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HomeMy WebLinkAbout1991-2291.Maguire.93-11-15 ONTARIO EMPLOYES DE LA COU/~ONNE GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS r$O DUNDAS STREET WEST, SLfiTE 2~00, TOF/ONTO, ONTARrO. MSG. iZ8 TELEP~ONE/TEt_~-PHOfVE: (.~ ~6) 326- TSO, RUE DUNDAS DUEST, BLIREAU 2100, TOROi',tTO (ONTARIO). M5G TZ8 FACStMtLE/T~-£~;COPIE .. (4 ~6) 326- 2291/91 IN THE I~%TTER OF AN ~.RBITI~TION Under THE CROWN EMPLOYEEB COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Maguire) Grievor - and - The Crown in Right of Ontario '(Ministry of Health) Employer BEFORE= W. Kaplan Vice-ChairperSon W. Rannachan Member M. O'Toole Member FOR THE M. Doyle/K. Whitaker UNION Counsel Ryder~.Whitaker, Wright & Chapman Barristers & Solicitors FOR THE' M. Failes EMPLOYER ·Counsel· Filion, Wakely & Thorup Barristers & Solicitors HEARINq November 18,, 1992 May 13, 1993 June 15, 1993 September 24, 1993. Introduction By a grievance dated October 15, t991, Michael P. Maguire, a Psychiatric Nursing Assistant formerly employed at the Lakehead Psychiatric Hospital, grieves that he has been discharged without just cause. By way of remedy, the grievor seeks reinstatement and compensation for all losses .suffered. Hearings were held in Thunder Bay and Toronto. Ms. Maureen Doyle represented the union for the first three hearing dates and then went on a maternity leave scheduled to end in early 1994. In order to expeditiously conclude these proceedings, Mr. Kevin Whitaker replaced Ms. Doyle as counsel and the case proceeded to final argument on September 24, 1993. In brief, the employer took the position that the grievor had been discharged for innocent absenteeism, that this absenteeism was both short- and long-term, that this absenteeism caused considerable disruption to the workplace, that the grievor was particularly uncooperative in his response to bona fide employer efforts to assist him in improving his attendance, and that in the absence of any satisfactory medical evidence that the grievor was fit and able to return to work, t'he discharge decision should be upheld. The union took the position that the employer must establish that the grievor's past absenteeism record was excessive and that there was no likelihood of his attendance improving in the future. In the union's view, past absences could be explained, and as the grievor's medical prognosis was good, this was an appropriate case for 'reinstatement. It should be noted that the evidence is presented slightly out of turn as the grievor's examination-in-chief was interrupted in order to accommodate his physician,' Dr. James Stamler, who also testified in these, proceedings. The' Employer's Case Testimony of Allison MaQierowicz Nls. Allison Magierowicz testified. Ms. Magierowicz began her nursing career in the late 1960s and became Nurse Manager at the Lakehead Psychiatric Hospital (hereafter "the Hospital")' in January 1'989, and was assigned responsibility for Ward 4A. The grievor worked in Ward 4A. This ward is an integrated assessment unit, and also contains a small forensic section housing patients committed pursuant to Lieutenant Governors' warrants.-Twenty-one employees work on this ward. There are sixteen full-time Registered Nurses, four full'time Registered Nursing Assistants, and one-part-time Registered Nursing Assistant. As part of her managerial functions, Ms. Magierowicz was responsible for the attendance records for all employees, including the grievor, and these records, as well as a summary of them prepared by the employer, were introduced into evidence, In 1987 the grievor was away for two long-term absences totaling 102 days and eight short-term absences totaling 18.5 days. His absenteeism rate was $0%. In 1988, the grievor was away for two long-term absences totaling 170 days and three short-term absences totaling 1 i.5 days. His absenteeism rate was 83%. In 1989, the grievor was,away on fifteen short-term absences totaling 32 days. His absenteeism rate was'19%. In 1990, the grievor was away for one long-term absence totaling 127 days. and three short-term absences totaling 6.5 days. His absenteeism rate was 64%. In 1991, the grievor was away on one long-term absence totaling ~173 days and three short-term absences totaling 4.5 days. His absenteeism rate was. 89%. In each of .these years, a significant number of the short-term absences occurred in conjunction with a weekend or day off. "While specific ailments are not indicated for all of 'the short-term absences, in general causes such as flu, headache and sore throat are indicated as the explanation for the absence. When Ms. Magierowicz took over management of Ward 4A she realized that the grievor was absent a great deal' and, moreover, that his level of absences far exceeded that of any other employee. Ms. Magierowicz described some of the problems associated with the grievor's absences. For the short-term absences replacement employees had to be arranged, often with difficulty, at the last moment, and these employees were not familiar with the work of the ward, or the needs of the patients housed in it. Moreover, short-term absences created problems with employee morale, caused the employer to incur unnecessary overtime expenses, and, sometimes, resulted in the ward being short-staffed. The long-term absences also created staffing problems in that new employees had to be hired, oriented to the ward and trained in ward practices and procedures. Ms. Magierowicz testified that, in general, the orientation took two weeks, and this two-week period was followed by another two weeks of on-ward training. Other difficulties were also created by the grievor's absences. For example, because the grievor was often away, he could not participate in continuing education and training programs offered to ward staff. Given the constantly changing nature of the ward environment, as well as other training requirements made necessary by external events such as amendments to the Mental Health Act, these courses are absolutely essential, and the grievor's lack of regular attendance effectively prevented him from participating in them. Ms. Magierowicz also testified that nursing services are delivered by a team approach, and it was essential that members of the team be able to work together. In order to do so, team members must be aware of changing Ward conditions and patient complement. As already noted, in 1989 the grievor had 32 days of short-term absence. Ms. Magierowicz testified that after assuming responsibility for the management of Ward 4A, she quickly became concerned about the grievor's high absentee rate: On August 11, 1989, the grievor was summoned to a .counselling session devoted to discussing his absences and ways to improve his future attendance. At this meeting, the grievor's attendance record was reviewed. A memorandum dated August 1 6, 1989 was subsequently issued to the grievo[, the'salient parts of which provide: Objectives: 1. To assist you to improve your attendance to reflect established standards and policy by: - notifying Nursing Office each day that you are not able to attend work. - submitting a Doctor's Certificate for each and every absence on return to work. - attendance will be reviewed on a monthly basis with a written evaluation provided on a monthly basis for a period'of 6 months; the first evaluation commencing in September. - at the 3 month period (November 1989), if no marked improvement, an employer initiated medical examinat~ion may be recommended. - if there is no sustained improvement in attendance at the end of 6 months, the matter will