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HomeMy WebLinkAbout1995-2078.Zaidi.98-05-19ONlxRKJ EMPLOY& DE LA COURONNE CROWN EMPLOYEES DE L’ON-WW GRIEVANCE COMMISSION DE SETTLEMENT RliGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 128 TELEPHONElTiLiPHONE : (416) 326-1388 180, RUE DUNDAS OUES7; BURGIU 800, TORONTO (OhJ M5G 1ZB FACSIMILEfT~tiCOPIE : (416) 326-1396 GSB # 2078195, 0629196 OPSEU # 96D026,96B762 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Zaidi) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE -FOR THE UNION FOR THE EMPLOYER HEARING H. S. Finley A. Lewis Counsel Vice-Chair Gowling, Strathy & Henderson Barristers & Solicitors J. Smith Counsel Legal Services Branch Ministry of Community & Social Services August 27, 28, 1997; September 8, 9, 10, 1997; October 15, 16, 17, 1997 DECISION On September 21, 1995, the Grievor, Urooj Zaidi, filed the following grievance: I grieve that I have been improperly and unjustly treated and denied sick benefits under the Collective Agreement, and further the actions of the employer have endangered & effected [sic] my health and also caused me financial distress. He asked that [he] immediately be credited with [his] sick benefits retroactively to July 24/95 and any other benefits that [he was] entitled to and further [he] be reimbursed for all costs [he] ha[s] incurred plus interest, due to the unjust actions of the employer. On May 14, 1996, he submitted a further grievance stating the following: I grieve that my Human Rights and other rights under the collective agreement have been violated and I have been improperly and unjustly treated & dismissed by the ministry: reference letter dated May 6th, 1996 signed by Ms. Shari Cunningham. That letter read as follows: Dear Urooj: By the authority delegated to me by the Deputy Minister under Section 23 of the Public Service Act, I hereby dismiss you for cause in accordance with section 22 (3) of the Public Service Act, effective May 6, 1996. You have not been present at work since May 26, 1995 and have failed to provide sufficient medical documentation. Several attempts have been made by management to contact you and explain the necessity for such documentation. In view of previous attempts on behalf of management to secure the required medical information and your failure to provide such information, I am terminating your employment. A copy of this dismissal letter will be placed on your personnel tile. 1 You have the right to grieve this action pursuant to Article 27 of the Collective Agreement. Sincerely, ‘Signed” Shari Cunningham Area Manager Windsor Area Office cc: Personnel file Bob Hunter Gerry Layden - OPSEU Peter Wilson Glen Cook Section 22 (3) of the Public Service Act reads as follows: 22. (3) A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his or her ministry The relevant Collective Agreement is the agreement between the Management Board of Cabinet and the Ontario Public Service Employees Union from January 1, 1992 to December 3 1, 1993. A number of individuals was involved in the incidents which lead to this dismissal letter. They are listed below and those who testified have an asterisk beside their names: Grievor and Family Urooj Zaidi* Shabana Zaidi Grievor Spouse of Grievor Three children of Grievor Union Gerry Layden* OPSEU Representative, Windsor, who assisted Dr. Zaidi beginning in 1995 Bob Hunter* - Ministry of Community and Social Services, Windsor Area Office Shari Cunningham* Area Manager, Windsor, since 1983 Community Services Manager, Manager of Finance for the area served by the Windsor Office; the Grievor’s Supervisor 2 Pam Patterson* Community Services Manager responsible for Essex, Kent and Lambton; the Grievor’s Acting Supervisor during May and June 1995 Marilyn Secretary in the ministry office Kim Secretary in the ministry office (no last name provided) (no last name provided) Ministry of Community and Social Services, Windsor Area Office, Human Resources. Martha Young Manager, Human Resources, Windsor Area Office, left in ** Nancy Jackson Human Resources Representative seconded from Southwestern Regional Centre to work .temporarily in the Windsor Area Human Resources Office: left mid-December 1995 to return to position at Southwestern Regional Centre; Involved in Grievance # 1 (Sick Benefits) Glen Cook* Manager, Human Resources, Windsor Area Office; from December 1995 to June 20, 1995; he provided advice to Ms. Cunningham about technicalities and acted as a liaison between the Windsor Area Ministry of Community and Social Services Office and Peter Wilson of the Corporate Employee Relations office in Toronto. Sairoz Virani* Human Resources Representative * * * : Reported to the Manager, Human Resources; she dealt with the LTIP application. Ministry of Community and Social Services, Corporate Employee Relations Office Peter Wilson Employee Relations Adviser, Corporate Office Medical Personnel Andrew Rajan, MD* The Grievor’s family physician since September 1990 Barb - secretary to Dr. Rajan (no last name provided) Anthony Glanz, MD* The Grievor’s cardiologist since June 1994; his office is located at the Windsor Health Centre. Secretary to Dr. Glanz (no name provided) Enid Bryans, RT(NM) Charge Technologist, Department of Nuclear Medicine, Hopital Hotel-Dieu Grace Hospital; she verified in writing Dr. Zaidi’s completion of the MIBI Scan. Insurance Adjudicators Louise Koster-Lloyd Lynda Dewar Darlene Aheam Senior Claims Adjudicator, Confederation Life Insurance Claims Adjudicator, Manulife Financial Claims Adjudicator, Manulife Financial It was, and is, the practice of the Windsor Area Ministry of Community & Social Services senior management staff to meet weekly. Further meetings between individual senior managers and Ms. Cunningham were and are held as needed. This results, according to Ms. Cunningham, in information sharing and in her keeping up-to-date. Certain medical terms arise frequently in this situation and it is helpful to have definitions of them at the outset. Diagnosis Determination of the nature of a diseased condition; identification of a disease by investigation of its symptoms and history; also the formal statement of this. (The Oxford Universal Dictionary) Prognosis A forecast of the probable course of disease; also the action or art of making such a forecast. (The Oxford Universal Dictionary) Angina (pectoris) A dangerous disease, marked by sudden and severe pain in the lower part of the chest with a feeling of suffocation. (The Oxford Universal Dictionary) Dr. Glanz explained that angina is pain but that worsening angina could mean that new narrowings have arisen in arteries previously known to be normal and if the worsening angina progresses, it can lead to more heart attacks. Infarction blockage of blood circulation to a localized area or organ of the body resulting in tissue death. In the acute emergency known as myocardial infarction, a common type of heart attack, a blood-clot (thrombosis) or hemmorrhage occurs in an artery that supplies blood to the heart muscle, i.e., a coronary artery. Usually the artery has previously been narrowed by arteriosclerosis. Death of heart muscle tissue and heart failure may result. (The New Columbia Encyclopaedia) Gout A constitutional disease occurring in paroxysms, usually hereditary and in male subjects; characterized by painful inflammation of the smaller joints, esp. that of the great toe, and the deposition of sodium urate in the form of chalk-stones; it often spreads to the larger joints and the internal organs. (The Oxford Universal Dictionary) MIBI Scan (Myocardial Perfusion Study) A treadmill test in which a chemical is injected into the patient which enables one to see via computer whether the heart is receiving sufficient oxygen. (Dr. Glanz) At the time of his dismissal, the Grievor was 54 years old, married and the father of 3 children, ages 25,24, and 11. Dr. Zaidi has a Master’s Degree in English Language and Literature from the University of Sind, Pakistan, a Master’s Degree in Political Science from the University of Windsor and a Doctorate in International Relations from the University of Michigan. He joined the Ontario Public Service on March 2, 198 1, as a Race Relations Consultant with the Ministry of Citizenship and Culture in Windsor. In that position he was responsible for conflict resolution, policy and program development, community development and public education and public relations. In August 1993, he suffered an “acute anterior myocardial infarction”, spent 9 days in the Intensive Care Unit and was absent from work for a period of approximately 11 to 12 months. In 1994, Dr. Zaidi was declared surplus from his position in Windsor with the Ministry of Citizenship and Culture when the office in which he worked was closed. Following the surplus procedure, he was placed in the position of Program Assistant - Children’s Residential Licensing at the Windsor Area Office of the Ministry of Community and Social Services. In this position he was responsible for assisting Program Supervisors with the completion of the developmentally and non-developmentally handicapped children’s residential licensing process, completing compliance reviews for agencies administering needs testing for child care, participating in operational and budget reviews of agencies, and providing information and analysis for the monitoring and evaluation of the assigned agencies. He was also to participate in the resolution of case management issues, and to investigate and resolve complaints and serious occurrences, as well as to provide information to the public regarding program delivery and funding. The last day he worked there was Friday, May 26, 1995, when he left, informing the secretary, Marilyn, that he was sick. There was no evidence that Dr. Zaidi had a history of leave abuse or of chronic absenteeism. 5 Communication, lack of communication, and timing of communication played major roles in the ongoing assumptions, decisions, actions, and inactions of the individuals concerned. To give the parties insight into that, I intend to set out in some detail, the processes which took place and the written communication which was exchanged between May 26, 1995 and May 6, 1996. The incident which set off the train of events culminating in Dr. Zaidi’s dismissal began, on May 26, 1995. At that time, his regular Supervisor, Mr. Hunter, was absent from the office on educational leave and Dr. Zaidi was reporting to Ms. Patterson. At the outset of her supervision of him Ms. Patterson met with Dr. Zaidi to set out her expectations of him in his position, and in subsequent meetings, according to her testimony, she expressed concern over a number of work- related issues. On the Friday in question, Ms. Patterson informed Dr. Zaidi that “there was an issue which would require serious discussion on Monday” but that she “could not continue that day as [she] was going to a meeting”. Ms. Cunningham was aware that the meeting with Dr. Zaidi was to take place. She testified that the beginning of her involvement in the matter leading up to Dr. Zaidi’s dismissal, was Ms. Patterson “confronting Urooj Zaidi that there was a problem and that she would be meeting with him to discuss it further”. Dr. Zaidi testified that at the time he was starting work that day he experienced some angina and he used his nitroglycerine spray. The angina did not subside, and he thought that it would be better if he went home. He informed the secretary, Marilyn, that he was having chest pains, but testified that he did not mention gout, a condition from which he suffers. Dr. Rajan testified that he received a telephone call from Dr. Zaidi that day and in response to a description of his symptoms, advised him to attend at the emergency unit of the hospital for an electro-cardiogram. According to Dr. Zaidi he went straight home. 6 It appears that Dr. Zaidi went to the hospital emergency on this day. Ms. Patterson learned from an E-Mail from the secretary, Marilyn that, following her departure on Friday morning, Dr. Zaidi had reported he was going home as “he was not feeling well”. (This E-mail was not offered in evidence, and the secretary in question did not testify.) Ms. Patterson testified that she then “waited to receive a call to indicate the problem and when Urooj was returning”. According to Ms. Patterson, there was a considerable backlog of work and she was “also anxious to know his condition, so [she] could made arrangements to give his work to someone else”. When asked what communication she received from Dr. Zaidi, she replied “none”. At the same time she testified that she was informed by the secretary that he had called in on this day to say that he would not be in and that “he had gout all over his body”. She did not speak to him on this day as she was out of the office. Ms. Patterson stated that she heard nothing on Tuesday, from Dr. Zaidi. According to the testimony of Dr. Rajan, Dr. Zaidi attended at the emergency unit of one of the local hospitals on this day where he saw Dr. Milos, an internist with a sub-specialty in cardiology. He was discharged and advised to see Dr. Rajan with respect to a referral to his regular cardiologist. A report was sent to Dr. Rajan. Dr. Milos did not make a specific diagnosis of angina and considered other options, according to Dr. Rajan. Dr. Glanz did not receive a report respecting this emergency room visit. On the morning of this day, Ms. Patterson attempted on two occasions to contact Dr. Zaidi by telephone but was unsuccessful in getting an answer. Her call of 4:30 that afternoon, she testified, was answered by Mrs. Zaidi who explained that her husband was visiting his doctor and when asked, Mrs. Zaidi told Ms. Patterson that she could most likely reach him at 7:00 7 o’clock that evening and so Ms. Patterson placed a call to Dr. Zaidi at his residence at that time and spoke with him. She testified that he told her that (in her words) he left on the Friday before because he was feeling stressed out and had an attack of gout, that he went to the family doctor, Dr. Rajan, who suggested he go to the emergency but that he did not, but instead, went home to sleep because he was exhausted. He continued, according to Ms. Patterson, to say that he went to Grace Hospital in Windsor on Saturday where they did heart and other tests, but had no results on Wednesday; that he had an appointment with his family doctor on June 1 st [Thursday] at 9: 15 in the morning. Ms. Patterson testified that she requested that he get a note from his doctor indicating the prognosis of his illness and when he was returning to the workplace. It was important, she explained, to have an understanding of when he was returning to deal with the workload and if he would require accommodation on his return. She acknowledged in cross-examination, however, that it was not strictly necessary to have accommodation arranged in advance of an employee’s return to work. Dr. Zaidi, according to Ms. Patterson, indicated that he would, in her words “have his doctor send a note”. She also asked him to call her and “let [her] know what was happening” and to speak with her personally and not leave messages with the secretary in the office since that person was not his supervisor. As his supervisor, she stated, she expected that “he would report to [her] the status of his health” and whether or not he was returning to work. Ms. Patterson testified that she assumed that she would get a note from Dr. Rajan and a call from e Dr. Zaidi on this day. When asked what response she had from Dr. Zaidi, she stated “none”. Dr. Zaidi testified that he made attempts to contact Ms. Patterson but instead of her personally answering the telephone, he got her voice mail and did not leave a message. When Dr. Rajan saw Dr. Zaidi on this day he complained of increased chest pain and stress at work. Dr. Rajan did not believe that he was suffering from “unstable angina” but was not certain that he was not and, he testified, he erred on the side of caution. He clarified that “unstable 8 angina” was not an advanced stage of angina but rather that the individual was at risk of “walking out of the office and dropping dead”. There was no doubt in his mind that Dr. Zaidi was experiencing increased pain and that he concluded that the pain was cardiac. Dr. Zaidi asked to see Dr. Glanz again and given that Dr. Zaidi’s heart attack had been an anterior infarction which is, Dr. Rajan explained, associated with “a lot more mortality and morbidity”, he did not view Dr. Zaidi’s request as unreasonable and had his secretary make an appointment for him. In his opinion, Dr. Zaidi needed further investigation by a cardiologist and, Dr. Rajan testified, given his past history, he could not take a chance that he might drop dead at work. According to Dr. Rajan, at this visit Dr. Zaidi requested a note which he provided. He assumed it was for his Employer. He was asked if at that time, given his diagnosis, he would have been able to give a prognosis and he replied “absolutely not”. The note read as follows: DR. A. I. RAJAN, M.D. 1760 TECUMSEH RD. W. WINDSOR, ONT. N9B lV2 FAX (5 19)254-6458 For U. ZAIDI Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date l/6/1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Handwritten] UNFIT FOR WORK DUE TO ANGINA “Signed” A. I. Rajan, M.D. SIGNATURE DO NOT REPEAT XCI NO SUBSTITUTION Cl PLEASE LABEL 0 REPEAT 1 2 3 4 5 NR Dr. Zaidi testified that after seeing Dr. Rajan, it was his understanding from the doctor, that he should not return to work, that treatment had not started, and that Dr. Rajan was making 9 arrangements for him to see a specialist. He did not, he stated, think he could go to work until he had seen the specialist. It was his understanding, he explained, that it was up to the physicians to provide a prognosis and that it was necessary for them to make a diagnosis prior to arriving at a prognosis. v, JunL& 1995 Ms. Patterson agreed that the note written the previous day and delivered on the Friday, had been received within 5 working days Dr. Zaidi’s illness and that it said Dr. Zaidi was unfit for work. However, she maintained that it did not indicate that he was unfit beyond the day it was written and that the note was ambiguous because Dr. Zaidi “was supposed to be discussing whether he could return to work, and on that basis, it [was] a very ambiguous note” Ms. Patterson, determined at the time of receiving the above note that it was insufficient on the basis that “it was clear that [the Employer] needed to know how long he would be off work”. There is, she testified, an expectation that employees will provide a doctor’s note that indicates more than that the employee is sick. She was not, she explained implying that he was not ill, but that she needed to know when and how he would return. “Even”, she expressed, “if he had said he could not come back until the cardiologist’s report, that would have been sufficient.” Ms. Patterson acknowledged that the note stated that Dr. Zaidi had angina, but stated that “some people work with angina”. While Ms. Patterson agreed in cross-examination that while one might be able to give a letter requesting information to a physician, one could not require or force that physician to provide that information and that an employee cannot be held responsible for not being able to see a physician. However, at the same time, she maintained that “that information could have been provided and it wasn’t”. Ms. Cunningham had a similar response to the note which she saw for the first time during her cross-examination. It was her view that “it is clear for the day”. She explained that if she is sick, her doctor has a sense of how long she is sick for, and doctors are experienced as to how long it takes to recover. It was pointed out to her that the note stated that Dr. Zaidi was ill, it does not 10 say when he can return to work. When her reading of the note as being for a single day, was challenged, she replied that “lots of people work with angina”. A doctor would, she testified, be able to say “I would not be able to have a full assessment and when I have the information I will be able to give you a full prognosis”. Dr. Zaidi testified that Dr. Rajan told him that all he was