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HomeMy WebLinkAbout1983-0167.Union.90-06-26ONTARIO EMPLOY.3 DEL.4 CO”RONhlE CROWNEMPLOYEES OEL’ONTA/IRIO GRIEVANCE ‘mm BOARD CQMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORR: FOR THE GRIEVOR: FOR THE EMPLOYER REARING: OPSEU (Union Grievance) Grievor - and.- The Crown in Right of Ontario (Ministry of Community and Social Services) - and - Employer K. P. Swan Vice-Chairperson S. Schachter Member G. Walker Rember I. Roland Counsel Gowling, Strathy & Renderson Barristers & Solicitors D. Abramowitz Human Resource's Branch Ministry of Community & Social Services August 22, 1983 DECISION This arbitration relates to a grievance by the Union concerning the introduction by the Ministry of Community and Social Services of a standardized medical certificate to be provided to employees for completion by their personal physicians where the employee is required to submit a medical certificate because of an absence due' to illness. The original grievance required the withdrawal of the form forthwith. In the alternative, the Union demanded that the Employer pay for medical examinations in which the certificate was to be used. It is of interest to set out the provisions of the collective agreement relating to medical certificates, since these are referred to throughout the arguments of the parties. Those provisions are: 51.9 Where, for reasons of health, an employee is frequently absent or unable to perform his I duties, the Employer may require him to submit to a medical examination at the expense of the Employer. 51.10 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 Minister or his designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days. It appears that the form was first introduced by the Ministry for a six month test beginning August 1, 1982. The - 2 - intention was that the form would be made available to employees for completion by a physician where the employee required a medical certificate pursuant to clause 51.10, quoted above. The Ministry ., assumed no responsibility for any charges which might be levied by physicians for completion of the form. In the beginning, at least, it was intended that use of the form would be mandatory. Following the six'month test, the Ministry informed all of its offices by a memorandum dated February 28, 1983 that the form would be optional only. The relevant parts of the memoran- dum read: We have decided not to introduce the standard medical certificate form as a matter of policy at this time. There remains, of course, the necessity to produce acceptable medical evidence for absence due to illness where required under the collective agreement and regulations. To fulfill this reguire- ment, you may continue to employ current practices or utilize the attached medical certificate. Where the latter method is employed, the employee must agree to its use. Shortly after this document was circulated, the Ministry informed the Union that the form would be for use on an optional basis only, and suggested that.the present grievance be withdrawn. The Union declined to do so, on the basis that the form "requires information which goes beyond that which an employee is required to provide". Moreover, the Union argued that the Ministry's 'practice of making the form available for optional use would "encourage individual arrangements between a supervisor and an employee to provide information that is not required". - 3 - While it appears that one of the Ministry's facilities, the Durham Regional Centre, attempted to make the form mandatory for its employees, the agreed evidence indicates that the Employer took steps to have that instruction rescinded, and a policy of voluntary use introduced at that Centre as well. The form has five sections to be completed by the physician: the introductory section identifying the employee is to be completed by the employee before giving the form to the physician. The first section asks the physician to indicate whether his or her knowledge of the illness or injury comes from the patient's statement or by personal observations during the .absence from work. The second section asks for a diagnosis, but includes the following note: (N.B. This is optional. If patient does not swish diagnosis. included, please leave #2 blank.) : The next section asks the physician to indicate whether the employee is able to return to duty, and if not for a predic- tion of when that will be possible. There is then a request for any restrictions, such as lifting restrictions, on continued employment, and finally for an indication of any medication which might affect performance. The Ministry indicated before us, and would therefore be committing itself to be bound by such an assertion, that the Ministry makes the form available to individual offices at the option of each individual office, so that even its availability to - 4 employees is not mandated central the option ,of each individual lY* Use of the form is then at employee, and any individual certificate provided by. a doctor remains acceptable. In these circumstances, the Employer says that there can be no breach of the' collective agreement. The Union's argument is that clause 51.10 provides a complete code of when a medical certificate may be required, and what the contents of a required certificate may be. The Union argues that the use of the expression "certifying that the employee is unable to attend to his official duties" in clause 51.10 means that the Employer has no entitlement whatsoever to ask a physician to certify anything else except such inability. The Union therefore argues that the provision of the form constitutes a breach of that clause. Second, to whatever extent the use of the form is voluntary, the Union argues that this constitutes an invitation for the making of a personal bargain, in derogation of the collective agreement, between an individual employee and the Employer, usually through the employee's supervisor. If the Employer wishes a standard form medical certificate, the Union argues, that should be a subject for collective bargaining and not for unilateral imposition by the Employer. The Union further ~observes that there may be cost implications, in that a'physician may charge to fi.11. out the form when a. certificate on the physician's own form would be free, that the form would be inconvenient to obtain and to have filled out, and that the form ” - 5 - itself.in no way expresses its use to be optional. The Grievance Settlement Board has had to deal on a number of occasions with the sufficiency or otherwise of medical certificates provided by employees to justify absence or to demonstrate a capacity to return to work. We were referred to four awards, Temole, 12/76, Donnan, 72/78, Buick, 64/79 and Koufis, 372182. None of these cases is really on the point before us, although they demonstrate the difficulty that can arise from time to time from medical certificates which are less ,than forthcoming. In our view, the central factor here is that the use of the certificate is entirely voluntary. Moreover, the most sensitive aspect of the form, the request for a diagnosis, is doubly voluntary, and the form sets out expressly on its face, in a way which would constitute a direct warning to a physician who has an obligation of confidentiality to his or her patients, that consent to the giving of a diagnosis should be obtained before the form is filled out in that respect. The rest of the information requested is not in any way sensitive, and although it may not be strictly required by the provisions of Article 51.10, and therefore might be objectionable if included in a form which was mandatory, it is surely not a class of information which the collective agreement in any way forbids an employee from providing. Indeed, it is difficult to imagine why anyone would ever want to withhold any of this information, and we have no doubt that such information is regularly provided by employees at their own instance., since it - 6 - assists in organization in the office while they are away, and provides information which may be protective of their own health and safety when they return. We do not, however, have to decide whether the Employer is entitled to require such information to be provided, although we observe,in passing that it is an extremely restrictive view of clause 51.10 to say that the requirement that the medical certificate certify inability to attend at work of necessity prevents the Employer from requesting any other information whatsoever, even when that information is of a kind which virtually every other employer requires as a matter of course in the absence of any specific collective agreement provision, and which most employees are happy to provide. We do not have to deal with such a situation, however, because no employee is reouired to provide anything except the requirements of clause 51.10. In the absence of some attempt at compulsion, we do not think that the Employer can be said to be in breach of clause 51.10 in any way. As to the suggestion that voluntary use of the form somehow constitutes an undermining of the Union's exclusive bargaining rights, we think this is entirely overblown. Use of the form by an individual does not amend the collective agreement, or avoid.the application of its terms. It constitutes at most a communication by an employee that he or she has no direct obligation to provide. Such communications occur daily, both orally and in writing, without undermining bargaining rights. In - 7 - our view, the voluntary use of the form has no such effect. The grievance is therefore denied. Due to the unfortunate death of Mr. Walker, this award is the decision of the Vice-Chairman, pursuant to subsection 2,0(6) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108. Mr. Schachter has indicated that he would dissent from this award. His observations are attached. DATED AT TORONTO, Ontario, this 26th day of June, 1990. Kenng'th P. Swan, Vice-Chairman " I DISSENT" (Shalom Schachter) , i , \ i