HomeMy WebLinkAbout1993-1323.Blackhall.94.11.21 - .. ""'\~ .",- ~ ,.. - - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 , February 27, 1995 MEMORANDUM RE 1323/93 OPSEU (Blackhall) and The Crown in Right of ontario (Ministry of Community & Social Services) The above-noted decision was released by the Board on November 21, 1994 Please be advised that a Notice of Application for Judicial Review dated February 16, 1995 has been filed by Mr I Roland of Gowling, Strathy & Henderson, Barristers & Solicitors Yours truly, ~.k~ Joan Shirlow Registrar JS/dbg Encl ( ... ~)- ~ l' " '"""- ".: ONTARIO EMPLOYES DE LA COURONNE ...' CROWN EMPLOYEES DEL'ONTARIO '<: 1111 GRIEVANCE COMMISSION DE" .. SETTLEMENT REGLEMENT 1 BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TOPONTO. ONTARIO, M5G 1Z8 TELEPHONE/TI::LI::PHONE, (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100. TORONTO (ONTARIO) M5G 1Z8 FACSIMILEITI::LtCOPIE (416) 326-1396 1323/93 IN THE MATTER OF AN ARBITRATION \ Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT, . I \ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Blackhall) Grievor - and - The Crown in Right of Ontario (Ministry of community & Social services) Employer BEFORE: H Waisglass Vice-Chairperson \ J. Carruthers Member M 0' Tool'e Member FOR THE A Lokan ) UNION Counsel Gowling Strathy & Henderson Barristers & Solicitors FOR THE J Smith EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services I I I HEARING March 3, 19~4 April 27, 1994 May 12, 1994 June 22, 29, 1994 July 18, 22, 1994 August 26, 29, 30, 1994 September 12, 1994 I ~ _ :...1--' ::r,,- ~ ,., >; 2 DECISION Martin Blackhall's grievance dated June 28, 1993, claIms "1 have been d1sm1ssed without just cause Violation of Article A in management's treatment of thJs employee " [EXHIBIT 1J He was employed as a painter since July, 1986, at the Child & Parent Resource Institute {CPRI}, a COMSOC inst1tut1on 1n London, On~ar1O Blackhall's above-average absentee1sm was caused by h1S recurring and chrome 111nesses, which led to his two dismissals, and on each of the two occasions, for excessive innocent absenteeIsm - Blackhall's first dismIssal was by a letter to h1m from Eugene M Sorin, the CPRI Adm1nistrator, dated December 5. 1991, [EXHIBIT 7J which stated "As a requirement of your continued employment with CPRI because of your frequent absenteei~m durir.lg the past four years, we required that you attend a mandatory medical examination (Article 52.9) with Dr Felicity Davis, a mutually agreeable physician, at Victoria Hospital. The purpos~ of this mandatory medical examination was to allow us as an ~mployer to evaluate and determine the following: ) -the likelihood of your ongoing, regular atten~ance at work; -the level of accommodation, if any, required for you in discharging your duties as painter "While you attended the mandatory medical with Dr Davis on October 31 , 1 991 , you have now refused Mr Singh's request to sign or authorize a release of information. This release was necessary to allow Dr Davis to provide the employer (CPRI) with pertinent information with regards to your employment. "Because we have no information which leads us as your employer to expect an improvement in your attendance, and in view of our numerous efforts to assist you in rectifying your ongoing absenteeism, you are hereby informed that your employment with CPRI is terminated effective December 6, 1991, in accordance with the authority delegated to me under Section 22(3) of the Public Service Act" Blackhall's gri.evance on the 1991 di.smi.ssal was scheduled to be heard before the GSB on July 17, 1992 A voluntary settlement of the grievance was mediated before that date, and a Memorandum of Settlement [EXHIBIT 2J was sIgned by the gr1evor, by Barry Colrin on behalf ~he Un1on, and by Mahendra Singh for the Employer, 1n London, on April 14.1992, prov1ding as follows "The parties agree to the following terms of settlement as full and final resolution of all matters rais~d in dispute by the above captioned grievance. . . . ~.j ti~ i ft\ -<: 3 1 The Ministry agrees to reinstate the grievor to his position as a painter at C.P R.I. in London without payment of salary or benefits for the period from his dismissal until the date of re- instatement pursuant to this agreement. - 2. The parties agree that the griever's continuous service date will not be effected {sic} for the period of time the grievor was dismissed. This agreement is in accordance with Article 25 4(b) of the Collective agreement between the parties, dated September 5th, 1990 ( 3 The reinstatement referred to in paragraph 1 above is conditional upon the grievor maintaining a record of attendance at work that is no worse than the average record of attendance for employees of the maintenance department at C.P.R.!. The Grievor's attendance record will not be included in the calculation of average attendance for the purposes of calculating the departmental average hereunder Similarly workers compensation related absences of other employees in the department will not be included in the calculation of average attendance in the department. 4 The Grievor's attendance record will be reviewed every six months for a period of two years following the date upon which the Grievor is re:.instated to his employment If in any six month period the Grievor fails to meet or surpass the average attendance record of the department, he will be subject to dismissal pursuant to the terms of this agreement 5 The reinstatement referred to in paragraph 1 above is conditional upon the following additionai commitments made by the Grievor ( (a) the Grievor agrees to co-operate with his co-workers and to accept the direction of his supervisors. (b) the Grievor agrees to provide a medical assessment clearly indicating any dysfunction affecting his capacity to do his job at C.P R.I to Human Resources Manager Art Hulks within 30 days'of the signing of this agreement. I 6 The parties agree that this settlement is conditional upon the Grievance Settlement Board incorporating the terms of this settlement into a Consent Order of the Board. 7 The parties agree that the requirements imposed on the Gri~vor as a result of this settlent are to continue for a two year period following the date of the Grievor's reinstatement. 8 The reinstatement agreed to hereunder will take place at a date to be agreed to by the parties and upon receipt in Mr Hulk's hands of the medical assesment referred to in paragraph 5 hereof 9 The parties agree that this settlement is made without prejudice or precedent for any matter in dispute among or beteween them 10 The parties agree to request the Grievance Settlement Board to incorporate tj1e terms of this settlemerit in an Order of the Board." . . '..' ~, ~~-- ....,f ? . 'I-, '" 4 Blackhall's second dismissal, the subJect of th1S gnevance, was by a letter dated June 28, 1993, from Eugene M Sonn, the CPRI Admimstrator [EXHIBIT 12J whi.ch stated "f:;.s a condition of your reinstatement to and continued employment at CPR I and in accordance with the Grievance Settlement Award 2624/91, your attendance for each six (6) month review period must be no worse than the average for the Maintenance Department. "The attendance review conducted April 28th, i 993 covered the six (6) month review period of October 28, 1992 to April 27, 1993 Your absence for this period was 20 37 days compared to 5 75 days average for the balance of the Maintenance Department. Also, at the April 28th, 1993 attendance review you mentioned that you had a high blood pressureconditign which caused you excessive absenteeism. "f:;.s this was a new condition to Management, we requested and you agreed to a Mandatory Medical with Dr Roland Carson,. a mutually agreeable Doctor under article 52 9 of the Collective Agreement. You signed all necessary documents authorizing the mandatory medical and the release of information under section 42(b) of the Freedom of Information and Protection of Privacy Act "The Mandatory Medical Examination was conducted by Dr Roland Carson on- Wednesday June 16, 1 993 As a result of Dr Carson's medical examination, he finds that the clinical and physical assessments indicate that you have moderate hypertension which is under control now. He does not believe that is a basis for any type of complaints or any type of illness. Dr Carson does not believe that this moderate blood pressure level prolonged over a long duration should, or does explain your absenteeism recorded by the services at CPRI "- "Therefore, because of your violation of the terms and conditions of the Grievance Settlement Board Award 2624/91, specifically absenteeism in excess of the departmental average for the period October 28, 1992 to April 27, 1993, you are hereby informed that your employment with CPRI is terminated effective June 28, 1993, in accordance with the authority delegated to me under Section 22(3) of the Public Service AC,t." It should be noted that the attendance figures ci.ted 1n the second paragraph of the June, 1993 d1smlssal letter [EXHIBIT 12J were adJusted subsequently by the Human Resources Department document dated July 16, 1993 [EXHIBIT 19J to 5 95 for the Maintenance Department Average, and to 20 97 for MartIn Blackhall, for the same attendance review penod We accept the adJusted absentee1sm figures of EXHIBIT 19 as fact The Employer argues, essent1ally, that its deC1sion to term1nate Blackhall's employment is Justlf1ed by h~s breach of the terms and conditIons for his reInstatement as agreed upon in the Memorandum of Settlement tEXHIBIT 2J, I . ~.1 I HARRY WA I SGLASS', '416 525 7837 P 82 ....,..., :-.~ N ( -"' --..tJ 'P .\1' , <; .~ ! 5 -, particularly PQrQ~rGPh 3 and 4 ther~nf~ whi~h rlparly and unambiguously declares that "the reinstatement lS condlhonal upon the grievor mai.ntaining a rp.(orn of rttendcmce at work ,that is no worse than the avet'age recot~d of attendance for employees of the malntenance department " We find that the Employ~r ha~ an unclsputed ~ight to rcqulrc Martin Blockhall to provide a reasonable level of reliable and regular attendance a~ work It 'lS not necessary for us to define or determine what that {'reasonable leve 1'> i.s) In the Ctrcllmstances of thi.s cose, because the part'ie~ have akcady def1.Md i.t illl EXHIBIT 2, when thoy dctcrm1:ned tnat the employel" h,,:s the. /"i.ght "- to reLy on [3L~ekhalPs t't:gult:lt" aLletlcJut'ict:! V'Hthln WI CJcceptable li.ml.tof absences, which are no more than the average for' other employees in his depClrtm~nt ~xc-1IJd;n!J ((workers compensation related absences" The fourth ~w'ugraph of the Memorandum of .:.e'tt\cm~nt provlClcs tnot ~iackhall's Gli:tendance { record wi.ll be reviewed every six months for a period of two years, and~ "If 'in any S\X l'l'OI,t:h pedc:d the Gl"'i.evul" r I.'ltls Lv ;III::I::L v ~uq)U~~ Ltll:::: UVt:H"USl~ attFnrlnnc-~ r~cQrd of the department7 he will be subject to dismts~ol pursuant I to the terms of this agreement >> "- We find that the purpose of the Memorandum of Settlement was to resolve two vl'u!Jh:rn~ rur' Blul.kh(./ll, th~ lu:s:s uf hi~ job, 1'01- the Employej', Bl(::!d:h!:ll1's exceSStve innocent or non~culpQble abEente~i.sm In exchange for the aG~urancc whi.ch the Union and B1Q<;kh<il t go.ve the Employer that he can hE> r~l i~d lJ!"lon fnr a reasonable level of regular attendance, the Union obtained hts retnstotement in employment The tmployel- h~d 1,othi'1g mo'"e La I"t:ly upon oLht:r' the.HI thut \ {assurance, that hi.s absence rate wi 11 not exceed the departmental average, because, Qt the time, it had not yet succeeded in its efforts to obtai~ a I medical prognosls to support Q promise~ of reliable attendance I he: terms of tt'lE" s?tt I ement arp tH1i11. non hlndlng as an Orde.r at the Board It remains fot' us to determine, however, the Union's claim that it vi.olates a statute, the Human Rights Code, as well as the allegation that the terms of th~ ,pttlement have been applied improperly in th~ ~~cond di~mi~~ol ''.0 .. ~) ..-,/ .0., )..~ 6 The Union argues that the prov1.sions of the Settlement [EXHIBIT 2J, which permit the gr1.evor's dism1ssal for absences 1nexc$ss of the departmental average, discr1m1.nate against the grievor because they do not apply equally to all other employees W~ do not regard th1S as unfair or unjust discriminatIon, in that the application of the prov1Sions is based upon his excessive absentee1sm, which Justifies the special treatment The others do not have his absenteeIsm problem This agreed-upon attendance requirement is not in itself ~ an inval1d discriminat10n Whetner the Settlement v10lates a statute rema1.ns ,- to be determ1ned The Union argues further that the dismissal violates the grievor's ri.ghts under Sections 5 and 17 of the Human Riohts Code to the acconmodation of hiS handlcap, which 1S a mental disorder dlagnosed as obsessive compulslve di.sorder [OCDJ Sectlon 10 (1) [dehmtionJ of the Code defines "because of handi.cap" to lnclude " (d) a mental disord~r" Sectlon 5 (1) of the Code provi.des that "every person has a right to equal treatment with respect to employment without discrimination" for certain specified reasons which lnclude "handicap" And Sect~on 17 provides "( 1) A right of a pe'rson under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties 'or requirements attenqing the exercise of the right because of handicap. "(2) The Commission, a board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsiole for accommodating those neecls, considering the cost, outside sources of funding, if any, and health and safety requirements, if any" ******************************** We heard the followlng witnesses FOR THE EMPLOYER [lJ MAHENDRA SINGH, ASSISTANT ADMINISTRATOR-testified March 3 & April 27/94 E2J ART HULKS, MANAGER, HUMAN RESOURCES- April 27 & May 12 r [3J DR R A CARSON, M D , F R C P (C)-STAFF PHYSICIAN, CPRI- June 22 [4J EUGENE SOBIN, ADMINISTRATOR-- June 29 [5J JEAN-PIERRE DESROSIERS-MAINTENANCE SUPERINTENDENT-- June 29 . J " -.!' - ~ {i\ '~. <L>. ~ :..- 7 FOR THE UNION [lJ MARTIN BLACKHALL-- test1f1ed July 18 [2J BARRY COLLRIN, OPSEU GRIEVANCE OFFICER-- J'uly 22 / \ [3J BOB CEASER, ACTING LOCAL UNION PRESIDENT-- July 22 [4J WALTRAUD KNOTT, CHIEF STEWARD, PSYCHOMETRIST- July 22 & Aug 26 [5J DR JAMES A HARTFORD, PSYCHIATRIST EXPERT WITNESS-- Aug 29 ************************** ' /, 1 THE DISPUTED MATTERS ,RESOLVED BY THE MEMORANDUM OF SETTLEMENT Each speclf1c prov1sion of the -Settlement must be understood andtnterpreted 1n the context of the Memorandum as a whole, and consequently in the context of the matters then In dispute, that 1S, the particular dlfferences between the partles WhICh were resolved by the terms of the Settlement The Immediate dlsputed issue was the dismissal The d1 fferences between the partles re latlng to the grievor's reinstatement were resolved in conjunct1on with thelr I dlfferences pertalmng to his record of absences The dlsm1ssal was the culmination of an absence rate which the Emoloyer found unacceotably hlah In I the first SlX months of h1S employmen~, July to December, 1986, hT had three absence days, which was acceptable After that, however, he had unacceptably ) hIgh rates of 51 days in, 1987, 47 5 days in 1988, 38 5 days In 1989, 79.5 9ays in 1990. and 110.5 da~s in 1991 [EXHIBIT 37J ') The 1991 d1smlssai letter [EXHIBIT 7J clearly states the reasons for Blackhall's term1nat1on "Because we have no information which leads us as your employer to expect an 1mprovement In your attendance, and in view of our numerous' efforts to assist you in rectifY1ng your ongoing absenteetsm '! " It also clearly deflnes ;the Employer's requirements for his continued I employment, which Blackhall falled to satisfy it reauired medical Informatlon~ In order to "evaluate and determine the f611owina.--the likelihood of your onaOlna. regular attendance at work.--the level of accOlTUTlodatlOn. If any. I reauired for yOU in disc~araina your duties as oa1nter." The Employer was aware of the medlcal causes of his absences and accepted thelr legltlmacy HIS history of absenteeism(caused hlS d1smissal, and not any ! . ~ ~- " !I}j C$ c.' . 8 part1cular absence or any part1cular disab1l1ty We have no evidence to support a cla1m that the cause for his d1smlssal was anything other than the cause stated in the dismissal letter The eVldence does not support the Unlon's claim that the dismissal was caused by the grievor's dlsabll i ty or handicap Extracts from the records of the Employee Health Serv1ces [EXHIBIT 30J show that Blackhall had frequent contacts w1th the Employee Health Nurse 1n the two years prior to h1S first dismlssal The records show that he often called 1n slck without explanat10ns and at times calls were made to his home for 1nformat1on on his expected return to work He delayed produc1ng the requ1red medlcal certificates for h1S absences, and often had to be rem1nded Some cert1ficates did not 1ndicate the nature or C9use of hlS lllness Among the reasons mentioned in the records were shingles, sore throats, chest pOlns, depresslon, skin rashes, mlgralne headaches. He came to see the nurse frequently for various complaints .such as his blood pressure, headaches, varlOUS aches and pains, sore throat, and coughs ) The nurse On one occaSlon the nurse expressed concerns for hlS agltated state noted that when he came to see her October 23, 1991, he-"talked nonstop for one hour at which time I suggested I had to go to a meetlng I asked about hlS medlcation and he said he was off lt Because I was concerned about Martln's 'hyper' state I called W Knott, OPSEU; ~told her of my concerns and asked her lf she would call his wlfe " Due to dlff1cultles in obtainlng acceptable medlcal certiflcates to explaln \ Blackhall's absences, as well as hlS contlnulng problem of absenteeism, Dr R A Carson, the CPRI Employee Health Phys1clan prepared a letter dated May 2, 1990, addressed to Blackhall's psychiatrist Dr James A Hartford ThlS letter [EXHIBIT 23J, which wgs never sent because of Blackhall's refusal to sign the necessary authorization for the release of the medlcal information, .requested "In order to maintain our work programs, and in order to assist him plan fqr the future, we require a report on prognosis for' 'a) return to work; b) ability to perform duties on return to work; c) probability of regular, ongoing attendance, upon return to work." I . -- \ \ .~ - ~ ~ '- " ~ (;) \ 9 Blackhall subsequently produced the followIng note from his psychiatrIst Dr Hartford, dated Julv 10. 1990 ,[EXHIBIT lSJ "To whom it may concern: Mr Blackhall has been a patient of mine since 1988 when he consulted me for treatment of depression. I found at that time that he also suffered from an obsessive-compulsive disorder which is an anxiety disorder I treated him with Anafranil, an anti-depressant and anti-obsessional medication and he has responded quite favourably Mr Blackhall also abuses alcohol and has sought help and treatment for that independently of his I treatment with me. ! Currently his stress stems from a feeling that he is being harassed on the job by his supervisor and this stress worsens his anxiety, depression and obsessive-compulsive symptoms. When this happens alcohol abuse also worsens. To my knowledge he has never been absent from work directly due to alcohol abuse and he does not drink on the job \'hope this information is of some help in dealing with his situation." Some ti.me later, Blackhall delivered to the Employer a note [EXHIBIT 22J from Dr Hartford addressed "To whom It may concern", and dated Sept. 13/90, reportIng on hIS Abri.l 30/90 vIsit to the doctor's offIce "I saw Mr Blackhall in my office on April 30, 1990 when it was apparent that he required time off work due to work-related stress ,and worsening of Mr Blackhall's depression and obsessive-compulsive disorder. I understand the stress he experienced was related-to perceived on-the-job harassment on April 26. 1990. I would expect Mr. Blackhall's attendance to be onaoing and reaular under normal workina conditions." [EMPHASIS IS OURS] On June 24, 1991, when Blackhall had been absent for 8 days, the nurse called hIm at home for a medIcal certIfIcate AccordIng to her notes, he told her he was depressed and had an appointment with the doctor The next day, June 25, Si.ngh wrote Blackhall [EXHIBIT 4J "I have been advised by Mr J P Desrosiers that you have been absent from work due to illness for nine days. Medical certificate received today by Employee Health advises that a return to I work note will be provided when indicated. As you are aware, CPRI does require regular, ongoing attendance from you. We are sympathetic to your medical problems, but at the same time must plan and deliver our workload requirements. \ . ~ ~, " ~ - 10 We, therefore, require further information as follows: 1 A medical certificate advising of the probable date of return to work. 2 A current medical certificate advising of the likelihood of regular, ongoing attendance at work in future; The above information should be provided to me by July 10, 1991 We will review this information when received. However, at that time, you will be required to undergo an independent medical assessment by a mutually agreeable physician, as per Article 52.9 of the collective agreement. If you wish to discuss this matter, you may contact me directly " This was followed by another letter dated July 12, 1991, from Singh to Blackhall [EXHIBIT 5J "This is further to my correspondence to you of June 25, which was delivered to your home and signed for on June 27 In that correspondence, I requested medical certificates advising of your probable date of return to work and of the likelihood of regular, ongoing attendance at work in the future. These were to be provided by July 10 To date no certificates have been provided. You are now required to submit to an independent medical examination by a mutually agreeable physician in order to obtain this information, as per Article 52.9 of the collective agreement. Two physicians who are agreeable to us are Dr Robert Ckraus, Victoria Hospital and Dr Felicity Davis, Victoria Hospital Both of these physicians are psychiatrists and are acceptabl~ to us as the employer You should advise me in writing by July 1 9 which of these physicians are acceptable to you, or advise of ' another physician (other than your own current physician) whom you would like us to consider Please note, you have not significantly improved your attendance to the expected levels communicated to you on several occasions over the past year We do require requested information regarding expected date of return to work and likelihood of regular, ongoing attendance in the future in order that we may review this further Therefore, your attendance at an independent medical examination under Article 52.0 and by a mutually agreeable physician is expected. Costs of this medical examination will be pajd by the employer ../ This correspondence is being forwarded to you via courier service. Another copy will be forwarded by regular mail in the event there is any difficulty through the courier service. I look forward to hearing from you by July 22. If you have any questions regarding this process, you should feel free to contact me." The eVldence establishes that the Employer made several attempts, over several months prior to his dismissal in December, 1991, to obtaln from Blackhall medical certlficates to explain hlS absences, to determlne when he wlll return . :.