HomeMy WebLinkAboutP-1993-0061.Bardhan.00-05-31 Decision
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PSGB # P/0061!93 P/0066/93
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Dr B B Bardhan
Grievor
- and -
The Crown m RIght of Ontano
(Mirusm of Health)
Employer
BEFORE John A. Willes Vice ChaIr
FOR THE John Brewm
GRIEVOR Labour Relations Consultant
FOR THE Stephen Patterson
EMPLOYER Counsel, Legal ServIces Branch
Management Board SecretarIat
HEARING October 21 1999
AprilS 6,2000
Ma, 1 2000
DECISION
The Gnevor, Dr BibhutI Bardhan, at the tIme offihng ills grIevances, was
employed as a StaffPsycillatnst at the WhItby Mental Health Centre (formerly the
WhItby PsychIatnc HospItal) Pnor to the filmg of ills gnevances, the Gnevor had
occupIed the posItIOn ofUmt DIrector of the Neuro PsychIatnc Umt. On
November 1, 1993, he was assIgned to the posItIOn of StaffPsychIatnst, a lower
rated posItIOn, pursuant to SectIOn 11(3) of RegulatIOn 977 for alleged reasons of
health, but retamed ills PMD23 classIficatIOn and salary level.
On November 16, 1993, Dr Bardhan filed the followmg gnevance, obJectmg
to the Employer's actIOns
16 November 1993
Dr P Prendergast,
PsychIatnst-m-Clnef,
WhItby Psyclnatnc HOSpItal,
Wlntby Ontano
Dear Dr Prendergast:
Re MY GRIEVANCE.
Pursuant to SectIOn 44(2) of the PublIc ServIce Act (under "workmg COndITIOnS and
Terms ofEmployment"), I hereby gneve the actIon you have taken agaInst me m your letter
dated November 1 1993 receIved by me on November 5 1993 (copy attached, AppendIx
A)
2
1 beheve that your order for me to work m a staff psychIatnst role, even for SIX months
m the best possible eventuahtIes, vIolates terms of my employment and affects my workmg
conditIons adversely for vanous reasons mcluding the followmg: -
(1) The reasons you gave for your actIOn are not tenable, namely
(a) my "absence", ThIs IS legItImate, proper m procedure, and WItlnn the
terms of my employment; and
(b) my assIgnment as "sole psychIatnst and Umt DIrector on NPU'
according to the terms of my employment, tlns should not make me
vulnerable to loss of my nght to work unconditIonally as PMD23
through such arbItrary actIon as, m my opImon, yours m questIon IS,
especIally when and while all my employment, and when and while the
state of my health has not affected my abihty to work as PMD23 when
1 am not so absent.
(2) Under the CIrcumstances as contamed m (1) above, and m any cIrcumstance,
for that matter SectIOn 11(3) of the Pubhc ServIce Act does not apply to my
present case, especIally gIven the fact that the state of my health has not
affected my abIhty to work as PMD23 at least when 1 am not absent and
and when all my absences have been accordmg to the terms of my
employment.
In support of my case, 1 would like to partIcularly pomt out the folloWing here -
(1) In support of your said actIOn against me, you have referred to the
report of Dr W L Heslop the specIahst treatmg me at present (copy
of thIS report attached, Appendix B)
Unfortunately m my opmIOn, you have mIsrepresented Dr Heslop's expert opImon, You have
selectIvely gIven the most negatIve and pessImIstIc mterpretatIon of hIs overall very kmd, compassIOnate,
posItIve and optImIstIc vIew For example, you have completely mIssed or Ignored or have chosen to
omIt Dr Heslop's comments (after he charactensed my present conditIon of illness as "moderately
actIve" namely most patIents With moderate disease are able to functIon fairly normally m the
workplace" and "when he IS m remIssIOn he Will be able to work normally"
Dr Heslop has also stated, "I would expect that he will have flares and remISSIons, and that
when he IS flanng he may reqUIre tIme off work to allow hIm to get better" The terms of my
employment allow me to have up to 6 months/130 days per year "tIme offwork" for such purposes
Without attachIng any conditIon such as your said actIon m questIon does,
3
Your said actIOn exposes me, unfairly and unjustly as I have pomted out above, to the
possibIhty of my losmg the nght to automatIcally connnue to work as PMD23 contrary to the terms of
my employment. In other words, as I see It, you have arbItrarily decIded to depnve me of my nghts,
(2) Your said act10n not only vIolates my nghts under the terms of my employment
and creates unjust and unfair workmg condinons for me, It also depnves the
Government of Ontano (my employers) of available resources, e g, by
underutihzanon or non- utih san on of my servIces as PMD23 and, also, as an
expert m neuro-psyclnatnc disorders (by your ordenng me to work m the role
of PMD22 and, for that matter m the commumty Mental Health areas)
Moreover your said actIOn also depnves the Neuro-PsychIatry Umt (ofwlnch I
have been so far the DIrector smce ItS mcepnon m 1985 and admIrably so
according to my supervIsors) of my servIces, whatever IS available and as IS
available under the terms of my employment, especIally when It has not been, nor
IS likely to be m near future, possible for you to find a proper replacement or even
coverage for my absence m Neuro-PsychIatry Umt.
