HomeMy WebLinkAbout1995-2078ZAIDI98_05_19
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEJTELEPHONE (41e) 32e-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (41e) 32e-13~
GSB # 2078/95, 0629/96
OPSEU # 96D026, 96B762
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Zaidi)
Grievor
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty and Social ServIces)
Employer
BEFORE H. S Finley Vice-ChaIr
-FOR THE A. LeWIS
UNION Counsel
Gowhng, Strathy & Henderson
Bamsters & Sohcltors
FOR THE J SmIth
EMPLOYER Counsel
Legal ServIces Branch
Mimstry of Commumty & Social Services
HEARING August 27,28, 1997, September 8,9, 10, 1997,
October 15, 16, 17, 1997
DECISION
On September 21, 1995, the Gnevor, UrooJ ZaIdI, filed the followmg gnevance
I grieve that I have been improperly and unjustly treated and denied sick
benefits under the Collective Agreement, and further the actions of the employer
have endangered & effected [sic] my health and also caused me financial
distress.
He asked
that [he] Immediately be credited with [his] sick benefits retroactively to July
24/95 and any other benefits that [he was] entitled to and further [he] be
reunbursed for all costs [he] ha[s] incurred plus interest, due to the unjust
actions of the employer
On May 14, 1996, he submItted a further gnevance statmg the followmg
I gneve that my Human RIghts and other nghts under the collectlve agreement
have been violated and I have been improperly and unjustly treated & dismissed
by the mmIstry- reference letter dated May 6th, 1996 signed by Ms. Shari
Cunningham.
That letter read as follows
Dear Urooj
By the authority delegated to me by the Deputy Minister under SectIOn 23 of the
Pubhc Service Act, I hereby dismiss you for cause in accordance with section 22
~ (3) of the Public Service Act, effective May 6, 1996
You have not been present at work since May 26 1995 and have failed to
provide sufficient medical documentation. Several attempts have been made by
management to contact you and explain the necessity for such documentation.
In view of previous attempts on behalf of management to secure the required
medical information and your failure to provide such information, I am
term mating your employment.
A copy of this dismissal letter will be placed on your personnel file.
1
You have the right to grieve this action pursuant to Article 27 of the Collective
Agreement.
Sincerely,
Signed"
Shari Cunningham
Area Manager
Windsor Area Office
cc Personnel file
Bob Hunter
Gerry Layden - OPSEU
Peter Wilson
Glen Cook
SectIOn 22 (3) of the Public Service Act reads as follows
22. (3) A deputy minister may for cause dismiss from employment in
accordance with the regulations any public servant in his or her ministry
The relevant CollectIve Agreement IS the agreement between the Management Board of Cabmet
and the OntarIO PublIc ServIce Employees Umon from January 1, 1992 to December 31, 1993
A number of mdIVIduals was mvolved m the mCIdents WhICh lead to thIS dIsmIssal letter They
are lIsted below and those who testIfied have an astensk beSIde theIr names
Grievor and Family
Uroo] ZaIdI* Gnevor
Shabana ZaidI Spouse of Gnevor
-
Three chIldren of Gnevor
Union
Gerry Layden * OPSEU RepresentatIve, Windsor, who assIsted Dr ZaIdI
begmnmg m 1995
Ministry of Community and Social Services, Windsor Area Office
Shan Cunnmgham * Area Manager, Windsor, smce 1983
Bob Hunter* Commumty ServIces Manager, Manager of Fmance for the area
served by the Windsor Office, the Gnevor's SupervIsor
2
Pam Patterson* Commumty ServIces Manager responsible for Essex, Kent and
Lambton, the Gnevor's ActIng SupervIsor durIng May and June
1995
Manlyn Secretary In the mInIstry office (no last name provIded)
KIm Secretary In the mInIstry office (no last name provIded)
Ministry of Community and Social Services, Windsor Area Office, Human Resources.
Martha Young Manager, Human Resources, Windsor Area Office, left In **
Nancy Jackson Human Resources RepresentatIve seconded from Southwestern
RegIOnal Centre to work temporarIly In the Windsor Area Human
Resources Office left mId-December 1995 to return to posItIon at
Southwestern RegIOnal Centre, Involved In Gnevance # 1 (SIck
Benefits)
Glen Cook* Manager, Human Resources, Windsor Area Office, from
December 1995 to June 20,1995, he provIded advIce to Ms.
Cunmngham about techmcahtIes and acted as a haIson between the
Windsor Area Mimstry of CommunIty and SocIal ServIces Office
and Peter Wilson of the Corporate Employee RelatIOns office m
Toronto
SaIroz VIram* Human Resources RepresentatIve *** Reported to the Manager,
Human Resources, she dealt WIth the L TIP apphcatIOn.
Ministry of Community and Social Services, Corporate Employee Relations Office
Peter Wilson Employee RelatIOns AdvIser, Corporate Office
Medical Personnel
Andrew Rajan, MD* The Gnevor's famIly phYSICIan SInce September 1990
Barb - secretary to Dr Rajan (no last name provIded)
Anthony Glanz, MD* The Gnevor's cardIOlogIst smce June 1994, hIS office IS located at
the Windsor Health Centre
Secretary to Dr Glanz (no name provIded)
Emd Bryans, R T(NM) Charge TechnologIst, Department of Nuclear MedIcme, H6pItal
H6tel-DIeu Grace HospItal, she venfied In wntIng Dr ZaidI'S
completIOn of the MIBI Scan.
Insurance Adjudicators
LOUIse Koster-Lloyd Semor Claims AdjudIcator, ConfederatIOn LIfe Insurance
Lynda Dewar Claims AdjudIcator, Manuhfe FmancIal
Darlene Ahearn Claims AdjudIcator, Manuhfe FInancial
3
It was, and IS, the practIce of the Windsor Area Mimstry of Commumty & SocIal ServIces
semor management staff to meet weekly Further meetmgs between mdIvIdual semor managers
and Ms. Cunnmgham were and are held as needed. ThIS results, accordmg to Ms Cunnmgham,
m mformatIOn sharmg and m her keepmg up-to-date.
Certam medIcal terms anse frequently m thIS sItuatIOn and It IS helpful to have defimtIOns of
them at the outset.
Diagnosis Determination of the nature of a diseased
condition, identification of a disease by investigation of Its
symptoms and history; also the formal statement of this. (The
Oxford Universal Dictionary)
Prognosis A forecast of the probable course of disease; also
the action or art of making such a forecast.
(The Oxford Universal Dictionary)
Angina (pectoris) A dangerous disease, marked by sudden
and severe pain in the lower part of the chest with a feeling of
suffocation. (The Oxford Universal Dictionary)
Dr Glanz explamed that angma IS pam but that worsenmg angma could mean that
new narrowmgs have arIsen m artenes prevIOusly known to be normal and If the
worsenmg angma progresses, It can lead to more heart attacks.
Infarction blockage of blood circulation to a localized area or
organ of the body resultmg m tissue death. In the acute
emergency known as myocardial infarction, a common type of
heart attack, a blood-clot (thrombosis) or hemmorrhage
occurs in an artery that supplies blood to the heart muscle, i.e.,
a coronary artery Usually the artery has previously been
narrowed by arteriosclerosis Death of heart muscle tissue
- and heart failure may result. (The New Columbia
Encyclopaedia)
Gout A constitutional disease occurring in paroxysms,
usually hereditary and in male subjects, characterized by
painful inflammation of the smaller joints, esp that of the
great toe, and the deposition of sodium urate in the form of
chalk-stones, it often spreads to the larger joints and the
internal organs. (The Oxford Universal Dictionary)
4
MIBI Scan (Myocardial PerfusIon Study) A treadmill test m
which a chemical is injected into the patient which enables
one to see via computer whether the heart is receiving
sufficient oxygen.
(Dr Glanz)
At the tIme of hIS dIsmIssal, the Gnevor was 54 years old, marrIed and the father of 3 chIldren,
ages 25, 24, and 11 Dr ZaldI has a Master's Degree m EnglIsh Language and LIterature from
the UmversIty of Smd, PakIstan, a Master's Degree m PolItIcal SCIence from the UmversIty of
Windsor and a Doctorate m InternatIOnal RelatIOns from the UmversIty of MichIgan. He Jomed
the OntarIO PublIc ServIce on March 2, 1981, as a Race RelatIOns Consultant WIth the Mimstry
of CItIzenshIp and Culture m Windsor In that pOSItIOn he was responsible for conflIct
resolutIOn, polIcy and program development, commumty development and publIc educatIOn and
publIc relatIOns. In August 1993, he suffered an "acute antenor myocardIal mfarctIOn", spent 9
days m the IntenSIve Care Umt and was absent from work for a penod of approxImately 11 to 12
months
In 1994, Dr ZaldI was declared surplus from hIS pOSItIon m Windsor WIth the Mimstry of
CItIzenshIp and Culture when the office m WhICh he worked was closed. Followmg the surplus
procedure, he was placed m the pOSItIOn of Program ASSIstant - ChIldren's ReSIdentIal LIcensmg
at the Windsor Area Office of the Mimstry of CommunIty and SOCIal ServIces. In thIS pOSItIOn
he was responsible for assIstmg Program SupervIsors WIth the completIOn of the
developmentally and non-developmentally handIcapped chIldren's reSIdentIal lIcensmg process,
completmg complIance reVIews for agenCIes admImstenng needs testmg for chIld care,
partIcIpatmg m operatIOnal and budget reVIews of agenCIes, and provIdmg mformatIOn and
analYSIS for the momtonng and evaluatIOn of the aSSIgned agenCIes. He was also to partICIpate
m the resolutIOn of case management Issues, and to mvestIgate and resolve complamts and
senous occurrences, as well as to prOVIde mformatIOn to the publIc regardmg program delIvery
and fundmg. The last day he worked there was Fnday, May 26, 1995, when he left, mformmg
the secretary, MarIlyn, that he was SICk. There was no eVIdence that Dr ZaldI had a hIStOry of
leave abuse or of chromc absenteeIsm.
5
CommUnICatIOn, lack of commUnICatIOn, and tlmmg of commUnICatIOn played major roles m
the ongomg assumptIOns, declSlons, actIOns, and mactIOns of the mdIVlduals concerned. To gIve
the partIes mSlght mto that, I mtend to set out m some detail, the processes WhICh took place and
the wntten commUnICatIOn WhICh was exchanged between May 26, 1995 and May 6, 1996
The mCldent whIch set off the tram of events culmmatmg m Dr laIdI' s dIsmIssal began, on
May 26, 1995 At that tIme, hIS regular SupervIsor, Mr Hunter, was absent from the office on
educatIOnal leave and Dr laldl was reportmg to Ms. Patterson. At the outset of her supervlSlon
of hIm Ms Patterson met WIth Dr laIdl to set out her expectatIOns of hIm m hIS pOSItIOn, and m
subsequent meetmgs, accordmg to her testlmony, she expressed concern over a number of work-
related Issues
Friday, May 26th
On the Fnday m questIOn, Ms. Patterson mformed Dr laIdI that "there was an Issue whIch
would reqmre senous dIscussIOn on Monday" but that she "could not contmue that day as [she]
was gomg to a meetmg" Ms. CunnIngham was aware that the meetmg WIth Dr laIdl was to
take place She testlfied that the begmnmg of her mvolvement m the matter leadmg up to Dr
laIdI'S dIsmIssal, was Ms Patterson "confrontmg UrooJ laIdl that there was a problem and that
she would be meetmg WIth hIm to dISCUSS It further"
Dr laIdl testlfied that at the tlme he was startmg work that day he expenenced some angma and
he used hIS mtroglycenne spray The angma dId not subSIde, and he thought that It would be
better Ifhe went home He mformed the secretary, Manlyn, that he was havmg chest pams, but
testlfied that he dId not mentIOn gout, a condItIOn from WhICh he suffers Dr RaJan testIfied that
he receIved a telephone call from Dr laIdl that day and m response to a descnptIOn of hIS
symptoms, adVIsed hIm to attend at the emergency umt of the hospItal for an electro-cardIOgram.
Accordmg to Dr laIdl he went straight home
6
Saturday, May 27, 1995
It appears that Dr ZaIdI went to the hospItal emergency on thIS day
Monday, May 29, 1995
Ms Patterson learned from an E-MaIl from the secretary, MarIlyn that, followmg her departure
on Fnday mornmg, Dr ZaIdI had reported he was gomg home as "he was not feelmg well"
(ThIS E-maIl was not offered m eVIdence, and the secretary m questIOn dId not testIfy) Ms.
Patterson testIfied that she then "waIted to receIve a call to mdIcate the problem and when UrooJ
was returnmg" Accordmg to Ms. Patterson, there was a consIderable backlog of work and she
was "also anxIOUS to know hIS condItIOn, so [she] could made arrangements to gIve hIS work to
someone else" When asked what commumcatIOn she receIved from Dr ZaIdI, she rephed
"none" At the same tIme she testIfied that she was mformed by the secretary that he had called
m on thIS day to say that he would not be m and that "he had gout all over hIS body" She dId not
speak to hIm on thIS day as she was out of the office
Tuesday, May 30, 1995
Ms. Patterson stated that she heard nothmg on Tuesday, from Dr ZaIdI Accordmg to the
testImony of Dr RaJan, Dr ZaIdI attended at the emergency umt of one of the local hospItals on
thIS day where he saw Dr Milos, an mternIst WIth a sub-speCIalty m cardIOlogy He was
dIscharged and adVIsed to see Dr RaJan WIth respect to a referral to hIS regular cardIOlogISt. A
report was sent to Dr RaJan. Dr Milos dId not make a specIfic dIagnosIs of angma and
50nsIdered other optIOns, accordmg to Dr RaJan. Dr Glanz dId not receIve a report respectmg
thIS emergency room VISIt.
~~~~31, 1995
On the mornmg of thIS day, Ms Patterson attempted on two occaSIOns to contact Dr ZaIdI by
telephone but was unsuccessful m gettmg an answer Her call of 430 that afternoon, she
testIfied, was answered by Mrs. ZaIdI who explamed that her husband was vIsItmg his doctor
and when asked, Mrs. ZaIdI told Ms. Patterson that she could most hkely reach hIm at 7 00
7
0' clock that evemng and so Ms. Patterson placed a call to Dr ZaldI at hIS resIdence at that tlme
and spoke wIth hIm. She testIfied that he told her that (in her words)
he left on the Friday before because he was feeling stressed out and had an
attack of gout, that he went to the family doctor, Dr Rajan, who suggested he go
to the emergency but that he did not, but instead, went home to sleep because he
was exhausted.
He contmued, accordmg to Ms Patterson, to say that
he went to Grace Hospital in Windsor on Saturday where they did heart and
other tests, but had no results on Wednesday; that he had an appointment with
hIS family doctor on June 1 st [Thursday] at 9'15 in the morning.
Ms. Patterson testIfied that she requested that he get a note from hIS doctor mdIcatmg the
prognosIs of hIS Illness and when he was returnmg to the workplace It was Important, she
explamed, to have an understandmg of when he was returnmg to deal WIth the workload and If he
would reqmre accommodatIOn on hIS return. She acknowledged m cross-exammatIOn, however,
that It was not strIctly necessary to have accommodatIOn arranged m advance of an employee's
return to work. Dr ZaldI, accordmg to Ms Patterson, mdIcated that he would, m her words
"have hIS doctor send a note" She also asked hIm to call her and "let [her] know what was
happenmg" and to speak WIth her personally and not leave messages WIth the secretary m the
office smce that person was not hIS supervIsor As hIS superVIsor, she stated, she expected that
"he would report to [her] the status of hIS health" and whether or not he was returnmg to work.
Thursday, June 1, 1995
Ms Patterson testIfied that she assumed that she would get a note from Dr RaJan and a call from
Dr laldI on thIS day When asked what response she had from Dr ZaldI, she stated "none"
Dr laldI testlfied that he made attempts to contact Ms. Patterson but mstead of her personally
answerIng the telephone, he got her VOIce mall and dId not leave a message
When Dr RaJan saw Dr ZaldI on thIS day he complamed of mcreased chest pam and stress at
work. Dr RaJan dId not belIeve that he was suffenng from "unstable angma" but was not certam
that he was not and, he testIfied, he erred on the SIde of cautIOn. He clanfied that "unstable
8
angma" was not an advanced stage of angma but rather that the mdIvIdual was at nsk of
"walkmg out of the office and droppmg dead" There was no doubt m hIS mmd that Dr ZaidI
was expenencmg mcreased pam and that he concluded that the pam was cardIac Dr ZaIdI asked
to see Dr Glanz agam and gIVen that Dr ZaidI'S heart attack had been an antenor mfarctIOn
WhICh IS, Dr RaJan explamed, associated WIth "a lot more mortalIty and morbIdIty", he dId not
VIew Dr ZaidI'S request as unreasonable and had hIS secretary make an appomtment for hIm. In
hIS opmIOn, Dr ZaIdI needed further mvestlgatIOn by a cardIOlogIst and, Dr RaJan testIfied,
gIven hIS past hIStOry, he could not take a chance that he mIght drop dead at work.
Accordmg to Dr RaJan, at thIS VISIt Dr ZaIdI requested a note WhICh he prOVIded. He assumed It
was for hIS Employer He was asked If at that tIme, gIven hIS dIagnosIs, he would have been able
to gIve a prognosIs and he replIed "absolutely not" The note read as follows
DR. A. I. RAJAN, M.D
1760 TECUMSEH RD W
WINDSOR, ONT N9B 1 V2
FAX (519)254-6458
For U ZAIDI
Address
Date 1/6/1995
[Handwntten]
UNFIT FOR WORK DUE TO ANGINA
~ "Signed"
A. 1. Rajan, M.D
SIGNATURE
DO NOT REPEAT XD NO SUBSTITUTION 0 PLEASE LABEL 0
REPEAT 1 2 3 4 5 NR
Dr ZaidI testIfied that after seemg Dr RaJan, It was hIS understandmg from the doctor, that he
should not return to work, that treatment had not started, and that Dr RaJ an was makmg
9
arrangements for hIm to see a specIalIst. He dId not, he stated, thmk he could go to work untll he
had seen the specIalIst. It was hIS understandmg, he explamed, that It was up to the physICIans to
provIde a prognosIs and that It was necessary for them to make a dIagnosIs pnor to amvmg at a
prognosIs.
Friday, June 2, 1995
Ms. Patterson agreed that the note wntten the prevIOus day and delIvered on the Fnday, had been
receIved wIthm 5 workmg days Dr ZaldI' s Illness and that It sald Dr ZaldI was unfit for work.