be reviewed as to further action. You should be aware that excessive absenteeism which seriously hinders the effective operation of the Nursing Department can lead to dismissal. Z. To assist you to maintain good health by: - Nursing Office will try to avoid calling you for overtime on a frequent basis in order to enable you to obtain adequate rest. You will be called for overtime only in an emergency situation and with your mutual consent. ., - confidential counselling or information re: Employee Assistance Program, locally or through the Ministry, can be provided should you choose. - as you have identified that 1Z hour shifts are placing a strain on you and thereby contributing to your absences, transfer to an 8 hour unit may be explored. Your request should be submitted to me in writing. It is expected that you will be committed to markedly improving your attendance and that you will continue to demonstrate professional conduct. Both the g?ievor and Ms. Magierowicz signed this document. Ms. IVlagierowicz testified that she asked the grievor to provide a medical certificate following each absence in order to ensure that he was receiving adequate medical attention. Ms. Magierowicz testified that the grievor did eventually submit a request for a transfer to an eight-hour shift unit, but that was not until the fall of 1991. Ms, Magierowicz testified as to the grievor's attendance following this counselling session and' as to his participation in the program, of attendance review. She told the Board that the grievor would frequently call in and ask to use vacation or leave credits instead of sick days, On one occasion, when the Hospital was unable to accommodate his last-minute request, the grievor booked off sick on the.day he had requested a leave. Ms. Magier°wicz had a number of discussions with the. grievor about his' workplace stress and the effects of that stress on his task of delivering drugs. On at least one occasion she observed the grievor delivering medication to the' patients, and noted that he did so in an extremely slow and deliberate manner. Ms. Magierowicz asked'the grievor.whether he felt comfortable in delivering medication, and inquired whether he required further in-service training. The grievor indicated that he felt under stress, but that as he kept abreast of developments on his own, he did not consider any further in-service training'necessary. These discussions, and other efforts to assist the grievor, were generally unproductive. In short, Ms. Magierowicz concluded that the grievor's attendance was not improving, and in early December 1989 she requested an employer-initiated medical examination. · The Board heard a great deal of evidence with respect to.the grievor's response to this medical referral Suffice it to say that thee grievor refused tO sign two medical release forms that would have entitled the Hospital to obtain medical information about the grievor from one of his doctors and also would have allowed the Ministry's examining physician to release -information about the grievor to the employer. On March ?_3, 1990, Ms. · Magierowicz wrote the grievor exPressing regret about his refusal to. allow the employer "the opportunity to learn, through the medical prognosis what effects your illness may have on your future attendance .... "The letter also stated that Unless "within the next three months there is a clear indication of a significant reduction in your absences,' and, in the absence of a medical prognosis regarding your future ability to attend work regularly, we may have to recommend to the Hospital Administrator to dismiss you from employment." Ms. Magierowicz continued to have concerns about the grievor's attendance, and about his failure to participate in the Attendance Review Program. Monthly meetings were scheduled, and IVts. Magierowicz also sought to meet with the grievor upon his return from each absence. The. grievor failed to attend a number of these meetings, and various explanations such aS illness and inability to obtain union representation were offered to explain this failure. By letter dated April 20, 1990, the grievor was specifically advised what his responsibilities were, including regular attendance at pre-scheduled review meetings, and was again informed that failure to improve his attendance could result in his dismissal. Beginning on June ;~7, 1990 the grievor began to receive WCB benefits as a result of a work injury incurred when he was required to restrain a patient. As it turned out, the grievor was away on WCB until August 31, 1991. Ms. Magierowicz testified that she wished the grievor to remain in contact with her while he was away from work receiving WCB benefits, and she told the Board about the numerous efforts she made to establish a regular reporting relationship with him. At first, ti~e grievor was asked to call in every week to report on his progress; later this was changed to every two weeks. Ms. Magierowicz testified that the grievor did not call in regularly as required, and she gave various examples of him failing to do so. The gdevor .was repeatedly reminded by letter and otherwise of his obligations in this respect..On one occasion, instead of calling in at the-designated time during regular working' hours, the grievor called in just after midnight. I~ls. Magierowicz testified that the grievor returned to work just after Labour Day 1991. Upon his return to work he provided a medical certificate dated August 16, 1.991 indicating that he was fit and able to work, but that he should avoid heavy lifting. The medical' certificate also referred to an extensive assessment of the grievor recently conducted by Linda Adamson.' Ms. Magierowicz attempted to find out more about the restrictions on the grievor's activities by requesting a copy of the Adamson report, .and she advised the grievor that his attendance would continue to be monitored as set out in the August 16, 1989 memorandum. The grievor was initially placed on eight-hour.day shifts upon his return, and tvls. Magierowicz testified that he remained on them until he was dismissed. Magierowicz prepared an extensive schedule of in-service training to bring the grievor up to'speed on developments, and educational seminars that had taken place in' h'is absence. As. part of her effort to learn more about the. lifting restrictions faced by the grievor, Ms.· Magierowicz wrote the grievor's family physician, Dr. James Stamler, and sent him a copy of the grievors's position specificatiom On September 6, 1991, Dr. Stamler replied that the grievor could resume his duties and that there were no restrictions other than heavy lifting. Ms. Magierowicz and the grievor discussed this restriction, and the grievor advised her that restraining patients might be problematic. It was agreed, however, that there would be no heavy lifting. l~s. Magierowicz testified that soon after returning to work the grievor was again absent, He was away from work for one day on September 16, 1991 and again for one day on September ?5, 1991. On October 1, 1 991, the §rievor submitted a formal request for a transfer to a ward with eight-hour shifts. Another letter from Dr. Stamler indicated that the grievor would benefit from eight-hour shifts. The grievor was absent because of flu for two and one-half days beginning on October 2, 1991. He supplied a doctor's letter for this absence, but this letter is a form letter, and it indicates that the gde¥or was not examined by his physician. Upon his return to work, Ms. Magierowicz met with the grievor to discuss his attendance, and he'was again offered an employer-initiated