HomeMy WebLinkAbout1995-1880CODE97_08_29
ONrARIO EMPLOYES DE LA COUAONNE
CROWN EMPLOYEES DE L'ONrARIO
1111 GRIEVANCE COMMISSION DE
SElTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE BOO, TORONTO ON M6G 1Z8 TELEPHONErrELEPHONE (41~) 32t1-1388
180, RUE DUNDAS OUEST BUREAU BOO, TORONTO (ON) M6G 1Z8 FACSIMILE/TELECOPIE (41t1) 32t1-13SHJ
GSB # 1880/95
OPSEU # 95G259
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Code)
Grievor
- and -
the Crown in Right of ontario
(Ministry of Community & social services)
Employer
BEFORE F D Briggs Vice-Chair
FOR THE R Murdock
UNION Counsel
Ryder, wright, Blair & DOYile
Barristers & Solicitors
FOR THE K Renison
EMPLOYER Counsel
Legal Services Branch
Ministry of Community & Social Services
HEARING August 16, 1996
The gnevor, MIchael Code, receIVed the followmg letter dated September 28, 1995
ThIS letter IS to advIse you of my deCISIon subsequent to the pre-
dIscIplInary meetmg held on September 21, 1995 regardmg your
unacceptable conduct m mappropnately mampulatmg the reschedulIng
of your mutually agreed upon medIcal exammatIon WhICh had been
scheduled by the employer wIth Dr Karen Stolee for August 22, 1995
Upon revIewIng all of the mformatIOn submItted to me, I have
concluded that between July 27 and August 21, you mtentIOnally
planned to deceIVe and mampulate two doctors and your employer four
dIfferent tunes. When requested to explam your actIons to the employer
at a meetmg on August 22, 1995, you were deceptIve once agam. The
employer has shown undue patIence, perseverance and determmatIon
m our efforts to assIst you m all ways possible, to unprove your
attendance Through mutual agreement, at the recommendatIon of your
umon, you were to attend the mandatory medIcal wIth Dr Stolee Your
conduct unfortunately demonstrates deceIt and planned mampulatIon to
counter the employer's efforts to obtam valuable mformatlon on your
abilIty to defend your actIOns at the pre-dlscIplmary meetmg, you were
unable to proVide a reasonable explanatIOn for your actIons.
Your behaViour clearly Violates three standards of the MmIstry
Standards of Conduct. Standard No 4 "ComplIance wIth SupervIsIOn"
wherem you mtentIOnally planned not to comply wIth dIrectIOns of the
employer Standard No 5 "Lawful and Honest Conduct" such a breach
of trust and honesty has created an Irreconcilable breakdown of the
mherent baSIC trust reqUired m any employee/employer relatIonshIp
Standard No 7 as an employee of the RIdeau RegIOnal Centre, you
represent the facilIty and the MImstry, your actIOns have placed the
facilIty and the MmIstry m a precanous pOSItIon m terms of ItS
reputatIOn wIth two local doctors.
Under the powers delegated to me under the ReVised Statutes of
Ontano, Chapter P 47, SectIOn 22(3) of the--PublIc ServIce Act, I find
thIS IS Just cause for dIsmIssal. For the reasons stated above, you are
dIsmIssed from employment at the RIdeau RegIonal Centre effective
Fnday September 29, 1995
You are also advIsed that you have the nght to gneve thIS decIsIon as
per Article 27 8.2 of the CollectIve Agreement.
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The letter was sIgned by Wynn Turner, AdmInIstrator ofthe Centre The gnevor filed
a gnevance the folloWIng day allegIng that he had been dIscharged wIthout Just cause.
By way of remedy he asked to be reInstated and to be made whole In all respects.
At the first day of heanng, a number of prelunInary matters were dealt wIth IncludIng
dIsclosure and allegatIOns that the Employer attempted to expand the grounds of the
dIscharge One of the matters raIsed by the Umon was an objection that certaIn
eVIdence the Employer Intended to call dunng these proceedIngs was Improperly
obtaIned and therefore inadmIssable. It was agreed that the partIes would provIde
wntten submIssIons on thIS matter
A bnef outlIne of the facts IS In order The gnevor has been Involved In the
attendance reView program. It was agreed that the gnevor would undergo a
mandatory medIcal assessment by Dr Stolee The gnevor sIgned an authonzatIOn
whICh stated.
