HomeMy WebLinkAbout1984-0156.Runco.84-11-29IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Between:
Before:
For the Grievor:
For the Employer:
Hearinos:
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Kathy Runco)
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The Crown in Right of Ontario
(Ministry of the Environment)
G. Brandt Vice Chairman
F. Taylor Member
P. Camp Member
Mr. P.J.J. Cavalluzzo, Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
L.M. McIntosh, Counsel
Crown Law Office Civil
Ministry of the Attorney General
June 7 & August 22, 1984
Grievor
Employer
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DECISION
This is a grievance of Kathy Runco Who is employed as a
Word Processor Operator with the Environmental Assessment Board of the
Ministry of the Environment. The grievance is against her
discharge from employment effective January 20th, 1984. Her
Letter of Discharge reads as fOlloWS:
January 20, 1984
Mrs. K. Runco
18 Dallyn Crescent
Scarborough, Ontario
MlK 4V9
pear Mrs. Runco:'
You were required to attend a meeting at 9:30 a.m.
on Mon.day, January 9, 1984 in order to discuss with
-yOU,r~SUpfXViSOr, your grievance relating to Sick
'Leave Benefits. Further, the employer's representatives had indicated that there would be
several additional items that would come under .-' discussion at that meeting, namely: .'.
1; .,Your record of excessive absenteeism.
2. The employer's expectations regarding
'your ability to meet the requirements of your position
'3. . The date you might be expected to return to work following a period of
absence which started on December 13,
1983 and conti'nues to date
These matters were discussed previous to the meeting with officials of the Ontario Public
Service Employe% Union who were acting on your
behalf. You were also advised that your attend-
. ante at this meeting was a requirement.
You presented yourself at the offices of the . Environmental Assessment Board at the assigned date and time, however, your.union representative
informed the employer's representatives that you would not participate 'in the meeting because the
grievance had not been answered within-the required seven days. Unfortunately, this decision
on your.part precluded any discussion of the
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above-mentioned items. Your failure to co-operate
and to assist the employer in resolving this
matter and your continuing absence leaves no
alternative but to issue the following,notification
regarding your employment relationship.with the Ministry and the Environmental Assessment Board.
1. Over a period of ‘three (3) years in
3.981, 1982 and 1983, you have
established a pattern of excessive intermittent absenteeism for a
.variety. of reasons.
2. Most of your absences have been of
one (1) or two (2) days duration and have taken place around week-ends;
holidays and in conjunction with
isolated vacation days.
3. Your employer has held many discussions
with you concerning your absenteeism
and has indicated verbally and in
writing that such absenteeism is unacceptable. However, you have not
demcnstrated. the ability to improve
your lost time record with any con- sistency over the entire period of
your employment.
4. You have~been absent from work since
December 13, 1983 to the present date.
"It has been indicated that you might be able to return to your duties by
January 23, 1984.
5. You presented yourself for a medical
examination by the Employee Health Services at 1:15 p.m. on Monday,
'January 9, 1984 and it h'as since been
confirmed that you have an existing
medical disability. No definite date
has been given as to'when you might
reasonably be expected to return to work. -_Moreover, no information has been given to the employer that you
would ever be able to meet reasonable
expectations of availability for work in future.
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6. It appears that attempts made by management to assist you in resolving
your personal problems have not-been
successful and that those personal problems are likely to continue to contribute to your problems at-work.
7. ~Your unscheduled absences in the past
have resulted in serious difficulties
in scheduling work and have resulted
in work output being delayed, not to mention the burden on your fellow employees. _.T
In view of all of the foregoing, you are hereby advised that the Environmental Assessment Board, as your
employer, can no longer cope with this situation nor
continue to meet its expected administrative and operational requirements in a reasonable manner since it can no longer expect to be able to rel.y upon you
to fulfill your responsibilities as an employee.
Therefore, in accordance with Section 22(3) of the
Public Service Act and the authority delegated to me by the Deputy Minister, y ou are hereby dismissed from employment with immediate effect. All monies owing to you and appropriate'documentation will be forwarded
to'you to the last address on record in your personnel file.