However, she mamtamed that It dId not mdIcate that he was unfit beyond the day It was wntten
and that the note was ambIguous because Dr ZaldI "was supposed to be dIscussmg whether he
could return to work, and on that basIs, It [was] a very ambIguous note" Ms. Patterson,
determmed at the tlme of receIvmg the above note that It was msufficIent on the basIs that "It was
clear that [the Employer] needed to know how long he would be off work" There IS, she
testlfied, an expectatIOn that employees WIll provIde a doctor's note that mdIcates more than that
the employee IS SICk. She was not, she explamed Implymg that he was not Ill, but that she
needed to know when and how he would return. "Even", she expressed, "If he had sald he could
not come back untIl the cardIOlogISt'S report, that would have been suffiCIent." Ms. Patterson
acknowledged that the note stated that Dr ZaldI had angma, but stated that "some people work
WIth angma" WhIle Ms Patterson agreed m cross-exammatIOn that whIle one mIght be able to
gIve a letter requestmg mformatIOn to a phYSICIan, one could not reqUIre or force that phYSICIan
to prOVIde that mformatIOn and that an employee cannot be held responsIble for not bemg able to
-see a phYSICIan. However, at the same tlme, she mamtamed that "that mformatIOn could have
been prOVIded and It wasn't"
Ms. Cunmngham had a SImIlar response to the note whIch she saw for the first tlme dunng her
cross-exammatIOn. It was her VIew that "It IS clear for the day" She explamed that If she IS SIck,
her doctor has a sense of how long she IS SIck for, and doctors are expenenced as to how long It
takes to recover It was pomted out to her that the note stated that Dr ZaldI was Ill, It does not
10
say when he can return to work. When her readmg of the note as bemg for a smgle day, was
challenged, she replied that "lots of people work wIth angma" A doctor would, she testIfied, be
able to say "I would not be able to have a full assessment and when I have the mformatIOn I wIll
be able to gIve you a full prognosIs" Dr ZardI testIfied that Dr Rajan told hIm that all he was
able to provIde was the above note and that It would be up to the cardIOlogIst to follow up
Friday, .June 9, 1995
Ms Patterson had also told Dr ZardI that he was to telephone her followmg hIS appomtment
wIth hIS doctor and "when he dIdn't and [she] heard nothmg, [she] phoned hIm agam on June 9th
[Fnday]" and dunng that conversatIOn, she sard that Dr ZardI mdIcated he was vIsItmg Dr Rajan
agam on June 12th and that hIS famIly physIcIan was to set up an appomtment wIth the
cardIOlogIst but that he dId not, at that pomt have a date and was expectmg to hear from Dr
Rajan's office on June 12th (Monday) Accordmg to Ms. Patterson, she explamed agam the need
for an estImated date of return, and that Dr ZardI responded that the cardIOlogIst would only be
able to provIde that mformatIOn once the tests were complete Ms. Patterson stated that If It were
not possible for the cardIOlogIst to provIde that mformatIOn she "would like to have that m
wntmg to venfy It"
She then, she stated, asked hIm to telephone her on Monday, June 12th to let her know of the
date of hIS appomtment wIth the cardIOlogIst and what hIS famIly physIcIan felt about hIS
potentIal return to work. She wanted, she explamed, to follow-up because "a long tIme had
~lapsed wIth Urooj not at work" and "there was nothmg that the Employer could get a handle on
as to when he would return, or "even the doctor confirmmg the need to wart for the cardIOlogIst"
~onda~~~~~
Dr ZaIdI was expectmg to hear from Dr Rajan's office about hIS appomtment wIth Dr Glanz
and It IS reasonable to conclude that It was on thIS day that he heard that the appomtment was on
September 28, 1995, some three and a half months hence Ms. Patterson expressed surpnse m
her testImony that someone wIth a heart condItIOn should have to wart so long, partIcularly when
11
she was sure that Dr ZaidI would have mdIcated why It was Important. (It was Dr Rajan's
secretary, not Dr ZaIdI or Dr Rajan who was makmg the appomtment wIth Dr Glanz.) Dr
Glanz testIfied that "unfortunately waItmg tImes to see me are long, but refernng physIcIans can
call and I fit them m earlIer after an explanatIOn of the problem"
Accordmg to Ms. Patterson she dId not hear from Dr ZaidI on June 12th, and testIfied that she
"had been very specIfic that he was to call [her] on Monday when he had thIS mformation." (He
mdeed had the mformatIOn, but It was an appomtment he was trymg to advance and so It was not
the final appomtment date.) Her next step, If she had heard nothmg by a certam date, she
explamed, was to draft a letter explammg exactly the mformatIOn they were lookmg for and
askmg whether or not he could return to lImIted dutIes. It was her plan to enclose ajob
descnptIOn so the physIcIan could better advIse on Dr ZaidI'S abIlIty to return to work.
Tuesday, .June 13, 1995
Dr Rajan testIfied that on June 13, 1995, Dr ZaidI telephoned hIS office and conveyed through
the secretary who handles the appomtments that the appomtment for the end of September was
too dIstant. WhIle he dId not belIeve that Dr ZaIdI's condItIOn was sufficIently cntIcal to
hospItalIze hIm, he dId agree that he needed to be assessed by Dr Glanz earlIer than the end of
September He then, contacted hIm, and explamed the problem to Dr Glanz who said that he
would see Dr ZaidI m Ambulatory Care at the hospItal on June 19, 1995 (Monday) (The
promptness of hIS response was mdIcatIve of the physIcIans' concern respectmg Dr ZaidI'S
~ondItIOn. )
Ms. Patterson dIctated a letter to Dr ZaidI on thIS day but held It untIl Fnday, June 16th.
Further, she stated, "Urooj was not commumcatmg wIth [her] about what was happemng, on
each occaSIOn he mdIcated he would call, but dIdn't and [she] dIdn't hear anythmg agam"
Ms Patterson testIfied that on the day she dIctated the above letters, she receIved a "phone
message WhICh came m at 7 40 m the mornmg" but she was not m. She stated that m the
12
message he left, Dr ZaidI said that he had tned to get m touch but as he wanted to speak wIth
her personally he dId not leave a VOIce mall message at the same tIme, she stated that hIS
message also conveyed that he was stIll not feelmg well and had to go the hospItal for tests
At 8 30 that same mornmg, Ms Patterson telephoned Dr ZaidI and "the famIly told [her] he
was sleepmg" and she testIfied that she "remmded" the person who answered the telephone that
he had called her recently and left a message He then came to the telephone and "she [had]
remmded hIm a week ago that hIS doctor was to call about an appomtment" She testIfied that
Dr ZaidI told her that he had been gIven an appomtment for July 11, 1995 but that he consIdered
thIS date too far m the future and he told her that he was gomg to go the hospItal and attempt to
see Dr Glanz, hIS cardIOlogIst, through the emergency, whIch, m hIS opmIOn, would result m hIS
bemg seen sooner The eVIdence showed that the appomtment was scheduled not for the date
WhICh Ms. Patterson mentIOned but for September 28, 1995 Accordmg to Ms Patterson, she
then asked Dr ZaidI to telephone her and let her know what was happenmg, and he replIed that
"he couldn't because he thought [she] should be talkmg to the doctors, as they were the ones who
would determme when he could come back"
Ms Patterson testIfied she mqUIred Ifhe had receIved her letter (It had, at thIS pomt not been
sent.) Dr ZaidI stated he had not. She then told hIm when he receIved It "he had to take the
letter ImmedIately to hIS doctor and have the doctor provIde the prognosIs and hIS potentIal
return to work" and that "If [she] had heard nothmg from the doctors wIthm a week, that [the
pmployer] would be wntmg regular mall mdIcatmg to Human Resources that they had not
receIved medIcal notIficatIOn and [that] he would be on leave wIthout pay" (ThIs warnmg was
gIven 11 days after Dr ZaidI absented hImself due to Illness and 7 days after he submItted the
June 1st medIcal certIficate of Dr Rajan.) She testIfied they had only receIved a doctor's note
cItmg "angma" and nothmg whIch said whether he was able to work part-tIme, or not at all
(Ms. Patterson had been mformed by Dr ZaidI on June 9th that the cardIOlogIst would have to
provIde the prognosIs followmg a dIagnosIs.) Ms. Patterson testIfied that Dr ZaIdI agreed to
take the letter ImmedIately to hIS famIly doctor and would have the doctor contact her
13
Eriday, .June 16, 1995
The letter referred to above was sent out by couner by the Employer to Dr ZaidI on thIS day It
read as follows
Dear UrooJ
Further to our conversation of last Friday, June 9, 1995, please fmd enclosed a note to deliver to
your doctor The letter contains a copy of your job description and the physical demands analysIs
of your posItIOn.
We must plan for the completion of your work and, as a result, require a prognosis from your
doctor indIcating the length of your absence or a date of return to work.
Our primary goal is to facilitate your return to the workplace. We are committed to supporting
your return through working with you and your doctor on any restrictions or accommodations
necessary to promote this return at the earliest opportunity
Thank you for your co-operation and please do not hesitate to contact me if you have any
questions.
Sincerely
"SIgned"
Pam Patterson
The letter to Dr RaJan read as follows
Dear Dr Rajan.
UrooJ has delivered a note from you dated June 1, 1995 indicating that he will be absent from
work. To allow this office to plan for the completion ofUrooj's work, we would request a
prognosis outlining an expected length of absence or date of return to work.
The Ministry is committed to working with the employee and their physicians to facilitate and
assist employees in returning to the workplace.
In order to further assist you to understand Urooj's duties, I have enclosed the position descnption
and physical demands analysis, which collectively should outline the essential duties and the
~ physical demands of the job Would you please review the enclosed documents to determine the
anticipated length of time the employee may be off work before he could resume his normal
duties or return to modified work.
The Ministry is committed to providing accommodation that would faCIlItate Urooj's return to
work. We do not require any personal information or confidential medIcal information, but rather
your assessment based on the demands of the job Information required should outline the
employee's capabilities and limitations and work restrictions in relation to the demands of the job
If in your opinion, Urooj's prognosis is such that he will require a longer period of recovery, we
will be willing to work with you to provide the necessary accommodations when his health allows
him to return to work.
14
Thank you for your assistance. Ifthere is a charge for this service, please attach an invoice to
your assessment. If you have any questions or concerns, please contact me at 254-5355, ext 225
Sincerely
Signed
"Pam Patterson"
When It was pomted out to Ms. Patterson m cross-exammatIOn that she dId have three telephone
conversatIOns wIth Dr ZaidI, she acknowledged that mdeed she had but that she "was
communIcatmg wIth [Dr ZaIdI] he was not communIcatmg wIth [her]" She stated that there
was nothmg pumtIve m her dealmgs wIth Dr ZaidI, and that she was always very clear wIth hIm
that her purpose was to understand why he had to be off work and when he was gomg to return.
For hIS part, Dr ZaidI was wondenng why he was "gettmg telephone calls and letters one after
the other because [he] had already delIvered the letter to the doctor, and It was not up to [him] to
provIde the prognosIs, It was up to the doctor" Ms. Patterson testIfied that she then waited but
receIved no documentatIOn.
Monday, .June 19Jm
Ms Patterson testIfied that she thought she had a subsequent telephone conversatIOn wIth Dr
ZaidI on thIS day That was the day on whIch Dr ZaidI saw Dr Glanz who noted that Dr ZaidI
was "havmg two types of symptoms" and determmed that m order for hIm to make a dIagnosIs,
J1e would need to have current test results, smce Dr ZaidI had not had cardIac testmg for a long
penod of tIme and a treadmIll test, accordmg to Dr ZaidI, was subsequently booked for hIm on
July 25th, that IS, five weeks hence
Tuesday, .June 20, 1995 to Friday .June 23, 1995
Dr ZaidI testIfied that the letter from Ms. Patterson was delIvered wIthm a day or two to Dr
RaJan, most probably by a member of hIS famIly It IS reasonable to conclude that It came to Dr
RaJan's attentIOn dunng thIS penod. Dr RaJan testIfied that he receIved the letter along wIth the
15
mail set out for hIm by hIS secretary He read a portIOn of the physIcal demands analysIs and
realIzed that he had been sent a sImIlar one for Dr ZaidI m 1994 and knew that he could not
"pass opmIOn on thIS program" and he therefore mstructed hIS secretary to call and relay hIS
deCISIOn to the Mimstry
Monday, .June 26, 1995
On hIS return from educatIOnal leave at the end of June 1995, Bob Hunter assumed responsibIlIty
for the supervISIOn of the CommunIty Program ASSIstant, SpeCIal LIcensmg of Chlldren' S
Programs, whIch was the pOSItIon occupIed by Dr ZaidI, and managmg Dr ZaidI'S SIck leave
He testIfied that Ms Patterson gave hIm "a detalled bnefing" of the SItuatIOn smce Dr ZaidI left
on May 26, 1995, and was told by her that he needed to follow up WIth a letter as part of hIS
supervISOry responsibIlItIes" Mr Hunter followed up by sendmg Dr ZaidI the followmg letter
on the same day, 10 days after Ms. Patterson's preVIOUS letter was sent out:
Dear Urooj
Pam Patterson wrote to you on June 13, 1995, confirming your conversation with her on June 9
1995 The letter mcluded a note for you to deliver to your doctor that contained a copy of your
job description and a physical demand [sic] analysis.
Pam noted that we must plan for the completion of any outstanding and ongoing work and thus
needed a prognosis from your doctor indicating the length of your absence or a date of return to
work. She indicated it was our primary goal to facilitate your return to work, working with you
and your doctor on any restrictions or accommodations necessary to promote your return to the
workplace.
As of thIs writing, we have not received a reply from either you or your doctor ThIS makes the
management of your workload extremely difficult.
In accordance with Article 52.10[*] of the Collective Agreement, I must now advise you that if we
do not receIve a response from your doctor by June 30 1995 [Friday] mdicating a prognosis and
~ an expected return time frame, your leave status will be changed to leave without pay effective
July 3,1995 [Monday]
If your have any questions, please do not hesitate to contact me.
Sincerely
"SIgned"
Bob Hunter
Community Services Manager
Windsor Area Office
cc Pam Patterson
Martha Young
Shari Cunningham
16
* ArtIcle 52 10 of the CollectIve Agreement WhICh was m effect at that tIme reads as follows
After five (5) days absence caused by sickness, no leave with pay shall be
allowed unless a certificate of a legally qualified medical practitIOner is
forwarded to the Deputy Minister of the ministry, certifying that the employee IS
unable to attend to his official duties. Notwithstanding this provIsion, where It
IS suspected that there may be an abuse of sick leave, the Deputy Minister or his
desIgnee may require an employee to submit a medical certificate for a period of
absence of less than five (5) days.
(ThIS artIcle does not reqUIre a prognosIs, but a certIficate as venficatIOn of Illness.) Mr Hunter
testIfied that he told Dr ZaidI hIS leave status would be changed from leave WIth pay to leave
WIthout pay, smce they "had no sense of prognosIs, when Dr ZaIdI was returnmg to work, and If
accommodatIOn would be reqUIred" He had had no verbal communIcatIOn WIth Dr ZaidI at the
tIme he sent the letter and accordmg to hIS testImony, had no wntten or verbal communIcatIOn m
response to thIS letter, and he hImself dId not attempt to contact Dr ZaidI as he felt that
"communIcatIOn at thIS stage should be m wntmg as a record" (ThIS declSlon of the Employer
m late June 1995, lImIted commumcatIOn between the Employer and Dr ZaidI and reduced the
possibIlIty of mformal clanficatIOn.)
Tuesday, .June 27, 1995
Dr RaJan testIfied that he understood from hIS secretary that Dr ZaidI had called back two or
three tImes mSIstent on gettmg somethmg m wntmg about hIS seemg the cardIOlogIst, and that
she had called to speak to Mr Hunter but mstead had spoken to a secretary by the name of KIm.
Mr Hunter testIfied that he receIved a telephone message from the doctor's secretary, Barb, but
that thIS message was left after the closmg of the mmIstry office for the day (It IS probable that
the mInIstry's and the doctor's office hours do not comcIde) Accordmg to Mr Hunter's
testImony, thIS telephone call from the famlly doctor's office dId not convey any mformatIOn but
SImply asked hIm to call the doctor's office
17
Wednesday, .June 28, 1995
Mr Hunter responded to the telephone message from Dr RaJan's office, but no one was m the
office at the tIme (Dr ZaidI testIfied earlIer that Dr RaJan's office IS normally closed on
Wednesdays )
Thursday, .June 29, 1995
There was no response, accordmg to Mr Hunter, from the message he left at Dr RaJan's office
Friday, .June 30,-1225
Mr Hunter wrote the followmg letter to Dr ZaidI on thIS day
Dear UrooJ
Further to my letter of June 26, 1995, I have not received a note from your doctor as required.
Someone from your doctor's office left a voice mail message for me after closing on June 27 I
returned the call June 28 however, the person who called me was not in on that day I left a
message for the person to call me. No return call was receIved.
I must point out to you that it is your responsibility to ensure written documentation, in
accordance with Article 52.10 of the Collective Agreement, is made available to your employer's
representative. As we have not received written documentation from your doctor as at June 28,
1995, your employment status will be changed to leave without pay effective July 3,1995, as per
my letter of June 26, 1995
If you have any questions, please call me
Smcerely
'Signed"
Bob Hunter
Community Services Manager
Windsor Area Office
cc. Martha Young
~ Shari Cunningham
Pam Patterson
There was no mdIcatIOn that thIS letter was expedIted. (It IS not true to say that no wrItten
documentatIOn had been receIved from Dr ZaidI'S doctor The Employer had a medIcal
certIficate dated June 1, 1995 )
18
Monday, July 3, 1995
ThIs was a statutory holIday and there would have been no postal servIce
Dr ZaidI was placed on leave wIthout payor benefits effectIve thIS date When It was put to Ms.
CunnIngham that It was problematIc for a person wIth senous health hIstOry to be wIthout health
benefits she rephed
As adults we make choIces, and I assume he understood the consequences of hIs
behavIOur; the choice of whether to work or not, it is a choice, but one with
ramifications, dependmg on whether you choose to communicate or not, there
are results.
Tuesd~,-July 4, 1995
Mr Hunter testIfied that on thIS day he had a telephone call from and a conversatIOn wIth
"Barb" from Dr Rajan's office He was asked m exammatIOn-m-chIef what mformatIOn "Barb"
had gIven hIm and he replIed "she dId not; she said that accordmg to Dr Rajan, It was Dr
Glanz's responsibIlIty" It IS reasonable to conclude that Dr ZaidI receIved the June 30th letter
on thIS day
Dr ZaidI testIfied that when he receIved thIS letter, he was becommg frustrated. He dId not
know what was happenmg, was apprehensIve that he mIght find hImself wIth a second heart
attack and had concerns for hImself and hIS famIly He then, he explamed, was subjected to the
addItIOnal stress bemg placed on hIm by the Employer when hIS phYSIcIan had told hIm that he
could not provIde the mformatIOn, and he hImself could not force the physICian to do so He was
not, he stated, saymg that the Employer was deliberately trymg to create a stressful SItuatIOn for
hIm but testIfied that the addItIonal stress of facmg a penod of leave wIthout pay m the
Immediate future also caused concern.
19
On the same day, Mr Hunter wrote the followmg letter to Dr ZaidI marked "PERSONAL &
CONFIDENTIAL"
Dear Urooj
Further to my letter of June 30 1995, I was contacted by Barb at Dr Rajan's office today She
asked me if I had received information regarding yourself from the office over the past few days.
I told [her] I had not.
She advised me that Dr RaJan felt that Dr Glanz, a cardIOlogist you saw June 19, 1995, should
prepare the doctor's note described m previous correspondence sent to you by both Pam Patterson
and myself. As I noted m my June 30th letter, it is your responsibility to ensure written
documentatIOn, in accordance WIth Article 52 10 of the Collective Agreement, is provided to this
office to cover the period you have been away
As I also noted, you are now on leave without pay, effective July 3, 1995
Sincerely
'Signed"
Bob Hunter
Commumty Services Manager
Windsor Area Office
BH/mc
cc Shari Cunningham
Martha Young
Pam Patterson
Wednesday, .July 5, 1995
On thIS day, Dr ZaidI went to Dr Rajan to request a further note that he hoped would satISfy the
Employer Dr Rajan prOVIded the followmg note
DR. A. I. RAJAN, M.D
1760 TECUMSEH RD W
WINDSOR, ONT N9B I V2
TEL.(519) 254-6457 FAX (519)254-6458
For DR. U ZAIDI
Address
20
Date July 5, 1995
R
To Whom It May Concern
Dr Zaidi will see the cardiologist
(Dr A. Glanz) on July 17/95 for Angina Pains.
He also suffers wIth Gout.
He must be cleared by Dr Glanz before
he returns to work.
'Signed"
A. I. RaJan, M.D
SIGNA TURE
DO NOT REPEAT 0 NO SUBSTITUTION 0 PLEASE LABEL 0
REPEAT 1 2 3 4 5 NR
Ms Cunmngham dId not see thIS note untIl the hearmg although It was m the posseSSIOn of the
Employer She acknowledged m cross-exammatIOn that It was reasonable m the case of an
employee wIth a heart condItIOn to see a cardIOlogIst before returnmg to work. However, she
testIfied, the note stIll dId not gIve mdIcatIOn of when Dr ZaidI was to be tested. (There was no
eVIdence that Dr Rajan had that mformatIOn smce the test was scheduled by Dr Glanz's office)
Monday, July 10, 1995
Dr Rajan's note of July 5th (see above) arrIved at the mmIstry office after closmg hours on thIS
day, accordmg to Mr Hunter
Tuesday, .July 11, 1995
A receIpt stamp on the above note says
~ RECEIVED
Mmlstry of Commumty & SocIal ServIces
Windsor Area Office
Jul 11 1995
LOG#
Martha Young, the Human Resources Manager at the tIme then reVIewed the note WIth Mr
Hunter and he wrote that day to Dr ZaidI as follows
21
Dear Urooj
Your doctor's note arrIved today and covers your absence on sick leave to July 17 1995
I have mcluded a copy of the letter Pam Patterson sent to you as an attachment to thIs letter for
you to give to Dr Glanz. It explains the information required and provides a copy of your job
descriptIOn and the physical demands analysis.