medical referral. He was also offered participation in the Employee Assistance Program. The grievor indicated to Ms. Magierowicz that he could not see the point of consulting another doctor as he was getting all the care he required from his own physician. The grievor also expressed the view that the employer-initiated medical referral was inappropriate because it permitted the r~lease of excessive and unnecessary medical information. He also said that he fulfilled his obligation to bring in a doctor's letter by bringing the form letter from Or. Stamler. Ms. Magierowicz testified that she attempted to reinforce the seriousness of the=grievor's situation with him, and the necessity of cooperation from him. Accordingly to Ms. Magierowicz, the grievor replied that by bringing in the Doctor's letter he was meeting his obligations. Ms. Magierowicz testified that she has dealt with other employees in Attendance Review Programs and that the grievor, unlike other employees, did not take his attendance problem seriously. He did not respond well to the program and refused repeated offers of additional assistance. For all of these reasons she formed the view that not °nly had the grievor .been excessively absent in the past, that there was not a gOod future prognosis for him attending regularly in the future. On October 11, 1991, the grievor ~was dismissed. Cross-Examination of Ms. Magierowicz in cross-examination, Ms.. Magierowicz agreed that .it was possible that there were only three or four new patients on Ward 4A after the grievor's 1990 absence, and that the gdevor could bring himself up to speed on their condition by reviewing their charts. ·Ms. Magierowicz also agreed that it was very important that the. medications were accurately distributed to patients and that this could explain the grievor's high degree of concentration in doing so, not to mention his discomfort about being interrupted in that process. The witness agreed that, to her knowledge, the grievor never made any mistakes in distributing medication. Ms. Magierowicz was asked about the grievor's absences that occUrred in conjunction with days off, and she agreed that she never questioned ·the bona fides of those absences. Ms. Magierowicz was also asked a number of questions about the grievor's request for a transfer to a Ward with eight,hour shifts. She advised the grievor how to go about r~aking that request.. The griev0r also asked if he could work eight-hour Shifts on Ward 4A, and Ms. Magierowicz explained that there were no eight-hour shifts for full-time employees. Upo~ his return to work in the'·fali of 1991, the grievor again [equested a transfer to a ward With eight-hour shifts, and Ms. Magierowicz .testified that she recalls, discussing this issue with the grievor on many occasions, A formal request was made on October 1, 1993. Ms. Magierowicz was of the view that this request should not be granted because the grievor was participating in an Attendance Review Program, and it did not make any sense to transfer him and his attendance problem to another ward. Simply put, in Ms. Magierowicz's view, it was unlikely that another Nurse ~4anager would want this particular employee. Ms. Magierowicz was asked about the employer-initiated medical referral and her evidence about the grievor's non-cooperation with respect to it. She testified that all she was interested in was the prognosis, and agreed that she never offered to change the wording of the consent form to take into account the grievor's confidentiality concerns. She did, however, discuss the grievor's concerns with persons in personnel and advised the grievor that his interpretation of the scope of the consent form was not accurate. She also referred the grievor, on February 2, 1990, to Ms. Millie Dorsay, the Coordinator, Employees Assistance and Attendance Improvement Program and Rehabilitation Program, for clarification of his concerns. The parties agreed that should Ms. Dorsay be called upon to testify, her evidence would be that the grievor never contacted her. Ms. Magierowicz was asked some questions about the grievor's reporting requirements during the period in 1990 and 1991 when he was in receipt of WCB benefits. The witness noted that all calls to the Hospital are recorded, and there were numerous occasions in which the grievor claimed to have called in but there was no record of such a call having been made. Ms. Magierowicz insisted that even if she was busy, there was always someone available with whom the grievor could have left a message, indicating that he was fulfilling his call in obligations. The witness also pointed out that when the grievor experienced difficulties in calling in every week, the reporting period was changed, in order to accommodate him, to a bi-weekly one. Ms. Magierowicz was asked some questions about 'the grievor's return to work in the fall of 1991, She testified that she advised the grievor that he would work eight-hour shifts for the duration of the in-service training program.. The grievor was .an extra staff member at that point, and so eight-hour shifts did not interfere, with ward operations. Whether the grievor would return to twelve-hour shifts was left,open. Ms. MagieroWicz testified that there 'were no heavy lifting requirements associated with the job, and that restraining a patient did not typically involve any lifting. She contrasted .this activity with the lifting of patients typically encountered on the geriatric ward. ,, " Ms. ~lagierowicz agreed that the physical demands on the' grievor might have been greater than on other employees because he had returned to work following a back injury. She testified, however, that it was because of.this concern that the grievor was put on an extended training program, and she also advised him to avoid situations where lifting was required, and to call for assistance if necessary. Ms. Magierowicz testified that she sought clarification from Dr.. Stamler about what exactly the grievor could and could not do, but that'she never received it. -- Ms. Magierowicz was asked about the grievor's absences following his return to work in the fall of 1991. She agreed that the September 25, 1991 absence was caused.by an incident on the ward involving the restraint of a patient that caused a recurrence' of his back injury, but pointed out that she only learned that this was the cause some time after the grievor had been discharged. Ms. Magierowicz agreed that the grievor's 1990-1991 absence was atso caused by an incident involving the restraint of a patient. Ms. Magierowicz repeated her evidence that the medical certificate provided by the grievor for his October 1991 absences was inadequate because it failed to indicate that the gr.ievor had actually been seen by his doctor. While it was true enough that it may be difficult to arrange an immediate appointment with a physician, lVls. Magierowicz noted that there are always emergency departments, and the grievor had been specifically notified about the kind of medical certificates required to support his absences. Ms. Magierowicz agreed that in April, May and June 1990, while the grievor was participating in the Attendance' Review .Program, there was an. improvement in his attendance record. Records introduced into evidence indicate that there were no absences in April or May and one absence in June prior to the WCB-covered injury that resulted in the grievor being absent from work for the remainder of 1990 and the better part of 1991. Ms. Magierowicz agreed that while the Attendance Review Program was continued upon the grievor's return to work in the fall of 1991, he was not given any specific warning that he would be idischarged for excessive absenteeism. The Attendance Review Program was, however, carefully reviewed with him. A document introduced into evidence indicates that between his return to work in September and his discharge in October, all but one of the grievor's 4.5 days away from work were in conjunction with a scheduled day off. In her meetings with him to discuss these absences Ms. Magierowicz formed the impression that the grievor was not committed to improving his attendance and was not taking responsibility for his absences. The Union's Case .Testimony of ~4ichael Maguire The grievor began work at the Hospital on December ?