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HomeMy WebLinkAbout1999-2126.Harrison.01-05-14 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#2126/99 UNION# 98-26 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees Local 1750 (Hamson) Grievor -and- The Crown In Right of Ontario (Workplace Safety & Insurance Board) Employer BEFORE Barry B Fisher Vice-Chair FOR THE GRIEVOR Rlsa Pancer National Legal Counsel Canadian Union of Public Employees FOR THE EMPLOYER Elizabeth Kosmldas, Counsel Legal Services DIVISion Workplace Safety & Insurance Board HEARING September 6th, 2000, January 29th, 2001, March 26th and 2ih, 2001 2 A ward ThIS IS a termmatIOn gnevance The Employer claims that the Gnevor was tennmated wIth Just cause and/or abandoned her employment m that she consIstently refused to provIde proper medIcal eVIdence of her alleged mabIlIty to attend at work. The relevant facts are as follows 1 The gnevor was employed wIth the WSIB from August 1988 to May 28, 1998 She was employed as an Imagmg Document Handler, whIch IS a clencal posItIOn 2 The gnevors last day of actual work was July 24, 1995, some three years before her dIsmIssal 3 Pnor to her last day at work on July 24, 1995, there was long hIstory of conflIct between the Gnevor and some of her co-workers and managers over vanous Issues It wIll serve absolutely no purpose to set out m any detail the vanous Issues that gave nse to thIS conflIct and ultImately It does not affect the real Issue m tlllS case, that IS whether or not the Employer had Just cause to termmate the gnevors employment Suffice It to say that I accept the fact that the Gnevor smcerely and strongly felt that the workplace m she worked was a pOIsoned enVIromnent and that she felt that she been subJect to mtense harassment for a number of years 4 The Employer had m place a very appropnate system of dIvIdmg responsibIlIty m relatIOn to Issues of employee Illness In other words, the Employer made sure that only qualIfied medIcal personnel had access to the medIcal file and hIStOry of an employee and that the only mfonnatIOn gIven to lIne management had to do WIth whether or not the employee could perform the dutIes of her Job ThIS protocol complIed WIth the gUIdelInes set out m Re York County HospItal Corp and Service Employees InternatIOnal UnIOn, Local 204, 25 L.A.C (4th) 189, ArbItrator B. B. Fisher 3 5 The Gnevor has a deep felt and smcere dIstrust of the confidentIalIty prOVISIOns put m place by the Employer She also has a very strong belIef that she IS entItled to keep her own medIcal mfonnatIOn very confidentIal and therefore she does not have to share It WIth her Employer Out of respect to the Gnevors' feelIngs on tlus matter, I wIll try to aVOId all references m thIS award to any aspect of the eVIdence that may reveal anytlung to do wIth the Gnevors health I apologIze to the any non- party readmg thIS case, (as decIsIOns of the GSB are publIc documents) If, as a result of tlus aVOIdance of medIcal detail, It may be dIfficult to fully understand the factual aspects of thIS deCISIOn However, I felt that smce the pnmary audIence for tlus award was the dIrectly affected partIes, and that It was Important for me to respect the WIshes of the gnevor on thIS sensItIve Issue, that the need for full and detailed reasons was of less Importance than the Importance of respectmg the gnevors' pnvacy concerns 6 A central component of the Employers' attendance and Illness polIcy IS to have the Employers' medIcal doctor speak and deal dIrectly WIth the employees' doctors and health prOVIders Of course they cannot do so except WIth the employees' consent 7 In tlus case the gnevor gave very cursory medIcal letters to the Employer She always refused permISSIOn to let the Employers' doctor speak to her doctor As a result of tlus refusal, the Employers' doctors were unable to venfy the extent to whIch the employee was actually unable to perform her dutIes or to determme what could be done to accommodate the employee to bnng about a return to work. 8 It should be noted that at no tune after July 24, 1995 dId the gnevor eIther receIve or even seek any compensatIOn from the L TD plan Her refusal to do agam stemmed from her unwIllmgness to share her personal medIcal mformatIOn WIth eIther the Employer or the msurer 9 The Employer advIsed the gnevor on numerous occaSIOns pnor to her dIsmIssal that her failure to allow the Employers' doctor to talk to her doctor combmed WIth a refusal to return to work would result m her dIsmIssal for cause In spIte of those warnmgs, she contmued to refuse that pennISSIOn wlule at the same tune she contmued to refuse to return to work. 4 10 In fact, the Gnevor dId not even call her doctor as a wItness at the arbItratIOn heanng to testIfy that she was now able to return to work. The gnevor was seekmg remstatement as a remedy m tlus case She submItted a letter from her doctor on thIS subJect, but as the Doctor was not called as a wItness, I cannot gIve any weIght to the letter It IS tnte law to say that where an employee does not attend work due to Illness, that the employee IS reqUIred to provIde proof of that Illness It IS equally Important that the Employer be allowed reasonable methods by whIch to venfy that mfonnatIOn Where an employer sets up the proper confidentIalIty protocol, tlus venficatIOn process can mclude reqUInng the employees' permISSIOn to allow the Employers' medIcal person to talk to the employees' doctor Of course these general rules can be modIfied by express tenns m the CollectIve Agreement The only relevant prOVISIOn m thIS CollectIve Agreement IS as follows 15 05 Proof of Illness An employee absent for Illness may be reqUIred to provIde eVIdence that establIshes that he was unable to work due to Illness ThIS wIll not be reqUIred unless the absence IS for more than five (5) days or where an employee has been warned m wntmg regardmg an alleged mIsuse of attendance credIts In thIS case the Gnevor felt so strongly about her nght to medIcal pnvacy that she refused to allow her employer to venfy the mfonnatIOn by permIttmg her Employers' doctor to talk to her own doctor ThIs refusal, combmed wIth refusal to return to work, led to her dIsmIssal 5 I admIre the Gnevors vIgorous protectIOn of her pnvacy nghts She IS entItled to refuse her consent and no Employer one can force her to gIve It However there IS a pnce to pay for the exerCIse of that nght In tlus case, by refusmg to gIve her permISSIOn to lettmg her doctor talk to the Employers' doctor, she also gave the Employer the nght to mSIst that she return to work. By then refusmg to return to work, she breached a fundamental term of her employment, whIch IS to only be absent from work for valId reason or wIth the Employers' permISSIOn As such, she was termmated for Just cause The gnevance IS therefore dIsmIssed. Dated at Toronto, tlus 14th day of May, 2001 Barry B FIsher, VIce-Chair