Yours very truly,
Barry E. Smith
Chairman Environmental Assessment Board
b.c.c. Mr. Brock A. Smith
Deputy Minister
Mr. Rob Younger
Personnel Officer
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The Union took the position that the grievance should be allowed
for two reasons. First, it was argued that the procedure followed
by the Ministry in discharging her was unfair and that this alone
was sufficient to nullify the discharge. Secondly, it was
argued that, on the evidence, the Grievor'had a favourable prognosis
for future good attendance and that she should be reinstated on
the strength of that prognosis.
The first argument'relates largely to the matters referred
to in page 1 of the letter of discharge in which reference is made
to the failure of the Grievor to cooperate with the Employer on
the occasion of the Januarygth, 1984 meeting. While the letter
of discharge suggests that one of the topics to be discussed at
this meeting uas absenteeism there was evidence to suggest that
this was never made known to the Grievor or to her representative
at that meeting. Moreoever there was some evidence which would
cast doubt on the allegation in that letter ins that the Griever's
representative had refused to participate in any meeting. These
circumstances taken along with the refusal of Mrs. Mum-o, a
vice-chairman of the Environmental Assessment Board who had only
taken over responsibility for the Griever's case on January 9th,
1984, to consider what Counsel for the Grievor regarded as a
favourable medical prognosis, constitute the basis for the Union's
claim that the Employer did not seriously address its mind to
the Griever's prognosis and that it discharged her summarily
and unfairly.
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In view of conclusions respecting the alternative position
taken by the Union it is unnecessary for us to address this
argument and to detail the evidence providing its context. There-
fore, this Award will deal with the case as one involving innocent
absenteeism for medical reasons, There is no need to cite any
authority for the proposition that an Employer may discharge an
employee for innocent absenteeism where that absenteeism has
reached such a level as to be regarded as "excessive" and where
there is no prognosis that. an employee will be able to attend
regularly to his or her duties in the future. There is, however,
some difference of opinion among arbitrators as to the appropriate
time a< which a Board of Arbitration should assess the question
of future prognosis. One line of cases takes the position that
this issue should be determined as of the date of termination of
employment. Another line of cases argues that the appropriate
date for determining future prognosis is the date on which the
Board of Arbitration hears the matter. In z Canada Post Corporation
and Canadian Union of Postal Workers, 6 L.A.C. (3d) 385 (Burkett)
the Arbitrator reviews these two lines, of cases and opts in favour
of that line which assesses future prognosis at the time of the
hearing into the matter. The 'following extract from that case
sets out the basis for this conclusion:
The employee whom the
employerseeksto terminatein ac+sesuchasthis hasbeenabsent
hm work for reasons beyond his control. He has suffered some physical or mental infirmity that has prevented him !ium being regular in attendance. The requirement to look to the future eldstsbecauseitisrecognizedthar~twouldnotbe fairorjusrto
permit the termination of an employee for reasons~which he is
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powerless to control . . . . if the prognosis is that the disorder precipitatmg the termination has been corrected or is likely to
disappear within the foreseeable future”. If it can be shown at the
time of the hearing that the employee is likely to be regular in
attendance, I do not understand how it can & that “fairness and
finality” dictate that this fact be ignored and effect be given tn a prior assessment which has been proven factually incorrect. Ifit is
proven at an arbitration hearing that an employee who has been
terminated for blameless absenteeism is likely to be regular in attendance in the future, it seems to me that the proper balancing .
of interests requires that the employee be returned to his employ-
ment. The prejudice to an employee who ls capable of regular attendance in the future but is nevertheless terminated, is
substantial. On the other hand, it is diEcult to understand how it
is that an employer is p?ejudiced by maintaining in employment an
employee, of possible long standing, who is capable of regular
attendance in the future. I make this observation in the lmowledge that in these cases remedial relief can be shaped t,o
take account of when it was that the employee could have resumed
regular attendance and when it wss that the steps were t&en to
make the employer aware. It is my view, therefore, that if it ls proven at the hearing that the employee, who has been ‘tern&
nated for excessive innocent absenteeism, would likely be regular
in attendance in the future if reinstated, it most be found that the employer did not have just w+se to terminate.
This Board adopts this reasoning for the purposes of this case.
