HomeMy WebLinkAbout1984-0818.Stacey.86-06-20IN THE MATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between OPSEU (Carl StaceY)
- and -
:
Before:
For the Griever:
For the Employer:
Hearings
The Crown in Right of Ontario
(Ministry of Correctional Services)
P. Knopf
I. Freedman
E. McLean
M. Rotman
Counsel
Rotman & Zagdanski
Barristers & Solicitors
Griever
Vice-Chairman
Member
Member
November 29, 1985
April 14, 1986
Employer
J. Hannah
Counsel
personnel Branch
Ministry of Correctional Services
DECISION
The grievor is a Correctional Officer II at the
Quinte Regional Centre. In June, 1984, he severely fractured
his wrist playing baseball off duty and was forced to be off
work on sick leave. The circumstances of his return to work
are what gave rise to the three grievances filed with this
Board. Put in a nutshell, on its own initiative and after
conferring with the grievor's personal physician, the
Employer determined that there was a "light duty assignment"
that the grievor was capable of performing despite his injury
and thus ordered the grievor to return to work. Initially,
the grievor refused and then , on threat of being deemed to
have abandoned his position, the grievor resumed work on a
special light duty ,assignment in late August. He was issued
a written reprimand for his ~refusal to report to work when
initially ordered to do so. The three grievances involve the
following:
1. Grievance 020/84 - a claim that by
contacting the grievor's physician, the
Employer invaded the grievor's privacy,
used unauthorized information and denied
the grievor sick pay contrary to the
collactive agreement, from August 7 to
August 20, 1984.
2. Grievance 818/84 - a claim of unjust
discipline with regard to the reprimand.
3. Grievance 821/84 - a claim of unjust denial
of the "mid shift break" after the return
to work.
The parties agreed that this panel of the Boar3 is seized
with all three grievances. But, it was also agreed that the
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parties would proceed initially only with the first two
grievances. Thus, Grievance 821/84 was adjourned pending the
rendering of the decision in Grievances 820/84 and 818/84
which were heard together. However, in hearing the two
grievances together, -the Board-remained mindful that the
Union took the position that both constituted discipline
cases whereas the Employer only conceded that the reprimand
constituted discipline. To expedite matters, the Employer
presented its case first and the parties left the question of
ultimate onus to be decided at the end of the day.
The evidence disclosed the following. Quinte
Detention Centre is classified as a maximum security
institution. However, it is basically a holding centre for
people going to Court or awaiting transfers elsewhere. The
facility itself is ~physically divided into maximum and
minimum segregated areas and houses maximum, medium and
minimum security-classified inmates. The Correctional
Officers' basic duties are to supervise, care for, feed,
secure, admit, search and provide for the welfare of inmates
as well as to intervene in crisis situations.
Management was first made aware of the grievor's
injury on June 27 by way of a letter. The injury to the
grievor and the cast on his arm made it impossible to perform
the duties of a Correctional Officer II. A medical
certificate he supplied to the Employer at the time estimated
that he would need eight weeks off before he could return to
work. Thus, the grievor qualified for the short-term sick
leave benefits under Article 51 which gave him 75% of his
pajr- He was also entitled to draw upon his accumulated sick
credits to supplement the income.
The grievor's situation came to the attention of the
Superintendent, Gary Meyer, around July 10th. lie and the
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Deputy Superintendent'discussed ,the preferability of adopting
a policy that would enable staff who were not fit for
"full-time duty jobs” to take on "light duty assignments" and
thus prevent them from staying off work more than necessary
and using up sick leave credits. So, it was decided to
assign the grievor to the "Admission and Discharge Module"
(hereinafter referred to the A and D Module). This is an
enclosed, secured area, separated from the maximum security
wing, which is staffed to open the gates and doors
electronically for personnel bringing inmates into and out of
the institution. The function of the Correctional Officer in
the module is ~performed simply by pushing buttons, logging in
the personnel and receiving weapons from police.
Superintendent Meyer described the job as a "one-arm
function."
Normally, the A and D Module is only staffed as ,
needed. A Correctional Officer II will be called to attend
whenever an arrival or departure had to pass through the
area. Staff complained about the interruptions in their
other duties that resulted from this arrangement. So, the
grievor's assignment to the Module on a full-time basis while
his arm was healing was deemed by Superintendent Meyer to
serve two purposes. The first was to determine the need for
a full-time assignment in that area and the second was to get
the grievor back to work without putting him at risk. The
avoidance of the risk was to be accomplished by the fact that
the intention was that the grievor would have no contact with
inmates, no responsibility to supervise inmates, feed or dress
them and would not be expected to participate in any crisis
intervention. While the evidence discloses that the grievor
was told that he would have no contact with inmates, it is
not clear from the evidence what he was told regarding his
duties to intervene in a crisis. Evidence also revealed that
there would Se some contact with the minimum and medium
security inmates simply when the grievor had to go down the
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corridors to and from the Module on reporting to-work,
leaving work or taking meal or washroom breaks.
