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HomeMy WebLinkAbout1993-1818.Collison.95-08-23 "" .., .-/ ,. ----. "'" - J )a"1~ ~ - ONTA/IIO fMPLOYE'i DE LA COI!fiONNE CROWN EMPLOYEES DE CON T AIl/O 11111 GRIEVANCE COMMISSION DE t~ .. "" ~<'~ I SETTLEMENT REGLEMENT D ,S IcJ"~ ':VA )7, (j BOARD DES GRIEFS l J~(~~ ~\;t 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G1i8 TELEPHONE/TELEPHONE ( (416) 326-1388 180, FNE-!!!!!!.EAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 . FlEe""'- ~ ~' ",. e~ ,,'ED GSB # 1818/93, 853/93 ALJG 2 :j ~ee~ OPSEU # 9'3E711, 93E107 PU'" . , I Ij '",- . 'l... ..." -.,.' .", i l- -" v""-l t ~ W'__ A ~Pt="! Sf') /! R'"' .... I N THE MATTER OF AN ARBITRATION' ! t"". ":r",L. .JvAi' Ub Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Collison) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: W Kaplan Vice-Chairperson E. Seymour Member M Milich Member FOR THE M- Doyle GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE D Strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 6, 1994 October 26, 31, 1994 November 16, 1994 May 8, 1995 - '1&: :;; ~"... 2 - Introduction ThiS, case concerns the September 17, 1993 gnevance of Shawn Collison- allegmg unjust dismissal from his position as a Cleaner II at the Brockvllle Psychiatric Hospital (hereafter lithe Hospital'i) The case proceeded toa heanng In Toronto and then Brockville In bnef, the union takes the position that while the grievor, an employee with twelve years of seniority at the date of his discharge, was away from work for considerable periods of time prior to :his discharge, there were mitigating circumstances explaining many of these absences Moreover, and in any event, the union took the position that the cause of the grievor's absences was only belatedly uncovered, namely manic depression, a psychiatric disorder The grievor is now receiving treatment for his psychiatric disorder, and this treatment would enable him to regularly attend at work. For its part, the employer takes the position that the grievor's record of absenteeism was exceSSive, and that there was no reasonable prognosis of him establishing acceptable attendance should he be returned to work. The Employer's Case Evidence of Basil Roberts Mr Roberts, a retired employee of the Hospital, testified During, the relevant period he was the Director of Housekeeping ,and Linen Services and, In that capacity, was ultimately responsible, for the area in which the grievor worked as a cleaner For many years prior to the grievor's discharge, Mr Roberts was concerned about the grievor's attendance record, a summary of which was Introduced into evidence I In 1986, the grievor was away sick for sixty-two days. Fifty-one of these days. coincided with one of the grievor's regular days off The gnevor was J ::; ~ ,..;'. 3 counselled about his attendance on March 4, 1986 and October 30, 1986 In 1987, the grievor was away sick for seventy days Fifty-seven of these sick days coincided with his regular days off he was ,counselled on Apnl 22, June 15, June 19, October 15 and November 9, 1987 In 1988, the grievor was away sick for fifty-two sick days Many of these sick days coincided with his regular days off He was counselled on March 8 and June 29, 1988 In 1989, the gnevor was away sick for thirty-three days Eighteen of these days coincided with his regular days ,off He was counselled on February 14, 15, May 31, July 28, and September 14, 1989 In 1 990, the grievor was away sick for sixty days Fifty~four of these days coincided with his regular days off He was counselled on February 21, April 19, May 30, July 26 and July 31, 1990 In 1991, the grievor was away sick for fifty days Twenty-eight of these days coincided with his regular days off The grievor was counselled on March 26, May 29, July 25, August 28 and November 21, 1991 In 1992, the grievor was away sick fifty-four days. Thirty eight of these days coincided with his regular days off The grievor was counselled on February 27, May 20 and Deqember 16, 1992 Between January and August 1993, he was away sick for thirty-four days Six of these days coincided with his regular d,ays off The grievor was counselled two times with respect to these absences, in February and then June Mr Roberts testified about his counselling efforts, and the departmental policy was described to the Board. Suggestions were made to the gnevor to improve his attendance, and the grievor routinely promised to try to improve his attendance As the attendance record cited above indicates, these counselling efforts had little positive effect. While the grievor was required to bring in doctor's notes for his absences, these notes failed to " 4 d;... provide a consistent medical explanation for the gnevor's poor attendance Mr Roberts spoke about the -operational and morale problems that resulted I, from the gnevor's regular failure to attend at work, and he told the Board that the departmental absentee average for sickness was 154 days per year Mr Roberts also told the Board that repeated efforts were made to obtain medical mformation about the grievor, but that he refused to cooperate by permitting the release of medical. mformation In late 1992, however, the grievor did permit the release of medical information following a mandatory medical directed pursuant to the Collective Agreement. The grievor was examined by Ci Ministry of Government Services physician, Dr H.R Chambers. Dr Chambers reported to the Hospital on December 23, 1992 He described the grievor as "very cooperative" in the process, and he identified several health problems which, at one time or another, interfered with his ability to attend at work. The relevant portion of Dr Chambers report, however, is as follows in my opinion, his major problem resulting in excessive absenteeism is a history 9f manic depressive illness. He indic;ated that he has been treated for this in the past; and has been, -hospitalized on one occasion. From February through to May of this year, he was under the care of a psychiatrist, but is not currently seeing the psychiatrist. He states that this condition has resulted in significant mood swings, and he may for example sleep all weekend and sleep in in the mornings, missing work. We discussed this ,condition, and he agreed to go back into therapy and consider taking medication. ,It is recommended that he be encouraged to follow through with thiS treatment, and if hiS problems m attendance continue, perhaps consideration should be given to requesting him to provide certificates from his I ,;; ("i 5 psychlatnst mdlcatmg that he IS under care and following through wIth appropnate treatment Mr Roberts reviewed this report with the grievor in early February 1 993, and testified that this was the first time the Hospital was advised that the grievor was a manic depressive A May 1, 1986 doctor's note, however, advised the employer that the grievor would be away from work for indefinite period of time because he was receiving treatment for "severe depression " At the February 1993 meeting, there was some discussion about whether the grievor would continue to be required to produce doctor's notes for each and every absence Mr Roberts testified that the grievor was advised to come into work whenever he was well enough to do so, and to attend later at his doctor's office in order to obtain .the required certificate