able to provide was the above note and that it would be up to the cardiologist to follow up. v, June 9,199s Ms. Patterson had also told Dr. Zaidi that he was to telephone her following his appointment with his doctor and “when he didn’t and [she] heard nothing, [she] phoned him again on June 9th [Friday]” and during that conversation, she said that Dr. Zaidi indicated he was visiting Dr. Rajan again on June 12th and that his family physician was to set up an appointment with the cardiologist but that he did not, at that point have a date and was expecting to hear from Dr. Rajan’s office on June 12th (Monday). According to Ms. Patterson, she explained again the need for an estimated date of return, and that Dr. Zaidi responded that the cardiologist would only be able to provide that information once the tests were complete. Ms. Patterson stated that if it were not possible for the cardiologist to provide that information she “would like to have that in writing to verify it”. She then, she stated, asked him to telephone her on Monday, June 12th to let her know of the date of his appointment with the cardiologist and what his family physician felt about his potential return to work. She wanted, she explained, to follow-up because “a long time had elapsed with Urooj not at work” and “there was nothing that the Employer could get a handle on a as to when he would return, or “even the doctor confirming the need to wait for the cardiologist”. Dr. Zaidi was expecting to hear from Dr. Rajan’s office about his appointment with Dr. Glanz and it is reasonable to conclude that it was on this day that he heard that the appointment was on September 28, 1995, some three and a half months hence. Ms. Patterson expressed surprise in her testimony that someone with a heart condition should have to wait so long, particularly when 11 she was sure that Dr. Zaidi would have indicated why it was important. (It was Dr. Rajan’s secretary, not Dr. Zaidi or Dr. Rajan who was making the appointment with Dr. Glanz.) Dr. Glanz testified that “unfortunately waiting times to see me are long, but referring physicians can call and I lit them in earlier after an explanation of the problem”. According to Ms. Patterson she did not hear from Dr. Zaidi on June 12th, and testified that she “had been very specific that he was to call [her] on Monday when he had this information.” (He indeed had the information, but it was an appointment he was trying to advance and so it was not the final appointment date.) Her next step, if she had heard nothing by a certain date, she explained, was to draft a letter explaining exactly the information they were looking for and asking whether or not he could return to limited duties. It was her plan to enclose a job description so the physician could better advise on Dr. Zaidi’s ability to return to work. y: June l3: 1995 Dr. Rajan testified that on June 13, 1995, Dr. Zaidi telephoned his office and conveyed through the secretary who handles the appointments that the appointment for the end of September was too distant. While he did not believe that Dr. Zaidi’s condition was sufficiently critical to hospitalize him, he did agree that he needed to be assessed by Dr. Glanz earlier than the end of September. He then, contacted him, and explained the problem to Dr. Glanz who said that he would see Dr. Zaidi in Ambulatory Care at the hospital on June 19, 1995 (Monday). (The promptness of his response was indicative of the physicians’ concern respecting Dr. Zaidi’s condition.) Ms. Patterson dictated a letter to Dr. Zaidi on this day but held it until Friday, June 16th. Further, she stated, “Urooj was not communicating with [her] about what was happening; on each occasion he indicated he would call, but didn’t and [she] didn’t hear anything again”. Ms. Patterson testified that on the day she dictated the above letters, she received a “phone message which came in at 7:40 in the morning” but she was not in. She stated that in the 12 message he left, Dr. Zaidi said that he had tried to get in touch but as he wanted to speak with her personally he did not leave a voice mail message at the same time, she stated that his message also conveyed that he was still not feeling well and had to go the hospital for tests. At 8 :30 that same morning, Ms. Patterson telephoned Dr. Zaidi and “the family told [her] he was sleeping” and she testified that she “reminded” the person who answered the telephone that he had called her recently and left a message. He then came to the telephone and “she [had] reminded him a week ago that his doctor was to call about an appointment”. She testified that Dr. Zaidi told her that he had been given an appointment for July 11, 1995 but that he considered this date too far in the future and he told her that he was going to go the hospital and attempt to see Dr. Glanz, his cardiologist, through the emergency, which, in his opinion, would result in his being seen sooner. The evidence showed that the appointment was scheduled not for the date which Ms. Patterson mentioned but for September 28, 1995. According to Ms. Patterson, she then asked Dr. Zaidi to telephone her and let her know what was happening, and he replied that “he couldn’t because he thought [she] should be talking to the doctors, as they were the ones who would determine when he could come back”. Ms. Patterson testified she inquired if he had received her letter. (It had, at this point not been sent.) Dr. Zaidi stated he had not. She then told him when he received it “he had to take the letter immediately to his doctor and have the doctor provide the prognosis and his potential return to work” and that “if [she] had heard nothing from the doctors within a week, that [the Employer] would be writing regular mail indicating to Human Resources that they had not * received medical notification and [that] he would be on leave without pay”. (This warning was given 11 days after Dr. Zaidi absented himself due to illness and 7 days after he submitted the June 1st medical certificate of Dr. Rajan.) She testified they had only received a doctor’s note citing “angina” and nothing which said whether he was able to work part-time, or not at all. (Ms. Patterson had been informed by Dr. Zaidi on June 9th that the cardiologist would have to provide the prognosis following a diagnosis.) Ms. Patterson testified that Dr. Zaidi agreed to take the letter immediately to his family doctor and would have the doctor contact her. 13 The letter referred to above was sent out by courier by the Employer to Dr Zaidi on this day. It read as follows: Dear Urooj: Further to our conversation of last Friday, June 9, 1995, please find enclosed a note to deliver to your doctor. The letter contains a copy of your job description and the physical demands analysis of your position. We must plan for the completion of your work and, as a result, require a prognosis from your doctor indicating the length of your absence or a date of return to work. Our primary goal is to facilitate your return to the workplace. We are committed to supporting your return through working with you and your doctor on any restrictions or accommodations necessary to promote this return at the earliest opportunity. Thank you for your co-operation and please do not hesitate to contact me if you have any questions. Sincerely, “Signed” Pam Patterson The letter to Dr. Rajan read as follows: Dear Dr. Rajan: Urooj has delivered a note from you dated June 1, 1995 indicating that he will be absent from work. To allow this office to plan for the completion of Urooj’s work, we would request a prognosis outlining an expected length of absence or date of return to work. The Ministry is committed to working with the employee and their physicians to facilitate and assist employees in returning to the workplace. In order to further assist you to understand Urooj’s duties, I have enclosed the position description and physical demands analysis, which collectively should outline the essential duties and the > physical demands of the job. Would you please review the enclosed documents to determine the anticipated length of time the employee may be off work before he could resume his normal duties or return to modified work. The Ministry is committed to providing accommodation that would facilitate Urooj’s return to work. We do not require any personal information or confidential medical information, but rather your assessment based on the demands of the job. Information required should outline the employee’s capabilities and limitations and work restrictions in relation to the demands of the job. If in your opinion, Urooj’s prognosis is such that he will require a longer period of recovery, we will be willing to work with you to provide the necessary accommodations when his health allows him to return to work. 14 Thank you for your assistance. If there is a charge for this service, please attach an invoice to your assessment. If you have any questions or concerns, please contact me at 254-5355, ext 225. Sincerely Signed “Pam Patterson” When it was pointed out to Ms. Patterson in cross-examination that she did have three telephone conversations with Dr. Zaidi, she acknowledged that indeed she had but that she “was communicating with [Dr. Zaidi] he was not communicating with [her]“. She stated that there was nothing punitive in her dealings with Dr. Zaidi, and that she was always very clear with him that her purpose was to understand why he had to be off work and when he was going to return. For his part, Dr. Zaidi was wondering why he was “getting telephone calls and letters one after the other because [he] had already delivered the letter to the doctor, and it was not up to [him] to provide the prognosis, it was up to the doctor”. Ms. Patterson testified that she then waited but received no documentation. Ms. Patterson testified that she thought she had a subsequent telephone conversation with Dr. Zaidi on this day. That was the day on which Dr. Zaidi saw Dr. Glanz who noted that Dr. Zaidi was “having two types of symptoms” and determined that in order for him to make a diagnosis, he would need to have current test results, since Dr. Zaidi had not had cardiac testing for a long period of time and a treadmill test, according to Dr. Zaidi, was subsequently booked for him on July 25th, that is, five weeks hence. . June %I,1995 to Friday June 23,1995 Dr. Zaidi testified that the letter from Ms. Patterson was delivered within a day or two to Dr. Rajan, most probably by a member of his family. It is reasonable to conclude that it came to Dr. Rajan’s attention during this period.. Dr. Rajan testified that he received the letter along with the 15 mail set out for him by his secretary. He read a portion of the physical demands analysis and realized that he had been sent a similar one for Dr. Zaidi in 1994 and knew that he could not “pass opinion on this program” and he therefore instructed his secretary to call and relay his decision to the Ministry. On his return from educational leave at the end of June 1995, Bob Hunter assumed responsibility for the supervision of the Community Program Assistant, Special Licensing of Children’s Programs, which was the position occupied by Dr. Zaidi, and managing Dr. Zaidi’s sick leave. He testified that Ms. Patterson gave him “a detailed briefing” of the situation since Dr. Zaidi left on May 26, 1995, and was told by her that he needed to follow up with a letter as part of his supervisory responsibilities”. Mr. Hunter followed up by sending Dr. Zaidi the following letter on the same day, 10 days after Ms. Patterson’s previous letter was sent out: Dear Urooj: Pam Patterson wrote to you on June 13, 1995, confirming your conversation with her on June 9, 1995. The letter included a note for you to deliver to your doctor that contained a copy of your job description and a physical demand [sic] analysis. Pam noted that we must plan for the completion of any outstanding and ongoing work and thus needed a prognosis from your doctor indicating the length of your absence or a date of return to work. She indicated it was our primary goal to facilitate your return to work, working with you and your doctor on any restrictions or accommodations necessary to promote your return to the workplace. As of this writing, we have not received a reply from either you or your doctor. This makes the management of your workload extremely difficult. In accordance with Article 52.10[*] of the Collective Agreement, I must now advise you that if we do not receive a response from your doctor by June 30, 1995 [Friday] indicating a prognosis and a an expected return time frame, your leave status will be changed to leave without pay effective July 3, 1995 [Monday]. If your have any questions, please do not hesitate to contact me. Sincerely “Signed” Bob Hunter Community Services Manager Windsor Area Office cc. Pam Patterson Martha Young Shari Cunningham 16 *Article 52.10 of the Collective Agreement which was in effect at that time reads as follows: 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. (This article does not require a prognosis, but a certificate as verification of illness.) Mr. Hunter testified that he told Dr. Zaidi his leave status would be changed from leave with pay to leave without pay, since they “had no sense of prognosis, when Dr. Zaidi was returning to work, and if accommodation would be required”. ’ He had had no verbal communication with Dr. Zaidi at the time he sent the letter and according to his testimony, had no written or verbal communication in response to this letter, and he himself did not attempt to contact Dr. Zaidi as he felt that “communication at this stage should be in writing as a record”. (This decision of the Employer in late June 1995, limited communication between the Employer and Dr. Zaidi and reduced the possibility of informal clarification.) v, June 77,199s Dr. Rajan testified that he understood from his secretary that Dr. Zaidi had called back two or three times insistent on getting something in writing about his seeing the cardiologist, and that she had called to speak to Mr. Hunter but instead had spoken to a secretary by the name of Kim. Mr. Hunter testified that he received a telephone message from the doctor’s secretary, Barb, but fhat this message was left after the closing of the ministry office for the day. (It is probable that the ministry’s and the doctor’s office hours do not coincide.) According to Mr. Hunter’s testimony, this telephone call from the family doctor’s office did not convey any information but simply asked him to call the doctor’s office. 17 v, June Xl,1995 Mr. Hunter responded to the telephone message from Dr. Rajan’s office, but no one was in the office at the time. (Dr. Zaidi testified earlier that Dr. Rajan’s office is normally closed on Wednesdays.) v: June 29: 1995 There was no response, according to Mr. Hunter, from the message he left at Dr. Rajan’s office. Mr. Hunter wrote the following letter to Dr. Zaidi on this day: Dear Urooj: Further to my letter of June 26, 1995, I have not received a note from your doctor as required. Someone from your doctor’s office left a voice mail message for me after closing on June 27. I returned the call June 28, however, the person who called me was not in on that day. I left a message for the person to call me. No return call was received. I must point out to you that it is your responsibility to ensure written documentation, in accordance with Article 52.10 of the Collective Agreement, is made available to your employer’s representative. As we have not received written documentation from your doctor as at June 28, 1995, your employment status will be changed to leave without pay effective July 3, 1995, as per my letter of June 26, 1995. If you have any questions, please call me. Sincerely “Signed” Bob Hunter Community Services Manager Windsor Area Office cc. Martha Young Shari Cunningham Pam Patterson There was no indication that this letter was expedited. (It is not true to say that no written documentation had been received from Dr. Zaidi’s doctor. The Employer had a medical certificate dated June 1, 1995 .) 18 y, July 3,199s This was a statutory holiday and there would have been no postal service. Dr. Zaidi was placed on leave without pay or benefits effective this date. When it was put to Ms. Cunningham that it was problematic for a person with serious health history to be without health benefits she replied As adults we make choices, and I assume he understood the consequences of his behaviour; the choice of whether to work or not, it is a choice, but one with ramifications, depending on whether you choose to communicate or not, there are results. Mr. Hunter testified that on this day he had a telephone call from and a conversation with “Barb” from Dr. Rajan’s office. He was asked in examination-in-chief what information “Barb” had given him and he replied “she did not; she said that according to Dr. Rajan, it was Dr. Glanz’s responsibility” . It is reasonable to conclude that Dr. Zaidi received the June 30th letter on this day. Dr. Zaidi testified that when he received this letter, he was becoming frustrated. He did not know what was happening, was apprehensive that he might find himself with a second heart attack and had concerns for himself and his family. He then, he explained, was subjected to the additional stress being placed on him by the Employer when his physician had told him that he could not provide the information, and he himself could not force the physician to do so. He was not, he stated, saying that the Employer was deliberately trying to create a stressful situation for him but testified that the additional stress of facing a period of leave without pay in the immediate future also caused concern. 19 On the same day, Mr. Hunter wrote the following letter to Dr. Zaidi marked “PERSONAL & CONFIDENTIAL”: Dear Urooj : Further to my letter of June 30, 1995, I was contacted by Barb at Dr. Rajan’s office today. She asked me if I had received information regarding yourself from the office over the past few days. I told [her] I had not. She advised me that Dr. Rajan felt that Dr. Glanz, a cardiologist you saw June 19, 1995, should prepare the doctor’s note described in previous correspondence sent to you by both Pam Patterson and myself. As I noted in my June 30th letter, it is your responsibility to ensure written documentation, in accordance with Article 52.10 of the Collective Agreement, is provided to this office to cover the period you have been away. As I also noted, you are now on leave without pay, effective July 3, 1995. Sincerely, ‘Signed” Bob Hunter Community Services Manager Windsor Area Office BWmc cc. Shari Cunningham Martha Young Pam Patterson On this day, Dr. Zaidi went to Dr. Rajan to request a further note that he hoped would satisfy the Employer. Dr. Rajan provided the following note: DR. A. I. RAJAN, M.D. 1760 TECUMSEH RD. W. WINDSOR, ONT. N9B lV2 TEL.