GSB# 1713/02

UNION# G-41-02

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union Local 1587 (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Greater Toronto Transit Authority/GO Transit)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

Ian Fellows Green & Chercover Barristers and Solicitors

FOR THE EMPLOYER

Richard Drmaj Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors

HEARING

April 28 & 29, 2003.

DECISION

The union in this case has filed a policy grievance challenging the manner in which the employer has been scheduling employee medical examinations pursuant to the collective agreement.

The relevant language in the collective agreement reads as follows:

B6.08 Medical Certificates

(i) When a Supervisor requires verification, the Supervisor may request an employee to provide a medical certificate from a qualified Ontario medical practitioner for absences of five (5) days or less. Such requests will not be made in a discriminatory manner, and provided that such medical certificate satisfies the criteria set out in Article 6.08, $10.00 will be paid by the employer. There will be no payment for a medical certificate that does not meet the requirements outlined in this article (iii) , nor will there be duplication of payment for the same period of illness.

(ii) The Supervisor must make this request during the absence and prior to the employee's return. If the employee does not abide by this request to produce the medical certificate, then the employee will not receive sick pay benefits for the absence, but will be allowed to return to work providing there are no further extenuating circumstances.

(iii) The medical certification must, as outlined below, state the following information:

(a) date the employee was first seen by physician and confirmation that the employee is under doctor's care;

(b) prognosis of return to work date and confirmation that the employee cannot work;

(c) for return to work, that the employee is now medically fit to resume his/her full duties.

Under the requirements of this Article, GO Transit will not accept certificates that:

(a) are photocopies;

(b) do not indicate first treatment date or expected return to work date;

(c) are not verified by a legally qualified and licensed medical practitioner of Ontario.

(iv) If the employee was treated by a medical practitioner outside the Province, verification of such medical certificate of sickness or accident must be obtained from a legally licensed Ontario medical practitioner.

(v) When an employee is absent for a period of more than five (5) consecutive work days, he/she shall provide his/her Supervisor with a satisfactory medical certificate. Failing this requirement, he/she will not receive sick pay benefits and will not be allowed to return to work. This protects both the individual from harm and GO Transit from any liability due to further complications of the sickness or injury.

(vi) Part-time employees are not eligible for sick pay benefits, irrespective, this medical certificate criteria still applies. This procedure does not prevent the Employer from taking progressive action to correct such situations as may be necessary.

The employer may require that the employee submit to a medical examination at the expense of the employer, where for reasons of health, an employee is frequently absent or unable to perform his duties.

Payment of benefit is subject to the employee reporting such sickness and following all the correct procedures. Failure to do so, may jeopardize such payments.

4.5(1) Where any difference arises between the Employer and the Union relating to the interpretation, application, administration or alleged violation of the agreement, the Union shall be entitled to file a grievance with Human Resources Employee Relations, provided it does so within and not after ten (10) calendar days from the occurrence or origination of the circumstances giving rise to the grievance. However, it is expressly understood that the provisions of this paragraph may not be used by the Union to institute a complaint or grievance directly affecting an employee which such employee could himself institute and the regular Grievance Procedure shall not be thereby by-passed.

The parties argued this case based on the following agreed facts:

AGREED STATEMENT OF FACTS

1. The Union filed a policy grievance concerning issues including whether the Employer can require medical examinations by a doctor of its (the Employer's) choice pursuant to Article B6.08 of the Collective Agreement (Exhibit #1).

2. This policy grievance arose from an individual incident which resulted in a settled grievance (without prejudice) where the bargaining unit member was required to see a physician of the employer's choice, and the member advised he did not wish to be examined by that physician.

3. Prior to this incident (mentioned in paragraph 2) the Employer/Employee/Union resolved other incidents without resort to grievance/arbitration by accommodating differences between the parties (ie. referring female members to female doctors) [if they so requested] and/or in the instance of a male patient, agreeing to a neutral doctor in Hamilton where all parties agreed it was appropriate.

4. The Collective Agreements between the parties have contained medical examination provisions since 1981.

5. In the past the Employer has requested that employees see doctors of its (the Employer's) choice and employees have agreed to do so without issues except as discussed above.

6. The Employer has selected its doctors from successful applicants to Requests for Proposal (for the above purpose).

Counsel for the union characterized the issue before me as, whether or not the employer can require or compel an employee to be examined by a doctor of the employer’s choice pursuant to article B6.08 of the collective agreement.

There was general agreement between the parties with regard to the principles of law applicable to the situation before me. Where they parted company was on the application of the legal principles to the facts of this case.