It was the opinion of Superintendent Meyer, in
consultation with his Senior Assistant Superintendent of
Security, Douglas Tocher, that the A and D Module assignment
would not put the grievor at any risk. Thus;Superintendent
Meyer instructed Assistant Superintendent Tocher to contact
the grievor and advise him that he was assigned to the A and
D Module. On Friday, July 27, 1984, the grievor was
contacted by Assistant Superintendent Tocher and told to
report,for duty at the Module on Friday, August 3rd. This
call was confirmed'by a memorandum to the grievor which reads
in part:
. . .
Your duties shall be to man the A and D
control module during the above-noted hours for the purpose of controlling all doors in the immediate area electrically and the A 6 D admission gate in the rear compound.
This assignment will not involve lifting or
direct contact with inmates. It is fortunate that we have been able to identify this assignment for you at this time.
. . .
Howevar, on August 3rd, the grievor had delivered to the
institution a latter from his doctor saying, "This man has
had a fracture disfocation of his wrist and will not be fit
to return to work for another two weeks." Accordingly, the
grievor did not report to work on August~3rd.
Superintendent Meyer testified that he felt some
concern over the medical "report" quoted above. In his own
words, Superintendent Meyer said, "I couldn't believe a
doctor would write a certificate to say he fthe grievorl
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wasn’ t fit to do these light duties.. I couldn’t believe the
doctor had the full goods.” The Superintendent simply felt
that the dot tor could not have understood or have had
knowledge of the nature of the revised assignment to the A
and D Module when he-reached the medical conclusion .that the
grievor would not be fit to return to work for another two
weeks. So,) Superintendent Meyer instructed Assistant
Superintendent Tocher to contact the physician directly and
tell him what the revised job would involve.
The grievor's doctor was then contacted by Assistant
Superintendent Tocher. Mr. Tocher said that he did not
solicit medical information~ from the doctor, but simply
wanted to describe the nature of the job assignment. This
approach was confirmed by the grievor’s doctor, Dr. Taylor,
in his evidence before the Board. In fact, Dr. Taylor
testified,.that he felt that no doctor/patient privilege was'
being violated because he was not being asked for information
on the grievor's medical condition but instead was being
given information by the institution and asked for his
comments upon i t. On the basis of the job description that
Assistant Tocher gave to Dr. ,Taylor as involving no direct
contact with inmates, Dr. Taylor advised the institution that
the grievor could be able to handle the job as described.
Dr. Taylor also told Assistant Superintendent Tocher to tell
the grievor to contact the doctor if he had any concerns
about that position. Dr. Taylor admitted in
cross-examinaCtion that in giving this opinion to
Superintendent Tocher, Dr. Taylor did not know that the
institution was classified as a maximum Security institution
or that the grievor would inevitably come into some contact
with inmates.
On the basis of the information an3 advice received
from Dr. Taylor, Superintendent Meyer and Assistant
Superintendent Tocher decided to order the grievor to return
to work to staff the A and D Module on thqust 7th. The
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grievor was angry that his physician had been contacted and
interviewed without his consent. He took the position that
the medical certificate of August 3 stating that the grievor
should be off work for two weeks controlled the situation and
that he would not return to work before the expiry of the two
weeks mentioned in the certificate. The grievor accordingly
did not return to work tin August 7th. Consequently, he was
contacted by Superintendent Meyer and their conversation was
recorded in a letter of the same date, August 7th, which
concludes:
It is our opinion and that of your Doctor's that you are fit to perform light
duties in consideration of your sports
injury. Consequently, as I also informed you during our conversation, should you refuse to report for duty on August 7, 1984 , you will be removed from the payroll effective this date. Should you continue
in your refusal to report for duty your position will be declared abandoned in accordance with the Public Service Act.
Thus, effective August 7, 1984 the grievor was removed from
the payroll and ceased to obtain his sick leave benefits. He
was also given notice that if he continued to refuse to
report to work for two weeks, his employment would be deemed
to have been abandoned.
On August lOth, Doctbr Taylor gave a further medical
certificate to the grievor which was delivired to the
institution on August 13th. Tha-t report stated, "This man
has a wrist injury: he is undergoing treatment at present
time (pysiotherapy). His injury will be evaluated on
August 16th regarding the possibility of returning to work.”