(S 19) 254-6457 FAX (5 19)254-6458 For DR. U. ZAIDI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Date July 5, 1995 Dr. Zaidi will see the cardiologist (Dr. A. Glanz) on July 17195 for Angina Pains. He also suffers with Gout. He must be cleared by Dr. Glanz before he returns to work. “Signed” A. I. Rajan, M.D. SIGNATURE DO NOT REPEAT 0 NO SUBSTITUTION 0 PLEASE LABEL 0 REPEAT 1 2 3 4 5 NR Ms. Cunningham did not see this note until the hearing although it was in the possession of the Employer. She acknowledged in cross-examination that it was reasonable in the case of an employee with a heart condition to see a cardiologist before returning to work. However, she testified, the note still did not give indication of when Dr. Zaidi was to be tested. (There was no evidence that Dr. Rajan had that information since the test was scheduled by Dr. Glanz’s office.) Dr. Rajan’s note of July 5th (see above) arrived at the ministry office after closing hours on this day, according to Mr. Hunter. A receipt stamp on the above note says RECEIVED Ministry of Community & Social Services Windsor Area Office Jul 11 1995 LOG # Martha Young, the Human Resources Manager at the time then reviewed the note with Mr. Hunter and he wrote that day to Dr. Zaidi as follows: 21 Dear Urooj: Your doctor’s note arrived today and covers your absence on sick leave to July 17, 1995. I have included a copy of the letter Pam Patterson sent to you as an attachment to this letter for you to give to Dr. Glanz. It explains the information required and provides a copy of your job description and the physical demands analysis. Please call Pam Patterson on July 17 after you [sic] doctor’s appointment and provide her with an update. She will also need your doctor’s note immediately after the appointment. Sincerely “Signed” Bob Hunter Community Services Manager Windsor Area Office BWmc cc. Shari Cunningham * Martha Young Pam Patterson It seems that Dr. Zaidi was directed to report to Ms. Patterson because Mr. Hunter was to be on vacation the week of July 17th. On this same day, Mr. Hunter sent the following Interoffice Memorandum to Martha Young, copying Ms. Patterson and Ms. Cunningham: We now have a note from Urooj’s family physician indicating he cannot return to work until he sees his cardiologist July 17, 1995. Please cancel my request to move Urooj to leave without pay. Pam would you please BF this note for further action after July 17 in my absence on vacation. (Dr. Rajan’s note did not say that “he cannot return until he sees his cardiologist” which would imply that his return should follow shortly after the appointment. Dr. Rajan stated that Dr. Zaidi would see the cardiologist on July 17th. In a separate paragraph, he stated that “He must be cleared by Dr. Glanz before he returns to work.” The assumption of the Employer ignored any testing that Dr. Glanz might order, or any decision he might make. The statement in Mr. Hunter’s letter would have led the readers to anticipate Dr. Zaidi’s return to occur close to July 17, 1995.) 22 Dr. Zaidi’s leave without pay was cancelled as of this date and he was placed on leave with pay (sick benefits) with a review set for July 17th. Mr. Hunter was on vacation for the first of a two-week vacation period and Ms. Patterson was delegated the supervision of Dr. Zaidi’s sick leave. The evidence of Dr. Glanz did not show an appointment with Dr. Zaidi on this date. Dr. Zaidi’s absence was covered by Dr. Rajan’s July 5th note, up to and including this date. Dr. Zaidi explained that Dr. Glanz asked him why his Employer wanted “that much information” and told him that he was a heart patient who was having testing. Dr. Zaidi testified that he “felt before his doctors that [he] was a person not being believed by [his] employer”. He found this upsetting and after discussing the matter with his wife, they decided that he should go to the union office and discuss his concerns. Dr. Zaidi testified that he had never during his years in the Ontario Public Service experienced the imposition of a requirement that he report to the Employer every time he went to the doctor. He found this unusual. Dr. Zaidi, from the Employer’s perspective, was once again without a physician’s note to cover his absence. Ms. Patterson received the information via a voice mail message that Dr. Zaidi was having a treadmill test at the Windsor Western on July 25th and that he/she would be in touch after that time. (It was not clear when Dr. Zaidi was informed about the date of the treadmill test appointment.) There was no communication from Dr. Glanz’s office. Mr. Hunter was away for this, the second week of his vacation. Dr. Zaidi was again placed on leave with pay or benefits effective this date, the date before the date that Dr. Zaidi had informed the Employer in a voice-mail to Ms. Patterson that he was to undergo a treadmill test. 23 Mr. Hunter explained that the leave without pay commencement date of July 24, 1995, also allowed a week’s grace from the date that Dr. Zaidi was to see Dr. Glanz in keeping with the notes from Ms. Patterson. Tuesdav.Julv Dr. Zaidi completed the treadmill test ordered by Dr. Glanz. This test was administered by a physician other than Dr. Glanz and two nurses were present. Dr. Zaidi received no information about his test results at the time. It was his understanding that the results of the test were to be later forwarded to the referring physician who, in turn would contact him and share the test results with him. Dr. Rajan testified that he, as Dr. Zaidi’s family physician, received a copy of the results and this would have been several days following the test. v, July 78,199s Following “a one week grace period”, as he saw it, , Mr. Hunter wrote again to Dr. Zaidi: Dear Urooj: With reference to my letter of July 11, 1995, we have not received a doctor’s note as outlined in the attachments to the letter. As you have failed to provide appropriate documentation, you are being placed on leave-without- pay effective July 24, 1995. If you have any questions, please call Pam Patterson in my absence until I return from vacation on August 8, 1995. Sincerely, “Signed” Bob Hunter Community Services Manager Windsor Area Office d cc. Shari Cunningham Martha Young Pam Patterson BH:kc Shortly after receiving the letter of July 2&h, Dr. Zaidi took it to the union office where he met with Gerry Layden and during their discussion they touched on the requirement to provide a 24 medical certificate particularly after five days’ absence. Dr. Zaidi testified that he attempted to telephone Dr. Glanz’s office but that there is an extended voice mail system and a system to deal with emergencies. He stated that he left messages but offered the opinion that Dr. Glanz was an extremely busy doctor and that he was concerned that bothering him too much could result in his becoming hostile. During August, according to Mr. Layden’s testimony, he had numerous telephone conversations with Dr. Zaidi respecting his suspension from benefits. He also asked Dr. Zaidi to get copies of the medical certificate dated July 5, 1995, which he had submitted to the Employer. Mr. Layden explained that it was very rare for him to become involved in a grievance prior to Stage II, but in the case of Dr. Zaidi, he did because it became apparent to him that Dr. Zaidi was extremely distressed and concerned about his health. -zdwNm!= This was a statutory holiday. -kwQw= Mr. Hunter returned from his vacation. On this day, Dr. Zaidi attended at Dr. Glanz’s office and signed a medical release which allowed Dr. Glanz to release information respecting his medical situation to the “Ministry of Community and Social Services”. Mr. Hunter, concerned that Dr. Zaidi was half way through the six-month benefit period, sent the following letter to him “to keep attention on the issue and to attempt to resolve the issue from an operational standpoint”: Dear Urooj: On July 28, 1995, I wrote to you advising you that we had not received a doctor’s note for your absence from work for the period after July 17, 1995, the date Dr. Rajan indicated you were seeing Dr. Glanz. To date a doctor’s note has not been received by our office. Our objectives in requesting the note are threefold; to provide documentation for your absence in accordance with Article 52.10* of the Collective Agreement; to facilitate your return to work 25 should any accommodations be necessary; and to plan for the completion of your work in your absence to meet operational requirements. My letter of July 11; 1995 included a letter to your doctor outlining the information required, a copy of your job specification, and your position’s physical demands analysis to assist your doctor in determining the length of your absence and any accommodations necessary to facilitate your return to work. I am including an additional copy, should it be required. Please ensure that a doctor’s note is provided, as previously requested, or a written explanation of the reasons preventing the submission of the medical documentation. If we have not received either of these documents from you by August 3 1, 1995, we will have to review our position. If you have any questions, please do not hesitate to call me. Sincerely “Signed” Bob Hunter Community Services Manager Windsor Area Office BWly Attach. This letter gives the first ‘warning’ - “If . . . . we will have to review our position.” (* The implication of Mr. Hunter’s statement is that Dr. Zaidi has failed to comply with Article 52.10. Article 52.10 requires a certificate of a legally qualified medical practitioner after 5 days, and at this point, the Employer was in possession of two.) Dr. Zaidi attended an appointment with Dr. Glanz on August 24, 1995, approximately two months after seeing him for the first time, and one month after having undergone the treadmill test. He was given the results of the treadmill test. Dr. Glanz testified that his appointment with Dr. Zaidi on this day was “to see what should be the next step following the treadmill test”. It was Dr. Glanz’s decision on this day, that he required further information before arriving at a diagnosis. (This is approximately 3 months after Dr. Zaidi left work due to illness.) At that time he ordered a MIBI scan to determine if Dr. Zaidi’s symptoms were “truly cardiac” and whether or not he should order another angiogram, a procedure which Dr. Zaidi had undergone following 26 his heart attack. He also prescribed additional medication for what he thought was worsening angina (transderm nitro patch). This was the first time that Dr. Zaidi had been prescribed this medication. At that time, it was Dr. Zaidi’s understanding that Dr. Glanz’s investigations were continuing, that diagnosis of his current condition was incomplete, that arrangements were to be made for him to take a MIBI test, and that he was being advised to remain off work. Dr. Zaidi testified that he conveyed to Dr. Glanz that there was a problem that his Employer needed “that information and this should be sufficient”, and that he was on leave without pay. He believed that he did not send the enclosures ( the job specification and physical demands analysis) to Dr. Glanz since he had already provided that information to him at an earlier date. It was his understanding that Dr. Glanz had promised to him that he would provide the information to his Employer. On this date, the day following Dr. Zaidi’s appointment, Dr. Glanz wrote a letter to Mr. Hunter. There is no evidence of how it was sent or where it went astray but it does not appear to have arrived on Mr. Hunter’s desk. The first time this letter was seen by him was when he was given a copy by Mr. Layden on September 2 1, 1995. This was, no doubt, a copy of Dr. Zaidi’s copy which he had provided to Gerry Layden: Bob Hunter Ministry of Community & Social Services 250 Windsor Avenue Windsor, Ontario Sir: Rei Urcm&aidi42.O.B,~l5JP42 Mr. Zaidi is my patient and I have seen him on June 19, 1995, as well as August 24, 1995. He is currently undergoing investigations with respect to his medical status. Sincerely, “Signed” Anthony Glanz, M.D., FRCPC jem cc: patient 27 (This letter does not mention the appointment of July 17th, nor does it explicitly address whether Dr. Zaidi can return to work, or when that might be possible .) This letter to Mr. Hunter with a copy to Dr. Zaidi was the result of Dr. Zaidi’s discussion with Dr. Glanz. Neither Dr. Glanz , Dr. Zaidi nor Mr. Hunter was able to explain why Dr. Glanz’s letter of August 25, 1995, was not received by Mr. Hunter. Dr. Zaidi testified that he had received his copy promptly. From his knowledge at the time, he testified, he had his copy of the letter which Dr. Glanz had sent to Mr. Hunter and assumed that he had satisfied the Employer’s requirement. (He was still on leave without pay and benefits from July 24th, that is, approximately one month.) l?rid;ty.S-eph3nbcl1.1995 A week later, Dr. Glanz wrote again to Mr. Hunter as follows: Bob Hunter Ministry of Community of [sic] Social Services 250 Windsor Avenue Windsor, Ontario sir: Re: Urooj Zaidi - D.O.B. February 15,1942 Dr. Zaidi is currently undergoing investigation for chest pains, and until these are finished I have recommended that he not return to work. Sincerely, “Signed” Anthony Glanz, M.D., FRCPC jem cc:pt [patient] (This letter explicitly addresses the fact that Dr. Glanz is recommending Dr. Zaidi not return to work and it is reasonable to assume that it was written in response to the deficiency in the letter of August 25th having been pointed out to him. The evidence did not show by whom.) Dr. Glanz testified that he based his decision that Dr. Zaidi should not return to work at that time on the fact that 28 Dr. Zaidi had suffered a previous heart attack and was having worsening angina, I was concerned that if he truly was having worsening angina that a return to work might cause more chest pains and angina and until we knew the source of his pain and how bad the underlying problem was, he should not go back to work. If he had developed more narrowings in all the major arteries, he would be set for having another heart attack and I thought that until we reassured ourselves that that was not the case, he should lay low.. This was a Statutory Holiday and therefore there was no mail delivery and offices were closed. At this point in time, Mr. Hunter had not received either of Dr. Glanz’s letters from August 25th and September 1st. The first had gone astray and the second was en route. Mr. Hunter testified that, having received no correspondence from Dr. Glanz, he and Ms. Young collaborated in the drafting of the following letter and he testified that he hoped in it to provide alternatives and potential assistance to Dr. Zaidi, and to secure a prognosis. Mr. Hunter had heard, he believed though Gerry Layden, the union staff representative, that Dr. Zaidi was experiencing difficulty in securing a letter from Dr. Glanz. (At this point, Dr. Zaidi has signed a release which would allow Dr. Glanz to speak with Mr. Hunter, or any representative of the Ministry of Community and Social Services. This was known to Dr. Zaidi, Dr. Glanz’s secretary, and most probably Mr. Layden. There was no evidence as to when Dr. Glanz was informed of the release, nor was there evidence to suggest when Mr. Hunter was informed that this release had been signed.) Mr. Hunter sent the following letter to Dr. Zaidi on this day: Dear Urooj: On August 22, 1995, I wrote to you advising you that we had not received a doctor’s note for your absence from work for the period after July 17, 1995. I noted the rationale for requesting the note was specifically to provide documentation for your absence from work since July 17, to facilitate your return to work should any accommodations be necessary; and to plan for the completion of your work to meet operational requirements. I also provided you with a copy of a letter previously sent to you for your doctor outlining the information to be included in the note, a copy of your job specification and physical demands analysis to assist your doctor in determining your 29 prognosis and return date to work. Finally I asked you to respond to my request by August 3 1, 1995, by either providing the doctor’s note or an explanation of the reasons preventing submission of the note. To date we have not received a doctor’s note or a written explanation of your inability to provide one. Without an explanation from you, I am assuming that you are unable to secure a note from your doctor. Given the rationale for submitting a note, I am proposing a couple of options to facilitate the submission of one. You could ask Dr. Glanz to contact Martha Young, Human Resources Manager. She in turn would outline the need for the prognosis (not the diagnosis) and your possible return date to work and would encourage Dr. Glanz to assist us by providing the required documentation. Alternatively, arrangements could be made with another doctor under provisions of Article 52.10 of the Collective Agreement, at our cost, for an examination and preparation of a doctor’s note in compliance with the Article. Would you please contact either Martha or myself by September 12, 1995, to discuss these options. If you do not contact us by September 12, we will assume you do not wish to consider these options. In that case I would again ask you to supply the requested documentation, this time by September 12 as well. If we have not heard from you by that date further action will be required. If you have any questions please do not hesitate to call me or Martha Young at 254-5355. My extension is 236 and Martha is 206. Sincerely, “Signed” Bob Hunter Community Services Manager Windsor Area Office BWmc cc. Gerry Layden Shari Cunningham bee: Pam Patterson Marsha Gottesman ;‘At the time this letter was written and sent, Dr. Glanz had sent two letters to Mr. Hunter but Mr. Hunter had received neither. This letter provided the second ‘warning’ - “If...further action will be required”. aCe?tember Dr. Zaidi delivered his copies of Dr. Glanz’s August 25th and September 1st letters to the OPSEU office in Windsor. 30 The Human Resources Department of the Ministry of Community and Social Services received the original of Dr. Glanz’s September 1st letter. It is reasonable to conclude that Dr. Zaidi received Mr. Hunter’s letter of September 5th, on this date. Dr. Zaidi stated that he was surprised to receive it in view of the fact that Dr. Glanz had sent two notes to the Employer. He knew this because he had been copied on both. His provision of them, Dr. Zaidi testified, must have been the result of his conveying to Dr. Glanz that the Employer was asking for further information. Dr. Zaidi viewed the September 5, 1995 from the Employer letter as further harassment. He testified that Dr. Glanz, being one of only two heart specialists in Windsor, is “always on the run” and he asked himself “who was I to call him and ask him to call that person and provide information”. According to him, he had provided the information to Dr. Glanz and he considered it inappropriate for him to tell the doctor what he should write in his letter to the Employer. Dr. Zaidi testified to his physical and psychological state during the early fall of 1995 as follows: Physically I felt fatigued, I felt I got tired easily and short of breath and did not go on normal walks and as a result gained wait and was having chest pains off and on. But, on top of all this, I was having this distress. I am not going to say it was 100% caused by the letters, but I think they did play some part in aggravating my position. It also hurt my self-respect quite a bit that every day every week; I have grown-up children going to university and my daughter completing a Ph. D. How would they feel? At times I would not share what was happening, their father sick on leave without pay and psychologically, it hurt quite a bit, and it continues to hurt and having served the Province of Ontario for 16 years, this hurts quite a bit. This remains as a scar, this is the reward that I get. J-Ie testified that at the time, while he did not feel “completely handicapped”, he did not feel capable of putting in an eight-hour day. He did spend time reading, and writing articles while he was at home, although could not work for more than a two-hour stretch. He did not, he explained, have the concentration to write articles for international journals as he was unable to concentrate adequately. He required more sleep than normal and also believed that he suffered drowsiness as a side-effect of his medication. 