Richard Gleeson
Northern News Services

Yellowknife (Nov 28/01) - A former Con mine worker said a ruling in his favour by the Fair Practices Office has big implications for other mine workers who sacrifice their health working in the mining industry.

Fred Davies has won the latest round in a battle to return to work, but his fight is likely far from over if Con Mine decides to appeal a decision from the Fair Practice Office. - Richard Gleeson/NNSL photo

"You don't have to do what I had to do, go to work in pain," said Fred Davies.

On Nov. 9 the NWT Fair Practices Office ruled Miramar had to follow through on a job offer it made to Davies a year ago. Miramar was also ordered to pay him wages and benefits he would have earned had he been hired.

In her ruling, fair practices officer Elaine Keenan Bengts pointed to court rulings that have established that companies must accommodate the disabled. Businesses, she noted, have to make room for the disabled, whether or not an employee's disability occurred on the job.

Davies' disability consists of a compressed disc in his spine, which limits his ability to do physically demanding work.

Asked if he thinks the ruling will be the end of his battle to be reinstated, Davies said, "No, there's much more yet. Getting back to work is my goal, but it's not like (the decision to appeal or not) is in my hands."

The Fair Practices Office was a last resort for Davies. He had been frustrated by the union grievance process and said the Workers' Compensation Board had rejected an application he made for retraining.

"I had nothing else," said the 51-year-old. "It was either that or live with my disability and get a job I could do, pumping gas or something."

Though his wife has a job, he said one salary coming in is not enough to get by in Yellowknife. He credits his daughter, who moved into his home and helped with the mortgage, for helping him through.

"You really need a lot of family support," he said. "It's was a really bad feeling, not being able to provide for my family."

A long battle

Davies said his dispute with Miramar officially began a year and a half ago. He had worked at Con as a maintenance supervisor from 1988-94. After leaving Con for two years, he signed on again as a heavy duty mechanic.

His back problem steadily worsened, until he booked off work because of the pain in June 1997. The company laid him off six months later.

But following the year-long strike, Miramar offered Davies a job as a millwright. However, in a May 11, 1999 letter to the union, Miramar advised, "If Mr. Davies is unfit/unable to fill the position of millwright, then the company is not in a position to offer him employment."

Davies filed a grievance with the union that represents Con Mine workers. The complaint worked its way through the first two stages of the grievance process. Because it involves a significant expense, the third stage, arbitration, requires an authorization by a vote of union members.

Davies held out little hope of winning the necessary support.

He spent his first six years at the mine in a management position.

He said run-ins with the union during that time cost him any chance of winning the support necessary to go to arbitration.

Fair practice his last hope

On Feb. 3, 2000 Davies filed a complaint with the Fair Practices office, alleging he was being discriminated against because of his disability.

Two months later the company unaccountably reversed its position.

In another letter to the union, it said it wished to talk to Davies about other jobs he might be able to undertake.

That led to an offer of a job as a hoist operator. Davies accepted the job and met the medical and technical conditions attached to it.

But the job never materialized.

"The reason (the company says) that Mr. Davies has not commenced work is that the offer they made ... required that he withdraw his Fair Practices complaint," wrote Keenan Bengts in her ruling.

That is not allowed under the act, which permits the fair practices officer to proceed with a complaint even after it is withdrawn by the complainant.

Miramar has refused to comment on the case. It has 30 days to appeal the ruling to the NWT Supreme Court.

Obligation to accommodate

- Employers must attempt, to the point of "undue hardship," to accommodate disabled workers.

- Current legally established definition of disability: an illness, injury or disfigurement that creates a physical or mental impairment and thereby interferes with a person's physical, psychological and/or social functioning.

- In its 1999 landmark Marian decision, the Supreme Court of Canada stated: "the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible."