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HomeMy WebLinkAboutPinnell 12-01-06IN THE MATTER OF AN ARBITRATION BETWEEN: Fanshawe College of Applied Arts and Technology, Employer, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Richard O’Connor, Employer nominee Ed Seymour, Union nominee APPEARANCES: For the Union: Lesley Gilchrist, Grievance Officer Marg Rae, President, Local 109 Carmen Pinnell, Grievor For the Employer: Robert J. Atkinson, Counsel Don McIntyre, Labour Relations Consultant Brenda Henry, Acting Manager, Health and Safety Services Marion Dietze, Assistant Manager, Facilities Operations, Custodial/Grounds/Support Services Heard in London, Ontario, on May 9 and October 27, 2011. -2- ARBITRAL AWARD I The grievance of Carmen Pinnell, a Caretaker, relates to various steps taken by the employer, directly and through a contractor, following an injury to her back. Specifically, it is claimed that the grievor lost three days of work as a result of the unrea- sonable insistence by the employer and the contractor that the grievor’s doctor complete some documenta- tion, even though the contractor had long since been provided with it. The employer has contracted with Shepell.fgi (“Shepell”) to provide various employee disability services. Among other things, Shepell is responsible for case management of WSIB claims and of non-occupational disability claims on behalf of the employer. In this capacity, it receives medical information from employees’ health care providers and, among other things, advises the employer on any restrictions on employees’ activities that are supported by the medical file. Based on this information, the employer meets with the employee to consider the accommodation of his or her disability. In the interests of patient confi- dentiality, not only does Shepell refrain from sharing any medical information it receives with the employer, but also the case management team that is responsible for WSIB claims refrains from doing so with the case management team responsible for non-occupational claims. The facts are not in dispute. They can be summarized as follows: The grievor has been employed as a Caretaker since 1992; -3- On May 5, 2010, she claimed to have injured her back at work and she completed an Incident Report at the on-site clinic; She was assigned modified duties; In June, her claim for WSIB benefits was denied; She continued to seek accommodation in the form of modified duties, on the basis that her injury was not occupational; Starting on about June 16, Shepell requested medical information from her as the information that had been provided in support of her WSIB claim was not available to it for the purposes of her non-occu- pational claim; In the meantime, the grievor continued to perform modified duties as before; The grievor failed to respond to Shepell’s original request for medical information, or to its reminders to her on July 16, 28, 29 and 30; On August 26, Shepell informed the grievor that the information it possessed did not support the accommodation she was requesting, and again asked her to supply the medical information it was seeking; On August 31, management met with the grievor and informed her of the importance of providing Shepell with the documentation it had requested, failing which the employer might refuse to allow her to work; At that meeting, the grievor (apparently on the union’s advice) expressed the view that Shepell was asking for too much information, and she told the employer that all pertinent medical information had already been provided to Shepell for the purpose of the WSIB claim, to which the employer replied that the documentation in question could not be used for her non-occupational claim; On Thursday, September 9, the employer asked the grievor to leave work until Shepell had received the information it had requested; -4- On Tuesday, September 14, the grievor reported for work, believing that her doctor had supplied the requested medical report the previous day, but the information was not in fact received by Shepell until late on September 14; the grievor’s doctor, it appears, forwarded the information to the employer, rather than to Shepell, and the employer then had to send it to Shepell; and Later that day, after receiving a report from Shepell confirming the