Please call Pam Patterson on July 17 after you [sic] doctor's appointment and provide her with an
update. She will also need your doctor's note Immediately after the appointment.
Sincerely
"Signed"
Bob Hunter
Community Services Manager
Windsor Area Office
BH/mc
cc Shari Cunningham
Martha Young
Pam Patterson
It seems that Dr ZaidI was dIrected to report to Ms. Patterson because Mr Hunter was to be on
vacatIOn the week of July 17th.
On thIS same day, Mr Hunter sent the followmg Interoffice Memorandum to Martha Young,
copymg Ms. Patterson and Ms. Cunmngham.
We now have a note from Urooj's family physician mdicating he cannot return
to work until he sees his cardiologist July 17 1995 Please cancel my request to
move Urooj to leave without pay
Pam would you please BF this note for further action after July 17 in my
absence on vacation.
(Dr Rajan's note dId not say that "he cannot return untIl he sees hIS cardIologIst" whIch would
Imply that hIS return should follow shortly after the appomtment. Dr Rajan stated that Dr ZaldI
would see the cardIOlogIst on July 17th. In a separate paragraph, he stated that "He must be
cleared by Dr Glanz before he returns to work." The assumptIOn of the Employer Ignored any
testmg that Dr Glanz mIght order, or any deCISIOn he mIght make. The statement m Mr
Hunter's letter would have led the readers to antlClpate Dr ZaIdI'S return to occur close to July
17,1995)
22
Dr ZaidI'S leave wIthout pay was cancelled as of thIS date and he was placed on leave wIth pay
(sIck benefits) wIth a reVIew set for July 17th.
Mon.day, July 17, 1995
Mr Hunter was on vacatIOn for the first of a two-week vacatIOn penod and Ms Patterson was
delegated the supervIsIOn of Dr ZaidI'S sIck leave.
The eVIdence of Dr Glanz dId not show an appomtment wIth Dr ZaIdI on thIS date
Dr ZaidI'S absence was covered by Dr Rajan's July 5th note, up to and mcludmg thIS date
Dr ZaidI explamed that Dr Glanz asked hIm why hIS Employer wanted "that much
mformatIOn" and told him that he was a heart patIent who was havmg testmg Dr ZaidI testIfied
that he "felt before hIS doctors that [he] was a person not bemg belIeved by [hIS] employer" He
found thIS upsettmg and after dIscussmg the matter wIth hIS wIfe, they deCIded that he should go
to the umon office and dISCUSS hIS concerns Dr ZaidI testIfied that he had never durmg hIS
years m the OntarIO PublIc SerVIce expenenced the ImpOSItIOn of a reqUIrement that he report to
the Employer every tIme he went to the doctor He found thIS unusual.
Tuesday, .July 18Jm
Dr ZaidI, from the Employer's perspectIve, was once agam wIthout a phYSICIan's note to cover
hIS absence Ms Patterson receIved the mformatIOn VIa a VOIce mall message that Dr ZaidI was
havmg a treadmIll test at the Windsor Western on July 25th and that he/she would be m touch
after that tIme (It was not clear when Dr ZaidI was mformed about the date of the treadmIll test
appomtment.) There was no commUnICatIOn from Dr Glanz's office
Monday,.J~4Jm
Mr Hunter was away for thIS, the second week of hIS vacatIOn.
Dr ZaidI was agam placed on leave WIth payor benefits effectIve thIS date, the date before the
date that Dr ZaidI had mformed the Employer m a vOIce-mail to Ms. Patterson that he was to
undergo a treadmIll test.
23
Mr Hunter explamed that the leave wIthout pay commencement date of July 24, 1995, also
allowed a week's grace from the date that Dr ZaidI was to see Dr Glanz m keepmg wIth the
notes from Ms Patterson.
Tuesday, .July 25, 1995
Dr ZaidI completed the treadmIll test ordered by Dr Glanz. ThIs test was admmIstered by a
physIcIan other than Dr Glanz and two nurses were present. Dr ZaidI receIved no mformatIOn
about hIS test results at the tIme It was hIS understandmg that the results of the test were to be
later forwarded to the referrIng physICian who, m turn would contact hIm and share the test
results wIth hIm. Dr Rajan testIfied that he, as Dr ZaidI'S famlly phYSICIan, receIved a copy of
the results and thIS would have been several days followmg the test.
Friday, .July 28,1995
F ollowmg "a one week grace penod", as he saw It, ,Mr Hunter wrote agam to Dr ZaidI
Dear UrooJ
With reference to my letter of July 11, 1995, we have not receIved a doctor's note as outlined in
the attachments to the letter
As you have faIled to prOVIde appropnate documentatIon, you are being placed on leave-wlthout-
pay effective July 24 1995
If you have any questIOns, please call Pam Patterson in my absence until I return from vacation on
August 8, 1995
Sincerely,
"Signed"
Bob Hunter
Community Services Manager
Windsor Area Office
~ Shari Cunningham
cc
Martha Young
Pam Patterson
BH.kc
Shortly after recelvmg the letter of July 28th, Dr ZaidI took It to the umon office where he met
WIth Gerry Layden and durmg theIr dISCUSSIOn they touched on the reqUIrement to prOVIde a
24
medIcal certIficate partIcularly after five days' absence Dr ZaidI testIfied that he attempted to
telephone Dr Glanz's office but that there IS an extended VOIce mall system and a system to deal
wIth emergencIes. He stated that he left messages but offered the opmIOn that Dr Glanz was an
extremely busy doctor and that he was concerned that bothenng hIm too much could result m hIS
becommg hostIle Durmg August, accordmg to Mr Layden's testImony, he had numerous
telephone conversatIOns wIth Dr ZaidI respectmg hIS suspensIOn from benefits. He also asked
Dr ZaidI to get copIes of the medIcal certIficate dated July 5, 1995, WhICh he had submItted to
the Employer Mr Layden explamed that It was very rare for hIm to become mvolved m a
gnevance pnor to Stage II, but m the case of Dr ZaidI, he dId because It became apparent to hIm
that Dr ZaidI was extremely dIstressed and concerned about hIS health.
Monda~gust7, 1995
ThIS was a statutory holIday
Tuesday, August 8,1995
Mr Hunter returned from hIS vacatIOn.
lliesda}'., August 22, 1995
On thIS day, Dr ZaidI attended at Dr Glanz's office and SIgned a medIcal release whIch allowed
Dr Glanz to release mformatIOn respectmg hIS medIcal SItuatIOn to the "Mimstry of CommunIty
and Social ServIces"
~
Mr Hunter, concerned that Dr ZaidI was halfway through the sIx-month benefit penod, sent
the followmg letter to hIm "to keep attentIOn on the Issue and to attempt to resolve the Issue from
an operatIOnal standpomt"
Dear Urooj
On July 28, 1995, I wrote to you advismg you that we had not received a doctor's note for your
absence from work for the period after July 17 1995, the date Dr Rajan indicated you were
seemg Dr Glanz. To date a doctor's note has not been received by our office
Our objectives in requesting the note are threefold, to provide documentation for your absence in
accordance with Article 52.10* of the CollectIve Agreement; to facilItate your return to work
25
should any accommodations be necessary; and to plan for the completion of your work in your
absence to meet operational requirements.
My letter of July II, 1995 included a letter to your doctor outlining the information requITed, a
copy of your job specification, and your position's physical demands analysis to assist your doctor
in determining the length of your absence and any accommodatIOns necessary to facilItate your
return to work. I am including an additional copy, should it be required.
Please ensure that a doctor's note is provided, as previously requested, or a written explanation of
the reasons preventing the submission of the medical documentation. Ifwe have not received
either of these documents from you by August 31 1995, we will have to review our posItion.
If you have any questions, please do not hesitate to call me
Sincerely
"Signed"
Bob Hunter
Community Services Manager
Windsor Area Office
BH/ly
Attach.
ThIS letter gIves the first 'warnmg - "If we wIll have to reVIew our pOSItIOn."
(* The ImplIcatIOn of Mr Hunter's statement IS that Dr ZaIdI has falled to comply With ArtIcle
52 10 ArtIcle 52 10 reqUIres a certIficate of a legally qualIfied medIcal practltIOner after 5 days,
and at thIS pomt, the Employer was m posseSSIOn of two)
Ihursday, August 24Jm
Dr ZaidI attended an appomtment WIth Dr Glanz on August 24, 1995, approxImately two
months after seemg hIm for the first tlme, and one month after havmg undergone the treadmlll
test. He was gIven the results of the treadmIll test. Dr Glanz testIfied that hIS appomtment WIth
Dr ZaidI on thIS day was "to see what should be the next step followmg the treadmIll test" It
was Dr Glanz's declSlon on thIS day, that he reqUIred further mformatIOn before arrIvmg at a
dIagnOSIS (ThIS IS apprOXImately 3 months after Dr ZaidI left work due to Illness) At that tIme
he ordered a MIBI scan to determme If Dr ZaidI'S symptoms were "truly cardIac" and whether
or not he should order another angIOgram, a procedure WhICh Dr ZaidI had undergone followmg
26
hIS heart attack. He also prescribed addItIOnal medIcatIOn for what he thought was worsemng
angma (transderm mtro patch) This was the first tIme that Dr ZaidI had been prescribed thIS
medIcatIOn.
At that tIme, It was Dr ZaidI'S understandmg that Dr Glanz's mvestIgatIOns were contmumg,
that dIagnOSIS of hIS current condItIon was mcomplete, that arrangements were to be made for
hIm to take a MIBI test, and that he was bemg advIsed to remam off work. Dr ZaidI testIfied
that he conveyed to Dr Glanz that there was a problem that hIS Employer needed "that
mformatIOn and thIS should be sufficIent", and that he was on leave wIthout pay He belIeved
that he dId not send the enclosures (the job specIficatIOn and phYSIcal demands analysIs) to Dr
Glanz smce he had already provIded that mformatIOn to hIm at an earlIer date. It was hIS
understandmg that Dr Glanz had promIsed to hIm that he would provIde the mformatIOn to hIS
Employer
Eriday, August 25, 1995
On thIS date, the day followmg Dr ZaidI'S appomtment, Dr Glanz wrote a letter to Mr Hunter
There IS no eVIdence of how It was sent or where It went astray but It does not appear to have
arrIVed on Mr Hunter's desk. The first tIme thIS letter was seen by hIm was when he was gIven
a copy by Mr Layden on September 21, 1995 ThIS was, no doubt, a copy of Dr ZaidI'S copy
WhICh he had provIded to Gerry Layden.
Bob Hunter
Ministry of Community & SOCIal Services
~ 250 Windsor A venue
Windsor, Ontario
SIr'
~ UrQQ~.O.B. FebruaL~15~42
Mr ZaidI IS my patIent and I have seen him on June 19, 1995, as well as August 24 1995 He is currently
undergoing investigations with respect to his medical status.
Sincerely,
'Signed"
Anthony Glanz, M.D., FRCPC
jem
cC' patIent
27
(ThIS letter does not mentIOn the appomtment of July 17th, nor does It explIcItly address whether
Dr ZaidI can return to work, or when that mIght be possible )
ThIs letter to Mr Hunter wIth a copy to Dr ZaIdI was the result of Dr ZaidI'S diScussIon wIth
Dr Glanz. NeIther Dr Glanz, Dr ZaidI nor Mr Hunter was able to explam why Dr Glanz's
letter of August 25, 1995, was not receIved by Mr Hunter Dr ZaIdI testlfied that he had
receIved hIS copy promptly From hIS knowledge at the tIme, he testIfied, he had hIS copy of the
letter whIch Dr Glanz had sent to Mr Hunter and assumed that he had satlsfied the Employer's
reqUIrement. (He was stlll on leave WIthout pay and benefits from July 24th, that IS,
approxImately one month.)
Eriday, September 1, 1995
A week later, Dr Glanz wrote agam to Mr Hunter as follows
Bob Hunter
Ministry of Community of [sic] Social Services
250 Windsor A venue
Windsor, Ontario
Sir
Re: Urooj Zaidi - D O.B. February 15, 1942
Dr Zaidi is currently undergoing investIgation for chest pams, and until these are finished I have
recommended that he not return to work.
Sincerely,
"Signed"
Anthony Glanz, M.D FRCPC
Jem
cc:pt [patient]
-
(ThIS letter explIcItly addresses the fact that Dr Glanz IS recommendmg Dr ZaidI not return to
work and It IS reasonable to assume that It was wrItten m response to the defiCIency m the letter
of August 25th havmg been pomted out to hIm. The eVIdence dId not show by whom.)
Dr Glanz testIfied that he based hIS declSlon that Dr ZaidI should not return to work at that tIme
on the fact that
28
Dr Zaidi had suffered a previous heart attack and was having worsening angina, I was concerned
that If he truly was having worsening angina that a return to work might cause more chest pains
and angina and until we knew the source of hIS pain and how bad the underlying problem was, he
should not go back to work. Ifhe had developed more narrowings in all the major arteries, he
would be set for having another heart attack and I thought that until we reassured ourselves that
that was not the case, he should lay low
Monday, September 4, 1995
ThIS was a Statutory HolIday and therefore there was no mall delIvery and offices were closed.
Tuesday, September 5, 1995
At thIS pomt m tIme, Mr Hunter had not receIved eIther of Dr Glanz's letters from August 25th
and September 1 st. The first had gone astray and the second was en route Mr Hunter testIfied
that, havmg receIved no correspondence from Dr Glanz, he and Ms. Young collaborated m the
draftmg of the followmg letter and he testIfied that he hoped m It to provIde alternatIves and
potentIal aSSIstance to Dr ZaidI, and to secure a prognoSIS. Mr Hunter had heard, he belIeved
though Gerry Layden, the umon staff representatIve, that Dr ZaidI was expenencmg dIfficulty
m secunng a letter from Dr Glanz.
(At thIS pomt, Dr ZaidI has sIgned a release whIch would allow Dr Glanz to speak WIth Mr
Hunter, or any representatIve of the Mimstry of CommunIty and SOCial ServIces. ThIS was
known to Dr ZaidI, Dr Glanz's secretary, and most probably Mr Layden. There was no
eVIdence as to when Dr Glanz was mformed of the release, nor was there eVIdence to suggest
;vhen Mr Hunter was mformed that thIS release had been sIgned.)
Mr Hunter sent the followmg letter to Dr ZaidI on thIS day
Dear Urooj
On August 22, 1995, I wrote to you advising you that we had not received a doctor's note for your
absence from work for the period after July 17, 1995 I noted the ratIonale for requestmg the note
was specifically to provide documentation for your absence from work since July 17 to facilitate
your return to work should any accommodations be necessary; and to plan for the completion of
your work to meet operational requirements. I also provided you with a copy of a letter
previously sent to you for your doctor outlining the information to be included in the note, a copy
of your job specification and physical demands analysis to assist your doctor in determining your
29
prognosis and return date to work. Finally I asked you to respond to my request by August 31,
1995, by eIther providing the doctor's note or an explanation of the reasons preventmg submission
of the note.
To date we have not received a doctor's note or a written explanation of your inability to provide one
Without an explanation from you, I am assuming that you are unable to secure a note from your
doctor Given the rationale for submitting a note, I am proposing a couple of options to facilitate
the submission of one
You could ask Dr Glanz to contact Martha Young, Human Resources Manager She In turn
would outline the need for the prognosis (not the diagnosis) and your possible return date to work
and would encourage Dr Glanz to assist us by providing the reqUIred documentation.
AlternatIvely, arrangements could be made WIth another doctor under provisions of Article 52.10
of the Collective Agreement, at our cost, for an examinatIOn and preparation of a doctor's note in
compliance with the Article.
Would you please contact either Martha or myself by September 12, 1995, to discuss these
options. If you do not contact us by September 12, we will assume you do not wish to consider
these options. In that case I would again ask you to supply the requested documentation, this time
by September 12 as well. Ifwe have not heard from you by that date further action will be
required.
If you have any questions please do not hesitate to call me or Martha Young at 254-5355 My
extension is 236 and Martha is 206
Sincerely,
'Signed"
Bob Hunter
Commumty Services Manager
Windsor Area Office
BH/mc
cc. Gerry Layden
Shan Cunnmgham
bcc Pam Patterson
Marsha Gottesman
At the tlme thIS letter was wrItten and sent, Dr Glanz had sent two letters to Mr Hunter but Mr
Hunter had receIved neIther
ThIS letter proVIded the second 'warnmg' - "If. further actIOn w1l1 be reqUIred"
Thursday$eptember 7, 1995
Dr ZaidI delIvered hIS copIes of Dr Glanz's August 25th and September 1st letters to the
OPSEU office m Windsor
30
The Human Resources Department of the MinIstry of CommunIty and SOCial ServIces receIved
the ongmal of Dr Glanz's September 1st letter
'"
It IS reasonable to conclude that Dr ZaidI receIved Mr Hunter's letter of September 5th, on thIS
date Dr ZaidI stated that he was surpnsed to receIve It m VIew of the fact that Dr Glanz had
sent two notes to the Employer He knew thIS because he had been copIed on both. His
proVISIOn of them, Dr ZaidI testIfied, must have been the result of hIS conveymg to Dr Glanz
that the Employer was askmg for further mformatIOn. Dr ZaIdI VIewed the September 5, 1995
from the Employer letter as further harassment. He testIfied that Dr Glanz, bemg one of only
two heart specIalIsts m Windsor, IS "always on the run" and he asked hImself "who was I to call
hIm and ask hIm to call that person and prOVIde mformatIOn" Accordmg to hIm, he had
prOVIded the mformatIOn to Dr Glanz and he conSIdered It mappropnate for hIm to tell the
doctor what he should wrIte m hIS letter to the Employer
Dr ZaidI testIfied to hIS phYSIcal and psychologIcal state dunng the early fall of 1995 as follows
Physically I felt fatigued, I felt I got tired easily and short of breath and did not go on normal
walks and as a result gained wait and was having chest pains off and on. But, on top of all this, I
was havmg thIS dIstress. I am not gomg to say it was 100% caused by the letters, but I think they
did play some part in aggravating my position. It also hurt my self-respect quite a bit that every
day every week; I have grown-up children going to university and my daughter completing a
Ph. D How would they feel? At times I would not share what was happening, their father sick on leave
without pay and psychologically, it hurt quite a bit, and it continues to hurt and having served the Province
of Ontario for 16 years, this hurts quite a bIt. This remains as a scar, this is the reward that I get.
.fie testIfied that at the tlme, whIle he dId not feel "completely handIcapped", he dId not feel
capable of puttmg m an eIght-hour day He dId spend tlme readmg, and wrItmg artIcles whIle he
was at home, although could not work for more than a two-hour stretch. He dId not, he
explamed, have the concentratIOn to wrIte artIcles for mternatIOnal journals as he was unable to
concentrate adequately He reqmred more sleep than normal and also belIeved that he suffered
drowsmess as a SIde-effect of hIS medICatIOn.
31
Tuesday, September 12, 1995
On September 12,1995, Human Resources sent the standard long term dIsabIlIty letter for
employees who have been on short-term sIck benefits for four to SIX months, to Dr ZaidI to
remmd hIm that hIS short-term sIck leave would be fimshed m a couple of months and settmg out
the procedure for hIm to apply for L TIP It went out under the SIgnature of Sauoz Viram and read
as follows
Dear Mr Zaidi.
To ensure continued salary protection when your short term sickness benefits and vacation credits
are exhausted, an application for L.T.I.P is enclosed. Application for this benefit is optional.
However in order to be eligible for payment, L TIP [sic] claIms must be submitted no later than
six months following the qualifying period.
To apply for L.T.I.P benefits, the enclosed Claimant's Statement must be fully completed
by you, and your doctor(s) must complete the enclosed Attending physician's Statement of
Disability It is upon your physician's report that the Insurance Company will base its deCIsion to
approve (or disapprove) the L.T.I.P benefits. Once your claim is established the Insurance
Company may, from time to time, request further medical evidence to continue your L T.I.P
claim.
Once the forms have been completed, please send them directly to Manulife, Toronto Group Life
& Disability Claims, One Mount Pleasant Road, Toronto, Ontario M4Y 2L8 and advise Windsor
Human Resources.