Dr. Taylor explained that this certificate “probably” relates
to the full duties of a Correctional Officer II because the
doctor felt at that time that the griever could do the light
duties in the A and D Module that Assistant Superintendent
Tocher had outlined. Dr. Taylor recognized that the griever
felt that despite the.modified assignment he would still be
subjected to inmate contact and thus could not do the duties
he was being offered. Dr. Taylor felt the grievor was
"unhappy" with his physician's assessment of the situation
and referred the grievor to a consultant orthopedic surgeon
in Kingston for another opinion.
After reviewing the medical certificate of
August lOth, Superintendent Meyer again wrote to the grievor
on August 16th to clarify everyone's position. That letter
concludes:
As your medical certificate of August 10, 1984 provides no indication
whatsoever, that you ace unable to undertake light duties you remain absent without leave. As described in my letter of August 7, 1984 your position may be declared abandoned in accordance with the provisions of the Public Service Act, should you continue to refuse to report as instructed.
Thus, as of August 16th, it was made clear to the grievor
that his job would be considered to be abandoned by
August 21, 1984.
On August 20th, the grievor reported to work and took
up the duties in the A and D Module. On the same day, the
consulting orthopedic surgeon that the grievor had seen in
Kingston upon his own doctor's referral issued a certificate
which reads:
To Whom it May Concern:
Re: Mr. Car 1 Stacey
Mr. Carl Stacey has sustained a nasty ,fracture-dislocation of his left wrist which is now healed but requiring physiotherapy. Because of the nature of the injury, restriction of motion and weakness of grip and discomfort persists in
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the wrist. Because of these handicaps the handling of prisoners at his place of work would be inappropriate. We would therefore recommend that he be given protected and appropriate work to protect his left wrist from overuse or violent encounters. We would also encourage that he be allowed to
attend physiotherapy until the physio dept. [sic] does not feel there is any advantage in continuing therapy. This situation should persist at least until he is seen in the next two months in further follow up.
OnAugust 27th, Superintendent Meyer issued a letter
of reprimand to the griever. That letter concludes:
Your refusal to report for work as
instructed by Mr. Tocher and. myself is reprehensible. There is no doubt that you were made clearly aware that modified work was available to accommodate your broken wrist and that you were to report for duty
in the A 6 D module. I cannot accept your reliance on earlier medical certificates which related to your ability to work as a Correctional Officer as any justification for your refusal to return to modified employment.
Your behaviour in this instance is of serious concern as it represents a most unto-operative approach to your employment and caused me to question your suitability for continued employment. While
significant disciplinary action was considered, I have taken into account that you were off the payroll for the period August 7, 1984 through August 17, 1984 and it is my decision to reprimand you for your
behaviour in this instance.
Nevertheless, you should consider this letter a warning that any future incident of this nature will result in your dismissal from the service.
Superintendent Meyer explained that he felt this discipline
was warranted because there was “no justif ication" for the
griever's refusal to report to duty. Superintendent Meyer
-, -
did not consider the removal from payroll to be
"disciplinary" because it was felt that the grievor did not
qualify for benefits during the period from August 7th
through to his return to work on August 23th.
The evidence of the Union stressed two concepts.
First, through examination and .the testimony of two
experienced personnel from the institution, it was revealed
that despite the intent of management to eliminate patient
contact on the grievor's special'assignment to the A and D
Module; some contact with inmates would 'inevitably occur when
the grievor walked to and from the Module on shift changes
and for meal or washroom breaks. This was inevitable because
inmates from the minimal security wing would be in the
corridors on cleaning duty and seven-in the staff lunchroom at
certain times. Also, although management.did not expect the
grievor to respond to crisis situations, other guards and
inmates would. have expected that of him. Further,~ there was
a real fear that inmates may try to provoke a confrontation
which would involve the grievor , given the vulnerability
arising from his injury. However, we did not have the
benefit of the grievor's testimony , so we do not know what
his understanding of the expectation of the job was or what
concerns he actually had about his return to work to the
modified duties.
Secondly, the Union emphasiied in evidence that the
griever's case was the first situation where an'employee was
ordered back.to work on light duties while he was recovering
from an injury. The new policy initiated by Superintendent
Meyer had not been applied before because personnel with
injuries like the grievor's were allowed to remain off work
until they were completely healed. Since the grievor's case,
the Employer has adopted this policy in other situations.
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The Arguments of the Parties
Counsel for the Employer argued that the grievance
raised two interrelated issues , one regarding the imposition
of discipline by the demand letter and the other regarding
the non-disciplinary denial of sick leave benefits. Dealing
first with the issue of sick leave benefits, it was submitted
that the Employer had taken the initiative to help the
grievor by offering him employment and avoiding the
utilization of sick leave credits. The assignment offered to
the grievor was one that involved some of his duties as a
Correctional Officer, but not all of them. But the
assignment would have the effect of giving the grievor a job
that he could do without exposing him to risk and would also
enable the Employer to determine whether a full-time person
was needed~ in the A and D Module. Because the assignment was
a novel one and.not meant to be permanent, the Emplbyer took
the position that the duties offered to the grievor did not
constitute an "established position" and therefore there
would be no requirement to advertise the position as a
vacancy.
Regarding the duties themselves, counsel for the
Bmployer argued that the intent of the Ministry was clearly
to prevent inmate contact with~the grievor and thus promised
him in correspondence that there would be "no contact with
inmates." It was said that this was a broad enough
definition to imply to the grievor that he would not be
expected to respond in an emergency situation and could avoid
direct contact with inmates as he proceeded to and from the
Module. However, it was stressed that no one at the
institution nor this Board ever received any statement from
the grievor expressing his particular concerns about why or
if he considered the light duty assignment unsuitable. It
was argued that if this Board were to accept the Union's
evidence that the modified duties constituted a threat tc't!Ie
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grievor's safety, the Board would be considering matters that
the grievor failed to raise with the Employer at the time and
that this would be unfair and inappropriate. In any event,
it was argued that the medical evidence would not support a
conclusion that the grievor was unable to attend.to the
duties in the modified assignment. It was said that in order
to qualify under Article 51 of the collective agreement, we
would have to find that the grievor was unable to attend to
those duties. It was suggested that the grievor either
accidentally or intentionally failed to give an accurate
account of the job duties to the doctor to enable the doctor
to make an accurate prognosis. The result of this was that
the Employer had the right to question the doctor's initial
report. Further, it should affect this Board's evaluation of
the probative weight of the medical certificate. It was said
that there was no invasion of privacy when management
solicited further information from the doctor, but instead
there was simply a clarification of the information already
presented. In any event, this was said to be justified under
Article 51 and subsection 10 in particular. The Employer
relied upon the case of Jones and the Treasury Board, (1981)
29 L.A.C. (2d) 349 (Katesl~~.and the cases cited therein as
authority for the proposition that the Employer could both
question and then'disregard the initial medical certificates
that it received under the circumstances of'this case. The
result of these considerations was said to lead to the
conclusion that the grievor was able to perform the duties
offered to him and this meant that he would not qualify for
the short-term sickness benefits under Article 51.
With regard to the question of discipline, the
Employer argued that the only discipline imposed upon the
grievor was the letter of reprimand. The removal of the‘
grievor from the payroll was considered an administrative
matter resulting from the grievor's failure to qualify for
sick benefits and in no way related to "discipline." It was
i
said that the Board's jurisd-iction was limited in. the review
of the discipline to determine whether a reprimand was
appropriate under the circumstances. It was argued that the
penalty of reprimand was appropriate in this case because the
grievor's behaviour constituted "insubordination or
unto-operative conduct which was inconsistent with the . employer/employee relationship rn light of the authoritarian .~..
role of the Employer." It was submitted that the order given
to the grievor was clear, given by a person in authority and
therefore ought to have been honoured. It was said that the
onus was ,on the Union to show some reason why the penalty was
unwarranted. The Employer referred the Board to the case of
Steel Company of Canada Ltd. and United Steelworkers, Local
1005, (19751 8 L.A.C. (2d) 375 (Palmer).
Counsel for the Union analyzed the case in a very
different way. It was suggested that the two grievances
cannot be separated. It was said that if the grievor is
successful in his claim for sick leave, then the letter of
discipline must fall because the grievor could not be
considered to have been required to attend work. Thus, the
two issues must be looked at together.
The first part of the Union's argument placed
reliance on this Board's conclusions and analysis in the
cases of OPSEU (Rhodes) and Crown in Rioht of Ontario
(Ministry of the Attorney General), Board File 364/82,
unreported decision of J. W. Samuels issued November 24, 1992
and OPSEU (Klonowski) and Crown in Right of Ontario (Ministry
of Correctional Services), Board Files 16/83 and 17/83,
unreported decision of Teplitsky dated October 28, 1983.
These cases were cited to stand for the proposition that the
griever was placed in a position within the classsified
service~which constituted a job vacancy which must be posted
according to the terms of the collective agreement. The
Employer’s failure to post such a vacancy constituted a
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breach of the collective agreement. It was argued-that the
collective agreement does not give the Smployer the option to
create a new position for someone who is unable to perform his
regular duties because of an acknowledged illness or injury.
It was said that if the Employer wants to do this it must be
specified in the collective agreement.
With regard to the allegations that the Employer had
breached the grievor's privacy, the Union relied on the case
of Pacific Press Ltd., (19771 15 L.A.C. (2d) 113 (Thompson)
to say that it is improper for an Employer to contact an
employee's physician. Instead, the Employer was said to be
confined to reliance on Articles 51.9 and 51.10 of the
collective agreement. The Union also relied on the cases of
Alqoma Steel Corporation, (1984) 17 L.A.C. (3d) 172 (Davis)
and siverdale Hospital, (1985) 19 L.A.C. (3d) 396 (Burkett).