~. " " ,-:::$' ,~ 11 to work, and the likelihood of his regular, ongorng attendance at work in the future Blackhall was extremely uncooperative, if not obstructIVe The J Employer experienced great difficultres in communrcating with him, rn obtaini.ng hrs recogmtron of the need for regl,Jlar attendance It received no constructrve responses to rts offers to help improve hrs attendance And the Employer's requests for rnformation on "the level of accommodatron. rf any. \. recurred for YOU rn discharcrnc your dutres as painter" remained unanswered I Singh testrfied that ~he first time he learned the grrevor had an obsessrve compuls~ve problem was from the Officer who came to investigate Blackhall's complaint to the Human Rights Commissron The Officer told the Employer to give the grrevor all hrs rnstructrons in wrrtlng and this was arranged Singh testified that the Human, Rtghts Offtcer did not deal wtth the attendance problems The evidence does not indrcate when this event had taken place The evid~nce ihdtcated that some trme before the dismissal the Employer knew r from his medical certificates, that the gnevor had a history of many medi.cal problems, including alcoholism, depreSSion, and obsessrve compulsive disorder [OeD] It knew also that he was Illiterate, with learning disabilities The 'Employer made certain ~ccommodatrons to these problems, such as giving him hiS Instructions in writing, permitt1ng htm to tape-record instructions, and, partrcularly, making arrangements to faci I itate corrmumcations wr th him on non-drsciplinary matters through Ms Waltraud Knott, the chrefsteward Her , J specral professronal skrlls and experience as a psychometrrst, as well as Blackhall's trJst and confidence rn her, were particularly helpful rn preventing bnd moderating hiS day-to-day problems at the workplace, part1cularly hrs interactions with his supervisor, peers .and managers / We find that although the Employer was aware of his OeD, it did not have the necessary medical information to establrsh it as the cause for many of hrs absences, nor to provide a prognosis fo~ determining whether his disorder was suffiCiently controlled by medication andmedrcal treatment rn order to assure his regular and ~eliable future attendance at work Its efforts to obtain that ~ information were thwarted . ) ~, ~- !, ~ :0 12 '--- ~ome tlme before his dismissal, Blackhall gave the Employer a letter [EXHIBIT 3-aJ dated July 29, 1991, from Dr George E Jenklns~ a psychiatrist . at the London Psychiatric Hospital, which states "This will confirm I saw you from time to time between 1972 and 1988, You complained of neurotic problems which varied in severity during that time. They were characterized by anxiety, depression and obsessive-compulsive thinking Sometimes the inability to control obsessive thought was quite frLghtening to you. "Indulgence in alcohol sometimes allayed the fear temporarily but that often led to problems. You advise me today that you have not been drinking for a long time and I continue to encourage you not to use alcohol. "You also had a lifelong problem with reading ahd writing which is an embarrassment and a frustration. You have taken special training for this difficulty and are making some headway "At present you are. having problems with fellow workers and with supervisors, Naturally this kind of stress will exacerbate symptoms and I hope you will be able to settle these matters soon." Singh testified thqt while Dr Jenkins described the grlevor's medical condltlons during the earlier years {up to 1988} when he was being treated, It L could not be related to his current absences, and the letter provided no prognosIs He said the letter left management with ItS continuing concerns \ - that "we could find no connection between the disabilities destribed In the medical reports and Martin's ongomg attendance problems" It was apparent that the medical reports did not inform the Employer whether Blackhall's mental disorders could be controlled by medication and medical treatment suffiClently to enable him to attend work on a regular basIs Blackhall accepted Dr DavIs for the mandatory medical examination and an appointment was made for September 27, 1991 On September 19 Blackhall's wife wrote Mrs D Smith, the Employee Health Nurse, CPRI, explaining why the ( appointment had to be postponed [EXHIBIT 32J "Enclosed please find a copy of a letter from Dr Yemchuk re Martin's'referral to the Richardson Medical Centre. Over the past 2 to 3 weeks Martin has been increasingly more despondent and it was decided that he needed to be treated in a hospital setting. Martin agreed and he was admitted there today At this moment the plan is that he will be at the Medical Centre for 4 weeks bringing us to October 19, 1991 It is my understanding that Mr Mahendra Singh did not wish, Martin to return to work at CPRI 'l ) I l . "", ~ " r' t ;:> " ~ ~ 13 until after he was seen by Dr FeliCity Davis on September 27, 1991 Martin said he will be happy to see Dr Davis when he returns, if Mr Singh so wishes. I will cancel the appointment with Dr Davis on September 27, 1991 " - Attached to Mrs Blackhall's letter was thIS letter from Dr B R Yemchuk "To whom it may concern: This letter is to certify that Mr 'Blackhall suffers from depression, obsessive-compulsive behaviour and a learning disability, as well as alcoholism. Mr Blackhall referral to the Richardson Medicai Centre, 401 West Campbell Road, Richardson, Texas, U S.A. is indicated for the above medical problems." Blackhall was examined by Dr Davis on October 31, 1991 However, he refused to sign a consent for the release of her report to his employer He sent the \ following letter to SIngh, dated December 5, 1991 [EXHIBIT 13J \ "When I arrived for my appointment with Dr Felicity Davis on October 31, 1 991, I was asked to sign a consent to release medical information. After a discussion with Dr Davis I agreed to sign the consent to have the report sent only to my psychiatrist, Dr James Hartford. I believe Dr Davis telephoned to advise you of this decision. During the interview Dr Davis told me she had received from you copies of letters from Dr Hartford, Dr Jenkins and Mrs. June Pinkney ~ I am upset and concerned that you would send those letters to anyone else. I have given you letters from the above and signed a release for you to get WCB files and reports from Mrs. Smith at CPRI However at no time did r give you permission to pass copies of this information on to anyone else. Nor did I expect that you would ever give it to anyone else. I am now very reluctant to sign a release for any medical information. At the present time I am considering seeking legal advice regarding this matter" The Employer did not receIve Dr Felicity Davis's report on Blackhall's mandatory medIcal [EXHIBIT8J untll Blackhall authorlzed ltS release after hIS dismlssal, whereupon it was provided by the UnIon at the Step 2 of the grIevance procedure Her report confirms that he has a long "hIstory of depressed mood" and "obsessIve compulsIve dIsorder, partIcularly checkIng behaVIour" Dr Davis reports that "Martin has been on Anafrll for several years, and stated that at first it helped hIm a great deal Recently It has not been so beneficial, but Martin has only been taking the medicatIon on an intermittent basIs rather than continuously>> Dr DavIs's report does not prOVIde the InformatIon requested In SIngh's letter to her, dated August 6, 1991, referring Blackhall to her for a mandatory medical examinatIon [EXHIBIT 6] After provldlng hIS record of absences over the previous four years, Stngh's letter to Dr DaVIS states . I HARRY WAISGLASS 416 525 78~7 P 02 I > ~. <:0 , '~ ;.' 14 "As of August 6, 1991 Mr Blackhail has been off work the past g 7 working days. The department average for absences is 6 S days per year In September of 1 990 we wrote to Mr Blackhall's family physician and requested his opinion about the likelihood of regLllar ongoing attendance for Martin. We received a certificate from his family physician stating that Mr Blackhall is capable of this under normal conditions, Mr Biackhall's attendance does,'1ot reflect this. We are requesting an Independent assessment of a) the probable date that Mr Blackhall wiil be able to return to work, and b) the likelihood of ongoing regular attendance at work." ~ In spite of ltS persistent and reasonable efforts to obtain a prognOS1S on the medical conditions causlng Blackhall's exceSSlve absentee1sm~ the Employer still did not have this lrnportant information when it made the dectslon to terminate his employment for excess.ve tnnocent absenteetsm We fi nd that a maJor purpose of the Memorandum of Settlement was to resolve the problem of Blatkholl's excessive innocent ot non~culpable absenteeism In exchange for the assurance that hlS absences will not exceed the departmental aver.age [which, in effect, was intended to assure the Employer that he can be rel\ed upon for a reasonable level of regular attendance in the future] the U~ion obtatned his relnstatement The Employer hod nothtng more to rely upon other than that assurance because unti.l thenlt had not been successful 1.n obtmning a medtcal prognosls The Employer had no reason to reinstate him wtthout some assurance that the exceSSive absenteeism problem will be resolved The assurance which was provided In the Settlement was not StApPor'ted by the necessar'Y and suffici.ent medical informatIon, particularly a prognosi.s from on expert psychtatrtst The Employe!' was not provided wlth this lnformati.on at the time of the Settlement, nor at any time prior to his second dismi.ssal, and 'i.t could not have obtained such i.nformatton w1.thout Blackhal1's cooperati.on The prognosis was promised in the Settlement Memorandum, but never delivered The Employer's counsel submlts that the purpose of artlcle 5 (b) of the Memorandum of Settlement [EXHIBIT 2] 15 to provide management with medical information beari.ng on his ability to maintoln regular attendance We agrEE: i It is our judgment that this was their lntent when the part1.es made Blackhall's reinstatement conditional on the grievor agreetng "to provide a medical assessment affecting hls capacity to do his Job" In response to thlS requlrement Blackholl provlded the Employer w\th 0 note from Dr Yemchuk, his 1- .. '~ ::- ..a' , I~ ~ 15 family physici.an, dated April 19, 1993, which simply states "Mr Blackhall is able to perform his duties as a painter and had been able to do so since October, 1991 Mr Blackhall may return to work full time April 27, 1992 " [EXHIBIT 9] ThlS note does not satisfy the requlrements of 5(b) It glves no indlcatlon about his medical conditions and does not provide a prognosls to indlcate whether his medical conditions can be sufficiently controrled by medication and treatment The Employer failed to get thls lnformatlon It appears that Blackhall may have purposely concealed lt It lS more llkely that he could not provide the Employer with positive informatlon on his treatment and prognosls He frequently stopped taking psychlatric treatments as well as the prescribed medlcatlon needed to control hlS OCD symptoms He had stopped maklng the requi.red perlodic V1SltS to hlS psychlotrist from March, 1992 to May, 1994 Artlcle 4 of the Memorandum of Settlement provldes "If i.n any SlX month penod the Grievor falls to meet or surpass the average attendance record of the department, he wlll be sub;ect to dlsmlssal pursuant to the terms of thlS agreement " Umon counsel asks us to interpret the words subject to dlsmissal to mean that the grievor's failure to meet the departmental standard wlll not result ln his automatic di.smlssal In support of thlS subrnlssion he relies on Re Canada Post CorD. and Canadlan Umon of Postal Worker(Parker), (1989) 4 LAC (4th), 2~4 eM G Picher), Re De Havt lland AIrcraft Co. of Canada and C. A. W., toc 112 (1991) 19 LAC (4th), 198 (MR Gorsky) We agree It was clearly not the lntentlon of the parti.es that the grlevor would be ter~inated ,automatically Uni.on counsel submits that the alternative lnterpretation, automatic dlsmlssal, would violate the gnevor's rlght to equal treatment because of hlS handicap, pursuant to sectlon5 (1) of the Human Riahts Code Counsel relles on Re Ontario Nurses' Assoclation and Etoblcoke General Hosoital (1993) 14 o R (3d) 40 (Ont Div Ct ) In this case, the Divislonal Court affirmed the reasonlng of several arbitrators on the application of section 5 (1) of the Code, when lt allowed the union's appllcation for Judicial revi.ew i .. fJ t; .~. " J, ~ 16 of the arb1trator's decision on a dIsmIssal grIevance A clause In the collectlve agreement deemed all employees absent from work for more than 24 \ months due to illness or dlsabillty to be automatlcal1y terminated The grlevor was termlnated pursuant to that clause notwithstandlng that her absence was due to a compensable dlsablllty which WQS therefore a handicap for the purposes of the Ontarlo Human Rl~hts Code The Court found that the arbltrator erred in not flndlng that the applIcat10n of the automatic terminatlon clause to the grIevor ~esulted in e1ther dlrect or constructlVe dlscrimi.natlOn, and also in faillng to consi.der whether the gr1evor could be accommodated within sectlon 17 of the Code The Court accepted the applicant's submlssion that "the deemed termination denied the grievor the right to have her discharge from employment because of her handicap reviewed against the standard of just cause which is a right enjoyed by other employees. This line of reasoning has been generally accepted in several decisiotls by I arbitrators who have applied s. 5(1) of the Human Rights Code and has been affirmed by this court. see Stratford (City) v Canadian Union of Public Employees, Local 197 (1990), 13 L.A.C. (4th) 1 (Ont.) at pp 7-8, affirmed April 19, 1991 (Div Ct. unreported), Glengarry I Industries/ Chromalox Components v United Steelworkers of America, Local 6976 (1989), 3 L.A.C. (4th) 326 (Ont) at pp. 330-32" I "The seminal decision is Glengarry, and at pp.331-32'of that decision Arbitrator Hinnegan has succinctly set out the reasoning upon which the applicant relies as follows: 'There is no question that the grievor was treated no differently from other employees absent for six months due to sickness or accident. Similarly, there is little question that she was treated differently from the majority of the employees in the bargaining unit and that -- the difference in treatment was due to her absence, which, in turn, was due to her compensable injury Those other employees are entitled to the benefit of 'proper cause' for termination, which entitles an employee to test the employer!s application of that standard at arbitration, bringing to bear all of the established arbitral principles and pOlicies applicable to innocent absenteeism in general. 'The griever, on the other hand, was subject to automatic termination due to her innocent absence as the result of her compensable injury AccordinglY,under the automatic , termination provision, she does not have the same right as other employees to challenge her termination within the standard of proper cause.' " We find that the parties did not intend Arti~le 4 of the Memorandum of Settlement to be glven the meaning that absences 1n excess of the departmental .. --.-- . ~; ~ '-, ~ -- 17 average would result in the grIevpr's automatic dIsmIssal We find also that the terms of the Settlement do not remove the grievor's collective bargaining right to grIeve a dismIssal which is pursuant to Article 4 of the Settlement Thus, we accept the submission of UnIon counsel that the grievor is entitled to the same rIghts as any other employee to grIeve the dIsmIssal and to have access to the benefIt of arbItral reVIew against the standard of proper cause .--- for termInatIon It must be noted hqwever that the grIevor'srIght to equal treatment with I other employees, due to a handicap,\lnno way Implies that the grIevor's I record of absenteeism is to be denied or Ignored On the contrary, the I Settlement codIfies his pa~t record when It establtshes Its standard for acceptable absences and provIdes hIm wtth the opportuntty to prove that he can reduce his absences to a level within the standard's limits Thus, In the case of a grIevance on hIS dIsmIssal for non-culpable absences In excess of that standard, the arbItrator must accept as an agreed fact that the grIevor's absences In e~cess of the departmental average are exceSSIve, in the course of applYIng the arbitral doctrInes of exceSSIve Innocent absentee~sm The conduct of the partIes in this dispute affirms that this is their intended interpretation of, Article 4 As shown below, tn the evidence pertainIng to the second dIsmIssal, the grievor was not in fact termInated automattcally Rather, at the end of the six month period, the Employer held two attendance reVlew meetlngs, wIth Umon representation, for the clear purpose of reviewing his record and obtaInIng information on the causes for hts absences ThIs was fol19wed by a mandatory medical examtnation and then another attendance reVIew meeting to discuss Dr Davis's report FInally, a sentor management group revIewed and considered the matter before the termInation was decIded i I Blackhall's rIghts to grIeve his termination and to have it determined against the standard of proper cause are not challenged I I . I r.; ~!' ~ ~ 18 UnIon counsel argues that Article 4 of the Settlement should be - Interpreted In accordance,wi.th the Intentioqs of the partIes to exclude non- culpable absences from the record of the grievor's absences In our Judgment, the clear and unambIguous language of artlcles.3 and 4 of,the Memorandum of Settlement [EXHIBIT 2J requires the InclusIon of all absences, whether legItimate or culpable, except for "workers compensation related absences", '> WhICh are explIcItly excluded We flnd that the Settlement makes no -' d1stlnct1on between culpable and non~culpable absences It excludes workers compensatlOn absences and nothing else The clear words of the Settlement must , be gIven theIr ordmary and plaIn meaning The Union's cla1m to exclude non- culpable absences from Blackhall's record can not be supported by the plam \ and ordi.nary mean1ng of those clear words The Union's claim makes no sense what soVe r It would render the Settlement meamngless, defeatIng the intensions of the parties, which very clearly 1S to brIng wIthIn acceptable limits the grievor's rate of absentee1sm Uni.on counsel ~ubmits also that when negotIatIng the terms of EXHIBIT 2 there was an understandIng between the part1es that Blackhall's anticipated absence for certain scheduled surgery would not be counted for the purpose of the attendance requirements of the Settlement The Employer had honoured that understand1ng when It excluded Blackhall's four-day absence i.n July 1992 from hIS record of absences on compassionate grounds [EXHIBIT 19J However, we fInd that the evidence does not support the UnIon's cla1m that thIS exemptIon would extend to other simllar cIrGumstances of Just1f1able absence Wh1Ch, were proposed to the mediator We fInd on the eV1dence there was ( no meet1ng of mlnds on exemptIons for absences other than for the ant1cIpated m1nor surgery The partIes agreed, spec1fically by sectIons 6 and 10, to make the 'terms of the 'Settlement [ExhIbIt 2J an Order of the Board, and the parties are requi.red to comply wIth those tenms We find the terms are vali.d and enforceable by th1S Board ( ~ ~. ~ I ~s ... ~ '" '.' ( jf-~ ~ 19 "- We have considered carefully the Umon counsel's submisslons that t~e attendance requirements imposed on Blackhall by the terms of the Settlement are i.nvalid on the grounds that they~violate the requlrements of the Human Riahts Code His submissions regardlng the Code are based essent,lally on the following grounds First, the attendance requuements are excessively restrictlve and d1scriminate against the grievor because of h1s handi.cap, 1n that these restrictive conditi.ons were caused by hlS handlcap [hlS mental dlsorder] Second, that the attendance requirements of the Settlement, as such, fail to'satisfy the statutory requirements to accommodate Blackhall's needs due to his handicap And third. in its decision to terminate, the , Employer applled the restricttve attendance conditions 1n a manner that has falled to accommodate adequately hlS dlsability needs, withln the "undue hardship limits" of Sectlon 17 (2) ot the Code On the flrst Union submissi.on- the attendance requIrements ( dIscriminate against the grievor on the basis of his handIcap. On thi.s submisslon, Uni.on counsel relles on Re Ontari.o Human RtahtsCommission and Gaines Pet Food Coro. 16 0 R (~d), 290 (Ont Dtv Ct ) where the Divisional Court allowed an appeal from a decision of the Soard of Inquiry which had dismissed a complalnt of di.scriminati.on