The insurance carrier requires that we complete an Employer's Statement. It is therefore very
important that we be advised when you send your forms directly to them. We will then forward
the completed Employer's Statement.
A condition ofL.T.I.P is that you must apply for Canada Pension Plan disability benefits. This
entire benefit is deducted from your L.T.I.P benefit. If you have not already contacted your local
c.P.P office to file a claim, you should do so now When you receive your responses from c.P.P
please ensure a copy is forwarded to the insurance company immediately
For any period of leave without pay in excess of one calendar month during the waiting period
(i.e. prior to L T.I.P claim approval you will be billed monthly for the whole premium of your
~ insurance plans. You will be provided with a Record of Employment and will be able to collect
UIC sick benefits immediately Once you begin getting LTIP [sic], UIC will have to be refunded.
Once your claim has been approved, cheques in the amount of 66 2/3 % of your gross salary (less
c.P.P as noted above) will be mailed to you directly from the insurance carrier This is a taxable
payment and in order that appropriate tax deductions may be made, please complete both copies
of the Income Tax Exemption Form TD-I and return them along with your Claimant's Statement.
You will no longer be required to pay L.T.I.P premiums and your other insurance coverages will
be kept in force at no cost to you. You will no longer make pension contributIOns, your OPSEU
Pension Trust contributions will be made on your behalf by the Ministry
32
Please feel free to contact me or Martha Young if you have any questions.
Yours truly,
Sairoz Virani
f" Human Resources Representative
SV/lg
Encl. ClaImant's Statement
Physician s Statement (2)
TD-l (2)
cc Personnel File
[Emphases added]
Ms. V IranI explamed that the process' of qualIfymg for long term mcome protectIOn IS lengthy
and reqUIres the partICIpatIOn of both the employer and the employee m order that the msurance
company may begm consIdenng whether or not the applIcant meets the elIgibIlIty cntena of
"wholly and contmuously dIsabled" The aIm, she explamed, IS to ensure that the employee
does not expenence a break m benefits. It IS not the practIce of Human Resources to contact the
employee dIrectly dunng thIS process as the process can proceed WIthout the necessIty of thIS.
An mVItatIOn IS, however, extended to the employee to contact a person m Human Resources If
questIOns arIse In the case of Dr ZaidI, he was mVIted to contact Martha Young.
Friday ,Be.p-tem ber 15Jm
Havmg no verbal commumcatIOn WIth Dr ZmdI, and wantmg a prognosIs so that he could ensure
that the work normally performed by Dr ZaidI could be carrIed out, Mr Hunter once agam
)Vfote to hIm on September 15,1995 mdIcatmg that the medIcal note of September 1,1995 was
unsatIsfactory
Dear UrooJ
Dr Glanz's note of September 1,1995 was received in the Windsor Area Office on September 7
1995 Unfortunately the note does not provide the information outlined in our correspondence to
you dated September 5th, August 22nd, July 28th, July 11 th and June 13th, 1995 Three of these
letters included a letter to your doctor, that you were asked to deliver * The letter to your
doctor outlined the information to be included in the doctor's note. Additionally, a copy of your
description and the physical demands analysis for the position were included to assist your doctors
in determining your prognosis, possible return date to work and any accommodations necessary
for your return.
33
A doctor's note should mclude information concerning your prognosis and an estimate of how
long you will be absent from work, Ie, a possible return date and any accommodations required.
A note wIth this mformation would assist us in planning for the maintenance and completion of
your work aSSIgnment WIth thIS office
., As the current note is not sufficient, your status will not be changed to sick leave with pay We
are prepared, however, to rem state you on the payroll with retroactivity once we have a doctor's
note as described. Alternatively, you could provide us with written permission to speak to Dr
Glanz, allowing us to secure the required information. **
You will also receive under separate cover a Long Term Income Protection application as you are
now in your fourth month of absence from work. This is our normal practice.
UrooJ, your assIstance is required in securing the required information from your doctor
Provision of this information will allow us to make decisions regarding your payroll status and
completion of your work. Would you please comply WIth our request by September 30,1995
failing which we will have to consider further action.
If you have any questions, please do not hesitate to contact either myself or Martha Young.
Sincerely
"SIgned"
Bob Hunter
Community Services Manager
Windsor Area Office
c.c. Jerry [sic] Layden
Martha Young
BH.kc
[Emphases added]
(*ThIs suggests that the Employer belIeved that Dr ZaidI had not taken the letters to hIS
phYSICIans, when m fact he had delIvered one to Dr Rajan, and one to Dr Glanz, shortly after
recelvmg them.)
(** Dr ZaidI had already completed one-half of thIS process, by sIgmng a medIcal release on
August 22, 1995, ( three weeks earlIer) to allow Dr Glanz to release mformatIOn about hIS
medIcal SItuatIOn to mmIstry personnel but thIS mformatIOn appears not, at thIS tIme, to have
been conveyed to Mr Hunter by Dr ZaidI, Mr Layden, or Dr Glanz's office)
ThIS letter contamed the thud 'warnmg' - "faIlmg whIch we WIll have to conSIder further
actIOn"
34
Tuesday, September 19, 1995
ThIS was the first appomtment that Dr Glanz's office scheduled for Dr ZaidI'S MIBI test
Accordmg to Dr ZaIdI, when he was told of thIS date, he ask Immediately for a dIfferent date as
,
he realIzed that he would not be able to keep the September 19th appomtment because of famlly
and relIgIOUS commItments surroundmg the aCCIdental death of hIS nephew m Texas. He receIved
the October 24th appomtment date (at whIch tIme he attended and completed the test) at the same
tIme he refused the September 19th date
Ms. Cunmngham testIfied to her perceptIOn of the SItuatIOn. Dr ZaIdI "had a date and chose not
to attend because he had a death m the famIly, not ImmedIate but extended" She went on to
explam that If she were "really SIck and needed specIal testmg [her] health would be [her
pnonty]"
Thursday, September 21, 1995
Dr ZaidI testIfied that followmg hIS receIpt of the September 15th letter, he sought Mr Layden's
aSSIstance once agam. On thIS day, he also completed the first of hIS two gnevances, the
demal of SIck benefits Mr Layden explamed that at the tIme Dr ZaidI submItted thIS gnevance
to the Employer on September 21 1995, he was st1l1 under stress and was gettmg extremely
upset. Mr Layden delIvered the letter to the Employer on the day It was completed. He had, m
Mr Layden's opmIOn, done what he could to comply WIth the demands of the Employer It was
Mr Layden's ImpreSSIOn that Dr ZaidI was feelmg "a tremendous amount of pressure from the
!vfimstry" and that there was frustratIOn on both sIdes. For these reasons, and the fact that the
doctor was extremely busy, Mr Layden recommended that Dr ZaidI gIve permIssIOn to the
Mimstry to contact Dr Glanz dIrectly as suggested m the letter of September 15,1995 from Mr
Hunter Mr Layden saw thIS as an OpportunIty to "speed thmgs up" and to take some of the
stress off Dr ZaidI Dr ZaidI proVIded thIS authonty VIa a handwrItten note dated September
21, 1995 WhICh IS CIted below Mr Layden stated that no tIme frame was dIscussed and the
authonty was, he belIeved, WIthout an expIry date and was there for the Mimstry to use untll the
Issue got resolved.
35
It was Dr ZaidI'S understandmg that he was provldmg the authonzatIOn to Mr Hunter as a
representatIve of the Mimstry of CommunIty and Social ServIces and not as an mdlvIdual He
,,- testIfied that he mtended the authonzatIOn to be open-ended and wIthout restnctIOn on the
mformatIOn requested or provIded. It read as follows
This letter is to authorise you to communicate with Dr Glanz,
my Cardiologist, with respect to my medical status, as
requested in your letter of Sept 15th, 1995
"Signed"
U.A. Zaidi
Dr ZaldI thought that gIvmg both the Employer and Dr Glanz authonty to communIcate dIrectly
WIth one another should solve the problem. It was hIS expectatIOn that the Employer would get
m touch WIth Dr Glanz and would then dIscover that he "was not makmg It up" He testIfied
that If eIther the doctor or the Employer had telephoned and sald that he was cleared to return to
work he would have returned. But, he had no commumcatIOn from eIther
ThIS IS also the day on whIch Mr Layden and Mr Hunter were m touch WIth one another and
Mr Hunter learned from hIm that there were two notes and that when he, Mr Hunter, mformed
hIm that he only had the September 1 st note from Dr Glanz, Mr Layden prOVIded hIm WIth a
photocopy of the August 25th one The letter had a date stamp notmg that It was receIved at the
OPSEU Windsor Office on September 7, 1995 and Mr Hunter noted that he receIved a
"photocopy from Gerry Layden" on September 21, 1995
~
ThursdaY+-September 28Jm
On September 28, 1995, Mr Hunter completed and SIgned the Employer's Statement respectmg
an L TIP clalm for Dr ZaidI. It was held untIl November 24, 1995 at whIch tIme It was
forwarded.
36
Eriday, October 6, 1995
On October 6, 1995, Mr Hunter wrote to Dr Glanz as follows
Dear Dr Glanz:
I have been advised that Mr Urooj Zaidi has now provided you with the authority to release
informatIon to us regarding hIS prognoSIS.
To allow this office to plan for the completion ofUrooj s work we would request a prognosis
outlining an estimated length of absence or date of return to work. Our Ministry is committed to
working with the employee and their phYSIcians to facilitate and assist employees in returning to
the workplace.
In order to further assist you to understand Urooj s duties, I have enclosed the position description
and physical demands analysis, which collectively should outline the essential duties and the
phYSIcal demands of the jobs. Would you please review the enclosed documents to determine the
anticipated length of time the employee may be off work before he could resume his normal
duties or return to modified work.
This Mmistry is committed to providing accommodation that would facilitate Urooj's return to
work. We do not require any personal information or confidential medical information but rather
your assessment based on the demands of the job Information required should outline the
employee s capabilities and limitations and work restrictions in relation to the demands of the job
If further medical testing is required before determining the prognosis, please indicate when you
would be in a position to provide this information.
We would appreciate receiving your response, by courier, at your earlIest convemence. If there IS
a charge for providing this information, please attach an invoice to your assessment.
If you have any questions or concerns, please contact me at 254-5355 extension 236 or Nancy
Jackson in Human Resources at extension 206 Thank you for your assistance
Smcerely
'Signed"
Bob Hunter
CommunIty ServIces Manager
Windsor Area Office
~ BH/jf
Attachments
cc. Gerry Layden
ThIS letter was wrItten SIX weeks after Dr ZaidI had SIgned a medIcal release at Dr Glanz's
office and two weeks after Mr Hunter had receIved the authonzatIOn from Dr ZaidI to contact
Dr Glanz.
37
Tuesday, October 24, 1995
Dr ZaidI underwent a Myocardial PerfuSIOn Study (MIBI Scan) as ordered by Dr Glanz, m the
Department of Nuclear MedIcme at the Hotel DIeu Grace HospItal m Windsor Mr Layden
testIfied that he was aware that there had been a delay m Dr ZaidI'S undergomg thIS test, but that
It had taken place dunng October, the month durmg WhICh he, Mr Layden, was on vacatIOn for
three weeks. He was not, however, aware of the results The testmg servIce reported the results
of the test to Dr Glanz at some later date, Dr ZaidI reported hIS attendance at the test to Mr
Layden, but no one conveyed the fact of Dr ZaidI'S attendance to the Employer, not Dr ZaidI,
Mr Layden or Dr Glanz.
Wednesday, November 1, 1995
The letter below IS that whIch Dr Glanz wrote to Mr Hunter followmg receIpt of the latter's
letter of October 6, 1995 Dr Glanz explamed that he receIved thIS letter earlIer and explamed
that a three and half week delay m response tlme was not unusual. He stated that
Most of my time IS spent treating ill patients. Work requests like this fall to the
bottom of the pile regularly I take about one day a month to deal with what has
no bearing on cardiac condition. If a day goes by and I don t get it done, I need
to tend to outpatients. It could wait another month.
November 1, 1995
Dear Mr Hunter
Re:. IImoj Zaidi - D.O.B. February 15, 1942
~ In response to your letter dated October 6, 1995 I have reviewed the informatIOn regarding Mr
Zaidi's job description. To bring you up-to-date on Mr Zaidi's condition, he has suffered a
previous myocardial infarction and had been doing reasonably well until this summer when he
had a few episodes of lightheadedness and presyncope. He also redeveloped angina. I saw hIm
on June 19, 1995, and arranged a exercise treadmill test at that time which he completed on July
25, 1995 He developed angina at a low workload WIthout electrocardiographic changes, and in
order to plan further management I arranged for him to undergo an exercise MIBI scan at Hotel
Dieu-Grace HospItal. My understanding is that this was booked for September 19 1995, but
because of a death in his family Mr Zaidi had to cancel that and is working out with Hotel Dieu-
Grace Hospital when this can be rebooked. [Dr Glanz was unaware it had been rebooked and in
fact completed.] My plans are to see him after the results of that scan IS [sic] available so that any
further therapeutic decisions can be made at that point in time. Until then, however, I think that
he should remain off work given his poor exercise tolerance and the demands of a job as described
38
in hIS job description. I hope this information is of some help to you. After he has completed his
MIBI scan I will be seeing him agam, and at that point further information as to his suitabilIty to
return to work may be available.
Sincerely
'Signed"
Anthony Glanz, M.D., FRCPC*
It was the conclUSIOn of Dr Glanz, when asked, that he dld not have the results of the MIBI
Scan whIch had been completed a week earlIer, at the tIme he wrote thIS letter ThIS letter was
not copIed to Dr ZaidI or to Mr Layden and nelther saw It untll the tIme of the hearmg m late
1997 Nor dId Ms. Cunmngham VIew It pnor to the hearmg When she dId, she testIfied that
Dr ZaidI had cancelled the MIBI test and had to rebook It. WhIle she agreed that he could not
have returned to work, she stated that hIS mabIlIty to do so resulted from hIS failure to undergo
the test.
Wednesday, Noyember 8, 1995
It was on thIS day that Dr Glanz's letter of November 1st was receIved at the Windsor Area
Office of the Mimstry of CommunIty & SOCial ServIces
Friday, N oY.eI11her 24, 1995
As of November 24,1995 Dr ZaidI had exhausted the 130 days of short term sIck leave
aVailable to hIm. In Ms. Cunmngham's VIew, he was absent wIthout permIsSIOn from November
24, 1995 to hIS dIsmIssal on May 6, 1996 Accordmg to her,
when you want to be absent, in government, you write a
request, and If you want to be home wIth your famIly or for
other reasons, "you don't just go away
On that same date, Ms. VIranI forwarded to Ms. Lynda Dewar at ManulIfe, the Employer's
statement, a copy of Dr ZaidI'S job descnptIOn, phYSIcal demands analYSIS and a bnef summary
of hIS "educatIOn, trammg and expenence" In the Employer's statement, It was mdIcated that
Dr ZaidI'S dIsabIlIty first appeared to affect hIS work on May 26, 1995, and that he had not
39
returned to work followmg that date It also stated that m order to consIder whether he could
return to modIfied dutIes, the Employer would need accommodatIOn mformatIOn and that thIS
had not "been forthcommg"
'"
Tuesday, December 5, 1995
Ms VIranI receIved a reply from Ms. Dewar dated December 5,1995 whIch was copIed to Dr
ZaidI
Dear Ms. Virani.
RE. UROO.J ZAIDI - Policy 15902 Div 58-27 - Cert 453 142 119
We have receIved the Employer Statement submitted on behalf of the above named insured.
In order for him to be eligible for Lpng Term Income Protection benefits, he must be wholly and
continuously disabled by illness or accidental bodily inJury which prevents him from performing
the essential duties of his normal occupation.
This claim will remain pending awaiting receipt of the Claimant Statement and Physician
Statement.
Wednesday, December 13, 1995
Mr Layden sent the standard post-Stage I letter to the Deputy Mimster ofthe MmIster of
CommunIty and SOCIal ServIces, Sandra Lang, mformmg her that the Stage I response to the
SIck Benefits gnevance of Dr ZaidI was unsatIsfactory and that the gnevance was bemg referred
to Stage II and that the partIes had agreed to meet on December 14, 1995, for the Stage II
meetmg In that correspondence WhICh was copIed to Dr ZaidI, A. Gaspar, (PresIdent of Local
133), and Nancy Jackson (local Human Resources) he mformed as follows
~ As I am acting on behalf of the grievor, I would ask that all
correspondence be addressed to me and that there be no direct
contact with the grievor by a member of Management
regarding this matter
The Employer mterpreted thIS letter to mean that It should have no contact whatsoever WIth Dr
ZaidI.
40
Thursday, December 14, 1995
The Stage II meetmg respectmg Dr ZaidI'S gnevance regardmg demal of sIck benefits took
place thIS day It was chaired by Ms. Cunmngham who testIfied that she does not do a lot of
, Stage II meetmgs, but thought It was Important that she should hear Dr ZaIdI's gnevance
because of the Issues. It was, she testIfied, her hope that the partIes could come to a settlement.
At thIS pomt, Dr ZaidI had been wIthout mcome and benefits smce July 24th, a penod just short
of 5 months. Dr ZaidI dId not attend. belIevmg that he would find hIS partIcIpatIOn stressful and
concerned that It could aggravate hIS Illness. He explamed further that he was also, at thIS pomt,
feelmg humIlIated even though he found Mr Layden kmd and SupportIve
Mr Layden had undertaken to represent Dr ZaidI. Mr Hunter understood from Mr Layden that
Dr ZaidI had not receIved the L TIP applIcatIOn and Mr Hunter undertook to have one forwarded
to hIm, as he understood that the ongmal one had been lost m the mall. Mr Hunter also
understood that Mr Layden was gomg to try to provIde the requested medIcal mformatIOn.
Accordmg to Mr Layden, he was mformed at that tIme, that the Mimstry had not receIved the
mformatIOn. It was hIS understandmg that no formalIzed agreement was arrIVed at as to how the
medIcal mformatIOn would get to the Mimstry He belIeved that If the doctor provIded the
mformatIOn to Dr ZaidI that "he would have to get It to the Mimstry, or the doctor could send It
dIrectly to the Mimstry" (ThIS was almost four months after Dr ZaidI had sIgned a medIcal
release wIth Dr Glanz and three months after he had provIded authonty for the Employer to
contact Dr Glanz dIrectly for the mformatIOn It reqUIred respectmg hIS medIcal SItuatIOn.) They
~greed that dunng the processmg of the L TIP applIcatIOn, that Dr ZaidI would be on a leave of
absence wIthout pay and that he, Mr Hunter, would mItIate the leave of absence applIcatIOn
process by provIdmg the appropnate form.
Accordmg to Ms. Cunnmgham, the agreement that was made at thIS tIme was that the
representatIve and the employee were gomg to provIde addItIOnal medIcal mformatIOn, not that
the Employer was gomg to seek It out. The ball was clearly back m Mr Layden's and Dr
ZaidI'S court, accordmg to her
41
Friday, December 15, 1995
Mr Layden testIfied that he conveyed what he had agreed to to Dr ZaidI on thIS day He was
asked m cross-exammatIOn If he was concerned that Dr ZaIdI would be wIthout pay, and he
replIed that he was. In hIS vIew, at the tIme ofthe Stage II meetmg, Dr ZaidI stIll had an
employment relatIOnshIp WIth the Employer He was also asked If he had dIfficulty contactmg
Dr ZaidI and he testIfied that he dId not, WIth the exceptIOn of one penod, but that he was aware
that Dr ZaidI had dIfficulty contactmg hIm.
Accordmg to Ms Cunmngham, Dr ZaidI was not offiCially absent at thIS pomt. The Employer
had no documentatIOn to that effect.
Saturday, December 16,1995 to Tuesda~
Mr Layden mdIcated that the OPSEU office was closed for the ChrIstmaslNew Years penod.