With regard to the Employer's adoption of a policy
that would have workers return to modified duties before they
are completely healed from an injury, the Union argued that
this constituted a new policy or rule which was unilaterally
imposed upon the Unionby the Employer and which could not be
binding unless it satisfied the classic requirements set out
in the case of KVP Co. Ltd., (1965) 16 L.A.C. 73 (Robinson).
In the case at hand, it was said that the policy would be
inconsistent with the collective agreement, was not clear and
unequivocal, was not brought to the attention of the grievor
before the Employer acted upon it and has not been
c,onsistently enforced from the time it was introduced. The
Union further relied on the cases of Cominco Ltd., (1975) -
10 L.A.C. (23) 17 (Chertkow) and International Nickel Co. of
Canada, (1974) 5 L.A.C. (2dl 434 (!4itchelll. -__
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The Decision
The governing provisions of the collective agreement
are under Article 51: They provide:
ARTICLE 51 - SHORT TERM SICKNESS PLAN
51.1 An employee who is unable to attend to his duties due to sickness or
injury is entitled to leave-of- absence with pay as follows:
(i) with regular salary for the first six (6) working days of absence.
(ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days
of absence,
in each calendar year.
. . .
51.9 Where, for reasons of health, an employee is frequently absent or unable to perform his duties, the Employer may require him to submit to a medical examination at the expense of the Employer.
51.10 After five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical
practitioner is forwarded to the Deputy Minister of the ministry, certifying that the employee is
unable to attend to his official duties. Notwithstanding this provision, where it is suspected that
there may be an abuse of sick leave, the Deputy Minister or his designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days.
. . .
Further, Article 4.1 is relevant:
ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS
4.1 Where d vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining
unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when
advertised service-wide. All applications will be acknowledged. Where practicable, notice of
vacancies shall be posted on bulletin boards.
If the Union's position is correct in its assertion
that the Employer had no right to create the modified
assignment and offer it to the grievor, but instead should
have posted such a position as a job vacancy, then this would
be dispositive of the grievances. This is so because if the
Employer had no right to offer the modified duties, then the
grievor cannot be disciplined for refusing to accept them.
Nor could he be expected to return to anything but his full
duties before he was fully healed. It has always been
acknowledged that the grievor was never able to perform his
full duties as a Correctional Officer II at the relevant
times. Therefore, the first question to address is whether
or not the Employer was require3 to post the modified duties
offered to the grievor in the A and D module as a job vacancy
under Article 4 of the collective agracmont.
There is no question that Article 4 oE the collectiv:
agreement requires management to post vacancies an3 hold the
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t
appropriate competitions after complying with the advertising
provisions of the collective agreement. This was firmly
established in the decisions of Rhodes and Klonowski cited
above. In those cases, this Board dealt with situations
where management attempted to transfer employees as a matter
of managerial discretion from one location to another.
However, the Board reminded the Employer that once it
determined that a position must be filled, a vacancy existed
and had to be filled in compliance with the terms of
Article 4. However, the case at hand is very different from
the situations in Rhodes and Klonowski. Here, we are not
dealing with a situation of a transfer of one employee from
one location to another. We are dealing with the situation
of the grievor being offered an.assignment, on a temporary
basis, which would involve some, but not all, of his
responsibilities as a Correctional Officer II. In order for
Article 4. to come into play, the job offered to the grievor
would have to be considered as a "vacancy". However, the
term "vacancy" has been accepted as implying "a vacant
position for which there is adequate work in the opinion of
the company to justify the filling of that position." (See
Tidewater Oil Co. Canada ~~Ltd., (1963) 14 L.A.C. 233
(Reville).) No vacancies have been deemed to exist in
situations where employees are temporarily assigned or there
was not sufficient work for one individual to do or where the
assignment was understood to b$ temporary. (See Niagara
Television Ltd-, (1964) 15 L.A.C. 51 (Reville); Loblaw
Groceteria Co. Ltd., (1967) 18 L.A.C. 420 (Weatherill);
Pilkington Brothers Canada Ltd., (1976) 13 L.A.C. (2d) 298
(Burkettl; and Reliance Electric 6 Engineering (Canada) L&,
(1961) 11 L.A.C. 345 (Donley).) In the case at hand, wo are
dealing with a limited assignment that was understood by all
to have been temporary in nature. The Employer had never
before considered an assignment to the A and D Module to be
one requiring a Eull-time employee's full attention. The
assignment would be treated as a mere trial to determine
whether or not it was warranted to assign someone there on a
permanent basis. Further, all the medical evidence available
t0 the grievor and the Employer indicated ~that at the time of
the assignment, the grievo~r could be expected to resume his
regular duties within a matter of weeks. In the meantime,
his duties in the Module would have involved the
responsibilities of a Correctional Officer II, but only some
of those responsibilities. Thus, there is .nothing to
indicate that a new position was created or that a vacancy
existed. Therefore, the Union cannot invoke Article 4 to
challenge the Employer's conduct in these proceedings.
