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HomeMy WebLinkAbout1995-1967ADAMSON97_06_24 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 328-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (41") 326-1396 GSB # 1967/95 OPSEU # 95F608 IN THE HATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Adamson) Grievor - and - the Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE R.J. Roberts Vice-Chair FOR THE R. Blair ONION Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE G Basanta EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING May 23, 1997 June 13, 1997 1 AWARD I. Introduction. In the present case, the gnevor was one of two successful candIdates m the mtervIew stage of a competition for two CorrectIOnal Officer 2 (CO 2) posItions at the Ottawa-Carlton DetentIOn Centre He was not offered one of the CO 2 positIOns, however, because the selectIOn panel was not satIsfied that the gnevor was fit to return to work. At the time, the gnevor was on an unpaid leave of absence from Maplehurst DetentIOn Centre near Toronto that had lasted for approXImately 3 months, and lITunedIately pnor to thIS leave, was off due to Illness for a penod of about 4 months. The gnevor was requested by the panel to prOVIde substantiation from a medIcal Doctor of the reasons for thIS penod of Illness and a prognOSIS for future regular attendance. The gnevor agreed to permIt the Human Resources member of the panel, Ms. Amy Dumon, to talk to hIS Doctor m Toronto The Doctor was able to proVIde Ms. DunIOn WIth acceptable reasons for the absence due to Illness but saId he could not prOVIde a prognOSIS for the future because the gnevor had moved to Ottawa SIX months earher and he had not seen hIm m thIS time Ms. Dumon dId not go back to the gnevor for further mformatIOn. Without mformmg the gnevor of the result of the mtervIew WIth hIS Toronto Doctor she recommended to the panel that the gnevor be reJected for the Job The panel agreed. 2 ,. At the heanng, It was submItted on behalf of the gnevor that If Ms. DunIOn had advIsed the gnevor that hIs Toronto Doctor could not provIde the requested prognosIs, he could easIly have had hIs Doctor In Ottawa do so because he was, In fact, fit to return to work. It was submItted on behalf of the employer, however, that because the onus was on applIcants to provide all necessary InfOrmatIOn to the selectIOn panel, Ms. Dumon dId not have any duty to so adVIse the gnevor and seek further Information from hIm. When the heanng of June 13, 1997, was completed, an Order was issued plaCIng the gnevor Into a then-vacant C02 positIOn at the Ottawa Carlton-DetentIOn Centre, as of Monday, June 23, 1997 I reserved on the questIOn of the gnevor's claim for compensatIOn pendIng the Issuance of thIS deciSIOn. For reasons whIch follow, I have deCIded that It would not be appropnate to award compensatIOn In the CIrcumstances of the present case. II. Factual Background. The gnevor had been a claSSIfied CorrectIOnal Officer at the Maplehurst DetentIOn Centre, Just outSIde Toronto, SInce September, 1992 In the penod July - September, 1994, the gnevor took a parental leave from hIS pOSItion. Followmg thIS leave, the gnevor returned to work at Maplehurst but only lasted for one 12-hour ShIft. He then went off on SIck leave It seems that In September, 1994, the gnevor's WIfe and famIly moved to Ottawa. HIS WIfe, apparently, had accepted a pOSItion at the UmversIty of Ottawa that commenced at that 3 time. The gnevor attempted to remam m Toronto to return to hIS posItion at Maplehurst at the end of September and take care of matters that remained outstandmg m the CIty, mcludmg the sale of the farmly dwelhng. He began to expenence consIderable stress and decided to consult hIS family Doctor, Dr Ian G Varney Dr Varney had been the grievor's farmly Doctor smce 1986 Dr Varney testified that he saw the grievor on October 11, 1994 The gnevor mdIcated, among other things, that he was expenencing stress, anxIety and depressIOn regardmg hIS return to work. At the end ofms assessment of the gnevor on that day, Dr Varney recommended that the gnevor should not return to work and referred him to a psychologISt who had treated hIm on a preVIOUS occaSIOn. Two weeks later, on October 2.5, the grievor returned for an updated assessment. Once agam, Dr Varney determmed that the gnevor should remam away from work. On November 24, 1994, the grievor returned to Dr Varney's office for another update. He also asked Dr Varney for a medIcal note for his employer Dunng thIS VISIt, the gnevor complamed of allergy problems and low back pam in addItIOn to hIS stress, anXIety and depressIOn. Dr Varney determmed that the gnevor should remam off work for another SIX weeks. He felt, accordmg to hIS testImony at the heanng, that full recovery eventually was expected. ThIS was the last