Monday, .January 1, 1996
ThIS was a statutory holIday
In January 1996, although thmgs may not have been movmg along as he would have liked, Mr
Layden belIeved they were "makmg headway"
Erida~5, 1996
Dr ZaidI completed and SIgned the applIcatIOn requestmg a month's leave and It was faxed to
the MinIstry from the OPSEU office On receIvmg Dr ZaidI'S applIcatIOn for the leave of
absence m early January 1996, Mr Cook notIced that the dates for the leave were mcomplete
and he asked Ms. VIranI to follow thIS up WIth Mr Layden. He explamed that hIS was a normal
duty for her at the tIme smce the office was mvolved m preparatIOn for the stnke
Mr Hunter explamed that the length of the leave - four to SIX weeks - was based on the medIcal
mformatIOn proVIded and that "a medIcal condItIOn preventmg attendance at work IS reqUIred to
support an applIcatIOn for leave WIthout pay" The commItment he made respectmg the leave
was based on the lmk between the medIcal condItIOn and the leave and would be conSIdered
42
based on the medIcal mformatIOn receIved. (The Employer had receIved Dr Glanz's detalled
letter on November 8, 1995) Ms. Vlram explamed that when an employee IS movmg from short-
term to long-term benefits a three-month leave IS often agreed to by the Employer and the
Employee because thIS tIme penod fits m wIth the processmg tIme reqUIred for long-term
benefits
Dr ZaidI, havmg had his benefits restored, assumed that the necessary medIcal mformatIOn had
been receIved by hIS Employer He dId not recall bemg mformed by Mr Layden that condItIOns
were attached to the remstatement of hIS benefits He stated that he receIved no documentatIOn
and there was nothmg for hIm to SIgn. He found It dIfficult to understand that the Employer
would requIre hIm to apply for L TIP when that was solely for the benefit of the employee. He
vIewed thIS as a suggestIOn. He testIfied that he had applIed prevIOusly when he had hIS heart
attack and was ruled melIgIble as he was found not to be dIsabled. He expected he would be
ruled melIgible thIS tIme also, as It was the same dIsease Dr ZaidI was asked durmg hIs
exammatIOn m chIef whether or not he had submItted hIS L TIP applIcatIOn following Mr
Layden's mSIstence and he testIfied that he had sent It to ConfederatIOn LIfe m the early weeks
of 1996 and found later that the applIcatIOn was not receIved. Accordmg to Dr ZaidI, he apphed
half-heartedly as he knew It was an exercIse m futIlIty At thIS pomt, he testIfied, bemg qUIte
sure that he would not receIve L TIP and bemg SIck, frustrated and WIthout mcome, he "just
dldn t bother about It" It was Mr Layden's understandmg from mId-December 1995, to the end
9f January 1996, that Dr ZaidI had sent out hIS apphcatIOn for L TIP, but he learned from Mr
Cook and Ms V IranI, that they had been mformed by the msurance company that hIS applIcatIOn
had not been receIved. There was no eVIdence of the msurance company havmg receIved the
application, and although no one from the msurance company testIfied theIr letters to the
Employer demonstrate to the satIsfactIOn of the Board that no such applIcatIOn was receIved.
Ms Cunmngham stated that a leave of absence request and L TIP are reqUIred for the contmUIty
of an employee's records and thIS reflects, m her opmIOn, the employer-employee relatIOnshIp
43
She acknowledged that the employee chooses whether or not to apply for L TIP but stated that If
one IS SIck and has no mcome, the logIcal thmg IS to apply to L TIP
Mid-.January 1996
Mr Cook, testIfied that he was mformed that Dr ZaidI had not submItted hIS applIcatIOn for
L TIP to the msurance company and he responded by contactmg Mr Layden, having been
mformed that mstructIOns had been receIved from Mr Layden not to contact Dr ZaidI, as he,
Mr Layden, was actmg as Dr ZaidI'S representatIve. Dunng theIr dIscussIOn he requested Mr
Layden to ask Dr ZaidI to complete hIS applIcatIOn for L TIP, to provIde addItIonal medIcal
mformatIOn to the Windsor Area Office, and to submIt a new leave of absence form to authonze
the penod of tIme he had been absent. Mr Layden, accordmg to Mr Cook, agreed to contact
Dr ZaidI and ask hIm to complete hIS applIcatIOn for L TIP and hIS request for leave of absence,
and to secure the medIcal mformatIOn requested. Mr Layden recalled Dr ZaidI gettmg more
upset and dIstressed when It was brought to hIS attentIOn and expressed hIS frustratIOn m "havmg
to do all thIS" Mr Layden testIfied that Dr ZaidI dId not come to the OPSEU office to fill out
a second leave of absence request/authonzatIOn form, after bemg mformed that the form
completed on January 5, 1996 was unsatIsfactory Accordmg to Dr ZaidI, Mr Layden dId not
convey to hIm that If the applIcatIOn for leave were not filled out m a certam way and the L TIP
applIcatIOn not m the agreement that had been arnved at would fall apart.
-Wednesday, .January 24, 1996
Ms. V IranI spoke to Mr Layden about faxmg hIm a new leave form for Dr ZaidI smce there was
a problem WIth the date mdIcated. She also mformed hIm that as of January 19, 1996, Dr ZaidI
stIll had not applIed for L TIP Accordmg to her notes, Mr Layden agreed that the dates of the
leave should be November 24,1995 to February 11, 1996 Ms VIranI then faxed the new leave
of absence request form and the L TIP forms to Mr Layden, and, followmg thIS, dIscussed WIth
Mr Layden the problem WIth Dr ZaidI'S request for one month's leave
44
Ms. V IranI testIfied that there are financIal ImplIcatIOns for an employee If there IS a break m the
employee's tIme, partIcularly wIth respect to pensIOnable servIce Ms ViranI could not recall
ever seemg a revIsed leave of absence form for Dr ZaidI, nor was one aVailable m hIS file Had
one come to her attentIOn she, as Human Resources RepresentatIve, would have completed the
form, checked that the L TIP applIcatIOn was underway and begun the process of bIllmg hIm
monthly for benefits
Ms V IranI testIfied that she dId not attempt to contact Mr Layden further but was aware that Mr
Cook and Mr Layden were havmg conversatIOns. Had Dr ZaIdI submItted the form and not
submItted the L TIP applIcatIOn, she would not have processed the leave of absence form because
Dr ZaidI had not fulfilled the reqUIrement of applymg for L TIP Dr ZaidI was, accordmg to
Ms. V IranI, an employee whose employment status was m questIOn. There was, she said,
nothmg to cover hIm, no medIcal leave, no leave wIthout pay, no L TIP
Ms. V IranI testIfied that she dId not speak duectly wIth Dr ZaidI, knowmg that Mr Layden had
gIVen speCIfic mstructIOns to contact hIm and not Dr ZaIdI. She stated that she was also aware
that a gnevance was underway whIch was bemg dealt wIth by the Human Resources Manager
There were, she testIfied some allegatIOns around harassment and she dId not, she explamed,
wIsh to aggravate the SItuatIOn. She pomted out, however, that her letter of December 12, 1995,
dId extend an mVltatIOn to Dr ZaidI to contact her
Tuesday JanlUlQ'_3fiJ-m
Ms. Dewar of ManulIfe wrote to Ms. V IranI mformmg her that as of that date, no Claimant or
PhYSICIan Statement had been receIved from Dr ZaidI, notmg that the claim would remam
pendmg Dr ZaIdI was copIed on thIS correspondence
Mr Layden testIfied that he had no commUnICatIOn wIth the Employer from the end of January
1996 untIl Apnl 11, 1996 and thIS commumcatIOn mterval was caused by the focus on
45
preparatIOn for the strike, the strike Itself, and demands on hIS tIme and the tIme of others
because of mCIdents WhICh took place dunng the penod followmg the stnke
Ms. Cunnmgham testIfied that SIX weeks pnor to the commencement of the stnke the office was
plannIng how to manage essentIal servIces and how to serve clIents She stated that nothmg was
done respectmg Dr ZaidI'S absence from the first of February untIl after the end ofthe strike It
was felt that It would have been unproductIve to attempt to contact Mr Layden who was
representmg Dr ZaidI. Ms. Cunnmgham dId comment m her testImony that If Dr ZaidI had
made the declSlon to come back to work durmg the stnke, that could have happened, smce each
person made an mdIvIdual decIsIOn about whether or not to cross the pIcket lme The strike took
place from February 26,1996 to Apnll, 1996 Ms Cunnmgham descnbed thIS penod as
"regular busmess gomg mto hIatus" as the stnke took pnonty Mr Layden descnbed thIS
penod and the lead-up to It as "a crazy busy tIme"
March 1996
It was suggested to Dr ZaidI dunng thIS month by an unIdentIfied person, that he should apply
for sIck benefits under the Unemployment Insurance program whIch had an elIgibIlIty
reqmrement of "unable to work" as opposed to the "totally dIsabled" reqUIrement of L TIP
Iu.esda~, March 5.,~
]\1s. Dewar of ManulIfe wrote to Ms. ViranI mformmg her that as of that date, no Claimant or
PhysIcIan Statement had been receIved from Dr ZaidI, notmg that the claim would remam
pendmg. In response to thIS letter, Ms. ViranI spoke wIth a staff person at ManulIfe and
explamed that the Employer had met the reqmrements and that m order to obtam the Employee's
and the PhysICian'S statements, ManulIfe should deal dIrectly wIth Dr ZaIdI The staff person
agreed wIth thIS Dr ZaidI was copIed on thIS correspondence. Her letter was receIved on March
11, 1996
46
Tuesday, March 12, 1996
It was durmg the mterval of the strike that Dr ZaidI saw Dr Glanz agam. ThIs appomtment was
to evaluate hIS condItIOn followmg hIS MIBI scan whIch had taken place approxImately 4 Yz
~ months prevIOusly There was no eVIdence to suggest that Dr ZaidI telephoned Dr Glanz's
office to request the test results or the follow-up appomtment. Rather, the eVIdence suggests the
appomtment was made at the mstIgatIOn of Dr Glanz's office Dr Glanz was asked m cross-
exammatIOn If a Wait of over four months was standard and he replIed that It was not. He stated
that "on average, people wIth thIS kmd of scan, and nothmg [he] felt urgent about seemg
them. .mIght Walt a month, or two at the outsIde" He testIfied that he had been told by hIS
secretary that If someone calls earher, "we try to make arrangements" As far as Dr Glanz
knew, hIS secretary had tned frequently (twenty tImes) on November 23, 1995 to contact Dr
ZaldI, but receIved a busy sIgnal and then put a note whIch remmded her to follow-up m January
1996 There was no eVIdence of her further efforts or on what date she scheduled the March 12th
appomtment.
The ObjectIve eVIdence provIded by Dr ZaidI'S test, accordmg to Dr Glanz, showed that"not
much had changed m hIS underlymg condItIon", "hIS exerCIse tolerance had Improved", "he had
not developed sIgmficant new narrowmgs mother artenes leadmg to hIS heart" and "hIS
prognosIs was good" (ThIs IS the first tIme that a prognOSIS has been gIven although It was not
related specIfically to hIS abIlIty to carry out the demands and responsibIlItIes of hIS posItIOn. It
IS probable that the letter delIvered by Dr ZaldI to Dr Glanz wIth the job descnptIOn and
phYSIcal demands analYSIS, and the one forwarded to Dr Glanz by Mr Hunter m October 1995
would have been m Dr Glanz's file at the tIme of thIS appomtment.) Dr Glanz dId not recall any
conversatIOn respectmg Dr ZaldI'S return to work, and testIfied that he was "concentratmg more
on hIS cardIac rather than hIS work status"
Accordmg to Dr ZaIdI, Dr Glanz dId not advIse hIm to return to work, and If he had done so, he
would have returned ImmedIately smce he was frustrated not workmg and he had no mcome. He
47
stIll had chest pams, but not at the same frequency and was told by Dr Glanz that they were not
tYPIcal of angma pams Dr ZaidI belIeves that durmg that appomtment he must have mentIOned
that he was consIdenng applymg for sIck benefits through the Unemployment Insurance Program
and that Dr Glanz told hIm to bnng the form m. He dId not, accordmg to Dr ZaidI, tell hIm that
he dId not need to apply for sIck benefits as he could return to work. Dr ZaidI testIfied that smce
hIS arrIval m Canada m 1972, he had not been Without work, had never drawn on welfare or
unemployment msurance and had always wanted to work and that he stlll deSIred to do so
Thursday, March 28, 1996
Dr ZaidI'S daughter delIvered the partially completed unemployment msurance applIcatIOn for
SIck benefits form to Dr Glanz's office on March 28, 1996
Thursday, April 11, 1996
Mr Hunter wrote to Mr Layden seekmg confirmatIOn of the letter of November 1, 1995, WhICh
he had receIved from Dr Glanz. The letter was drafted by Mr Cook and vetted through the
Employee RelatIOns UnIt. Mr Hunter testIfied that he needed thIS confirmatIOn because Dr
Glanz had wrItten that he was not prepared to prOVIde the mformatIOn whIch had been requested,
untll the MIBI test was completed and m Apnl 1996, he, Mr Hunter, dId not know whether the
test had been rebooked. He testIfied that the leave of absence WIthout pay had not been
approved smce the medIcal mformatIOn had not been proVIded and Dr ZaidI had not applIed for
LTIP The letter read as follows
Dear Mr Layden.
R.e; J.Ji:lliljLaidi
-
As per Mr ZaIdI'S dIrectIOn, we are contactmg you as hIS representative
Summary of Events to date:
As you are aware, Mr Zaidi left his employment with us on May 26, 1995 on sick leave Smce
then numerous attempts have been made by us to obtain sufficient medical documentation. This
was reqUIred to determine the possibilIty offaciliating [sic] Mr Zaidi's return to work and also to
enable us to plan around our operational requirements. You have been provided with copies of all
correspondance [sic] between us and Mr Zaidi. As previously dIscussed, the medical
documentatIOn receIved was msufficient and did not comply with our requirements.
This process continued until December 14, 1995 at which time an agreement was reached dUrIng
48
the Stage 2, to have Mr Zaidi submIt a leave of absence request along with the required medical
documentation, while we awaited the outcome of his L TIP application. Mr Zaidi's application
was to be sent to the insurance carrIer sImultaneously
In January and February, several attempts were made by Sairoz Virani and Glen Cook to contact
you to determine the status of these applications.
Significant time has now lapsed since our last contact and to date, we have not receIved the
information requested. As discussed previously, in order to approve Mr Zaidi's leave of absence,
we requIre addItional information. Specifically additional information from Dr Zaidi s doctor
with regard to his prognosis, ie expected return to work date, restrictions, accommodations
necessary We also require confirmation that Mr Zaidi has undergone the additional testing
reqUIred that was to initially have taken place in September 1995
For your information, we have also been advised by the insurance carrier that to date, Mr Zaidi
has not submItted his L TIP applicatIOn to them.
Summary-
To date, Mr Zaidi's leave of absence request has not been approved, pending receipt of the
required information. If this information is not forthcoming along with confirmation of the date
of his L TIP application by April 26, 1996, further action will be taken.
Sincerely,
"Signed"
Bob Hunter
Finance and Program Support
Windsor Area Office
/jf
cc. Shari Cunningham
Glen Cook
ThIS IS the fourth and final warnmg before dIsmIssal - "If further actIOn WIll be taken"
Mr Hunter explamed m hIS testImony that he had had the draft of thIS letter vetted by Legal
Servlces and where he had been speCIfic m warnmg that dIsmIssal could be an outcome of Dr
ZaidI'S failure to proVIde the reqUIred mformatIOn, the letter had been amended to warn of
~
"further actIOn", on the advlce of Legal ServIces.
Mr Cook testIfied m cross-exammatIOn that It was the general practIce wIthm the MinIstry of
Commumty and SOCIal ServIces to warn speCIfically of any dlsclplme whenever possible and he
acknowledged that the phrase "further actIOn" was not speCIfic and that at the tIme It was drafted,
the mtent was that If Dr ZaidI dId not comply that he would be dlsmlssed. He was asked m
cross-exammatIOn whether or not an employee WIth conSIderable semonty "deserves
49
consIderatIOn pnor to bemg dIsmIssed" and he responded m the negatIve, mdIcatmg that he dId
"not see length of servIce as a factor If there are grounds for dIsmIssal" but he dId agree that such
semonty entItled the employee to consIderable warnmg before dIsmIssal, although m the case of
Dr ZaidI, It was hIS opmIOn that Dr ZaIdI had been gIVen ample warnmg Mr Cook dId not
recall bemg aware that Mr Hunter had been gIven authonty to contact Dr ZaidI'S cardIOlogIst
and havmg been mformed of thIS at the hearmg, Mr Cook agreed that It may have been
reasonable to contact Dr Glanz to see If the test had been completed pnor to dIsmIssmg Dr
ZaidI. He dId not, however, agree that If someone had contacted Dr Glanz and the mformatIOn
was suffiCIent that Dr ZaidI would not have been dIsmIssed. He made the pomt that the
mformatIOn had been requested from Dr ZaidI and not from Dr Glanz. On re-exammatIOn, Mr
Cook testIfied that at the tlme of the letter of Apnl 11, 1996, the warnmg letter, Dr ZaidI's
employment status was that of someone on unauthonzed leave who had falled to comply WIth a
request for L TIP, leave of absence, and medIcal mformatIOn. GIven the fact that the employee
dId not provIde that mformatIOn, the Employer could only assume, he testIfied, that Dr ZaidI no
longer WIshed to work and that IS abandonment of posItlon and that was the reason for hIS
dIsmIssal
Ms. Cunnmgham testIfied that when the letter of Apnl 11, 1996 was wrItten (it was drafted by
Glen Cook and vetted through the Employee RelatIOns Umt) "we [knew] we were movmg
toward dIsmIssal for non-complIance" and that they were "makmg steps" to ensure that the
employee would understand what the Employer wanted and to ensure that every OpportunIty was
gIven.
The deCISIOn to dIsmISS was not spontaneous, accordmg to Ms. Cunnmgham,
it was a decision we [had] been working toward for almost a
year a non-compliant employee not prepared to provide the
information requested, we had gone through detailed steps,
numerous correspondence, offering to assist; we had been
moving toward this, and the summary letter of April 11, 1996
is a stage-setting letter setting out attempts made and saying
we are going to have to proceed.
Ms. Cunnmgham testlfied that she felt the Employer "had done everythmg humanly possible to
50
have thIS employee provIde us wIth medIcal mformatIOn and he chose not to" Ms. Cunnmgham
clarIfied that when that wordmg was selected, Corporate ServIces was aware that the mtent was
to dIsmIss If complIance was not forthcommg. When asked m cross-exammatIOn whether It
mIght have been reasonable for someone to contact Dr Glanz pnor to dlsmlssmg Dr ZaidI, Ms.
Cunmngham replIed that she dId not thmk It would have been reasonable, smce, "employees are
responsible for theIr behavIOur"
Dr ZaidI was not copIed on thIS letter, nor dId he see It pnor to hIS dIsmIssal. The contents were,
he testIfied, not shared wIth hIm and there was no mentIOn of dIsmIssal to hIm. He was asked m
exammatIOn-m-chIef what he would have done had he known that the Employer stIll belIeved he
had not provIded sufficient mformatIOn, he replIed that he thought that he had provIded as much
mformatIOn as he could, but that he would have taken the letter to Dr Glanz and asked hIm to
telephone the Employer and provIde what they wanted. If he had understood that L TIP was a
reqUIrement to aVOId dlsmIssal, he would have reapplIed.
Mr Layden testIfied that m hIS expenence m cases where dIsmIssal was a possible outcome, the
warnmg letter to an employee would say "further actIOn, mcludmg dIsmIssal may be taken" He
testIfied that he was certamly never mformed m wrltmg that the next step for Dr ZaidI followmg
the Apnl 11, 1996 letter would be for the Mimstry to dIsmIss hIm, and he dId not recall havmg
been verbally so mformed. Mr Layden responded to the letter of Apnl 11 th by telephonmg Mr
Cook. Accordmg to Mr Cook's testImony, Mr Layden had not been able to contact Dr ZaidI
and asked for an extenSIOn of one week, that IS to May 3, 1996 The Human Resources
Department agreed to grant the requested extenSIOn to Mr Layden.
Mr Cook acknowledged m hIS cross-exammatIOn that up to thIS date, Dr ZaidI'S applIcatIOn
for a leave of absence had neIther been demed or approved and that ItS status was "pendmg" He
dId not agree, however, that the Employer had acqUIesced m Dr ZaidI'S absence pnor to May 3,
1996, but acknowledged that the Employer had gIven Dr ZaidI untIl May 3, 1996, to produce
the medIcal mformatIOn.