_, 1968. {n his evidence-in-chief, he reviewed his medical condition with the Board, and testified to various work- and non-work-related injuries he has suffered since the mid-1 980s. He also reviewed his absences for illness in the' period beginning in 1988, and' testified about various ailments which he has. suffered from including asthma,, allergies, chest infections, bronchitis, a nervous stomach, migraines, a tendency to catch the flu, and gout. On June 25, 1990, while at work around 5:00 a.m.,, the grievor was required to restrain a violent patient. Other staff members also became involved, and in the process, the'grievor twisted his back and hurt.his wrist. The griev°r went home to bed, and a few hours later woke up screaming in pain. The grievor received treatment for' this injury, and he testified that in August 1991, he was advised that he was fit to return to work and so made arrangements to do so. He was absent .early in September for one day and then on September 25, 1991 because of an incident the previous day when he was required to restrain a patient, during which his knees gave out and his back became inflamed. The grievor was away. for' three days in October. After he was discharged, the grievor applied for WCB benefits for the September 24'accident and received them from October 14, 1991 to June 14, 1992, when he was advised that he 'was fit to return to work.. The grievor testified that he believes that his back is better now, and, in fact, is in even better shape now then it was in the fall of 1991. While he still suffers from migraines, he testified that if he catches them in time and takes appropriate..medication he can deal with them. The same is true with respect to his various chest problems'. From a physical point of view, the grievor believes that he is ready to return to work, and he feels he could work twelve-hour shifts but would prefer eight-hour shifts. In his evidence the griev(~r testified that he never refused to take an employer-initiated medical, but Simply expressed concerns about the subsequent disclosure of medical information about him to the employer. When these concerns were not resolved to his satisfaction, the grievor refused to sign the necessary consent. The grievor testified that he believed that the employer could still send him for a medical, and that he did not realize until the first day of hearing in this matter that the employer could not or would not do so unless he signed the consent form. He testified that he never contacted Ms. DorSay to sort out the matter of that form because he called a union steward, who advised him that he could be sent for a medical regardless of whether he gave his consent. Upon his return to work in September 1991~ the grievor was familiar with all but four of the patients on the ward, and" he informed himself about these patients by reading their charts, and in the same way brought himself up to date with respect to the other patientS. He testified that the charts go back six months. He testified that when. distributing medications it is necessary to concentrate, and the person who is performing this task should not be disturbed. One day, when doing this job, Ms. Magierowicz approached him and he agreed that he was somewhat nervous when she did so because he was attempting to concentrate on his assigned task. The grievor testified that he has experienced some difficulties in working twelve-hour shifts for a number of years, and has discussed his desire to work eight-hour shifts with Ms..Magierowicz on numerous occasions. At one point he had an interview with the Nurse Manager of another ward,' but nothing came of it. 'He testified that Ms. Magierowicz told him that as long as he was in the Attendance Review Program he wou~d not be transferred, as he had to be monitored. The grievor testified that while he was receiving. WCB benefits in 1990. and 1991, he regularly called in as required, and only failed to do so on one occasion, He testified that he was instructed by Ms. Magierowicz to contact her personally, ' and was told that he could not leave a message with a secretary. He was very upset when he later was accused of not calling in as required. On one occasion he phoned in after midnight, and this was "to prove a point." The grievor was asked about his three-day absence in October 1991 and he testified that he attempted to see Dr. Stamler but could not get an~ appointment. He also testified that he was concerned .about his absences and so refused overtime. He also cut back his Valium dosage in half because he was worried .that.it was slowing him down. The gdevor believes he is fit and able to return to work. He testified that he does not have a drinking problem, although he freely admitted to regularly consuming alcohol, and stated that he does not. necessarily use the comPlete dosage of all the drugs that are prescribed for him. Cross-Examination of Mr. Maguire The grievor agreed that he was warned in April 1990 that his employment 'was in jeopardy, and that when he returned to work in September 1991 he was aware that his employment was still in jeopardy. The grievor testified that eight-hour shifts would have improved his attendance, but he agreed that there were periods in the past in which he worked eight-hour shifts but was still away from work for considerable periods of time. The grievor provided an explanation for these absences; noting that in the one case referred to him he had a viral infection that he cou(d not kick.. The grievor also agreed that he has been told many' times over the years that his attendance had to improve. The grievor was asked about his lack of cooperation with the employer in refusing to sign the necessary consent form so as to permit an employer-initiated medical examination. Various explanations were provided by the grievor, but the long and short of his evidence was that he was told by a union steward that the did not have to provide this consent and so did not do so. He believed that the employer could, however, still send him for a medical examination. The grievor was also asked about various other efforts the employer made to assist him, and he testified that he was offered EAP's and other assistance but did not feel that he had any problems requiring resort to these programs. The gdevor agreed that Dr. Stamler had suggested to him that he participate in such a program, but this occurred when things were not going well, and when things picked up it no longer seemed necessary. The grievor agreed that it has been suggested to him that he lose some weight, and that not only has he failed to do so, but has, in fact, gained weight. The grievor was asked about his WCB absences and was referred to a document that commented adversely on his cooperation in his rehabilitation program, and in particular, the need for him to improve his level of fitness. The gdevor testified that he performed all assigned exercises. While some of the medical personnel attending his back injury may have felt on occasion that he was not cooperating, the grievor has always felt that he has cooperated fully. Indeed, the grievor believes that he has cooperated 'throughout the Attendance Review Program, and he testified that he once made his appointed cal~ in the middle of the night because he was peeved at receiving a letter from the employer to the effect that he had missed some earlier calls.