The next question to address is whether the Employer
violated the collective agreement by contacting the grievor's
physician directly without the griever's permission. Again,
this is relevant at this stage because of the Union's
argument that the Employer's unauthorized contacting of the
doctor and reliance upon the information obtained ought to.
vitiate all of the Employer's subsequent conduct. In order
to appreciate the Union's argument, the cases cited by
counsel for the Union ought to be briefly analyzed.
In the Pacific Press case, w, the Union filed a
grievance objecting to the company requiring employees to
sign an authorization form allowing the employer to contact
the employees' doctors. In that case it was concluded that
the employer could not make private enquiries of personal
physicians for medical information but instead must request
further medical certificates and specify the information that
is needed in accordance with the collective agreement. It
was concluded:
If management regards medical evidence as inadequate, it could require a more ~complete medical certificate or specify the information a certificate should contain. If doubts about the legitimacy about medical evidence persist, they probably
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will have to be resolved in open proceedings, not through private enquiry.
Underlying this decision is concern for the integrity of the doctor/patient relationship . . . This relationship is one of the most grivate~ in our society, and any breach of it should be.made only with the assent, individual or collective of the patient. (Page 117)
The case of Algoma Steel dealt with the employer's right to
search the employees' tool boxes and their right to privacy.
There was nothing in the collective ageement that implied
such a right and the Board of Arbitration held that the right
did not exist unless allowed in the collective agreement or
there was an overriding business interest that required
protection. In the Riverdale Hospital case, the issue arose
as to whether an employer could require an employee to take a
medical examination. The employee had refused and it had
been argued that the concept of “obey now and grieve later"
ought to apply. The Board held that in a situation such as
that, the concept ought not to apply. Further, the employer
needed grounds under the collective agreement or under
statute to require employees to take the medical examination
that were not present in that case.
As interesting and instructive as these cases are, we
do not find them applicable to the situation at hand. We
accept and endorse the general principles that the
doctor/patient.privilege is a fundamental right that must be
protected by boards of arbitration. Further, unless
something in the colle.ctive agreement or statute enables an
employer to solicit private information from a doctor without
the pa ticnt’s consent, the employer has no right to do so.
However, in the case at hand, unlike the cases cite3 to us,
the questions involved do not deal strictly with the
doctor/patient relationship. The Employer did not contact
1
I
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Dr. Taylor to find out medical information about the grievor.
This was something .that Dr. Taylor was concerned about
himself when he was contacted by Assistant Superintendent
Tocher and Dr. Taylor satisfied himself that the Employer was
not seeking medical information such as to give rise to the
doctor/patient privilege. Instead, the Employer contacted
the doctor in order to give the doctor further information
and to see if the doctor's opinion would be confirmed or
retracted on the basis of that further information. Thus,
the situation must be distinguished from cases where medical
information about an employee is being sought or there is
direct invasion of the employ~ee's privacy such as in the
"search" cases or the cases where employees are being
required to undergo medical examinations.
The Pacific Press case does raise a legitimate
concern regarding the procedue of fairness or lack thereof,
that can result from a physician being contacted directly
without any formal input from the patient. But, in the case
of the grievor, any concerns in this regard must be
considered to have been allayed by the fact that the grievor
was made immediately aware of the contact between the
Bmployer and the doctor. The grievor was told about the
contents of the discussions held and advised of his right to
discuss this matter further with both the Employer and the
doctor. Thus, if any unfairness might have arisen, the
grievor was given the immediate opportunity to redress it.
Howevar, the evidence does not disclose that the grievor took
axdvantage of this opportilnity.
Although not directly on point, the case of Jones and
the Treasury Board and the cases cited therein were of
assistance. In that case, the question of what weight ought
to be accorded to medical certificates arose. The Board
accepted and adopted ~consistent previous jurisprudence that
held that medical opinions, however bona fide,
I I
1 ~
- 20 - F 1~
1
may not be dispositive of an individual'
true condition where that opinion is tainted by a failure of the attending physician to take all material informati,
into consideration. It is immaterial
should the adjudicator refuse to attach . _. _
S
on
probative value to a meaical assessment whether the shortcoming is attributable to the inattentiveness of the doctor or the lack of candour of his patient. More
particularly, should the evidence indic.ate that relative .information has been
purposely withhald through misrep- resentation by the patient and such information may reasonably have had a bearing on the doctor's diagnosis or might, if considered, have affected his decision
to certify the patient's absence from ~work, then I would be compelled to reject such medical opinion as being unworthy of weight.