Compulsory health eXamInatIOns dunng the course of employment wIth
the Government of Ontano Include, among others, those ordered for
repeated absences or the InabilIty of an employee to perform regular
duties because of a confirmed or suspected health problem.
The authontIes for these eXamInatIOns are
a) For employees In the bargaInIng umt - Article 52.9 of the
Collective Agreement between Management Board of CabInet
and the Ontano PublIc ServIce Employees U mono
b) For management and excluded employees, SectIOns 68(3) of
RegulatIon 881 of the PublIc SefVIce Act.
I, MIchael Code, am fully aware that I have been referred under the
authonty described above on thIS release and that the examInIng
physICian IS oblIged to submIt a report to the refernng officer III my
MImstry
I understand that the report only authorIZes the doctor to dISCUSS
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conclusIOns and recommendatIons wIth the employer relatmg to my
abilIty or mabilIty to contmue work wIth or wIthout modIficatIon of my
present Job
In sIgnmg thIS AuthonzatIon and Release, I certIfy that I have read thIS
document and that I understand ItS contents. Further I authorIZe the
phYSICIan to perform saId exammatIons, to prepare and submIt report of
my condItIon and to make appropnate recommendatIons concermng me
and my Job to my employmg MImstry
Dunng the week of July 31, 1995, the gnevor spoke to Dr StoleeJs m her office. He
mformed her that she had been chosen for the mdependent medIcal assessment and
he asked her If the appomtment could be scheduled for October or November He
was not successful III thIS request.
On August 8, 1995, Faye Code (no relatIon to the gnevor) from the Employer's
Human Resources department, spoke WIth Dr Stolee and was told of the gnevorJs
attempt to schedule the assessment to a later tune The medIcal appomtment was
establIshed for August 22, 1995, and the gnevor was mformed Via a regIstered letter
Dr Stolee receIved the formal request for the medIcal assessment and the gnevor's
authorIZatIon III a letter dated August 10, 1995
The gnevor ViSIted his personal phYSICIan, Dr Kerr, dunng the week of August 14,
1995, where he, accordmg to the Umon, "took the matter up WIth hun" Dr Kerr
u1t1Illately left a telephone message on Dr Sto1ee's answenng machme requestmg
that the mandatory medIcal be rescheduled. Dr Stolee's office called the gnevor on
August 21, 1995 and told h1Ill that the appomtment had been rescheduled for
October 10, 1995 The gnevor then telephoned two dIfferent supemsors to mform
them of the reschedulIng. Accordmg to the Employer, one supemsor, Mr Hart,
asked the gnevor If he knew why the appomtment had been rescheduled and the
gnevor "stated that he dId not know why the appomtment had been cancelled and
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suggested that perhaps vacatlOn schedulIng could have been the problem" Further,
the gnevor IS alleged to have saId that, "he was sorry that the appomtment was
cancelled as he wanted to get the mandatory medIcal over wIth" ThIS dISCUSSIon was
r.epeated, more or less, wIth the second supel'Vlsor
The followmg day there was a meetmg wIth members of management, the umon and
the gnevor It was the U mon's assertlOn that dunng thIS dISCUSSIon It became
apparent that the Employer had been speakmg wIth Dr Stolee and she had mformed
them of her conversatlOn wIth the gnevor regardmg the reschedulIng.
In fact, Ms. Faye Code had telephoned Dr Stolee's office to enqUIre as to why the
gnevor's appomtment was rescheduled. Dr Kerr was also contacted. The Employer
sent both Dr Kerr and Dr Stolee a wntten statement for SIgnature outlInmg Its
understandmg of facts as told to Ms. Code Dr Sto1ee amended the document before
sIgmng. Dr Kerr SIgned hIS statement unamended.
In ItS wntten submISSIons, the Umon stated that the mformatIon solICIted from Drs.