- The grievor was asked numerous questions about his drug and alcohol use in crOss-examination, and he provided several pharmacy computer printouts documenting his extensive prescription drug purchases. The grievor agreed that some of his gout attacks have followed periods of higher than normai consumption of alcohol. He also testified that Dr. Stamler has expressed concern about his_ drinking. The grievor testified that he regularly consumes alcohol, but indicated that he has recently, cut down a "wee bit." The grievor could not recall ever~being specifically advised that mixing alcohol and drugs was not advisable, although, he was aware of this from his medical training. He testified that he does not drink .when he takes certain drugs, and does not feel that the 'drugs that he takes when he drinks cause a problem. . The'grievor was also asked about the various drugs that have been prescribed for him as indicated on the pharmacy charts, and he testified to his use of those drugs. Suffice it to say. that a number of these drugs depress the central nervous system. In' some cases, the grievor would take the prescribed dose, and in other cases he would reduce that dose as he considered appropriate depending on his condition. " The grievor agreed that taking more than one of these drugs at once could have a magnifying effect, and he agreed that he would sometimes do so depending on his medical condition. The grievor testified about events in September and October 1991, and he .told the Board that while he attempted to consult Dr. Stamler when he became ill with the flu on October z, 1991, he did not in fact see him till toward the end of the month as he treated himself with medications he had on hand. The grievor gave similar evidence with respect to his September 24, 1991 work-related injury, which caused .him to be absent on September 25th. He did not go to the fracture clinic to have that injury examined until October 18, 1991, although he did see Dr. Stamler with respect to it on September 25, 1991. The grievor agreed that he made his WCB compensation claim only after he was discharged. · The grievor was aware that the employer wished to receive a medical prognosis after he was terminated, and it was agreed by the parties that the first such prognosis that the employer received was on the second day of hearing. That document, dated May 12, 1993, is from the grievor's back physician, Dr. J.C. Burrell, and reports on a medical examination that took place on May 10, 1993. It concludes: In my opinion, this patient has made a full recovery from his original back injury. He can certainly do all his usual daily activities without restraint, and I think that he would be able to do his regular work without any difficulty. With respect to prognosis, I would .not anticipate any difficulties during a course of his .usual activities at work. I should point out, however, ' that his last back problem began with an actual incident in which he was forced to wrestle a patient to the ground. Obviously, one cannot predict whether he would have a further injury if he was involved in that sort of '.altercation again. In my opinion, he is not any more at risk for. 'developing problems from such an incident that' any other person. in conclusion, I find this man fully recovered and. able to return to his usual work. Re-examination of Mr. Maguire In re-examination, the grievor testified that he does not believe that his drug and alcohol use impairs in any way his ability to do his'job, and believes that he is fit and ready to return to work. Testimony.of Dr. James Stamler Dr. Stamler testified: He has been the grievor's family physician for approximately seven years. A medical certificate dated May 6, 199'2 was introduced into evidence and it reads as follows: I have followed Michael Maguire as a patient for some time. Currently his asthma is stable and well controlled by medication, Becloforte. It is anticipated he will have flare~ups of asthma from time to time requiring further treatment. He continues to suffer from migraine headaches. Currently the frequency of these has diminished. It is my impression he will continue to have migraine headaches with a varying frequency and require treatment for.them periodically, Dr. Stamler also testified that the grievor's back condition has improved, and that his other medical conditions were: not currently causing problems. Dr. $tamler testified that by avoiding heavy lifting the grievor could prevent a flare-up of his back problem. Dr. Stamler could see no reason why the grievor could not now return to his job, and believes that the grievor would be reasonably punctual. In his view, there is currently nothing unusual about the grievor's medical condition. Cross-Examination of Dr. Stamler " Dr. Stamler was asked numerous questions in cross-examination, and the grievor's medical chart was extensively reviewed. In particular, Dr. Stamler testified to the various medications the grievor had been receiving including Becloforte and Ventolin for asthma, Valium for muscle relaxation, Atasol 30, a compound medication of Tylenol and codeine for pain, Tylenol, Garasone, an antibiotic for his allergic tendencies, Zantac, an acid blocker for his nervous stomach, immodium, foe diarrhea, and Stemetil, an anti-nausient that may cause drowsiness. The grievor also takes Seldane for his allergies. Dr. Stamler testified that on a number of occasions he has been concerned about the amount of medication that the grievor is taking, and has refused requests by the grievor for medications such. as Demerol. Dr. Stamler has also advised the grievor to curtail his drinking, particularly since alcohol may aggravate his gout and because it is not advisable to use alcohol in conjunction with some of his prescribed drugs. The grievor also receives allergy injections as required. Dr. Stamler agreed that as with any patient, the amount of stress the grievor encounters may affect his medical condition. While 'the griever has a variety of medical prob!ems, Dr. Stamler does not believe that they are caused by one single factor. Dr. Stamler testified that he specifically advised the griever, in conjunction with the emptoYer request for a mandatory medical referral, that un~ess the griever gave his written consent he 'could not divulge any information about him. Re-examination of Dr. Stamler in re-examination, Dr. Stamler was asked about the various d[ugs the griever was receiving, and the dosages of those drugs. He testified that while a dosage of 5' mil!igrams of Valium migl~t put someone who has never taken the drug before to sleep, it would not necessarily have that effect on someone who took that drug on a regular basis. Ir'might not, simply put, affect the griever's cognitive abilities. The same could be said with respect tO the use of Atasol. Dr. starnler testified that neither-Garasone nor Zantac was addictive, and he does not believe that Immodium is addictive either, in his view, Stematol, while a' little sedating, may not necessarily effect cognition. With respect to the drugs the griever takes for his stomach condition, Dr. Stamler does