, We now'can turn to the evidence in this case. It is
unnecessary to set'out in detail much of the evidence which was
put before the Board. It is sufficient to record that the Griever,
as a Word Processor Operator, o&pied an important position within
the Environmental Assessment Board and that her interrittent
absenteeism caused the Board some considerable inconvenience in
terms of delays in getting out decisions of the Board. Nor do
we intend to detail the evidence with respect to the working
relationship between the Grievor and Ms. Yvonne Fernandes, the
Administrative Supervisor of the Board, who was the Grievor's
immediate superior. That evidence is really only relevant to the
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question of possible unfairness in the treatment of the Grievor,
a matter which we do not intend to address. Finally, we do not
intend to set out the medical evidence with respect'to. the Grievor's
absenteeism prior to November of 1983 when she began to see a
psychiatrist. That evidence indicates that the Grievor had seen
a number of different doctors and had obtained a number of different
tests all of which sought to discover the cause of certain symptoms
which she was experiencing. In view of the ultimate diagnosis
of her problems as being psychiatric in nature that evidence, while
it supports the conclusion that the absenteeism was innocent (a
conclusion which the Employer does- not dispute), it is irrelevant
to the question of the Grievor's current psychiatric prognosis,
The Grievor's absenteeism record is as follows. She was
absent in 1981 for 19 days, in 1982 for 28 days and in 1983 for
41 l/2 days. The relevant average absenteeism figures for the
Ministry of the Environment are 8.5 days in 1981, 7.32 days in
1982 and 7.83 days in 1983. Comparable figures for the Ontario
Government as a whole are approximately 10 days in each of 1981,
1982 and.1983. As for other employees of the Environmental
Assessment Board the figures correspond, quite closely with those
for the Ministry of the Environment in general save for cases
involving quite lengthy periods of continuous absenteeism. For
example, L. Burske was absent in 1982 for 40 days as a result
of a leg operation and M. Cathcart was absent for 28 days in 1981
and 30.5 days in 1982 as a result of open heart surgery. It
may be noted that these absences, being continuous rather than
.
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intermittent as were the Grievor's , were less disruptive to the
operation of the Board. Soma reference, however, should be
made to one other employee, M. Rainford, whose absenteeism record
bears some closer correspondence to that of the Grievor. She
was absent for 20 days in 1982 and for 49 .days in 1983. Her
1982 absences were for one day in April and 19 consecutive days
in July and August. In 1983 she was absent for a single day
on 5 occasions, for 2 consecutive days on January 25th and 26th,
for 4 consecutive days December 14th to 19th and for 38 consecutive
days June 27th through August 19th. The evidence as to the extent
to which-the Grievor's absenteeism was intermittent or consecutive
is as follows. In 1981 she was absent for 1 day on .4 occasions,
for 2 days on 1 occasion, for 3 days on 3 occasions and for 4
days on 1 occasion. In 1982 she was absent for 1 day on 7
occasions, for 2 days on 3 occasions and for 1 consecutive 15
day p'eriod when she broke her wrist. In 1983 she was absent
for 1 day on 7 occasions, for 2 days on 2 occasions, for 3
days on 1 occasion and for 2 consecutive periods, one for 13
days and the other for 12 days.
This record establishes to our satisfaction that the
Grievor's absenteeism was excessive having regard to'comparable
levels within the Board, within the Ministry and within the
Government as a whole. Apart from Burske and Cathcart whose
days absent were entirely consecutive, the only other employee
in the Board whose record approximates that of the Grievor is
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M. Rainford. While some of her absences were intermittent
most were consecutive and did not have the same dislocative
effect as the more frequent intermittent absences of the Grievor.
Moreoever, it is relevant to note that Rainford was a receptionist
whose absence could be more easily covered off by a temporary employee
or by someone else in the aboard than was the case of the Grievor
whose work required a degree of technical expertise which made it
difficult for the Board to replace her on a temporary basis.
It is now appropriate to consider the evidence with
respect to the reasons for the Grievor's absence and the extent
to which, given her current prognosis, there is any reasonable
likelihood.that she can attend regularly to her duties in the
future. In early 1982 the Grievor began to experience symptoms
which she described as "panic attacks". These symptoms began
as a feeling of tightness in her left arm which spread to her
chest and which caused her to experience shortness of breath. The
Grievor feared that she was suffering a heart attack and would,
on the occasion of these panic attacks, have herself taken
to the Emergency Department of Sc,arborough General Hospital.