31 v: s 1995 On September 12, 1995, Human Resources sent the standard long term disability letter for employees who have been on short-term sick benefits for four to six months, to Dr. Zaidi to remind him that his short-term sick leave would be finished in a couple of months and setting out the procedure for him to apply for LTIP It went out under the signature of Sairoz Virani and read as follows: Dear Mr. Zaidi: To ensure continued salary protection when your short term sickness benefits and vacation credits are exhausted, an application for L.T.I.P. is enclosed. Application for this benefit is optional. However, in order to be eligible for payment, LTIP [sic] claims must be submitted no later than six months following the qualifying period. To apply for L.T.I.P. benefits, the enclosed Claimant’s Statement must be fully completed by you, and your doctor(s) must complete the enclosed Attending D&&iliQ. It is upon your physician’s report that the Insurance Company will base its decision to approve (or disapprove) the L.T.I.P. benefits. Once your claim is established the Insurance Company may, from time to time, request further medical evidence to continue your L.T.I.P. claim. Once the forms have been completed, please send them directly to Manulife, Toronto Group Life & Disability Claims, One Mount Pleasant Road, Toronto, Ontario M4Y 2L8 and advise Windsor Human Resources. The insurance carrier requires that we complete an Employer’s Statement. It is therefore very important that we be advised when you send your forms directly to them. We will then forward the completed Employer’s Statement. A condition of L.T.I.P. is that you must apply for Canada Pension Plan disability benefits. This entire benefit is deducted from your L.T.I.P. benefit. If you have not already contacted your local C.P.P. office to file a claim, you should do so now. When you receive your responses from C.P.P. please ensure a copy is forwarded to the insurance company immediately. For any period of leave without pay in excess of one calendar month during the waiting period (i.e. prior to L.T.I.P. claim approval you will be billed monthly for the whole premium of your a insurance plans. You will be provided with a Record of Employment and will be able to collect UIC sick benefits immediately. Once you begin getting LTIP [sic], UIC will have to be refunded. Once your claim has been approved, cheques in the amount of 66 213% of your gross salary (less C.P.P. as noted above) will be mailed to you directly from the insurance carrier. This is a taxable payment and in order that appropriate tax deductions may be made, please complete both copies of the Income Tax Exemption Form TD- 1 and return them along with your Claimant’s Statement. You will no longer be required to pay L.T.I.P. premiums and your other insurance coverages will be kept in force at no cost to you. You will no longer make pension contributions; your OPSEU Pension Trust contributions will be made on your behalf by the Ministry. 32 Please feel free to contact me or Martha Young if you have any questions. Yours truly, Sairoz Virani Human Resources Representative SVllg Encl: Claimant’s Statement Physician’s Statement (2) TD-1 (2) cc. Personnel File [Emphases added] Ms. Virani explained that the process of qualifying for long term income protection is lengthy and requires the participation of both the employer and the employee in order that the insurance company may begin considering whether or not the applicant meets the eligibility criteria of “wholly and continuously disabled”. The aim, she explained, is to ensure that the employee does not experience a break in benefits. It is not the practice of Human Resources to contact the employee directly during this process as the process can proceed without the necessity of this. An invitation is, however, extended to the employee to contact a person in Human Resources if questions arise. In the case of Dr. Zaidi, he was invited to contact Martha Young. Having no verbal communication with Dr. Zaidi, and wanting a prognosis so that he could ensure that the work normally performed by Dr. Zaidi could be carried out, Mr. Hunter once again -wrote to him on September 15, 1995 indicating that the medical note of September 1, 1995 was unsatisfactory: Dear Urooj: Dr. Glanz’s note of September 1, 1995, was received in the Windsor Area Office on September 7, 1995. Unfortunately, the note does not provide the information outlined in our correspondence to you dated September 5th, August 22nd, July 28th, July 1 lth and June 13th, 1995. Three of these letters included a letter to your doctor, that you were asked to deliver. * The letter to your doctor outlined the information to be included in the doctor’s note. Additionally, a copy of your description and the physical demands analysis for the position were included to assist your doctors in determining your prognosis, possible return date to work and any accommodations necessary for your return. 33 , A doctor’s note should include information concerning your prognosis and an estimate of how long you will be absent from work, ie, a possible return date and any accommodations required. A note with this information would assist us in planning for the maintenance and completion of your work assignment with this office. As the current note is not sufficient, your status will not be changed to sick leave with pay. We are prepared, however, to reinstate you on the payroll with retroactivity once we have a doctor’s note as described. Alternatively, you could provide us with written permission to speak to Dr Glanz, allowing us to secure the required information. ** You will also receive under separate cover a Long Term Income Protection application as you are now in your fourth month of absence from work. This is our normal practice. Urooj, your assistance is required in securing the required information from your doctor. Provision of this information will allow us to make decisions regarding your payroll status and completion of your work. Would you please comply with our request by September 30, 1995, failing which we will have to consider further action. If you have any questions, please do not hesitate to contact either myself or Martha Young. Sincerely, “Signed” Bob Hunter Community Services Manager Windsor Area Office C.C. Jerry [sic] Layden Martha Young BH:kc [Emphases added] (*This suggests that the Employer believed that Dr. Zaidi had not taken the letters to his physicians, when in fact he had delivered one to Dr. Rajan, and one to Dr. Glanz, shortly after receiving them.) (** Dr. Zaidi had already completed one-half of this process, by signing a medical release on August 22, 1995, ( three weeks earlier ) to allow Dr. Glanz to release information about his > medical situation to ministry personnel but this information appears not, at this time, to have been conveyed to Mr. Hunter by Dr. Zaidi, Mr. Layden, or Dr. Glanz’s office.) This letter contained the third ‘warning’ - “failing which we will have to consider further action”. 34 days 19: 1995 This was the first appointment that Dr. Glanz’s office scheduled for Dr. Zaidi’s MIBI test According to Dr. Zaidi, when he was told of this date, he ask immediately for a different date as he realized that he would not be able to keep the September 19th appointment because of family and religious commitments surrounding the accidental death of his nephew in Texas. He received the October 24th appointment date (at which time he attended and completed the test) at the same time he refused the September 19th date. Ms. Cunningham testified to her perception of the situation: Dr. Zaidi “had a date and chose not to attend because he had a death in the family, not immediate but extended” . She went on to explain that if she were “really sick and needed special testing [her] health would be [her priority]“. Dr. Zaidi testified that following his receipt of the September 15th letter, he sought Mr. Layden’s assistance once again. On this day, he also completed the first of his two grievances, the denial of sick benefits. Mr. Layden explained that at the time Dr. Zaidi submitted this grievance to the Employer on September 21. 1995, he was still under stress and was getting extremely upset. Mr. Layden delivered the letter to the Employer on the day it was completed. He had, in Mr. Layden’s opinion, done what he could to comply with the demands of the Employer. It was Mr. Layden’s impression that Dr. Zaidi was feeling “a tremendous amount of pressure from the Ministry” and that there was frustration on both sides. For these reasons, and the fact that the doctor was extremely busy, Mr. Layden recommended that Dr. Zaidi give perrnission to the Ministry to contact Dr. Glanz directly as suggested in the letter of September 15, 1995 from Mr. Hunter. Mr. Layden saw this as an opportunity to “speed things up” and to take some of the stress off Dr. Zaidi. Dr. Zaidi provided this authority via a handwritten note dated September 2 1, 1995 which is cited below. Mr. Layden stated that no time frame was discussed and the authority was, he believed, without an expiry date and was there for the Ministry to use until the issue got resolved. 35 It was Dr. Zaidi’s understanding that he was providing the authorization to Mr. Hunter as a representative of the Ministry of Community and Social Services and not as an individual. He testified that he intended the authorization to be open-ended and without restriction on the information requested or provided. It read as follows: This letter is to authorise you to communicate with Dr. Glanz, my Cardiologist, with respect to my medical status, as requested in your letter of Sept 15th, 1995. “Signed” U.A. Zaidi Dr. Zaidi thought that giving both the Employer and Dr. Glanz authority to communicate directly with one another should solve the problem. It was his expectation that the Employer would get in touch with Dr. Glanz and would then discover that he “was not making it up”. He testified that if either the doctor or the Employer had telephoned and said that he was cleared to return to work he would have returned. But, he had no communication from either. This is also the day on which Mr. Layden and Mr. Hunter were in touch with one another and Mr. Hunter learned from him that there were two notes and that when he, Mr. Hunter, informed him that he only had the September 1st note from Dr. Glanz, Mr. Layden provided him with a photocopy of the August 25th one. The letter had a date stamp noting that it was received at the OPSEU Windsor Office on September 7, 1995 and Mr. Hunter noted that he received a “photocopy from Gerry Layden” on September 2 1, 1995. On September 28, 1995, Mr. Hunter completed and signed the Employer’s Statement respecting an LTIP claim for Dr. Zaidi. It was held until November 24, 1995 at which time it was forwarded. 36 On October 6, 1995, Mr. Hunter wrote to Dr. Glanz as follows: Dear Dr. Glanz: I have been advised that Mr. Urooj Zaidi has now provided you with the authority to release information to us regarding his prognosis. To allow this office to plan for the completion of Urooj’s work we would request a prognosis outlining an estimated length of absence or date of return to work. Our Ministry is committed to working with the employee and their physicians to facilitate and assist employees in returning to the workplace. In order to further assist you to understand Urooj’s duties, I have enclosed the position description and physical demands analysis, which collectively should outline the essential duties and the physical demands of the jobs. Would you please review the enclosed documents to determine the anticipated length of time the employee may be off work before he could resume his normal duties or return to modified work. This Ministry is committed to providing accommodation that would facilitate Urooj’s return to work. We do not require any personal information or confidential medical information but rather your assessment based on the demands of the job. Information required should outline the employee’s capabilities and limitations and work restrictions in relation to the demands of the job. If further medical testing is required before determining the prognosis, please indicate when you would be in a position to provide this information. We would appreciate receiving your response, by courier, at your earliest convenience. If there is a charge for providing this information, please attach an invoice to your assessment. If you have any questions or concerns, please contact me at 254-5355, extension 236 or Nancy Jackson in Human Resources at extension 206. Thank you for your assistance. Sincerely, ‘Signed” Bob Hunter Community Services Manager Windsor Area Office d BI-I/jf Attachments cc. Gerry Layden This letter was written six weeks after Dr. Zaidi had signed a medical release at Dr. Glanz’s office and two weeks after Mr. Hunter had received the authorization from Dr. Zaidi to contact Dr. Glanz. 37 October 24,199s Dr. Zaidi underwent a Myocardial Perfusion Study (MIBI Scan) as ordered by Dr. Glanz, in the Department of Nuclear Medicine at the Hotel Dieu Grace Hospital in Windsor. Mr. Layden testified that he was aware that there had been a delay in Dr. Zaidi’s undergoing this test, but that it had taken place during October, the month during which he, Mr. Layden, was on vacation for three weeks. He was not, however, aware of the results. The testing service reported the results of the test to Dr. Glanz at some later date; Dr. Zaidi reported his attendance at the test to Mr. Layden, but no one conveyed the fact of Dr. Zaidi’s attendance to the Employer, not Dr. Zaidi, Mr. Layden or Dr. Glanz. v, November 1995 The letter below is that which Dr. Glanz wrote to Mr. Hunter following receipt of the latter’s letter of October 6, 1995. Dr. Glanz explained that he received this letter earlier and explained that a three and half week delay in response time was not unusual. He stated that Most of my time is spent treating ill patients. Work requests like this fall to the bottom of the pile regularly. I take about one day a month to deal with what has no bearing on cardiac condition. If a day goes by and I don’t get it done, I need to tend to outpatients. It could wait another month. November 1, 1995 Dear Mr. Hunter: In response to your letter dated October 6, 1995, I have reviewed the information regarding Mr. Zaidi’s job description. To bring you up-to-date on Mr. Zaidi’s condition, he has suffered a previous myocardial infarction and had been doing reasonably well until this summer when he had a few episodes of lightheadedness and presyncope. He also redeveloped angina. I saw him on June 19, 1995, and arranged a exercise treadmill test at that time which he completed on July 25, 1995. He developed angina at a low workload without electrocardiographic changes, and in order to plan further management I arranged for him to undergo an exercise MIBI scan at Hotel Dieu-Grace Hospital. My understanding is that this was booked for September 19, 1995, but because of a death in his family Mr.. Zaidi had to cancel that and is working out with Hotel Dieu- Grace Hospital when this can be rebooked. [Dr. Glanz was unaware it had been rebooked and in fact completed.] My plans are to see him after the results of that scan is [sic] available so that any further therapeutic decisions can be made at that point in time. Until then, however, I think that he should remain off work given his poor exercise tolerance and the demands of a job as described 38 in his job description. I hope this information is of some help to you. After he has completed his MIBI scan I will be seeing him again, and at that point further information as to his suitability to return to work may be available. Sincerely, “Signed” Anthony Glanz, M.D., FRCPC* It was the conclusion of Dr. Glanz, when asked, that he did not have the results of the MIBI Scan which had been completed a week earlier, at the time he wrote this letter. This letter was not copied to Dr. Zaidi or to Mr. Layden and neither saw it until the time of the hearing in late 1997. Nor did Ms. Cunningham view it prior to the hearing. When she did, she testified that Dr. Zaidi had cancelled the MIBI test and had to rebook it. While she agreed that he could not have returned to work, she stated that his inability to do so resulted from his failure to undergo the test. It was on this day that Dr. Glanz’s letter of November 1 st was received at the Windsor Area Office of the Ministry of Community & Social Services: . a-24. As of November 24, 1995 Dr. Zaidi had exhausted the 130 days of short term sick leave available to him. In Ms. Cunningham’s view, he was absent without permission from November 24, 1995 to his dismissal on May 6, 1996. According to her, when you want to be absent, in government, you write a request, and if you want to be home with your family or for other reasons, “you don’t just go away. On that same date, Ms. Virani forwarded to Ms. Lynda Dewar at Manulife, the Employer’s statement, a copy of Dr. Zaidi’s job description, physical demands analysis and a brief summary of his “education, training and experience”. In the Employer’s statement, it was indicated that Dr. Zaidi’s disability first appeared to affect his work on May 26, 1995, and that he had not 39 returned to work following that date. It also stated that in order to consider whether he could return to modified duties, the Employer would need accommodation information and that this had not “been forthcoming”. Ms. Virani received a reply from Ms. Dewa.r dated December 5, 1995 which was copied to Dr. Zaidi : Dear Ms. Virani: CXXZAIRI - Palicy 15 9Q2 MY 58 27 - _ Cert 453 142 LL9 We have received the Employer Statement submitted on behalf of the above named insured. In order for him to be eligible for Long Term Income Protection benefits, he must be wholly and continuously disabled by illness or accidental bodily injury which prevents him from performing the essential duties of his normal occupation. This claim will remain pending awaiting receipt of the Claimant Statement and Physician Statement. Mr. Layden sent the standard post-Stage I letter to the Deputy Minister of the Minister of Community and Social Services, Sandra Lang, informing her that the Stage I response to the Sick Benefits grievance of Dr. Zaidi was unsatisfactory and that the grievance was being referred to Stage II and that the parties had agreed to meet on December 14, 1995, for the Stage II meeting. In that correspondence which was copied to Dr. Zaidi, A. Gaspar, (President of Local 133), and Nancy Jackson (local Human Resources) he informed as follows: As I am acting on behalf of the grievor, I would ask that all correspondence be addressed to me and that there be no direct contact with the grievor by a member of Management regarding this matter. The Employer interpreted this letter to mean that it should have no contact whatsoever with Dr. Zaidi. 