restrictions on the grievor’s activi- ties, the employer informed the grievor that she could return to work on modified duties the next day (September 15). As a result of the absence of the medical information, the grievor missed three days of work. The grievor’s assistant manager, Ms. Marion Dietze, testified that her concern, when she told the grievor to stay off work in September, was that the work the grievor was performing might no longer be consistent with her current state of health. Ms. Dietze stated that the employer needed to obtain a report from Shepell on the grievor’s restrictions. The medical information sent by the grievor’s doctor in September was essentially the same as the information Shepell had received about her in June. In particular, the radiologist’s report, dated May 17, 2010, which was at the core of the information supplied in September, had previously been sent to Shepell when the grievor was pursuing her WSIB claim. Shepell’s request for information in connection with the non-occupational claim did not require the grievor to undergo any further testing. -5- II Ms. Gilchrist, on behalf of the union, maintained that the employer had violated the prohibi- tions on the harassment of employees contained in the Human Rights Code, R.S.O. 1990, H.19, and Article 4.6 of the collective agreement. Neither the employer nor Shepell should be allowed to insist on the supply of medical information for the simple reason that it made their task easier. Nobody provided the grievor with a cogent explanation as to why the documentation she had already provided the employer was insufficient. It was entirely reasonable for the grievor to conclude that the employer was in possession, personally or through Shepell, of all the information it needed to determine that the grievor could continue to perform modified duties. In addition to compensation for lost wages, the grievor should be awarded $1,000.00 for loss of privacy and dignity. In the course of her submissions, Ms. Gilchrist referred to Re Telus Communica- tions Co. and Telecommunications Workers’ Union (2010), 192 L.A.C. (4th ) 240 (Lanyon), Re Hamilton Health Sciences and Ontario Nurses’ Association (2007), 167 L.A.C. (4th ) 122 (Surdykowski), Re City of Greater Sudbury (Pioneer Manor) and Canadian Union of Public Employees, Local 148 (2010), 197 L.A.C. (4th ) 123 (Kaplan), University Health Network v. Ontario Nurses’ Association (Figliuzzi grievance), [2008] O.L.A.A. No. 533 (Reilly), Re Nelson Laundries Ltd. and Retail Wholesale Union, Local 580 (Champagne grievance) (1997), 64 L.A.C. (4th ) 120 (Somjen), and Re North Bay General Hospital and Ontario Public Service Employees Union (2006), 154 L.A.C. (4th ) 425 (Randall). Mr. Atkinson, counsel for the employer, argued that this case was about an employer’s right to insist on sufficient information to support an employee’s claim for accommodation. It was outrageous to characterize the employer’s legitimate requests to the grievor as “harassment”. Both the employer and Shepell had acted reasonably throughout, whereas the grievor, with the apparent encouragement of the union, had acted unreasonably. In particular, it was reasonable for Shepell to maintain strict separation of -6- medical information between WSIB cases and non-occupational cases. The grievor had failed in her obliga- tion to cooperate with the employer in the search for accommodation. Once the grievor’s doctor supplied the requested information, both Shepell and the employer acted promptly to get the grievor back to work without delay. Shepell had not invaded the grievor’s privacy or required her to undergo any further medical tests. The employer had a reasonable and legitimate concern for the grievor’s health and safety. It needed Shepell to advise it of restrictions that were supported by the medical file, which Shepell could only do after receiving the information that was requested. There was no basis, on any conceivable view of the case, for the award of damages to the grievor. Mr. Atkinson referred to the following cases: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, Ontario Human Rights Commission v. Jeffrey (2007), 230 O.A.C. 93 (Div. Ct.), Re NAV Canada and Canadian Air Traffic Control Association (1998), 74 L.A.C. (4th ) 163 (Swan), Re Via Rail Canada Inc. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (2002), 106 L.A.C. (4th ) 110 (Hope), Re Proboard Ltd. and Communication, Energy and Paperworkers’ Union, Local 49-0 (2001), 97 L.A.C. (4th ) 271 (Burkett), and Ontario Public Service Employees Union v. Seneca College of Applied Arts and Technology (2004), 80 O.R. (3d) 1 (C. of A.). III As the case-law recognizes, while an employee is not obliged to share his or her medical information with the employer (unless there is a contractual foundation for the employer’s request), he or she can scarcely resist the employer’s reasonable requests for such information if there is a claim by the employee for the accommodation of his or her disability. If the employee does resist the employer’s requests, the employer can validly impose an “administrative suspension”, or “hold the employee out of service”. See, e.g., Re NAV Canada, supra. The union does not disagree with this conclusion. -7- The dispute, as we understand it, relates essentially to the question whether the requests by the employer and its agent (Shepell) for medical information were reasonable. Shepell’s policy was that, in the interests of patient confidentiality, patients’ health informa- tion was not shared between the team responsible for WSIB claims and the team responsible for non-occu- pational claims. This made it necessary for Shepell to ask the grievor to submit new medical documentation when her claim passed from one team to the other. While not challenging Shepell’s policy in this regard as such, the union takes issue with the failure of the employer and Shepell to explain to the grievor why further medical information was needed. We find no merit in this argument. Whatever knowledge the grievor might have had about Shepell’s confidentiality policy in June or July, the uncontradicted evidence we received indicated that, at the meeting held on August 31, the grievor was told clearly that, in view of Shepell’s policy, it could not access the medical information that had been supplied earlier and that she would have to re-submit the information. We could perhaps sympathize with the grievor if she felt that this policy was unnecessary or bureaucratic, but she can scarcely claim that she was unaware of the policy. She was told in no uncertain terms on August 31 that, in view of Shepell’s policy, her failure to ask her doctor to provide the required medical information could lead to her being held out of service. It is important to note that the grievor would have suffered no prejudice by complying with the employer’s request at that meeting. At most, it might have required her to make one appointment with her family physician (although the evidence did not make it clear whether, when she finally decided to comply with the requests for medical information, she even had to do that). But complying with the request would have required her to undergo no further medical examinations or procedures, and it would have -8- required her to provide no information about her health that Shepell did not already have. In these circum- stances, we fail to understand why the grievor did not simply comply with the requests by the employer and Shepell and, if she continued to believe the requests were unreasonable, present a grievance after the fact to challenge their legitimacy. This would have been the wise course to take, in keeping with the maxim that employees should “obey now, grieve later”. It is difficult for us to disagree with Mr. Atkinson’s argument that the grievor was the author of her own misfortune. If she missed three days’ work, her loss can only be attributed to her own unreason- able conduct and not to the conduct of Shepell or the employer. We also agree with Mr. Atkinson’s submission that nothing done by Shepell or the employer in relation to the grievor could be characterized as “harassment”. The grievance is hereby dismissed. Dated at Thornhill, Ontario, this 6th day of January 2012. _____________ Michael Bendel, Chair I concur/I dissent _______________ Richard O’Connor, Employer Nominee I concur/I dissent in part ____________ (Partial dissent attached) Ed Seymour, Union Nominee -9- PartialDissent-EdwardE.Seymour IhavereadthemajorityawardandwithrespectImustdissentinpart.WhileIamin agreementwiththataspectoftheawardasitrelatestoharassmentanddamages,Iam