And, from a somewhat personal pomt of VIew If! may add here, your said acnon produces
unnecessary and undue stress on me (e, g, by depnvmg me of Job- sansfacnon to ItS fullest and
thereby affect1ng my producnvIty to a certam degree as may be normal under such cIrcumstances,
wastes my talents and my knowledge and expertIse that I have accumulated over the years With my
own Imnanve and With the advIce and mcennves from my employers,
The whole tlnng IS especIally regrettable, m my opImon, dunng the current nmes of economIC
hardslnps and constraints, and With hmIted available resources, especIally m the area of my specIalIty
namely neuro-psyclnatry
Remedv Sought
Under the cIrcumstances, I request that your decIsIon and order m quesnon be rescmded and
reversed fOrthWith and I be allowed to connnue to work uncondInonally as PMD23 preferably m
the Neuro-Psyclnatry Umt of Wlntby Psyclnatnc HOSpItal.
Respectfully submItted,
Yours smcerely
B B Bardhan,
On December 31 1993 the Gnevor filed a second gnevance whIch reads as follows
4
To
Dr P Prendergast, Psycmatnst-m-Cmef.
From:
Dr B.B.Bardhan, CMHSU
c,c, Dr, M, Rapp, Actmg Psycmatnst-m-Chlef
I beheve I have been subjected to harassments by my employerlHospltal AdmIllistraTIon, I Wish
to gneve thIS,
Accordingly I request a meetmg WIth you as provIded under SeCTIon 44(1) of the Pubhc
ServIce Act.
Respectfully submItted,
B.B Bardhan, CMHSU
On January 11, 1994, the Gnevor filed addItIOnal gnevance allegatIOns
pertmmng to hIS December 31, 1993, complamt.
11 January 1994
Dear Dr Prendergast,
Re, My Gnevance on Harassment etc,
ThIS IS further to my memoranda dated 31 December 1993 and 4 January 1994 to
you, Tms also refers to your letter 4 January 1994 to me (copIes attached)
Pursuant to SeCTIon 44(2) of the Pubhc ServIce Act, I hereby gneve that senous aCTIons
of yours and others m the hOSpItal over a penod of TIme have been causmg harassments to me
5
and thereby creanng an unfaIr and unjust workmg condinon for me and m addinon causmg
senous other harms and damages to me
I mennon some of the more recent mstances of such harassments as follows,
(1) Your demand on 22 December 1993 that I produce my doctor's cernficate of
21 December 1993 to you ImmedIately that day was unduly and unwarrantedly
hasteful and caused undue and unnecessary problem to me
(2) You reassIgned my dutIes on 22 December 1993 knowmg well that I would be
domg my dunes as of 24 December 1993
(3) You reassIgned my dunes on 22 December 1993 Without exhausnng all
possible, reasonable and necessary measures to ascertaIn my then condInon,
If you had any doubt.