on the basis of handicap "Following a six-month absence from her job because of cancer, the complainant had a condition imposed on her continued employment that she maintain for 12 months a level 'Of attendance equal to or better than the average for the hourly rated workers in the workplace. When she failed to meet that requirement, she was dismissed. " {Headnotes} "The respondent discriminated against the complainant on the basis of handicap in imposing the condition since, irrespective of the complainant's considerable history of absenteeism, the proximate if not the primary cause of the restrictive condition was the complainant's absence due to her disability The complainant's termination was directly and SUbstantially linked to the imposition of the discriminatory condition." {Headnotes} I In the Galnes case, the Court found as fact that there was a particular si.x- month absence because of cancer whi.ch was causally connected to the restrtctive attendance conditton, quite apart from the complai.nant's considerable history of absenteei.sm. . . ------ ~ 'It' .;~; 20 The (ourt's finding that the terminat10n was directly and substant1ally llnked to the 1mposit1on of the discrim1natory condition was based on that cr1tical flndlng of fact . "In cross examination, Mr, Gerber. director of ooerations of the resoondent comoany at all relevant times. candidly conceded that but for Ms. Black's absence from November of 1984 to Aoril of 1985. due to cancer. the restrictive condition would not have been imoosed uoon her." "For these reasons, we have concluded that the decision of the Board can not stand. In arriving at this conclusion, we recognize that the scope of review on finding of fact islimitecl to palpable error, whereas the standard on matters of law ;s that of correctness. In this regard, we find that the Board fell into palpable error In finding that Ms. Black's handicap did not form a proximate cause in her termination. To arrive at such a conclusion, the Board either had to ignore the clear and unambiguous evidence of Mr Berger earlier noted, as well as the letter of termination, or it completely misapprehended the purport of the evidence." "A fair reading of the decision creates the distinct impression that the Board (a) felt that Ms. Black deserved to be terminated because of her crior history of absenteeism. most of which was unrelated to her disabilitv: (b) the respondents had not acted in bad faith and (c) the high purposes of the Code would 'not be fulfilled by allowing claims such as those of Ms. Black to succeed. "We are not unsympathetic to these views. Indeed. we are of the ocinion that factors ( a) and (b) - can and should be taken into account in arrivina at the aoorocriate remedy in this case. Nevertheless, we are satisfied for the reasons given that Ms. Black's rights under the Code were technically violated and that she is therefore entitled to redress." [Emphasis is ours] The Gai.nes case makes an important dlst1nctlOn between an h1stOrlcal record of excessive absentee1sm, which is a proper and non-discr1minatory cause for lawful d1sm1ssal, and a particular absence due to a disab1lity or hand1cap, Wh1Ch 1S an invalid cause for dIsmIssal, by v1rtue of the Code's prohibited ground of d1scrim1nat1on based upon a hand1cap The Ga1nes case lS d1stlngu1shed by the presence of a partlculal" sl:x-monthabsence from work due '- toa dIsabtltty [cancer] WhICh was determIned as the proximate cause of the restr1ct1ve condItion In the case before us there is nothing 1n eVIdence to llnk the di.smi.ssal or the attendance requ1rements of the Settlement to any particular absence from work due to a handicap The first d1smissal and the attendance requ1rements are causally linkeq to the grievor's considerable h1story of excessive absentee1sm The eV1dence does not support the cla1m that they are linked also to any particular absence due to a handicap \ . ~. f , -- . ( 21 ( ~ , That his mental dIsorder was known to be the cause of some of Blackhall's pr10r absences 1n his h1storical record of absenteeism IS 'not in questIon But the fact that his obsessive-comp~lslve dIsorder is a likely or known cause of many of the absences in his hIstorical record of exceSSIve innocent absentee1sm is not suff1c1ent, by itself, to logically 1nfer that the mental disorder, and not the histor1cal record of excessiv~ absentee1sm, 1S the cause of h1S f1rst dism1ssal, or, that 1t 1S a cause of the attendance standards requIred for hIS reInstatement and continued employment HIS f1rst dIsmIssal was caused by the historical record of excessive absenteeism WhICh became worse each year folloWIng his f1rst probatIonary year of employment, without aQY slgns (of improvement, In spite of the Employer's pers1stent, patient, andj good-faIth efforts to Improve his attendance There was no identIfIable culminatIna absence in the eVIdence as a cause of that term1nation. \ The Settlement was the result of the legitimate efforts of the Employer and the Union, made in good faith, to solve the grievor's excessive absentee1sm problem, accommodate his handicap, and undo hts dismissal The Union's second subm1SSlon. the attendance requlrements of the , Settlement fall to accommodate sufficiently B~ackhall's handicap wlthln the meanlng of the Human Rlohts Code The Employer's efforts to accommodate Blackhall'~ handicap were IlmIted by h1S 'delays and refusals in response to the Employer's perslstent efforts to obtaIn the necessary information The cla1m that the attendance requ1rements of the Settlement d1d not accommodate h1S handicap 1S not supported by the eVldence Blackhall's handicap did not cause the attendance requirements On the contrary, h1S hand1cap 1S among the problems WhlCh the Settlement seeks to resolve or accommodate The main purpose of the Settlement was to resolve the problems of his dismissal and his h1story of exceSSIve absentee1sm, his Inab11ity to attend work regularly and meet the requirements of h1S job Those problems are clearly and unambigu9us1y identified in the letter WhICh effected hIS first termInation [EXHIBIT 7J ~ . r:; ~ " ,. "- 22 "As a requirement of y6ur continued employment with CPRI because of your frequent absenteeism during th~ past four years, we require you to attend a mandatory medical examination.. The purpose of the mandatory medical examination was to allow us as an employer to evaluate and determine the following: -the likelihood of your ongoing, regular attendance at work; -the level of accommodation. jf any, required for you in discharging your duties as painter" We find that the attendance\requi.rements of the Settlement satIsfy the duty on the Employer to accomodate the grievor's handicap In our Judgment, the Employer made every reasonable effort to accommodate the gr1evor's many and I prolonged absences not only through the Settlement, but also by 1ts act10ns preced1ng and follow1ng the Settlement The Settlement's terms 1n themselves are a reasonable andsufflcient accomnodation to the gnevor's handicap, within the llm1ts of "undue hardsh1p" We find that the gr1evor's needs to be accommodated had been communicated to the Employer through the Umon, notably I by Ms Knott, the ch1ef steward, 1n the course of negotiating the terms for his \ I re1nstatement We must assume the grievor had sat1sfled h1S duty to 1nform the Employer of h1S accommodat1on needs at that time The Umon dell vered Dr Davis's letter to the Employer at Step 2 of the Gr1evance Procedure That letter 1dentifted the OeD problem wlthout indicat1ng a prognosls It was Ms Knott's evidence that she clearly explawed the terms of the Settlement to htm By accepting those terms the UnIon and the grIevor acknowledged an ,acceptable accommodation of the grievor's handlcap The UnIon counsel submi. ts that the Code makes inval td the attendance requtrement of the departmental average",because 1t 1S excesslVely restrictive and fails torconsider the special accommodation needs of the grievor However, If the statute renders invalId the attendance standards established i.n the Settlement as a conditlon for the gr1evor's reinstatement and contlnued employment, then the Settlement as a whole is invaltd, including his reinstatement and continued employment H1S extremely unlikely that either of the parttes desired such results It is reasonable to assume they intended the Settlement to be in complIance WIth the accommodation requirements of the Human Riahts Code The Un10n and the Employer were no doubt aware of the antl- d1scr1m1nation prov1s1ons of Artlcle A of the Collecttve Agreement, as well as the equal rtghts and accommodatIon reqUIrements of the Code l . -, HARRY WAISGLASS 416 525 7837 ~. ~ P 03 . ... 23 We interpret- the Settlement terms on the assumption that the parties had ~ntended the Settlement to be conslstent with the requIrements of both the Code and the Collective Agreement We find that in the ~o.klng of the Settlement the parties agreed that the departmental average establlshed an acceptable standard of absenteeism for the grievor That standard reflects their best judgment, based on the information they had at that time~ that the departmental average adequately accommodates the needs of the grievor's handtcap In its essence, the Settlement balances tbe interests of both the Employer end the gnevor, including the Employer's i.nterest in regular and rel i.able attendance and the grievor's ihterest in continuing employment on a Job where v his handicap has been reasonably aecQT,mcdated Furthern10I'e, the Hyman Rights Code requires the accommodation of hi.s hcmd\cop~ 'it does. not reqUlre the acceptance of h~s inability to attend work. aod to do his job on a regular and reliable basis The duty to accommodate the grtevor's handlcap does not mean that the Emplover 15 compelled to eXcuse exces~ive absenteetsm~ We have no evidence to support the lInion's allegation that the Qccommodatt.:m made by the parties did not constitute a reasonable accornn~dation In effect the Union was arguing that the grievor'~ full-t\me jeb should be changed to something less than full-time There 1S no evidence to support the Union's claim that the grievor's need for a hi.gher level of accyptcble abs.€nces1 than what was estab11shed by the "departmental average~ of the Settlement) could have been accommodated without "undue hardshlp", that 'is, "without undue interf~rence in the operation of the employer's busin~ss cnd wlthcut undue expense to the employer" The one who alleges is the one who be~rs the onus of proof, at the very least to establish a prIma facie case It should be noted, however, that because Slackha11 was one of only two painters employed by the CPRI, it was not a relatively easy matter to have his work performed by others in his absence In one of his letters [EXHIBIT 4J to Blackhall, Singh said, "We are sympathetic to your medlcal problems but at the same time must plan and deliver our worklood requlrements >> - ~ '; '" ~ 24 In elaboratIng the factors relevant to the appra1sal of what const1tutes undue hardship, the maJorIty decision of the Supreme Court of Canada, 1n Syndicat de l'enseianement de Champla1n. et 01. v. Comm1ss1on Scola1re Re~lonale de Chamblv (June 23, 1994, unreported, S C C No 23188) {see below}, at pp 20- 21, observes ! I "These factors are not engraved in stone. They should be applied with common sense and flexibility in the context of the factual situation presented in each case. The situations presented will vary endlessly For example, in a large concern, it may be a relatively easy matter to replace one employee with another In a small operation replacement may place an unreasonable or unacceptable burden on the employer" We have no reason to bel1eve that the part1es d1d not cons1der and apply the relevant factors "wIth common sense and flexibil1ty 1n the context of the factual sltuat1on" Wh1Ch was present at the tIme of the Settlement In any event, we bel1eve they are better qualifted to do so than an arbItrator We have no reason to dIsturb th1S voluntary agreement of the parties SectIon 5 (1) of the Human R1ahts Code provides that "every person has a r1ght to equal treatment with respect to employment wtthout dlscnmination" for certOln specl fled reasons whIch Include "handtcap", and 'sectIon 17 (2) requires \the Employer to )accormJodate the needs of the handIcapped person within the limits of "undue hardshIp" We fInd there 1S noth1ng 1n the Code Wh1Ch compels the Employer to tolerate exceSSIve and cont1nu1ng absenteeIsm over a prolonged pertod, 1n the absence of any reasonable and relIable assurances from the employee, supported by a reli.able medIca.! prognosIs, that the hand1capped employee will reduce his absences to an acceptable level, one WhICh accorrmodates h1S handicap wIthIn the llmtts of undue hardsh1p to the employer The Code does not exempt a d1sabled or handicapped employee, such as \ Blackhall, from his duty to provlde the Employer with reasonably re11able and regular attendance at work , - It remains for us to determine whether the requ1rements of the Code were v10lated in the gr1evor's second d1smlssal, and also, whether this dlsm1ssal sat1sfled the arb1tral standard of proper cause for lnnocent absentee1sm . r "" ~ \.." ~ '"'" € \ 25 \ THE EVENTS CULMINATING IN THE SECOND DISMISSAL In the f1rst six-month period folloWlng his reinstatement, April 27 to October 27, 1992, Mart1n Blackhall was absent for 1 38 days {not1nclud1ng his 4-day I / absence for a mlnor operat1on 1n July}, as compared to the 3 92 days average r For the absence for the other ten employees in the maintenance department next slx-month per1od, October 28, 1992 to Apr1l 27, 1993, the average absence for the other employees had 1ncreased to 5 95 days, while Mart1n Blackhall's \ absence had 1ncreased to a total of 20 97 days, WhlCh compr1sed 2 34 days 1n November, 1 25 days ln December, 2 88 days 1n January, and 14 5 days 1n March [EXHIBIT 19J It 1S noted that hlS absences for Just three of the SlX months, " for November through Jdnuary, amounted to 6 47 days, Wh1Ch lS more than the 5 95 day departmental average over the ent1re six-month per10d Also, hlS absences of 14 5 days 1n March, one month alone, exceeded the pepartmental slx-month average Blackhall testified thathls three-day absence in January was because of the stomach flu "Wh1Ch was gOlng around then at work", and that h1S other absences during the six-month per10d ending April 27, 1993, were caused by h1S depression, pahic attacks, anxiety and other emotlonal condi.tions related to h1S obseSSlve compulsive d1sorder [OCDJ, WhlCh was first diagnosed by Dr James Hartford in 1988, who put h1m on medicatlon His understan~lng of h1S oeD conditlon 1S that 1t was a compuls1on to "check obJects all the time and I couldn't stop, llke 1f I was 100k1ng for a screwdri.ver, I had to keep looki.ng for i.t and I had to fi.nd the one I was 100k1ng for, not a di.fferent one, and I would go into a pan1C and depression if I couldn't find 1t " J . , "The doctor said it was because of a chemical imbalance in my brain, like I would have to keep checking the oil in my car with the dipstick, and t would get upset because I couldn't control it (and I would go into depression I would get pattic attacks, palpitations of the heart, and I would want to run away, escape from life in general. When I was in depression I stayed in the house / with the blinds closed, just Sitting there and didn't want to move or leave the house." . , r-t--: ,-, 26 Blackhall's eVIdence is that the clomipramIne WhICh Dr Hartford prescribed . helped control his OCD symptoms "I returned to work in April, 1 992, with a good attitude. I tried to do better thanl did in the past I went to work whether I felt well or not. I tried J went to work every day and coped. The regular meetings I had with my union steward, Waltraud Knott, and my supervisor, JPO, helped with my problems." He testIfled further that he stopped seeing Dr Hartford In .March, 1992, because "I had trouble gettIng appotntm~nts,he was away, a lot " He sOld that i.n November, 1992, he had concerns about the sIde effects of the m~dIcatIon, dry mouth, loss of memory, feeling twitchy, shaking a lot, and tremors In his hands and feet He acknowledged that he had stopped taking the medIcatIon regularly and that he reduced the dosage on his own, even when hiS famIly phYSIcIan, Dr Yemchuk, 'discouraged him from dOIng so I' Blackhall testified that about November, 1992, he had stopped taking the clomIpramIne for a week, and then Intermtttently for varying periodS He sald / that his wife, a Reglstered Nurse, "doesn't want me to take it because of the sIde effects, my problems wlth memory loss, tremors, and dry mouth" All the tIme he was having problems in hIS relationships at work, he was also havi.ng problems In his marital relationship at home Disagreements, angry dlscusslons and upsets WIth hls wIfe were gOlng on for a long time before the March, 1993, Incident at work, arid are sti 11 ongOing They are conttnuing to '--' receIve marrIage counsellIng ( . The Employer does not allege Martin Blackha1l's absences were culpable It knows now the OeD caused his absences, but It did not know that when he was termInated On the eVidence, there is no reason to belleve otherwIse The Employer had l~formatlon avaIlable in its hIstorIcal medIcal records that he 1 had been diagnosed to have oeD, but nothIng to lInk It to his March, 1993 absences At none c;>f the three attendance reVIew meetings prIor to Blqckhall's dIsmissal dl'd he or his Umon representatives Inform the Employer that hIS OCD caused hiS March, 1993 absences I .. I -- --- I l' , I ,~ ) I I 27 / The Union's counsel submits the 14 5 days of absence 1n March, 1993, are I attrIbuted to the stressful events he experienced at the workplace, which trIggered his anxiety, depression and other symptoms associated VH th his obseSSIve compulsive dIsorder He submits the Employer had failed In its duty to accomodate the grievor's handIcap by removing the stressors in hIS work enVironment and by adJusting ItS attendance requirements to accommodate the - . l absences attributed to 9 handicap which limIts his abIlIty to cope wIth the normal stresses of the workplace He claIms that it 1S unjust for the Employer to dismiss Blackhall for absences exceeding the departmental average when those absences were caused by the stressful events at work whIch had trIggered h1S medIcal symptoms These stressful events refer to a chain of differences between Martin Blac~hall, hi.s peers and managers, WhICh commenced at the begInnIng of his work day on March 2, 1993, when he confronted hi.s superVIsor, Jean-PIerre Desrosiers [JPD],: the maintenance supenntendent, about what Martin perceived to be an unfaIr work assignment JPD testified that Blackhall was waItIng for h1m In hIS offlce when he arrlVed about 8 am on March 2nd He found Blackhall was unhappy because the work assignments he was glVen were not what he had expected He had expected to be assIgned to shop work on the first of the month, pursuant to a monthly rotation arrangement, as had been done for the prevIou~ few months, starting shortly after his reinstatement ThIS rotatIon resulted from dIscussIons between Ms Knott and JPD, to-accomodate Blackhall's I complaInts about not gettIng hIS faIr share of shop work Blackhall testIf1ed he expected the changeover to shop work on March second because the changeover was always on the fIrst of the month I Blackhall refused to accept JPD's explanation that the other paInter needed some extra tIme to finish his shop work He became agitated and raIsed his VOIce JPD testIfIed that Blackhall called hIm a Gestapo because JPD told hIm he could not leave his Job without permIssion, when he said he would go to see the UnIon, the Admi.nistrator, or others Blackhall agreed that he was upset / and angry early on March 2 when he complaIned to JPD about not beIng allowed to work i.n the shop ;- . I r ~ 28 "I was supposed to change at the first of the month. I was given too many work orders outsid~ the shop I had seven which was an unusual number for me, when three orders were good for three weeks of work. 1 raised my voice because I was angry and upset, but he didn't seem too upset and his voice was normal. r put four work orders on his desk and ~e reached over and pinched me on my cheek and asked if I was getting too old to paint. I said I wanted to see the Administrator or the Union and he told me I couldn't without permission. I left feeling upset:' He returned to resume hls palnting in the assigned area, untll hlS break at 9 30 am He then returned to his work at the same site, still feelIng upset Shortly before 11 am he spoke to hls steward, Ms Knott, who came to see him In response to a request from JPD Blackhall told her about the encounter with JPO which agitated hlm She advlsed hlm to see the nurse In his testImony he dld not say that he~mentioned.anythlng to Ms Knott about JPD plnchlng his cheek, and Ms Knott testified that she could not recall if Martln sald anything to her about JPD pinchlng his cheek She testlfied that he told her about hls confrontation with JPD In hlS testlmony, JPD demed touchlng or ptnchtng Blackhall -", After his 11 am meeting wlth Knott, Blackhall went to the nurse's ofhce where he used the telephone to call the pollce who arrived later that day to lnvestlgate his complatnt agaInst JPD The pollce did not charge JPD, but v Blackhall felt sufficiently angry, agitated, and vindicttve to lay a prIvate Informatlon charglng JPD with assault JPD defended the charge In court and was acquttted After hlS call to the pollce, on the morning of March 2, Blackhall asked the nurse for permIssIon to go home because ,he was very upset She checked hIS blood pressure and told hIm It was elevated but not enough to send htm home He testIfIed he went home because he was afraId of gettIng a stroke The next day he stayed home feeltng anXlOUS and depressed He testl fled he felt hIS "OeD comlng on, acting up, I couldn't stop checRing ; tried to relax and calm down" and I took my medication >> He called in slck He felt better after taking his medIcation and returned to work on March 4th I .. ~, , ~ ." 