40 The Stage II meeting respecting Dr. Zaidi’s grievance regarding denial of sick benefits took place this day. It was chaired by Ms. Cunningham who testified that she does not do a lot of Stage II meetings, but thought it was important that she should hear Dr. Zaidi’s grievance because of the issues. It was, she testified, her hope that the parties could come to a settlement. At this point, Dr. Zaidi had been without income and benefits since July 24th, a period just short of 5 months. Dr. Zaidi did not attend. believing that he would find his participation stressful and concerned that it could aggravate his illness. He explained further that he was also, at this point, feeling humiliated even though he found Mr. Layden kind and supportive. Mr. Layden had undertaken to represent Dr. Zaidi. Mr. Hunter understood from Mr. Layden that Dr. Zaidi had not received the LTIP application and Mr. Hunter undertook to have one forwarded to him, as he understood that the original one had been lost in the mail. Mr. Hunter also understood that Mr. Layden was going to try to provide the requested medical information. According to Mr. Layden, he was informed at that time, that the Ministry had not received the information. It was his understanding that no formalized agreement was arrived at as to how the medical information would get to the Ministry. He believed that if the doctor provided the information to Dr. Zaidi that “he would have to get it to the Ministry, or the doctor could send it directly to the Ministry.” (This was almost four months after Dr. Zaidi had signed a medical release with Dr. Glanz and three months after he had provided authority for the Employer to contact Dr. Glanz directly for the information it required respecting his medical situation.) They agreed that during the processing of the LTIP application, that Dr. Zaidi would be on a leave of absence without pay and that he, Mr. Hunter, would initiate the leave of absence application process by providing the appropriate form. According to Ms. Cunningham, the agreement that was made at this time was that the representative and the employee were going to provide additional medical information, not that the Employer was going to seek it out. The ball was clearly back in Mr. Layden’s and Dr. Zaidi’s court, according to her. 41 December 15, L995 Mr. Layden testified that he conveyed what he had agreed to to Dr. Zaidi on this day. He was asked in cross-examination if he was concerned that Dr. Zaidi would be without pay, and he replied that he was. In his view, at the time of the Stage II meeting, Dr. Zaidi still had an employment relationship with the Employer. He was also asked if he had difficulty contacting Dr. Zaidi and he testified that he did not, with the exception of one period, but that he was aware that Dr. Zaidi had difficulty contacting him. According to Ms. Cunningham, Dr. Zaidi was not officially absent at this point. The Employer had no documentation to that effect. -December- Mr. Layden indicated that the OPSEU office was closed for the Christmas/New Years period. y, .Jisnuay& 1996 This was a statutory holiday. In January 1996, although things may not have been moving along as he would have liked, Mr. Layden believed they were “making headway”. Dr. Zaidi completed and signed the application requesting a month’s leave and it was faxed to the Ministry from the OPSEU office. On receiving Dr. Zaidi’s application for the leave of > absence in early January 1996, Mr. Cook noticed that the dates for the leave were incomplete and he asked Ms. Virani to follow this up with Mr. Layden. He explained that his was a normal duty for her at the time since the office was involved in preparation for the strike. Mr. Hunter explained that the length of the leave - four to six weeks - was based on the medical information provided and that “a medical condition preventing attendance at work is required to support an application for leave without pay”. The commitment he made respecting the leave was based on the link between the medical condition and the leave and would be considered 42 based on the medical information received. (The Employer had received Dr. Glanz’s detailed letter on November 8, 1995.) Ms. Virani explained that when an employee is moving from short- term to long-term benefits a three-month leave is often agreed to by the Employer and the Employee because this time period fits in with the processing time required for long-term benefits. Dr. Zaidi, having had his benefits restored, assumed that the necessary medical information had been received by his Employer. He did not recall being informed by Mr. Layden that conditions were attached to the reinstatement of his benefits. He stated that he received no documentation and there was nothing for him to sign. He found it difficult to understand that the Employer would require him to apply for LTIP when that was solely for the benefit of the employee. He viewed this as a suggestion. He testified that he had applied previously when he had his heart attack and was ruled ineligible as he was found not to be disabled. He expected he would be ruled ineligible this time also, as it was the same disease. Dr. Zaidi was asked during his examination in chief whether or not he had submitted his LTIP application following Mr. Layden’s insistence and he testified that he had sent it to Confederation Life in the early weeks of 1996 and found later that the application was not received. According to Dr. Zaidi, he applied half-heartedly as he knew it was an exercise in futility. At this point, he testified, being quite sure that he would not receive LTIP and being sick, frustrated and without income, he “just didn’t bother about it”. It was Mr. Layden’s understanding from mid-December 1995, to the end of January 1996, that Dr. Zaidi had sent out his application for LTIP, but he learned from Mr. Cook and Ms. Virani, that they had been informed by the insurance company that his application had not been received. There was no evidence of the insurance company having received the application, and although no one from the insurance company testified their letters to the Employer demonstrate to the satisfaction of the Board that no such application was received. Ms. Cunningham stated that a leave of absence request and LTIP are required for the continuity of an employee’s records and this reflects, in her opinion, the employer-employee relationship. 43 She acknowledged that the employee chooses whether or not to apply for LTIP but stated that if one is sick and has no income, the logical thing is to apply to LTIP. 1996 Mr. Cook, testified that he was informed that Dr. Zaidi had not submitted his application for LTIP to the insurance company and he responded by contacting Mr. Layden, having been informed that instructions had been received from Mr. Layden not to contact Dr. Zaidi, as he, Mr. Layden, was acting as Dr. Zaidi’s representative. During their discussion he requested Mr. Layden to ask Dr. Zaidi to complete his application for LTIP, to provide additional medical information to the Windsor Area Office, and to submit a new leave of absence form to authorize the period of time he had been absent. Mr. Layden, according to Mr. Cook, agreed to contact Dr. Zaidi and ask him to complete his application for LTIP and his request for leave of absence, and to secure the medical information requested. Mr. Layden recalled Dr. Zaidi getting more upset and distressed when it was brought to his attention and expressed his frustration in “having to do all this”. Mr. Layden testified that Dr. Zaidi did not come to the OPSEU office to fill out a second leave of absence request/authorization form, after being informed that the form completed on January 5, 1996 was unsatisfactory. According to Dr. Zaidi, Mr. Layden did not convey to him that if the application for leave were not filled out in a certain way and the LTIP application not in the agreement that had been arrived at would fall apart. Ms. Virani spoke to Mr. Layden about faxing him a new leave form for Dr. Zaidi since there was a problem with the date indicated. She also informed him that as of January 19, 1996, Dr. Zaidi still had not applied for LTIP . According to her notes, Mr. Layden agreed that the dates of the leave should be November 24, 1995 to February 11, 1996. Ms. Virani then faxed the new leave of absence request form and the LTIP forms to Mr. Layden, and, following this, discussed with Mr. Layden the problem with Dr. Zaidi’s request for one month’s leave. 44 Ms. Virani testified that there are financial implications for an employee if there is a break in the employee’s time, particularly with respect to pensionable service. Ms. Virani could not recall ever seeing a revised leave of absence form for Dr. Zaidi, nor was one available in his file. Had one come to her attention she, as Human Resources Representative, would have completed the form, checked that the LTIP application was underway and begun the process of billing him monthly for benefits. Ms. Virani testified that she did not attempt to contact Mr. Layden further but was aware that Mr. Cook and Mr. Layden were having conversations. Had Dr. Zaidi submitted the form and not submitted the LTIP application, she would not have processed the leave of absence form because Dr. Zaidi had not fulfilled the requirement of applying for LTIP . Dr. Zaidi was, according to Ms. Virani, an employee whose employment status was in question. There was, she said, nothing to cover him, no medical leave, no leave without pay, no LTIP. Ms. Virani testified that she did not speak directly with Dr. Zaidi, knowing that Mr. Layden had given specific instructions to contact him and not Dr. Zaidi. She stated that she was also aware that a grievance was underway which was being dealt with by the Human Resources Manager. There were, she testified some allegations around harassment and she did not, she explained, wish to aggravate the situation. She pointed out, however, that her letter of December 12, 1995, did extend an invitation to Dr. Zaidi to contact her. Ms. Dewar of Manulife wrote to Ms. Virani informing her that as of that date, no Claimant or Physician Statement had been received from Dr. Zaidi, noting that the claim would remain pending. Dr. Zaidi was copied on this correspondence. Mr. Layden testified that he had no communication with the Employer from the end of January 1996 until April 11, 1996 and this communication interval was caused by the focus on 45 preparation for the strike, the strike itself, and demands on his time and the time of others because of incidents which took place during the period following the strike. Ms. Cunningham testified that six weeks prior to the commencement of the strike the office was planning how to manage essential services and how to serve clients. She stated that nothing was done respecting Dr. Zaidi’s absence from the first of February until after the end of the strike. It was felt that it would have been unproductive to attempt to contact Mr. Layden who was representing Dr. Zaidi. Ms. Cunningham did comment in her testimony that if Dr. Zaidi had made the decision to come back to work during the strike, that could have happened, since each person made an individual decision about whether or not to cross the picket line. The strike took place from February 26, 1996 to April 1, 1996. Ms. Cunningham described this period as “regular business going into hiatus” as the strike took priority. Mr. Layden described this period and the lead-up to it as “a crazy busy time”. 1996 It was suggested to Dr. Zaidi during this month by an unidentified person, that he should apply for sick benefits under the Unemployment Insurance program which had an eligibility requirement of “unable to work” as opposed to the “totally disabled” requirement of LTIP. -Ms. Dewar of Manulife wrote to Ms. Virani informing her that as of that date, no Claimant or Physician Statement had been received from Dr. Zaidi, noting that the claim would remain pending. In response to this letter, Ms. Virani spoke with a staff person at Manulife and explained that the Employer had met the requirements and that in order to obtain the Employee’s and the Physician’s statements, Manulife should deal directly with Dr. Zaidi. The staff person agreed with this. Dr. Zaidi was copied on this correspondence. Her letter was received on March 11, 1996. 46 1996 It was during the interval of the strike that Dr. Zaidi saw Dr. Glanz again. This appointment was to evaluate his condition following his MIBI scan which had taken place approximately 4 ‘/z months previously. There was no evidence to suggest that Dr. Zaidi telephoned Dr. Glanz’s office to request the test results or the follow-up appointment. Rather, the evidence suggests the appointment was made at the instigation of Dr. Glanz’s office. Dr. Glanz was asked in cross- examination if a wait of over four months was standard and he replied that it was not. He stated that “on average, people with this kind of scan, and nothing [he] felt urgent about seeing them...might wait a month, or two at the outside”. He testified that he had been told by his secretary that if someone calls earlier, “we try to make arrangements”. As far as Dr. Glanz knew, his secretary had tried frequently (twenty times) on November 23, 1995 to contact Dr. Zaidi, but received a busy signal and then put a note which reminded her to follow-up in January 1996. There was no evidence of her further efforts or on what date she scheduled the March 12th appointment. The objective evidence provided by Dr. Zaidi’s test, according to Dr. Glanz, showed that’not much had changed in his underlying condition”, “his exercise tolerance had improved”, “he had not developed significant new narrowings in other arteries leading to his heart” and “his prognosis was good”. (This is the first time that a prognosis has been given although it was not related specifically to his ability to carry out the demands and responsibilities of his position. It is probable that the letter delivered by Dr. Zaidi to Dr. Glanz with the job description and physical demands analysis, and the one forwarded to Dr. Glanz by Mr. Hunter in October 1995 d would have been in Dr. Glanz’s file at the time of this appointment.) Dr. Glanz did not recall any conversation respecting Dr. Zaidi’s return to work, and testified that he was “concentrating more on his cardiac rather than his work status”. According to Dr. Zaidi, Dr. Glanz did not advise him to return to work, and if he had done so, he would have returned immediately since he was frustrated not working and he had no income. He 47 still had chest pains, but not at the same frequency and was told by Dr. Glanz that they were not typical of angina pains. Dr. Zaidi believes that during that appointment he must have mentioned that he was considering applying for sick benefits through the Unemployment Insurance Program and that Dr. Glanz told him to bring the form in. He did not, according to Dr. Zaidi, tell him that he did not need to apply for sick benefits as he could return to work. Dr. Zaidi testified that since his arrival in Canada in 1972, he had not been without work, had never drawn on welfare or unemployment insurance and had always wanted to work and that he still desired to do so. Dr. Zaidi’s daughter delivered the partially completed unemployment insurance application for sick benefits form to Dr. Glanz’s office on March 28, 1996. Thursdav.m 1996 Mr. Hunter wrote to Mr. Layden seeking confirmation of the letter of November 1, 1995, which he had received from Dr. Glanz. The letter was drafted by Mr. Cook and vetted through the Employee Relations Unit. Mr. Hunter testified that he needed this confirmation because Dr. Glanz had written that he was not prepared to provide the information which had been requested, until the MIBI test was completed and in April 1996, he, Mr. Hunter, did not know whether the test had been rebooked. He testified that the leave of absence without pay had not been approved since the medical information had not been provided and Dr. Zaidi had not applied for LTIP. The letter read as follows: Dear Mr. Layden: lk IJro!I&u As per Mr. Zaidi’s direction, we are contacting you as his representative. Summary of Events to date: As you are aware, Mr. Zaidi left his employment with us on May 26, 1995 on sick leave. Since then numerous attempts have been made by us to obtain sufficient medical documentation. This was required to determine the possibility of faciliating [sic] Mr. Zaidi’s return to work and also to enable us to plan around our operational requirements. You have been provided with copies of all correspondance [sic] between us and Mr. Zaidi. As previously discussed, the medical documentation received was insufficient and did not comply with our requirements. This process continued until December 14, 1995, at which time an agreement was reached during 48 the Stage 2, to have Mr. Zaidi submit a leave of absence request along with the required medical documentation, while we awaited the outcome of his LTIP application. Mr. Zaidi’s application was to be sent to the insurance carrier simultaneously. In January and February, several attempts were made by Sairoz Virani and Glen Cook to contact you to determine the status of these applications. Significant time has now lapsed since our last contact and to date, we have not received the information requested. As discussed previously, in order to approve Mr. Zaidi’s leave of absence, we require additional information. Specifically, additional information from Dr. Zaidi’s doctor with regard to his prognosis, ie expected return to work date, restrictions, accommodations necessary. We also require confirmation that Mr. Zaidi has undergone the additional testing required that was to initially have taken place in September 1995. For your information, we have also been advised by the insurance carrier that to date, Mr. Zaidi has not submitted his LTIP application to them. Summary: To date, Mr. Zaidi’s leave of absence request has not been approved, pending receipt of the required information. If this information is not forthcoming along with confirmation of the date of his LTIP application by April 26, 1996, further action will be taken. Sincerely, ‘Signed” Bob Hunter Finance and Program Support Windsor Area Office /jf cc. Shari Cunningham Glen Cook This is the fourth and final warning before dismissal - “If....further action will be taken”. Mr. Hunter explained in his testimony that he had had the draft of this letter vetted by Legal Services and where he had been specific in warning that dismissal could be an outcome of Dr. Zaidi’s failure to provide the required information, the letter had been amended to warn of “further action”, on the advice of Legal Services. Mr. Cook testified in cross-examination that it was the general practice within the Ministry of Community and Social Services to warn specifically of any discipline whenever possible and he acknowledged that the phrase “further action” was not specific and that at the time it was drafted, the intent was that if Dr. Zaidi did not comply that he would be dismissed. He was asked in cross-examination whether or not an employee with considerable seniority “deserves 49 consideration prior to being dismissed” and he responded in the negative, indicating that he did “not see length of service as a factor if there are grounds for dismissal” but he did agree that such seniority entitled the employee to considerable warning before dismissal, although in the case of Dr. Zaidi, it was his opinion that Dr. Zaidi had been given ample warning. Mr. Cook did not recall being aware that Mr. Hunter had been given authority to contact Dr. Zaidi’s cardiologist and having been informed of this at the hearing, Mr. Cook agreed that it may have been reasonable to contact Dr. Glanz to see if the test had been completed prior to dismissing Dr. Zaidi. He did not, however, agree that if someone had contacted Dr. Glanz and the information was sufficient that Dr. Zaidi would not have been dismissed. He made the point that the information had been requested from Dr Zaidi and not from Dr. Glanz. On re-examination, Mr. Cook testified that at the time of the letter of April 11, 1996, the warning letter, Dr. Zaidi’s employment status was that of someone on unauthorized leave who had failed to comply with a request for LTIP, leave of absence, and medical information. Given the fact that the employee did not provide that information, the Employer could only assume, he testified, that Dr. Zaidi no longer wished to work and that is abandonment of position and that was the reason for his dismissal. Ms. Cunningham testified that when the letter of April 11, 1996 was written (it was drafted by Glen Cook and vetted through the Employee Relations Unit) “we [knew] we were moving toward dismissal for non-compliance” and that they were “making steps” to ensure that the employee would understand what the Employer wanted and to ensure that every opportunity was given. The decision to dismiss was not spontaneous, according to Ms. Cunningham, it was a decision we [had] been working toward for almost a year, a non-compliant employee not prepared to provide the information requested; we had gone through detailed steps, numerous correspondence, offering to assist; we had been moving toward this, and the summary letter of April 11, 1996 is a stage-setting letter setting out attempts made and saying we are going to have to proceed. Ms. Cunningham testified that she felt the Employer “had done everything humanly possible to 50 have this employee provide us with medical information and he chose not to”. Ms. Cunningham clarified that when that wording was selected, Corporate Services was aware that the intent was to dismiss if compliance was not forthcoming. When asked in cross-examination whether it might have been reasonable for someone to contact Dr. Glanz prior to dismissing Dr. Zaidi, Ms. Cunningham replied that she did not think it would have been reasonable, since, “employees are responsible for their behaviour”. Dr. Zaidi was not copied on this letter, nor did he see it prior to his dismissal. The contents were, he testified, not shared with him and there was no mention of dismissal to him. He was asked in examination-in-chief what he would have done had he known that the Employer still believed he had not provided sufficient information; he replied that he thought that he had provided as much information as he could, but that he would have taken the letter to Dr. Glanz and asked him to telephone the Employer and provide what they wanted. If he had understood that LTIP was a requirement to avoid dismissal, he would have reapplied. Mr. Layden testified that in his experience in cases where dismissal was a possible outcome, the warning letter to an employee would say “further action, including dismissal may be taken”. He testified that he was certainly never informed in writing that the next step for Dr. Zaidi following the April 11, 1996 letter would be for the Ministry to dismiss him, and he did not recall having been verbally so informed. Mr. Layden responded to the letter of April 1 lth by telephoning Mr. Cook. According to Mr. Cook’s testimony, Mr. Layden had not been able to contact Dr. Zaidi and asked for an extension of one week, that is to May 3, 1996. The Human Resources Department agreed to grant the requested extension to Mr. Layden. Mr. Cook acknowledged in his cross-examination that up to this date, Dr. Zaidi’s application for a leave of absence had neither been denied or approved and that its status was “pending”. He did not agree, however, that the Employer had acquiesced in Dr. Zaidi’s absence prior to May 3, 1996, but acknowledged that the Employer had given Dr. Zaidi until May 3, 1996, to produce the medical information. 