He was also told that the requirement to provide a doctor's note every time he was away would be reviewed if his attendance record Improved The grievor advised Mr Roberts at this time that he was on new medication, and expected to begin attending regularly at work. He was also invited to have his doctor work with management in developing an appropriate action plan. More will be said about this below Unfortunately, the grievor's attendance record did not improve, the grievor continued to be counselled for his attendance -record, and the employer having concluded that the grievor's attendance record was unacceptable, and that there was no likelihood of it improving, decided to terminate his employment. Cross-Examination of Mr. Roberts In cross-examination, Mr Roberts was asked a number of questions about the Hospital's policy that the grievor provide doctor's notes for each and \, 6 ., every absence, and the suggestion was made that this policy had the effect of actually increasing the number of days the gnevor was away from work because of the difficulty that the gnevor often had In arranging an appointment to obtain a doctor's note, and because of the fact that th~ gnevor's doctor did not wish to participate in any arrangement that Involved him preparing "after the fact" doctor's notes As the Board has concluded that the grievor's absenteeism was excessive, and that the likely underlying reason for this excessive absenteeism was - his psychiatric disorder which is currently being treated, little purpose would be served by reviewing thiS evidence Suffice it to say that In the circumstances of this case, th~ Board finds that the Hospitai fairly implemented its absenteeism control policy and that requiring the grievor, giv~n his attendance record, to provide doctorrs hotes for his absences was completely reasonable It may not have made practical sense for the grievor to attend at work when feeling well and to attempt to obtain a doctor's note later, especially given the grievor's doctor's apparent unwillingness to participate in the process, but there is no doubt, in this particular case, that this suggestion was a good faith effort on the part of management to assist the grievor in improving his attendance Accordingly, It will also not be necessary to review the evidence of another employee who believed that this requirement to provide a doctor's note led to an: increase in the number of days the grievor was .away from work, nor will it be necessary to review the evidence of a union steward who attended a meeting at which thiS issue was. discussed EVidence of Linda Eckert Ms. Eckert is the Regional Manager of Human Resources, and testified about I =" 7 the Hospital's many efforts over the years to obtam medical information about the grievor with respect to his many absences After recelvmg Dr Chambers' report, a meeting was arranged with the grievor in order to '-, discuss that report and to devise and then implement a plan to bring the grievor's attendance record to acceptable levels. The grievor told Ms. Eckert at the February meeting also attended by Mr Roberts, that as a ( result of Dr Chambers' diagnosis, he had placed himself under the care of a Dr Massey, and was working with Dr Massey to determine the appropriate level and type of medi~ation necessary to stabilize and control his I condition Ms. Eckert prepared a letter for the grievor to give to Dr Massey inviting him to work with the grievor and the Hospital in implementing a treatment plan that would lead to regular attendance at work. Very simply, Ms Eckert solicited Dr Massey's recommendations and participation in whatever appropriate plan was necessary to achieve this objective Ms Eckert is tully familiar with the employer's accommodation obligations, and testified that a number of options were available to assist the grievor in achieving better attendance Ms Eckert did not receive a reply to her letter, and again wrote Dr Massey on June 3, 1993 On June 9, 1993, Dr Massey replied, acknowledging receipt of the June 3rd letter His reply simply stated that the grievor was no longer under his care At no time, between \ February and September 1993, did the grievor request any accommodation for his psychiatric illness other than object to the requirement that he be required to provide doctor's notes Cross-Examination of Ms. Eckert Ms Eckert agreed in cross-examination that on one occasion, in lieu of a mandatory medical, it was arranged for the grievor's doctor to examine him and provide medical information to the Hospital Ms Eckert agreed to this -- 8 arrangement since there was no pomt in proceeding with a mandatory medical If the gnevor persIsted In refusing to allow the employer to share In the results EVIdence of Dale Hunter Mr Hunter is the administrator of the HospItal, and IS also a Psychiatnc Nurse He described the operational ancf fiscal consequences 'of excessIve absenteeism, and the steps taken by the Hospital to ensure appropriate attendance In the summer of 1993, the grievor filed a grievance aliegihg discrimination by virtue of the fact that he was being required to submit doctor's notes for all -of his absences. A meeting was convened to diSCUSS this grievance on June;, 1993, and while Mr Hunter was of the view that there was nothing wrong with requiring an employee to submit medical certificates for every absence in the circumstante~ of th.is case, he realized that little information was 'being gained by the notes that were prepared on the grievor's behalf Accordingly, he decided to rescind the reqUirement, and to explore other means of dealing With the grieyc;>r's attendance problems. The grievor was also advised that there was a prospect of his being terminated for innocent absenteeism. While the grievor did not attend this meeting, he was provided with a copy of the minutes which 'set out the employer's position in this regard After this meeting, the grievor was aWay for another nine days, and anothermeettng was held at which the grievor's attendance record was ,discussed The grievor informed management that as he had only been diagnosed with a psychiatric disorder in December 1992; ,appropriate treatment could only begin follOWing that diagnosis. He also told management that his father had the same illness as he did Mr Hunter found it difficult to believe that the grievor was hot aWare pnor to December 1992, given his family situation, I ~, 9 that he might have the same psychiatric disorder as his father After reviewing the eVidence, mcluding the fact that the grievor had the worst attendance record in the Hospital, that he had said in February 1993 that he was on new medica~ion and expected to be able to begin attending regularly at work, that he then failed to do so, and that he also failed to have his doctor participate in the development of an action plan, the I decision was taken, on September 17, 1993, to terminate his employment. With respect to the diagnosis of manic depression, Mr Hunter testified that the grievor did not present the symptoms he was familiar with in his many years o,f experience as a Psychiatric Nurse There were no outward symptoms of the illness; moreover, the grievor"sattendance record did not indicate typical cycles of mood swings lasting weeks or months Mr Hunter was aware that the grievor had asked for various accommodations in employment, such