Kerr and Sto1ee was obtaIned by breachIng Mr Code's nght to pnvacy and
confidentIalIty and that both doctors may be guilty of professlOnal mIsconduct. The
College of PhYSICianS and Surgeons of Ontano IS currently InvestIgatmg Mr Code's
complam regardmg Dr Stolee's conduct. Dr Kerr has retracted all oral and wntten
comments made to the Employer, and the gnevor has reserved hIS nght to file a
further College complam agamst Dr Kerr
The prelunmary Issue, as charactenzed by the Umon, IS whether the mformatIon
obtaIned from Drs. Kerr and Stolee IS pnvileged and/or confidentIal and therefore
InadmIssible, and whether that renders the Employer's allegatlOns of mIsconduct VOId
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ab m/no Accordmg to the Employer, the Issue IS whether Dr Sto1ee's knowledge of
the gnevor's attempt to delay hIS mandatory medIcal assessment was pnvileged, and
whether the Board should accept the eVIdence of thIS mformatIon gIven that It IS the
foundation of management's reason for the dIsmIssal of the gnevor
UNION SUBMISSIONS
The U mon asserted that the gnevor has a nght to pnvacy over hIS own medIcal
records. That nght has to be waIved by the gnevor before access can be obtamed by
a thud party Once access IS properly obtamed, the mdIVIdual's nght of pnvacy still
adheres to the records. That IS to say that the waIver IS always condItional and the
nght of access IS always fettered.
The nght to pnvacy IS found under the Freedom of InformatIOn and ProtectIOn of
Pnvacy Act, R.S 0 1990, Chapter 31 (heremafter referred to as the "FOI") Section
39 states.
Personal mformatIon shall only be collected by an mstItutIon duectly
from the mdIVIdual to whom the mformatIon relates unless, (a) the
mdIVIdual authorIZes another manner of collectIOn.
It was the Umon's VIew that the Employer breached the prOVIsIon of the FOI when
It solICIted pnvate mformatIOn about the gnevor He had not waIved hIS nght of
pnvacy In the case of Dr Stolee, the gnevor had sIgned a hIgWy restnctIve release
whIch dId not allow for the mformatIon at Issue to be dIsclosed. Accordmgly, the
mformatIon was rrnproperly obtamed and the Employer cannot now rely on thIS
mformatIon.
Ms. Murdoch, for the U mon, argued that the Doctor - Patient pnvilege has long been
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recognIZed as confidentIal m nature Failure to respect that pnvilege breaches the
Regulations under the Health DIscIplInes Act Reg 548, sectlOn 29(23) The matter
of schedulIng of appomtments falls mto the category of "professlOnal servIce" As
such, any mformatlOn regardmg schedulIng cannot be dIsclosed wIthout the patient's
consent. Drs. Kerr and Sto1ee breached then professlOnal responsibihties when they
dIscussed the gnevor wIth the Employer
The Umon referred to comments of Dubm J A. m a dIssent m Re Solicitor General
of Canada et al v Royal Commission of Inquiry into the Confidentiality of Health
Records in Ontario [1981] 2 S C.R. 494
Members of the medIcal professlOn have a duty of confidentialIty wIth
respect to then patients. They are under restramt not to volunteer
mformatlOn respectlllg the condItion of then patients or any professlOnal
semces performed by them wIthout then patient's consent. In the
absence of such consent, members of the medIcal professlOn breach
theIr duty If they dIsclose such lllformatlOn unless reqmred to do so by
due process of law
The gnevor had a reasonable expectation that the dISCUSSIon he had wIth Drs. Kerr
and Stolee were pnvileged, accordlllg to the Umon. The matter of pnvilege IS not
merely a dIspute over schedulIng mformation. The nature of the dISCUSSlOns was of
a sensItive nature to both employee and Employer The gnevor's conduct arose from
a need to protect hrmself from what the Umon suggests IS ongomg dIscrrmmatIOn.