Generally these attacks would begin in the~late afternoon
or early evening and would progress. to such a stage that -.
by late evening she felt it necessary to call an
ambulance. She would attend at the Hospital, be released
around 3 or 4 in the morning and, as a result of having been
up most of; the night, would not feel able to attend at work
the following day. These are the.circumstances which lay
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behind the various instances of intermittent short term absenteeism
that occurred. The longer periods of absenteeism in September
of 1982 and June of 1983 were for different reasons. The
September 1982 absence was related to a sprained or fractured wrist.
The June 1983 absence began with a panic attack. However, upon
admission to the Emergency Department of Scarborough Hospital it
was found that she had blood and pus in her urine and doctors
speculated that she had kidney problems. She went to see her
family physican, was put on medication and told to stay home
until she had finished the course of medication. During this
period of time she took a number of different tests none of
which revealed the cause or causes of her panic attacks.
In due course she came to seek psychiatric advice as to
her problems. On November 24th, 1983 she had her first visit
with Dr. I. Moody whose initial diagnosis was that the Grievor
suffered an anxiety neurosis with psychomatic symptoms
and the early development of phobias and mild to moderate reactive
depression. From this date on the Grievor began to see Doctor
Moody very frequently: 24 times between November 24th, 1983 and
March 19th, 1984. Although Dr. Moody, at the original visit,
had advised the Grievor to take some time off the Grievor refused
to do so since she was aware of the concerns of the Employer as
to her attendance record. However, she had another period of
absence, apparently due to another panic attack, beginning on
December 12th. Dr. Moody then insisted that she take time off.
On December 14th, 1983 Dr. Moody wrote to the Employer stating
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that the Grievor was not able to attend work and that she "should
be off work for at least 2 weeks". It is this letter which
apparently triggered certain action of the Employer which led
ultimately to the Grievor's discharge.
As a result of the various absences over 1982 and 1983
the Employer had had a number of discussions with the Grievor
expressing concern about her record and ultimately requesting
her to provide some kind of medical support for her absences.
Following receipt of Dr. Moody's letter of December 14th, 1983
the Chief Executive Officer of the Environmental Assessment Board
wrote to the Grievor on December 16th, 1983 stating that Dr. Moody's
letter of December 14th was an inadequate explanation for her
absence and informing her that from December 13th, 1983 payment
of her sick leave benefits was being discontinued. He further
stated that, as a condition of her return to work, it would be
necessary for her to provide the Employer with a letter from her
Doctor setting forth a more adequate explanation for her absence
from work as well as providing some prognosis of her ability to
resume her duties. It was also,made a condition of her return
that she have a mandatory medical assessment done by a Ministry
doctor.
This letter triggered a number of actions. The Grievor
filed a grievance against her denial of sick leave benefits, an
appointment was made for a mandatory medical assessment to be
held on January 9th, 1984, and Dr. Moody wrote a letter dated
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December 22nd, 1983 which purported to respond to the concern
by the Ministry that her earlier letter of December 14th was inade-
quate. In this later letter she states that the Grievor had been
suffering from attacks of pain and a numbness in her chest and
difficulty with breathing, that previous investigations had ruled
out organic lesions, and that she had been diagnosed
as suffering from a severe anxiety neurosis with psychosomatic
symptoms and reactive depression. Shoe concluded her letter as
follows:
"In conclusion regarding her prognosis: if the harassment that she is currently receiving at
work discontinues then I will see'this as good."
It is necessary to expand.briefly on the import of this
last paragraph. Evidence was led with respect to various incidents
which had occurred at work which led the Grievor to come to the
view that she was being harassed by Mrs. Fernandez. These had
to do with close monitoring of the Griever's attendance, instructions
to other staff that the Grievor be left alone, and allegations
that the Grievor had been responsible for the breakdown of another
employee.who had had to take over the Grievor's workload while
she was absence. We do not intend to review the evidence
with respect to any of these allegations. It is sufficient
simply to state that they were felt to exist by the Grievor and
were reported by her to Dr. Moody and apparently led Dr. Moody
to make the comment respecting her assessment.' ;erhaps,:.in
view of the fact that she was experiencing psychiatric difficulties,
it is not surprising that the Grievor might exaggerate some of
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the difficulties which she was experiencing at the office. For
present purposes, however, it may be noted that in her evidence
before the Board she admitted that the problems which led to her
physical difficulties were not, in any significant way, work related.
On January 9th, 1984 the Grievor was examined by Dr. T.