incompletedisagreementwiththemajorityawardupholdingManagement’sdecisionto sendthegrievorhomewiththeresultinglossofearnings. Whiletheemployerframeditsactionsasemanatingfromaconcernforthegrievor’s healthandsafety,itwasmoreasituationwheretheemployer,throughitscontractfirm, Shepell,insistedonreceivingthesamemedicalinformationtwice. EmployerwitnessClaudetteJonkheere,Shepell,ManagerofHealthManagement OperationstestifiedthatthreeservicesareprovidedtoFanshaweCollegebyShepell: CaseManagementWSIB,CaseManagementNonOccupationalandOnSiteNursing. Further,thiswitnessexplainedtherewasnosharingofWSIBandNonOccupational files,andthiswasdoneforconfidentialityreasons. Asthepolicywasappliedinthecasebeforeus,thegrievorwasthevictimofan inflexibleandrigidpolicydesignedmorefortheemployersandShepell’sintereststhan anyconcernforanefficientandspeedyresolutionrelatingtotheneedsofthegrievor. Ms.Jonkheeretestifiedtherewasnomedicalinformationprovidedwhenshereceived thereferralforthegrievorfromtheCollege.Therewerenodoctorsnotes,nox-ray reports,noranyothermedicalinformation.Shealsoconfirmedthatshehadnoaccess toanyfilethattheWSIBCaseManagermighthavehadforthegrievor. Sheconfirmedthatshesentalettertothegrievorrequestingdoctorsreports.She receivedmedicalinformationfromthegrievor’sdoctorinAugust2010(EX10).The informationwassenttotheNonOccupationalCaseManager,MargaretSchwartz. However,theformshouldhavebeenforwardedtoafaxnumbersupplied. Ms.Jonkheerealsostatedthatwhentheinformationwasreceivedfromthedoctor,it revealedthatthegrievorsufferedfrombackstrainbuttherewasnofurtherobjective clinicalinformationwhichwouldsupportamedicalaccommodationbeyondtheendof August. FollowingthereceiptoftheinformationfromthedoctordatedAugust19,2010aletter wassenttothegrievorbyJenniferLavigne(EX4-TAB10). Thisletterstatedinpart, “(We)..havedeterminedthattheinformationsubmittedisinsufficienttosupportthe accommodationyouarerequesting.”Theletteralsostated, “Themedicalinformationshouldincludeallofthefollowinginformation: -10- •CompletionoftheaccommodationletterthatwasforwardedtoyouonJune16,2010 forcompletionbyyourHealthCareProvider. AnynewinformationshouldbefaxeddirectlytoShepellandshortlyafterreceipt,itwill bereviewedbytheShepell*fgiTeam.Iwilladviseyouofthedecision,oncethereview iscomplete.” Inherevidence,thegrievorstatedshethoughttheyhadalltherequiredinformationin themedicalrequestformthatwassentinAugust. JonkheereagreedtheNonOccupationalgroup(orSILO,asitwasreferredtoby employercounsel)eventuallyreceivedthecompletedJune16formfromthedoctor(EX 7).Thisdoctor’snotedatedSeptember13,2010,isbasedontheinformationwhichwas elicitedfromanexaminationperformedonMay17,2010andwassubmittedtotheWSIB fileshortlythereafter.Asimplerequesttothegrievortograntauthorizationtohavethe informationtransferredtotheNonOccupationalfilecouldhavebeenmadeatanytime anditneverwasbyeithertheemployer,norShepell.Ms.Jonkheerestatedshedidnot requestawaivertosharetheinformationnordidsheatanytimeindicatetothegrievor thatsuchanoptionwasavailabletoher.Infact,Ms.Jonkheerestatedshedoesnot speaktoemployeesdirectlyandshedidnotknowifemployeeswereawareofthetwo SILOconcept.TheJuly30,2010letter(EX4TAB7)addressedtothegrievorfrom JenniferLavignemakesnomentionthatinformationisnotsharedbetweenthetwo SILO’s.Thisisso,eventhoughtheletterstatedinpart,“aletterwasreceivedfromyou viaemailconfirmingthattheinformationrequiredforyouraccommodationrequestcould beobtainedfromtheinformationthatwassubmittedregardingtheWSIBclaim.”There wasabsolutelynoreasonthattheemployerorShepellactingonitsbehalfcouldnot regardthisasaclearindicationfromthegrievorthatshehadnoobjectiontohavingthe informationinherWSIBfilestransferredtoherNonOccupationalfile.Therewas nothingcontractually,norinlegislationpreventingthemfromdoingso.Theirown inflexibleandrigidpolicywastheonlyobstaclepreventingthemfromgainingspeedy accesstotherequiredinformation. Ms.DietzeinherevidenceconfirmedameetingwasheldonAugust31,2010,withMs. Pinnell,Ms.DietzeandMr.McLoskieinattendance.ItwasexplainedtoMs.Pinnellthat Shepellneededadditionalmedicalinformationbecausetheywereconcernedforhow shewasdoingforsafetyreasons.Ms.PinnellwasalsoinformedthatifShepelldidnot receivetheinformationtheymighthavetolookatoptionsincludinglossofpay. Ms.DietzealsostatedthatMs.Pinnellexplainedthatshehadsuppliedtheinformation fortheWSIBclaim.Ms.DietzeinformedMs.Pinnell,apparentlyforthefirsttimethatthe