51
Thursday, May 2, 1996
Darlene Ahearn DIsabIlIty AdjudIcator of ManulIfe FmancIal, Toronto Group DIsabIlIty Claims
wrote to Ms. Viram and copIed Dr ZaidI. Ms. Ahearn observed that she was aWaItmg a reply to
the Company s letter of March 5,1996, notmg that they were unable to determme Dr ZaidI'S
elIgibIlIty wIthout the Claimant and the PhysIcIan Statements A reply by May 31, 1996, was
reqUIred to keep the file open.
Mr Layden spoke wIth Dr ZaidI about the L TIP and the fact that the mformatIOn the doctor was
provIdmg to the MImstry was unsatIsfactory He felt he and Dr ZaIdI "seemed to be caught m
the mIddle" He testIfied m cross-exammatIOn that he apprecIated that the Employer had a nght
to ask for a prognosIs respectmg Dr ZaIdI, but he expressed concern over the manner m WhICh
the Employer went about trymg to get the prognosIs. He then contacted Mr Cook for a further
extensIOn and that extensIOn was refused and the letter of dIsmIssal followed.
Friday, May 3, 1996 and Monday May 6,1996
Mr Hunter, (Fmance and Support, Windsor Area Office), Glen Cook (Manager, Human
Resources, Windsor Area Office) and SharI Cunmngham (Area Manager), met to reVIew Dr
ZaidI'S SItuatIOn. Accordmg to Mr Hunter, they conSIdered that Dr ZaidI had not attended work
for almost a year, and looked at theIr attempts to secure mformatIOn, and whether or not theIr
attempts had been reasonable and If extensIOns and optIOns had been made aVailable It was theIr
conclusIOn, he testIfied, that they had no alternatIve but to move for dIsmIssal of Dr ZaidI. At
lhe tIme of the termmatIOn decIsIOn m May 1996, the last medIcal mformatIOn whIch the
Employer had receIved was the November 1st letter from Dr Glanz, Dr ZaidI'S leave wIthout
pay had not been approved due to lack of medIcal mformatIOn, hIS short term sIck benefits had
run out m seven months prevIOusly and he had not completed the reqUIrements, accordmg to the
ManulIfe FmancIal, for L TIP
Mr Cook testIfied that durmg thIS process he would have contacted the Employee RelatIOns unIt
and conveyed the mformatIOn and adVIce he receIved from Peter Wilson of that unIt to Ms.
52
Cunnmgham so that she could make an mformed declSlon as to WhICh steps she wIshed to take
Mr Cook testIfied that Dr ZaidI was dIsmIssed for "abandonment of hIS posItIOn" and stated that
hIS mterpretatIOn of that was that the employee was "absent from work wIthout authonzatIOn"
He acknowledged that "abandonment" was not reflected m the dIsmIssal letter but that "cause"
was, although the mtent at the tIme the letter was wrItten was that the reason for dIsmIssal was
abandonment of hIS posItIon" Abandonment had been dIscussed with Peter Wilson. He
testIfied m cross-exammatIOn that hIS VIew of whether or not Dr ZaidI was III or not was
Irrelevant.
Ms. Cunnmgham acknowledged that she had not seen the medIcal notes whIch had been
receIved from Dr ZaIdI's phYSIcIans dunng her conSIderatIOn of whether or not to dIsmIss Dr
ZaidI. She referred to the Gnevor's "unwlllmgness to prOVIde the mformatIOn"
The letter of dIsmIssal was drafted by Mr Hunter, amended by Legal ServIces, approved and
SIgned by Ms Cunnmgham, followmg adVIce from Mr Wilson. It was then sent to Dr ZaIdI.
Tuesday, May 7, or Wednesday, May 8.,...122.6
It IS hkely that Dr ZaidI receIved the May 6th letter on eIther of these days. He testIfied that
when he receIved the letter of dIsmIssal, he was shocked, and further stressed and frustrated. He
contacted Mr Layden. He dId not, at first share the letter WIth hIS famIly and explamed thIS was
due to hIS feelmg senSItIve about the dIsmIssal, and for cultural reasons. At the tIme of hIS
dIsmIssal, hIS WIfe had been laid off from the UmversIty of Windsor, one of hIS daughters was
completmg her doctorate, the second an MSc. m Psychology and the twelve-year old was at
home and attendmg school. They were lIvmg on theIr savmgs and receIvmg finanCIal help from
a brother who lIved m the Umted States. He was convmced that he had done whatever he could
do He could not, he expressed, "bend the hand of the doctor to wrIte a note, he could only
request" He had "left open dIrectIOn to the Mimstry to commumcate WIth the doctor" He
53
asked, rhetoncally, what else he could have done. He stated, he was sIck, undergomg
mvestIgatIOns and was very worned about hIS condItIOn. Havmg a heart attack IS not a Joke, he
explamed, "you only get two or three" For hIm, he stated, "It IS a matter of lIfe and death"
Dr ZaidI was asked what efforts he had made to obtam work and he stated that he dId not know
that he could work untIl July, 1996 and that bemg over 50 years of age, handIcapped and a
vIsible mmonty, he belIeved that hIS only optIOn was to look for a small busmess and he had
asked hIS sIster m the Umted States If she were wlllIng to sponsor hIm. They receIved approval
for thIS. He dId not, he explamed, want to SIt around and lIve off the earnmgs of hIS daughters.
Tuesday, May 14, 1996
Dr ZaidI filed hIS dIsmIssal gnevance
A letter to Dr ZaidI and copIed to Ms V IranI was sent on thIS date by Darlene Ahearn of
ManulIfe statmg that the Employer had fulfilled ItS oblIgatIOn and that the notIce of the
consequences of failure to prOVIde the Claimant and PhysIcIan Statements should have been
dIrected to hIm.
July! August 1996
At Stage II of the dIsmIssal gnevance WhICh was held durmg the summer of 1996, the Issue of
abandonment was brought to hIS attentIOn, accordmg to Mr Layden, for the first tIme. Mr
~ayden explamed that m hIS expenence, abandonment had m the past used by Management m a
case where someone "had dIsappeared, and there was no contact WIth the Employer" He
testIfied that, m hIS VIew, Dr ZaIdI had always looked to returnmg to work "once hIS medIcal
treatment was completed"
~y,.June24, 1996
The Unemployment Insurance SIck Benefit applIcatIOn delIvered to Dr Glanz's office on March
28th was SIgned by Dr Glanz and sent to hIm on July 2, 1996, accordmg to the post mark. On
54
thIS form, Dr Glanz mdIcated that m hIS opmIOn, Dr ZaIdI was "capable" of workmg and
commented as follows
PatIent suffered a heart attack in 1993 On current medications, has no
symptoms of angina. When last seen on March 12, 1996 [deleted] I feel that he
can return to work if it does not involve heavy physical activity
Dr ZaidI CIted the tIme lapse between March 28, 1996 and June 24, 1996, as an IllustratIOn of
how busy Dr Glanz was. He stated that had he had any mdIcatIOn from Dr Glanz that he was
ready to return to work, he would have telephoned the office and conveyed that mformatIOn. He
had, he explamed, no reason to questIOn Dr Glanz's not gIVmg hIm a release to return to work.
Post Tuesday, July 2, 1996
Accordmg to Dr ZaidI, the first tIme that he had an mdlcatIOn from Dr Glanz that he was
capable of returnmg to work was just after July 2, 1996, but by then, It was too late, he had
already been dIsmIssed. He dId not submIt the Unemployment Insurance applIcatIOn because Dr
Glanz mdlcated that he was capable of returnmg to work and thIS ruled hIm melIgible for the SIck
benefits.
ARGUMENT
John SmIth, Counsel for the Employer, submItted that Dr ZaidI had been dIsmIssed because he
was absent WIthout leave and went on to state that an employee who IS absent WIthout leave can
be dIsmIssed in two ways
1) He or she can be declared to have abandoned hIS or her posltIOn under
SectIOn 20 of the Public Service Act
20. A public servant who is absent from duty without official
leave for a period of two weeks or such longer period as is
prescribed in the regulations may by an instrument in writmg
be declared by his or her deputy minister to have abandoned
his or her position, and thereupon the position becomes vacant
and the person ceases to be a publIc servant. R.S 0 1990, c.
P 47,s.20
2) or for cause under sectIOn 22(3) of the Public Service Act
22. (3) A deputy minster may for Cause dismiss from
employment m accordance WIth the regulations any publIc m
his or her ministry
55
When It IS an Issue of just cause dIsmIssal, once the spectre of a medIcal excuse IS raised the
Board has to examme that, and when a medIcal IS presented, abandonment and leave become
two sIdes of the same com. Mr SmIth cIted OPSEU (Baldeo) and The Crown in Right of
Ontario (Management Board Secretariat) (1996) GSB 1270/93 (Fmley) and submItted that
conceptually, the facts are sImllar, m that there was a refusal to return to work and a notlce of
abandonment. He referred the Board to the four reqUIrements for a findmg for a declaratIOn of
abandonment CIted m Baldeo
I The employee must be a public servant.
2. The declaration must be made by the Deputy Minister or his/her designee
3 The declaration of abandonment must be in an instrument of writing.
4 The public servant must be absent from duty without official leave for two weeks.
(Nothmg longer has been specIfied m RegulatIOns.)
In thIS case, Mr SmIth stated we are trymg to determme If the medIcal eVIdence supports an
officIal leave from the workplace and submItted that the Board could find that eIther or both the
abandonment argument, and argument that the Gnevor was dIscIplmed for just cause for bemg
absent from the work place have been met.
The Gnevor's angma was not severe enough, he mamtamed, to JustIfy an absence from the
workplace of eleven months At the outset of the Gnevor's Illness, the Employer may not have
known the seventy of Dr ZaidI'S Illness, but It IS clear from Dr Glanz's eVIdence, that the
Gnevor dId. The eVIdence, he mamtamed supports WIlful blmdness The Gnevor was, he
stated, WIlfully blmd to asslstmg the Employer m the determmatIOn of the seventy of hIS angma.
He dId not take reasonable steps to produce a prognosIs to let the Employer determme If, when
and how, he could return to work. Mr SmIth submItted that Dr ZaidI WIlfully chose to aVOId
confrontmg the prognosIs Issue and thereby extendmg It to eleven months.
Mr SmIth then turned to the CollectIve Agreement (ArtIcle 44 10/52 10)
After five (5) days' absence caused by sickness, no leave with pay shall be
allowed unless a certificate of a legally qualified medical practitioner is
forwarded to the Deputy Minister of the ministry, certifying that the employee is
unable to attend to his official duties. Notwithstanding this provision, where it
IS suspected that there may be an abuse of SIck leave, the Deputy Milllster or his
~ designee may require an employee to submit a medical certificate for a period of
absence of less that five (5) days.
He made the pomt that the Gnevance Settlement Board has mterpreted thIS artIcle as requmng an
employee to produce more than the narrow "certIficate" whIch the CollectIve Agreement ImplIes
and m the case before thIS Board, Dr ZaidI was unwIllmg to provIde a prognosIs because It
would have necessItated an assessment of hIS angma whIch was not severe, and thIS m turn
would have necessItated a return to work WIth accommodatIOn sooner than the gnevor would
have preferred. He was not wIllmg, he Said, to provIde addItIonal medIcal mformatIOn. The
Gnevor cannot, Mr SmIth argued, pomt to steps that occurred between May 26, 1995 and June
1, 1995 because the only thmg that happened was a telephone call from Ms Patterson on May
56
31, 1995 Ms. Patterson mItIated all but one of the commumcatIOns between the Employer and
the Gnevor ThIs IS not the behavIOur that one would expect rather, It IS a contmuatIOn of wllful
blmdness on the part of Dr ZaidI to aVOId confrontmg hIS prognosIs Ten days later, he has stIll
only mItIated a smgle call and prOVIded one medIcal note From thIS pomt on, he never
communIcates WIth the Employer agam verbally and the Employer IS wIthout hIS servIces He
does not so much as pIck up the telephone to let the Employer know that he does not have a
prognosIs. Further, he failed to speak wIth Dr Rajan about the contents of the letter and
demonstrated that hIS concern was remammg on benefits but not provldmg a prognosIs He was,
m effect, usmg hIS phYSIcIan to shIeld hImself from speakmg wIth hIS Employer He then began
to speak wIth Mr Layden and later Dr Glanz. He does not appear to have asked Dr Glanz when
he could return to work, and there IS an expectatIOn that an employee would be happy to call
hIs/her employer and keep the employer mformed. The Employer conceded, accordmg to Mr
SmIth, that Dr Rajan could not have prOVIded the prognosIs but then, the Gnevor IS not to be
belIeved when he says that he was waItmg for Dr Glanz to tell hIm when to return to work. Dr
Glanz's letter of October 6, 1995 prOVIdes the employer what It reqUIres, m a clear and conCIse
explanatIOn. Events become muddled when Dr ZaIdI gets mvolved m hIS own case and further,
once hIS benefits ran out on November 14, 1995, he had no employee status and the Employer
could have begun countmg the 14 days from that pomt and termmated hIS employment.
However, because of theIr trustmg workmg relatIOnshIp WIth Mr Layden they dId not do so and
commItted to furthermg the process.
Accordmg to Mr SmIth, Dr ZaidI, havmg undergone a pnor MIBI Scan should have know that
he performed better on the October 95 test and he should have recogmzed the Improvement m hIS
condItIOn. His failure to follow through WIth L TIP defies common sense, Mr SmIth submItted,
smce Dr ZaidI was m a dIfferent pOSItIOn than the one m WhICh he had prevIOusly been ruled
melIgible It IS the Employer's VIew that Dr ZaidI was well aware as of October 1995, that hIS
condItIOn had Improved and that he knew he would get a clean bIll of health when he VISIted Dr
Glanz for hIS follow up As of March 12, 1996, Dr Glanz mdIcated that the Gnevor was domg
very well and he had no further plans to see hIm and there was no wrItten notatIOn about the
Gnevor's return to work. There was absolutely no doubt that he was aware he was able to return
to work as of March 12, 1996, accordmg to Mr SmIth, yet he took no steps to mform the
Employer In fact, Mr SmIth mamtamed, he has deliberately mIsled the Board by wlthholdmg
knowledge of hIS condltlon from March 12, 1996 onwards, and thIS untruthfulness should be
taken mto account when consIdenng mltlgatIOn, If that arIses.
The Employer Issued a number ofwarnmgs to Dr ZaidI begmmng m June 1995, m fact, Mr
SmIth submItted, there were four clear warnmgs mdlcatmg the reqUIrement for mformatIOn put
out by the Employer and Dr ZaidI falled to heed them. He stated that the eVIdence from Dr
Rajan was that Dr ZaidI was complammg about chest pams from stress at work on May 26,
1995, so, logIcally, If there was stress at work because of the supervISOry seSSIOn It came pnor to
May 26th and resulted m a flare up of the Gnevor's angma and the eVIdence clearly supports that
mterpretatIOn of the facts. A sudden departure pnor to another supervISOry meetmg, permIts the
Employer to ask for addItIOnal mformatIOn even If It was before the five days There IS no
57
proscnptIOn, he submItted agamst the Employer contmumg to ask for addItIOnal medIcal
mformatIOn, m fact, It IS a reqUIrement under ArtIcle 44 10/52 10 Mr SmIth submItted that
based on the absence from Dr Rajan's notes of an request for a prognosIs from Dr ZaidI, that
Dr ZaidI wIlfully chose not to pursue a request for a prognosIs, and the logIcal conclUSIOn IS that
he dId not raise the Issue With hIS phYSIcian.
Mr SmIth argued that should the Board decIde to remstatement Dr ZaidI, WhICh It does not
conSIder a valId optIOn, certam condItIOns should apply
. no compensatIOn because of the manner m whIch he mIsled the Board
. prOVISIOn of an unrestncted, open-ended release for Dr Glanz or any other
physIcIan WhICh Dr ZaidI consults to determme the prognosIs of any Illness
claImed for absence, to run from hIS return throughout hIS stay m the OPS
Mr SmIth cIted the followmg cases
OPSEU (Johnson) and The Crown in Right of Ontario (Ministry of Transportation) (1992)
GSB 1885/90,2468/90 (Dlssanayake),
OPSEU (Baldeo) and The Crown in Right of Ontario (Management Board Secretariat) (1996)
GSB 1270/93 (Fmley),
OPSEU (Orprecio) and The Crown in Right of Ontario (Ministry of Health) (1983) GSB 50/83
(Samuels)
Mr LeWIS submItted that the Employer has argued that there IS some effectIve complIance WIth
SectIOn 20 of the Public Service Act but there cannot, he stated, be an effectIve comphance
WhICh argues that four reqUIrements must be upset. If they are met, then the Board IS depnved of
jUnSdIctIOn and that bemg the case, he mamtamed, It IS unreasonable to put an mterpretatIOn on
the sectIOn that there can be an effectIve complIance Without a speCIfic referral to the sectIOn,
gIven the dracoman result whIch arIses when those reqUIrements are met. The last reqUIrement
m SectIOn 20, absence Without leave, cannot be met, and If Mr SmIth can say that there could be
effectIve complIance WIth thIS sectIOn, It does not lIe to say that officIal leave can only be where
the form IS filled out, completed and accepted. The Employer's contentIOn that the abandonment
-ill sectIOn 20 IS an alternatIve ground IS mcorrect, he argued, as the letter of dIsmIssal relIed
exphcItly and exclUSIvely on "cause" as set out m the Public Service Act, sectIOn 22.3, supra,
and "just cause" IS the only baSiS on whIch the Board has JurisdIctIOn to conSIder the dIsmIssal.
The Employer cannot, gIven her eVIdence that there was no mtent to rely on It, then rely on It
after the fact.
Mr LeWIS then conSIdered the status of Dr ZaidI'S applIcatIOn for leave and submItted that an
apphcatIOn can only be (1) refused, (2) approved (3) pendmg, and It cannot be Said that It had
been refused, as approval was aWaItmg the receIpt of the medIcal mformatIOn.
58
The Employer IS attemptmg, accordmg to Mr LeWIS, to charactenze everythmg that transpIred
from May 26, 1995, to dIsmIssal as a contmumg transactIOn WhICh resulted m dIsmIssal, for the
purpose of the warnmgs, for the medIcal mformatIOn provIded and for all purposes. What IS
relevant for the dIsmIssal and whether just cause eXIsted, are the events that transpIred after
December 14, 1995, as a result of commumcatIOn bemg establIshed wIth Gerry Layden, the
dIrectIOn bemg sIgned and then, although benefits had been remstated retroactIvely to October 8,
1995, the antIcIpated letter of Dr Glanz. It was only at Stage II on December 13, 1995, that an
agreement was reached on the provlSlon of further medIcal mformatIOn, completIOn of a leave of
absence request, and the L TIP applIcatIOn. Up to that pomt, the Employer had sanctIOned Dr
ZaidI'S absence and It IS only from thIS tIme that the Employer can begm relymg on absence and
not proven medIcal grounds for hIS absence
Mr LeWIS noted that Mr SmIth had made the pomt that Dr ZaidI could have SImply pIcked up
the telephone and mformed the Employer of "what was gomg on", but It should not be forgotten,
he stated, that m June 1995 when he'spoke WIth Ms Patterson, and told her that the mformatIOn
needed to come from Dr Glanz, that that was not accepted at face value and from that pomt,
there was reason not to pIck up the telephone. Further, Ms Patterson's reactIOn to the note of
June 1, 1995 was that It was ambIguous and only covered a smgle day, WhICh, Mr LeWIS
mamtamed, was an unreasonable conclusIOn to draw for someone WIth a heart condItIOn and
angma, and It was mdlcatIve of the attItude taken by the Employer from the outset. It was thIS
attItude WhICh coloured the future relatIOnshIp ofthe partIes. In total, durmg the first five
months of Dr ZaidI'S absence 5 doctor's notes were prOVIded and Ms Cunmngham stated,
accordmg to Mr LeWIS, that she dId not take Issue WIth the veraCIty of those notes, and the
phYSICIans testIfied that he ought not to return to work untIl further tests had been conducted.
WhIle the Employer may be entItled to mformatIOn such as prognOSIS and return date, It IS
unreasonable for the Employer to contmue to demand It, and It IS m fact counterproductIve, for
the Employer to do so when the phYSICIan has not prOVIded one as the employee may then
prOVIde one that cannot be honoured.
