediate area" when concerning travel. If an employee's specialist lives in his own town, Kinzie said going to see him would not entitle him to travel expenses because that is unequivocally within the "immediate area." In the case at hand, Hughes- man's specialist was in a differ- ent city than his own, regardless of the fact that it was within the Elk Valley. "I am of the view that (the collective agreement) does not impose a geographical limita- tion on the ability of employees to recover their travel expenses for seeing a specialist to the ef- fect that their travel must take them outside the bus route of the employer's or outside the Elk Valley," Kinzie said. As such, the policy grievance was upheld and Hughesman was entitled to reimbursement for his travel time. Reference: Teck Coal (Line Creek Operations) and the In- ternational Union of Operating Engineers (IUOE) local 115. Credit: Syda Productions/Shutterstock constitute a disability under the code. In the 2013 Smit v. Diageo Canada Incorporated, the ap- plicant had gained considerable weight and could not fit into the table and chair units at his work- place. He asserted his employ- er's duty to accommodate was engaged because his weight gain allegedly resulted from a physi- cal and psychological injury. The Ontario tribunal noted there was no substantial medi- cal evidence of a psychological injury and no evidence other than the applicant's belief that his weight gain resulted from his other injuries. Given the lack of evidence, the tribunal was not prepared to find that the appli- cant's weight gain was a disability within the meaning of the code. The application was dismissed. Despite the tribunal's findings in Hinze and Smit, its comments in a recent decision suggest obe- sity may constitute a disability in Ontario even if it is not caused by bodily injury, birth defect or illness. In the 2012 Lombardi v. Walton Enterprises, the appli- cant alleged he was discriminat- ed against in employment on the ground of disability when his su- pervisor harassed him by mak- ing inappropriate comments and sending him text messages. There was no evidence Paul Lombardi was in fact obese at the time of the alleged harass- ment; however, he alleged he was harassed because he was perceived to be obese. The tribunal noted that while adjudicators had formerly found that obesity was a handicap only when the obesity was caused by bodily injury, birth defect or ill- ness, it also considered more re- cent case law and noted obesity has recently been included un- der the definition of "disability." The Ontario tribunal also found that Lombardi was ha- rassed, in part, because he was incorrectly perceived to be obese and, therefore, incorrectly per- ceived to be suffering from a dis- ability, and the respondents had violated his right to be freedom from harassment in employ- ment on the ground of disability. Whether obesity will consti- tute a disability will be very fact- specific and may vary from juris- diction to jurisdiction. If there is evidence the obesity is caused by an injury, illness or birth defect or the obesity is perceived to be a disability, it will likely be deemed as such, regardless of what juris- diction an employer finds itself in. Therefore, employers are well-advised to carefully exam- ine any obesity-related accom- modation requests. Casey Dockendorff is a partner at Filion Wakely Thorup Angeletti in London, Ont. For more informa- tion, visit www.filion.on.ca. 'Disability' fact-specific, varies by jurisdiction Obesity < pg. 3

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