The leading case on this issue of medical examinations is Re Thompson and

Town of Oakville (1963), 1963 CanLII 254 (ON HCJ), 41 D.L.R. (2d) 294 (Ont. High Ct.) (the Thompson case) and it stands for the principle that the right of employers to order their employees to submit to an examination by a doctor of the choice of the employer must flow from either contractual obligation or statutory authority. In Re Monarch Fine Foods Co. Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647 (1978) 1978 CanLII 3449 (ON LA), 20 L.A.C. (2d) 419 (Picher) (the Monarch Fine Foods case), Arbitrator Picher reviewed this decision and commented as follows:

It is well established that persons do not by virtue of their status as employees lose their right to privacy and integrity of the person. An employer could not at common law assert any inherent right to search an employee or subject an employee to a physical examination without consent: Latter v. Braddell et al. (1881), 50 L.J.Q.B. 448 (C.A.). Thus there is nothing that can be described as an inherent management right to subject an employee to what would otherwise be a trespass or an assault upon the person. The right of an employer to require an employee to submit to an examination by a doctor of the employer’s choice was reviewed by the Court in Re Thompson and Town of Oakville (1963), 1963 CanLII 254 (ON HCJ), 41 D.L.R. (2d) 294 (Ont. High Ct.). In that case two constables were effectively discharged for refusing to submit to a medical examination when ordered to do so by their chief constable. The orders of the municipal council discharging the constables were quashed on certiorari on the basis that there was no lawful authority in the employer to impose the requirement of a medical examination upon them. In coming to that conclusion McRuer, C.J.H.C., stated [at p. 302]:

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

Normally, where an employment relationship is governed by a collective agreement, the authority of an employer to require an employee to submit to a medical examination must, apart from statutory authority, be either expressed or implied in the collective agreement. In the instant case no statutory authority to order a medical examination was claimed by the company. It then becomes necessary to determine whether the authority asserted can be found expressed in the collective agreement or be implied either from the agreement or from some established past practice of the company.

Both parties referred to this decision in their final submissions and accepted it as an accurate summary of the applicable legal principles.

It was common ground between the parties in the case before me that there is no relevant legislation or statutory authority giving the employer the right to require employees to submit to a medical examination by a physician chosen by the employer. It was also not disputed that the collective agreement does not expressly provide that the employer has the right to select the doctor to be seen by the employee. For example, article B6.08 does not say that “the employer may require that the employee submit to a medical examination by a doctor of the employer’s choosing at the expense of the employer...”. Employer counsel conceded that no blanket right exists whereby an employer may insist that an employee go for a medical examination with a physician not of his or her choice and that the right of an employer to compel an employee do so must stem from statutory or contractual authority. However, counsel for the employer urged me to conclude that in the case before me its authority to unilaterally determine the physician that employees will be referred to may be implied from the collective agreement and is supported by past practice which has been in existence for many years.

Both parties acknowledged that the relevant provision in the collective agreement, article B6.08, provides for two types of medical information or intervention. The first part of the article deals with the provision of a medical certificate in certain specified situations and the latter part of the article calls for an employee to attend at a medical examination, once again in specific situations. There is no dispute that article B6.08 sets out a relatively comprehensive scheme providing for the obtainment by the employer of medical information concerning employees. There was no dispute that a medical certificate is different from a medical examination and that each is requested and obtained in different circumstances and perhaps for different purposes.

Employer counsel argued that the collective agreement in article B6.08 creates a type of hierarchy or pyramiding of medical information/assessment. Counsel pointed out that a medical examination could be utilized if the employer was not satisfied with the medical certificate provided by the employee. In a sense, the request for a medical examination could be used as a second or additional step after the provision of a medical certificate. The right of the employer to request that an employee submit to a medical examination is a specific right given to the employer pursuant to article B6.08 to send an individual to a doctor of the employer’s choosing at the employer’s expense. Counsel for the employer suggested that the article only makes sense as a second step in the process if the employer has the right to select the doctor that the employee is to see. The past practice establishes that employees have always attended at a physician of the employer’s choice and have not until recently questioned the employer’s right to choose the doctor.

The parties agree that the employer pursuant to article B6.08 of the collective agreement has the right to request that an employee submit to a medical examination by a qualified medical practitioner. For many years employees went to a doctor chosen by the employer without objection. In fact, there are still employees who are going for medical examinations by a doctor chosen by the employer without complaint. But what happens if an employee refuses to attend at the premises of a physician chosen by the employer? As is noted in the agreed facts, in certain circumstances this refusal is accommodated by the employer and the employee is referred to an alternative physician i.e. the parties have in the past agreed to refer female employees to a female doctor.

However, although the employer has demonstrated a willingness to compromise in certain situations, it nevertheless maintains that pursuant to the collective agreement it has the right to insist that an employee attend at a doctor of its choice. In other words, it is suggested that it is the right of the employer to decide when or if an employee shall be referred to an alternative physician, keeping in mind that this alternative doctor is still one of the employer’s choosing.