The significance of the Jones and Treasurv Board decision is
that arbitration boards are not compelled to accept medical
certificates as having unquestionable probative value and
they can be legitimately rejected by the employer. That case
is distinguishable from the one at hand in that it did not
deal with the employer's right to elicit more information
from the doctors. It simply dealt with the question of how
much weight a medical certificate can or should be given by
an employer or a board of arbitration in the context of
deciding a case. However, the case is instructive in that it
recognizes that employers and arbitrations boards are not
completely bound by medical certificates, especially where
there is some question as to whether the certificate is based
u?on the doctor's receipt of all the relevant and pertinent
information. In the case at hand, the Employer had
legitimate grounds to wonder whether or not t!le doctor had a
full appreciation of the modified assignment being offered to
the grievor when the medical certificate was rendered. The
tostimony of the doctor made it cl.ear that he had not
appreciated that the griever was being asked to rettirn to
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modified duties as of August 3rd. Therefore, this entitled
both the Employer and this Board to place little probative
weight or reliance upon the doctor's certificate of
August 3rd stating that the grievor would not be fit to
return to work for another two weeks. Thus, we must conclude
that by simply contacting the grievor's physician, the
Employer has not breached the collective agreement.
The next question that must be addressed is whether or
not the Employer breached the collective agreement when it
cut off the short-term sickness benefits from the grievor
between August 7th and 20th. If'the denial of those benefits
was discipline, then the onus of justifying the denial is
upon the Employer in the ordinary course of discipline cases.
On the other hand, if the refusal of benefits was simply a
matter of the decision that the grievor did not qualify under
Article 51.1 for benefits, then the onus is upon the Union,to
establish a breach of that article. The evidence before this
Board is that the denial of benefits was not imposed as a
corrective or rehabilitative measure to punish the grievor or
to deter others from similar conduct. Instead, the decision
was based on the Employer's decision that the grievor was
simply not entitled to the benefits of Article 51 because the
Employer deemed the grievor to be able to attend to his
duties at 'the relevant time. Unless we could find an element
of punishment, correction, rehabilitation or deterrence in
the Employer's action, we. cannot see how the decision of the
Emoloyer can be considered to be disciplinary. Thus, we are
dealing with the simple question of whether the Employer has
breached Article 51 by denying the sick benefits at this
relevant time. In such a case, the onus of proving the
breach is upon the Union. Thus, the Union must establish
that the grievor was unable to attend to "his duties" as
defined by Article 51.1.
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The requirements of Article 51.1 have been dkalt with
previously in the case of OPSEU (Union Grievance) and the
Crown in Riqht of Ontario (Ministry of Correctional
Services), unreported decision of Springate, Board File
299/84 issued August 23, 1985. In that case the Board
concluded: -
The collective agreement before us limits access to the short-term sickness plan provided for by Article 51 only to an employee unable to attend to his duties due to sickness or injury. In our view, this wording does not mean that an employee can take advantage of Article 51.1 only if it is impossible for him to attend work due to
sickness or injury. Rather, it should be
interpreted as referring to employees who are reasonably unable to attend work
because of their sickness or an injury.
Thus, in order to qualify under Article 51.1, the employee or
the Union ~must satisfy the Boar.1 that the employee is
reasonably unable to attend work because of the injury. In
the case at hand, the duties in question must be accepted to
be the modified or light duties offered to the grievor
because, as we have ruled above, the Employer had the right
to make such an assignment. Thus, the question becomes
whether the grievor ought to be considered to be reasonably
unable to attend to that work. The evidence elicited in
cross-examination and tendered through the evidence of the
Union witnesses raised several theoretical reasons why the
grievor may have had some legitimate concerns as to his
ability to perform the duties without exposing himself to the
risk of further injury or the heightened risk of
confrontation by inmates. However, the grievor never raised
any of these concerns with management. Nor, did the grievor
testify and express any of these concerns to the Board. The
Board has a great deal of sympathy with the risks that
Correctional Officers are exposed to in ordinary times under
ideal conditions. The Board is well aware of the many
dangers facing Correctional-Officers in their day-to-day
functions. Further, the Board is sympathetic to the position
an individual may be in as a Correctional Officer when he is
not physically fit to perform all his regular duties.
