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
(Harrison)
Grievor
-and-
The Crown in Right of Ontario
(Workplace Safety & Insurance Board)
Employer
BEFORE Barry B. Fisher Vice-Chair
FOR THE GRIEVOR Risa Pancer
National Legal Counsel
Canadian Union of Public Employees
FOR THE EMPLOYER Elizabeth Kosmidas, Counsel
Legal Services Division
Workplace Safety & Insurance Board
HEARING September 6th, 2000, January 29th, 2001, March 26th and 27th, 2001.
Award
This is a termination grievance. The Employer claims that the Grievor was terminated with just cause and/or abandoned her employment in that she consistently refused to provide proper medical evidence of her alleged inability to attend at work.
The relevant facts are as follows:
The grievor was employed with the WSIB from August 1988 to May 28, 1998. She was employed as an Imaging Document Handler, which is a clerical position.
The grievors last day of actual work was July 24, 1995, some three years before her dismissal.
Prior to her last day at work on July 24, 1995, there was long history of conflict between the Grievor and some of her co-workers and managers over various issues. It will serve absolutely no purpose to set out in any detail the various issues that gave rise to this conflict and ultimately it does not affect the real issue in this case, that is whether or not the Employer had just cause to terminate the grievors employment. Suffice it to say that I accept the fact that the Grievor sincerely and strongly felt that the workplace in she worked was a poisoned environment and that she felt that she been subject to intense harassment for a number of years.
The Employer had in place a very appropriate system of dividing responsibility in 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 information 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 in Re York County Hospital Corp. and Service Employees International Union, Local 204, 1992 CanLII 14535 (ON LA), 25 L.A.C. (4th) 189, Arbitrator B. B. Fisher.
The Grievor has a deep felt and sincere distrust of the confidentiality provisions put in place by the Employer. She also has a very strong belief that she is entitled to keep her own medical information very confidential and therefore she does not have to share it with her Employer. Out of respect to the Grievors’ feelings on this matter, I will try to avoid all references in this award to any aspect of the evidence that may reveal anything to do with the Grievors health. I apologize to the any non- party reading this case, (as decisions of the GSB are public documents) if, as a result of this avoidance of medical detail, it may be difficult to fully understand the factual aspects of this decision. However, I felt that since the primary audience for this award was the directly affected parties, and that it was important for me to respect the wishes of the grievor on this sensitive issue, that the need for full and detailed reasons was of less importance than the importance of respecting the grievors’ privacy concerns.
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.
In this case the grievor 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 this refusal, the Employers’ doctors were unable to verify the extent to which the employee was actually unable to perform her duties or to determine what could be done to accommodate the employee to bring about a return to work.
It should be noted that at no time after July 24, 1995 did the grievor either receive or even seek any compensation from the LTD plan. Her refusal to do again stemmed from her unwillingness to share her personal medical information with either the Employer or the insurer.
The Employer advised the grievor on numerous occasions prior to her dismissal that her failure to allow the Employers’ doctor to talk to her doctor combined with a refusal to return to work would result in her dismissal for cause. In spite of those warnings, she continued to refuse that permission while at the same time she continued to refuse to return to work.
In fact, the Grievor did not even call her doctor as a witness at the arbitration hearing to testify that she was now able to return to work. The grievor was seeking reinstatement as a remedy in this 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 trite 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 verify that information. Where an employer sets up the proper confidentiality protocol, this verification process can include requiring 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 terms in the Collective Agreement. The only relevant provision in 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 in writing regarding an alleged misuse of attendance credits.
In this case the Grievor felt so strongly about her right to medical privacy that she refused to allow her employer to verify the information by permitting her Employers’ doctor to talk to her own doctor. This refusal, combined with refusal to return to work, led to her dismissal.
I admire the Grievors vigorous protection of her privacy rights. She is entitled to refuse her consent and no Employer one can force her to give it. However there is a price to pay for the exercise of that right. In this case, by refusing to give her permission to letting her doctor talk to the Employers’ doctor, she also gave the Employer the right to insist that she return to work. By then refusing 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 terminated for just cause.
The grievance is therefore dismissed.
Dated at Toronto, this 14th day of May, 2001.