tIme that Dr Varney exammed the gnevor; however, m December he receIved a letter from the gnevor's allergIst and m March, 1995, he receIved a letter from a sports and speCial mJunes chmc operated by Dr Robert Gavreau m Ottawa mdIcatmg that from 4 December 6, 1994 to January 20, 1995, the gnevor had receIved 7 treatments for hIS low back pam. The medIcal note that Dr Varney Issued read as follows November 24, 1994 To Whom it May Concern. Re Warren Adamson D O.B 30/3/67 ThIS IS to confirm that Mr Adamson remams under my care. He contmues to be assessed perIOdIcally both by myself and a speciahst. At thIS time, I am unable to predIct the exact date of returning to work. I would estimate that it may reqUIre an addItIOnal 6 weeks for hIm to recover Full recovery IS eventually expected. Smcerely, Ian G Varney, M.D , C C.F.P The note essentIally confirmed that it would take at least until the end of December for the gnevor to recover It also mdICated that full recovery was eventually expected. For some reason, this medICal note never made It mto the gnevor's personnel file at Maplehurst. The gnevor testIfied that the note was gIven to the employer, and thIS assertIon was not questIOned by the employer Ms Dumon, however testified that the first tIme that she saw the note was on the first day of heanng It was not m the file when she reVIewed It at the time of the competItIOn. 5 In January, 1995, the gnevor requested and was granted an unpaId leave of absence from Maplehurst. The leave of absence commenced on February 8 The gnevor testIfied that at that pomt he no longer consIdered hImself to be dIsabled and as a result, he could no longer remam on sIck leave The apparent purpose of the leave of absence was to permIt hIm to seek other employment in Ottawa, where he was spendmg the bulk of his tIme As part of this search, the gnevor contacted Ms. Dunion about the potentIal for obtammg a lateral transfer from Maplehurst to Ottawa-Carlton. He also asked about the potentIal for partIcIpatmg m a competitIOn for vacanCIes m C02 posItions at the latter facilIty Ms. Dumon recalled m her testimony that he asked whether hIS chances in a competitIOn would be prejudIced by some substantIal absenteeIsm that he mcurred because of an old low back mJury She replIed that so long as the absenteeIsm had been approved and medIcally substantIated, he should have no problem. At that pomt, however, there were no vacanCIes at Ottawa-Carlton. Then, m Apnl, 1995, two vacanCIes for CO 2 posItIOns opened up at Ottawa-Carlton. It was deCIded to fill them by means of a Job competItIon. A tmee-person selectIOn panel was struck. Ms. Dumon was the Human Resources member of the panel. The gnevor was one of several candIdates for the posItIOns. The candIdates, mcludmg the gnevor, were mtervIewed on May 30, 1995 When all of the candIdates were ranked and conSIdered m lIght of the collective agreement, the two successful candIdates were the gnevor and another member of the claSSIfied 6 serVIce It stIll remamed, however, to review theIr personnel files and check then references. ThIs duty fell to Ms. Dumon. As the gnevor had predIcted, Ms. Dumon found a long penod of absence due to Illness m the gnevor's personnel file Moreover, because Dr Varnev's medIcal note of November 24,1994 was not m the file, there seemed to be nothmg to substantIate the gnevor's absence m December, 1994 When Ms. DunIOn asked the Actmg Superintendent at Maplehurst and another manager about the reasons for the grIevor's absence, she got conflIctmg reports. She recalled that the grIevor had told her his absence was due to a back problem. The Actmg Supenntendent, however, told her he had no idea it was a back problem, he thought It was a personal Issue Ms. Dumon decided that she had to try to clarIfy these problems. She also wanted to obtam an assurance from a medIcal practIcIOner that the gnevor who had been on a leave of absence smce February 1, 1995, was fit to return to work as a CO 2 as of June, 1995 ., On the mornmg of June 16, 1995, Ms. Dumon called the gnevor and explamed what she needed to have a medIcal practIcIOner confirm. The gnevor granted Ms Dumon penmSSIOn to speak to Dr Varney, and on that same mornmg Faxed to Ms. Dumon a letter of penmsslOn to thIS effect. The letter of penmSSIOn granted Ms. Dumon the nght to confirm WIth Dr Varney that (1) the gnevor was under hIS care, (2) the gnevor was actIvely seekmg/attendmg appomtments to rectIfy hIS condItIOn, and, (3) the gnevor was currently m SUItable health to return to work on regular dutIes. The gnever did not grant Ms Dunion the right to confirm hIS health WIth any 7 medIcal practICIOner m Ottawa. At the same tIme, the gnevor Faxed the followmg letter to Dr Varney Dr I Varney' My employer wIshes to speak wIth you regardmg my tIme off work m October, November and