Once Dr ZaidI gave the authonzatIOn to the Employer and a broad, open-ended medIcal release
to the phYSICIan for medIcal mformatIOn to be prOVIded to the Employer, the onus shIfted to the
Employer to seek the mformatIOn, Mr LeWIS argued. ThIS was mdeed, he submItted, the
purpose of It, and Dr Glanz would have responded to a request for mformatIOn had the Employer
made It. It IS Important to remember, Mr LeWIS stated, that at Step II, neIther Mr Layden, nor
Dr ZaidI, had ever seen or had brought to theIr attentIOn the November 1st letter of Dr Glanz to
the Employer and were unaware that the Employer's central concern was to be mformed when
the MIBI test was completed. As a result of not seemg that, neIther was aware that once the
results of the scan were aVailable that Dr Glanz mIght be able to gIve further mformatIOn about
the prognOSIS and the return to work date and had he known, Dr ZaidI would have notIfied the
Employer that the MIBI test had been take Then, when the benefits were remstated, Dr ZaidI
was under the ImpreSSIOn that the medIcal mformatIOn WhICh had been proVIded was suffiCIent at
the tlme, and that as a result of the dIrectIOn he had gIven, the mformatIOn would be proVIded by
Dr Glanz, dIrectly to the Employer Mr LeWIS submItted that to the extent the Employer IS
59
relymg on a breach of an agreement reached m good faith when the partIes were trymg to resolve
matters, It cannot rely on the provISIOn of medIcal mformatIOn on WhICh there was no real
meetmg of mmds. The Employer, he stated had a set of expectatIOns whIch dIffered from the
understandmg ofMr Layden and Dr ZaidI But, he contmued, even If there were a breach of the
agreement, there remstatement IS stIll appropnate m certam CIrcumstances. The agreement dId
not have a condItIOn attached that If not met would result m termmatIOn.
Mr LeWIS looked at the matter of the L TIP applIcatIOn and noted that there IS no reqUIrement m
the CollectIve Agreement that an employee must apply for thIS benefit WhICh IS purely of benefit
to the employee. ApplIcatIOn for L TIP, he mamtained is purely optIOnal He then consIdered
the status of Dr ZaidI as an employee and took the pOSItIOn that Dr ZaidI, m contrast to the
Employer's VIew pomt, was an employee nght up to the tIme of hIS dIsmIssal
Dr Glanz's eVIdence, accordmg to Mr LeWIS, demonstrated that he had very real and conSIdered
concerns about Dr ZaIdI's health and stated that he could not gIve a prognOSIS untIl after the
MIBI test. The eVIdence was sketchy and second hand on how many days hIS secretary tned to
reach Dr ZaidI, or how persIstent she was m thIS respect. No eVIdence was presented, he noted,
that the delay m Dr ZaidI'S follow up appomtment was due to aVOIdance, or other actIOns or
mactIOns.
Mr LeWIS responded to Mr SmIth's allegatIOns of "wIlful blIndness" on the part of Dr ZaidI by
notmg that whlle Dr Glanz may have felt that he was domg well, he nonetheless prescribed
mtroderm patches for hIm and Dr ZaidI, would have had the ImpreSSIOn that hIS angma was stlll
problematIc He IS a patIent WIth a heart condItIOn and because of hIS personal expenence, Mr
LeWIS argued, he would evaluate hIS condItIOn m a certam way Whlle he may have been
mcorrect m assessmg hIS abIlIty to return to work as of March 12, 1996, or the date of the MIBI
scan, he held thIS belIef honestly and m no way, m Mr LeWIS S opinion, mIsled eIther the Board
or hIS Employer Dr ZaidI belIeved that If the Employer contacted Dr Glanz he would be told
that he, Dr ZaIdI, was unable to return to work. ThIS IS confirmed by hIS applIcatIOn for
Unemployment Insurance SIck Benefits.
With respect to the dIsmIssal Itself, Mr LeWIS argued that an employee must be gIven a faIr
'Chance to do what IS needed to aVOId dIscharge and the lack of speCIfiCIty m the warnmg letter of
Apnl 11, 1996, dId not provIde that. Had Dr ZaidI and Mr Layden known that hIS employment
was m Jeopardy, they would have responded. ThIS was not, Mr LeWIS submItted, a case of
urgency and the Employer here departed from ItS usual practIce of gIvmg a speCIfic warmmg
Respectmg the mItIal gnevance regardmg SIck benefits, WhICh had been remstated retroactIvely
to July 1995 and contmued untIl exhausted, even on the physIcIan's eVIdence, one could not
come to the conclUSIOn that Dr ZaidI was able to work If he was entItled to those benefits even If
the correct medIcatIOn had been prOVIded preVIOusly The removal of the benefits was
unarguably the cause of hIS havmg to obtam alternate medIcal coverage and Ifthe benefits had
not been suspended, the costs would not have been mcurred. In thIS mstance, the Employer,
60
accordmg to Mr LeWIS, IS relymg on the fact that If Dr ZaIdI had communIcated the fact that
he was wIthout benefits and securmg alternates and that could not be the case When the benefits
were remstated, hIS health benefits would have been remstated too and they can only be
remstated by paymg the payments made to provIde alternate coverage to gIve effect to the
remstatement.
In summary, Mr LeWIS stated, It IS the pOSItIOn of the Umon that Dr ZaidI should be remstated
to hIS employment retroactIve to the date of hIS dIsmIssal along WIth the health care benefits.
The Employer has not made out Its case to prove that just cause eXIsted and further the Public
Service Act reqUIrements for abandonment have not been met and the dIsmIssal cannot be upheld
on that baSIS. There IS nothmg whIch proves that Dr ZaIdI mIsled the Board, He was truthful
throughout, and there IS sIgmficant eVIdence that supports hIS understandmg that he was unable
to return to work, not only m November 1995, but m March 96, not untIl he receIved wntten
authonty from Dr Glanz on a medIcal certIficate
With respect to condItlons of remstatement suggested by Mr SmIth, whIle the Dmon does not
see the necessIty for the authonzatIOn and release, Dr ZaidI would, Mr LeWIS put forward, be
wIllmg to prOVIde those.
Mr LeWIS referred the Board to the followmg cases
OPSEU (Baldeo) and The Crown in Right of Ontario (Management Board Secretariat),
(1995) GSB 1270/93, (Fmley)
OPSEU (Szabo) and The Crown in Right of Ontario (Ministry of Attorney General) (1991)
GSB 292/91, (Saltman)
BuddAutomotive Co. and U.A.W, Local 1451, (1979) 24 L.A.C (2d) 12 (ShIme)
Canada Post Corp. and C. u.p W (Lamarre), (1992) 29 L.A.C (4th) 111 (H. D Brown)
Standard Products (Canada) Ltd. and c.A. W, Local 4451, (1996) 56 L.A.C (4th) 88 (DaVie)
~
Canada Post Corp. and C.U.P W (Venosa -626-88-03228), (1990) 15 L.A.C (4th) 418 (Adell)
OPSEU (P Smgh) and The Crown in Right of OntarIo (Ministry of Transportation) (1989),
GSB 1309/88 (DIssanayake)
Industrial Family (Hamilton) Credit Union Ltd. and Office & Professional Employees
International Union, Local 343, (1995) 51 L.A.C (4th) 443 (Hebdon)
Oshawa General Hospital and Nurses' Association Oshawa General Hospital, (1975) 8 L.A.C
(2nd) 329 (Weathenll)
61
Lumber & Sawmill Workers' Union, Local 2537 and KVP Co. Ltd. (1965) OL (16) 73
(Robmson)
OPSEU (Steffens) and The Crown in Right of Ontario (Ministry of Correctional Services),
(1985) GSB 322, 323/84 (Brandt)
In reply, Mr SmIth argued that the dIrectIOn gIven by Dr ZaidI was a hollow gesture m that It
was he who controlled when he returned to Dr Glanz for hIS follow up appomtment. It was not
untIl the hearmg that the Employer was aware that the MIBI scan test had been done on October
24, 1995 All the Gnevor had to do, he submItted, was to telephone the Employer and say, "I
can't get a prognosIs, please put me on benefits" and the Employer then could have spoken wIth
the doctor
DECISION
The eVIdence set out above demonstrates that communIcatIOn, lack of communIcatIOn, and
tImmg of commumcatIOn played major roles m the ongomg declSlons, actIOns, and mactIOns of
the mdIVIduals concerned. The Employer, the Umon, Dr ZaidI, Dr Rajan, Dr Glanz and the
health care system all share responsibIlIty for tImmg problems to varymg degrees, although that
IS not to say that these tImmg dIfficultIes were always aVOIdable The communIcatIOn, and lack
and tImmg of It, resulted m mIsunderstandmgs and mcorrect assumptIOns between the Employer
and Dr ZaidI. Further, the tone ofthe mteractIOn between them from the outset was one that
mdIcated mIstrust and SuspICIOn, the Employer bemg convmced that Dr ZaidI was usmg hIS
health to aVOId dealIng WIth a performance problem and Dr ZaidI bemg convmced that the
Employer thought "he was makmg It up" and feelmg that he was bemg subjected to harassment.
1n thIS enVIronment, the common sense, co-operatIOn, and patIence necessary on the part of both
the employer and the employee to work out the operatIOnal dIfficultIes caused by absence were
lackmg, and thIS VOId was filled by frustratIOn. NotIceable by theIr absence even at the tIme of
the hearmg were any expreSSIOns of concern eIther on the part of the Employer for Dr ZaidI'S
health and well-bemg, or any recogmtIOn that he dId not have a hIStOry of chromc absenteeIsm
or SIck leave abuse, or, any concern on Dr ZaidI'S part for how the dutIes and responsibIlItIes of
hIS job were bemg carrIed out m hIS absence
62
The Board IS seIzed wIth the task of determmmg whether or not the Employer had cause for
dIsmlssmg the Gnevor, Dr ZaIdI, on May 6, 1996, followmg an absence WhICh dated from May
26, 1995 The Employer bears the onus of satIsfymg the Board that It had cause for dIsmIssal
and the Umon bears the onus of demonstratmg that the Gnevor had met the condItIons m ArtIcle
52 10 to be entItled to sIck benefits and reImbursement for the health msurance premIUms he paid
m order to mamtam health care coverage when he was placed on leave wIthout pay m the
summer and fall of 1995 The sum m total was $756 06, and the msurance was obtamed through
Mrs. ZaidI s posItIon at the UmversIty of Windsor That Ms Cunmngham who dIsmIssed Dr
ZaidI had the delegated authonty to do so IS not m questIOn.
Dr ZaidI was dIsmIssed on May 6, 1996, "for cause" and hIS letter of dIsmIssal gave two
reasons for thIS
. hIS absence from work smce May 26, 1995, and
. hIS failure to provIde sufficIent medIcal documentatIOn.
The letter also stated that management had
. made "several attempts" to contact hIm to explam the necessIty for the
documentatIOn, and
. made prevIOUS attempts to secure the reqUIred medIcal mformatIOn.
The Employer mtroduced the ground of abandonment under SectIOn 20 of the Public Service Act
at Stage II of the dIsmIssal gnevance and argued thIS at the heanng "Abandonment" under
SectIOn 20 IS dlstmct from "cause" under SectIOn 22 3 ofthe Public Service Act The followmg
reqmrements are set out m the abandonment sectIOn.
-
A public servant who is absent from duty without official leave for a period of
two weeks or such longer period as is prescribed in the regulations may by an
instrument in writing be declared by his or her deputy minister to have
abandoned his or her position, and thereupon the position becomes vacant and
the person ceases to be a publIc servant.
The deputy mmIster or hIs/her deSIgnee m the case at hand dId not Issue a declaratIOn through an
"mstrument m wrItmg" that Dr ZaidI had abandoned hIS pOSItIOn, rather the Employer chose the
dlsclplmary route of "cause" and It cannot now rely on the abandonment sectIOn when It failed to
follow the procedure under that sectIOn at the tIme. That does not mean, however, that It cannot
63
argue that, from the Employer's perspectIve, Dr ZaIdI had abandoned hIS posItIOn as part of Its
absence argument.
When Ms. Cunmngham SIgned the letter of dIsmIssal, It was the culmmatIOn of, as she put It, a
"declSlon we [had] been workmg toward for almost a year" At the tlme she assumed that Dr
ZaidI had not attended at the hospItal for hIS MIBI Scan. ThIS assumptIOn was mcorrect. He had
requested a dIfferent appomtment and had attended. She had also not seen any of the 5 medICal
notes whIch had been sent to the Employer It was not reasonable for her to make a judgment on
the suffiCIency of the medIcal mformatIOn WIthout a reVIew of the mformatIOn m the posseSSIOn
of the Employer, even though none had been receIved for 6 months
The Employer had m ItS posseSSIOn an open-ended and unrestncted medIcal release whIch Dr
ZaidI had prOVIded on September 21, 1995 whIch authonzed It to commumcate duectly WIth Dr
Glanz. It IS sIgmficant, as well, that thIS authonzatIOn had been prOVIded to the Employer m
response to a suggestIOn by the Employer m Mr Hunter's letter of September 15, 1995
"AlternatIvely you could prOVIde us WIth wntten permISSIOn to speak to Dr Glanz, allowmg us
to secure the reqUIred mformatIOn." The Employer made use of thIS authonzatIOn on one
occaSIOn, a letter to Dr Glanz m October 1995, whIch resulted m Dr Glanz's letter of
November 1st, but dId not use the authonzatIOn further m spIte of the fact that there was no tIme
lImIt on It. However, Ms Cunnmgham gave her opmIOn dunng cross-exammatIOn that It should
not have been used by the Employer to contact Dr Glanz before dIsmIssmg Dr ZaidI.
-
There IS no mdlcatIOn, as there was WIth some other medIcal documents submItted to the
Employer, that the release had been duected to Dr ZaidI'S medIcal file However, Mr Hunter
who ImtIally receIved the release, was m attendance at the meetmg at WhICh the final deCISIOn to
dIsmIss Dr ZaidI was reached and was closely mvolved m the varIOUS steps leadmg up to that
deCISIOn. One has to ask why the Employer dId not wrIte or telephone Dr Glanz pnor to
dlsmlssmg Dr ZaidI. The eVIdence of the Employer was that It was Dr ZaidI'S responsibIlIty to
contact Dr Glanz for a possible return date, Implymg that It was not theus. The Board has
64
concluded that the VIew of Dr ZaIdI as a non-complIant employee who should comply wIth the
Employer's wIshes m the way the Employer wIshed resulted m Its not domg so At varIOUS
pomts m her eVIdence, Ms. Cunnmgham ImplIed that there was a wllfulness to Dr ZaidI'S
absence and his failure to provIde mformatIOn. She spoke of Dr Zaidi "choosing not to work",
"choosing" not to go for hIS MIBI Scan, and "choosing" not to attend hIS Stage II heanng of the
ImtIal gnevance. In an explanatIOn of government procedures she stated that "when you want to
be absent and If you want to be home wIth your famlly or for other reasons", you put m a
request. She testIfied that, m her opmIOn, "the Employer had done everythmg humanly possible
to have thIS employee provIde us wIth medIcal mformatIOn and he chose not to" She used the
word "non-complIance" Mr Smith charactenzed Dr ZaidI'S conduct as "wilful blmdness" and
spoke of Dr ZaidI'S "refusal" to work. The Board rejects these charactenzatIOns.
It IS usual m cases of dIsmIssal, WIth the exceptIOn of those that are ImmedIate, that an employee
IS warned m wrltmg that dIsmIssal IS bemg consIdered by the Employer as a possible final
outcome The Employer Issued four warnmgs to Dr ZaidI
August 22nd "If we have not receIved eIther of these documents from you by August
31, 1995, we will have to review our position."
September 5th "If we have not heard from you by that date further action will be
required."
September 15th "Will you please comply WIth our request by September 30, 1995, faIlmg
WhICh we will have to consider further action"
Apnll1th "If thIS mformatIOn IS not forthcommg along WIth confirmatIOn of the date
of hIS L TIP applIcatIOn by April 26,1996, further action will be taken"
(EmphaSiS added WIth the exceptIOn of Apnl 26, 1996 WhiCh was bold m
the ongmal.)
The eVIdence demonstrated that at the time of the Apnl 11 th letter the Employer mtended the
next step to be dIsmIssal. The letter, accordmg to Ms. Cunnmgham, was "a stage-settmg letter"
The warnmg statements are vague, and whIle the fourth IS stronger than the first, there IS lIttle
dIfference between the fourth and the second, that IS, between "wlll be reqUIred" and "wlll be
65
taken" They do not gIVe the reCIpIent a clear Idea ofthe possible consequences. The operatIve
word m a warnmg pnor to the Employer actmg on the termmatIOn of an employee IS "dIsmIssal",
or "termmatIOn" ThIS allows the employee one final chance WhICh Dr ZaidI was demed.
In order for the Employer to grant leave wIth pay (includmg short-term sIck leave benefits), and
to have no break m the employee's compensatIOn, a medIcal certIficate IS reqUIred before or
ImmedIately followmg the five-day penod. That certIficate must certIfy that the employee IS
unable to attend to hIS officIal dutIes
After five (5) days' absence caused by sickness, no leave with pay shall be
allowed unless a certificate of a legally qualified medical practitioner is
forwarded to the Deputy Minister of the ministry, certifying that the employee is
unable to attend to his official duties. Notwithstanding this provision, where it
is suspected that there may be an abuse of sick leave, the Deputy Minister or his
designee may require an employee to submit a medical certificate for a period of
absence of less than five (5) days.
There IS no prescribed form for the certIficate and It IS not uncommon for a phYSICIan to proVIde
an employee WIth a cursory note WhICh gIVes scant mformatIOn. The wordmg "certIficate"
suggests somethmg more formalIzed but there was no polIcy WhICh outlmed preCIsely the
reqUIred detaIls, although there IS Gnevance Settlement Board JurIsprudence (Orprecio and
Johnson, supra) whIch makes It clear that "m appropnate CIrcumstances" the Employer IS
wIthm ItS nghts to ask for more speCIfiCIty than a SImple statement that an employee IS SIck, m
partIcular, when there IS some questIOn as to the veraCIty of the SIckness claim. Ms Patterson
was sceptIcal of the true reason for Dr ZaIdI'S absence. She testIfied that mmIstry protocol was
that employees who are SIck, must document theIr Illness WIth accompanymg medIcal ratIOnale,
pnmarIly, so [the Employer] knows the length of tIme to plan" She testIfied, as well, that there
was an expectatIOn that the phYSICIan's note should state more than that the employee was SICk.
The note from Dr Rajan dated June 1, 1995, mdIcated more than "that the employee was SIck"
However, Ms Patterson determmed the mformatIOn was msufficIent. In spIte of the fact that
Dr Rajan stated that Dr ZaidI was unfit for work, Ms. Patterson belIeved that such a statement
was msufficlent smce, as she testIfied, "some people work WIth angma" and as Ms.
66
Cunnmgham testIfied "lots of people work wIth angma" They dId not accept thIS note at face
value It seems they were unaware or had forgotten that Dr ZaidI had suffered a severe heart
attack wIthm the prevIous two years. The Employer dId have a medIcal file respectmg Dr ZaidI,
and although Ms. Patterson and Ms. Cunnmgham may not have had dIrect access to that file,
they dId have access to Human Resources staff who had that access Further, the note was
unsatIsfactory m Ms. Patterson's opImon, "because Dr ZaidI was supposed to be dlscussmg
whether he could return to work" and "mformatIOn that could have been provided, wasn't"
However, Dr Rajan, when asked If on June I, 1995, he could have gIven a prognosIs, he replIed
"absolutely not" The Board finds that thIS note at the tIme It was wrItten and WIth the
mformatIOn then avaIlable to Dr Rajan, met the reqUIrements of ArtIcle 52 10 for tImmg and
certIficatIOn. However, It was reasonable for the Employer to reqUIre further notes as more
medIcal mformatIOn became aVailable
The questIOn of the length of tIme covered by the ImtIal note, arose In Ms. Patterson's and Ms.