Rewa, a physician employed by the Employee Health Service. Co-
incidentally, that examination was held on the same day as the
aborted meeting to discuss .the Grievor's grievance respecting
denial of sick leave benefits. Dr. Rewa, on January 13th, 1984,
wrote her. report to the Director of the Human Resources Branch
of the Ministry of,the Environment. That report recited the
Grievor's absenteeism record and her efforts at seeking various
medical opinions as to its causes. The report went on to state
that Dr. Rewa had confirmed the Grievor's statements in telephone
conversations with Dr. Moody who, it was reported, had felt that
the Grievor "approached her health problems constructively and
cooperates with treatment." In her recommendations and conclusions
Dr. Rewa stated that the Grievor's leave of absence was medically
justified and stated that, in Dr. Moody's opinion, the Grievor
should be ready to return back td work in approximately two weeks'
time.
Dr. Rewa's report was received by the Environmental
Assessment Branch on January 18th, 1984 and was reviewed by Mrs.
Munro . She concluded that since that report contained no favour-
able prognosis, a conclusion which in her view was supported by
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the other medical reports;particularly that of Dr. Moody, the
Environmental Assessment Board was unable.tO count on the Griever's
regular attendance in the future and she recommended to the Chairman
of the Board that the Grievor be dismissed. When asked, under
cross-examination, why she considered Dr. Rewa's report to be negative
insofar as the Grievor's prognosis was concerned, Mrs. Munro stated
that Dr. Rewa had not said that this was her opinion but rather that
it was Dr. Moody's opinion. Moreover she stated that Dr. Rewa
did not state that the Grievor would attend regularly in the future
only that she would be ready to return to work in approximately
2 weeks. However, although Mrs. Munro had some concerns as to the
adequacy of the medical reports concerning the Grievor's prognosis
she chose not to ask Dr. Rewa for more specific recommendations;
nor did she speak to, or instruct anyone else, to speak to Dr..Moody
concerning the Grievor's prognosis.
We turn now to the principal question for determination,
that is, the question as to whether or not there is some reasonable
likelihood that the'Grievor will be able to attend regularly at
work in the future. That determination involves an assessment of
the extent to which the psychiatric factors which had earlier been
responsible for her absences are now under some greater degree of
control.
The sources of her problems were three-fold: her weight,
difficulties which she was having with the eldest of her two step-
daughters, and difficulties associated with her having to look
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after her handicapped mother. Only the third of these three
requires further explanation. Apparently the Grievor's mother had
suffered a heart attack in her presence some 12 years ago, an event 1
which! as a result, left her totally dependent on others for care. The
Grievor was alone with her mother for one and a half days until she
was able to contact her father about the incident and apparently
carries some guilt feelings concerning the incident. She also
has experienced difficulty in reconciling her feelings of responsi-
bility to care for her mother with other demands placed upon her,
including the marital difficulties which she was experiencing.
According to Dr. Moody the Grievor's heart attack symptoms were
directly related to her guilt feelings over how she was carrying
out her responsibilities for her mother. When she, the Grievor,
began to feel the numbness and tightness in her chest she feared
that she too was having a heart attack.
The evidence before the Board as to her current prognosis
is that of the Grievor herself and that of Dr. Moody who, on
May 16th, 1984 wrote to Counsel for the Grievor a letter setting out
her present diagnosis. That letter contained the following diagnosis:
"My present diagnosis: This is the same as before,
her present medication is 1) Elavil 2.5mg. daily
(the average person by this stage would be able to
tollerate at least 75. mg. daily) 2) Zanex 0.5 mg. when necessary. Now that she has been off work
and is not being interupted in her therapy by
excessive communications from her work situation she has 1) been able to accept the fact that her
physical symptoms can be caused by psychological
problems and regardless of origin the symptoms are real. 2) She can now accept the fact that she is
not going to die of a heart attack, consequently, she is having few and fewer panic attacks and when she
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does have them she does not have to run to the
hospital but realizes that she can control them her-
self. 3) She is now beginning to see the connection between the guilt feeling and ~her somatic symptoms. I feel that each time she feels guilty this triggers
off the intial cause for the whole problem of being
left with a mother who suddenly, collapsed in front
of her with a heart attack, not being able to do
much for her at that time and consequently feeling
extremely guilty. 4) She has now worked through her problems with her step-children and feels comfort-
able in her marriage. 5) She is now also beginning
to accept the fact that she is not responsible for
everything that goes on in her family and that when
members of the family speak to her about their problems it does not necessarily mean that they are
asking her to take over and deal with their problems.
