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HomeMy WebLinkAbout1982-0363.Dymond.83-05-17ONTAR1RIO cRowN a.PIOYEES GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Kevin Dymond) Griever. - and - The Crown in Right of Ontario (Ministry of Correctional SerViCeS) Employer R. J. Roberts Vice Chairman I. J. Thomson Member W. A. Lobraico Member For the Grievor: I. Roland Counsel Cameron, Brewin & Scott Barristers & Solicitors For the Employer: L. M. McIntosh Counsel c Crown Law Office Civil Ministry of the Attorney General Hearing: April 21,,1983 - 2 - DECISION This case raises a question of interpretation which apparently has never before been brought before this Board. At issue is the meaning of Article 51.9 of the collective agreement whic!l was signed on July 28, 1980. Article 51.9 reads as follows: Where, for reasons of health, an employee is frequently absent or unable to perform his duties, the Employer may require him to submit to a medical examination at the expense of the Employer. The grievor contended that when he was required to submit to a medical examination pursuant to this provision, he was entitled to be examined by a physician of his choice. The Employer contended that the reverse was true: it was the Employer who was entitled to select the examining physician. I . At the hearing, the Employer made the follow- ing submissions: (1) The express language of Article 5.19, properly construed, indicated that it was the Employer who should select the examining physician; and, (2) in any event, the Union should be estopped from contesting this interpretation of Article 51.9 because over a long period of time the Union acquiesced in the consistent practise of the Employer to require examination by a physician of the Employer's choice. -3 - I&a prefer to deal'with the second point, above, first. Most of the evidence that was adduced at the hearing related to this point. Generally, it showed that over a long period of time --extending through several collective agreements --the Employer routinely.administered Article 51.9 by requiring the employee in question to obtain a medical examination at the Employee Health Services Branch in Toronto. All but a few employees complied with this direction. Many who sought the assistance of the Union did so because they did not wish to be examined at all and not because they wanted to select the physician. 'In the rare instance where an employee objected on the latter ground, the appropriate officers of the Union would object. There is no doubt, however, that in all the time that the Employer engaged in this practise the Union did notmakeoutof it an issue of policy to be resolved either before this Board or in negotiations. Atthehearing,we expressed considerable doubtwhether showing of prior practise by the Employer might be capable of sustaining any more than an inference that in the past there was considerable mutual-agreement between the Employer and employees regarding examining physician. Most employees probably would find nothing wrong with going to Employee Health Services as suggested by the Employer in its Article 51.9 requirement. There was nothing in the - 4 - record to indicate that the Union co-operated with the Employer in some form of imposition of the Employer's unilateral choice upon such employees. In these circumstances, it seemed difficult to conclude that the Union's behaviour amounted to acquiescence in an Employer-asserted right to impose its own choice. In this regard, it is worthwhile noting that, on the evidence, the Employer never asserted in its Article 51.9 requirement that it had the exclusive right to choose the examining physician; the requirement merely instructed the employee to report to the appropriate office of Employee Health Services. Even if the foregoing circumstances were sufficient to raise an estoppel against the Union, we would be inclined to conclude that as of the date of the hearing, any such estoppel had ended. It seems that prior to the effective date of the current collective agreement between the parties, January 1, 1982, a representative of the Union had advised the Employer that the Union rejected its position in the matter. On March 19, 1981, M.E. Campbell, a Staff Representative for the Union,advised by letter the Deputy Minister of this Employer that Article 51.9 of the ColleCtiVe agreement, as interpreted by the Union, did not entitle the Employer to choose the examining physician. This letter stated: -5 - In effect, the provisions of the agreement have been met already without cost to the Ministry. Contrary to the implication in Mr. Dunbar's letter, the employer may require an employee to submit to a medical examination at its expense but the language does not afford the employer the Ght to designate what physician will examine any employee's body or mind. Such would'be an invasionof privacy, It seems to us that this notice, given as it was before the negotiationof. the current collective agreement, would have been sufficient to terminate any estoppel that might have arisen as a result of the Employer's administrative practise. This brings us to the first submission of the Employer, above, that Article 51.9, hroperly construed, did grant the Employer the right to select the examining physician. For convenience, we repeat the text of the Article: Where, for reasons of health, an employee is frequently absent or unable to perform his duties, the Employer may require him to submit to a medical examination at the expense of the Employer. As can been seen, Article 51.9 does not expressly reserve to the Employer the choice of physician. The Employer essentially submitted that this consequence necessarily arose for the following reasons: (11 If Article 51.9 were not interpreted in this fashion, there would be -6- no reason left for its existence because under other provisions of the collective agreement and statute the Employer already had the right to require medical examination of employees: (2) examination by a physician of the Employer's choice, was essential to serve the purpose of Article 51.9, which the Employer alleged, was to provide the Employer with means to assess an employee's ability to carry out his duties on a regular basis in the future; and, (3) the necessity to interpret Article 51.9 to prcservc business efficacy, in the sense of preventing erosion of the Employer's ability to control, plan, and organize the workplace. At the hearing, we dismissed outright the first reason, above. It seemed to us that