The gnevor expressed hIS concerns to the physIcIans and he felt that he dId so m
confidence The expectatIOn of pnvacy IS crucIal to an effectIve doctor-patient
relatIOnshIp
Ms. Murdoch contended that because It IS the Employer that mtends to rely upon the
mformatIOn obtamed from Drs. Kerr and Stolee, It bears the onus of showmg
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comphance wIth the FOI. The Employer will be unable to show any authonzatlon
from the gnevor for those dIScussIons. The hmlted authonzatlon gIven to Dr Stolee
was not suffiCIent to allow for the mformatlon dIsclosed. It was suggested that the
~nevors pnvacy nghts WIth hIS doctors should be recogmzed by the Board m the
same fashiOn as Sohcltor-chent pnvilege
The Umon rehed upon Slavutych v. Baker et al [1976] 1 S C.R. 254, Re Shulman
and College of Physicians & Surgeons of Ontario (1980), 20 O.R. (2d) 40; and Re
Solicitor General of Canada et al v. Royal Commission of Inquiry into the
Confidentiality of Health Records in Ontario [1981] 2 S C.R. 494
EMPLOYER SUBMISSIONS
Ms. Remson, for the Employer, submItted that the mformatlOn regardmg the
scheduhng of an appomtment IS not "personal mformatlon" as consIdered ill SectiOn
2 of the FOI. SectiOn 2 defines personal mformatiOn as "recorded mformatIon about
an Identifiable mdIVldual, mcluding (b) informatiOn relatmg to the educatlOn or the
medIcal, psychlatnc, psychologIcal, cnmmal or employment hIStOry of the mdIVldual
relatmg to finanCIal transactiOns m WhICh the mdIvIdual has been mvolved"
In the event that the Board IS of the VIew that the scheduhng mformatiOn IS personal
illformatlon, the Employer contended that It falls wIthm the exemptIon m s. 42( e) of
the FOI. SectIon 42 (e) states that mformatIon may be dIsclosed "for the purpose of
complymg WIth an Act of the LegIslature or an Act of Parhament or a treaty,
agreement or arrangement thereunder" Section 52 of the Collective Agreement
constitutes an agreement under thIS prOVIsIon. The Gnevance Settlement Board ill
Re The Crown in Right of Ontario (Ministry of Community and Social Services) &
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OPSEU (ChuanIPrommer) (April 7, 1992) unreported (Samuels), has recognIZed the
FOI permIts dIsclosure of personal mformatlon when It IS for the purpose of
complYlllg wIth the Collectlve Agreement. In Re The Crown in Right of Ontario
(Ministry of Solicitor General- Correctional Services) & OPSEU (Stacey) (June 20,
1986) unreported (Knopt), the Board held that there was no lllvaSIOn of pnvacy when
the Employer sohcIted lllformatIOn from a physIcIan regardlllg a modIfied job
placement. The lllformatIon belllg requested was a clanficatIon of lllformatIOn
preVIously provIded. It was urged by Ms. Remson that the mformatlon regardlllg the
schedullllg of the gnevor's medIcal appomtment was merely clanficatIOn of why the
appollltment had to be rescheduled.
Regardlllg the Issue of medIcal pnvilege, It was asserted by the Employer that no
such pnvilege eXIsts. The junsprudence IS clear that a doctor IS compellable m a
court. The Employer rehed upon a number of authontIes mcludlllg Re D V National
Society for the Prevention of Cruelty to Children [1977] 2 W.L.R. 201 (H.L.) Re
Regina v R.S. (1985), 19 C.C.C. (3d) 115 (Ont. C.A.), J Sopmka, S Lederman and
A. Bryant, "Doctor and PatIent" m The Law of EVIdence In Canada (Toronto
Butterworths, 1992) (pages 712 - 718)
Ms. Remson submItted that the Issue of whether Drs. Kerr or/and Stolee breached
the gnevor's pnvacy thereby commIttmg profeSSIOnal mIsconduct IS a matter for the
College of PhysIcIans and Surgeons to determme The Umon's objectIon ought not
to be tolerated as a method of mtimIdatmg WItnesses to refuse to testIfy before the
Board.
The Employer argued that thIS Board IS expected to arnve at the truth of the matter
and all relevant eVIdence should be heard to ensure that JustIce IS done If the
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eVIdence IS determllled to be relevant, It should not be dIsallowed on the sole baSIS
of confidentIahty The Supreme Court of Canada m Re Slavutych v. Baker (supra)
allows courts to consIder the matter of pnvilege regardmg the admIsSIon of eVidence
on a case by case basIs If the four cntena of the WIgmore test are met. Those cntena
are
- the commumcatIons must ongmate m a confidence that will not
be dIsclosed
- thIS element of confidentIahty must be essentIal to the full and
satIsfactory mallltenance of the relatIonshIp between the partIes
- the relatIon must be one whIch m the opimon of the commumty
ought to be sedulously fostered
- the lllJury that would mure to the relatIon by the dIsclosure of the
commUnICatIons must be greater than the benefit thereby gamed
by the correct dIsposal of htIgatIOn.