However, several factors are relevant when the question
arises as to whether-an individual hasthe right to decline
to follow orders to do an assignment because of a perceived
danger to his health. They are clearly summarized in the
case of Steel Company of Canada, (1975~) 8 L.A.C. (2d) 375 -
commencing at 377. The cases summarized in that award deal
specifically with the situation where an employee is
suffering from a physical disability which may expose him to
some risks not common to other completely fit employees. In
such a sieuation, the grievor must prove that the state at
risk to health or safety which is apprehended is "serious".
Secondly, the grievor must prove that there actually was such
a danger or that he actually held the belief, which is a
reasonable belief, that he would have exposed himself to the
possibility of serious injury if he had followed the order.
This must be based on solid evidence and the test is an
objective one. Thus, even if there is no serious danger but
it is possible for a reasonable person to conclude that there
may be, that is sufficient to satisfy the test. But finally,
the employee is required at the time of the refusal, to
communicate his reasons for his refusal to the employer. As
explained by Chairman Palmer at page 379:
The justification for this is, of course, that unless the employer knows the reasons for the refusal he cannot examine the question of danger to determine its existence or to attempt to putt the
grievor's mind to rest if, in fact, there is no danger.
In the case at hand, the grie~vor is asking us to
conclude that he had a le.gitimate and justifiable reason for
refusing to report to work as require:l.
However, the only
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reason he.ever gave to tine Employer for not returninq to work
was that he.had a medical certificate indicating that he
would not be fit to work as a Correction1 Officer II for a
further two weeks. The grievor never communicated to,the
Employer that he considered the assignment to be one that put
his health orsafety-at risk, or that he had any concerns
about the nature ~of the modified assignment.
Further, we are not satisfied on the basis of all the
evidence to be considered, that the grievor would have been
unable to attend to the duties, in the A and D Module.
Clearly, the functions in the Module itself could have been .’
performed without the use of the grievor's injured.arm or
wrist. Nor does the evidence convince us that the grievor's
trips to and from the Module during the day, given the
location of the Module and the,,possibility of minimizing if
not eliminating inmate'contact during those trips, would
expose the grievor to any real, significant or "serious"
risks. Therefore, we must conclude that between August 7th
and August 20th, the grievor was able to attend to the duties
in the A and D Module and was not disabled due to any injury.
Thus, the grievor has not convinced us that he should have
qualified for the "leave of absence with pay" as promised in
Article 51.1.
Finally, we must address the question of whether t!le
Employer was justified in issuing the reprimand against the
griev.or. We have already ruled that the Employer was
entitled to offer the modified job assignment to the grievor
and that the grievor has not satisfied us that he had a
legitimate reason for refusing to comply with the order to
attend to work. Thus, we are dealing with a situation where
an employee has failed to comply with the Employer's
diroction.to attend to work to speciEied job duties. Thus,
we must conclude that there has been insubordination on the
part of the griever in a technical sense of that wor;l. w‘2 do
- ‘3 -
not Eeel that the "insubordination" was a matter of.
deliberate or confrontational defiance on the part of the
grievor. Instead, it was the result of the griever simply
adhering to his own.concept of rights and privileges which he
believed arose under the collective agreement. The fact that
he was mistaken in his analysis of the collective agreement
is what led him to refuse to obey management's orders. Under
the circumstances, we do not consider the insubordination to
be serious or that significant discipline should have been
imposed. However, the only discipline that was imposed was
the letter of reprimand which was quoted above. In our
opinion, that discipline wascompletely appropriate under the
circumstances and we see no grounds for interfering with it.
With great respect to Union counsel, we do not agree
that the KVP case analysis is relevant in these proceedings.
KVP dealt with the unilateral imposition of a new set of
rules upon the union by the company. In the case at hand, it
is true that the Employer's actions were motivated by a
change in policy. However, it cannot be said that requiring
an employee to attend to modified job duties constitutes the
imposition of a new rule or procedure. Instead, it is the
exercise of existing and acknowledged management rights.
Finally, as a general comment, the Board feels it
worth noting that the Employer's policy of encouraging
employees to return to work to modified duties ought to be
encouraged. This minimizes the employee's use of,his sick
leave credits and thus preserves them for when, and if, they
are ever more sorely naeded. Further, it reduces the cost to
the Employer as wall as the disruption of the workforce. Of
course, the practice can only be implemented where duties can
be found that accommodate the injured workers. When su;h an
accommodation can Se made, it is in everyone's interest that
this be done.
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I
For all the reasons and considerations mentioned
above, Grievances Nos. 820/84 and 818/84 are hereby
dismissed. The Board retains jurisdiction to deal with
Grievance 821/84 should the parties wish to proceed with that
matter. In the event that the parties wish to proceed, the
matter is referred to the Regi~strar for scheduling at a time
which is convenient to all the parties.
DATED at Toronto, Ontario, this 20th day of June,
1986.
"I dissent" (dissent to follow)
I. Freedman Member
-_ E. A. McLean Member