(4) You reassIgned my dunes on 22 December 1993 too far m advance for such
drasnc measure to be taken,
(5) Your reassIgnment of my dunes on 22 December 1993 was too drastIc a
measure and too unusual an acnon for a person m your posInon,
(6) Even If you really did need to reassIgn my dunes m case I, m fact, did need
sIck leave on 24 December 1993 or at any nme, It should have been WItlnn
your expectanon and you should have been able to deal With It smoothly
Without causmg any agony or damage to me
(7) You had no good reason to foresee on 22 December 1993 that I would be
"unavailable for work until January 4th 1994"
(8) Your decIsIOn on 22 December 1993 to reVIew my sItuanon on 4 January
1994 contradIcts and/or runs counter and superfluous to the scheduled reVIew
m my letter dated 1 November 1993 to me
(9) You had no good reason on 24 December 1993 and subsequent and no
authonty ever to Impose any sIck leave on me
(10) On 24 December 1993 you arbItranly and WIthout good reason ordered me
"to remam on sIck leave" m spIte of knoWing, and even after bemg remmded
by me and acknowledgmg to me that you knew that tlns order would
depnve me of my benefits and vIrtually my hvelihood, and you took such
measure Without duly safeguarding my mterest and gIvmg me any necessary
reassurance as my supervISor
6
(11) SuspensIOn by your office of my pnvileges to prac11ce as a physIcIan m the
hospItal on 29th 30th and 31 st December 1993 was wIthout good reason and
proper authonty even as an emergency
(12) SuspensIOn of my pnvileges as stated m # (11) above exposed my panents to
unnecessary and undue danger
(13) SuspensIOn of my pnvileges as stated m # (11) above depnved the hospItal
of my servIces, especIally m nme of acute need,
(14) In spIte of my submIttmg on or about 7 December 1993 a proper request
for two SocIal Contract days on 29th and 30th December 1993 you did not
approve It m good tIme and, even, ever
(15) I was not allowed to use the hospItal Fax Machme, Mail Room Postal
ServIces, etc at all, even If I reImbursed,
(16) Incommg telephone calls to me were mtenupted or denIed to me
(17) The ChnIcal Records Department denIed me access to theIr servIces
quotmg "bemg so ordered"
(18) The hospItal AdmInIstranon told mdIvIdual servIces/department to deny me
of theIr servIces, even If! reImbursed, Without tellmg me eIther alone or m
advance - as I learnt later
(19) In VIew of your letter of 1 November 1993 to me, your demand on 24
December 1993 for any medical evaluanon at that nme was too early and
obtrusIve,
(20) The agreement of the Deputy MinIster to the request for my medIcal
exammanon under Secnon 63-3 of The Pubhc ServIce Act was obtaIned
through mIsrepresentanon of my case With wrong, msufficIent, mcomplete
and/or mIsleadmg statement of facts,
(21) Your refusal, m your letter of 4 January 1994 to me, to meet WIth me for the
purpose Secnon 44(1) of the Pubhc ServIce Act denIes me of my nght to
seek Jusnce m a due, orderly and nmely manner Tills also places me m the
so-called and proverbIal "Catch 22" sItuanon where I cannot Win many
event.
Respectfully submItted,
B.B Bardhan,
7
The Employer rejected the grIevances, and when the partIes were
unable to resolve the dIspute, the gnevances came on for heanng before the
Pubhc ServIce Gnevance Board. At the outset of the heanng, the Employer
raIsed a number of prehmmmy ObjectIOns to the jUnSdIctIOn of the Pubhc
ServIce Gnevance Board to hear certam aspects of the Gnevor's complamts
Three ObjectIOns were raIsed by Counsel for the Employer
(1) The Issues raIsed m the gnevance dated November 16,
1993, were moot, and therefore thIS Board should not hear
the grIevance
(2) The subject matter of the gnevances m so far as they relate
to allegatIOns of the Employer's actIOns causmg mjul)' to the
Gnevor's health, should be addressed under the Workers'
CompensatIOn Act, as thIS Board has no jUnSdIctIOn to deal
wIth matters that fall under that Act.