informationwasnotsharedbetweentheWSIBsiteandtheNonOccupationalsite.Ms. Pinnell,accordingtoMs.Dietzeindicatedtheycouldgettheinformationcontainedinthe WSIBfilefromShepell.Onceagain,theemployerwastotallyinflexibleinitsapproach totheissueinthatMs.DietzcompletelydisregardedMs.Pinnell’ssuggestion.Ms. Dietzeconfirmedthatshedidnotadvisethegrievorthatshecouldsignanauthorization -11- sothattheWSIBSILOcouldprovidetheinformation;nordidshesuggestthatshecould takesickleave,orusevacationcredits.Notonlyweretheseoptionsnotsuggestedto Ms.Pinnell,Ms.Dietzestatedshewouldnotevenconsiderdoingso.Ms.Dietzestated thattherequestedinformationwasforwardedatnightonSeptember13th.Itwasinfact, forwardedat3:45p.m.onSeptember13th(EX7).Havingcompliedwiththerequest, Ms.PinnellshowedupforworkonSeptember14,2010.ShemetwithMs.Dietzewho wasunawarethatthedocumenthadbeensentuntilinformedofsuchbyMs.Pinnell. Ms.Dietzemadeabsolutelynoeffortatthatpointtodeterminethelocationofthe document.Instead,forthesecondtimesheoptedtosendthegrievorhomeagain withoutpay.AfterMs.Pinnell’sdeparturefromtheworkplace,Ms.Dietzedidlocatethe document,followingwhichshephonedMs.Pinnellat2or3p.m.ontheafternoonof September14thandinstructedhertoreporttoworkthefollowingday. Thereareseveralproblemswiththemannerinwhichtheemployeraddressedthisentire matter.Whiletheemployeranditsagent,Shepell,insistthatthetwoSILOapproach regardingmedicalaccommodationistoprotecttheprivacyofanemployeesmedical information,therealityasitappliestothiscaseclearlyillustratesthatthisisnotso.On atleasttwoseparateoccasionsMs.Pinnellinformedtheemployerthattheinformation theyrequestedwasavailableinherWSIBfile.Onatleastasmanyoccasionsshe clearlystatedtheycouldaccessthatinformation.Havingdonethisitshouldhavebeen crystalcleartotheemployerthatMs.Pinnellhadabsolutelynoobjectiontothe informationbeingsharedbetweenthetwoSILO’s.Ifitwasinfactnotcrystalclear,then asimplerequestforhertosignanauthorizationformtopermitsuchactionwouldhave resolvedthematter. Havingfailedtotakethatroute,ortoevenconsiderit,theassertionoftheemployerthat itsprimaryconcernwastoensurethatthegrievor’smedicalinformationwasprotected hasabsolutelynomerit.IfMs.Pinnellhadnoobjectiontotheinformationbeingshared andclearlyshedidnot,thenwhatpossibleobjectioncouldtheemployeroritsagent, Shepell,have?ThroughouttheentirelengthofMs.Pinnell’saccommodationthe employerdemandedfurthermedicalinformationwithoutadequatelyexplainingtoher whysuchinformationwasrequired.Theemployerisnotautomaticallyentitledtosuch information.Theemployerhasanobligationtoinformthegrievorwhytheinformation alreadyprovidedisinadequate.Thatexplanationshouldconstitutesomethingmore substantialthantomaintainanoverlybureaucratic,inflexibleandrigidpolicy. Thecaselawsupportsthisapproachinmyview.Paragraph85oftheTelus communicationcase(Lanyon)states: “However,bothpartiesacknowledgethatinrespecttoissuessuchasan employee’sfitnesstoreturntowork,orincasesofaccommodation,anemployeris givengreateraccesstomedicalexaminationsandinformation.Forexample,a FunctionalCapacityEvaluationfromanOccupationalHealthPhysicianmayberequired. Thisinvolvestheemployerandtheemployeeprovidingadetaileddescriptionofthejob duties,aswellasthehistoryoftheillnessandinjurywhichmaydeterminean employee’sfitnesstoperformtheirownoccupationoranyotheroccupation.Thismay -12- alsoinvolveotherspecialists.Itiswellestablishedpublicpolicythatallpartiesare obligatedtoassistintheaccommodationofemployees. Inthecasebeforeus,theemployerthroughShepellalreadyhadtheinformationdesired initspossession.Alltheemployerhadtodotoaccessthatinformationwastorequest thegrievor’spermissiontohavetheinformationtransferredfromtheWSIBSILOtothe NonOccupationSILO.If,afterhavingdonesotheinformationwasstillinsufficientthen theemployercouldhaverequestedadditionalinformation.Asitturnedoutinthecase beforeus,theinformationforwardedonthe13thofSeptemberwassufficientandthe employerhaditinitspossessionthroughShepellfromtheoutset. Inhersubmission,UnionCounselcitedparagraph83oftheTeluscommunicationcase (supra),whichstandsforthepropositionthatanemployeeshouldnotberequiredto submitmultipleformswhenoneformwillsuffice. “Ageneralarbitralprinciplethatattemptstobalancetheprivacyrightsofemployees withthelegitimatebusinessinterestsoftheemployeristodirect“employerstousethe leastintrusivemeanscapableofsecuringwhateverinformationtheyrequire.”