as with respect to his allergy to du~t, but testified that he never asked for accommodations or assistance relating to his psychiatric disorder Cross-Examination of Mr. Hunter Mr Hunter agreed in cross-examination that prior to receiving Dr Chambers December 1992 letter, the employer was not aware that the grievor was suffering from a psychiatric disorder Indeed, Mr Hunter reiterated his doubts about the diagnosis as the grievor's attendance pattern was inconsistent with his understanding of the typical manifestations of the disease Moreover, assuming that the grievor did have the disease, it was ) difficult for Mr Hunter to believe, given the years of a,ttendance counselling I prior to December 1992, the fact that he had reported to Dr Chambers that 10 he had been hospItalized for the dIsorder, and his family hIstory, that the grievor never made the connection between his disorder and his attendance problems It just did not, Mr Hunter testified,add up Whatever the .diagnosls, Mr Hunter eventually determined that there was a record of excessive absenteeism, and no real likelihood of good future attendance It was on this basis that the termination decIsion 'was reached There was no evidence, he testified, of thegrievor taking any 'new steps to improve \his attendance Mr Hunter agreed, however, that until June 1993, thegrievor was never told at any of his counselling sessions' that failure to improve his attendance could result in discharge The Union's Case Evidence of Shawn Collison The grievor testified on his own behalf He testified that he was diagnosed in March 1986 as suffering from a severe depression, and was hospitalized in Kingston He was prescribed lithium at that time and continued with that drug for approximately three months after returning to work. He then felt better, and stopped taking the drug Starting around 1.987, the grievor was told to start bringing in doctor's notes for his absences, and he testified - that this requirement was responsible for his many days away as it was frequently difficult to arrange an appointment with his doctor to obtain a - note Moreover, his absences led to frequent attendanc~ review meetings, and these meetings resulted in the grievor feeling harassed This in turn , led to the onset of depression, which combined with other problems, led to further absences The gnevor did not believe he was a manic depressive between 1 986 and the end of 1992, but when he obtained that diagnosis from Dr Chambers he - --- -- :-;' , 1 realized that discontinUing the lithium might not have been a very good ./ idea Dunng that tIme period, the grievor believed that he was depressed, and often felt unable to go into work when he woke' up. While he wanted to improve his attendance, he testified that he felt unable to do so In early 1992, the gnevor went to see Dr L.W C. Massey, a Brotkvlllegeneral practitioner who had some special training in psychiatry, and who \ apparently limited his practice to psychiatric disorders He told Dr Massey - that he was depressed, sleeping in, had low self-esteem, and he provided him with a family history Several members of the grievor's family, in addition to his father, suffer from manic depression. The grievor did not think that he was a manic depressive because he had none- of the "highs" associated with the disorder In seeing Dr Massey, thegrievor was seeking non-medicated therapy He testified that he stopped seeing Dr Massey in early 1993 When the grievor went to see Dr Chambers in December 1992, he was not receiving lithium, and he testified that he did not resume taking that drug until February 1993 By that time, the grievor had accepted that he was suffering from manic depression It took some time, he testified, for an appropriate level to be determined According to the grievor, this occurred in June or July of 1993 The grievor recalled the February 1993 meeting with Mr Roberts and Ms Eckert, and told the Board about his proposal that he no longer be required to provide medical certificates He also explained to the Board the various difficulties which he had in obtaining those certificates, testifying that some times it took him up to seven days to obtain an appointment with his doctor to obtain a note But as previously noted, the Board has found that - - --. - - - - --- - - -- - - -- -- - - -- - u -- -- -.- ---- ---- -. -- - ----- - -- ---- - 12 the requirement was reasonable, and that the gnevor's absences were excessive even if the attempt to assist him by reqUiring him to provide "after the fact" notes ultimately proved unworkable Even though the requirement to provide these notes was lifted in June 1,993, the gnevor stili felt that he was under the gun and that he was being harassed ThiS affected his mood and his attendance at work. In September 1993, just pnor to being dismissed, it was mentioned to m~nagement that the grievor was taking- lithium, although there was no discussion about the level or effectiveness of his dose. According to the grievor, he has never refused to take a mandatory medical, what happened was that on a previous occasion, he formed the view that the doctor to whom he had been referred had, because of certain remarks, assessed him unfairly He, therefore, did not permit the examining physician to release his medical report to the employer The grievor testified that following the February 1993 meeting, he provided Dr Massey with Ms "Eckert's letter He was not informed that Dr Massey had failed to reply to it until the September meeting at which he was terminated The grievor believes that his medication, and psychiatric disorder, is now under control" and if reinstated, is certain he would be able to, regularly attend at work. Cross-Examination of Mr. Collison In cross-examination, the grievor was asked a number of questions about his state of knowledge about his diagnosis, and about the treatment efforts which he pursued Suffice it to say that his evidence was somewhat difficult to follow, and there were a great many contradictions In his I t' '- 13 account. However, it appears that the gnevor knew In 1986 that he was depressed, but did not believe, oWing to the absence of manic phases, until late 1992 and early 1993, that he was a manic depressive In 1993, he obtained tithium from Dr Alan Redekopp, his family physician, but for some reason did not tell Dr Massey, who was treating him for his psychiatric disorder, about this. The grievor last saw Dr Massey around Apnl 1993 He began working with Dr Redekopp to establish an appropriate dosage, and tnat took until June or July of 1993 Evidence of Dr. Alan Redekopp Dr Redekopp testified on the grievor's behalf He has been the grievor's family doctor since 1987 He became aware in 1992-93 that the grievor had received treatment for a psychiatric illness in 1986 While the grievor's file had been thinned out following the retirement of his previous physician, Dr Redekopp went back and reviewed the old file and found information indic~ting a diagnosis of manic depression, hospitalization at the Scott Clinic in Kingston, and subsequent treatment with lithium. Apparently, there was no follow-up to the diagnosis and treatment until 1992 Dr Redekopp testified that, in general, lithium is only used for the treatment of manic depression The effect of this drug is to smooth out manic depressive cycles and mood swings, which he