(3) The Pubhc ServIce Gnevance Board has no authonty to
award punItIve damages as a remedy m gnevance matters
ThIS Board addressed the prehmmary ObjectIOns of Counsel for the
Employer m an Intenm DecIsIOn dated November 10, 1999 The DecIsIOn provIded
as follows
"On the Issue of pumnve damages, Counsel for the Gnevor submItted that tlns Board
has the authonty to award both aggravated and pumnve damages In wrongful dIsmIssal
Instances, based upon the Supreme Court of Canada decIsIon In the Vorvis case
(supra) The Court In that case noted that the award ofpumnve damages should clearly
be hmIted to those rare cases where an acnonable wrong had been commItted agaInst
the employee, and as the Court noted on p 208 reserved for those cases where the
8
conduct "IS of such a nature as to be deservmg of pumshment because of ItS harsh,
vmdic11ve and mahcIOus nature" Unlike the courts, however labour relanons tribunals
and boards such as the Pubhc ServIce Gnevance Board tend to VIew theIr role as
regulatory m the sense that theIr remedIal awards should be compensatory rather than
pumtIve, and have been reluctant to consIder pumnve damages as a remedy m matters
that come before them, In the Morrison case, supra, the Pubhc ServIce Gnevance
Board rejected pumtIve damages as a remedy and at p 7 stated,
"For thIS Board, an award that has a pumnve character should have no place at
the present nme m our remedial qUIver It would be contrary to the thrust of remedIal
pnncIples that both the P S G.B and labour tribunals elsewhere m Ontano and Canada
have regularly followed, We accept the oft-cIted ranonale that adopnng pumnve
damages would be senously detnmental to the well-bemg of the ongomg relanonshIp
between the partIes where It IS governed by a statutory framework"
ThIs Board can see no reason why It should stray from tlns pohcy and would
not be prepared to adopt pumtIve damages as a remedy m the case now before thIS
Board,
On the alleganon of Employer responsibihty for certam health problems of the
Gnevor Counsel for the Employer submItted that tlns aspect of the Gnevor's complamt
was a matter that should be placed before the Workers' CompensatIOn Board, and
argued that thIS Board has no JunsdIcnon to award damages for work-related mJunes
suffered by an employee
The Workers' CompensatIOn Act embodIes a compensatIOn system whereby
an employee surrenders hIs or her nght to take legal ac110n agaInst the employer for
mJunes suffered m the course of employment, and m return acqUIres the nght to full
compensatIOn for such mJunes where the employer IS found to be at fault. The nature of
the mJury that an employee may suffer IS broadly defined m s,1 (1) of the Act.
s,1 (1) In thIS Act,
"accIdent" mcludes,
(a) a wilful and mtentIonal act, not bemg the act of the worker
(b) a chance event occasIOned by a physIcal or natural cause, and,
(c) disablement ansmg out of and m the course of employment.
The Workers' Compensanon Act also addresses the effect of the legIslanon and
the nghts of the partIes under the Act. S 16 of the Act provIdes
9
"The provIsIons of tlns Part are m heu of all nghts and nghts of aCTIon, statutory or
otherwIse, to wlnch a worker or the members of lns or her family are or may be enTItled
agamst the employer of such worker or any exeCUTIve officer thereof, for or by reason
of any accIdent happenmg to the worker or any occupaTIonal disease contracted by the
worker on or after the 1 st day ofJanuary 1915 while m the employment of such
employer and no aCTIon hes m respect thereof'
The Gnevor's complamt With respect to lns health problems IS essentIally that
the Employer's treatment of the Gnevor was such that It caused lns heart condiTIon, and
he seeks damages for the Employer's aCTIons, The Pubhc ServIce Gnevance Board has
authonty to address workmg conditIOns or terms of employment Issues under s.34 of
RegulaTIon 977 but the authonty of the Board IS for the most part remedial m nature,
largely to resolve or correct workmg conditIOn problems that anse between employees
and theIr employer It IS not mtended to deal With matters that have been specIally
addressed m separate legIslaTIon, partIcularly where appropnate admIllistraTIVe
frameworks have been estabhshed to deal With such matters,
In the case of mJury to employees, the Workers' CompensaTIon Act represents
specIfic legIslaTIon to deal With workplace mJury-related claims, S 16 of the Act
provIdes an employee WIth the nght to seek compensatIOn under the Act m heu oflns or
her other nghts, and provIdes that no nght of aCTIon hes agamst the employer In a
sense, the admmIstratIve process under the Act replaces most nghts that an employee
may have to damages for employment-related mJunes, Notlnng m the Pubhc ServIce
Act or RegulaTIon 977 would appear to gIve tlns Board the nght to encroach on the
exclusIve JunsdicTIon of the Workers' CompensatIOn Act to deal With a health related
mJury to an employee, and tlns Board IS reluctant to deal WIth tlns aspect of the
complaint. The Gnevor's complamt m so far as It relates to damages or compensaTIon
for the alleged mJury to lns health IS therefore a matter to be addressed by the Workers'
CompensaTIon Board rather than tlns tribunal.