Cunnmgham's opmIOn the note sImply applIed to the day on whIch It was Issued, that IS, June 1,
1995 In Re Budd Automotive, supra ArbItrator ShIme has addressed thIS Issue at page 15
If employees do not show up for lengthy periods of time without indicating or
informing the company that they will be absent for those periods the company
will not be able to organize its affairs in an orderly way The employer must be
made aware of situations where employees will be absent because the failure to
keep the company informed is a serious matter that creates numerous planning
difficulties.
None the less, these sItuatIOns must be treated with some common sense For
example, it is not expected that an employee who breaks his or her leg and will
be absent for a number of weeks contact the company every three days.
~ Generally in such a situation, the employee will inform the employer of the
situation and advise the employee [sic] of the approximate time of return. Since
some medical situations are indefinite quite often the indicated date of
return is indefinite. In these situations it is the better practice for an
employee to further inform the employer of the expected date of return
when the medical problem has advanced or progressed to the point where
the employee may be more definite.
[Emphasis added]
In most industrial situations where an employee informs the employer that he or
she is subject to a lengthy illness, there is no need to contact the plant every
three days or within the notification period required in the collective agreement.
The employer in effect, has "constructive notice" and is able to plan and
organize its affairs in accordance with the information given. The original
67
notIce carrIes on as If It were being gIVen from day to day until the time
indIcated by the employee for the termination of the illness has been reached.
Such constructive notice is, in effect, a blanket notification for the period in
question and satisfies the purpose of the notification provision.
It makes no sense for a physIcIan to Wflte a prospectIve note WhIch only covers the day on
WhICh he IS seemg the patIent. That would only be appropnate for a retrospectIve note. Dr
Rajan dId not say that Dr ZaldI had been suffenng from angma for the past few days and was
now fit to return to work. He sald that he was unfit at the tlme he saw hIm. GIven the type of
medIcal problem, the testmg reqUIred and the mabIlIty of the physIcIans to provIde ImmedIately
the longer term diagnosIs WhICh was needed before a prognosIs could be made and a return to
work date estImated, and the necessIty of a referral to a specialIst and to testmg, It would have
been reasonable to ask Dr ZaidI to provIde a weekly or bI-weekly update and a phYSICIan's note
from tIme to tlme after the mItlal note There IS no reqUIrement for an employee who IS SIck to
mform the Employer of each and every medIcal appomtment and dIagnostIc test. Further, Ms
Patterson seemed unwlllmg to belIeve Dr ZaldI'S explanatIOns WIthout venficatIOn of hIS
phYSICIans or to accept that Dr ZaldI could not obtam what she wanted WIthout dIfficultIes and
delays.
Dr ZaIdI and Ms. Patterson dId not speak dIrectly after June 19, 1995 Dr ZaldI and Mr Hunter
never dId speak dIrectly after May 26, 1995 There was no verbal commumcatIOn between Dr
ZaidI and the members of the Human Resources Department. The responsibIlIty for thIS dearth
of verbal communIcatIOn cannot be laid solely at the feet of Dr ZaidI. CommumcatIOn IS a two-
way street. It IS unusual that no one m the office thought to telephone Dr ZaldI to see how he
was feelmg, or that Dr ZaldI dId not telephone the office to see how thmgs were gomg. The last
wrItten communIcatIOn that Dr ZaidI provIded for the Employer was the leave of absence
request form m January 1996
An employer IS entItled to know the aVallabIhty of the members of ItS workforce, m order to plan
and organIze the work and an employee has a responsibIlIty to see that the employer IS kept
appnsed of hIS or her aVailabIlIty for scheduled work, and m the case of Illness to make
68
reasonable efforts to obtam, from hIS or her physIcIan, mformatIOn provIdmg a medIcal
venficatIOn of the absence and sufficIent mformatIOn to enable the Employer to organIze, assIgn
and schedule the work and ItS employees. The urgency wIth WhICh thIS mformatIOn IS reqUIred
bears some relatIOnshIp to the partIcular posltlon which the absent person occupIes and the
readmess wIth whIch he or she can be replaced. For example, It IS easIer to reassIgn the work of a
general admmIstratIve clerk than that of an employee occupymg a more specialIzed functIOn or
an employee wIth a dependent clIent group The abIlIty of the phYSICIan on whom the employee
relIes to proVIde the mformatIOn WIll also vary dependmg on the aVailabIlIty of appomtments,
hIS or her workload, and the medIcal problem bemg diagnosed and treated.
In Dr ZaidI'S case, he occupIed the posItIOn of Program AssIstant - ChIldren's ReSIdentIal
LIcensmg. He was the front-lme person dealmg dIrectly wIth the clIent group, the parents, and
caregIvers of reSIdents, and reportmg to the Program SupervIsors. His posItIOn reqUIred
deadlmes to be met and lIcensmg of these agenCIes to be carrIed out m a tImely fashIOn for
fundmg, habIlIty, complIance and reSIdent-care reasons. His responsibIlItIes could not be set
aSIde during hIS absence There was no eVIdence that Dr ZaIdI expressed any concern about
how hIS responsIbIlItIes were bemg carrIed out dunng hIS absence
In order to determme whether the Employer has met the onus for dIsmIssal for cause, It IS
appropnate to reVIew the eVIdence to see what Dr ZaidI dId to attend to hIS symptoms m order to
advance hIS return to the workplace, what he dId to prOVIde mformatIOn to hIS Employer, and
~lso to conSIder what he faIled to do that he mIght have done.
Dr Zaidi undertook the following medical steps to deal with his condition
. Telephoned Dr Rajan on May 26th
. Attended at the Emergency on May 27th
. Attended at the Emergency on May 30th and saw Dr Milos
. Attended at Dr Rajan's office on June 1st
. Attended at the hospItal on June 19th to see Dr Glanz
. Saw Dr Glanz on July 17th - ?
. Attended the treadmlll test on July 25th
69
f
. Attended an appomtment With Dr Glanz on August 24th
. Underwent a MIBI Scan on October 24th
. Attended an appomtment wIth Dr Glanz on March 12th
Dr Zaidi's physicians or their secretaries provided the Employer with the following
material respecting Dr Zaidi's absence due to illness
. A note dated from Dr RaJan dated June 1, 1995, statmg two things
a) Dr ZaidI was suffenng from angma.
b) Dr ZaidI was unfit for work
. A telephone call to the Employer statmg Dr Glanz would be responsible for
determmmg a prognosIs
. A telephone call from Dr RaJan's office to the mmIstry office With a VOIce mall
left as by then the office had closed
. A note from Dr RaJan dated July 5, 1995, gIvmg the date of Dr ZaIdI's
appomtment wIth Dr Glanz and the reason for the referral to a cardIOlogIst
. A letter from Dr Glanz dated August 25th confirmmg Dr ZaidI'S status as a
current patIent and mformmg the Employer that he was stlll undergomg
mvestIgatIOn wIth respect to hIS medical status
. A letter from Dr Glanz dated September 1st, statmg that Dr ZaidI was
undergomg medIcal mvestIgatIOn for chest pams and that he had recommended he
stay off work untll they were fimshed
. A detaIled letter from Dr Glanz, dated November 1st, bnngmg the Employer "up-
to-date" on Dr ZaidI'S condItIOn, gIvmg a bnefhIstory of the relevant medIcal
problem, settmg out hIS plans for hIS patIent, and mformmg the Employer that Dr
ZaidI should stay off work "gIven hIS poor exerCIse tolerance and the demands of
a Job as described m hIS Job descnptIOn"
,
!
I Dr Zaidi or members of his family made the following efforts on his behalf to provide the
I
~ Employer with information
I
I . Left mformatIOn on May 26, 1995, that he was unwell and was gomg home wIth
I the secretary, MarIlyn (Ms. Patterson was workmg outsIde the office at the tIme)
i
I . On May 29th, telephoned and spoke to the secretary, MarIlyn, mformmg her that
, he would not be m due to Illness (Ms. Patterson was out of the office thIS day)
,
!
! . On June 1 st, telephoned Ms. Patterson personally and reached her VOIce mall but
she had mdICated she dId not want messages, so he left none
~.
~ . DelIvered a note from Dr RaJan mdIcatmg he was suffenng from angma and was
f
i
i unfit for work
r
~ . Left a vOIce-mail message at 0740 hours on June 13th statmg that he was stlll not
,
,
i
~ 70
f;
r,
r
f
,
f
r
r
f
well and had to go to the hospItal for tests
. Durmg a conversatIOn which Ms. Patterson mItlated m response to Dr ZaIdI's
VOIce-mail message, mformed her about hIS cardIOlogIst appomtment that he
hoped to advance, and that smce the doctor had to provIde the prognosIs, he could
not provIde that mformatIOn to her as he dId not have It
. Had the letter for Dr RaJan delIvered to hIS office wIthm a day or two of
recelvmg It
. Telephoned Dr RaJan's office two or three tlmes, mSIstent about gettmg
somethmg m wrItmg about seeing the cardIOlogIst
. Went to Dr RaJan's office and got a note statmg hIS appomtment date WIth Dr
Glanz and delIvered It to the Employer before July 10th
. DelIvered the Employer's letter to Dr Glanz
. Left a message for the Employer that he was havmg a treadmIll test a week hence
. Told Dr Glanz that the Employer needed mformatIOn
. SIgned a medIcal release for Dr Glanz to speak to hIS Employer
. Took his copIes of the letters from Dr Glanz to Mr Layden
. ProvIded through Mr Layden an open-ended authonzatIOn for the Mimstry,
WIthout specIfymg a partIcular mdIvIdual, to speak WIth Dr Glanz
. Fllled out an Imtlal leave of absence request form whIch was not acceptable due
to the dates
Mr Layden undertook the following on Dr Zaidi's behalf:
. Spoke WIth the Employer on a numerous occaSIOns between from the first week m
August 1995 to the last week m January 1996, and then from mId-Apnl untll the
tIme of Dr ZaidI'S dIsmIssal
. Faxed a copy of Dr Glanz's letter of August 25, 1995 to the Employer
. Faxed a wrItten authonzatIOn for the Employer to obtam medIcal mformatIOn
respectmg Dr ZaidI from Dr Glanz
. Conveyed to Mr Hunter that Dr ZaidI was havmg dIfficulty gettmg a letter from
~ Dr Glanz
. FIled hIS mItlal gnevance and represented hIm at the Stage I (?) and the Stage II
hearmg
. Attempted to faCIlItate processmg of the L TIP applIcatIOn and the leave WIthout
pay absence request
. Requested an extenSIOn when notIfied of the Impendmg dIsmIssal
. ASSIsted Dr ZaIdI m the aftermath of hIS dIsmIssal
The above demonstrates that medIcal eVIdence was prOVIded to the Employer, that Dr ZaidI dId
make efforts m thIS regard and that others dId on hIS behalf. The mformatIOn that the Employer
71
!
wanted was If and when, and under what restnctIOns, Dr ZaidI was gomg to return to work and
If It was not possible to provIde that mformatIOn, when It mIght be aVailable ThIs mformatIOn
had to come from Dr Glanz. In spIte ofthe efforts made, thIS mformatIOn was not forthcommg.
The closest that the Employer came to obtammg It was Dr Glanz's letter of November 1st m
whIch he stated that "further mformatIOn as to [Dr ZaidI'S] sUItabIlIty to return to work may be
aVailable" (EmphasIs added) when he sees hIm after hIS MIBI Scan, but that he should not work
at least untIl that tIme. He adVIsed that hIS letter made clear that he was not able to provIde the
mformatIOn at that tIme and dId not guarantee that he would provIde It at any partIcular pomt m
tIme m future
It IS the Board's VIew that when, on September 21, 1995, Dr ZaIdI sIgned hIS authonzatIOn for
Mr Layden to represent hIm respectmg hIS gnevance and for the Employer to communIcate
dIrectly wIth Dr Glanz about hIS medIcal condItIon, he saw these two steps as relIevmg hIm of
responsibIlIty for makmg further efforts m the dIrectIOn of gettmg medIcal mformatIOn to the
Employer He dId not mqUIre of Dr Glanz whether or not It was medIcally adVIsable for hIm to
attend hIS Stage II hearmg From October 24th to the tIme of hIS dIsmIssal there was no eVIdence
of any ImtIatIve on hIS part to see that the Employer was prOVIded, m a tImely fashIOn, wlth the
mformatIOn respectmg hIS abIlIty to return to work. He Waited for Dr Glanz's secretary to
; telephone hIm for hIS follow-up appomtment rather than telephone for the appomtment hImself;
;
he dId not ask when he could return to work at hIS March 12th appomtment; and, followmg that,
he Waited for Dr Glanz to tell hIm he could return to work, or for the Employer to tell hIm that,
presumably after It had heard from Dr Glanz. Dr ZaIdl referred, on more than one occaSIOn,
dunng hIS eVIdence to Dr Glanz's heavy workload and responsibIlItIes and the Board does not
dIsagree wIth hIS observatIOns However, Dr ZaidI had oblIgatIOns to hIS Employer that
~ reqmred hIm to take some mItlatlve, to make clear to Dr Glanz that he needed to be able to gIve
~
t hIS Employer some Idea of when he mIght be able to return to work, and that Dr Glanz was the
f
,-
, one person who could provlde thIS mformatIOn or could explam that he would not be able to do
~'
~ so Dr Glanz IS no doubt skIlled at managmg hIS workload and hIS caseload and he has a
r
f secretary to assIst hIm m thIS regard. Dr ZaidI'S oblIgatIOn was to hIS Employer and hIS
(
[
[
I
! 72
!
r
1
!
[
r
,
!
!
,
condItIOn was such that there was no reason he could not have taken some mItlatlve m thIS
dIrectIOn, m spIte of the fact he was frustrated.
Dr ZaidI testIfied that he had become very frustrated wIth the process and the demands of the
Employer whlch he was vlewmg as harassment. ThIS was exacerbated by the fact that he had
been wIthout mcome and benefits for some months and when it came tIme to apply for L TIP
whIch IS normally done pnor to the expIratIOn of short-term benefits, he reasoned that hIS
chances of gettmg approval for L TIP were ml as he had been turned down preVIOusly followmg
hIS heart attack. He testIfied that he sent one applIcatIOn to ConfederatIOn LIfe but dId so half-
heartedly knowmg that It was an exercIse In futIhty The msurance company had no record of Its
havmg been receIved and Dr ZaidI offered no documentary eVIdence of Its havmg been sent.
His testlmony respectmg hIS havmg submItted thIS applIcatIOn was not convmcmg m part
because there was no eVIdence whatsoever of his havmg approached Dr Glanz for the
physIcIan's comment and SIgnature whIch were reqUIred to accompany the claimant's statement.
In arrIvmg at a deCISIOn m thIS regard, one cannot Ignore the context m WhICh thIS SItuatIOn
developed. Ms Patterson had planned, as Ms. Cunnmgham testIfied, to "confront Urooj" on
the Monday, only to find that "when asked to account for hIS behavIOur [he] dIsappeared and [the
Employer] was not able to examme hIm" Ms. Cunnmgham testIfied that she became "well
aware of CIrcumstances m that there was some concern about hIS appropnate use of SIck tlme"
and that Dr ZaidI had gone "absent at the pomt m tlme he would most lIkely have been
dlsclplmed" It was from thIS perspectIve, then, that Ms. Patterson and Ms. Cunmngham
approached Dr ZaidI'S absence due to Illness. Mr Hunter testIfied that he receIved a "detalled
bnefing" from Ms. Patterson on hIS return, and that bnefing would have been from her
perspectIve The eVIdence leads to the conclUSIOn that these three mdIvIduals perceIved Dr
ZaIdI's absence as a means of aVOIdmg a "senous dISCUSSIOn" over hIS work performance The
medIcal eVIdence IS clear that he was, mdeed, expenencmg chest pams whIch Dr Raj an
attributed to angma. WhIle the Board recogmzes that symptoms such as Dr ZaidI described at
the outset rely In large part on the sUbjectIve descnptIOn of the patlent, It does not belIeve that
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Dr ZaidI mvented these symptoms. His hIstOry of a faIrly recent severe heart attack gave both
Dr ZaIdI and Dr Rajan cause for concern, and Dr Rajan responded, as he said, wIth cautIOn.
Further, It could be that Ms Patterson's announcement on the Fnday that three days hence, on
the followmg Monday, she was gomg to have a senous dIscussIOn wIth hIm respectmg hIS
performance, created anxIety WhIch could have resulted m physIcal symptoms of angma.
ThIS was not, It seems, a happy workplace for Dr ZaIdI. He posed the rhetoncal questIOn at one
pomt durmg hIS testImony m reference to the gnevance procedures, "Why should I go and SIt
down wIth people who do not like me?" ThIS perceptIOn was remforced when he read at the
hearmg, an Internal Office Memorandum from Nancy Jackson to SharI Cunnmgham, wIth the
hurtful (for hIm) parenthetIcal comment respectmg deaths m hIS family m regard to hIS havmg
rescheduled his MIBI Scan.
Havmg reVIewed the eVIdence, the arguments and the junsprudence provIded, and welghmg the
specIfic aspects of thIS case, the Board has determmed for the reasons outlmed above, that Dr
ZaidI'S medIcal certIficates m the context of hIS Illness and the medIcal care system, along wIth
the mformatIOn provIded between June 1 st and November 1 st were sufficIently m complIance
wIth ArtIcle 52 10 for hIm to have been granted leave wIth pay The Employer granted thIS
retroactIvely but for the penod of tIme he was not granted leave WIth pay, he also lost hIS health
care benefits and mcurred the expense of $75606 The Board orders that the Employer
reImburse Dr ZaidI for thIS amount.
The Board has further concluded that Dr ZaidI IS not solely responsible for the communIcatIOn
fallures WhIch occurred between them, m fact, the Employer, m spIte ofthe numerous letters It
wrote to hIm, shares substantmlly m that responsibIlIty The questIOn IS, then, does the
~ Gnevor's fallure to take mItIatIve to mqUIre about hIS abIlIty to return to work at the earlIest
f medIcally possible tIme prOVIde cause for the dIsmIssal of a fourteen-year employee WIth no
hIStOry of chromc absenteeIsm or SIck leave abuse and no notIficatIOn that dIsmIssal was to be
the Employer's next step, JUStIfy hIS dIsmIssal ? It IS the determmatIOn OfthIS Board that It does
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not. NeIther does the Board VIew the substItutIOn of a lesser penalty appropnate. It does beheve,
however, that compensatIOn should be awarded but that m thIS partIcular case, the
compensatIOn should reflect the Jomt responsibIlIty referred to above
The Board, therefore, makes the followmg order respectmg the dIsmIssal gnevance
Dr ZaIdI IS to be remstated wIthm a month of the date of thIS declSlon,
Pnor to commencmg work, Dr ZaldIIS to provIde a current certIficate of fitness for work from
eIther Dr RaJan or Dr GlarlZ IdentIfymg any restnctIOns WhICh mIght reqUIre accommodatIOn.
Dr ZaldIIS also to proVIde a medIcal ,release for both Dr RaJan and Dr Glanz so that they can
commumcate wIth the Employer respectmg his health should the need arIse, and authonzatIOn
for the Employer (WIthout specIfymg a partIcular mdIvIdual) to communIcate WIth Dr RaJan and
Dr Glanz.
WhIle the Board accepts that m Dr ZaldI'S SItuatIOn, hIS VIew of hIS chances offindmg a new
Job m the current market was realIstIc he dId nothing to mvestIgate the possibIlItIes of some
consultmg work, for mstance, and although he dId take some steps to open an optIOn for hImself
and hIS famlly should he be unsuccessful m seekmg remstatement, thIS cannot be properly
charactenzed as mItIgatIOn.
Dr ZaidI IS to receIve compensatIOn as follows
May 26, 1995 to November 24, 1995 Short term SIckness benefits
(This has, I believe, been paid with the
exception of the health care premium
reimbursement)
November 24, 1995 to June 30, 1996 CompensatIOn as If he were on leave
~ WIthout pay
July 1, 1996 to remstatement 50% of salary plus benefits WIth
mterest at 3%.
There IS to be no loss of semonty
The Board wIll remam seIzed m the event that problems anse WIth the ImplementatIOn of thIS
declSlon.
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The Board wIshes to suggest to the partIes m thIS matter, that m order that Dr ZaIdI's
remtegratIOn mto the work place be as smooth as possible, the assIstance of a facIlItator or a
mediator would be beneficIal to both.
Dated at Kmgston, OntarIO
f/JCU( 11, 19~r
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