not believe that either these drugs or that condition should prevent him from returning to work. Indeed, in his view, none of the griever's conditions or medications should prevent him from performing his regular duties. Emgloyer Argument Before beginning his argument, employer counsel introduced without objection an expert opinion he had prepared on the subject of the' griever's drug use. Dr. D, Kadar of the University of Toronto's Department of Pharmacology was asked t~0 review.the griever's drug records for the period March to IVtay 1993. In particular, Dr. Kadar was asked to comment on the grievor's use of ADIA 5, ATASOL 30, ACETAMIN with 30 mg CODEINE and STEMETIL. All of these drugs are listed on the grievor's.pharmacy printouts. Or. Kadar descr, ibed the properties and side-effects of these drugs in a letter dated September 20, 1993: ADIA 5 is the abbreviation of Apo-diazepam 5 rog, a brand of diazepam manufactured by Apotex Inc. Diazepam is the best known member of the benzodiazepine family of drugs. It is recommended for short term symptomatic relief of excessive anxiety and tension in psychoneurotic patients. It is also used in acute alcoholic withdrawal and for the relief of spasticity. Diazepam acts primarily on the central nervous system (CNS) and most of the side and adverse effects are an extension of its primary action. Patients receiving diazepam should be advised to proceed cautiously wherever mental alertness and physical coordination are required. The adverse effects are drowsiness, ataxia, fatigue, dizziness, b~urred vision, headache, slurred speech, tremors, euphoria, impairment of memory, confusion, depression, skin rash and many others that are not CNS related. ATASOL 30 is a combination of acetaminophen 325 mg, Codeine phosphate 30 mg and caffeine citrate 30 mg. It is used for the control of pain of medium severity. Codeine phosphate acts as a CNS depressant reducing pain sensation. The adverse effects are (Jrowsiness, lightheadedness and respiratory depression with coma in toxic doses. ACETAMINOPHEN with 30 mg codeine is identical to ATASOL 30. In addition to these drugs, Mr. Maguire regularly received STEMETII, (prochlorperazine), an antipsychotic- antiemetic drug recommended for the management of manifestations .of psychotic disorders such as agitation, confusion, delusion, tension and anxiety.' The adverse effects of Stemetil .include sleep disturbances, drowsiness,-fatigue and depression. Diazepam,-Codeine and Stemetil side effects are additive and in some' cases may potentiate their adverse effects.' AIl of these medications carry a warning that their use may impair the mental and physical abilities required for the performance of potentially hazardous tasks such' as driving a car or operating machinery. SELDANE (Terfenandine) is a histamine H- 1 receptor antagonist used for the treatment of allergic reactions. It is claimed to be free of major CNS related side effects but may interfere with the metabolic break down of other drugs such as diazepam and codeine. 'The duration of action and the intensity of adverse effects of these other drugs is intensified. Diazepam, Codeine and Stemetil should not be taken with any alcoholic beverage because aicoho~ potentiates their .. CNS depression effects. 1. All three drugs Diazepam, Codeine and Sternetii may depress the motor skills and cognitive abilities of patients. 2.. The simultaneous administration of these drugs are .additive in dep'ressing the motor skills and cognitive abilities 'of patients. 3. The effect of alcohol may be additive or super addictive (potentiating, "multiplier effect") if taken together with these drugs. Alcohol is contraindicated during medication. The time. factor of interaction with alcohol is unpredictable, because the biological half-life of diazepam is 24 to 36 hours and.one of its active metabolites desmethyl diazepam is over 1;~0 hours. A period of 12 hours is well within the duration of action of diazepam or Stemetil. 4. Diazepam and codeine are Well known to have addictive properties. Stemeti~, seldom if ever is abused because of the unpleasant side effect. Abuse potential is almost nil. After reviewing this medical opinion with us, employer counsel 'discussed some of the key principles applicable in innocent absenteeism cases and cited a number of relevant authorities including Re Canada Post Corporation and CUPW, 6 L.A.C. (Sd) 385 (Burkett), Re Crouse-Hinds Canada Ltd. and UAW., 3 L.A.C. (3d) 230 (H.D, Brown), CUPW and Canada Post (unreported decision of Duran dated December 6, 1989), Emond 842_/85 (Verity), Krishnamurthy 1479/87 (Ratushny), Cardone 783/84 (Samuels) and Richardson 517/81 (Barton). Employer counsel took the position that there was a culpable aspect to the grievor's pattern of absences and that this was a factor appropriately taken into account. I~oreover, in counsel's view, this was not an appropriate case for conditional reinstatement given the past record, repeated warnings, lack of cooperation on the part of the grievor and pattern of absences. Counsel also noted that the grievor's absences caused considerable disruption and expense to the Hospital. In employer counsel's view, the Hospital had' established excessive absenteeism in the past and had also established an inference, which the union had not rebutted, that the circumstances were such that this absenteeism was like)y to continue in the future. Counsel contrasted the instant case with some of the reported awards in which the grievor was reinstated following a finding that the conditions causing the absenteeism · had been resolved. Counsel noted that there was no such evidence in this case' and, indeed, all 'of the evidence was to the oppos!te' effect and· strongly suggested that this employee would continue to be away from work for a variety of different illnesses., In reviewing the evidence, employer counsel drew the Board's attention to the fact that the grievor refused to take the necessary steps so as to permit the employer .to gain access to medical information about his condition and prognosis. He noted that the grievor did not cooperate in the Attendance Review .Program; 'he failed to call in as required and.to attend scheduled 'meetings. Counsel questioned the weight to 'be given to Dr.' Stamler's evide,nce, and, in particular, his failure to testify to the additive effects of certain of the drugs he had prescribed. Counsel suggested it was noteworthy that the grievor only claimed to~ have been injured at work on September 24, t 991 after he was discharged. Counsel argued that the evidence .demonstrated that the grieVor' was not. committed to improving his attendance in the future, and pointed out that the grievor repeatedly failed to take recommended steps such as cutting back on drinking, losing weight and exercising. Counsel also noted that this evidence was entirely consistent with the rest of the evidence, whic'h was to the effect that the grievor did not and would not cooperate in his rehabilitation and in efforts directed at assisting him in improving his attendance such as counselling and'participation in the EAP. Employer counsel argued that there' was ,no evidence to the effect that the grievor would not continue suffering from the large variety of illnesses that beset him, and suggested that Dr. Stamler had Provided what could be characterized, at best, as a guarded future prognosis. Counsel also suggested that the grievor's drug use was a cause for concern, and it was no accident, in this regard, that Ms. Magierowicz became concerned in observing the grievor distributing medication. Counse~ suggested