The tlnrd objecTIon to tlns Board's JunsdIctIon IS related to whether the
November 16th gnevance concerns an Issue that IS moot, and therefore should not be
dealt With by thIS Board, Counsel for the Employer submItted that the temporary
assIgnment of the Gnevor to the StaffPsyclnatnst pOSITIOn for reasons of the Gnevor's
health under s,11(3) of RegulaTIon 977 dId not result m a change of the Gnevor's
classIficatIOn as a PMD23 nor did It change lns salary and consequently he suffered no
loss as a result of the Employer's actIOns, Counsel for the Employer argued that tlns
Board should exerCIse ItS discretIOn to not hear the gnevance
Counsel for the Gnevor conceded that the Gnevor suffered no loss of mcome
as result of the assIgnment to the pOSITIOn of StatTPsyclnatnst, but argued that the Issue
was the way m wlnch the Employer made the November 1st change He stated that the
Employer dId not approach the Issue of the Gnevor's J ob functIOn m a proper way
gIven lns terms of employment, and It IS for tlns reason that the Gnevor was claImmg
10
aggravated and pumtIve damages, Counsel for the Gnevor also argued that the Issue
was not moot because there remams the probabIhty of the Gnevor's return to work,
and as long as It remams so, the Issues raIsed stand the prospect of commg back mto
play
On the surface, at least, the Gnevor would appear to have suffered no monetary
loss as a result of the Employer's decIsIon to temporarily move the Gnevor to the Staff
Psyclnatnst pOSITIOn for health reasons under s,11(3) of RegulaTIon 977 and on tlns
basIs, the matter would appear to be moot. However gIven the allegatIOns of Employer
Impropnety concernmg the decIsIOn, and the possibihty that the Gnevor may return to
work m the future, these events raIse the questIOn of whether the Issue IS moot or not.
Smce the two gnevances before the Board are to some extent mter-related, thIS Board
wIll not exerCIse ItS dISCreTIOn to dechne JunsdicTIon to hear the gnevance dated
November 16th 1993"
The heanng contmued on April 5, 2000, to hear eVIdence and argument
on the remmmng Issues raIsed m the grIevances In essence, the key Issue IS
dId the Employer breach the employment contract of the Gnevor by ItS
actIOns? A secondary matter that would flow from an affirmatIve findmg on
the Issue would be the questIOn of damages that mIght anse from a breach of
the employment relatIOnsmp
Counsel for the Gnevor submItted that the Employer had acted
Improperly m ItS dealmgs WIth the Gnevor, and m support of hIS posItIOn,
called the Gnevor to testIfY
The Gnevor testIfied that on November 1, 1993, he was relIeved ofms
responsibilItIes as a Umt DIrector, and assIgned to a posItIOn of Staff
PSYChiatrISt, a lower level posItIOn m the mstItutIOn, and the transfer caused
hIm consIderable embarrassment. He also testIfied as to the events that took
11
place after hIS transfer, mcludmg the events set out m hIS gnevances In
partIcular lus eVIdence was that he returned to work on November 30th, after
a lengthy bout wIth lus arthntIS, and worked until December 20th On
December 21 st, he felt ill and went to see lus physIcIan. He called m sIck and
mformed the hOSpItal that he would be off work pendmg a report on blood
tests He mdIcated that lus physIcIan had told hIm that he would be able to
return to work on December 24th, 1993
The Gnevor stated that Dr Prendergast wrote lum a letter dated
December 22, 1993, advIsmg lum to remam off work until an mdependent
medIcal assessment of hIS health was made, and that he should return to
work on January 4, 1994 HIS eVIdence was that he was gIVen a note from lus
physICian on December 24, 1993, WhICh stated that he was fit to work on that
date, and he returned to work. On December 29, 1993, he was advIsed that
he was demed access to the Fax machme, the mail room, and no telephone
calls were forwarded to lum. He testIfied that he was exammed by an
mdependent medIcal practItIOner as dIrected, but dId not return to work
thereafter, and eventually went on long term dIsabilIty
Counsel for the Gnevor submItted that the Employer was m breach of
ItS employment oblIgatIOns to the Gnevor, and m support of hIS eVIdence and
argument, cIted Re Tele-Dzrect (PublzcatlOm,) Inc and Office &
12
ProfesslOnal Employees InternatlOnal Unzon, Local 131 (1989) 8 L.A.C
(4th) 159, Re Nelsons Laundrzes Ltd. and Retazl Wholesale Unzon, Local
580 (1997) 64 L.A.C (4th) 120
Counsel for the Employer called Dr Prendergast, the Psychmtnst-m-
ChIef and Chmcal DIrector as a wItness Dr Prendergast testIfied as to hIS
concern over the tIme lost by the Gnevor due to the Gnevor's arthrItIc
condItIOn, and hIS concern about the functIOnmg of the Neuro PsychIatnc
Umt under the Gnevor's dIrectIOn. In partIcular, he was concerned about the
Gnevor's detenoratmg health and ItS effect on the Gnevor's abihty to carry
out the admmIstratIVe functIOns as a Umt DIrector He stated that he