described. He noted that there is a hereditary component to the disease, and testified that he first formed the opinion that the grievor was suffering from it in the winter of 1992 when the grievor approached him about receiving lithium. It was at this point that Dr Redekopp dug up the grievor's old file and found that he had been treated with it in the past. While there was some 14 confuSion In the evidence, It appears that the gnevor was then referred to Dr Massey who reported back to Dr Redekopp on May 11, 1992, that the , gnevor was showing "mixed Signs of manic-depressive disorder" Lithium , was recommended Prior to December 1992, Dr Redekopp never formally advised the grievor that he believed that the gnevor was manit depressive Dr Rede'kopp formed the impression that Dr Massey also 'never communicated this fmding to the gne\lor Indeed, Dr Redekopp was' of the view that until the grievor went to $ee Dr Chambers, he did not appreciate that something was wrong, and that there was a need for ongoing, treatment. After receiVIng the diagnosis from Dr Chambers, the grievor indicated an interest in receiving lithium. However, according to Dr Redekopp, he did not prescribe it for him until the fall of 1993 He testified that it Was possible that Dr Massey prescribed the drug prior to that point, and there was a possibility that he might have renewed one of Dr M(issey's prescriptions Dr Redekopp told the Board that his practice was quite busy, and given the necessity or prioritizing cases, it was not always possible to immediately see the grievor whenever he wished to obtain a doctor's note Dr Redekopp had no desire to participate in a system requiring him to furnish "after the fact" medical notes, and he explained the clinical reasons underlying his reluctance to do so According to Dr Redekopp, it takes some time for lithium to begin workmg, and it must be taken in proper dosages to achieve desired levels In hiS view, there was a long p~riod of time pnor to the grievor's dismissal during which his manic depression was not being treated, and he expressed the -- --- -~ I '. 15 view that this could easily have affected the gnevor's ability to regularly attend at work Dr Redekbpp testified that the grievor 'was currently under his care, and that of a psychiatrist. It was his opinion that the grievor could now regularly attend at work. He noted that he is not seeing the grievor as often as in the past for the various physical aliments he used to present. Cross-Examination of Dr. Redekopp In cross-examination, Dr Redekopp was asked a number of questions about his observations of the grievor These questions were directed to establishing that the grievor did not display all of the symptoms traditionally associated with manic depression. As the Board accepts the opinion of the grievor's psychiatrist, who gave evidence in these proceedings, that the grievor is a manic depressive, little purpose would be served in reviewing this evidence More importantly, it was pointed out to Dr Redekopp that the grievor testified that it was Dr Redekopp, not Dr Massey, who had prescribed the grievor lithium in early 1993 Dr Redekopp testified that he did not prescribe that drug until the fall of 1993 (he did, however, renew Dr Massey's prescription in August 1993) Indeed, prior to October 1993, and for some time thereafter, he was under the erroneous impression that Dr Massey was both prescribing the drug and monitoring the levels Dr Redekopp testIfied that in March 1993, he kept a record of the grievor's lithium use, as reported to him, and that month he also ordered blood tests and then forwarded the results, indicating that a therapeutic level had been obtained, to Dr Massey It was also pointed out to Dr Redekopp that the grievor stated that there were difficulties, in February 1993, in achieving a ___ ___n___ - tl 16 proper dosage and that these difftcultles continued until the summer of 1993 Dr Redekopp told the Hoard that he was not prescnblng lithium for the grievor at this time and, in any event, the tests he conducted indicated that the grievor was receiving the proper dose. Dr Redekopp was, however, surprised to learn that the employer was informed in June 1993 by Dr Massey that he was no longer treating the grievor Dr Redekopp would have expected Dr Massey to write him a letter advising him that he was returning the grievor to his care Had he r~ceived such a letter, he would have arranged for the grievor to see p psychiatrist, and would also have taken steps to ensure that his blood levels were monitored In October 1993, Dr Redekopp again had the grievor's blood levels tested, and the results again indicated that a therapeutic dosage had been Obtained It was not necessary" therefore, to make any adjustments in the grievor's dosage In November 1994, Dr Redekopp referred the grievor to Mary Morrow, a Brockville psychiatrist. Counsel spent some time reviewing the grievor's medical chart with Dr Redekopp It is fair to say that with one exception in January 1993, when the grievor reported difficulties ,in getting established on his lithium dosage, all of the grievor's absences were for various medical ailments such as sinusitis and back problems. Dr Redekopp was not aware of the grievor being absent from work because he was waiting around to obtain a doctor's note At no time could Dr Redekc>pp recall the grievor consulting him about his employer's concerns about his absenteeism, or seeking his I adVice on what steps he should take in order to begin attending regularly at I I work I I ./ I 17 Re-examination of Dr. Redekopp In re-examination, Dr Redekopp was referred to his medIcal chart, and to ,~ various absences of the 9rievor He testified with respect to many of these absences that it "was possible" that the grievor had to wait to see him for some time in order to obtain a doctor's note before returning to work. In his practice, a one day wait for an appointment would not be uncommon Since the fall of 1993, the grievor's health has shown remarkable Improvement, and he no longer attends at Dr Redekopp's office as often as in the past. Evidence of Dr. Mary Morrow i Dr Morrow, a psychiatrist in private practice, testified She has seen the grievor since November 1994 and, according to Dr Morrow, he is a manic depressive. Dr Morrow described manic depression in some detail, and pointed out that the illness is known to run in families The 9rievor displays many of the classic symptoms of the disorder, and she immediately diagnosed it upon meeting him. There was no doubt about the disorder, and Dr Morrow pointed out that a person without it would not only not need lithium, in the dosage prescribed for thegrievor, but would also develop toxicity because of it. The grievor needed this drug, and was responding well to it. While the grievor was aware of his condition when he first met Dr Morrow, as result of their sessions together he now has a better understanding of his illness, which, she added, is now being controlled According to Dr Morrow, the grievor's prognosis is excellent, provided he continues to take lithium as prescribed, and is seen regularly by a psychiatrist. When the grievor has presented problems, such as "racing," those problems have been --' 18 successfully addressed by adjusting his lithIum dose It was uncontrolled problems such as "racmg" which led, Dr Morrow believes, to