6) She is now learning that she has to deal with
problems directly rather than keeping them inside
and consequently taking it out on her own body which
result in psychosomatic symptoms and or depression."
,
Dr. Moody went on to state that she foresaw Ita good prognosis for regular
attendance at work in the future, as long as when she returns to work
she is treated fairly." She went on to state that she felt that
a great part of the~crievor's difficulty at work seemed to be a
"clash of personalities".
The Grievor also gave evidence as to how she felt about
her current prognosis. She stated that she still sees Dr. Moody
once a week, that she has improveda lot, that Dr. Moody has commented
.le
on her improvement, that she now knows what her problem is, that
she has not had to go for emergency treatment since 1983, that whi
she still suffers the occasional panic attack they are different
in that they are not as strong as they were before and she is now
able to take medication when she feels one beginning. Under cross-
examination she admitted that the reasons for her stress still
remained. She still looks after her mother and still sees her
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eldest step-daughter every second weekend. As for the friction
with her eldest step-daughter the Grievor stated that it has been
"resolved as best it can".
Counsel for the Employer submitted that there were two issues
to be determined, that is, whether the Grievor's record of absenteeism
was "excessive" and whether, at, the time that the Employer made its
decision, it had just cause to believe that this record of absenteeism
was likely to continue. We have indicated above that we conclude
that the record was excessive. However, we have also indicated that
we disagree with the Employer's submission as to the time at which a
future prognosis should be measured. Consequently we will review
the Employer's submissions with respect to future prognosis in the
context of our finding that the appropriate time for that assessment
is the time of the arbitration hearing.
A number of submissions were made in this regard. It
was suggested that it was appropriate to rely on the record itself
and on the fact that the absenteeism increased from year to year
as evidences of a poor current prognoeis. It was also suggested
that the conditions that had given rise to the Grievor's problems
were conditions of long standing and were still not resolved.in
January of 1984 when the Employer made its decision and even as
late as the date of the hearing. In this connection reference
was made to the fact that Dr. Moody, as late as May of 1984, had
indicated that the problems were only beginning to be resolved
and that there remained a need for ongoing treatment of the
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Grievor. It was also suggested that the very nature of the Grievor's
illness made a reliable prognosis unpredicable and that, given this
fact, the Board ought not to second guess the judgment of the Employer
in this regard.
The bulk of the Employer's submissions concerning the matter
of prognosis related to the quality of the medical evidence, particularly
that of Dr. Moody. It was argued that Dr. Moody's letter of December
14th was not a prognosis in that it simply indicated that the Grievor
would be off work for at least two weeks and gave no indication as
to why she -should be off work or as to whether, at the end of two
weeks, she would have recovered from whatever it was that was causing
her absence. The second letter from Dr. Moody, written in response
to the request from the Employer for further information, did contain
a diagnosis of the Grievor's condition but, in the submission of the
Employer, contained~no prognosis. Rather Dr. Moody's comments were
characterized as a "non-medical diatribe" and as "unprofessional
in character".
Alternatively it was submitted that even if Dr. Moody's
letters could be considered to constitute a favourable prognosis,
her conclusion that the prognosis ~would improve if the harassment
of the Grievor ended was based on inaccurate information as to what
had or had not occurred in the work place and, to the extent that
it was based on inaccurate information, the prognosis was unreliable.
Finally, it was argued that the Report of Dr. Rewa did
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not qualify either as a prognosis in that she did not conduct any
independent assessment of the Grievor but rather relied on Dr. Moody's
opinion, an opinion which in the view of the Employer was suspect.