29 ImmedIately followIng the March 2 incIdent SIngh conducted an ipvestIgatIon at the request of the administrator A pre-disciplInary hearing was held on March 8th, WhICh resulted In the decision to reprImand Blackhall for verbally abusIng hIS supervisor The followIng letter of repri.mand, dated March 9, 1993, was prepared and signed by Singh, for delivery to Blackhall, wlth copies to three OPSEU offIcers, Collrln, Watson, and Knott [EXHIBIT 24J "At a disciplinary meeting in Mr Sorin'soffice on March 8, 1993, we discussed your conduct of March 2nd and 8th toward your supervisor, Mr.J P Desrosiers, and co-worker Mrs. Janet Steele. Also, at this meeting, you were afforded union representation. I ' "The conduct toward your supervisor, Mr Desrosiers, on March 2, 1993, resulted in your /) verbal abuse toward him following the assignment of painting work orders. This type of behaviour is in contravention of the Standards of Conduct related to orderly conduct, as well as the breach of the reinstatement condition item 5(a) as stipulated in the Grievance Settlement \ Board Award dated April 21, 1992. "In addition, your threat toward Mrs. Janet Steele, your co-worker in the Maintenance department, to not get involved in this matter is in contravention of the Standards of Conduct related to orderly conduct. Both of the~e violations of the Standards of Conduct will not be tolerated. Therefore, this letter of reprimand is to advise you that failure to immediately improve your conduct toward your Supervisor and co-worker will result in further disciplinary action up to and including dismissal. r "You are also informed that you have the right to' grieve this letter pursuant to Article 27 of the Collective Agreement. A copy of this letter will pe placed on your personnel file." Before noon, on March 9, 1993, SIngh took the reprimand letter to the maintenance department AccompanIed by JPD, Slngh ~ried to dellver lt to Blackhall when he arrived for lunch He refused to accept it and ran away SIngh returned to hlS offlce and resumed hIS effort to delIver the letter after lunch in a chase scene which Union counsel described as reminiscent of the Keystone Cops Hulks and Si.ngh searched for hi.m through the InstitutIon and each time they found him he refused to accept the letter The chase ended Q when Blackhall let it fall to the floor after Hulks tried to put the envelope into eIther his hands or the folds of his coat, dependIng on which verSIon is to be believed Finally, arrangements were made to have hIm come to Singh's offlce, accompani.ed by Ms Knott, at about 3 pm, when he accepted delivery of the letter . .fl. ., 30 The evidence indIcates that Blackhall refused to accept dellvery of the letter because he anticipated and feared its contents The pursuit by Hulks and Singh, and his frustrated efforts to avoid the dlsclpllnary letter, made Blackhall feel angry, greatly agltated, and vindlctlve enough to call the pobce and accuse hIS pursuers with assault In retrospect, his behavlour may now be understood In the context of the knowledge and understandlng, of hi.s mental lllness, which was provided by the post-dIsmIssal eVldence of hlS psychIatrIst {See be low} -' We make no attempt to assess ,any blame on Blackhall for conduct attributable to hlS mental dlsorder, nor on the superVlsor and managers for thetr responses to his blzarre reactIons to thei.r efforts in carrYlngoutthelrusual dutles Hulks and Singh each testified that Blackhall had called the polIce who came to CPRI to Investigate his March 9th assault complaInts agaInst them The pollce declded not to charge them, but Blackhall agaIn was s~ffIcIei1tly ( agltated and vlndictlve to place a private informatlon before a JustIce of the peace, charging them with assault Hulks and SIngh hired lawyers to defend themselves, but the charges were dropped before they were heard In cross examination, Hulks said he vIewed the charges as frIvolous When asked "IS It that you always go 10 pOlrs when deallng with Martin because you belleve he has a tendency to lle?" Hulks replIed "We have had great difficulty believing his allegations because he has a history of making allegations which were proven to be false. There were several previous experiences with him where his allegations could not be substantiated" Blackhall testified he could not recall lf .he returned to hl.s pal.nting on March 9th, after the incidents He said he felt SIck 1'1 had palpitations in the heart and throat, like a panic attack coming on again I couldn't do anything and wanted to get out of the bad situation. I felt incontinent, had to go to the washroom, and then I fot,lnd that I didn't have to. I was very upset. I didn't come to work the next day, March 10th, because I felt depressed. The OeD started again, so I called Dr Yemchuk and saw him three J days later, on March 12th. He advised me to take a few days off, to take my regular'medication as well as other medication he gave me, I can't remember what.it was. I called in sick on the 10th and on the next two or three days." . - --- --~ I - & ... ~. " 39 r The arbitrator reInstated the grIevor without compensation, on the condItIon that she maIntain an attendance record no worse than the departmental average \ .' Our attentIon is drawn to the "standard remedy" in cases of innocent absentee I sm ,. referred to by Arb1 t rator Brandt It 1S thIS "standard remedy" \ WhICh our partIes had applied when they determIned their voluntary Settlement and reinstated our grIevor after hIS first terminatIon, on the conqition that he maIntaIn an attendance record no worse than the depart~ental average I. Comparable Issues of termination for excessive absenteeism are involved in our grievor's second dIsmissal LIke arbItrator Brandt, we have also accepted and considered post-dIsmissal medi.cal evidence adduced on the grievor's prognOSIS We accept the essential principles upon WhICh arbItrator Brandt based her deci.sIon The same central questIon remains for us to answer on the gnevor's second termination for excessive absenteeism, on, "the reasonable likellhood that the employee WIll be able to attend regularly In the future" I It remains for us determi.ne this 1ssue on a very dIfferent set of facts Re Canada Post Corp. and Canadian Umon of Postal Workers (Parker") (1989") 4 LAC (4th), 264 (M G Picher) The grievor in thlS case was dlsmlssed for r absenteeism on the allegation that his absences "VIolated the terms of a memorandum of agreement by WhICh he was preVIously bound" That memorandum addressed the grievor's "serious attendance problem due 1n part to an alcohol problem" by ImpOSIng strict conditions for' hIS contInued employment ThIs-case 1S distIngUIshed by i.ts substantIally dIfferent issues and facts The central Issue is one we do not have in our case where the employer "argues that the t~rms of the memorandum of agreement oust the jurisdiction of a board of arbitration to review the decision of the corporation to review the decision of the corporation to terminate the, grievor's employment for failing to meet its conditions" The arbitrator qUIte correctly i.nterpreted the agreement to conclude that the grlevor had the right to gri.eve and he had the )urIsdlction to deClde the ( I . \ I ~ ~ ~ 40 matter and reverse the employer's deC1Slon On the particular facts of the case, the arbitrator decided ./ "using the normal arbitral principles which relate to the termination of an employee for vJ innocent absenteeism, I can not find in the material before me any basis upon which to concluae that the employer had just cause to terminate the grievor on that basis." Re De Havllland Aircraft Co of Canada. D1V1S10n of BOlng of Canada. and C.A.W. loco 112 (1991) 19 lAC (4th) 198 (M R Gorsky) The parties 1n this case agreed that the grlevor's first discharge resulted \ from her "hav1ng submitted false med1cal certlflcates 1n support of a number of aQsences WhlCh the employer treated as culpable" She was reinstated on the follow1ng conditions that she "part1cipate and successfully ,complete any recommended psychotherapy counselling and furn1sh sat1sfactory proof to the Company on request~ and upon reinstatement, "for a perIod of 'one year" she "must malnta1n acceptable punctuality and regular attendance" Sl,lbsequently, the gr1evor was d1smissed a second t1me for absences 1n excess of the employer's reasonable requlrements The arb1trator points out that he mlght have upheld the discharge except for the fact that he flnds these absences were 'innocent and non-culpable', on eVIdence that indicated the grlevor was - "under severe sO~lal and emot1onal stresses leading to physi.cal symptoms" and that she was recelving psychotherapy Arb1trator Gorsky Cltes wlth approval an earlier decls10n of arb1trator Burkett, 1n Re AmerIcan Standard, Dzvzsion of Wabco-Standard Ltd and Int' I Brotherhood of Pottery & Allied Workers (1977) 14 LAC (2d) where 1t 1S stated at p 146 "The arbitral jurisprudence accepts the existence of a power of justifiable termination when it is established that the involuntary employee shortcomings [are) such as to undermine the employment relationship,and when it is also established that the situation is not likely to improve. The rationale for this dual reqt,jirement flows from the fact that it would not be fai r or just to permit the termination of an employee for reasons which he is powerless to control (i e., mental or physical disorders) if the prognosis is that the oisorder precipitating the termination has been corrected or is likely to disappear within the foreseeable future. Conversely, if it is established that the employee can not adequately perform and the prognosis is that the conditions causing his inability to perform will continue it must be found that he can no longer uphold his end of the employment relationship If such a situation is proven to exist there is no basis on which to alter the result. It is for this reason that the power was given to an ( . - ---- J \ ~ ,> ~ 41 , [Labour Relations Act, R.S.O 1980, arbitrator to modify a penalty under s. 37(8) of the Act c.228, s 44(9)J is limited to the modification of disciplinary as distinct from non-disciplinary penalties. " We accept with approval arbltrator Burkett's views on the arbitral )urlsprudence in cases of innocent absenteeism, and we apply them to the dec1slons we make hereln on the lssues of non-culpable' absentee1sm We accept and apply also arb1trator Gorsky's concluslons " the conditional reinstatement did not clearly disclose an intention to allow the employer to terminate the grievor should her punctuality and attendance record fall below the stipulated level where this record could be attributed to circumstances which are reasonably seen to be beyond her control. "Because of my finding [that the absences were innocent], the union should have an opportunity of presenting medical and other relevant evidence concerning the grievor's prognosis for regular attendance. In fairness to the employer, it should have an opportunity of-having its physician examine the grievor so 'as to be able to arrive at its own, conclusion with respect to the prognosis for regular attendance if the grievor is returned to work. "In the circumstances, if it is subsequently ordered by me or agreed by the parties that the grievor be returned to work it will be without compensation, there being no fault on the employer" Re Pharma Plus Druamart Ltd. and United Food & Commercial Workers (1993)" 33 lAC (4th) 1 (M G Mltchnick) - The emp19yee in this case was dlscharged for continuous absence for three , years due to an injury The arbitrator decided } "that the employer on the evidence before us has failed to discharge the onus upon it to demonstrate that at the time it acted to terminate the grievor's employment relationship, it was unable to accommodate the grievor;s physical handicap without 'undue hardship' The grievor's employment status, we find therefore, is to be restored to the position jt was in as of January 6, 1992, prior to the letter of termination. In view of the-shortcomings dn the grievor's part in more fully communicating her position to the company at that time, at least on the basis of the correspondence that is before us, such reinstatement is, however, to be without any retroactive compensation as to benefits. Neither is the board determining by this direction that the grievor i~ to be returned to 'active' emplqyment at once. Rather, the purpose of the board's direction is to permit the employer to explore directly with the grievor, in conjunction ~ith the union, the application of the employer's duty to accommodate under the Human Rights Code, as discussed above, to the physical disability currently existing for the grievor" The facts 1n our case do not bring us to similar conclusions c~ Re De Havilland Aircraft Co of Canada. Div1sion of Boina of Canada. and U.A.W. , Loc. 112 (1982) 9 LAC (3d) 271 (W B Rayner) L ThlS innocent absenteelsm case dlscusses ~~e issue of onus of proof on the . I '?, ! ", .; 42 prognos1s for regular attendance, an Issue on Wh1Ch we also must dec1de . I "There has been some divergence of opinion betweenarbi~rators as to whether the union or the employer bears the onus of establishing the possibility or unlikelihood of regular attendance in the future. For example, in Re V.A. W, Local 458 and Massey-Ferguson Industries Ltd.(1972), 24 L.A.C. 344 (Shime), the arbitrator concluded that the onus was on the employer However, in Re Niagara Structural Steel (St. Catherines) Ltd. and U.S. W, Local 7012 (1,978), 18 L.A.C (2d) 385 (O'Shea), the arbitrator determined that once the company establishes undue absenteeism in the grievor's past record, the onus shifts to the grievor to show that there is a likelihood of regular and consistent attendance in the future. "In my opinion, the approach adopted by Mr O'Shea in Niagara Structural Steel is preferable in certain circumstances. Where the reason for the absenteeism in the past is one that is likely, to recur in the future, it seems to me logical that the grievor should undertake to establish to the board's satisfaction that there is a real likelihood that the past~ poor performance will not continue in the future. However, if the reason for the poor attendance in the past is not unlikely [sic] to recur, it seems to me that the griever should not have to bear that onus. In many cases of medical treatment, the medical practitioner takes the position that his records are privileged and confidential. It is really the grievor and the union, as his agent, who has the best access to these medical records. In those cases where medical prognosis is important in determining the likelihood of regular attendance, then, it seems that the grievor should bear,the onus as suggested by Mr O'Shea in Niagara Structural Steel. - "In the present case, f must conclude that the grievor has not established the likelihood of regular attendance in the future. The grievor indicates that his illness is progressing and that he is showing improvement However, given the nature of the g'rievor's illness, one can not pLit a great deal of reliance on the grievor'sassessment. There is no other evidence that would support the grievor's suggestion that he has improved sufficiently to return to work and remain at work on a regular basis. Thus, if the matter simply was left at this stage, I would have to support the employer's decision to terminate the grievor" I Arbi.trator Rayner concludes "that the employer 1n the present case cannot '- d1scharge for 1nnocent absenteei.sm while the employee 1S covered by the slckness and aCCIdent and/orextended disabilIty plans" Subsequent arb1trators have not tonslstently followed his dec1s1on on thIS 1ssue In any event, we are not required, in this case, to deCIde whether an employee who 1S receiving extended disability benefits under the terms of the collective agreement cannot be terminated for Innocent absenteeism Rather, the Union has I asked us to exerClse our d1scretlon [see conclusion] to reInstate the grtevor to the status of an e~ployee, only for the purpose of applYIng for Long Term Income Protectlon [l TIP], 1n the event he 1S not fully reil1stated - .. v ,~ ~ 43 Counsel for the Un10n relled also on the followlng cases Re Un1ted AIr Lines & I.A.M. (1993) 33 LAC (4th) 89 (J M McIntyre) OPSEU (El-Batrik") & Mimstry'of Health (Nov 8/90) GSB 1274/88 (R J' Roberts) Re Newfoundland Telephone Co & C~un1cations Workers. Loc 410 (1988) 3 LAC (4th) 349 (0 L Alcock) Re PrOlrte Coal Ltd & OnYSkevltch (1990) 16 LAC (4th) 129 (G L Gerrard) Re McMaster Um vers 1 tv & S. E. 1. U. Loc 532 (1993) 31 LAC 257 (P J Brunner) COUNSEL FOR BOTH EMPLOYER AND UNION rely on OPSEU (Markowski.") & Mlnlstrv of Health (Sept 25/90) GSB 1526/89 (E K ') Both counsel agree that Slone) accord1ng to the jur1sprudence on innocent absentee1sm, In order to jushfy a dlscrarge the employer must establish (a) a record of ex~esslve absentee1sm, I and (b) that the grievor is incapable of regular attendance 1n the future, or that the employer can not reasonably rely upon his regular attendance In the future They agree that arbitrator Slone's third test, a legit1mate 'culmi.nating 1nC1dent' 15 not required by the Jur1sprudence The arb1trator fi.nds "the grievor is obviously a person with serious problems which no compassionate person could ignore. It was frustrating because time and again through the entire saga the grievor demonstrated abysmal judgment and a chronic unwillingness to do those things which might have l avoided the dismissal. " "The grievor has difficulty getting along with supervisors and, to some extent, co-workers Clearly, her relational problems are chronic and tend to \ manifest as health problems." "As for satisfying the employer that some reasonable prognosis exists, the grievor failed miserably She tended throughout to be inordinately preoccupied with her own privacy, when she should have been forthcoming with information that would have given management some real insight into her condition. She misinterpreted attempts to help her as harassment, further polarizing the situation. In an absenteeism situation. the onus is on the employee to explain the absences. The arievor steadfast Iv resisted meetina this onus." [Emphasis is ours] " if the grievor had a proven manageable condition. then the issue of reasonable accommodation could arise. If such were the case, the grievor .ought to have provided us with information It is our view that the Human Riahts Code provisions are there to protect employees whose conditions either do not affect their work or are manaaeable. It is a perversion of those laudable obiectives for an emplovee to refuse meaningful information about his or her condition and vet seek to be accommodated and shielded bv the Code." "In the result, the grievor in this case has not discharged the onus to demonstrate either that her attendance in the future will improve, or that she has a handicap that is manageable and whiCh can be accommodated by the employer" I . ~ '" ;- 44 COUNSEL FOR THE EMPLOYER relies also on the follow1ng two cases DOUGLAS BONNER v. ONTARIO MINISTRY OF HEALTH. INSURANCE SYSTEMS BRANCH 16 \ D/52, [Feb 3/92J Decision of Ontario Board of Inqu1ry (H A Hubbard) C H R R Th1S Board of Inqutry under the Human Rtahts Code fi.nds the employer d1d not d1scr1m1nate against the compla1nant because of hand1cap when 1t released h1m from employment at the end of h1S probationary period, because the weight of the eV1dence lndlcates that he would not have performed sat1sfactorily even had he not been affected by hi.s handIcap In response to the submi.ssi.on that "the onus is on the respondent to prove, on a balance of' probab1lit1es, that to accorrmodate Mr Bonner's needs was lmpossible or would amount to undue hardsh1p", the Board states [at para 80J "Section 1 6 (1 a) of the Code and the case law .dealing with the former s. 1 6 (1 )(b) {now 17 (2)} indicate that a person cannot be judged incapable of performing unless it is found that the 'needs of the person cannot be accommodated without undue hardship' Clearly the 'needs' in question are needs which if met would actuallv enable the person to perform the work, so that it can be said that, but for the failure to provide those needs, the employee would have been able to perform the work. The 'needs' rrust be such that upon their accommodation capacity would occur and it is therefore simply false to assert that the person is presently incapable. The 'needs' in question are not needs which if met might POssiblv enable the employee to do the work at some future time. The 'need' for a deferral of activity to some future time in the hope that circumstances will change'for the better is not a need the accommodation of which would enable the person to perform the work that he or she is demonstrably unable to perform currently It is not, in my opinion, a 'need' within the meaning of that term as contemplated by the Code." And the Board explai.ns further [at para 81J "It seems to me that the true test to determine whether the 'need' sought to be accommodated is a 'need' within the meaning of the requirement under the Code is whether 'but for' th~ failure to accommodate that 'need' the person in question would (not miaht) have been capable' of 'performing or fulfilling the essential duties or requirements attending the exercise of the right [under the Act] , " ~ "[82] I would think that the employer's privilege to refuse to hire a person whose handicap renders him or her incapable of doing the work is not restricted by the Code to persons who can never do the job because of the handicap, but that it extends to persons whose handicap prevents them from doing the Job from time to time for periods of substantial duratIon In my opinion, a person who by reason of handicap cannot work competently on a regular basis is incapable of$atisfying the requirements of the position regardless of how he or she might perform when unaffected by that handicap. And as was said in Chamberlin v 599273 Ontario Ltd.