51 v 2.1996 Darlene Ahearn Disability Adjudicator of Manulife Financial, Toronto Group Disability Claims wrote to Ms. Virani and copied Dr. Zaidi. Ms. Aheam observed that she was awaiting a reply to the Company’s letter of March 5, 1996, noting that they were unable to determine Dr. Zaidi’s eligibility without the Claimant and the Physician Statements. A reply by May 3 1, 1996, was required to keep the file open. Mr. Layden spoke with Dr. Zaidi about the LTIP and the fact that the information the doctor was providing to the Ministry was unsatisfactory. He felt he and Dr. Zaidi “seemed to be caught in the middle”. He testified in cross-examination that he appreciated that the Employer had a right to ask for a prognosis respecting Dr. Zaidi, but he expressed concern over the manner in which the Employer went about trying to get the prognosis. He then contacted Mr. Cook for a further extension and that extension was refused and the letter of dismissal followed. Fridav,Mav3. EN6 andY 6,1!TJ6 Mr. Hunter, (Finance and Support, Windsor Area Office), Glen Cook (Manager, Human Resources, Windsor Area Office) and Shari Cunningham ( Area Manager), met to review Dr. Zaidi’s situation. According to Mr. Hunter, they considered that Dr. Zaidi had not attended work for almost a year, and looked at their attempts to secure information, and whether or not their attempts had been reasonable and if extensions and options had been made available. It was their conclusion, he testified, that they had no alternative but to move for dismissal of Dr. Zaidi. At _the time of the termination decision in May 1996, the last medical information which the Employer had received was the November 1st letter from Dr. Glanz, Dr. Zaidi’s leave without pay had not been approved due to lack of medical information, his short term sick benefits had run out in seven months previously and he had not completed the requirements, according to the Manulife Financial, for LTIP. Mr. Cook testified that during this process he would have contacted the Employee Relations unit and conveyed the information and advice he received from Peter Wilson of that unit to Ms. 52 Cunningham so that she could make an informed decision as to which steps she wished to take. Mr. Cook testified that Dr. Zaidi was dismissed for “abandonment of his position” and stated that his interpretation of that was that the employee was “absent from work without authorization”. He acknowledged that “abandonment” was not reflected in the dismissal letter but that “cause” was, although the intent at the time the letter was written was that the reason for dismissal was “abandonment of his position” . Abandonment had been discussed with Peter Wilson. He testified in cross-examination that his view of whether or not Dr. Zaidi was ill or not was irrelevant. Ms. Cunningham acknowledged that she had not seen the medical notes which had been received from Dr. Zaidi’s physicians during her consideration of whether or not to dismiss Dr. Zaidi. She referred to the Grievor’s “unwillingness to provide the information”. The letter of dismissal was drafted by Mr. Hunter, amended by Legal Services, approved and signed by Ms. Cunningham, following advice from Mr. Wilson. It was then sent to Dr. Zaidi. It is likely that Dr. Zaidi received the May 6th letter on either of these days. He testified that when he received the letter of dismissal, he was shocked, and further stressed and frustrated. He contacted Mr. Layden. He did not, at first share the letter with his family and explained this was due to his feeling sensitive about the dismissal, and for cultural reasons. At the time of his dismissal, his wife had been laid off from the University of Windsor, one of his daughters was completing her doctorate, the second an MSc. in Psychology and the twelve-year old was at home and attending school. They were living on their savings and receiving financial help from a brother who lived in the United States. He was convinced that he had done whatever he could do. He could not, he expressed, “bend the hand of the doctor to write a note; he could only request”. He had “left open direction to the Ministry to communicate with the doctor”. He 53 asked, rhetorically, what else he could have done. He stated, he was sick, undergoing investigations and was very worried about his condition. Having a heart attack is not a joke, he explained, “you only get two or three”. For him, he stated, “it is a matter of life and death”. Dr. Zaidi was asked what efforts he had made to obtain work and he stated that he did not know that he could work until July, 1996 and that being over 50 years of age, handicapped and a visible minority, he believed that his only option was to look for a small business and he had asked his sister in the United States if she were willing to sponsor him. They received approval for this. He did not, he explained, want to sit around and live off the earnings of his daughters. Dr. Zaidi filed his dismissal grievance. A letter to Dr. Zaidi and copied to Ms. Virani was sent on this date by Darlene Ahearn of Manulife stating that the Employer had fulfilled its obligation and that the notice of the consequences of failure to provide the Claimant and Physician Statements should have been directed to him. At Stage II of the dismissal grievance which was held during the summer of 1996, the issue of abandonment was brought to his attention, according to Mr. Layden, for the first time. Mr. Layden explained that in his experience, abandonment had in the past used by Management in a b case where someone “had disappeared, and there was no contact with the Employer”. He testified that, in his view, Dr. Zaidi had always looked to returning to work “once his medical treatment was completed”. The Unemployment Insurance Sick Benefit application delivered to Dr. Glanz’s office on March 28th was signed by Dr. Glanz and sent to him on July 2, 1996, according to the post mark. On 54 this form, Dr. Glanz indicated that in his opinion, Dr. Zaidi was “capable” of working and commented as follows: Patient suffered a heart attack in 1993. On current medications, has no symptoms of angina. When lust seen on March 12, 1996 [deleted] I feel that he can return to work if it does not involve heavy physical activity. Dr. Zaidi cited the time lapse between March 28, 1996 and June 24, 1996, as an illustration of how busy Dr. Glanz was. He stated that had he had any indication from Dr. Glanz that he was ready to return to work, he would have telephoned the office and conveyed that information. He had, he explained, no reason to question Dr. Glanz’s not giving him a release to return to work. According to Dr. Zaidi, the first time that he had an indication from Dr. Glanz that he was capable of returning to work was just after July 2, 1996, but by then, it was too late, he had already been dismissed. He did not submit the Unemployment Insurance application because Dr. Glanz indicated that he was capable of returning to work and this ruled him ineligible for the sick benefits. ARGUMENT John Smith, Counsel for the Employer, submitted that Dr. Zaidi had been dismissed because he was absent without leave and went on to state that an employee who is absent without leave can be dismissed in two ways: 1) He or she can be declared to have abandoned his or her position under Section 20 of the Public Service Act 20. A public servant who is absent from duty without official leave for a period of two weeks or such longer period as is prescribed in the regulations may by an instrument in writing be declared by his or her deputy minister to have abandoned his or her position, and thereupon the position becomes vacant and the person ceases to be a public servant. R.S.O. 1990, c. P.47s.20. 2) or for cause under section 22(3) of the Public Service Act 22. (3) A deputy minster may for cause dismiss from employment in accordance with the regulations any public in his or her ministry. 55 When it is an issue of just cause dismissal, once the spectre of a medical excuse is raised the Board has to examine that, and when a medical is presented, abandonment and leave become two sides of the same coin. Mr. Smith cited OPSEU (Baldeu) and The Crown in Right of Ontario (Management Board Secretariat) (1996) GSB 1270/93 (Finley) and submitted that conceptually, the facts are similar, in that there was a refusal to return to work and a notice of abandonment. He referred the Board to the four requirements for a finding for a declaration of abandonment cited in Baldeo: 1. The employee must be a public servant. 2. The declaration must be made by the Deputy Minister or his/her designee. 3. The declaration of abandonment must be in an instrument of writing. 4. The public servant must be absent from duty without official leave for two weeks. (Nothing longer has been specified in Regulations.) In this case, Mr. Smith stated we are trying to determine if the medical evidence supports an official leave from the workplace and submitted that the Board could find that either or both the abandonment argument, and argument that the Grievor was disciplined for just cause for being absent from the work place have been met. The Grievor’s angina was not severe enough, he maintained, to justify an absence from the workplace of eleven months. At the outset of the Grievor’s illness, the Employer may not have known the severity of Dr. Zaidi’s illness, but it is clear from Dr. Glanz’s evidence, that the Grievor did. The evidence, he maintained supports wilful blindness. The Grievor was, he stated, wilfully blind to assisting the Employer in the determination of the severity of his angina. He did not take reasonable steps to produce a prognosis to let the Employer determine if, when and how, he could return to work. Mr. Smith submitted that Dr. Zaidi wilfully chose to avoid confronting the prognosis issue and thereby extending it to eleven months. Mr. Smith then turned to the Collective Agreement (Article 44.1 O/52.10): 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 e designee may require an employee to submit a medical certificate for a period of absence of less that five (5) days. He made the point that the Grievance Settlement Board has interpreted this article as requiring an employee to produce more than the narrow “certificate” which the Collective Agreement implies and in the case before this Board, Dr. Zaidi was unwilling to provide a prognosis because it would have necessitated an assessment of his angina which was not severe, and this in turn would have necessitated a return to work with accommodation sooner than the grievor would have preferred. He was not willing, he said, to provide additional medical information. The Grievor cannot, Mr. Smith argued, point to steps that occurred between May 26, 1995 and June 1, 1995 because the only thing that happened was a telephone call from Ms. Patterson on May 56 3 1, 1995. Ms. Patterson initiated all but one of the communications between the Employer and the Grievor. This is not the behaviour that one would expect rather, it is a continuation of wilful blindness on the part of Dr. Zaidi to avoid confronting his prognosis. Ten days later, he has still only initiated a single call and provided one medical note. From this point on, he never communicates with the Employer again verbally and the Employer is without his services. He does not so much as pick up the telephone to let the Employer know that he does not have a prognosis. Further, he failed to speak with Dr. Rajan about the contents of the letter and demonstrated that his concern was remaining on benefits but not providing a prognosis. He was, in effect, using his physician to shield himself from speaking with his Employer. He then began to speak with Mr. Layden and later Dr. Glanz. He does not appear to have asked Dr. Glanz when he could return to work, and there is an expectation that an employee would be happy to call his/her employer and keep the employer informed. The Employer conceded, according to Mr. Smith, that Dr. Rajan could not have provided the prognosis but then, the Grievor is not to be believed when he says that he was waiting for Dr. Glanz to tell him when to return to work. Dr. Glanz’s letter of October 6, 1995 provides the employer what it requires, in a clear and concise explanation. Events become muddled when Dr. Zaidi gets involved in his own case and further, once his benefits ran out on November 14, 1995, he had no employee status and the Employer could have begun counting the 14 days from that point and terminated his employment. However, because of their trusting working relationship with Mr. Layden they did not do so and committed to furthering the process. According to Mr. Smith, Dr. Zaidi, having undergone a prior MIBI Scan should have know that he performed better on the October 95 test and he should have recognized the improvement in his condition. His failure to follow through with LTIP defies common sense, Mr. Smith submitted, since Dr. Zaidi was in a different position than the one in which he had previously been ruled ineligible . It is the Employer’s view that Dr. Zaidi was well aware as of October 1995, that his condition had improved and that he knew he would get a clean bill of health when he visited Dr. Glanz for his follow up. As of March 12, 1996, Dr. Glanz indicated that the Grievor was doing very well and he had no further plans to see him and there was no written notation about the Grievor’s return to work. There was absolutely no doubt that he was aware he was able to return to work as of March 12, 1996, according to Mr. Smith, yet he took no steps to inform the Employer. In fact, Mr. Smith maintained, he has deliberately misled the Board by withholding knowledge of his condition from March 12, 1996 onwards, and this untruthfulness should be taken into account when considering mitigation, if that arises. The Employer issued a number of warnings to Dr. Zaidi beginning in June 1995, in fact, Mr. Smith submitted, there were four clear warnings indicating the requirement for information put out by the Employer and Dr. Zaidi failed to heed them. He stated that the evidence from Dr. Rajan was that Dr. Zaidi was complaining about chest pains from stress at work on May 26, 1995, so, logically, if there was stress at work because of the supervisory session it came prior to May 26th and resulted in a flare up of the Grievor’s angina and the evidence clearly supports that interpretation of the facts. A sudden departure prior to another supervisory meeting, permits the Employer to ask for additional information even if it was before the five days. There is no 57 proscription, he submitted against the Employer continuing to ask for additional medical information, in fact, it is a requirement under Article 44.1 O/52.10. Mr. Smith submitted that based on the absence from Dr. Rajan’s notes of an request for a prognosis from Dr. Zaidi, that Dr. Zaidi wilfully chose not to pursue a request for a prognosis, and the logical conclusion is that he did not raise the issue with his physician. Mr. Smith argued that should the Board decide to reinstatement Dr. Zaidi, which it does not consider a valid option, certain conditions should apply: 0 no compensation because of the manner in which he misled the Board 0 provision of an unrestricted, open-ended release for Dr. Glanz or any other physician which Dr. Zaidi consults to determine the prognosis of any illness claimed for absence, to run from his return throughout his stay in the OPS. Mr. Smith cited the following cases: OPSEU (Johnson) and The Crown in Right of Ontario (Ministry of Transportation) (1992) GSB 1885/90, 2468/90 (Dissanayake); OPSEU (Baldeo) and The Crown in Right of Ontario (Management Board Secretariat) (1996) GSB 1270/93 (Finley); OPSEU (Orprecio) and The Crown in Right of Ontario (Ministry of Health) (1983) GSB 50183 (Samuels) Mr. Lewis submitted that the Employer has argued that there is some effective compliance with Section 20 of the Public Service Act but there cannot, he stated, be an effective compliance which argues that four requirements must be upset. If they are met, then the Board is deprived of jurisdiction and that being the case, he maintained, it is unreasonable to put an interpretation on the section that there can be an effective compliance without a specific referral to the section, given the draconian result which arises when those requirements are met. The last requirement in Section 20, absence without leave, cannot be met, and if Mr. Smith can say that there could be effective compliance with this section, it does not lie to say that official leave can only be where the form is filled out, completed and accepted. The Employer’s contention that the abandonment in section 20 is an alternative ground is incorrect, he argued, as the letter of dismissal relied explicitly and exclusively on “cause” as set out in the Public Service Act, section 22.3, supra, and “just cause” is the only basis on which the Board has jurisdiction to consider the dismissal. The Employer cannot, given her evidence that there was no intent to rely on it, then rely on it after the fact. Mr. Lewis then considered the status of Dr. Zaidi’s application for leave and submitted that an application can only be (1) refused, (2) approved (3) pending, and it cannot be said that it had been refused, as approval was awaiting the receipt of the medical information. 