December of 1994 They wIsh to confirm that, 1 I was under your care, 2. I was actIvely seekmg/attending appomtments to rectIfy my condition, 3 I am currently in sUItable health to return to work on regular dutIes. I have verbally explamed the SItuatIOn m confidence to Ms. Amy Dunmon wIth our eastern regIOnal office however, I do not wIsh that any mformatIOn wIth regard to the details of my medIcal history be released. For your mformatIOn I am actively pursumg employment outSIde of correctIOns at thIS tIme and I feel that I am m good physIcal and mental health. N.B I was seen by Dr Robert Gavreau in Ottawa on December 5, 1994 WIth regard to my lower back and attended phYSIOtherapy appomtments on Dec 6, 7,8,9, 13, 1994, as well as on Jan.6 and 20 After completing these appomtments I requested a leave of absence WIthout pay The leave came mto effect Feb 8 of thIS year Thank you Warren Adamson PSI do not know If Amy WIshes somethmg III wntmg or If verbal confirmation IS acceptable (eIther IS fine by me) I have gIven her your telephone number to contact you. Please forward any fees to my address. * ThIS mformatIOn IS requested for a new pOSItIOn here m Ottawa. ~-_.- 8 Ms. Dumon testified that when she called Dr Varney and went through the three questIOns wIth hIm, he confirmed that the gnevor was under hIS care m October - November, 1994 He also confirmed that the gnevor was actively attendmg appomtments to rectIfy hIS condItIon. When It came to the third questIOn, however, Dr Varney mdIcated that he could not comment upon whether the gnevor would be able to return to work In June, 1995, because he had not seen the gnevor In over 6 months. He dId say that he'd receIVed a letter from the gnevor m the past 2-3 days IndIcatIng that the gnevor felt better Dr Vamey testIfied that when it came to the question of the grievor's abIlity to return to work, he replIed that he had not seen the gnevor SInce November 24, 1994, however, he belIeved that the gnevor was able to return to work as of June, 1995 ThIS behef, he testIfied, was based upon the mformatIOn that he had receIVed from Dr Robert Gavreau's clImc m Ottawa and the gnevor's own statement In the Fax that he had transmItted to hIm. Dr Varney did not mentIOn these thmgs to Ms. Dumon. He thought that she already was aware of the gnevor's VlSltS to Dr Gavreau's clImc He was well aware of the gnevor's pnvacy concerns.The conversatIOn was bnef. Ms Dumon was not satIsfied after talkIng wIth Dr Varney She saId that she'd gIven the gnevor a clear mdIcatIOn of what she needed and she dId not get It. There still was no medIcal substantIatIOn of the gnevor's fitness to return to work as of June, 1995 After dIscussmg the matter wIth her supenor, she recommended that the gnevor's apphcatIOn should not be gIven any further conSIderatIOn. The other members of the panel agreed. The gnevor was Informed that he 9 was unsuccessful m the competitIOn. He filed the gnevance leadmg to the present proceedmg. As It turned out, the gnevor was fit to return to work as a CO 2. After remammg on unpaid leave of absence until November 23, 1996, he returned to hIS pOSItIOn at Maplehurst. ThIS reqUired hIm to commute from Ottawa to the Toronto area every week. DespIte thIS ImpedIment, the gnevor managed to mamtam a better than average attendance record up to the time of the hearing III. The Submissions. Upon the completIOn of the submissIOns ofthe partIes on June 13, 1997, It was ordered that the gnevor be placed mto a then-vacant CO 2 pOSItIOn at the Ottawa-Carlton DetentIOn Centre, effectIve Monday, June 23, 1997 ThIS left for determInatIOn In thIS A ward the question of compensatIOn. It was submItted on behalf of the grievor that he was entitled to be compensated for the loss of wages that he mcurred from June, 1995 to November 23,1996 by VIrtue ofbemg demed a CO 2 pOSItIOn In the Job competitIOn at the Ottawa-Carlton DetentIOn Centre It was also submItted that the gnevor was entItled to be compensated for the non-recoverable mcrease m hIS costs attnbutable to hIS havmg to commute to Maplehurst from Ottawa smce November 23, 1996, as well as the pam and suffenng he endured as a result ofhavmg to commute such a long dIstance on a regular baSIS. 