many of the gnevor's absen<;;es in prevIous years Dr Morrow opined that there was no doubt, should thegnevor be returned to employment, that he would be a good employee, and one who attended regularly at work. Cross-Exammation of Dr. Morrow In cross-examination, pr Morrow was asked a number of questions about how lithium worked She also, in response to another series of questions, informed the Board about common and uncommon charactenstiCs associated with manic depression. She repeatedly emphasized that the grievor had this disorder, and that it was now being controlled Dr Morrow pointed out that_ while the grievor was taking lithium when he first consulted her, the dosage was not correct and had to be upwardly adjusted In her view, Dr Redekopp, who was not a psychiatrist, had limited lmderstanding of appropriate blood ievels and was,_ therefore, in no position to conclude that the grievor's levels were therapeutic. As she herself determined, they were not, and this Gondusion resulted form her examination of the grievor at their first consultation, and it was confirmed by her review of the ,grievor's bloOd levels Whoever started the grievoron lithium, Dr Morrow testified, did not establish an appropriate dosage Dr Morrow agreed, however, that the various symptoms of the grievor's psychiatric disorder did not include the myriad of medicc;tl problems he brought to Dr Redekopp's attention and, for which, he took time off work. I I Some of the grievors absences could, however, Dr Morrow testified, be the I result of his disorder If the grievor was "racing" all night, it was quite likely that he would be too tired to attend at work the followmgday Dr I ( ----- 19 Morrow was referred to a standard diagnostic text that stated that manic episodes last at least one week, and asked to comment ,on it with reference to the grievor According to Dr Morrow, some manic states lasted less time in rapid cyclers The grievor was not, however, a rapid cycler Re-examination of Dr. Morrow In re-examination, ,Dr Morrow testified that it might be difficult, for someone who wa$ in a manic or mid-manic phase, to attend at work, particularly if they did not have a real understanding of the nature of their condition The evidence having been concluded, the matter turned to argument. Employer Argument In the employer's submission, it had established that, at the time of the grievor's discharge, he had been excessively absent from work. The employer also took the position that there was no reasonable prognosis of the grievor returning to work and maintaining acceptable attendance On this basis, therefore, employer counsel asked that the grievance be dismissed Turning first to the grievor's excessive absenteeism, which is set out above and which employer counsel reviewed, counsel argued that the record clearly demonstrated excessive absenteeism. Counsel pointed out how many of the grievor's sick days coincided with his regularly scheduled days off This record of absenteeism continued throughout 1993, and showed no signs of decreasing in the aftermath of the June counselling ~ession The grievor was, simply put, away three times as much as the average - " -- 20 department employee, and was the highest user of sick days of any Hospital employee Counsel also pomted out that the gnevor was regularly counselled about his attendance, and while he promised in February 1993 to improve it (as he had at the many previous counselling sessions), the record indicated that he I failed to do so The gnevor was not, in the employer's submission, a I cooperative employee, and counsel referred to thegrievor's response to early employer attempts to have him undergo a mandatory medical as proof of that fact. Counsel noted that the employer made many good faith efforts to assist and accommodate the grievor, and reminded the Board that after the grievor finally revealed his psychiatric problem to the Hospital, it attempted to contact Dr Massey in order to work with him to assist the grievor in establishing acceptable attendance The Hospital received no reply to its first letter, and after sending out a second one, it was informed by Dr Massey that the grievor was no longer under his care Turning to future prognosis, employer counsel described the evidence about the grievor's condition as confusing, at best! ,Counsel pointed out that with a single exception, there was nothing in Dr Redekopp's chart indicating that the grievor had suffered a manic episode or was a manic depressive. All of the many other entries on the chart, counsel stated, referred to sp~cific medical ailments that the grievor presented, which then purportedly precluded him from attending at work. There was absol.utelyno evidence that manic depression was the cause of any of these medical problems Accordingly, in counsel's '~ubmJsslon, even if the Board was satisfied that the grievor had now been properly diagnosed as a manic depressive, It would I j '" 21 I not be appropriate for It to conclude, based on this diagnosis and the ensuing treatment, that the conditions causing his earlier excessive absenteeism had been addressed, and that there really was a good future prognosis for regular attendance at work. There was simply no evidence, counsel argued, that manic depression had anything to do with the gnevor's failure to regularly attend at work. The standard diagnostic text stated that manic episodes lasted at least one week. Counsel pointed out that the , gnevor's record of absenteeism was not consistent with repeated episodes of this length In this regard, it was noteworthy, in the employer's opinion, that the grievor only sought expert psychiatric assistance in November - 1994, more than a year after his discharge Moreover, it was extremely odd, in the employer's view, that the grievor would profess not to know much about a disorder that had seriously affected his father and several other family members. Counsel also turned his attention to the matter of the grievor's credibility He pointed out that there were a number of inconsistencies in thegrievor's evidence, particularly with respect to who put him on lithium and when. There was reason to believe, in the employer's view, that the grievor had not been entirely candid witn any of his treating physicians, or with the Board ) In the employer's submission, the onus in this case had shifted to the grievor to establish that his record of excessive absenteeism would not continue in the future should he be reinstated to employment. Given that virtually none of his absences while an employee appeared to be directly linked with manic depression, there was little reason to believe, counsel suggested, that the grievor would, if reinstated, attend regularly at work. It was extremely relevant, counsel submitted, that while the grievor was away a great deal of time, even his absences following the diagnosis by Dr . - --- - -- --- ~-- _ _ -=-=------=--__-0--=-- -___ - -_ _____ I 22 Chambers were never attributed to his mental disorder Assummg, however, for the sake of argument that the Board was inclined to reinstate the grievoJ, counsel suggested that it should bear m ,mind that it was not until November 1994 that the gnevor actually saw a psychiatrist, received a psychiatric diagnosis, and followed through with psychiatric monitonng and treatment. Given that fact, if the grievor was reinstated, the