(1989) 11 C.H R.R. 0/110 at 0/116 [para 36] . ~ '" ., I " ::- 4S 'The Code does not ignore the fact that certain handicaps can negatively impact on an individual's ability to perform certain types of work. If a person is unable to adequately perform a particular job because of a handicap, the Code does not entitle that person to employment in the job What the Code does do is ensure that persons with a handicap are not discriminated against with respect to jobs they are capable of performing.' " \ "[83] The suggestion seems to be that.. a person who is unable to perform that work because of a handicap as defined by the Code can neither be denied employment nor fired if that inability can be accommodated in the sense (apparently) of being tolerated. That premise seems plainly wrong. Surely that which must be accommodated if reasonably possible is the handicap, not the inability It is the employee who must be reasonably assisted to satisfy the requirements of the work, rather than the work that must be modified to satisfy the requirements of the employee. If the employer can without undue hardship adjust the conditions of the workplace satisfactorily while subject to the effects of that handicap, then that must be done. But there is no requirement imposed on employers either to hire or to retain employees who, because of handicap, are in fact incapable. of doing the work, simply because they have the resources to tolerate actually deficient work." ( We ~ccept and apply the Board's reason1ng to the lssues decided here1n, regardlng the Employer's statutory duty to accommodate the grlevor's handicap \ J Board of School Trustees. School D1strict No.23 (Central OkanaaanJ et al J. RENAUD et al, Ontari.o Human Rights Commiss1on et al , Interveners, S C C No 21682 (Sept 24/92) 95 D L R (4th), 577-95 Counsel for the Employer relies on this Supreme Court of Canada decision, regard1ng. the duty of the ccm1plaInant [pp 592-3J, 1n the judgment del1vered by Sopinka J "The search for accommodation is a multi-party inquiry Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommooation is a duty to facilitate the search for such an accommodation. Thus, in determining whether the duty of accommodation has been fulfilled, the conduct of the complainant must be considered. "This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the rr complainant may be in a position to make suggestions; the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. 'When the employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. \ ~ . - -~ -- ~ - " i I 46 The other aspect of this duty is the obligation to accept reasonable accommodation. This is the ) aspect referred to-by Mcintyre J in O'Malley The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged" We have considered and applied the princ1ples of the above nqted dec1s1on to the dec1sIons made herein r THE SUBMISSIONS ON THE SECOND DISMISSAL The subm1ss1ons of both counsel concur on the jurIsprudence uphold1ng the pr1nclple that In order to just1fy a discharge for lnnocent absenteeism the employer must establish (a) a record of excessive absentee1sm, and (b) that the gnevor IS Incapable of regular attendance 1n the future, or that the employer can not reasonably rely upon his regular attendance In the future It must be noted, however, that 1nherent with1n this well-established iurisorudence on Innocent absenteeism 1S a reauirement that the emolover accommodate lea1t1mate medlcallv-caused absences. balanced aaa1n~t the emDlover's lea1t1mate needs for rel1able attendance. The ]ur1sprudence prohibits an employer from dIsmissing an employee for non-culpable absences unless the employer can satisfy the obove-noted tests Both counsel concur -also that Article A of the collect1ve agreement prohib1ts "d1scrim1natton practised by reason of handicap", and that the employee's mental dlsorder is a handi.cap, as defined 1n the Human R1ahts Code. And they concur on the requ1rements of the Code in respect to the employee's handi.cap, both for equal treatment [s 5 (l)J and fDr accommodat1on [s 17(2)J Their views d1 ffer on the app1i.cabi 1i ty of the law to the facts of th1s case Umon counsel submits the grievor's absentee1sm, after his re1nstatement, 1S not excessive because the absences caused by his mental d1sorder must be - excluded from h1S absentee1sm record He ~lalms this to be requIred by the Code For the reasons glven below, we accept the Employer's submi.ssion that th1S 1S not an accommodat1on requ1red by the Code The proposed exclus10n of handi.cap-caused absences from theofflclol absenteeIsm record satIsfles a need I \ . I HARRY WAISGLASS 416 525 7837 P.93 ~ '~" ) 47 to tolerate or excuse the grtevor's obsenteeism~ but that \5 not the type of need which must be accommodated by see 17(2) of the Cc~e Also, for the J 1.~~~OI"i~ gi.v~I' C1boll~, W~ ~Sli'c~ .nUI UII:: SUb;h~:!>;l:.iUlt uf (ltIjJluyt:!! \~ l..vu,,~~l Llil.AL the proper lnterpretation of the Memorandum of Settlement re'::jUlres the 'i.nc:lLJ~l on of nnn-ClJlf')nhl ~ nhfi~nff'~, cmr.l th(Jt thi"~ rf'1l} 1 r~mf'r"lt 1 n no wny J violates the Code We find that the terms of the Settlement, in themselves, ore a reasonable accorrmodati.on of the gne\lor's need for help 1n address1ng the absenteetsm problem caused by his disab11 i. ty, wi. trnn the undue hardship requi.rements of the Code Coincide,'ltly, they are also consistent with the JW'l::il:.wuuent.e on lnnOc.ent abse:nteelsm , I [A] The Union submlts that the second d1smlssal vlolates s. 5 (1) of the Cede 1n that it dtSCrlrnt~otcd lmQropcr~ o901nst the qc~vor's handi~ap. Counsel for the Union relies again on the Gai.nes case {Cited above} He argues that - 61cckllCl'l.'I.'s March, lSl'::l~ absences wel~e due 'to his Oll) sympt:oms, Clid because hts handicap cause.d those absences, therefore, the hl!lndlCap Wf..1S a cause of h'!.s J dismissal Counsel argues that the employer h~d the Qrievol"1s medi.cal hi.story in its records, and this showed he had bee~ diagnosed on previ~us occaslons as , l'UVLII\:l uL;:,c~':'Lvt:~I..VI"jJ~ll'::>~vt: JL~VI Jt:! l.lt: l..ur:l..h"J-.::.::> r "VIlI L11~::> Ull.lL l!!1:: EIlI~lvY~1 should have known that hl.s MClt'ch, 1993 absence~were caused by hi.s handlcap ~- For reasons given below, we accept the Employer's subn ssion that the dismissal did not constitute discrimination on the pr~htbtted ground of his hondicap~ ln viclatton of s 5 (1) of the Code ~ [B] Union counsel 5ubmlts also that the second termlnat~on vlo1ates the Qccommodat1on reaU1rements of s. 17(2~ of the Humor Riahts Code. en tw~ 9roundsf Flrst" the Un10n alleges that-th@ att~ndanc~ requtrements [based on the \. '-- department-:::ll average] are excesslve and do not adequately accomrnodate the / - pw,tlLul(H' n~~<.l~ uf th~ ~rtev(Jr.'~ hunc.lLLup W~ udur'~::>::i~<J th l::> l:S::>U~ wh!::r1 we !dav~ OLII' "eaSOliS fOl' fi. :,di l"ig t hClt the Sett 1 eme"t tel'ms clI.e QIi O~CommOdClt tOI' I wInch compl1~s wIth the Code s requirement to accornmodate the grievor's ; -.--- ~ - -/ '" ) ? 48 handicap w1th1n the limits of "undue hardsh1p" {See above} We shall address the l~sue once again, below, where we find that a higher level of acceptable absences does. not accommodate the handIcap by enablIng the grievor to do his job It excuses or tolerates the inabllity to meet the reasonable attendance requirements of the job In cases of exceSSlve lnnocent absentee1sm such as thIS the needs to be accommodated are the needs for help In controll1ng the problems causing the absenteeism, help In meetIng the responsib1lities of the /1 Job In other words, what must be accommodated is the handlcao, not the 1nabilitv to attend work and_do the iobon a regular basis Secondly, the UnIon alleges that the Emoloyer's faIlure to make the necessary - . andprooer accommodations for the grievor's handicao triaaered the svrnotomatlc react1onsof hlS handicap. Wh1Ch caused the March. 1993 absences The Umon- claims that the managerlal actlons 1n that month {part1cularly the changes made by hlS supervisor to h1S ant1c1pated work ass1gnments and h1S pursu1t by managers to dellVer a discipl inary letter} mam fest the Employer's failure to accommodate the grlevor's mental d1sorder, Wh1C~ had precipitated the emotional d1srupt1ons symptomat1c of h1S mental disorder The Employer has a-dIfferent view of the March incidents We accept the employer'ssubmlssion that his behaviour 1n those 1ncidents manifested h1S 1nabllity to handle the normal 1nter-personal differences which are common to most workplaces The eV1dence on his conduct in March supports the legit1macy of the Employer's claims that it could not have made any further reasonable - accoomodatlons w1thi.n the hm1ts of undue hardship, in addltion to those lt had already made, WhlCh would have had any signif1cant effect on the rel1ablllty of his future attendance The eVldence lndlcates the grlevor lS unable to cope effect1vely with the normal stresses of both superior and pe~r- group relatlonsh1ps 1n the workplace Counsel for the Umon and the Employer d1ffer also in their vi.ews of the evi.dence regardlngL the grievor's prognosi.s Further, thei.r submIssions differ slgni.hcantlyon lssues regarding allegations that the Employer violated the . \ '.' ~ " 49 Code by dlscrimlnatlng against the gri~vor and by fall1ng to accommodate h1S handlcap There are also differences on issues of onus [lJ the onus on the gr1evor to provide the Employer w1th informatlon regard1ng the causes of h1S absences and the reliabil1ty -of h1S future attendance, [2J the onus on the grlevor to prov1de the Employer with facts about h1S hand1cap which are needed to facil1tate the search for accommodation, and to cooperate w1th the Employer 1n that search, and the question of onus of proof on the lssue of prognos1s All of these 1ssues are cons1dered and declded herein ( CONCLUSIONS [AJ On the Un10n subm1ssion that the ~econd dlsmlssal violates s. 5 (1) of the Code bv discrim1nat1ng imorooerlv aaalnst the ar1evor's hand1cao. In support of th1S subm1ssion, Unlon counsel claims the Employ~r should have known that Blackhall's March, 1993 absences were caused by his hand1cap because the Employer had a record of the grievor's historlcal med1cal problems which showed he had been diagnosed as hav1ng obsessive-compulsive disorder on prevlous occaS1ons We do not accept the Union's reasonlng on this issue We accept as fact that the Employer had some histor1cal informat1on about the OCD ln hlS medical. h1story, 1nc1udlng some references to oeD in doctors' notes related to earlier absences, and also in Dr Davls's mdndatorymed1cal report [EXHIBIT 8J All this 1nformation related to the per10d before ,his flrst d1sl1nssal However, it 1S improper to 1nfer from that fact that the Employer knew that the March, 1993 absences were caused by his OeD The Employer had no 10glcal reason to causally connect anyone of the several medical problem 1n hlS hlstor1cal record to the March absences There was no way in which the Employer could have determined that the OeD caused the March_absences without Slackhall's cooperation in prov1d1ng it wlth the necessary information, e1ther d1rectly or by way of his Unlon or hlS doctors The onus was on Slackhall to explaln his absences to h1S Employer and to establish that the med1cal causes of his absenteeism have been {and wlll be} controlled sufficlently In order to ! assure a reasonable level of reliable attendance in the future He failed to . ----- --- - ----- HARRY WAISGLASS 416 525 7837 P 04 ( '" \., ;J, ~ 50 do iO Prior to th~ dL€mi~~al the ~mployer had rcco\vcd no cxplanotton Tor hl S 14 ~ clrlYS nf n!1:=;pnrp in Mnrrh nther than the blood pressure pt'oblem - The grlevor's exceSSlve absenteeism, without any rellable lndicat or of ~1l1J.1I.VVl;::IIil;::lIl, wu~ thl;:: ~ll;::ur ly-e~Luull:sht:u t.:uu:st:! rut t ~ ~ <.ll:::om L ~~CA 1 N!.) ~p~u fi t or (/Jiml nnti n[jnh<;enrF was establIshed as couse Because the Emplover old not \ .... leCll't, U11tll lCll1g aflej' lhe dismi.ssal lhal OeD c..'uu:st:J rr1()~t uf th::, tl!:,.:::;t:m.t:;::, Li! the six-mor.th rev1,(~W pe-'iod, the handicap-caused r-1arch absences could not have been a cause for the dismissal Nevertheless, in cur v'lew, even i.f the: Employer had known that the March absences were caused by hlS OeD. his second dismissal would not have vlolated the Code. The eVldence is that the part1es were aware of his OeD and that the Employ~r had ~been llnsuccessful HI i. ts efforts to obtcnn a medi.cal prognosis when the Settlement terms were determined Nevertheless, the Employer agreed tc) accommodate hi.s medical problems by rei.nstQt~t')g hi.m on specific conditi.ons for his continued employnlent, by 9lv1n9 him another chance to prove he coutd reduce hi.s absenteeism to acceptable limtts The Employer dld so only dfter lt had falled l.n its serlOUS efforts to obtain Q rnedtcal prognOSlS whi.ch the gr1evor was either unwllling or unable to pro~i.de Thf' ~~ttlpmpnt gnve Blackhall the opportunity to assure the Employer he could control his OeD symptoms suffi.ci.ently to reduce hIS Qjnlerlt:€ei.~l'!'J to 01' l~\ \ '-IJlldl,1 r ?..v..l [.Iw ilrllW III!'"lol ld Ilvt"'1 '.I!Jr:-~ W t L1/1.lI.n ~lIdl UII U::>~_lI"lI/lLl:' l II Lilt:: absence of Q postttvemedical prognosis the Employer would have had no reason to reinstate him To accept the limon's argument that the Employer cannot now d1srrnss him for absences ln excess of the departmental avet'a~e~ on the ~round that they are caused by hlS OeD, would produce an absurd result When th~ EmQioyer dismissed the ar1evor the second t1me. after reVleWlna and eO't..~i.det'i.I"'1 the .:ldevol"' 5 e^~ L:mc:LiOI1 or why' h'i~ ~b5elh,_ej"~Le hl..~~ e^..:ee~~ aCPQ~tmcntQl Qvcr99c~ It Qu,tc ~roperl~ lnrerre~ ~rom the QrlCVOr'G record 0- ~xcess"v~ abselil~ei.Sti1. as well as rt'om his n1edi.cal hisLOt'Y, LlilAl Lhe ClI'lew')I' lS not cGDobte ot regular attendahce in the tuture "- ) ~ ;-. -ii' '..r ! ~ ;- ( 51 Our f1nd1ngs on this issue are cons1stent w1th the reasoning of the Divls10nal Court in the Gaines case {c1ted dbove} where a dist1nct1on 1S made between an historical record of ,excessive innocent absenteeism, which 1S a proper and non-discr1minatory cause for lawful dismissal, and a part1cular absence due to a d1sabll1ty or handicap, Wh1Ch 1S an 1nvalid cause of d1smlssal [BJ Union counsel SUbm1tS two add1tional ar~uments to support the cla1m that the second termination violates the accommodat10n reaU1rements of s. 17(2Jof the Human R1ahts Code. The Union claims the grievor has the follow1ng spec1flc "needs" to have h1S handicap accommodated [lJ the exclusion of all OeD-caused absences from his off1c1al attendance record, [2J restra~nts on managers 1n order to avoId triggering hlS emotlonal c!isturbances, [3J m1mmum Isupervls10n, and [4J l requ1rements that "his superV1sors deal with hlm in a non-stressful, non- confrontat1onal way Wh1Ch affords him more personal respect on the Job" We agree w1th the Employer's subm1ssions that 1t is not wlth1n its power to prevent or control Blackhall's emotional reactions to the normal stresses and stra1ns of inter-personal relatlons in the workplace It lS not with1n the Employer's power to shelter h1m from h1S own emotlonal reactions to the normal I facts of 11fe 1n the workplace The Employer can not be held respons1ble for h1S emotional responses The Employer submits there 1S an onus on Blackhall to control the symptoms of h1S d1sorder suff1C1ently,to enable him to satisfy the requirements of h1S job The Employer SUbm1tS also that the "needs" claimed for the grievor are not "needs" Wh1Ch the Employer can or must accommodate "- We agree that the Unton's claimed "ne~ds" for accommodat1ons are not "needs" w1th1n the meaning of s 17(2) the Code They are not needs which, if ( sat1sfledby the Employer, would result promptly in mak1ng the gr1evor capable of "performing or fulfill1ng, the essential dutles and requirements" of the Job; part1cularly for reliable and regular attendance The accommodations -" required by the Code for the grievor's hand1cap are those Wh1Ch w111 help him control and reduce the causes of h1S absenteelsm, and consequently help h1m satisfy the dut1es and responsibilities of hlS job ...I I ( .' '2 ;1' ,r ~ ~ ) 52 - Thus, the U_nlon's cla1ms for accorrmodat1onsfor the grlevor's handlcap are 1n r~ality cla1ms for svmpathet1c tolerance and acceptance of h1S inabil1ty to attend work regularly, of hlS inabillty to control suff1c1ently the problems WhlCh cause h1S absentee1sm, of his emot1onal reactions to the normal stresses of the workplace, and of other effects of hlS mental dlsorder It 1S ObV10US that the gr-1evor was unable to meet the attendance recju1rement of the Settlement because o~ his disability, and not because of anything the Employer d1d, or falled to do to accommodate h1S hand1cap The Union's proposed needs to accommodate are not needs which, 1f they had been met, would actually have enabled the grievor to be present at work and to perform h1S Job For the purposes of the Code "It seems to me that the true test to determine whether the 'need' sought to be accommodated is a 'need' within the meaning of the requirement under the Code is whether 'but for' the failure to accommodate that 'need' the person in question would (not miaht) have been capable of 'performing or fulfilling the essential duties or n;quirements attending the exercise of the right [under the Act] , " [Bonner ,op C1t , para 81J Blackhall ' s job is to pCllnt If he lS absent, he lS not pa1nt1ng Clearly, the need to accommodate more 9f his absences 1S not one Wh1Ch, 1f accommodated, would actually enable h1m to perform h1S work Blackhall's oeD 1mpacts on/his " abillty to attend work on a regular bas1s H1S histor1cal absenteeism record confirms h1S inability to attend work regularly His 1nab1lity to attend work 1S not a need which must be accommodated under the Code It 1S not a neecj Wh1Ch i.f met would actually enable the grievor to do his Job The Umon's proposal to exclude the absences caused by hlS hand1cap from h1S record of absentee1sm, in our Judgment, serves only to" excuse them It does noth1ng to make the grlevor capable of performlng the essentlCll dutles andrequlrements of hlS Job, particularly h1S. duty to attend work on a regular basis " .a person who by reason of handicap cannot ~ork competently on a regula'r basis is incapable of satisfying the requirements of the position regardless of how he or she might perform when unaffected by that handicap." [Bonner, op ci t , pa ra 82J ( "If a person is unable to adequately perform a particular job because of a handicap, the Code does not entitle the person to employment in the job." [Bonner. op. cit ,para 82, citing Chamberlin v 599273 Ontano Ltd. (1989) 11 C.H.R.R. Gill 0 at 0/116 {para. 36}] i .. ~-- HARRY WAISCiiLASS 41\6 525 7837 P 05 .~ '. " ;;; , !; j 53 Tnc corollary of this intel"J9rc~Qhol'\ o~ the Code, i.s that where. ,Q~' cmplov~H!" rlllp tf'l h,.;/hpl" hf1I')[hrnp. iC"~ l,nnh1p 'l'"f'lnttpno:Lwnrk r'....Olllnrl)1 r.:1i ho~ n_rprnrrl of freauent, recurrent or prolonoed absences. the emolover has the rl<::lht to I dismiss the employee in accordance with the princioles and practlces establ isheQ.....,ln the cwbi tt'al i!.H:lsQrude~~ on lnnoc~nt absenteei.sm We agt'ee also with the following citation and flnd It applicable to thIS case of excessive and non-culpable absentee\sm "Surely that which must be accommodated If reasonably possible is the halidic.ap, not the inllhiiity ir-i:;o th~ ~mpl0.Y~r. who mll:viT bf. rE':I'l~oMhty ;as~i~Teci to ";:iti;.;fy"ihe rf:qlJir':':mf.:nT~ of thf: work, rather than the work that must be modified to satisfy the requirements of th~ employee. If the employer can without undue hardship adjust the conditions of the workplace s;'ltisfactorHy " while subject to the effects of that handicap, then that must be done MJhere j.3...D~.il4.!f.emeO-t imoosedon empl~ers either to hire or to retain emoloyees who. be<;.,ause of h~ndicap. are in fact incaoable of doing the work. slmoly because thev have the resources to tolerate actually deficieqt ~"ork." [Bonner case, op C1.t , para 83J {Emphosis 'is ol.trs} I The Union alleges that the fa1.1ure of the monagers to accommodate his handlcap trtggered rts O([) symptoms and hts March aosences Unton counsel argues that the superVlsor should have accommodated the grievor's OeD by uvoidlng changes 'l.'n his work assi.gnments and by sLlpervisi.ng him less closelY) and that the - rnurlCAg~r':s :should hOVe oc:u.mlludutt:d hu; OeD by Llvold Lng th\: ~ufltC.H,;t:::i W L th h rn wh\ch provoked the emot\onat resporses Qssociated wlth hlS mental disorder He .:l~'IM ml'I~~:Jtl\\~"l !h~ul~ h~w; ~.:.l\U"u,,'i...:.~ted W\ Lh Ol~e\{I"I.,ll tl"ll.ou~h t~~ I\'''lott, or other Union offlcers The evidence indlcates. however, that the gr\evor~s dl~rupt1Ve behaviour in March, 1993, te:;ted the llml.t~ of the1r tolerc.nce No doubt within rhe Code's ltmit.. nr IIflrlllFo h("l,..rI~hlr t1!"lrl F'vpn hpynnl'i thnt 1n the i.nterests of organi.zational effeC'tivf'nf>~S, FmnlnYrr~ (1pnFrC'Jl1y LAJ()I~lrJ il1(.lk~ reasonable efforts to mod1 fy the workplace stress~s of supenor-subQrchnate rpll1tlnn",h1!i:O>, v:i1thnuf n~r~:C;Mrlly imn~dino /11(]n(:jo~riill rp.~non~ihilit.1F.fi an0 ef'fect':_vel'e~:!> fo\" the ~1.1I'e\'y\~io!, cmd dtI6ed:\ol' of the: wo!'l< fOI~e'~ The r ) pressure to produce, huwever', l S 0 n<.H'HiC; 1 S tr.~ s StW l!Ior't:: ur' l~~s. on ~v~r'yon!:: In every workplace The griever can not expect to be exempted from such ncrmol -stresses except perhaps In Q sheltered workshop We find no mer1t 1n the Union's allegoti.on that the grievor's absences were cttriblltable to the [mployerfs rai.lurp. rn rnml'lly with thn rC:f.ltJiri'm(:nt~ of ';i'r 1~ (?) of the (ode ~ - IIARR'j' WA IOGL.AOO ....lG C~C 70:57 r OG ~ 2 \~I '" ~ ';: 54 St::l.llurl 17 of tht::! Hurnun Rigbts J~~, c.ul b fur' th~ c.l~cortlmodat'Lon of "the needs of ~ho PQr~on)~, cuch that help tne pe~con meet the attendance and othe~ "essentlol duties or requirements" of the Job It does not excuse or exempt handicapped pc~sons from an employer~s legitimate requirements for regular and rel1able attendance "It l.S the employee who must be reasonably CiSslsted to SiClt15:fy the reqLI1 remel'lti, of the work, rather them th~ worlr thCltrm,l~t bQ modl fled to satisfy the requ1.rements of the employee '~ The Jurlsprudence on innocent absenteeism is consistent with the requlrements of see 5(1) of the Code~ ln that the iurisprudence must apply equally to handicapped employees who (.:r't UCL6!rarIUuuLI::!J ~un~.ut.HlL Lu ~ 17, U!oi l'l wuulJ ul:JlJly tu tmy uthl:H' employee v Wr ~ee the Union's proposals to exempt the gr1cvor fr~~ thc attendance and ~UP~I"I,o'l.'