dIscussed the Gnevor's health problem and absences from work m February
of 1993, and agam m July 1993 He eventually decIded that It was necessary
to re-assIgn the Gnevor on November 1, 1993, as a result of the Gnevor's
contmuous absence for the penod July 19, 1993 to October 29, 1993 and the
uncertamty of the Gnevor to mamtam regular attendance at work m future
HIS eVIdence was that the Gnevor went off work the next day, November 2,
1993, and remamed on sIck leave until hIS return on November 30, 1993
Dr Prendergast testIfied that the Gnevor called m sIck on December
21, 1993, and at that pomt he decIded to obtam an mdependent medIcal
assessment of the Gnevor's illness as well as hIS abihty to carry out hIs dutIes
13
m future He arranged for the medIcal assessment, and on the basIs of the
ambIgUIty of the doctor's note as to the abilIty of the Gnevor to return to
work, advIsed the Gnevor to remam off work until the assessment of hIS
health was made
Dr Prendergast demed placmg any restnctIOns on the Gnevor's
telephone or access to F ax or office eqUIpment. HIS eVIdence was that the
restnctIOns placed on the Gnevor's use of Fax machmes and eqUIpment were
made by the AssIstant AdmImstrator when staff complamed that the Gnevor
was creatmg a dIsturbance m the office HIS understandmg was that the
AssIstant AdmmIstrator dId so because the Gnevor was not engaged m
Corporate busmess
Karen Clark, the Attendance Management Co-Ordmator, testIfied that
she had arranged for a medIcal assessment of the Gnevor as a result of hIS
illness on December 21 and December 22, 1993 Her eVIdence was that she
had spoken to the Gnevor on December 23, 1993, and attempted to arrange a
medIcal appomtment for the Gnevor as soon as possible, but because most
specialIsts' offices were closed between ChrIstmas and New Year's Day, the
earlIest appomtment available was Janumy 5, 1994 Her testImony was that
she had to appeal to the doctor's office staff wIth her concerns about the
Gnevor's health m order to get the early appomtment.
14
Counsel for the Employer submItted that the Employer had not
breached Its employment oblIgatIOns to the Gnevor, and m support of the
eVIdence and argument cIted Re Thompson General HospItal and
Thompson Nurses MO.N.A Local 6 (1991) 20 L.A.C (4th) 129
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
ThIS Board has carefully consIdered the eVIdence and arguments
concernmg the grIevances filed, and m partIcular the Gnevor's eVIdence as to
ills illness, WhICh m the penod pnor to the filIng of hIS gnevances was
senously debilItatmg. WIthout questIOn the Gnevor's arthrItIc condItIOn was
such that the Gnevor was unable to work for extended penods of tIme, but at
tImes, when the condItIOn was m remIssIOn, he was able to perform hIS
dutIes Both partIes agree that the Gnevor was able to satIsfactorily perform
hIS professIOnal dutIes at those tImes when he was at the workplace
However, from the eVIdence, the Gnevor's condItIOn detenorated
sIgmficantly dunng the latter part of 1992, and m 1993 The Gnevor was off
work for 55 workmg days m 1992 (most dunng the latter half of the year) and
12664 workmg days m 1993 Accordmg to the eVIdence, the Gnevor's
condItIOn was such that he was off work entIrely from July 19, 1993 to
15
October 29, 1993 He worked on November 1,1993, and was offwork
agam for the balance of the month. He returned to work on November 30,
1993 and worked until December 20th The next day, he reported m sIck,
albeIt wIth an upper respIratory mfectIOn rather than as a result of hIS arthrItIs
The Gnevor's absences from work due to hIS illness first caused the
ClImcal DIrector to express ills concern to the Gnevor about hIS medIcal
condItIOn and attendance at work m February 1993, and agam m July of
1993 On the latter occaSIOn, the ClImcal DIrector also expressed hIS
concern about the adverse effect that the Gnevor's absences were havmg on
the operatIOn of the Neuro PSYChiatrIC Umt, and the dIfficultIes of staff
managmg the umt wIthout the regular presence of ItS DIrector The Gnevor
apparently left on sIck leave a few days later, and remamed off work until the
end of October, 1993 On November 1, 1993, after a bnef dIscussIOn wIth
the Gnevor about ills condItIOn, the ClImcal DIrector assIgned the Gnevor to
a staff psychIatnst posItIOn for a SIX month penod for health reasons He dId
so pursuant to S 11(3) of RegulatIOn 977 WhICh reads as follows
s.11(3) A full-time civil servant who, for reasons of health, is assigned to a
position in a classification having a lower maximum salary shall not
receive any salary progression or salary decrease for a period of six
months after his or her assignment and, if at the end of that period
the civil servant is unable to accept employment in his of her former
classification, the civil servant shall be assigned to a classification
consistent with his or her condition.