employer took the position that any costs of that reinstatement should not be incurred by the employer because it was not presented wIth the relevant information until a very late date' In support of this submission, counsel referred to Brown 1196/89 (Fisher) for the .proposition that"if a grievor is going, to rely on a medical defence like mental illness or alcohol addiction to excu~e his behaviour, he has to satisfy the Board that he has already taken decisive steps to cure himself before his case gets to a hearing" (at 31) Counsel noted that the employer's case in chief was over before thegrievor bothered to, consult a psychiatrist. It was hardly appropriate, counsel argued, for the Board to reverse the employer's decision based on a prognosis and treatment that the grievor obtained more - than a year after his discharge, particularly when the employer's own doctor, in the December 1992 mandatory medical, had identified the problem. And it was important to remember that the employer had made consistent and repeated efforts, both before and after the grievor's diagnosis by Dr Chambers, to assist thegrievor in developing and achieving acceptable attendance at work. This factor should also be borne In mind, in the employer's submission, by the Board in deVising a remedy should it decide to reinstate the grievor ---------- - I ,~ .. 23. In conclusion, counsel asked that the grievance be dismissed If, however, the Board decided to give the grievor a second chance, employer counsel took th~ position that the gnevor should be reinstated onstnct terms, and without compensation, given his lack of diligence, m seeking and obtaming appropriate psychiatric assistance until well after he had been discharged and these proceedmgs had begun. Union Argument Union counsel began her submissions by noting that the union did not take issue with the grievor's attendance record, although counsel pointed out that the bona fides of the grievor's various absences had never been questioned Counsel, however, took the position that while various medical complaints were recorded on Dr Redekopp's chart, the real reason for the grievor's absences was his manic depression, and the fact that he had not been properly diagnosed and was not receiving proper treatment in the r years leading to his termination Moreover, the union took the position that the evidence established that the grievordid not, until recently, fully understand the nature of his condition, and the steps and treatment necessary to properly deal with it. Until the grievor w~s properly diagnosed and treated, there was, counsel suggested, little that he could do to improve his attendance The evidence also suggested, in the union's view, that the grievor wanted to curtail his absences and attend regularly at work, but for the reasons previously given was unable to do so Counsel noted that the grievor attempted to get help, his consultations with Dr Massey provided evidence of that, but even though lithium was prescribed, the correct dosage was not, until the late fall of 1994, obtained This was another impediment in his treatment and in his ~i,~ -- -- 24 ability to attend regularly at work. There was clearly confusion in the evidence as to which doctor was treating the grievor, and who was prescribing lithium for him In the union's view, however, the importance of this evidence was that until the gnevor was sent to see Dr Chambers, no one communicated any diagnosis to the grievor, and counsel pointed out that the evidence indicated that Dr Redekopp learned about the grievor's treatment at the Scott Clinic rather lcitein the game, and never discussed his observations with him. The grievor did -not, in the union's submission, have the resources to take ch~rge and pull all of the information together, and this explained his confusion and misunderstandihgs about cert,ain events as was Indicated wnen he gave evidence in these proceedings. What th~ grievor knew was that he was ~ depressed and not feeling well, arid these conditions were exacerbated -by various medical disorders with the cumulative effect of leaving him unable to attend regularly at work. Given the grievor's psychiatric condition, he must take a properly regulated and monitored dose of lithium. the fact of the matter, however, was that for much of the period under review he was not doing so, explaining, counsel argued, in large measure his poor record of att,endance at work. All of this, however, was in the past, and counsel pointed out that the grievor now fully accepts andLJnderstands the nature of his disorder, the need to take -lithium, and the requirement that he remain under the care of ci i psychiatrist. Counsel reviewed a number of cases refating to innocent absenteeism, and canvassed the "generally well-accepted principles governingY in situations of this kind In her view, the union had more than established that the grievor, who had many years of service at the date, of -- -- ------- .: ,~ 25 .J ~ his discharge. did have a good prognosis of achieving acceptable attendance if he was reinstated to employment. Counsel noted that the gnevor had cooperated to the best of his ability with management, he had, for example, attended the mandatory medical in December 1992, and he freely shared its results with the employer Moreover, he has, since that date, been fully forthcomfng about his condition. And in all of these circumstances, the union asked that the grievance be allowed and the grievor reinstated to employment. Employer Reply Employer counsel made a few observations in reply Wl:lile it was true that the grievor had a lengthy service record, it was also true that for much of the time that he was employed his absences were excessive Counsel again reiterated the point that none of the grievorts absences appeared to be caused by manic episodes, and that being the case, took the position that the. diagnosis and treatment of that disorder had nothing to do with the grievor's excessive absenteeism, or likelihood of achiev.ing acceptable attendance in the future. Moreover, counsel also suggested that important principles of credibility were at stake in this case, and suggested that it was somewhat unlikely that none of the various doctors who treated the grievor over the years ever took the time to explain to him that, like his father and other family members, he suffered from manic depression. The grievor, employer counsel argued, was not someone to be believed Finally, counsel argued that should the Board decide to reinstate the grievor it should only do so on the strictest possible terms, and counsel suggested two of them In his view, the grievor should be required to maintain the dep~rtmental attendance average, and should also be required to remain I I I - . -'--- r 26 under the care of a psychlatrrst Decision Having carefully considered the evidence and arguments of the parties, We have come to the conclusion, with some significant reservations, that the ~ grievance should be upheld and that the grievor should be reinstated to his po~ition The case law is clear that to support a termination for innocent absenteeism, the employer must demonstrate e?Cces~ive absenteeism in the pa~t, and an unfavourable prognosis for regular future a~tendance at work. There is absolutely no doubt, in this particular case, that the grievor's record of absenteeism is, by any standard, excessive There is also no dQubt but that the employer has properly and co~sistentlyattempted to work with the grievor in improving his attendance at work. Thegrievor was directed to mandatory medical examinations, and there were numerous and regularly scheduled counselling sessions at which the grievor's absences were discussed, and during which the employer offered to accommodate any specific needs The evidence in this case also establishes that in June 1993 the employer warned the grievor of the specific consequences of continued absences from work, and only when the griev()r continued to be absent for excessive periods of time was the decision taken, and implemented" to terminate him from employment. This decision can be readily understood The grievor does not appear to have taken his attendance proble,m seriously, and it IS quite surprising that he never sought the advice or assistance of his doctor on ways to improve his attendance record on one of his many visits --- --~ ..'