Regardmg the first cntena, It was suggested by the Employer that ArtIcle 52 of the
collectIve agreement mdlcates that the U mon agree that the scheduhng of the
appomtment shall be done by the Employer and the employee. There IS also
agreement that the Employer will send an assessment regardmg the work at Issue
Further, It IS agreed that the report will be released to the gnevor and the Employer
QuestIOns WhICh anse from scheduhng the assessment or obtammg results are part
of the schedulmg process and therefore part ofthe mandatory medIcal process whIch
was consensual. Further, there was never an explIcIt understandmg that confidentIalIty
was guaranteed regardmg those dISCUSSIons.
The Employer argued that confidentIahty IS not essentIal to the mamtenance of the
doctor/patIent relatIOnshIp m thIS case Indeed, m Regina v R.S. (supra), It IS saId
that even m cases of therapeutIc relatIonshIps, WhICh arguably requIre a greater level
of confidentIalIty, there IS no eVIdence that patIents refram from treatment due to a
10
lack of pnvilege In the mstant matter, there was no "treatment" relatIOnshIp between
the gnevor and Dr Stolee. The only contact that would occur was an exammatIon to
determme fitness and report the findmgs. There was no mtentIon to contmue a
relatIonshIp
Regardlllg the thIrd cntena, Ms. Remson argued that pnvacy conSIderatIons cannot
shIeld fraud or dIshonesty While It mIght be saId that the communIty expects doctors
to be dIscrete about theIr patients, there IS no expectation that pnvacy extends to a
dIshonest or unethIcal act. In the mstant matter, the gnevor told Dr Stolee that he
wanted to put off the appomtment to get more dnVIng expenence m order to qualIfy
for another pOSItIon outSIde hIS current department.
The Employer submItted that the benefit of bemg allowed to present ItS case
outweIghs any mJury caused to the gnevor The mformatIon about the schedulIng of
the mandatory medIcal assessment was not a secret. Both partIes were entItled to the
mformatIon. As the party InItially makmg the appomtment, the Employer was allowed
to make enqUInes as to ItS reschedulIng. When the Employer sought mformatIon
from the gnevor about the reschedulIng, he mdIcated that he dId not know why It was
changed. The Employer then sought to find out why It was rescheduled and m domg
so, dIscovered that the gnevor had been dIshonest. The Employer should not be
foreclosed from callIng that eVIdence
Ms. Remson asserted that the applIcatIOn of SectIon 24 of the Charter of RIghts and
Freedoms m vanous cnmmal offenses prOVIdes helpful mSIght. One factor to conSIder
IS whether eVIdence was available m any event. In Re Collins v. The Queen (1987),
33 C.C.C. (3d) 1 S C.C., at page 13, Lamer J stated ,"real eVIdence eXIsted
Irrespective of the VIolatIOn of the Charter and ItS use does not render the tnal
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unfaIr" If Dr Stolee had mentioned the facts regardmg the reschedulIng of the
appomtment m her report, there would have been no Issue of pnvacy or pnvilege
The Employer also provIded the Board wIth Re The Queen v. Wray [1971] S C.R.
272, wherem It was stated at page 293
the exerCIse of a dIscretIon by the tnal Judge anses only If the
admIssIon of the eVidence would operate unfaIrly The allowance of
admIssible eVIdence relevant to the Issue before the Court and of
substantial probatIve value may operate unfortunately for the accused,
but not unfaIrly It IS only the allowance of eVidence gravely prejUdICIal
to the accused, the madmIssibilIty of WhICh IS tenuous, and whose
probatIve force m relation to the mam Issue before the Court IS tnflmg,
WhIch can be saId to operate unfaIrly
The GrIevance Settlement Board IS charged wIth determmmg whether the gnevor was
dIscharged wIthout Just cause It IS necessary for the Employer to be allowed to
present the eVIdence WhICh led It to Its deCISIon. It must be allowed as It goes not
only to the truth of the gnevor's conduct but also to the reasons for the dISCIplIne
DECISION
The first Issue for thIS Board to address IS whether the mformatIon the Employer
mtends to rely upon obtamed from dIScussIons wIth Drs. Sto1ee and Kerr IS
confidential and/or pnvate In my VIew, the mformatIOn IS not pnvate accordmg to
sectIon 2 of the FOI. Nothmg m the facts would lead me to find that the eVidence
IS confidential as between doctor and patIent.