even if the Employer did have the right under other provisions of the collective agreement to require employees to undergo a medical examina- tion, the exercise of that right was limited to circumstances "where reasonable grounds exist." Re Dare Foods (Candy Division) Limited and Bakery, Confectionary and Tobacco Workers' International Union, Local 264, Unpublished Award, July 17, 1980, (O'Shea), at 17. Article 51.9 might equally be regarded as a limitation or expansion of that right by virtue of its more specific prerequisite for invocation, i.e., limiting or expanding the Employer's right to require medical examination to circumstances "where, for reasons of health" an employeeis "frequently absent or unable to perform his duties." The point is, it would not be necessary to read into Article 51.9 a . -7- privilege for the Employer to select the examining physician in order to prevent it from losing all meaning in the context of the collective agreement.: Accordingly, the submission that the Employer based upon this .premise had to be rejected. It also seemed to us at the hearing that the second and third points of the Employer were cut from the same cloth, in the sense that it was impossible to consider one without also becoming involved in the other. If we were to express the fabric from which both points were shaped, we probably would say that the Employer considered the purpose of Article 51.9 to be to ensure that the Employer received the benefit of its bargain in the employment contract -- in other words, tha~t the Employer could count on receiving a fair day'swork for a fair day'spay. Otherwise, the Employer's ability to manage the workplace, in the sense of planning, controlling and organizing its work force, would be grievously impaired. There seems to be little doubt that this was the interest of the Employer which was sought to be protected in Article 51.9; however, bearing in mind that this provision is part of a collective agreement, we confess to a strong suspicion that Article 51.9 was equally adapted to protect a competing, but equally vital. interest of the Union. Indeed, this was the argument that the Union presented to us. The Union - 8 - stressed in its submission the need to protect the Employee's right to privacy, to be free from a trespass to his person which does not bear the stamp of his consent. It is for this reason, the Union urged, that Article 51.9 must be interpreted to mean the exact opposite of the Employer's interpretation, that the employee has the right to choose the examining physician. That these competing interests are of a fundamental nature cannot be doubted. It has been reiterated in many aribtration cases that "there is adutvanda rightoftheemployer toensurethat an employee is ,medically fit to do the work that is required of him." Re Keeprite Inc. and Keeprite Workers' Independent Union (1982), 7 L.A.C. (3dl 112, at 122 (H.D. Brown). Where *he Employer has reasonable and probable grounds to suspect that an employee might not be capable of carrying out his part of the bargain of employment, his right to require satisfactory medical evidence of ability to perform has invariably been upheld. See Re Firestone Tire and Rubber Company of Canada Ltd. and United Rubber Workers, Local 113 (19731, 3 L.A.C. (2d) 12 (Weatherill); Eaton Automotive Canada Limited (19691, 20 L.A.C. 218, 220 (Palmer); Re U.A.W. LOCal 525, and Studebaker-Packard of Canada Ltd. (19601, 11 L.A.C. 139 (Cross). I -9- Equally well entrenched is the policy to .protect employees from exposure to assaults upon their person, 'even hy a physician, to which they do not consent. As ' was stated by McRuer, C.J., in Re Th~omps'on 'and Town of Oakville (19631, 41 D.L.R. (2d) 294 (Ont. H.C.): We~start with this general principle of law as stated iii 26 Hals., 3rd ed. p. 18, para. 25: "A medical practitioner who examines a person against his will and without authority to do so, commits a trespass." . . . One has only to remind onseself what a medical examination means. A medical examination involves the confidence of the doctor if he is your own physician, but it is otherwise if he is making an eiamination on behalf of another. The right of employers to order their employees to submit to an examination by a doctor of the choice of the employer must depend on either contractual obligation or statutory authority. . . . g. at 302. To overcome the interest in protecting the privacy of the individual, of protecting him from uninvited assault to his person, McRuer, C.J. required contractual obligation or statutory authority. Similar sentiments have been echoed in other cases, including arbitration cases. See - R. and Board of Arbitration, Ex P. United Steelworkers of' America, Local 4752 (1969), 7 D.L.R. (3d) 571, at 577 (Ont. H.C.): Dare Foods, supra; Re Monarch Fine Foods Company Limited and Milk and Bread Drivers, Dairy Emplovees, Caters and Allied Employees, Local 647 (19781, 20 L.A.C. (2d) 419, 422 (Picher). - 10 - It seems to us that, given the fundamental nature of their competing interests the parties must have intended both to be accommodated in Article 51.9. This can be accomplished, we believe, by interpreting the lack of specificity in the Article regarding who chooses the examining physician to mean that the physician must be acceptable to both .zmployer and employee. Examination by such a physician would, by definition, be with the consent of the employee. It also would accommodate the interest of the Employer in obtaining a true picture of the ability of the employee to perform in the future his part of the bargain governed by the collective agreement, It appears that a similar approach has found favour with other boards of arbitration, see Re City of Toronto and Canadian Union of Public Employees, Local 43 (1974), 7 L.A.C. (2d) 160, at 166 (Adams). More- over its seems that interpreting Article 51.9 to require examination by a mutually acceptable physician conforms most closely to what has, in fact, occurred in the past. In this regard, we note that it would not be inappropriate for the Employer to suggest examination by Employee Health Services, so long as the employee is made aware of his right to insist upon mutual acceptability. The grievance is allowed in part. The griever had the right to insist upon being examined by a physician acceptable to both him and the Employer. DATED AT London, Ontario this 17th day of May , 1983. ,,Vice Chairman I.J. Thomson, Member 3 %.A. Lobraico, Member 7: 3230 2: 2210 3: 2100 7: 3250