The employer in this case is asking me to imply, in light of the language in the collective agreement and the past practice between the parties, that the employer has an unfettered or general right to require employees to attend for a medical examination by a doctor of the employer’s choosing when the employee has objected to doing so. In certain circumstances, the employer is willing to take the views of employees into consideration and send the individual to an alternative mutually acceptable physician. But it is the employer’s position that it and it alone determines whether particular or individual circumstances warrant any sort of compromise. In the view of the employer, neither the employee nor the union is entitled to any input into the decision as to which physician is to be seen by the employee for a medical examination.

I cannot agree with this proposition for several reasons. Although the collective agreement provides for a medical examination, clearly it does not expressly say that this examination is to be performed by a doctor of the employer’s choice. In the circumstances of this case, it is also not appropriate to infer that the employer has this right.

To a large extent, I agree with the employer’s analysis of article B6.08. I agree that medical certificates and medical examinations are generally requested and obtained in different circumstances and utilized for different purposes. I agree that a situation could arise whereby the employer is not satisfied with a medical certificate provided by an employee and for a variety of entirely legitimate reasons requests that the employee go for a medical examination by a different doctor.

The employer then went on to suggest that its right to send an employee for this medical examination or assessment makes sense only if the employer has the unilateral right to choose the doctor and that this is supported by the past practice. I disagree with this assertion. The collective agreement is silent on the issue of choice of physician. In my view, it is equally consistent to interpret the collective agreement language as standing for the proposition that although the employer has the right to insist that an employee go for a medical examination, if the employee objects to the employer’s choice of doctor the employer cannot force its choice upon the employee. There is no wording in the collective agreement which establishes a right on the part of the employer to insist upon its choice of doctor in the face of an employee objection. In addition, a close examination of the past practice establishes that it also cannot be used to justify the position being taken by the employer. The specific issue as to whether or not the employer can force an employee to go for a medical examination by a doctor that the employee does not want to see has not historically arisen. In the past, employees did not object to the employer’s choice of doctor. The issue only crystallises when the first employee objects to a medical examination by the doctor chosen by the employer and the employer is not willing to consider alternative physicians. That event happened recently. Accordingly, I do not accept the interpretation of the collective agreement put forward by the employer.

A medical examination is by its very nature extremely intrusive and personal. The jurisprudence makes it clear that absent a contractual or statutory right an employer cannot require an employee to submit to an examination by a medical practitioner chosen by the employer if the employee does not consent to do so. In the absence of contractual or statutory authority, it would constitute an assault. As was noted in the Monarch Fine Foods case, it is well established that persons by virtue of their status as employees do not lose their right to privacy and integrity of the person. A medical examination can by its very nature be invasive and involve physical contact. As the patient may be required to share intimate details of his or her medical history or personal life, the patient must have trust and confidence in the doctor conducting the examination. The relationship between the doctor and patient must be one based on trust and confidence. An employee’s right to privacy ought not to be abrogated in the absence of clear employer authority flowing from a legislative requirement or contractual language. That authority does not exist in this case.

Therefore, the issue before me comes down to the following question: Does the employer have the implied right under the collective agreement as a general principle to require an employee to submit to a medical examination by a doctor of the employer’s choosing in the face of an employee objection to doing so? For all of the reasons articulated above, the answer to that question is no.

However, before leaving this matter, I want to stress that although the employer does not have a general or absolute right to insist that an employee submit to a medical examination by a physician of the employer’s choice, this is not to say that a situation could never arise in which it would be appropriate for the employer to require an employee to go to a doctor of the employer’s choice. It is possible that in certain circumstances it would be appropriate for the employer to insist that an employee see a particular doctor but those circumstances would have to be unusual. Union counsel conceded this and acknowledged that although the employer does not have a general right in every case to insist that an employee see a physician of the employer’s choosing, it is possible that circumstances could arise when it is appropriate. He also agreed that should an employee refuse to see any physician when requested by the employer, it might be appropriate for consequences to flow to that individual.

In addition, this decision should also not be taken as standing for the proposition that the employee has the right to choose the physician he or she shall see pursuant to article B6.08 of the collective agreement. At this point, the only finding that I have made is that the employer pursuant to article B6.08 of the collective agreement does not have the unilateral right in every case to choose the physician to be seen by an employee and to compel an employee’s attendance at this physician.

The employer has the right and the responsibility to ensure that employees are fit and healthy and capable of performing work in a safe fashion. Employers are also entitled to information which would allow for the assessment of the legitimacy of an employee’s absence from work. Those principles are not disputed by the union in this case. What is at issue between the parties is how and from whom is the employer entitled to obtain the required medical information.

Accordingly, for all of the above reasons, I declare that pursuant to the collective agreement in force between the parties the employer does not have the right as a general principle to require an employee to submit to a medical examination by a doctor of the employer’s choosing in the face of an employee objection to doing so.

In the event that the parties have any difficulties with regard to the interpretation or implementation of this decision, I shall remain seized.

Dated in Toronto this 22nd day of May, 2003