!:~jY /"o!:'-it.,1./lel'lIl!::j'/l:. ur L1n!: ),.,1.., u~ l!::ffuJ L~ Lu :'UL"l:.ry' Li,C 1'L:yu~lenl\.:rIL:, ur the grievor) and not as accommodations for hlS hand1cap They do not help hlm snlv~ th~ ~r()hlf:m of hiS f:Xi,PSS1Vf: ()hSf:ntPP1::.m \ In our opinion, in cases such as this, involving termination for Innocent absenteeism where we have 1n lssue the requirements of see 17 (2) of the Code, three lmportant questions must be addressed first, what could and !::hould tho grievor do, and what 1C he doing, to control the probloms CQUClng h b ub~t::rltr=c L:::;rn, :::;~t.:unc.lly, whut cun the emplcy(:r do to assist the gn.evor HI \';uflLl'ul1Lfl~ Un:: fJr'ubh:m::-i VV~l1t.;h W'~ t.,(.lI..l::iLrlfg hL:i ub~~rlt~t:L~rrl, um.l thLr.t.n:i~ t..~rl the employer reasonably Qceanmodate those needs for assistance, to 1mprove hi.s attendance, wlthin the Code's undue hardship limits I We flnd there 15 an onus upon the grievor to provlde the Employer wIth the nccc!;;!;ary 'informati.on on the problcnlG cauGtng h1G obGcntcc1.~m, on what he i~ doi.ng to control the problems~ and on what the Employer could do, 1f anyth1.ng, to help him control the problems causthg hts absenteeism The grlevor fat led to do any of these things, in sp1te of the Employer's repeated requests OiJr :l\Jrlgm~nt l~ th(]t th~ Fmplnyp.t' tp.rmin(Jt.p.d R1Q('khal1'~ ~mploymp.nt for proper C<.lU;:'I:~ tn w.,t:orc.l(,ll1t..~ Wt th thf: ~~tubll::ih~c.l r..r' i t~r' LU for" c)\r..t:::.:s L V~ lrJrtUr..~f\t uU~t:rILt::i;: l::>ru Till:: t:VI.UC:::rlLt: L lc:::w 1:" t::::.luull.:shc:::::. u n::\..unJ ur t::7-t.t:::s:s lvt:: j \. ~- .~ ,i~ ., .l' ~ ,,\i '" " 55 absentee1sm, both before and after h1S reInstatement In the Memorandum of Settlement the partles had agreed on the departmental average as the standard for acceptable absenteeIsm Wh1Ch the gr1evor must not exceed HIS absenteeIsm 1n the slx-month reV1ew per10d was def1nltely excessIve by that standard The - terms of the Se"ttlement, Wh1Ch are an Order of the Board, were a clear warmng that he must reduce his absences to this standard We are satisfied that the Employer qU1te properly came to the concluslOn from h1S record of exceSSlVe absenteeIsm that the grievo~ is incapable of regular attendance In the future The Employer's right to came to this conclusion 1S supported by B Laskln Q C [as he then was] 1n Re U A W , Local 112 and De HaVI I land Aircraft of Canada Ltd (1964), 14 lAC 290 at p 294, {as Cl ted 1n Prall;'le Coalop Cl t } "Nonetheless, the company may be entltled to act against an employee who by reason of recurring lnterm1ttent illness 1S lncapal:>le of doing' his work, that 1S, he 1S 1n truth 1nc~pable of regular attendance at any foreseeable time because of chron1c disab111ty " When the Employer terminated him, it had no 1nformation from Blackhall on the causes for the March, 1993 absences other than his cla1m of high blood pressure It properly concluded that his h1gh blood pressure condition was not a problem causIng his h1gh absence rate It had no reason to believe he was making any efforts to br1ng the problems cauSIng h1S absentee1sm under control In the absence of 1nformahon Wh1Ch it could not obtain w1thout the grlevor's approval and cooperation, it had no gooa reason and no leg1t1mate means for determInIng that the problems causIng his exceSSlve absenteeIsm would be resolved The Employer had nothIng to assure hIS regular attendance in the future other than the commitment the gr1evor made in the Memorandum of Settlement, whIch was proven to be unrel1able POST-DISMISSAL EVIDENCE The Employer had no evidence to indIcate that the absences 1n the period under review were caused by his OCD until some t1me after these arbitratIon proceedings had commenced, when Union counsel delivered to the Employer . ~ I~ !-. ~~ "- ~ 56 counsel a letter, dated June 20, 1994, from Dr Hartford, the psych1atr1st who had resumed treat1na Blackhall in Mav 1994 after a lona hiatus Slnce March, 1992. In human terms, th1S dIff1cult case compels compaSSIon Not to have sympathy for the gr1evor 1S 1mposs1ble However, human sympathy 1S Insuff1c1ent to Just1fy the exercise of d1scretion It 1S necessary also to have a reasonable basis for belIeVIng that the med1cal causes for hIS absences can and WIll be controlled to justify the exercise of our dIscretIon to re1nstateh1m In employment Blackhall's fa1lures to prov1de the Employer with the requ1red medical ) 1nformat1on 1n a timely manner'were self-Infl1cted 1nJuries Wh1Ch manifest his inability, at salient times, to act responsIbly and to exerC1se good Judgment 1n h1S own best 1nterests These shortcomings are attr1butable to hIS mental disorder In the circumstances, the Board dec1ded 1t was prepared to hear and cons1der post-dlsm1ssal evi.dence and arguments on the 1ssue of whether we should exercise our discret10h to re~lnstate Blackhall w1thout retroactIve compensation Thus, Union counsel, at the hearings on June 22, 1994, subm1tted Into evidence the following two letters, both of Wh1Ch are dated June 20, 1994, Wh1Ch were addressed to hIm by-Dr James A Hartford [EXHIBIT 25J, and by Dr B R l We make special note of the tim1ng of these letters, and Yemchuk [EXHIBIT 26J the fact that knowledge of the Informati.on conta1ned In them were not " available to the Employer when It decided to term1nate Blackhall's employment The post-termtl1atlon medtcal eVIdence IS permItted only Insofar as It IS relevant to th~ Issue of whether the gr1evor can be expected to provide reasonable and rehable attendance In the future Dr Yemchuk's letter of June 20, 1994 [EXHIBIT 26J states "This letter is in response to your request for medical information on Mr BlackhaJl, and specifically regarding his time off work in March of 1993 I have been Mr Blackhall's family doctor since February of 1984 Mr Blackhall was seen in my office on March 12, , 993, at which time he had been off work since March 10, 1993, due to work related difficulties. \ \ . ~ '!::., ~J' ," "" C' .' 57 Mr Blackhall was upset and depressed regarding the situation at work, but not actively suicidal His blood pressure was 160/100 mm Hg (mildly elevated) Mr BlackhaU was advised to continue on his medication clomipramine (Anafranil) 50mg at night, stay off work, and follow up in one week. "When I initially saw Mr Blackhall on March 12, 1993, my reasons for advising him to stay off work included my concerns regarding his agitated state and feelings of depression. At the time, my concern was that his mental and emotional state would deteriorate unless he was temporarily removed from the source of his stress (Le. \1.!ork) On March 12, 1993, Mr Blackhall also commented on his ongoing marital dysfunction which he was also finding - j stressful. I feel that the marital stress was also contributing to his agitated state and depres\$ion. \ "On March 19, 1993, Mr Blackhall was subjectively feeling worse. He was complaining of generalized muscle tension, his legs felt jumpy, and he was experiencing panic attacks. His blood pressure was now 170/110 mm Hg Mr Blackhall was started on Bromazepam 30mg as needed. Mr Blackhall remained off work and a follow-up visit was arranged for March 26, 1993 ~ , "Mr Blackhall's elevated blood pressure on March 19, 1994, [stet] was of some concern in that a diastolic reading of 11 Omm Hg would be classified in the moderate elevated range. I felt that Mr Blackhall's agitated state was contributing to his blood pressure and that some more time off work would be helpful in bringing this reading down, as in fact occurred. "The Bromazepam caused MrBlackhaU to feel angry and mean, so it was discontinued as well as the Anafranil. As the panic attacks were still occurring, Mr Blackhall was started on Imipramine (Tofranil) at 75mg a day and Lorazepam 1 Omg twice a day Mr Blackhall's blood pressure on March 26, 1993, was 160/95 mm Hg. A return to work date was set for March 29, 1993 "In regard to Mr Blackhall's medication, Bromazepam and Lorazepam are classified as anxiolytic agents and are used for agitation/anxiety Clomipramine and Imipramine are classified as anti-depressants and used for depression. Feelings of irritability are a recognized side-effect of Bromazepam "Mr Blackhall continued off work from March 19 to the 26 on my advice, and on March 26 our mutual agreement was to have Mr Blackhall return to work on March 29, 1993 Mr Blackhall's symptoms of anxiety, agitation and depression were continuing on March 26, 1993, and thus I started Mr Blackhall on Imipramine and Lorazepam I had some concerns regarding Mr Blackhall returning to work and still being symptomatic, but, once again, our mutual decision was to try a return ,to work on March 29, 1993 "On April 1, 1993, Mr Blackhall reported that the combination of Imipramine and Atavin (Lorazepam) was having a good effect, in that the panic attacks were less, and he was feeling more calm and relaxed. " .. ~_..__.- "- ~ .~ ~ -.i,.. r 58 Dr Yemchuk did not test1fy H1S letter does not prov1de a prognos1s, but It does provide informatlon on Blackhall's medical condit1on in March, 1993, 1nformat1on which the Employer did not have pr10r to his terminat10n Dr Hartford's letter of June 20, 1994 [EXHIBIT 25J states "I am responding to your letter dated May 19, 1994 in which you ask further questions related to Mr Blackhall. "Martin Blackhall has been a patient of mine since 1988 when he first c.onsulted mefor treatment of depression. At that time I also di'agnosed an obsessive-compulsive disorder which is . , a form of anxiety disorder He,was treated with Clomipramine which has antidepressant and antiobsessional effects. He responded quite favourably to that medication. However it caused side effects, such as shakiness and dry mouth and he has not been able to ta~e it comfortably for' about two years. He recently tried Prozac which is also a useful antiobsessional medication but he was not able to tolerate even one dose. However he is currently taking Clomipramine again at a reduced dose for his obsessive-compulsive disorder with, the addition of Haloperidol in small doses twice a day for anxiety and tension. "Obsessive-compulsive disorder is a type of anxiety disorder which is most likely biologically based and is diagnosed in the presence of specific symptoms. These include obsessions which are persistent unwanted thoughts often of a disturbing nature which the person has no conscious control over and can cause significant anxiety The person may also suffer from unwanted urges, known as compulsions, to perform seemingly illogical behaviours. If these behaviours or rituals are not carried out, paralyzing anxiety can result. "Mr. Blackhall has these svmotoms. These obsessions and compulsions can be initiated by' depression or almost any form of osycholoaical stress. These symotoms can be so severe as to make any activity impossible and their persistence can furtheraagravate deoression resultino in a circularlY reinforcino effect. {EMPHASIS IS OURS} "When such symptoms become full-blown they can cause additional physical effects such as increased heart rate and high blood pressure. Sustained high blood pressure can then produce damage to the circulatory system with the possibility of damage to the heart and kidney as well \ \.. as an increased chance of heart attack or stroke. Mr Blackhall has a previous history of a heart attack which puts him at increased risk. "During March 1993 Mr BlackhaU was absent from work for two weeks following what he describes as an assault at his workplace. He reported that during that periOd he was unable to work due to panic attacks (which are an extreme form of anxiety attack), depression and elevated blood pressure. His family doctor at the time recorded blood pressures of from 1 60/95 to 175/110 The measurement of blood pressure is recorded as systolic pressure over diastolic pressure. The second figure refers to diastolic pressure and such pressures greater than 90 or 95 are considered serious enough for treatment. That treatment may consist of methods to reduce stress such as avoiding stressful situations (such as work) or medication. His family doctor advised him to stay off work for that period to reduce stress, I . - - ... .,.~~t:.~-I-~~__ '.:~5~1l~~'g;}.'>\:' ~t:::~';';"I"'" ":j,; ~~:O""f~"X';'.::~r~~'-:~ ~ , ~ ~'. -..:-:' '" ~- .... ~. \. '. I C' S9 "Even if Mr Blackhall had not had elevated blood pres~ure I would have advised him to stay off work for that period due to his'symptoms of anxiety and depression for which stress reduction would be a minimum necessary medical treatment. "Mr. Blackhall has had a lona-standina chronic condition for which there is no cure. However there is symptomatic treatment which can reduce his discomfort and he is takina that at present. Should he discontinue this treatment it is likelY his symptoms will return with their former severity." {EMPHASIS IS OURS} We ~ubsequently accepted also as eVldence the followlng supplementary letter dated August 25, 1994 which Mr lokan received from Dr Hartford "I am responding to your letter dated August 19, 1 994 in which you ask for a supplementary report dealing with Martin Blackhall's prognosis. ) ( "I have seen Mr Blackhall for 13 appointments since May 1994 Between June 1988 and March 1992 he attended appointments with me on a monthly basis. He has always been interested.in treatments which might provide/him with relief from the symptoms of his pbsessive compulsive disorder This diagnosis was not specifically used in his case untill saw him in June 1988 At that time he was started on an antidepressant, clomipramine, which had had good results for obsessive compulsive symptoms. He responded well to this medication despite some usual side effects which were transient. 0 "It is likely that he will be able to maintain control of his symptoms of anxiety, depression and obsessive compulsive disorder if he remains Or) this medication treatment [ "I have read Mr Blackhall's employment position specification sheets and in my opinion his job as a painter is well suited to his condition because under normal circumstances there should not be great stress in performing his duties. "It should be important if he returns to work that his supervi?ors deal with him in a non- stressful, non-confrontational way which affords him reasonable personal respect while on the job. "In conclusion I believe that if interpersonal stresses on the job can be minimized by his supervisors and he continues to follow the recommended medical treatment for his psychiatric condition there is little reason to expect any problems with attendance and jol;) performance in the future. If you require further information please do not hesitate to contact me." Dr Hartford's testimony explained and elaborated on the two letters, / partlcularly on questlons of prognosis, bearing upon the rehab1llty of Blackhall's medication and psychiatnc treatment in controlllng hlS symptoms, on the rellabillty of Blackhall h1mself to remain on the treatment, and on Dr Hartford's prescriptions for accommodating Blackhall w1th a stress-free, non-confrontat1onal interpersonal environment at) the workplace, such as would ,- . -- - -- " ..d' i: ; ~ 60 be necessary to assure Blackhall's reliable and regular future attendance at work He was cross examined on his oral eV1dence as well as on his letters Dr Hartford testlfied that he diagnosed Blackhall's obseSSlve C0IllpUlS1Ve dtsorder [OeD] with reference to the "Diagnostlc and Stat1stlcal Manual of the Amer1can Psych1atric Assoclation, Revised 3rd Edition" [DSM-3R] whereIn It 1S descrlbed as follows "The essential feature of this disorder is recurrent obsessions or compulsions sufficiently severe to cause marked distress, be time-consuming, or significantly interfere with the person's normal routine, occupational functioning, or usual social activities or relationships with others." "Obsessions are persistent ideas, thoughts; impulses, or images that are experienced, at least initially, as intrusive and senseless. The person attempts to ignore or suppress such thoughts or'impulses or to neutralize them with some other thought or action. The person recognizes that the obsessions are the product of his or her own mind, and are not imposed from without. The most common obsessions are repetitive thought .of violence (e.g. killihg one's child), contamination (e.g. becoming infected by shaking hands), and doubt (repeatedly wondering whether one has performed.some act, such as having hurt someone in a traffic accident). Compulsions are repetitive, purposeful, and intentional behaviors that are performed in response to an obsession, according to certain rules, or in a stereotyped fashion The behavior is designed to neutralize or prevent discomfort or some dreaded event or situation. However, either the activity is not connected in a realistic way with what it is designed to neutralize or prevent, or it is clearly excessive. The act is performed with a sense of subjective , compulsion that is coupled with a desire to resist the compulsion (at least initially) The person recognizes that his or her behavior 'is excessive or unreasonable. and does not derive pleasure from carrying out the activity, although it provides a releas~ of tension. The most common compulsions involve hand-washing, counting, checking and touching. r "When a person attempts to resist a comp~lsion, there is a sense of mounting tension that can be immediately relieved by yielding to the compulsion. In the course of the illness, after repeated failure at resisting the compulsions, the person may give in to them and no longer experience a desire to resist them. "Associated f~atures. Depression and anxiety are common. Frequently there is phobic avoidance of situations that involve the con(ent of the obsessions, such as dirt and contamination. " The following is one of the diagnostic criteria identif1ed in the DSM-3R "The obsess1ons or compulsions caus~ marked, d1stress, are t1me-consuming (take more than an hour a day), or sianiflcantly lnterfere with the person's normal routine. occupat1onal functtoning, or usual soc1al activitles or relat1onsh1ps wlth others. {Emphasis lS ours} , j . . " -~ ,'!..... ~j: Ii? - ~ (2 61 Dr Hartford explained that the oeD 1S usually associated with a deficiency of "seratonin", a chemical in the brain which functlons as a neuro-transmltter, relaying mes~ages between nerve cens He explained how the clomipram1ne tends to increase the "seratonin" levels, whi.ch funct10n as an inhibiting neuro-transmltter ln malntalnlng a proper balance between the "excitedtory" I and "lnh1b'itory" types of cells in the brain, "to break the feed-back loop" If too low, the brain is prone to over-excitement, llke "dnv1ng down h1n wlthout brakes" r Dr Hartford test1hed that Blackhall's symptoms were reduced by the ) clomipramlDe, that he was getting reasonable symptom relief in the two year per1od, 1990-91, but not without Increasing side-effects He was not able to \ take the medication comfortably and he d1d not use It regularly through that period He" did not see Blackhall from March, 1992 to May, 1994 He learned from Black~all that he had stopped mak1ng appo1ntments due to a m1sunderstanding which led Blackhall to believe that Dr Hartford was not 1nterested in seeing hIm any more because he was too much trouble Blackhall told him that during th1S hiatus in his treatment he went off the medication from t1me to time because he had trouble taking the medIcation without a lot of side effects, that he had stopped taking the medication for at least a week in November, 1992, and sporadically after that Dr Hartford testified that ln h1S opIn1on thIS would make Insufficient the med1cat1on level in his blood, which would likely affect h1S res1stance to stress "Up unt1l now I am not sure he 1S aware how important 1t is to comply wlth the medication With hIm as WIth most pat1ents I emphasize this message don't stop takIng the med1cat1on when you feel better That's often the problem ~ Dr Hartford explained that persons w1th oeD are more vulnerable to stress and have more diffIculty in copIng with the stresses of interpersonal relations Like a defIcient white blood count which makes one more vulnerable to InfectIons, a defICIency in "seratonin" makes a person more prone to stress The psych1atrlc d1sorder IS suffiCiently stressful In Itself, without the added stress; of the enVIronment oeD patients are better able to cope with the stress when they are able to boost theIr seratonin levels WIth medIcation ( "- . ~ w '" 'j, :0 62 Dr Hartford had~treated Blackhal1 between 1988 and 1992 and was aware of his. absences from work dunng that perIod He testifIed that the OeD was apparent \ at that time, and was a factor among otherscwh1ch affected his work "There were other stresses in his life then, but his ab1lity to cope was reduced by h1S OCD " Dr Hartford has been treating .Blackhall on a weekly baSIS Slnce May, 1994, whereas he had attended app01ntments previously on a monthly baSIS He offered two reasons for the greater frequency One reason was the need to monitor and control hlS med1cat1on ~ "He was not on good symptom control when he returned to me for treatment I started him on clomipramine regularly again and had to see him frequently enough to adjust the dosage. I also had to monitor him on the Haldol, a tranquilizing medication, which was useq in small dosage to help his anxiety" Another reason for the greater frequency was the current level of streSs 1n h1S Ilfe, particularly the anx1ety and tenSIons produced by these h~arings, his uncertam future, stresses assocIated w1th concerns for h1S son's job, and his long-standing marItal problems Dr Hartford test1f1ed that he 1S currently treat1ng ~lackhall w1th counselllng as well as medication, showing him a different perspective on life, what he could do to Improve h1S sltuat10n He finds Blackhall now appears more aware of the need for h1S med~cat1on and treatment and that he attends appointments regularly now c- "As far as I know he takes his medication as prescribed without missing a dose. He has had good symptom relief in the past few months, but he is not without symptoms. He still has some symptoms." Dr Hartford explained that the fifth paragraph of hIS letter dated August 25, 1994, {c1ted above} was based on Blackhall's feelIngs that h1S superv1sors had dealt w1th hIm in aconfrontat1onal way, hIS perceptions that they had not taken him seriously or treated hIm WIth respect, WhICh caused. h1m anXIety He explaIned ~lackhall felt the Employer's attempt to deliver'the disc1plInary letter was confrontatIonal and suggested it would help Blackhall control hIS symptoms if the Employer would serve its letters to him through the Union . ----------.