that the grievor did not look alert because he was not alert, and this was the inevitable outcome of his ingesting a variety of drugs affecting his CNS with a significant additive effect. In counsel's view, the grievor's evidence about his wish to work an eight-hour shift rather than a twelve-hour shift should not be given that much weight given that past experience demonstrated a high rate of absences while on an eight-hour shift. Very simply, in counsel's view, all of the evidence established a bleak future prognosis for regular future attendance, and that being the case, and excessive absenteeism having been established, the employer had met its obligations and the discharge sho~d be upheid. Union Arqument Union counsel did not dispute the legal principles to be applied in this case, but took issue with the employer's characterization of the evidence. In counsel's view, the grievor established by the spring and early summer of 1990 that his attendance was significantly improving. Unfortunately, a work injury caused him to leave work and precluded him from returning until the fall of 1991. While it was true enough that the grievor was away on three separate occasions during his first five weeks of work, counsel noted that one of these occasions was the result of a work injury that was related to the June 1990 incident. This record of absenteeism could not, in counsel's view, be described as excessive. Union counsel also argued ,that the union dischar, ged' its burden of demonstrating a good future medical prognosis, and he referred to the medical oPinions of Dr. Burrell and Dr. Stamler. Counsel also noted that when the WCB cut the grievor's benefits in the summer of 1992, it did so on the basis of its independent determination that he was fit and able to return to work. ~ -Union counsel noted that there was no evidence to support the employer's suggestion that the grievor was abusing prescription medication, nor was there any evidence to the 'effect that the grievor's use of prescribed drugs had interfered or ~would interfere with the performance of his duties and resPonsibilities. In counsel's view, the' medical evidence was clear and uncontradicted and it was to the effect that the grievor was ready and able to return to work. The back problem was solved, and while it was true enough that the grievor had in the PaSt suffered from a wide variety of minor ailments, it was also true that all of those ailments were being : treated, and none of them was of such significance or gravity so as to interfere with his regular future attendance at work. in counsel's' opinion, Dr. Stamler was in the best position to give an opinion about the grievor's medica~ prognosis, and absent evidence to the contrary that opinion should be believed. Union counsel also-Suggested that the employer was overstating the gdevor's use of alcohol. There was no evidence in this case of alcoholism, and while there was evidence that Dr. 'Stamler had advised the grievor to curtail his drinking, there was no evidence whatsoever to the~effect of any finding that the grievor abused alcohol, or any other substance, for that matter. In this regard, c°unsel refuted the suggestion of any culpability on the grievor's part, and noted that the bona fides of the grievor's illnesses had never been disputed by the employer. Counsel noted that the employer's · expert opinion about the additive and other effects of certain prescribed drugs was extremely general and did not, in any event, deal with the grievor's particular drug use. in counsel's view, while perhaps generally instructive, that report did not add much to the disposition of this particular case in that it was not focused on the particular circumstances presented by the grievor, nor did it distinguish between likely and possible side, adverse and additive effects. Counsel argued that the simple fact that someone had an illness that was being treated by medication did not mean that that person was unfit to work. Counsel reiterated the fact that there was no evidence whatsoever of any job performance problem. Counsel pointed out that there was no evidence that the grievor's drug or alcohol use had ever prevented him from attending at work. In counsel's view, it was neither right nor fair to reach back to events in 1987 to support a conclusion that the griev°r had failed to establish a good future prognosis to attend regularly at work; particularly, in the union's view, where there was evidence of employer condonation of these absences. Counsel suggested that January 1990 was an appropriate starting date, and when the grievor's attendance record from that date to the date of his discharge was evaluated in the context of the recent uncontradicted medical evidence, the union had discharged whatever burden it possessed of demonstrating that there was an extremely good likelihood of regular future attendance at work. 'Indeed, in counsel's view, the fact that the grievor did not seek WCB benefits immediately after his January 24, 1991 work injury and absence the following day indicates that he was attempting to the best of his ability to meet his employment obligations rather than take an easy way out. Thi~ evidence,' counsel ?.rgued, demonstrated that the grievor wanted to work. When he was subsequent, iy discharged, it only made sense for the grievor to file a WCB claim. And, counsel noted, the WCB approved that claim. There was, accordingly, nothing wrong in what the grievor had done, and counsel took issue with any suggestion construing his conduct otherwise, In conclusion, counsel asked that the grievor be reinstated with full seniority, back pay and'benefits together with interest. Counsel asked the - Board to remain seized with respect to the implementation of its award.' Employer Reply In reply, employer counsel made a few ·points. First, the grievor's conduct was a relevant consideration. Whether he failed to cooperate'in'the Attendance Review Program or failed to take other steps such as cutting back'-on his drinking, losing weight and exercising, his conduct, insOfar as it made his condition worse, should be taken into account. Second, it was extremely relevant that. the first real medical report that the employer received, notwithstanding repeated requests, did not appear until after these hearings commenced. This fact was critical in terms of fashioning an appropriate remedy in this case. Third, the grievor has an excessive absenteeism rate and was away from work three times in his first five weeks back at work. There is no reason to believe, given the grievor's' record and the medical evidence introduced, that this high rate of absenteeism will not c~ntinue. ' Fourth, there was evidence suggesting that the grievor's drug use was affecting the performance of his Work. This evidence should not, in the employer's view, be ignored. And fifth, the suggestion that the employer had somehow condoned the grievor's 'absences in the past was contrary to the facts, and the employer should not now be penalized for attempting to work with the grievor 'in the past. In the employer's view, the grievor had been given more than a fair chance, and as there was an. excessive record of past absenteeism and no real evidence of a positive future prognosis the discharge should be upheld. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that this is an appropriate case for us to set aside the discharge, finding it to be without just cause, and to reinstate the §rievor subject to a-number of strict conditions. The case law is clear that to support a termination for innocent absenteeism, the employer must demonstrate excessive absenteeism in the past, and an unfavourable prognosis for regular' future attendance at work. There is no doubt that when considered as a whole, the grievor's record establishes that there has been excessive absenteeism in the past. However, we are of the view that to consider the grievor's absentee record from 1987 to 1991 is not appropriate in this case, because of the fact that the grievor in the three-month period prior to his work injury in June 1990 demonstrated a significant improvement in his attendance, and we cannot find that his three separate absences upon his return to work in the fall of 1991 are sufficient to establish that the grievor was excessively absent. Moreover, the medical evidence from the grievor's two physicians is clear and uncontradicted that the grievor is now fit and able to return to work, and the grievor also testified to this effect. Simply put, while we can very well understand the frustration of Ms. Magierowicz and the Hospital staff in dealing with this employee who was less than cooperative, we cannot find that three absences in five or Six weeks at work, when one of those absences was caused by a work' injury and recognized by the WCB as such,, is sufficient to meet the requirements to support a discharge for innocent absenteeism when that record is considered alongside the major improvements in the grievOr's attendance record prior to his June 1 990 workplace injury and the favourable medical reports and evidence establishing that the grievor is likely to achieve regular future attendance. Even if the evidence was characterized so as to constitute excessive absenteeism in the past, we find that the probabilities-in this case support the conclusion that the grievor can reasonably be expected to regularly attend at work in the future. Accordingly, we find the discharge to be without just cause. In reaching this decision we have taken the grievor's significant seniority into account. At the time of his discharge, the grievor had almost twenty-three years of service with tl~e.Hospital. We take notice of the fact that the chances .of the grievor finding alternative comparable employment are remote, and that there was no evidence before us that the grievor was anything other than a satisfactory employee While'at wOrk. Needless to say, the grievor attracted the employer's attention because of his totally unacceptable attendance record accumulated over a number of years. In reinstating the grievor we wish to make it absolutely clear that we do so recognizing that the Hospital acted entirely appropriately in placing the grievor on an' Attendance Review Program and in seeking to .I assist him in improving his attendance. There was absolutely no condonation of ~the grievor's past absences, and the institution of the Attendance Review Program in August 1989 is proof of this fact. Had the grievor been a less senior employee we might very well have decided not to reinstate him, but his long record of service is a factor that simply cannot be taken lightly, and in this case, when considered alongside the other circumstances set out above, warrants our finding that the termination was without just cause and supports reinstatement on strict terms. Needless to say, the evidence presented in this case presents the Hospital and us with some serious cause for concern. While the grievor may think otherwise, we are in total agreement with the Hospital that the grievor has displayed a singular lack of cooperation as evidenced by his attitude towards participation in the Attendance Review Program. The evidence concerning the grievor's_participation in that program while receiving WC8 benefits in 1990 and 1 991 does not indicate that the grievor took his attendance problem and his responsibility for improving his attendance seriously. His failure to attend meetings and participate more generally in the Hospital's good faith efforts to assist him further reflect his unacceptable attitude about the situation. The fact of the matter is that these proceedings were well advanced before the grievor presented the Hospital with the repeatedly requested medical opinion setting out his condition and prognosis. Indeed, the grievor did not even notify the employer that his September 25, 1991 absence was caused by a work-related injury the day before until well after he was discharged and applied for WCB benefits. It should also be noted that the medical evidence about the grievor's medical problems and prescribed drug use also present more questions than answers about his fitness to return to work. We have carefully reviewed Dr. Kadar's report, as well as our records of the examination and cross,examination iof Dr. Stamler. We cannot fund that this evidence is at all sufficient to allow us l~o'conclude that the grievor's prescribed drug and alcohol use renders him unfit to work.. It is far too general for that. However, it does lead us to conclude that while reinstatement is appropriate it is equally .appropriate that it be subject to strict terms. In drafting these terms we have taken the grievor's general lack of past cooperation into accou~nt, as well as the fact that these proceedings were well advanced before he bothered to accede 'to the employer's request for an up-to-date medical prognosis. Those terms are as follows: 1. The grievor is ordered reinstated with no loss of seniority but with no compensation' for lost wages and benefits. 2. Considerable time has elapsed since Dr. Burrell wrote his letter dated May 12, 1993 and since Dr. Stamler testified on I~ay 13, 1993 as to the grievor's fitness to return to work. Although we rely on this medical evidence to.conclude, that the grievor has a favourable future prognosis of regular attendance at work, we consider' it prudent to require, as a - condition of re.instatement, that before returning to work the grievor must present the Hospital with a letter from his family physician indicating that he has been examined and has been found fully fit and able to perform all of his job duties and to attend w~rk on a regular basis for the foreseeable future. This letter must· indicate that .the grievor has received a complete medical examination, and this medical examination is to take place following the release Of this award. The doctor's letter must also indicate that the grievor's prescription drug and alco'hol use have been carefully reviewed and that in the opinion of the physician this prescription drug and alcohol use does not impair the grievor's fitness or ability to perform all of his job duties and to attend work on a regular basis for the foreseeable future. 3. The grievor will be subject to the Attendance Review Program for a period of two years or a lesser time if reduced by the Hospital. If the grievor's absences exceed the departmental.average for any four-month period during those two years, the grievor may be dismissed. 4. The grievor must cooperate fully with the Attendance Review Program. 5. The grievor shall be reinstated within thirty days of the issue of this award or as mutually agreed upon by the parties, subject to complete compliance with term number two. Obviously, there is no way that we can effectively order the grievor to cooperate with the Hospital and show it the same good faith it has shown him. That is entirely up to him, but the extent to which he does so will determine the duration of his future employment. We remain seized' with respect to the implementation of this award. DATED at Toronto this ] 51:hday of Nove'mbe~, 1993. William Kaplan Vice-Chairpe rsorr~. -. ·... Member M. O'Toole Member