. 27 Having found that the gnevor's absences were exceSSIV~, the next question to address is whether there is a good prospect of the 'gnevor establishing an acceptable record of attendance should, he be returned to work. Given the eVidence, It is quite understandable why the employer would have concerns about the prospect of the gnevor attending regularly at work. When the grievor's medical chart is examined, it appears, save for a single exception, that the various ailments which the grievor presented to his physician were of a medical nature with no apparent connection to manic depression Moreover, there is reason to be concerned about the grievor's cooperation with the employer in addressing his excessive absenteeism, not to mention with respect to his candor with at least two of his treating physicians as well as in his evidence before this Board The fact that the grievor took so long to obtain a proper understanding of his disorder is, to give just one example, disquieting On the other hand, there are a number of reasons for the Board to exercise its discretion and return the grievor to work on fairly strict terms. The grievor has been diagnosed as suffering from a serious ,but treatable , psychiatric disorder, and it is worth pointing out that tHe commencement of the grievor's attendance problems is contemporaneous with his initial hospitalization for "depression" His psychiatrist did testify in these proceedings, and opined that the grievor was now receiving the level of lithium he required, and that properly regulated, the grievor could control .) his disorder and attend regularly at work. In reviewing the evidence, it does not appear, for whatever reason, that the grievor had been, until November 1994, under a properly supervised medicinal program, and for a great deal of time prior to his discharge, it appears as If the gnevor was not taking any lithium at all. He is now taking that drug - one with proven ----- ------ " 28 results in dealing with disorders such as the one the gnevor presents - and the fact that he IS dOing so, and IS being regularly seen by a psychiatrist, bodes well for his successful remtegratlon in the workplace There are a number of other factors that lead us to conClude that the grievor should now be given a second chance He is along seniority employee Obviously, for a great part of his tenure with the Hospital his attendance record leaves a lot to be desired Nevertheless, It is quite likely that the cause of his many absences was related in some way to his psychiatric disorder, and the fact that he was not receiving appropriate treatment for it. While employees, in general, are responsible for taking the necessary steps so as to ensure their regular attendance at work, each case must be individually examined, and where the disorder is psychiatric in nature, the responsibility of the employee must be assessed in its proper context. This extenuating circumstance is a significant one, and it is largely because of it that we have decided to reinstate the grievor on strict terms in this particular case In deciding to reinstate this grievor, the Board is also relying on some of the evidence it heard suggesting that the variety and frequency of various medical ailments which the gnevor had previously presented has declined, as has the number of visits to his family doctor This certainly augers well for the grievor in establishing proper attendance in the future Given this evidence, there is reason to believe that the treatment the grievor is now receiving for manic depression has had a signific~nt and positive effect on other parts of his life - - ------ I ~ .11.' 29 Needless to say, we fully endorse the principle set out in Brown and relied upon by employer counsel However, it should be noted that the facts of that case were 'quite unlike those in this one The grievor in Brown was a relatively short-service employee whose behavioural problems, among other things, led to his discharge Moreover, in Brown, the medical evidence indicated that the underlying mental problems that led to Mr Brown's difficulties had not been resolved In this case, the uncontradicted medical eVidence mdicates that the grievor's condition is being controlled and that he IS being monitored by a psychiatrist. Likewise in Markowski 1526/89 (Sloan), another case relied on by the employer, the Board, in reviewing a dismissal for innocent absen~eeism, dismissed the grievance noting that "we have never been provided with any reliable medical: information giving a proper prognosis" (27) In the instant case, although late in the day, we were ultimately provided with proper medical information, and we have no reason to doubt the prognosis which we have received Accordingly, and for the foregoing reasons, we find that the employer's discharge of the grievor was unjust, and we direct the employer to reinstate him to employment on the following terms 1 The grievor is ordered reinstated with no loss of seniority but with no compensation for lost wages or benefits. 2. Dr Morrow wrote in a January 31, , 995 opinion letter that the grievor's prognosis was "extremely good, providing he continues to be followed by a certified psychiatrist and he continues his specific medication for his condition " Accordingly, the grievor is directed to continue under the care of Dr Morrow or some other psychiatrist, and to contmue the "specific - ---~ -- 30 medication for his condition" It should be noted that this direction is entirely consistent with Dr Chambers' December 1992 recommendation 3 If, in any four-month period, for a penod of twenty-four months following the gnevor's return to work, the grievor's absence record exceeds the departmental average, the grievor may be dismissed 4 The grievor shall be reinstated within thirty days of the issue of this award, or as mutually agreed upon by the parties We remain seized with respect to the implementation of this award DATED at Toronto this 23rd day of August, 1995 '~/ /.----- , " -~--------------- Wiiliam Kaplan Vice-Chairperson ~ ~,'~ -G ---~~--....;;-. - E. Seymour Member "I Dissent" (dissent attached) ----------------- M Milich Member - ~ I ..' 