We conclude that this Grievance should be allowed. We
agree with the submission of the Employer that in January of 1984
when the decision was taken there was insufficient evidence to indicate
one way or the other whether or not the Grievor had a favourable
prognosis. It is difficult to regard either of the letters of
Dr. Moody'or the letter of Dr, Rewa to the effect that the Grievor
would be "ready to return back to work in approximately two weeks
time" as indicating that the Grievor's problems were behind her and
that she could provide some reasonable assurance of regular attendance
in the future. The inadequacy of Dr. Rewa's letter as a prognosis
is reflected in her own memorandum of May 29th, 1984 to Mr. R. Younger,
the Staff Relations 'Advisor to the Ministry of Environment, a
memorandum requested by Mr. Younger apparently for the purpose of
these proceedings. In that memorandum Dr. Rewa states that "in cases
such as Mrs. Runco's it is extremely difficult to make a prediction
concerning 'return to work based oneone visit." She goes on to
state that "although a physician who is seeing a patient regularly
would be better able to predict whanthe patient could return to
work, this is still difficult in cases such as Mrs. Runco's as the
patient may not improve as rapidly or completely as anticipated."
What follows from this is that the best evidence available in that
respect is that of Dr. Moody.
We have some concern about the reliability of the earlier
letters of Dr. Moody respecting the Grievor's prognosis. In certain
respects they are unprofessional in tone and appear to reflect a
willingness on the part of Dr. Moody to accept at face value the
claims by the Grievor that she was being harassed in the work place.
One would have thought that a psychiatrist would not be quite so quick
to accept, without question or further investigation, allegations of
this kind. However, her later letter of May 16th, 1984 goes much
further in the direction of assessing the Grievor's prognosis in
terms of her present understanding of her psychiatric problem and
her present ability to cope with it. While she still seems to
regard the Grievor's prognosis as dependAng on being treated "fairly"
at work we do not see her favourable prognosis as resting significantly
on that factor. In any event, if the Employer had wished to challenge
the reliability of this prognosis, it could have subpoenaed Dr. Moody
to give evidence at the hearing. The Employer chose not to do so
and must therefore accept the prognosis as set out in the letter of
May 19th.
The other evidence with respect to the Grievor's current
prognosis is that of the Grievor herself. The Board had the opportunity
of hearing the Grievor give evidence and of assessing that evidence.
While this Board obviously lacks the expertise necessary to make
complicated judgments as to the course of treatment of a psychiatric
condition, we would record #at we were impressed with the Grievor
and with her apparent recognition of the source of her problems and
. - 22 -
of what it takes to control them.
Notwithstanding our conclusion that the Grievor's prognosis
is favourable we'are nevertheless mindful of the inherent difficulties
in making predictions concerning a case of this kind. Consequently
we are not prepared to direct that the Grievor be reinstated in
her employment unconditionally. Rather we direct that the Grievor
be reinstated on the condition that she maintain an attendance record
no worse than the average for other employees in the Environmental
Assessment-Branch of the Ministry of Environment for a period of 12
months from the date of her reinstatement. In attaching this condition
we wish it to be understood that our primary concern is with respect
to absences that can be said to be related to continuing difficulties
of a psychiatric nature. It is not our intention that, were.the -
Grievor to be absent for a prolonged period of time for a completely
unrelated reason, for example, a traffic accident, such absenteeism
should be regarded as a breach of this condition of her reinstatement.
The one remaining question concerns the respective date of
her reinstatement. It was submitted by the Union that the Grievor
should be regarded as fit to return to work as of January lst, 1984.
We believe this to be an exaggerated claim. Dr. Rewa's report
of January 13th itself contemplates a further absence of two weeks.
Moreoever, the Grievor has had occasion to visit Dr. Moody quite
frequently right up to the final,day of hearings (and perhaps beyond),
- 23 .-
i
'a circumstance which certainly does not suggest full recovery at
the beginning of 1984. Finally, the prognosis of Dr. Moody on
May 16th, 1984, while generally favourable, is nevertheless some-
what guarded in that she states that the Grievor is "now beginning"
. to see the connection between the guilt feeling and her somatic
symptoms, to accept the fact that she is not responsible for everything
that goes on in her family, and to learn that she has to deal with
her problems directly rather than keeping them inside.
Having regard to all of these factors we arrive at the
conclusion-that the Grievor should be regarded as having been fit to
return to work on June lst, 1984. Consequently any compensation
to which the Grievor is entitled as a result of this award could
date only from June~ 1st. By agreement of the parties the
Board remains seized of jurisdiction in the matter of determining
the appropriate amount of compensation in the event that the parties
are unable to agree.
DATED at London, Ontario this 29t.h day of November 1984.
.”
i.~ ~> _. , ~> ‘-3
4‘
Gregory J. Brandt
Vice-Chairman
Member