- 'f.: ,~~ ,i . r. ,~ "" ,/ 63 r' I Dr Hartford testified that people w1th OeD have firm expectations of th1ngs "- happening with regularity They have difficulty cop1ng wIth changes in routlnes He expected Blackhall would get very upset if he perceived his regular schedule was not being followed, and would ImagIne all klnds of reasons why it was changed and they would be very real to h1m After the changes made by his supervisor on March 1st he would have a great deal of d1fficulty trust1ng his superv1sor to-keep the agreement and that dlstrust m1ght contlnue Disruptions In expectat10ns llke that worsen Blackhall's symptoms even when he remaIns on his medicatlon Dr Hartford observed "trust does not come in p1lls" and that Blackhall would be more res1llE;nt in dealing w1th Interpersonal problems at work "If he had good rel1ef from h1S symptoms" WhICh hIS medIcatIon should provlde He test1fied that "he does not have that level at present" and he was cons1der1ng 1ncreasing his medication, but was restraIned by concerns for greater side-effects He sa1d he may wish to try one of the new medicat10ns coming on the market for possible reductions in ) both symptoms and side-effects Dr Hartford's op1nion 1S that Blackhall's Job 1S not stressful, that "paintlng is Ideal for h1m so far\as he does not have to in1;eract a lot with people, he 1S given clear-cut and well-defined jobs to perform, with the least poss1ble supervisIon He feels confronted by h1S supervisor checklng on him" He sai.d the less he 1S sup~rv1sed, the less anxiety he will have, and~the less llkellhood ofmlsunderstand1ngs wlth his superV1sor Dr Hartford bel1eves that the chances of problems with his superV1sors are reduced 1f h1S anx1ety I is kept under control by his medIcation Dr Hartford expeGts Blackhall's attendance would improve following h1S treatment, but he offers no guarantees "In a perfect world everyth1ng should be fl ne If the~medication w1ll continue to reduce his symptoms, if he continues d1l1gently on the prescribed medIcatIon and psychiatric treatme(lt, ~ w1thout 1nterruptions, and 1f the interpersonal stresses of his work enVIronment can be mi!1im1Zed, I would expect better attendance Dr Hartford also made very clear that Blackhall's future attendance at work could be e1ther better or worse, depend1ng largely on Blackhall himself, on whether or . ) ~. lj !J -, a 64 not he is 1n an agitated state, or feelIng depressed or anXIOUS, and on whether or not he fa1thfully takes h1S prescr1bed dosages of medicat1ons, and whether he keeps his appointments with Dr Hartford on a regular baS1S In cross exam1nat10n Dr Hartford indicated that 1f he had been treatIng Blackhall dUring the h1atus period of March 1992 to May 1994 he could have helped him get relief from the slde-effects of his med1cation, 1nclud1ng the Haldol WhICh could have caused his restlessness, by trying reduced dosages and \ different medicat10ns HIS evi.dence 1ndlcated that med1cation and treatment would have helped reduce Blackhall's symptoms, and consequently m\ght have i.mproved h1S attendance, but there 1S noth1ng 1n h1S eV1dence to suggest that / fns attendance dUring- that penod would have been 1mproved. to an acceptable level, or that the substantlal psychologi.cal stresses and emot1onal reactIons Wh1Ch he had experienced in h1S 1nterpersonal relatlons at work and at 'home, could have been prevented or slgn1ficantly reduced Dr Hartford indicated 1t was not 1mposs1ble for Blackhall to attain the departmental average attendance rate i.f he stays on h1S med1cat1on and 1f he avo1ds confrontations there 1S a 75% success rate for patients on the medIcatIon, In that only 25% of the patients don't respond to it And 75% of J the 75% are able to reduce their OCD symptoms substantially enough to function adequately He concluded that w1th a substanti.al reduction of h1S symptoms by med1cat1on, "1t would then depend on how well he handles the other 1nc1dental \ stresses 1~ his life, and that 1S hard to predIct" In cross exam1nat1on Dr Hartford acknowledged there are d1ff1cultles in Blackhall's relat1onsh1ps w1th both hi.s WIfe and h1S supervisor and that ) "another blow UP 1S always poss1ble even whi.le he IS on the medication". Dr Hartford IndIcated that although there has been a substant1al reduct10n In h1S symptoms on the right amount of med1c~ti.on, he still exh1b1ts anx1ety, and there are no defIn1te assurances that he will not again stop tak1ng the med i cab on Dr Hartford's opInion, however, IS that th1S probably would not happen so long as Blackhall ~ontlnues to see Dr Hartford, on at least a monthly basis ~ . ~.;, ~. ~ " ", ".. f ., r e,. ~ 65 In cross examlnatlon, Dr Hartford sa1d, that in his Judgment Blackhall's -" d1sorder can st1ll be triggered by 'stress, such as may arise in normal interpersonal conflicts at the workplace, even while he faithfully cont1nues ,on h1S medication and treatments Simi larly, his disorder can b~ tnggered {by a change 1n his work routines, even wh1le he rema1ns on his med1cat1on ****************** We flnd that during the penod from March, 1992 to May, 1994, Blackhall faded to comply w1tp the medical treatment orig1nally prescribed by Dr Hartford for the control of h1S OeD symptoms He terminated hls psychiatric treatment dur1ng that period Those treatments were ~ot resumed untl1 after the second or thtrd heanng day in this dispute Blackhall expla1ned that he had mlsunderstood why he had dlffi.culties In getting an appointment with Dr Hartford, so he had stopped trying Also, contrary to the lnstructions of h1S doctors, he interm1ttently stopped taklng the med1cation prescribed for the control h1S OeD, and, at times, he reduced the required dosage H1S explanation for th1S was that he had problems with the side effects Based upon the eVldence of the grievor himself, Dr Hartford, his psychiatrist, Dr Yemchuk, his family phys1cian; [EXHIBIT 26J, and his h1storical record of absenteeism, we conclude that Blackhall can not be rel1ed upon to comply w1th the,medtcal lnstructlons required for the control of hiS OeD symptoms, and thereby to control the problems caus1ng h1S absentee1sm We are uncerta1n whether the grlevor's 1nab1l1ty to attend work regularly was because of, or 1n stnte of, h1S fai lure to comply w1th the instruct10ns of his j psych1atnst We b~lieve both are true to a large degree But even 1f had complied m0re di 1 igently with his psychiatrist' sinstructtc:ms in the h1atus penod, Dr Hartford's eV1dence causes us to doubt seriously that the problems caus1ng h1S absenteeism would have been controlled sufficiently to produce the d~slred result of a substant1al reduction in hlS absenteelsm The psychiatr1st test1fied that the gr1evor's obsessive-compuls1ve d1sorder 1S chronic and incurable, that hlS symptoms could be controlled substant1011y, , but not completely, by regular psychi.atric treatment and medication, and not . , HARRY WAISGLASS 416 525 7837 p.ett \l; "...'2, :~ ,!; , " !,; @ -< 66 without some discomforting side-effects Notwithstand\ng the positive i.mprovements resulting from h1.s !OOr-e regular course of controlled medication and weekly psychiatric treatment that the grievor commenced in May, 1994 [and whIch we hope will be continued], we conclude from the eVIdence that the gri.evor i.s not at thlS time capable of controlling the causes of hIS absentee\sm suffiCIently to assure an acceptable level ofr~gular and relIable attendance for the future We fInd no reason to conclude then: the proqnosls would have been any more I favorable at the tlme of hlS dlsmlssql than it lS now (' On the ~ontrary, the f~~~~ tn~t~~t~ his prQQnQS1S WQ.S ~v~n 1~~~ fQVQvr~pl~ ~efot~ b~ r~~urn~q to regulal" treatment by Dr Hartford during 'the coul"se of thc:~e PI"occcdin,gs, , Dt' HQr'LrOt-d lesL 1. fled Lhl.:lL B1Qckhall '5 5ym~:'L~ns Ci)t1 sL i.ll be 'Lt'i.gget'ed by ~tre~~c~ whtch ort~c in normol tntcrpcr~onal (onfltct~ nt the wor~plncc (J~ well as by minor changes in hlS work routi.nes, even whlle he would faithfully continue w\th his med\cal\on aM~ lreatments DI' Hcirtfol"d I"ecomme"ded chc"1ges \ ;'1"1 hi <; wf'trl< pnv; I"()t'lm~nt ;1"1 th'" W{(y hp ic; trpr.tprl hy n;<; ~lJ~Pl"if'tl"t; nnrl rn- workers, in order to reduce the risks or the emoti.olial dIsruptIons wh'tch cause his absences He wrote, ""1 t. should .be tmportom: if 'he t'etUrr"IS to work that l11s supervlsors deal v'ilth hi.m in Ci non-stressful, non-confrot'1tahcnol way which affords him reasonable personal respect whlle on the job" BiQcj.-hall does not tru~t or like h~~ ~upervi5cr Dr Hartford t",=cf.:\l'l1l"Ilen.-1e::l tr,C1t hl~ ~lIperv1.'ii.on be reduced to a mi.ni.mum, to r~dU':.:e nsks of rni.:sunder~tand1.ng~ and \confllcts ,whi.ch produce the emotlonal reacti.ons s)mptomatlc of h\s mental disorder ( Dr. Hartford rec~nended changes to the grievor's Job for the purpose of reducing the stresses which would produce his symptomatlc reactions H1.S I"~ccmmendat'ions ore simflar to the Union's proposed ;Jccorrrnodat (ins whi'i"'hJ 05 we determ~ned above, are not accommodations requ1.red by the Code In our ~ judgment, howeve~, the normal stt'esses of lnterpersonal relatlonshws lnthe workp Lace can not be changed reas-onao Ly and S,l.IttlclentLy, wahl n the l:um ts ot . - ,:::., , . ",r~;,J l :-; ,'"' MARRY WAlSGLA~i~ ~.... ........~._--~._. '--- .- -..-.-:-- -....... -...----.... - _. -..~....__. ~16 525 78:07 P04 ~ ~ i~ " (;,.' : fiI, 67 ilundue hardShip", to enable Blackhall to control the emohonal reacti.ons symptomatic of hi.s mental disorder, and to assure [as the immediate result of reduced workplaces stress] his regular and reliable attendance at work f9r the future For tHe reaSOl"ls. given herei.nl, we have come to the conclusi.on thQt the gnevor ~ is not capable of controll1ng the med'tcal cous~s for his absent.:e1.sm suff1ciently to assure regular and ~eliable future attendance in order to justify his reinstatement In hls job In the event that we might come to this conclusion, Union counsel asked. us to I 'exercise our dtscretionary powers in order to reinstate the grievor to the ) status of an employee, for the llmited purpose pf applying for Long Term Income Protectlon [LTIP] benefits We have already said that one can not help but have great sympathy and I compassi.on for the grieVer, but that does not suffice to justL fy the exercise I of dtscretion Justice ml.lstbe merd fur for all the partles in a dispute An f arbltrator"s discretlonOt'Y powers must be exercised Judici.ously os wen os judictally, based on the duty to assure that the interests of justic{> are served We must have reasonable grounds upon which to Justify the exercise of our dtSCret10n To grant the gr\evor the requested status of ~n employee, I even for the limited purpose of restorlng h1S right to apply for the LTIP bene~lts, we must have some Indtcations of particular mer~t for the grtevor to be weighed agotnst the [ costs and consequences for the Employer It is lmproper for an ~djudlcator to lmpose his compasslon on others who will bear the costs and ccnseque~ces of his compassion, without a comprehens\ve knowledge and understanding of the J ..J lmplications of his decision for those who will bear them The Un10n did not provide us with satisfactory reasons and evidence to support its request B~, no means does the grievor hove an exemplary reccl4d of long and men tor-io1,1s ser\l1.ce to support a di.scretionary finding in his favour His servlce started in July 1986, and only for the flrst SlX months of hts employment was his --- /' 'J ,",' -= ~~, ..!J I, ~ ~ 68 --- attendance acceptable In every year after his probat1onary period h1S absenteeIsm was excessive, except for the six-month per10d followIng hIS reInstatement And even in that penod, h1S absence rate would have been greater than the departmental average if a four-day absence for a m1nor operati.on had not been excused on compass1onate grounds We believe the LTIP issue is one Wh1Ch might have been resolved more - ~ effectIvely by the part1es themselves before the matter was brought to ad) ud 1 cati. on The gr1evor had the right to apply for lTIP before he was dism1ssed The parties had the opportunIty to deal w1th thIS 1ssue 1n the gr1evance procedure, where the employee's r1ght to apply for LTIP could have been considered as an alternative to pursuing the termination gr1evance to ad)udlcation Now that we have deClded that the Employer d1d not act Improperly when It terminated his employment, we are unable to f1nd )ustand reasonable grounds on which to compel the Employer to reInstate the gnevor, even for thIS lImited purpose, part1cularly in the absence of eVIdence of a record of long and mentOrlOUS service for the gri.evor which could bewe1ghed and balanced aga1nst evidence on the costs and consequences for the Employer For the reasons given herein the grievance is dismIssed In conclusion, we wIsh to express our appr~c1at1on for the very professIonal, competent and cooperative manner in which counsel for the Umon and the I Employer presented the1r respectIve cases DATED AT HAMILTON, ONTARIO, THIS 21st DAY OF November, 1994 ~~ -'-~~ HARRY J ~I GLASS, C~IR \ ___!._~!.~~~~~~:I!.!.~~~~~.A~~~~~~d" J CARRUTHERS, MEMBER -J ~ ~ Ui/~ -------------------------- M O'TOOLE, MEMBER ') / I -- . j r" ., ~ ...~ \ " d ~ .~/ DISSENT I have read the draft reasons of the Vice-Chair With respect, I dissent. The grievor, Martin Blackball, is a 54 year old painter with some significant medical problems. According to the evidence, he has "moderately severe" obsessive compulsive disorder, a form of anxiety disorder Also, he has a history of associated alcohol abuse, which according to the evidence before us he has managed to put behind him. He suffers from depression. Finally, he has a learning disability which interferes with his reading, writing and ability to remember information. According to an assessment done in 1985 (exlnbit 31), he could write only at the grade 6 level, a long way short of the grade 9 level which defines functional literacy For all that, he is a skilled painter, and no one questioned his ability to fulfill the requirements of his job except in the area of attendance. He does have a history of attendance problems with his employer, the Child Parent Resource Institute (formerly Children's Psychiatric Resource Institute). The tragedy of this case, and of the Vice-Chair's award, is that he seems to have come such a long way towards overcoming his problems. I agree that Martin Blackball's attendance record prior to his first dismissal in December, 1991 was not acceptable. However, I disagree that the employer's treatment of him from that time on complied with the requirements of the Human Rights Code Blackball missed significant amounts of time from work in 1991 and the years preceding. In 1991, according to Mahendra Singh, the employer attempted to identify wbether Blackball's medical conditions would prevent regular ongoing attendance at CPRI. Mr Singh wrote to Blackball on June 25, 1991, at a time when Blackball was off work, asking for Ita current medical certificate advising of the likelihood of regular, ongoing attendance at work in futurelt (exhibit 4). On July 12 he wrote again, requesting that Blackball submit to an independent medical examination by either Dr Robert Ckraus or Dr Felicity Davis of Victoria Hospital (exhibit 5). Once the employer had identified a need for more medical information about Martin Blackball's prognosis, Blackball agreed to a mandatory medical with Dr Felicity Davis of the Victoria Hospital. That medical was originally scheduled for September 27, 1991, but was postponed when Blackball was admitted to the Richardson Medical Centre in Texas, for a four week program to help him cope with his problems, on the referral of his family doctor The medical with Dr Davis was held on October 31, 1991. At this point, a dispute over release of Dr Davis' report began. According to the evidence, Blackball becam,e upset when he learned that CPRI had released their medical files on him to Dr Davis, without obtaining his prior consent. Rightly or wrongly, Blackball perceived this as a threat to his privacy Dr Davis prepared a report, which was filed as Exhibit 8, but did not wish to release it to the employer without Blackball's consent. At this point, Blackball was advised by Waltraud Knott, Union Steward and herself a psychometrist at CPRI (i.e., a person with a Masters "1 Degree, rather than a doctorate in psychology) that he should agree to the release of the report only once it had been sent to his own psychiatrist, Dr James Hartford, and Dr j \ \ ;r~,.:..'if"!~~: \ '. (\ r~ r-~ " , , ~ " ,.;---, t! - 2 - Hartford had had a chance to go through it with him and explain it to him. Ms. Knott, who gave evidence at the hearing, testified that this was accepted clinical practice, and that it was all the more justifie4 in Martin Blackball's case because of his difficulty in understanding complex written material. It was this position, taken by Blackball on Ms. Knott's advice, that led directly to him being dismissed for the first time in December, 1991. After the first dismissal, Blackball did obtain a copy of the Davis report sometime after December 16, 1991. A copy was provided i to the employer with Blackball's consent, in January, 1992. Unfortunately Dr Davis' report, while it did confirm the diagnosis of obsessive compulsive disorder and depression, contains little or nothiIlg in the way of ~ prognosis. However, there is no evidence that the employer ever indicated or expressed any dissatisfaction with the Davis report to Blackball or to the Union. In fact, Ms. Knott testified that she had not even seen it as of the time of Blackball's reinstatement, and as far as she was aware, the employer was fully satisfied with it. The next significant contact between the parties was in April, 1992, when the Memorandum of Settlement was negotiated with the help of a mediator, at the pre-hearing of Blackball's grievance arising out of the first dismissal. Blackball was not present, but Ms. Knott and Barry Collrin, a Grievance Officer employed by OPSEU, kept in touch with him by telephone~ There was evidence of some discussion about what would happen in the event of certain types of future absences, but there was no evidence that the employer representatives expressed any concerns about the nature of the medical information they had on Blackball. Ms. Knott and Mr Collrin both testified that, in addition to discussion about whether some planned surgery for Blackball would be counted against him jn calculating his attendance record under the rems~atement, they asked for assurances that other unplanned and uncontrollable absences would not be counted against Blackball. Ms. Knott testified that she specifically asked the mediator what would happen if Blackball broke his leg or was hospitalized due to a heart ,attacJc, for example. According to Ms. Knott and Mr Collrin, the mediator sought and obtained assurances from the employer that these kinds of absences would npt be counted against Blackball, and passed this on to the Union. The result of these discussions, as set out the Vice-Chair in his award, was the Memorandum of Settlement (Exhibit 2). In this memorandum, the employer requested that the grievor provide a medical assessment indicating any disfunction affecting his capacity to do his job at CPRI. Ms. Knott testified that she assumed responsibility for explaining the terms of t4e \ memorandum of settlement to Blackball, including explaining to him that he was required to produce a medical certificate that he was fit to work. Ms. Knott testified that her I understanding of this requirement was that the employer already had report on the psychiatric aspects of Blackball's fitness to paint through Dr Davis' report, which she had not seen. When Blackball went back to work in April, 1992, there was a dramatic improvement in his attendance. Blackball testified that he went back to work with the attitude that whatever stresses or problems he faced, he should just try to get through the day He further testified I f /"<-' '-, . ~~ ,,", < ; ;1. '!' ~1' '""",,, !3 - 3 - that he was able to apply the knowledge and coping techniques that he had picked up while at the Richardson Clinic, in September, 1991. Ms. Knott testified that prior to Blackball's return, she and Bob Ceaser, the Union Local President, held a meeting for Blackball's CO'- employees to help explain the nature of Blackball's condition, and to answer any questions they might have. Also, a series of meetings were held approximately monthly between Blackball, Ms. Knott and Blackball's supervisor, J.P Desrosiers. These meetings were to deal with issues as they arose, to stop them from escalating into more serious problems. Ms. Knott also testified' that it was at one of these meetings, in or about summer of 1992 that the issue of work rotation arose. In Martin Blackball's view, he was being asked to spend too much time painting in areas outside of the shop, while the other painter was being favoured with work assignments in the shop. Asa result of this complaint, a monthly rotation was set up between Blackball and the other painter For the first six months, Blackball had no particular attendance problems, and was significantly below the departmental average. It was only in the second six month period that he began to have - more significant problems, missing a total Qf 20.97 days as opposed to a departmental average of 5.95 days. According to Exhibit 19, a breakdown of absences prepared by the employer from attendance records, Blackball missed 2.34 days in November, 1992, 1.25 days in December, 1992, 2.88 days in January, 1993 and 14.5 days in March, 1993 According to Blackball's testimony, the November and December absences were probably related to depression. The January, 1993 absence was due to a bout of gastroenteritis. The March, 1993 absences arose out of two incidents. On March 2, i993, Blackball was involved in a dispute with his supervisor, J.P Desrosiers, about his work assignments. Blackball was due to be rotated back into the shop as of March 1, 1993, but Desrosiers kept him assigned to duties outside the shop, telling him that he would be back in the shop within a few days. According to Blackball, this was the first time that the monthly rotation was not followed, and he was angry and upset abol!' it. Also, Desrosiers had given him some seven work orders to complete, all involving wor~ outside of the shop. Blackball felt this was an unusually high number, and feared that Desrosiers planned to keep him out of the shop for a significantly longer period of time. Blackball test~ed that this dispute and these events made him feel very anxious, and he began to experience symptoms of his anxiety disorder To control these symptoms, he spent a day and a half off work, returning March 4, 1993 As a result of the dispute, management at CPRI decided on March 8, 1993 to discipline Blackball with a formal reprimand. For some reason, despite Blackball's learning disability, they felt it necessary to serve this letter on Blackball personally, without arranging for the presence of a Union representative or otherwise involving the Union, as they had with written communications in past. On March 9, 1993, while Blackball was still assigned to painting duties outside of the shop, first Mahendra ~ingh and J.P Desrosiers, and later Mahendra Singh and Art Hulks tried to serve the reprimand letter on Blackball, while Blackball tried to avoid them. Ms. Knott offered to deliver the letter for them, but this offer was initially refused. Finally, aCabout 3.00 p.m., the letter was delivered to Blackball in the presence of Ms. Knott. Blackball testified that the events of March 9, 1994 caused him to J I ~ i ....