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HomeMy WebLinkAbout1989-0410.Oltmann.90-08-30'~,..~. ON.RIO EMPLOYES DE ~ COURONNE ~ CROWN EMPLOYEES · DE L'ON~RtO " CgMMISSION ,~ GRIEVANCE DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDA$ S~EET W~ TORON~ ON~RI~ MSG 7~-S~ 2100 ~LEPHONE/T~L~HONE I$~ RUE DUNDAS OUES~ TORONT~ (ON~ MSG t~ . 8UR~U 2100 (4~ 598-0~a 0410/89 IN T~E MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Oltmann) Grievor - and -- The Crown in Right of Ontario (Ministry of Health) Employer -' and - T. Wilson Vice-Chairperson I. Thomson Member D. Clark Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J. Knight EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING: October 11, 1989 ~987~7 DECISION The grievor is a head nurse at Brockvilte Psychiatric Hospital. He has Deen on long term income protection since ~lay 6, 1986. He grieves that he is fit to return to work and has complied with requirements to return to work effective February 1, 1989. There are no relevant disputes as to the facts. The Ministry insists upon a statement of fitness from a psychiatrist as the disability involved is psychiatric. Section 42.2.4 of the Collective Agreement provides: "Total disability means the continuous inability as the result of illness, mental disorder, or in]ury of the insured employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training or experience." The grievor's personal physician Dr. Mansworth. did fill out the Physical Capacities Evaluation but did not add any comments with respect to any "o~her functional limitations." Commencing in the spring of 1983, the grievor began to receive treatment from a psychiat:ist for psychological problems which had manifested r~emselves from time to time at work. In a general way between 1983 and 1985 inclusive, the grievor had various absences from work. He was subject to rehabilitative employment pursuant to Section 42.7 of the Collective Agreement and at other times was on full-time employment. The grievor on April 12, 1983, had provided a note from his psychiatrist stating: "Daze of reEur~ ~o work noz definiEe aZ ~his Eime." On October 24, ~983, he began a two-hour a day return to work which gradually developed into a full-time return. A number of counselling documents were given to the grievor over %he next year. In SeptemDer of 1984 he was again readmitted to hospital. Then on December 7, 1984 the grievor's psychiatrist wrote that the grievor was now ready to assume his duties as a Nurse 3. .But in September, 1985 the grievor's present absence began and with the exception of one half day, the grievor has since been absent from work. On May 8, 1986 the grievor went on the Long Term Income Plan. On January 17, 1989, the grievor appeared at the office'of Linda Eckert, Regional Personnel Administrator which is located in the hospital. He advised her of ~is desire to return to. work and gave her a verbal consent %o consult his doctors, that is those who were noted in the file. Ms. Eckert then retrieved the grievor's file and on becoming more aware of t~e grievor's situation wrote to Dr. Morrow. In requesting the physician's assessment, she forwarded a copy of the position specification in order for the physician to have the details on %he duties and responsibilities ~of Head Nurse along with a copy of the Physical Demands Analysis form. As ~it turned out, Dr. Morrow had ceased to be the. grievor's doctor and the grievor subsequently called to advise that Dr. Mansworth should be contacted. Dr. Mansworth filled out the Physical Capacity Analysis form as indicated above at the beginning of this decision. At a meeting attended by the grievor, Mrs. Eckert and Mrs. Kent, t~e Assistant Administrator, Patient Care, the grievor was advised that the form as completed by Dr. Mansworth was not adequate to constitute a certificate for return to work because: (1) It was not completely filled out. (The top was filled in and the date at the end is indecipherable. ) i~ It did not speak of the grieuor's mental state (3) The form does not say anything nor is there a letter or overall statement of fitness to return to work; i.e., it lacks a conclusion. The meeting did not come to a mutually agreeable concluszon. Dr. Mansworth is a general practitioner. The ~inistry takes the position that the grievor is totally disabled due to a mental disorder as used in the Collective Agreement and that that condition needs to be assessed and treated by a psychiatrist. The Ministry is not aware of any such assessment or treatment of the grievor and has not received any medical documentation certifying %he grievor's mental fitness to return to work full-time or even to return through a rehabilitative employment program. The Ministry does not contest r. hat the grievor believes that he is fit to return to work. Mr. Wells, Counsel for the Union, submits that the real issue is whether the Ministry can insist on a 'psychiatric certification of fitness prior to the grievor's return to work. In this respect the documentary evidence - namely a letter dated April 3, 1989, from Mrs. Eckert to the grievor specifically states: "I must point out again that, as ~he nature of your digabiliE¥ relates to psychiatric rather than physical problems, the MinisEry of Health cannot consider re-employment in any capaciE¥ until such ~ime as you are deemed able to return ~o work by your a~tending psychia tri s ~. " Section 42.10 (a) provides: 42.20 (a) When an employee who has been receiving or was eligible %o receive L,T.I.P. benefits is able to return to full-time employment, the provisions of Article 24 (Job Security), with the exception of Section 24.3, shall apply. Article 24 is the Job Security provision which deals with lay-off. Therefore, argues the Union, the Ministry is not entitled to a certificate of opinion from a psychiatrist in the case of the employee who returns from L.T.I.P. The Union contrasts this with Article 52 which deals with short-term illness. It provides: 52.9 Where, for reasons of health, an employee is frequently absent or unable to-perform his duties, the employer may require him to submit to a medical examination at the expense of the employer. 