(Brown andBeatty7:6142MedicalExaminationandOpinions)Andwhatmustbeaddedtothis testiswhatArbitratorTaylorstatedinBritishColumbiaTeachersFederation,supra,and thatis,thatthedisclosureofmedicalinformationshouldreceivenobroaderdistribution thatis“reasonablynecessary”.Thus,anemployerisobligatedtousetheleastintrusive means,andfurther,isentitledonlytowhatisreasonablynecessaryataspecificstageof amedicalinquiry.Andattheinitialstage(anoriginalapplicationforbenefits)thereisno betterdescriptionofwhattheemployerisentitledto,andwhattheemployeeisobligated toproduce,” UnionCounselalsocitedTheHamiltonHealthServicescase(Surdykowski)at paragraph25.“Asamatterofgeneralprinciplewhatisrequiredissufficientreliable informationtosatisfyareasonableobjectiveemployerthattheemployeewasinfact absentfromworkduetoillnessorinjury,andtoanybenefitsclaimed(see,Arbitrator Swan’scommentsinReSt.JeandeBrebeufHospitalandC.U.P.E.Loc.1101(1977), 15L.A.C.(2d)199atpp.204-206).Asageneralmatter,theleastintrusivenon-punitive interpretiveapproachthatbalancesthelegitimatebusinessinterestsoftheemployerand theprivacyinterestsoftheemployeeisappropriate.Butwhattheemployerisentitled to,andconcomitantlywhattheemployeeisrequiredtoprovide,willfirstandforemost dependonwhatthecollectiveagreementorlegislationprovideinthatrespect. Theemployer,throughShepellhadsufficientreliableinformation.Ms.Pinnellcannotbe regardedasaslacker.Otherthanthedayslostthroughtheemployer’sactionMs. Pinnelllostabsolutelynotimeoffwork. Atparagraph19oftheGreaterSudburyCityPioneerManorCase(“Kaplan”),the Arbitratorstated: “Thetestinallcases,asacceptedintheauthorities,is“objectivereasonableness.” Butwhetherthattesthasbeenmetwilldependonthecircumstancesofindividualcases. -13- Theemployercanstillmanageabsenteeism.Inthevastmajorityofcases,withmuch morerestrictedinformation,theemployercanstilleffectivelymanageshort-term illnesses.” Asstatedabovetherewasnoabsenteeismwithrespecttothegrievorotherthanthat imposedbytheemployer.Fanshawemanagementlacked“objectivereasonableness.” BothShepellandFanshaweabsolutelyrefusedtoconsiderbendingtheirinflexibleand rigidruleregardingthesharingofmedicalinformation.Theypersistedindoingsoeven afterthegrievorhadnoobjectiontotransferringtheinformationfromoneSILOtothe other.Shewouldhavegladlysignedanauthorizationpermittingthemtodoso.She wasneverofferedthatopportunityandaccordingtoMs.Dietzitwasnotanoptionshe wasevenpreparedtoconsider. TheUnionalsocitedtheUniversityHealthNetworkcase(Reilly)atparagraphs14and 15asfollows: “WhileIagreethatanemployercanaskanemployeetovolunteermoreinformation thanwhattheemployerisentitledtoreceive,anemployercannotrequireanemployee toareleaseofmoreconfidentialinformationthanispermittedbystatuteorthecollective agreementand,asarbitratorSurdykowskistatesitmustbe,“demonstrablynecessaryfor theparticularpurpose.” “Ifurtheragreewiththearbitrator’sobservationthat,astheevidenceinquestionis intenselypersonalandprotectedbystatute,itrequiresastrictlyconservativeapproach toprotectitsprivacy.Therefore,anylanguageagreedtobythepartiesinrespectof disclosure,ordocumentsoutliningpoliciesgoverningdisclosure,mustbebytheirvery nature,whollyrespectfulofapersonsrighttoprivacyandmustbestrictlyconstrued,as thepartieshavenorighttooptoutoftheprovisionsguaranteeingprivacyofmedical informationundertheoccupationalHealthandSafetyAct.” Thecasebeforeusisnotasituationwherethegrievorconsideredtheinformation requested,sointenselypersonalthatitcouldnotbeshared,itwasasituationinwhich thegrievorbelievedtheemployeralreadyhadtherequestedinformationitits possession,andsheobjectedtobeingaskedtoprovidethesameinformationtwice. Employercounsel,towardtheendofhisargumentcommentedthatitwasunfortunate thatthetwodaysofHearingwasspentonthiscase.Giventheexpenseofsuch proceedingstothepartiesitisavalidconcern.Itisequallyvalidtobeconcernedabout theaddedexpenseincurredbyinsistingonreceivingthesameinformationtwice.Such arigidapproachalsorequiresconsiderableresourcesbothfinancialandhuman. FortheabovereasonsIwouldhaveruledthegrievorbepaidlostwagesfortheentire periodsheremainedoffworkasaresultoftheemployers’actions.Thisgrievorshould nothavesufferedthelossofanywagesbecauseheremployerinsistedonenforcinga policythatisrigid,inflexibleandunreasonableasitappliestomedicalaccommodation. Asstatedabove,Iconcurwiththedecisionasitrelatestoharassmentanddamages.