~''t'..... .:t:,p.~".~~. \ j '~ --, C:, :l::.: " I ~'f - 4,1- '- feel extremely anxious. He felt the beginnings Qf a "panic attack"; his heart was pounding, and he had difficulty controllIng his urine. The next day he felt depressed and anxious, and noticed that his checking behaviour ;had started again. He stayed home and arranged an appointment with Dr Yemchuk, his family doctor, for March 12, i994 Ultimately he stayed home for 13 days, on his family doctor's advice and with the knowledge of the employer, returning to work on his doctor's recommendation on March 29, 1994 A report was filed by Dr Yemchuk, who was not called as witness by either party Dr Yemchuk's report (Exhibit 26) gives Dr Yemchl.Jk's reasons for advising Blackball to stay off work. They included concerns regarding his agitated state and feelings of depression. Dr Yemchuk was also concerned with Blackball's rising blood pressure, and with his reaction to a drug (Bromazepam) which he had prescribed for Blackball's symptoms of anxiety, but which had caused him to feel "angry and mean", a recognized side effect of the drug. When Blackball returned to work, there were no further incidents or absences until the attendance review held April 27, 1993. At that time, Blackball was asked why he had been absent in March, 1993 He replied that he had had a problem with blood pressure, and also with his medication (which, according to the report of Dr yemchuk, was perfectly true.) It was in response to this that the employer decided to have Blackball assessed again, this time with a view to determining whether blood pressure was a reason for or cause for his absences as recorded by CPRI. This assessment was done by Dr Carson, the CPRI staff doctor responsible for employee health. Dr Carson testified at the hearing. While his evidence did establish that Blackball had no ongoing problem with blood pressure that would prevent him from fulfilling his duties at CPRI, Dr Carson conceded in cross-examination that he respected Dr Yemchuk's opinion, and that he would not question Dr Yemchuk's_judgment that it was appropriate to advise Blackball to stay off work for a period of time in response to his concerns about rising blood pressure. This, in my view, greatly undermined the basis of the employer's case, since Dr Carson's previous opinion, as expressed in his medical report dated June 16, 1993 (Exhibit 11) appeared to be the basis for Blackball's second dismissal. As set out in the second dismissal letter (Exhibit 12) As a result of Dr Carson's medical examination, he finds that the clinical and physical assessments indicate that you have moderate hypertensiop which is under control now He does not believe that this is a basis for any type of complaint or any type of illness. Dr Carson does not believe that this moderate blood pressure level prolonged over a long duration should, or does explain your absenteeism as recorded by the services at CPR!. Indeed, Mr Sorin, the Administrator, testified in cross-examination that he does not know if he would have dismissed Blackball, had he been aware that his own staff doctor did not question Dr Yemchuk's judgment in advising Blackball to take time off work. j -~ ~ ~ ~J.: :1;' ~, .- - 5 - Dr Carson also testified that he made no attempt to find oilt from Dr Yemchuk the reasons for Blackball's absences in March, 1993, or even to find out what medications Blackball might have been on at this time. In his view, his role was simply to assess whether, as of June 16, 1993, Blackball had a blood pressure condition that would prevent him from attending work. Dr Hartford, Blackball's treating psychiatrist, gave evidence about the nature of Blackball's condition, and about his prognosis. According to Dr Hartford, Blackball has a chronic and moderately severe anxiety disorder He is vulnerable to stress, but is among the 75% of patients who get reasonable symptom relief from medication. Blackball had taken medication since 1988, but had taken it only intermittently at times because of side effects. Dr Hartford indicated that he had not seen Blackball between March 1992 and May 1994 This was partly his fault, as Blackball had called several times early in this period to set up appointments, but had not managed to connect with Dr Hartford. Since resuming treatment, Blackball appeared to be committed to taking his medication on a regular basis, and to continuing treatment. In Dr Hartford's opinion, he would expect Blackball's attendance to be better than during 1992-93 if reinstated, provided he continued with treatment and provided the employer did what it could to minimize stress. As examples of minimizing stress he gave not over-supervising him, involving the union in delivering written communications to him, and avoiding unnecessary changes to his work schedule. At the conclusion of the evidence, counsel for the Union consented on the record, on behalf of Blackball and in his presence, to certain conditions if Blackball were reinstated. These were that Blackball continue treatment with Dr Hartford.( or another qualified doctor), and that he take such medication as his doctor may prescribe. I have set out the evidence in this detail, because in my view when all the evidence is looked at it doe-5 not support the Vice-Chair's conclusion that the employer met its duty to accommodate under the Human Rights Code. First, I think the Vice-Chair has taken the wrong approach in holding Blackball responsible for failing to provide enough medical information. Blackball has limited education and reading and writing ability, as well as his other significant medical problems. On the other hand, CPRI is a psychiatric institute. We heard evidence that CPRI's staff includes approximately 5 psychometrists, 7 or 8 psychologists, and 5 psychiatrists. If ever there was an employer with the resources to show understanding for an employee with a mental disorder, this is it. To blame Blackball entirely for not doing more to ensure that the employer understood the nature of his condition is, in my view, unfair The Vice-Chair is especially critical of Martin Blackball's conduct in failing to provide medical information to the employer before the first dismissal. He describes Blackball as "unco-operative, if not obstructive" This is both misleading and unjust; Martin Blackball, an employee of little education, with a learning ability affecting his reading and writing, provided a number of medical notes and reports from his doctors before the first dismissal. I , '''" ~,....~;. ----;;-;-~ , \ J , ~ '" ~, \~ 4"'~ ~t "'- -6 - These reports (Exhibits 3, 15, 21 and 32) make it clear that the employer was aware of Blackball's obsessive compulsive disorder, depression and learning disabilities, that his medical conditions were linked to his absences, and that he was seeking appropriate treatment. Martin Blackball also testified that he gave a video of an episode of the Oprah Winfrey Show dealing with obsessive compulsive disorder, to Mr Sorin, the CPRI administrator Though perhaps not always in a sophisticated way, Martin Blackball clearly tried to convey to his employer the essential medical information. Indeed,~ prior to late June, 1991 there was no evidence before this Board of Martin Blackball ever failing or refusing to provide any medical information that was requested. (The Vice-Chair has made some reference to apparent delays in producing medical certificates from the CPRI employee health nurse's notes, Exhibit 30. The employee health nurse was not called as a witness, and Martin Blackball was not asked any questions about these matters, so I don't see how he can rely on these.) As I have described, there was a dispute over release of Dr Davis' report, between Oct. 31, 1991 and the first dismissal. But this dispute was only about whether Blackball could have the report released to- his psychiatrist, Dr Hartford, and have an opPQrtunity to have it explained to him in advance of it being released to the employer Ms. Knott testified that this would have been accepted clinical practice, and her testimony on this was not challenged or contradicted in any way In my view, for the Vice-Chair to refer to Blackball as "extremely uncooperative, if not obstructive" is unwarranted and not supported by the evidence. On the evidence, the only employer request that he did not comply with was the request to release Dr Davis' report to the employer between October 31 and December 5, 1991. Given his learning disability, his medical problems, and the advice he received from Ms. Knott, I think that not only was he not being "obstructive", but that his position was entirely reasonable. At the time of the first dismissal, Blackball had not even seen Dr Davis' report. Surely it is not unreasonable for a person with the significant problems that Martin Blackball had to ask simply for a chance to understand the report, and to go through it with his own treating psychiatrist, in advance of it being released to the employer \ The Vice-Chair also seems to blame Blackball for the fact that the employer had no proper prognpsis of Blackball's psychiatric condition at the time of the memorandum of settlement. But this was largely because Dr Davis' report was lacking in this area. Dr Davis was a doctor chosen by the employer (though agreed to by Blackball). And on the evidence, the employer never expressed any concern to Blackball or the union that Dr Davis' report was not adequate, prior to the memorandum of settlement. In my view, Blackball cannot be blamed for the lack of prognosis when the doctor chosen by the employer did not give this information, and the employer never identified this as a concern. Finally, the Vice-Chair is critical of Blackball for not providing more information in the April, 1993 attendance review At that time, Blackball mentioned his blood pressure and a problem with medication - both of which were, in fact, reasons for his absences of March , I , - ~- \ :i -"\~ ::!-' - 7 - 1993. He did not specifically mention his anxiety disorder and depression, but these conditions were well known to the employer In any event, we were provided with ample medical information at the hearing to assess the nature and severity of Blackball's disability, and whether the employer could reasonably accommodate it. If Blackball is to be faulted for failing to provide enough information before this, the proper remedy is to reinstate him without back pay Second, I disagree with the Vice-Chair's opinion that there is no link between Blackball's disability and his first dismissal. The Vice-Chair says that the dismissal, and the conditions r of the Memorandum of Settlement, were due to excessive absenteeism, and not due to Blackball's disability But this, to me, is just playing with words. Dr Hartford testified that Blackball's anxiety disorder was likely a factor in his absences prior to his first dismissal. Also, specific absences are related to his condition in the medical notes and reports referred to above. As the Vice-Chair notes, the employee health nurse's file includes references to Blackball's complaints regarding depression and his anxious state. Finally, Blackball himself reported to Dr Davis, according to her report, that his depression and obsessive compulsive disorder had caused him to be off work a great deal. To say that his dismissal was due to his absences and not to his disability, is to. make a meaningless distinction. Third, I do not agree that this Board must take it as a given or agreed fact that the departmental average for attendance is equivalent to a reasonable level of reliable and regular attendance. According to the attendance records, during the year following Blackball's reinstatement, there was one other employee in the maintenance department who missed significantly more time than Blackball - a total of 31 days, as opposed to Blackball's total of 22.35 days. That employee was not disciplined, dismissed, or subjected to attendance review Moreover, Mr Sorin admitted in cross-examination that he would not regard a couple of weeks absence as being greatly significant in the case of any other employee. Obviously, when Blackball returned, he was subjected to a regime that was far stricter than was imposed on any other employee. Fourth, and most fundamentally, I disagree that Blackball's reinstatement under the Memorandum of Settlement, under which he was required to meet or exceed the departmental average, is in and of itself a "reasonable accommodation" of Blackball's disability Dr Hartford testified that with appropriate medication and treatment, and with the employer doing what it could to minimize stress, he would expect Blackball's attendance to be better than his record for April 28, 1992 to April 27, 1993 - which, as set out above, ~ consisted largely of the absences of March, 1993 On the other hand, Dr Hartford could only say that it was possible, rather than probable, that Blackball would meet the departmental average under these conditions. To Insist that Blackball meet the departmental average, therefore, may well be out of reach of Blackball, though he would probably be able to come closer than he did in 1992 - 1993. It defies logic to try to characterize a condition that he meet the departmental average for absences from work as an "accommodation" of his condition. J 1 --- . I \ ,. J ~, :' , ;,,: :.#..i - - 8 - How can it be described as an accommodation to insist on a standard of attendance equivalent to or better than that of other employees, who do not suffer from Blackhall~s disability? Indeed, after his reinstatement, Blackhall was subjected to stricter standards than other employees, since he could be dismissed for failing to meet the average, while other employees were not. Nor do the employer's claims of having accommodatedJ3lackhall in other ways hold up. Counsel for the employer stressed the facts that the employer had agreed to a monthly rotation between Blackhall and the other painter, and that keeping in mind his learning disability and other problems, they had a practice of deliveririg written materials to him through the union. Both of these were pointed to as significant accommodations. However, these were the very things that the employer did not do in the events leading up to the i March, 1993 absences. And Ms. Knott testified that far from trying to minimize str~ss with Blackhall, the employer tended to treat him more harshly; and make more of an issue about his behaviour, than it would with other employees. r The Vice-Chair relies especially on the fact that the Memorandum of Settlement was agreed to by the parties, in characterizing the need to meet departmental average as an "accommodation" of the grievor that, in his view, we are not entitled to look behind. I disagree. First. given the evidence that the Union received assurances about certain types of absences not being counted, and given that exceeding the average only makes Blackhall "subject to dismissal", it is not at all clear that Blackhall and the Union agreed to departmental average as a hard and fast nile. Second, and more fundamentally, even Blackhall and the Union did agree, this does not answer the question of whether the need to meet departmental averages is an adequate accommodation under the Human Rights Code Parties cannot contract out of human rights. Rather, it is for this Board to decide what constitutes accommodation short of undue hardship. There was no evidence from the employer that it would have suffered undue hardship in accommodating Blackhall's level of absences after his reinstatement, or that it would be unable to deal with Blackhall's expected level of absenteeism (as described by Dr Hartford) if he were reinstated again. From an absence level of anything between 50 and 110 days per year between 1987 and 1991, Blackhall was able to achieve a level of only 22.35 days missed in 1992-93, as compared to a departmental average of approximately 10 days in that period. Of those 22.35' days, 13 were a single absence in March, 1993, and there were some unusual circumstances around that ab~ence~ According to Dr Hartford, he would expect a further improvement in attendance if 'Blackhall were reinstated, provided Blackball continued with treatment and the employer tried to minimize stress. The employer did not discipline, dismiss or subject to attendance review an employee in the same department who missed more than 30 days over the same period, and Mr Sorin testified that a couple of weeks' absence would not be that significant for another employee. In my view, on this evidence the employer has not shown that continuing to employ Blackball at Blackhall's expected attendance level would cause it undue hardship. - -- I \ . e, - ~ ;.; ..~I J.~ ~~ - 9 - Counsel for the Union asked in the alternative, if we were not prepared to reinstate Blackball to full-time employment, to either remit the matter to the parties to investigate other possible accommodations such as part-time employment, or to r~instate Blackball for the purpose only of helping him apply for LTIP It was pointed out that the parties had never explored other possible accommodations short of full-time employment, and that the employer had therefore not met the duty to accommodate. It was also pointed out that in order to conclude that Blackball could not be accommodated, the Board would have to find that he was "incapable of performing the essential duties or requirements" of his job. Since the test for LTIP benefits under the collective agreement is "the continuous inability of the insured employee to perform the essential duties of his normal occupation", there was sQme logic to the idea that LTIP might apply I The Vice..Chair does not discuss whether some form of accommodation such as part-time I) work should be explored. He also declines to reinstate Blackball for the sole purpose of facilitating an L TIP application by BI~ckball. The Vice-Chair clearly accepts, as he must on the evidence, that Blackball's legitimate medical problems are to blame for his absences, but will not agree to reinstate Blackball for the purposes of an LTIP application. He gives three reasons. First, he says Blackball could have pursued LTIP prior to his dismissal. But at this time, Blackball did not know that the employer was going to take the position that he was incapable of fulfilling the essential requirements of his job. Second, he says that the parties could have pursued LTIP as an alternative to litigating the grievance. But this Board does not know whether the employer would have even considered this suggestion as a basis for settlement. Third, he says reinstatement for this purpose in not appropriate because -=-:J.- Blackball does not have "an exemplary long service record" To me, this amounts to saying that Blackball was too sick to be given the opportunity to take advantage of a benefit designed for sick people. It makes no sense. Also, on the evidence, the employer did nothing to advise Blackball of his rights to pursue LTIP before he was terminated. Cases cited by the Union make it clear that in some circumstances, the employer has an obligation to do this, and it is not just a matter of the arbitrator's discretion. -, For these reasons I must dissent. Both compassion, and the Human Rights Code, demand more than the employer gave to Blackball. I would have reinstated Blackball to full-time employment, or at the minimum reinstated him to help him apply for LTIP ~ Carruthers -- --.. -- -- ----- - --- -- I