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 designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days. · The Union contended that because of the presence of these provisions in the short term sickness plan i.e., Article 52 they provisions (Article 52) apply only to short term .sickness and are inapplicable to Article 42 situations. Therefore, it' argues that employer must be content with its own form, namely the document that Dr..Mansworth Completed and the grievor's own opinion that he is now fit to return to work. Mr. Wells referred the Board to R__e Braemer Home and Canadian Union of Public Emplovees, Local 75-3 .(1988) 34 L.A.C. (3d)271. In that case, the employer refused to authorize sick leave payments unless the grievor provided an opinion from a psychiatrist. The grievor had had his personal physician complete the company medical form and his physician wrote that the grievor did not need .a psychiatric consultation. Article 22.05 of the Collective Agreement provided: "An emptoyee may be required to produce a certificate from a medical practitioner for any illness certifying that he was unable to carry out his duties due to illness." The employer argued that the suspicious circumstances justified its requests for a psychiatrist report. The Arbitrator found that on the evidence before him the grievor was ill. At pages 281-2, the Arbitrator writes: "... a few basic principles are now sufficiently well established that they bear repeating here. First, absent either contractual obligation or statutory authority, an employer does not have the right to require employees to submit to an examination by a doctor of the employer's choice [authorities omitted]. Second, an employer's right to require medical examinations and reports for the purpose of determining whether or not an employee is fit to return to work is implied much more readily in collective agreements than is the right to require such reports and examinations for the purpose of verifying a claim to sick leave benefits: R_~e ~onarch Fine Foods Co. Ltd. and Milk & Bread Drivers Dair~ Em~loyees~ Caterers ~ Allied Employees, Local 647 (1978) supra. R_~e Canada Post ~ and C.U.P.W. (Seaton, Bennett, Ricketts) (1986), 23 L.A.C. (3d)138 (P.C. Pickers); and Brown and Beatty, Canadian Labours Arbitration, Supra, para. 8, 3342, at pp. 610-3. Third, and most importantly in the context of the present case, where a collective agreement gives the employer the right to require that claims for sick leave benefits be substantiated by medical certificates, then it is not open to the employer to impose additional requirements with respect to medical examinations and certificates: R_ge Women's Christian Association of London (Parkwood Hospital Veterans Care Centre) and London & District Service Workers Union, Local 220 (19S3), 10 L.A.C. (3d)336 (H.D. Brown), and R~e St. Lawrence Lodge and ONA (1985), 21L.A.C (3d)65 (Enrich)." He then concluded: "The parties have clearly turned their minds to the question of what constitutes proof of illness and both sides are boiled by that agreement. This is not to say that the employer must accept at face value every medical certificate which is tendered to it. Obviously, if it has good reason to doubt the accuracy of a certificate or if a certificate is incomplete, then the employer can put the grievor to the test of proving through the grievance and an arbitration procedure that he or she was unable to work due to illness. In such circumstances, the onus will be on the employee to prove such inability. What the employer cannot do, however, is require an employee who has already produced a medical certificate to submiL to a further medical examination by another doctor for the purpose of providing the employer with a second opinion." The reasoning of that award in the Union's submission is against 'the Ministry's reques~ for a ~sychiatrist's certificate. In the alternative, Mr. Wells argued that if this board should consider that the employer is entitled to a certificate or report from a psychiatrist it should remain seised as to its adequacy. Mr. Knight argued on behalf of the Ministry that its right to require the psychiatrist's certificate is derived from S. lS of the C.E.C.B. Act as circumscribed by the terms of the Collective Agreement. Therefore, if it is not restricted by the terms of the Collective Agreement, management may rely on its management rights under S. lB. Furthermore, there is a duty imposed on management by the health and safety provisions of Section 18.1 of the Collective Agre~men=. The stressful nature of ~he grievor's position as a Head Nurse can be gathered from the position specification which was filed as an exhibit. The employer also