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The Gnevor contmued to receIve hIS salary and classIficatIOn as a
PMD23 The eVIdence of the ClImcal DIrector was that he found It necessary
to assIgn the Gnevor to a staff posItIOn m an effort to free the Gnevor from
hIS day-to-day admmIstratIVe responsibilItIes as a Umt DIrector and to have a
tIme penod m whIch to assess any Improvement m the Gnevor's health
condItIOn. GIven the eVIdence, the actIOns of the ClImcal DIrector were
reasonable under the cIrcumstances, and the assIgnment of the Gnevor to a
StaffPsychmtnst posItIOn under s 11(3) of RegulatIOn 977 dId not vIOlate the
Gnevor's employment nghts
The Gnevor also set out a lengthy lIst of events m hIS gnevances whIch
he charactenzed as harassment by hIS Employer These events pertam to the
penod followmg the Gnevor's absence on sIck leave on December 21, 1993
From the eVIdence, the Gnevor reported m sIck on December 21, 1993, and
mdIcated that he would be returmng to work on December 24, 1993,
provIded that certam blood tests were satIsfactory To allay the ClImcal
DIrector's concerns, the Gnevor obtamed a medIcal certIficate that mdIcated
that he 'may' be fit to return to work on December 24, 1993 The
mconclusIveness of the medIcal certIficate, and the Gnevor's prevIOus
dIfficultIes wIth hIS illness led the ClImcal DIrector to belIeve that he should
re-organIze staff coverage for the holIday penod December 24, 1993 to
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January 1, 1994, and made the necessary staffing changes to permIt the
Gnevor to remam on sIck leave until such tIme as a full medIcal assessment
of the Gnevor could be made
From the eVIdence, It was necessary to have some degree of certamty
as to staff coverage for the holIday season, and gIven the eVIdence, the
actIOns of the ClImcal DIrector were not unreasonable m makmg the
necessary changes to the work schedule and arrangmg for a medIcal
assessment of the Gnevor's condItIOn.
Accordmg to the eVIdence of the Gnevor, he dId attend at the
workplace dunng the penod between December 24, 1993 and December 31,
1993 From hIS eVIdence, he was attemptmg to reach hIS aSSOCiatIOn
representatIves concernmg the events that had taken place, and was
apparently engaged m actIvItIes not related to corporate busmess The
unrefuted eVIdence of the Employer was that he was eventually demed
telephone, Fax and other servIces because he was causmg a dIsturbance and
was engaged m non-corporate busmess GIven the absence of eVIdence to
the contrary, and the admIssIOn of the Gnevor that he was engaged m
personal busmess, thIS Board can only assume that the order of the AssIstant
AdmmIstrator was warranted under the CIrcumstances
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From the Gnevor's perspectIve, the actIOns of the Employer m thIS
case may appear to be unsympathetIc to lum, gIVen lus health condItIOn.
However, the needs of the mstItutIOn reqUIre a level of certamty of attendance
at the workplace wIth respect to ItS professIOnal staff m order that patIent
care may be mamtamed. In tlus case the Gnevor was unable to delIver lus
servIces WIth any degree of certamty, and the Employer was oblIged to
ensure that the servIces were provIded by others ThIS Board accordmgly
finds that the actIOns of the Employer m takmg the steps that It dId were
JustIfied, and dId not constItute a breach of the Gnevor's employment.
On the basIs of the eVIdence before thIS Board, and for the reasons
gIVen, the gnevances are hereby dIsmIssed.
DATED AT TORONTO THIS 31 st DA Y OF MA Y 2000
~
.........
John A. Willes, Q C , Panel Chair
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