'f, .... \ " ) "i Dissent , In The Matter Between opseu (Collison) " ,~ ~, !" , '\ And The Ministry of Health GSB,# 161/93,853/93 Having reviewed the <:Iecision in the above award,l find that i cannot jOin my collegues in their decision. \ In the first ,nstance, this case turns on the acceptance of the premise that the root cause of the grievor's absences was his pyschiatric disorder, manic depression This, I cannot do. ) Although both the employer's doctor, Dr Chambers, in 1992 and, more recently, Dr Morrow, the grievor's psychiatrist expressed the belief that his attendance suffered from his manic depressive illness, the documentary evidence that we have before us does not support this belief The evidence cle~rly attributes Mr \--- Collison's absences to medical and physical problems and not to his manic depression. The reasons for his absences ranged from significant,pack problems stemming from a non-work related injury I to sinusitis and sinus f infections, to tendonitis" fl~, and herniated .qiscs. Absolutely no concrete connection was drawn between th~se illnesses and his manic depression. Aside from the assertion that manic depression wasthe main \ or the underlying reason for the poor attendance; no direct evidence was tendered to illustrate how this disorder manifested itself in his lost time. In fact, " I ' . -". Dr Morrow testified in cross examination that the medical and physical_ailments suffered by Mr Collison were not symptoms of manic d~pression. Considering that Mr Collison has been required to bring in Doctor's notes for his absences since 1987, it is reasQnable.to expect that if there was,~ connection between the manic depression and the absemeeism it would have been brought to our attention. In fact, even after Dr Ch~mber's diagnosis, the pattern of absenteeism did not change nor did the reasons for the absences except in one instance. We af-e left with only two incidents over a period of seven years where some connection can be made, his treatment for depression in 1986 and his complaint in 1993 that his dosage of lithium had to be adjusted. While my colleagues are correct in pointing out that it seems that Mr Collison's / 1/ " ;;. absenteeism detenorated after his treatment for depression In 1986. It IS also the same period in which he injured his back and the myriad of other ailments that seem to plague him appeared This is not a record which indicates that the root cause of hiS absenteeism was manic d~pression and that its control provides a positive prognosIs for hiS future attendance Without a concrete nexus between his absenteeism and his manic depression, the positive prognosis for future attendance is meaningless. In Markowski, 1526/89 (Slone), Arbitrator Slone indicated on pages 25-26 "In an absenteeism situation, the onus IS on-the employee to explain the absences." The onus to explain the absences goes further than simply providing medical reports. It must surely include drawing a clearponnection between the absences and the'reason for those absences. This, I s49gest, is particularly important where, as we have in this case, the actual record cOntradicts the current claim for the underlyinQ cause. This onus was not discharged py the grievor I , -, While Dr Redekoff was enoouraged by the decline in the frequency of the grievor's visits:regarding a number of his ailments, he did not indicated that the ailments had been eradicated. My concerns with respect to the prognosis for a favolJrable attendan~ record r are further intensified' by what' I perceive fo be the grievor's attitude and -commitment to good attendance -~~ A theme that seems to run through the cases presented to us is that an element in determining future prognosis is an assessment of the grievor's attitude and commitment not only to improving his attendance 'but also accepting resp<;>nsibility for it. In Re Thermal Ceramics, Division of Morganite Canada Corp and United Steelworkers, Local 16506 (1992), 29 LAC (4th) 379 (Carrier), the grievor was reinstated with conditions on the 'basis of his attitude On page 390, the arbitrator stated: ~- HOn the contrary, the ~rievor gave his evidence ina straightforward apd honest manner and displayed in his testimony and his actions vis-a-vis"his absences a grave concemfor the continuation fo hisempfoyment " ~ And again at page 391, he states. .- I " :J"-!i '~. / \ ~ 'A, I r "!n part, I am persuaded by the gnevor's attitude towar:dsattendan~ followmg his suspensm(;m in February when he reported for.work on March ,11th and attempted to carry on his job notwithstanding his obvious discomfort" Thi~ theme is carried on in Brown GSB #1196/89 (Fisher) at page. 31 where it states "In fact the grievor ha~.undergone little if any treatment for his personality disorder in the four years since his dismissal Rather It seems the grievor thought he could get away with. simply.agreeing to undergo treatment as a condition of reinstatement. Unfortunately for the grievor sadly misunderstood the arbitral jurisprudence of this issue. If a grievor is going to rely on a medical defence like mental illness or alcohol addiction to excuse his.behaviour1 he has to satisfy the Board that he has already taken decisive steps to cure himself before his case gets to a hearing" On the face 6f his attendance record alone it is clear that the grievordid not take his absenteeism seriously Not only was it excessive, but too often combined with his regular days off Despite repeated counselling sessions, his absenteeism showed no sign of abating. ' His reasons for not releasing the results of one of his mandatory medicals was that he believed that the doctor had assessed him unfairly Put in more cynical terms, he believed that the doctor's assessment would not support his absenteeism record and, therefore, he was not prepared to release the results to the employer His lack of candor both to his physicians and this Board do not, ,in my opinion, demostrate the type of attitude which bodes well for the future The grievor persisted, even at this late date, to blame the excessiveness of his absenteeism on the employer's requirement to provide a doctor's certificate for each of his absences and to view the counselling sessions as h~rassing him to the point where the stress resulted in more lost time Throughtout the period, however, the documented reasons for his absences provided by the grievors doctor continued to be what they had always been, back problems, sinus infections, tendinotis and other assorted ailments. Lastly, the level of psychiatric help and assessment that was truly required was not sought until it became clearly evident that this panel would require far more evi'dence than they had recieved if the griever's claims with respect to his manic depression were to be substantiated. Dr Redekoff's notes indicated that arrangements for Mr Collison to see Dr Morrow were made on the day after the griever and the doctor had testlfi~. On November 1, 1994, Dr Redekoff noted I --- - 0, s ~ < '" that he had to make arrangements for Dr Morrow to see the grievor "regarding a letter for an ongoing court case" Dr Morrow saw the grievor on November 4 It would appear to me that this IS precisely the type of behavIour that falls within the cautIon In Brown ~ At least to this member, the grievor's behaviour pOints more to an individual who IS seeking Justification for his absenteeism and noUhe means to> improve or the desire to change his ways For these reasons, I wouid have dismissed the grievance A/JJMJ.:X } Michael Milich '- - .....-~ '1~ ~ ~ " ( - ,~ - '- >- ,~ , ( -