Regardmg the eVidence of Dr Stolee, the entIre dISCUSSIon at Issue took place pnor
to her even bemg mformed by the parties that she was charged WIth the responsibilIty
of a medIcal assessment. The conversatIon was, m total, about the tImmg of the
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appomtment. The dIScussIon was not pre-arranged. The gnevor went to Dr Stolee's
office wIthout an appomtment for the purpose of dlscussmg the schedulIng of hIS
medIcal assessment. The U mon submItted that the dIScussIon falls mto the rubnc of
"profeSSIOnal sefVIces" I must dIsagree There was no profeSSIOnal servIce prOVIded.
There was a dIscuSSIOn about when profeSSIOnal sefVIces would be rendered.
Havmg decIded that the mformatIon at Issue IS not confidential or prIvate, I do not
mtend to deal wIth the matter of whether the "AuthonzatIon and Release" form
SIgned by the gnevor was sufficIently restnctIve to deny the mformatIon to the
Employer Nor will I deal wIth the Issue of whether the physIcIans are guilty of
profeSSIOnal mIsconduct. That IS a matter for the College of PhysIcIans and Surgeons.
However, m the event that I am wrong and the mformatIon IS confidentIal, I would
allow It to be admItted m any event. I agree wIth the Employer's submISSIons that the
eVidence meets the cntena establIshed in the Wigmore test. The U mon submItted
that thIS Issue was SImilar to the Re Slavutych case (supra) I dIsagree In that case,
the gnevor was a UnIVersIty professor who was asked by hIS Employer to draft a
"tenure form sheet" regardmg another employee The document Itself was clearly
labelled "confidentIal" and there were dIrectIOns that It should be forwarded m a
"sealed envelope marked "Confidential" Further, the gnevor was told that hIS
document would be kept m the stnctest confidence The gnevor m that case was
asked for mformatIon, told that It would be confidentIal and then dISCIplIned as a
result of the report. Those facts are SIgnIficantly dIfferent from the matter at hand.
FIrstly, there was no speCIfic dISCUSSIon about confidentIahty between the gnevor and
eIther phYSICian. The UnIon argued that confidentIahtywas not dIscussed because the
gnevor reasonably thought that any dISCUSSIon WIth phYSICIans were pnvileged. It IS
dIfficult to understand why the gnevor would arnve at that VIew gIVen the subject
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matter of the dIScussIon. DIScussIon regardmg the schedulIng of an appomtment IS
part of the admInIstratIve process of the medIcal assessment. It IS not a component
of the actual medIcal reVIew nor does It anse out of the assessment.
.
Secondly, the dIScussIon was not mltIated by the Employer The partIes agreed to a
medIcal assessment and agreed that the Employer would establIsh the appomtment.
The gnevor could have slffiply awaIted notIficatIOn of the appomtment. Instead, he
went to Dr Stolee's office to dISCUSS scheduhng. Further, he went to Dr Kerr's
office and asked hIm to mtervene to have the appomtment rescheduled. The
Employer learned of the dISCUSSIons subsequent to the reschedulmg. Further, the
Employer first sought the mformatIon about reschedulmg from the gnevor, who
claImed he dId not know the reasons for the change
Accordmgly, the eVidence will be admItted. I will leave It to the partIes to argue m
theIr final submIssIons the matter of what weIght, If any, should be afforded that
eVIdence
The partIes also raIsed the an Issue of alleged dISCrImmatIon. However, the UnIon
dId not forward submISSIons regardmg thIS Issue. Accordmgly, we will deal wIth thIS
matter on the next day of heaTIng or m advance of the heanng If that IS the
preference of the partIes.
Dated thIS Z9th day of ~gust, 1997
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