10 ThIs clalln for damages was based upon the propOSItIon that the employer was entIrely to ) blame for the phght of the gnevor If the selectIOn panel perceIved that there had been an attendance problem wIth the gnevor m the past, It was submItted, It should have sought a full explanatIOn from the grievor before mfernng that the prognOSIS for regular future attendance was poor It was not enough to make what turned out to be an unfounded and premature assumptIOn. Reference was made to Re Savarimuthu and Ministry of Health (1992), aSB No 2707/90 (DIssanayake), Re Klonowski and Ministry of Correctional Services (1990), aSB No 745/87 (Barrett), and, Re Maloney and Ministry of Correctional Services (1988), aSB No 1940/87 (Devlm) It was submItted on behalf of the employer that the gnevor was not even entItled to be placed mto a pOSItion at Ottawa-Carlton, let alone be compensated as requested. Accordmg to thIS submISSIon, the employer acted properly m refusing to give further conSIderatIOn to the gnevor's apphcation. It was not the duty of the selectIOn panel, It was submItted, to seek out relevant mformatIOn from the candIdates, It was the duty of the candIdates to place all relevant mformatIOn before the selectIOn panel. In short, the panel was entItled to make its determmatIOn upon the mformatIOn each candIdate chose to place before It. Reference was made to several authontIes, mcludmg Re Riddock and Ministry of Correctional Services (1990), aSB No 1206/89 (Emnch), Re Tully and Ministry of Skills Development (1988) aSB No 1622/87 (KIrkwood), and, Re DeBonis and Liquor Control Board of Ontario (1989) aSB No 1113/85 (Forbes-Roberts) 11 IV Consideration of the Submissions. There seems to be lIttle doubt from the Jurisprudence that before basmg a rejectIOn upon an mference that a poor attendance record m the past means that future attendance WIll likewIse be poor, a selectIOn panel must gIve the candIdate m questIOn a reasonable chance to explam. See Re Savarimuthu, supra, at 20-21 Here, Ms. Dumon tned to do Just that. She contacted the gnevor and requested permISSIOn to speak to hIS Doctor In order to allay her concerns, inter alia, about hIS prognosIs for a successful return to work as a CorrectIOnal Officer There was no confusion about what informatIOn was needed. Both Ms. DunIOn and the gnevor agreed that the three pomts set forth In the gnevor's June 16 Fax to Dr Varney precIsely captured what InfOrmatIOn was beIng sought. The problem was, the grievor dId not refer Ms DunIOn to any medIcal practIcIOner m the Ottawa area who would have been able reasonably to respond to her concern about hIS prognosIs for a successful return to work. Certamly, the gnevor had seen at least one Doctor In Ottawa who rmght have been able to gIve thIS prognOSIS. ThIS was Dr Robert Gavreau. The gnevor, however, never mentIOned hIm to Ms. Dumon. Perhaps It was the gnevor's hope that Dr Varney would gIve hIm a favourable prognOSIS for a return to work despIte the fact that he had not been assessed by Dr Varney In 6 months. If so It was an unreasonable hope that backfired on the gnevor As a profeSSIOnal In the medIcal 12 commumty, Dr Varney was duty-bound not to make such mcautIOus assessments. He rIghtly declmed to do so ThIS left unanswered the most Important questIOn that Ms. Dumon had. The gnevor behaved unreasonably m refernng Ms. Dumon solely to Dr Varney and he must bear the responsibIlIty for thIS. Bearing this responsibIlIty, however, does not mean that the gnevor must be made to bear whatever consequences Ms. Dumon cared to ViSIt upon hIm. Ms. Dumon also had a duty to behave reasonably m the CIrcumstances. Here, It would seem that she behaved unreasonably when she declined to telephone the gnevor and report that Dr Varney felt he could not gIve the necessary prognosIs because he had not assessed the grievor m 6 months. FIrst, to Ms. Dumon's knowledge, the consequences to the gnevor would be severe. He would be demed a posItIOn m Ottawa that he otherwise would have receIved. There would be consIderable personal and economic hardship for the gnevor His Wife and famIly had relocated to Ottawa. He was on an unpaId leave of absence Secondly, the defiCiency would have been readIly curable by the gnevor He could have gIven Ms. Dumon permISSIOn to speak WIth Dr Gavreau. He could have arranged to have hImself exammed by another phYSICian m Ottawa. He could have arranged for a conference call between Ms. Dumon, Dr Varney and a thud phYSICIan m Ottawa who had exammed hIm. ThIrdly, gIVmg the gnevor thIS opportumty would not have been unduly burdensome to 13 Ms. Dumon. It would not have taken up much of her time to call the gnevor It likely would not have taken the gnevor much time to respond. For mstance, the gnevor responded to Ms. Dumon's mItIal request to speak WIth a physIcian on the same day as she called hIm. Here, then, both partIes share resposibllIty for the demal to the gnevor of a pOSItIOn at Ottawa-Carlton CorrectIOnal Centre that otherwIse would have been hIS. It was to remedy thIS that I ordered the gnevor mto a pOSItIOn as a CO 2 at Ottawa-Carlton, effective June 23, 1997 In lIght of the degree ofresposibIlity that is shared by the grievor, however, It would be mappropnate to order any further remedy m the form of compensatIon, and I respectfully declme to do so V Conclusion The request for compensatIOn IS dIsmIssed. Dated at Toronto, OntarIO, thIS 24th day of June, 1997 - ---~ ,