relies on the wording of Subsection 42.10 of the Collective Agreement. The wording "able to return to worF' and similarly in Subsection 24.2.1 "provided he is qualified to perform the work' show that it is necessarily, implied management has to be able to determine that the worker has the necessary physical or mental capacity to perform the work. The Counsel for the Ministry further argues that 'the language of Section 52.9 is general and not restricted to short term absences. He further relies on Section 52.10's reference to five (5) days absence as further evidence that these provisions are not specifically restricted to the Short Term Sickness Plan situation. The Ministry further argues that the grievor himself had previously on ear!let occasions complied by providing a certificate from his then psychia%rist Dr. Horrow, Now he has only provided a certificate of physical fitness from his personal physician. With respect to the adequacy o~ Dr. ~answorth's certificate, Counsel referred us to the decision of this board in Dorman and ~CSS GSB 72/78. In that case, the issue was the adequacy of the medical certificate. At page 3, the board states: "The certificate was issued by Dr. Barry, his family doctor for 25 to 30 years. The certificate (Exhibit 4) is unfortunately cryptic, stating that "Bill Dorman has been au~de~ medical care from 18 to 20 and is able ~o return to school/work on December 2t." Under "Remarks," one finds "reported problem to me." The employer did not accept the medical certificate as proof that Mr. Dorman was ill on December 19 and 20." At page 6 after citing a nu~er of authorities, Vice-Chair Swinton writes: "The cases cited show that the probative value of a medical certificate depends in part on the thoroughness of the diagnosis contained therein and the date of the medical examination in relation to the date of the illness. An employer is not required to accept a medical certificate which is in a standard form with little or no diagnosis as proof that the employee was absent due to illness. Of course, if the employer takes disciplinary action because of doter as to the adequacy of the reason for an absence, it may find its conclusions and actions challenged in arbitration proceedings." And further~ "...Dr. Barry's diagnosis or explanation reveals nothing about an illness. He states that Dorman "reported proDlem to me." No further elaboration was obtained by Mr. Dorman at any stage in the grievance procedure even though the employer rejected the original medical certificate." P.7 "The onus is on the grievor 5o sho~-; that he ~-~as ' entlt,~d to sick ~eaue. He had initially indicated to the employer %hat his absence ~.~as due to family problems. As a result, he %~as told to obtain a medical certificate. This should have 'indicated the need for a medical report from Dr. Barry sufficient %o ill because of these problems. Such a report might still have been obtained during the grievance procedure." In the Ministry's-view, it is entitled to enough information to make a determination. The employer also cited U.A.S., Local 27 and Eaton Automobile Canada Ltd. (1969) 20 L.A.C. 219. Firestone Tire & Rubber Co. of Canada Ltd. and United Rubber Workers, Local 113 (1973) 3 L.A.C. {2d) 12; R__e Keeprite Inc. and Keeprite Workers' Independent Union (1982), 7 L.A.C. ~d) 112; Sunnvbrook Hospital and Sunnvbrook Hospital Empl~vees' Union, Local 777 {19B0) 26 L.A.C. , In a fundamental sense, the grievance fails immediately for a very s~mple reason. The grievor has not in any true sense provided any evidence either to the employer or to this board that he is fit to return to work. The certificate form filled in partially by his personal physician does not certify that he is able to return to work. The reason for the grievor's absence from work was mental, not physical. The employer must be provided with at the minimu~ a medical certificate or evaluation from the grievor which certifies that the grievor is able to perform his work.. Obviously, in this case, that means that the grievor must not be disabled from performing, that work due to a psychiatric or mental problem. The form in question did provide for comments with respect to "any other functional iimitation~' and it is ~own to both the employer and the employee in this case that the "functional iimira~ion" in issue was psychiatric. Mr. Wells argued that the Ministry must be content with its own form that it provided for Dr. Mansworth to complete. But the simple answer is that Dr. Hansworth did not complete that form in any meaningful way and accordingly the grievor did not even reach the threshold of demonstrating fitness to return to ~ork. Whether the employer could reiy upon Section 52.!0 or m~%agement rlgnts to require the grievor to submit a report from a psychiatrist need not De answered at this point. It would really only arise under %hese circumstances if once having received a properly completed certificate from the grievor's personal physician, the employer still insisted on a psychiatrist's report. If and when'that arises, this board will have to determine whether Subsection 52.10 applies to employees on long term disability who wish to return to work or there is authority in subsection 28(i) of the C.E.C.B Act or otherwise in the Collective Agreement. Accordingly the grievance is dismissed. DATED at Toronto this 30thday of August , 1990. T. H?_.Wilson, Vice-Chairperson i. J. Thomson Member D. Clark Member