58 The Employer is attempting, according to Mr. Lewis, to characterize everything that transpired from May 26, 1995, to dismissal as a continuing transaction which resulted in dismissal , for the purpose of the warnings, for the medical information provided and for all purposes. What is relevant for the dismissal and whether just cause existed, are the events that transpired after December 14, 1995, as a result of communication being established with Gerry Layden, the direction being signed and then, although benefits had been reinstated retroactively to October 8, 1995, the anticipated letter of Dr. Glanz. It was only at Stage II on December 13, 1995, that an agreement was reached on the provision of further medical information, completion of a leave of absence request, and the LTIP application. Up to that point, the Employer had sanctioned Dr. Zaidi’s absence and it is only from this time that the Employer can begin relying on absence and not proven medical grounds for his absence. Mr. Lewis noted that Mr. Smith had made the point that Dr. Zaidi could have simply picked up the telephone and informed the Employer of “what was going on”, but it should not be forgotten, he stated, that in June 1995 when he spoke with Ms Patterson, and told her that the information needed to come from Dr. Glanz, that that was not accepted at face value and from that point, there was reason not to pick up the telephone. Further, Ms. Patterson’s reaction to the note of June 1, 1995 was that it was ambiguous and only covered a single day, which, Mr. Lewis maintained, was an unreasonable conclusion to draw for someone with a heart condition and angina, and it was indicative of the attitude taken by the Employer from the outset. It was this attitude which coloured the future relationship of the parties. In total, during the first five months of Dr. Zaidi’s absence 5 doctor’s notes were provided and Ms. Cunningham stated, according to Mr. Lewis, that she did not take issue with the veracity of those notes, and the physicians testified that he ought not to return to work until further tests had been conducted. While the Employer may be entitled to information such as prognosis and return date, it is unreasonable for the Employer to continue to demand it, and it is in fact counterproductive, for the Employer to do so when the physician has not provided one as the employee may then provide one that cannot be honoured. Once Dr. Zaidi gave the authorization to the Employer and a broad, open-ended medical release to the physician for medical information to be provided to the Employer, the onus shifted to the Employer to seek the information, Mr. Lewis argued. This was indeed, he submitted, the purpose of it, and Dr. Glanz would have responded to a request for information had the Employer made it. It is important to remember, Mr. Lewis stated, that at Step II, neither Mr. Layden, nor Dr. Zaidi, had ever seen or had brought to their attention the November 1st letter of Dr. Glanz to the Employer and were unaware that the Employer’s central concern was to be informed when the MIBI test was completed. As a result of not seeing that, neither was aware that once the results of the scan were available that Dr. Glanz might be able to give further information about the prognosis and the return to work date and had he known, Dr, Zaidi would have notified the Employer that the MIBI test had been take. Then, when the benefits were reinstated, Dr. Zaidi was under the impression that the medical information which had been provided was sufficient at the time, and that as a result of the direction he had given, the information would be provided by Dr. Glanz, directly to the Employer. Mr. Lewis submitted that to the extent the Employer is 59 relying on a breach of an agreement reached in good faith when the parties were trying to resolve matters, it cannot rely on the provision of medical information on which there was no real meeting of minds. The Employer, he stated had a set of expectations which differed from the understanding of Mr. Layden and Dr. Zaidi. But, he continued, even if there were a breach of the agreement, there reinstatement is still appropriate in certain circumstances. The agreement did not have a condition attached that if not met would result in termination. Mr. Lewis looked at the matter of the LTIP application and noted that there is no requirement in the Collective Agreement that an employee must apply for this benefit which is purely of benefit to the employee. Application for LTIP, he maintained is purely optional . He then considered the status of Dr. Zaidi as an employee and took the position that Dr. Zaidi, in contrast to the Employer’s view point, was an employee right up to the time of his dismissal. Dr. Glanz’s evidence, according to Mr. Lewis, demonstrated that he had very real and considered concerns about Dr. Zaidi’s health and stated that he could not give a prognosis until after the MIBI test. The evidence was sketchy and second hand on how many days his secretary tried to reach Dr. Zaidi, or how persistent she was in this respect. No evidence was presented, he noted, that the delay in Dr. Zaidi’s follow up appointment was due to avoidance, or other actions or inactions. Mr. Lewis responded to Mr. Smith’s allegations of “wilful blindness” on the part of Dr. Zaidi by noting that while Dr. Glanz may have felt that he was doing well, he nonetheless prescribed nitroderm patches for him and Dr. Zaidi, would have had the impression that his angina was still problematic. He is a patient with a heart condition and because of his personal experience, Mr. Lewis argued, he would evaluate his condition in a certain way. While he may have been incorrect in assessing his ability to return to work as of March 12, 1996, or the date of the MIBI scan, he held this belief honestly and in no way, in Mr. Lewis’s opinion, misled either the Board or his Employer. Dr. Zaidi believed that if the Employer contacted Dr. Glanz he would be told that he, Dr. Zaidi, was unable to return to work. This is confirmed by his application for Unemployment Insurance Sick Benefits. With respect to the dismissal itself, Mr. Lewis argued that an employee must be given a fair chance to do what is needed to avoid discharge and the lack of specificity in the warning letter of April 11, 1996, did not provide that. Had Dr. Zaidi and Mr. Layden known that his employment was in jeopardy, they would have responded. This was not, Mr. Lewis submitted, a case of urgency and the Employer here departed from its usual practice of giving a specific warming. Respecting the initial grievance regarding sick benefits, which had been reinstated retroactively to July 1995 and continued until exhausted, even on the physician’s evidence, one could not come to the conclusion that Dr. Zaidi was able to work if he was entitled to those benefits even if the correct medication had been provided previously. The removal of the benefits was unarguably the cause of his having to obtain alternate medical coverage and if the benefits had not been suspended, the costs would not have been incurred. In this instance, the Employer, 60 according to Mr. Lewis, is relying on the fact that if Dr. Zaidi had communicated the fact that he was without benefits and securing alternates and that could not be the case. When the benefits were reinstated, his health benefits would have been reinstated too and they can only be reinstated by paying the payments made to provide alternate coverage to give effect to the reinstatement. In summary, Mr. Lewis stated, it is the position of the Union that Dr. Zaidi should be reinstated to his employment retroactive to the date of his dismissal along with the health care benefits. The Employer has not made out its case to prove that just cause existed and further the Public Service Act requirements for abandonment have not been met and the dismissal cannot be upheld on that basis. There is nothing which proves that Dr. Zaidi misled the Board; He was truthful throughout, and there is significant evidence that supports his understanding that he was unable to return to work, not only in November 1995, but in March 96, not until he received written authority from Dr. Glanz on a medical certificate. With respect to conditions of reinstatement suggested by Mr. Smith, while the Union does not see the necessity for the authorization and release, Dr. Zaidi would, Mr. Lewis put forward, be willing to provide those. Mr. Lewis referred the Board to the following cases: OPSEU (Baldeo) and The Crown in Right of Ontario (Management Board Secretariat), (1995) GSB 1270/93, (Finley) OPSEU (Szabo) and The Crown in Right of Ontario (Ministry of Attorney General) (1991) GSB 292/9 1, (Saltman) BuddAutomotive Co. and U.A. W., Local 1451, (1979) 24 L.A.C. (2d) 12 (Shime) Canada Post Corp. and C. UP. K (Lamarre), (1992) 29 L.A.C. (4th) 111 (H. D. Brown) Standard Products (Canada) Ltd. and C.A. W., Local 4451, (1996) 56 L.A.C. (4th) 88 (Davie) Canada Post Corp. and C. U.P. FK (Venosa -626-88-03228), (1990) 15 L.A.C. (4th) 418 (Adell) OPSEU (P. Singh) and The Crown in Right of Ontario (Ministry of Transportation) ( GSB 1309/88 (Dissanayake) 1989), Industrial Family (Hamilton) Credit Union Ltd. and Office & Professional Employees International Union, Local 343, (1995) 51 L.A.C. (4th) 443 (Hebdon) Oshawa General Hospital and Nurses’ Association Oshawa General Hospital, (1975) 8 L.A.C. (2nd) 329 (Weatherill) 61 Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd. (1965) OL. (16) 73 (Robinson) OPSEU (Steffens) and The Crown in Right of Ontario (Ministry of Correctional Services), (1985) GSB 322,323/84 (Brandt) In reply, Mr. Smith argued that the direction given by Dr. Zaidi was a hollow gesture in that it was he who controlled when he returned to Dr. Glanz for his follow up appointment. It was not until the hearing that the Employer was aware that the MIBI scan test had been done on October 24, 1995. All the Grievor had to do, he submitted, was to telephone the Employer and say, “I can’t get a prognosis, please put me on benefits” and the Employer then could have spoken with the doctor. DECISION The evidence set out above demonstrates that communication, lack of communication, and timing of communication played major roles in the ongoing decisions, actions, and inactions of the individuals concerned. The Employer, the Union, Dr. Zaidi, Dr. Rajan, Dr. Glanz and the health care system all share responsibility for timing problems to varying degrees, although that is not to say that these timing difficulties were always avoidable. The communication, and lack and timing of it, resulted in misunderstandings and incorrect assumptions between the Employer and Dr. Zaidi. Further, the tone of the interaction between them from the outset was one that indicated mistrust and suspicion; the Employer being convinced that Dr. Zaidi was using his health to avoid dealing with a performance problem and Dr. Zaidi being convinced that the Employer thought “he was making it up” and feeling that he was being subjected to harassment. in this environment, the common sense, co-operation, and patience necessary on the part of both the employer and the employee to work out the operational difficulties caused by absence were lacking, and this void was filled by frustration. Noticeable by their absence even at the time of the hearing were any expressions of concern either on the part of the Employer for Dr. Zaidi’s health and well-being, or any recognition that he did not have a history of chronic absenteeism or sick leave abuse, or, any concern on Dr. Zaidi’s part for how the duties and responsibilities of his job were being carried out in his absence. 62 The Board is seized with the task of determining whether or not the Employer had cause for dismissing the Grievor, Dr. Zaidi, on May 6, 1996, following an absence which dated from May 26, 1995. The Employer bears the onus of satisfying the Board that it had cause for dismissal and the Union bears the onus of demonstrating that the Grievor had met the conditions in Article 52.10 to be entitled to sick benefits and reimbursement for the health insurance premiums he paid in order to maintain health care coverage when he was placed on leave without pay in the summer and fall of 1995. The sum in total was $756.06, and the insurance was obtained through Mrs. Zaidi’s position at the University of Windsor. That Ms. Cunningham who dismissed Dr. Zaidi had the delegated authority to do so is not in question. Dr. Zaidi was dismissed on May 6, 1996, “for cause” and his letter of dismissal gave two reasons for this: 0 his absence from work since May 26, 1995, and 0 his failure to provide sufficient medical documentation. The letter also stated that management had 0 made “several attempts” to contact him to explain the necessity for the documentation, and 0 made previous attempts to secure the required medical information. The Employer introduced the ground of abandonment under Section 20 of the Public Service Act at Stage II of the dismissal grievance and argued this at the hearing. “Abandonment” under Section 20 is distinct from “cause” under Section 22.3 of the Public Service Act . The following requirements are set out in the abandonment section: A public servant who is absent from duty without official leave for a period of two weeks or such longer period as is prescribed in the regulations may by an instrument in writing be declared by his or her deputy minister to have abandoned his or her position, and thereupon the position becomes vacant and the person ceases to be a public servant. The deputy minister or his/her designee in the case at hand did not issue a declaration through an “instrument in writing” that Dr. Zaidi had abandoned his position, rather the Employer chose the disciplinary route of “cause” and it cannot now rely on the abandonment section when it failed to follow the procedure under that section at the time. That does not mean, however, that it cannot 63 argue that, from the Employer’s perspective, Dr. Zaidi had abandoned his position as part of its absence argument. When Ms. Cunningham signed the letter of dismissal, it was the culmination of, as she put it, a “decision we [had] been working toward for almost a year”. At the time she assumed that Dr. Zaidi had not attended at the hospital for his MIBI Scan. This assumption was incorrect. He had requested a different appointment and had attended. She had also not seen any of the 5 medical notes which had been sent to the Employer. It was not reasonable for her to make a judgment on the sufficiency of the medical information without a review of the information in the possession of the Employer, even though none had been received for 6 months. The Employer had in its possession an open-ended and unrestricted medical release which Dr. Zaidi had provided on September 2 1, 1995 which authorized it to communicate directly with Dr. Glanz. It is significant, as well, that this authorization had been provided to the Employer in response to a suggestion by the Employer in Mr. Hunter’s letter of September 15, 1995: “Alternatively you could provide us with written permission to speak to Dr. Glanz, allowing us to secure the required information.” The Employer made use of this authorization on one occasion, a letter to Dr. Glanz in October 1995, which resulted in Dr. Glanz’s letter of November lst, but did not use the authorization further in spite of the fact that there was no time limit on it. However, Ms. Cunningham gave her opinion during cross-examination that it should not have been used by the Employer to contact Dr. Glanz before dismissing Dr. Zaidi. There is no indication, as there was with some other medical documents submitted to the Employer, that the release had been directed to Dr. Zaidi’s medical file. However, Mr. Hunter who initially received the release, was in attendance at the meeting at which the final decision to dismiss Dr. Zaidi was reached and was closely involved in the various steps leading up to that decision. One has to ask why the Employer did not write or telephone Dr. Glanz prior to dismissing Dr. Zaidi. The evidence of the Employer was that it was Dr. Zaidi’s responsibility to contact Dr. Glanz for a possible return date, implying that it was not theirs. The Board has 64 concluded that the view of Dr. Zaidi as a non-compliant employee who should comply with the Employer’s wishes in the way the Employer wished resulted in its not doing so. At various points in her evidence, Ms. Cunningham implied that there was a wilfulness to Dr. Zaidi’s absence and his failure to provide information. She spoke of Dr. Zaidi “choosing not to work”, “choosing” not to go for his MIBI Scan, and “choosing” not to attend his Stage II hearing of the initial grievance. In an explanation of government procedures she stated that “when you want to be absent and if you want to be home with your family or for other reasons” , you put in a request. She testified that, in her opinion, “the Employer had done everything humanly possible to have this employee provide us with medical information and he chose not to.” She used the word “non-compliance”. Mr. Smith characterized Dr. Zaidi’s conduct as “wilful blindness” and spoke of Dr. Zaidi’s “refusal” to work. The Board rejects these characterizations. It is usual in cases of dismissal, with the exception of those that are immediate, that an employee is warned in writing that dismissal is being considered by the Employer as a possible final outcome. The Employer issued four warnings to Dr. Zaidi: August 22nd “If we have not received either of these documents from you by August 3 1, 1995, we will have to review our position.” September 5th “If we have not heard from you by that date further action will be required.” September 15th “Will you please comply with our request by September 30, 1995, failing which we will have to consider further action.” April 1 lth “If this information is not forthcoming along with confirmation of the date of his LTIP application by April 26, 1996, further action will be taken” (Emphasis added with the exception of April 26, 1996 which was bold in the original.) The evidence demonstrated that at the time of the April 1 lth letter the Employer intended the next step to be dismissal. The letter, according to Ms. Cunningham, was “a stage-setting letter”. The warning statements are vague, and while the fourth is stronger than the first, there is little difference between the fourth and the second, that is, between “will be required” and “will be 65 taken”. They do not give the recipient a clear idea of the possible consequences. The operative word in a warning prior to the Employer acting on the termination of an employee is “dismissal”, or “termination”. This allows the employee one final chance which Dr. Zaidi was denied. In order for the Employer to grant leave with pay (including short-term sick leave benefits), and to have no break in the employee’s compensation, a medical certificate is required before or immediately following the five-day period. That certificate must certify that the employee is unable to attend to his official duties: 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. There is no prescribed form for the certificate and it is not uncommon for a physician to provide an employee with a cursory note which gives scant information. The wording “certificate” suggests something more formalized but there was no policy which outlined precisely the required details, although there is Grievance Settlement Board jurisprudence (Orprecio and Johnson, supra) which makes it clear that “in appropriate circumstances” the Employer is within its rights to ask for more specificity than a simple statement that an employee is sick, in particular, when there is some question as to the veracity of the sickness claim. Ms. Patterson was sceptical of the true reason for Dr. Zaidi’s absence. She testified that ministry protocol was that employees who are sick, must document their illness with accompanying medical rationale, primarily, so [the Employer] knows the length of time to plan”. She testified, as well, that there was an expectation that the physician’s note should state more than that the employee was sick. The note from Dr. Rajan dated June 1, 1995, indicated more than “that the employee was sick”. However, Ms. Patterson determined the information was insufficient. In spite of the fact that Dr. Rajan stated that Dr. Zaidi was unfit for work, Ms. Patterson believed that such a statement was insufficient since, as she testified, “some people work with angina” and as Ms. 66 Cunningham testified “lots of people work with angina”. They did not accept this note at face value. It seems they were unaware or had forgotten that Dr. Zaidi had suffered a severe heart attack within the previous two years. The Employer did have a medical file respecting Dr. Zaidi, and although Ms. Patterson and Ms. Cunningham may not have had direct access to that file, they did have access to Human Resources staff who had that access. Further, the note was unsatisfactory in Ms. Patterson’s opinion, “because Dr. Zaidi was supposed to be discussing whether he could return to work” and “information that could have been provided, wasn’t”. However, Dr. Rajan, when asked if on June 1, 1995, he could have given a prognosis, he replied “absolutely not”. The Board finds that this note at the time it was written and with the information then available to Dr. Rajan, met the requirements of Article 52.10 for timing and certification. However, it was reasonable for the Employer to require further notes as more medical information became available. The question of the length of time covered by the initial note, arose. In Ms. Patterson’s and Ms. Cunningham’s opinion the note simply applied to the day on which it was issued, that is, June 1, 1995. In Re Buddhtomative, supra Arbitrator Shime has addressed this issue at page 15: If employees do not show up for lengthy periods of time without indicating or informing the company that they will be absent for those periods the company will not be able to organize its affairs in an orderly way. The employer must be made aware of situations where employees will be absent because the failure to keep the company informed is a serious matter that creates numerous planning difficulties. None the less, these situations must be treated with some common sense. For example, it is not expected that an employee who breaks his or her leg and will be absent for a number of weeks contact the company every three days. Generally in such a situation, the employee will inform the employer of the situation and advise the employee [sic] of the approximate time of return. Since some medical situations are indefinite quite often the indicated date of return is indefinite. In these situations it is the better practice for an employee to further inform the employer of the expected date of return when the medical problem has advanced or progressed to the point where the employee may be more definite. [Emphasis added] In most industrial situations where an employee informs the employer that he or she is subject to a lengthy illness, there is no need to contact the plant every three days or within the notification period required in the collective agreement. The employer in effect, has “constructive notice” and is able to plan and organize its affairs in accordance with the information given. The original 67 notice carries on as if it were being given from day to day until the time indicated by the employee for the termination of the illness has been reached. Such constructive notice is, in effect, a blanket notification for the period in question and satisfies the purpose of the notification provision. It makes no sense for a physician to write a prospective note which only covers the day on which he is seeing the patient. That would only be appropriate for a retrospective note. Dr. Rajan did not say that Dr. Zaidi had been suffering from angina for the past few days and was now fit to return to work. He said that he was unfit at the time he saw him. Given the type of medical problem, the testing required and the inability of the physicians to provide immediately the longer term diagnosis which was needed before a prognosis could be made and a return to work date estimated, and the necessity of a referral to a specialist and to testing, it would have been reasonable to ask Dr. Zaidi to provide a weekly or bi-weekly update and a physician’s note from time to time after the initial note. There is no requirement for an employee who is sick to inform the Employer of each and every medical appointment and diagnostic test. Further, Ms. Patterson seemed unwilling to believe Dr. Zaidi’s explanations without verification of his physicians or to accept that Dr. Zaidi could not obtain what she wanted without difficulties and delays. Dr. Zaidi and Ms. Patterson did not speak directly after June 19, 1995. Dr. Zaidi and Mr. Hunter never did speak directly after May 26, 1995. There was no verbal communication between Dr. Zaidi and the members of the Human Resources Department. The responsibility for this dearth of verbal communication cannot be laid solely at the feet of Dr. Zaidi. Communication is a two- way street. It is unusual that no one in the office thought to telephone Dr. Zaidi to see how he was feeling, or that Dr. Zaidi did not telephone the office to see how things were going. The last written communication that Dr. Zaidi provided for the Employer was the leave of absence request form in January 1996. An employer is entitled to know the availability of the members of its workforce, in order to plan and organize the work and an employee has a responsibility to see that the employer is kept apprised of his or her availability for scheduled work, and in the case of illness to make 68 reasonable efforts to obtain, from his or her physician, information providing a medical verification of the absence and sufficient information to enable the Employer to organize, assign and schedule the work and its employees. The urgency with which this information is required bears some relationship to the particular position which the absent person occupies and the readiness with which he or she can be replaced. For example, it is easier to reassign the work of a general administrative clerk than that of an employee occupying a more specialized function or an employee with a dependent client group. The ability of the physician on whom the employee relies to provide the information will also vary depending on the availability of appointments, his or her workload, and the medical problem being diagnosed and treated. In Dr. Zaidi’s case, he occupied the position of Program Assistant - Children’s Residential Licensing. He was the front-line person dealing directly with the client group, the parents, and caregivers of residents, and reporting to the Program Supervisors. His position required deadlines to be met and licensing of these agencies to be carried out in a timely fashion for funding, liability, compliance and resident-care reasons. His responsibilities could not be set aside during his absence. There was no evidence that Dr. Zaidi expressed any concern about how his responsibilities were being carried out during his absence. In order to determine whether the Employer has met the onus for dismissal for cause, it is appropriate to review the evidence to see what Dr. Zaidi did to attend to his symptoms in order to advance his return to the workplace, what he did to provide information to his Employer, and also to consider what he failed to do that he might have done. Dr. Zaidi undertook the following medical steps to deal with his condition: 0 Telephoned Dr. Rajan on May 26th 0 Attended at the Emergency on May 27th 0 Attended at the Emergency on May 30th and saw Dr. Milos 0 Attended at Dr. Rajan’s office on June 1st 0 Attended at the hospital on June 19th to see Dr. Glanz 0 Saw Dr. Glanz on July 17th - ? 0 Attended the treadmill test on July 25th 69 0 Attended an appointment with Dr. Glanz on August 24th 0 Underwent a MIBI Scan on October 24th 0 Attended an appointment with Dr. Glanz on March 12th Dr. Zaidi’s physicians or their secretaries provided the Employer with the following material respecting Dr. Zaidi’s absence due to illness: 0 0 0 0 0 0 0 A note dated from Dr. Rajan dated June 1, 1995, stating two things: a> Dr. Zaidi was suffering from angina. b) Dr. Zaidi was unfit for work A telephone call to the Employer stating Dr. Glanz would be responsible for determining a prognosis A telephone call from .Dr. Rajan’s office to the ministry office with a voice mail left as by then the office had closed A note from Dr. Rajan dated July 5, 1995, giving the date of Dr. Zaidi’s appointment with Dr. Glanz and the reason for the referral to a cardiologist A letter from Dr. Glanz dated August 25th confirming Dr. Zaidi’s status as a current patient and informing the Employer that he was still undergoing investigation with respect to his medical status A letter from Dr. Glanz dated September lst, stating that Dr. Zaidi was undergoing medical investigation for chest pains and that he had recommended he stay off work until they were finished A detailed letter from Dr. Glanz, dated November 1 st, bringing the Employer “up- to-date” on Dr. Zaidi’s condition, giving a brief history of the relevant medical problem, setting out his plans for his patient, and informing the Employer that Dr. Zaidi should stay off work “given his poor exercise tolerance and the demands of a job as described in his job description”. Dr. Zaidi or members of his family made the following efforts on his behalf to provide the Employer with information: 0 Left information on May 26, 1995, that he was unwell and was going home with the secretary, Marilyn (Ms. Patterson was working outside the office at the time.) 0 On May 29th, telephoned and spoke to the secretary, Marilyn, informing her that he would not be in due to illness (Ms. Patterson was out of the office this day.) 0 On June 1 st, telephoned Ms. Patterson personally and reached her voice mail but she had indicated she did not want messages, so he left none 0 Delivered a note from Dr. Rajan indicating he was suffering from angina and was unfit for work 0 Left a voice-mail message at 0740 hours on June 13th stating that he was still not 70 well and had to go to the hospital for tests During a conversation which Ms. Patterson initiated in response to Dr. Zaidi’s voice-mail message, informed her about his cardiologist appointment that he hoped to advance, and that since the doctor had to provide the prognosis, he could not provide that information to her as he did not have it Had the letter for Dr. Rajan delivered to his office within a day or two of receiving it Telephoned Dr. Rajan’s office two or three times, insistent about getting something in writing about seeing the cardiologist Went to Dr. Rajan’s office and got a note stating his appointment date with Dr. Glanz and delivered it to the Employer before July 10th Delivered the Employer’s letter to Dr. Glanz Left a message for the Employer that he was having a treadmill test a week hence. Told Dr. Glanz that the Employer needed information Signed a medical release for Dr. Glanz to speak to his Employer Took his copies of the letters from Dr. Glanz to Mr. Layden Provided through Mr. Layden an open-ended authorization for the Ministry, without specifying a particular individual, to speak with Dr. Glanz Filled out an initial leave of absence request form which was not acceptable due to the dates Mr. Layden undertook the following on Dr. Zaidi’s behalf: 0 0 0 0 i 0 l 0 Spoke with the Employer on a numerous occasions between from the first week in August 1995 to the last week in January 1996, and then from mid-April until the time of Dr. Zaidi’s dismissal Faxed a copy of Dr. Glanz’s letter of August 25, 1995 to the Employer Faxed a written authorization for the Employer to obtain medical information respecting Dr. Zaidi from Dr. Glanz Conveyed to Mr. Hunter that Dr. Zaidi was having difficulty getting a letter from Dr. Glanz Filed his initial grievance and represented him at the Stage I (?) and the Stage II hearing Attempted to facilitate processing of the LTIP application and the leave without pay absence request Requested an extension when notified of the impending dismissal Assisted Dr. Zaidi in the aftermath of his dismissal The above demonstrates that medical evidence was provided to the Employer, that Dr. Zaidi did make efforts in this regard and that others did on his behalf. The information that the Employer 71 wanted was if and when, and under what restrictions, Dr. Zaidi was going to return to work and if it was not possible to provide that information, when it might be available. This information had to come from Dr. Glanz. In spite of the efforts made, this information was not forthcoming. The closest that the Employer came to obtaining it was Dr. Glanz’s letter of November 1st in which he stated that “further information as to [Dr. Zaidi’s] suitability to return to work may be available” (Emphasis added) when he sees him after his MIBI Scan, but that he should not work at least until that time. He advised that his letter made clear that he was not able to provide the information at that time and did not guarantee that he would provide it at any particular point in time in future. It is the Board’s view that when, on September 21, 1995, Dr. Zaidi signed his authorization for Mr. Layden to represent him respecting his grievance and for the Employer to communicate directly with Dr. Glanz about his medical condition, he saw these two steps as relieving him of responsibility for making further efforts in the direction of getting medical information to the Employer. He did not inquire of Dr. Glanz whether or not it was medically advisable for him to attend his Stage II hearing. From October 24th to the time of his dismissal there was no evidence of any initiative on his part to see that the Employer was provided, in a timely fashion, with the information respecting his ability to return to work. He waited for Dr. Glanz’s secretary to telephone him for his follow-up appointment rather than telephone for the appointment himself; he did not ask when he could return to work at his March 12th appointment; and, following that, he waited for Dr. Glanz to tell him he could return to work, or for the Employer to tell him that, presumably after it had heard from Dr. Glanz. Dr. Zaidi referred, on more than one occasion, during his evidence to Dr. Glanz’s heavy workload and responsibilities and the Board does not disagree with his observations. However, Dr. Zaidi had obligations to his Employer that required him to take some initiative; to make clear to Dr. Glanz that he needed to be able to give his Employer some idea of when he might be able to return to work, and that Dr. Glanz was the one person who could provide this information or could explain that he would not be able to do so. Dr. Glanz is no doubt skilled at managing his workload and his caseload and he has a secretary to assist him in this regard. Dr. Zaidi’s obligation was to his Employer and his 72 condition was such that there was no reason he could not have taken some initiative in this direction, in spite of the fact he was frustrated. Dr. Zaidi testified that he had become very frustrated with the process and the demands of the Employer which he was viewing as harassment. This was exacerbated by the fact that he had been without income and benefits for some months and when it came time to apply for LTIP which is normally done prior to the expiration of short-term benefits, he reasoned that his chances of getting approval for LTIP were nil as he had been turned down previously following his heart attack. He testified that he sent one application to Confederation Life but did so half- heartedly knowing that it was an exercise in futility. The insurance company had no record of its having been received and Dr. Zaidi offered no documentary evidence of its having been sent. His testimony respecting his having submitted this application was not convincing in part because there was no evidence whatsoever of his having approached Dr. Glanz for the physician’s comment and signature which were required to accompany the claimant’s statement. In arriving at a decision in this regard, one cannot ignore the context in which this situation developed. Ms. Patterson had planned, as Ms. Cunningham testified, to “confront Urooj” on the Monday, only to find that “when asked to account for his behaviour [he] disappeared and [the Employer] was not able to examine him”. Ms. Cunningham testified that she became “well aware of circumstances in that there was some concern about his appropriate use of sick time” and that Dr. Zaidi had gone “absent at the point in time he would most likely have been disciplined”. It was from this perspective, then, that Ms. Patterson and Ms. Cunningham _. approached Dr. Zaidi’s absence due to illness. Mr. Hunter testified that he received a “detailed briefing” from Ms. Patterson on his return, and that briefing would have been from her perspective. The evidence leads to the conclusion that these three individuals perceived Dr. Zaidi’s absence as a means of avoiding a “serious discussion” over his work performance. The medical evidence is clear that he was, indeed, experiencing chest pains which Dr. Rajan attributed to angina. While the Board recognizes that symptoms such as Dr. Zaidi described at the outset rely in large part on the subjective description of the patient, it does not believe that 73 Dr. Zaidi invented these symptoms. His history of a fairly recent severe heart attack gave both Dr. Zaidi and Dr. Rajan cause for concern, and Dr. Rajan responded, as he said, with caution. Further, it could be that Ms. Patterson’s announcement on the Friday that three days hence, on the following Monday, she was going to have a serious discussion with him respecting his performance, created anxiety which could have resulted in physical symptoms of angina. This was not, it seems, a happy workplace for Dr. Zaidi. He posed the rhetorical question at one point during his testimony in reference to the grievance procedures, “Why should I go and sit down with people who do not like me?“. This perception was reinforced when he read at the hearing, an Internal Office Memorandum from Nancy Jackson to Shari Cunningham, with the hurtful (for him) parenthetical comment respecting deaths in his family in regard to his having rescheduled his MIBI Scan. Having reviewed the evidence, the arguments and the jurisprudence provided, and weighing the specific aspects of this case, the Board has determined for the reasons outlined above, that Dr. Zaidi’s medical certificates in the context of his illness and the medical care system, along with the information provided between June 1 st and November 1 st were sufficiently in compliance with Article 52.10 for him to have been granted leave with pay. The Employer granted this retroactively but for the period of time he was not granted leave with pay, he also lost his health care benefits and incurred the expense of $756.06. The Board orders that the Employer reimburse Dr. Zaidi for this amount. The Board has further concluded that Dr. Zaidi is not solely responsible for the communication failures which occurred between them, in fact, the Employer, in spite of the numerous letters it wrote to him, shares substantially in that responsibility. The question is, then, does the Grievor’s failure to take initiative to inquire about his ability to return to work at the earliest medically possible time provide cause for the dismissal of a fourteen-year employee with no history of chronic absenteeism or sick leave abuse and no notification that dismissal was to be the Employer’s next step, justify his dismissal ? It is the determination of this Board that it does 74 not. Neither does the Board view the substitution of a lesser penalty appropriate. It does believe, however, that compensation should be awarded but that in this particular case, the compensation should reflect the joint responsibility referred to above. The Board, therefore, makes the following order respecting the dismissal grievance. Dr. Zaidi is to be reinstated within a month of the date of this decision; Prior to commencing work, Dr. Zaidi is to provide a current certificate of fitness for work from either Dr. Rajan or Dr. Glanz identifying any restrictions which might require accommodation. Dr. Zaidi is also to provide a medicalrelease for both Dr. Rajan and Dr. Glanz so that they can communicate with the Employer respecting his health should the need arise, and authorization for the Employer (without specifying a particular individual) to communicate with Dr. Rajan and Dr. Glanz. While the Board accepts that in Dr. Zaidi’s situation, his view of his chances of finding a new job in the current market was realistic he did nothing to investigate the possibilities of some consulting work, for instance, and although he did take some steps to open an option for himself and his family should he be unsuccessful in seeking reinstatement, this cannot be properly characterized as mitigation. Dr. Zaidi is to receive compensation as follows: May 26,1995 to November 24,1995 November 24,1995 to June 30,1996 July 1, 1996 to reinstatement Short term sickness benefits (This has, I believe, been paid with the exception of the health care premium reimbursement) Compensation as if he were on leave without pay 50% of salary plus benefits with interest at 3%. There is to be no loss of seniority. The Board will remain seized in the event that problems arise with the implementation of this decision. 75 The Board wishes to suggest to the parties in this matter, that in order that Dr. Zaidi’s reintegration into the work place be as smooth as possible, the assistance of a facilitator or a mediator would be beneficial to both. Dated at Kingston, Ontario I?, /?W w H.S. Finley, Vice-chair 76