[1988] OLRB Rep. January 74
2523-87-G The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, on behalf of itself and its Local Union 463, Applicant v. The Electrical Power Systems Construction Association (EPSCA) and Ontario Hydro, Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members Janet Trim and H. Kobryn.
APPEARANCES: A. J. Ahee and C. Burrows for the applicant; Robert J. Atkinson and John Tomlinson for the respondent.
DECISION OF KEN PETRYSHEN AND BOARD MEMBER JANET TRIM; January 26, 1988
This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.
The applicants and the respondents are bound by the terms of a collective agreement which has a term of operation from May 1, 1986 to April 30, 1988. The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463 ("Local Union 463") grieves that Ontario Hydro ("Hydro") has contravened the terms of the collective agreement in its treatment of Alan Kimoto. On July 6, 1987 Kimoto was referred to Hydro's Darlington location. After spending some time filling in employment forms, Kimoto was interviewed by two nurses employed on the Darlington site by Hydro in its First Aid office. Since Kimoto advised them that he had a problem with his shoulder, a determination was made by the nurses that he should not start working for Hydro until he was able to satisfy Hydro of his fitness to perform the duties required of his job. The nurses gave Kimoto a form and asked him to have the form filled out by a physician and returned to them within 48 hours. Kimoto was unable to return with the completed form until July 9, 1987. The Board is satisfied that the delay in returning with the physician's statement was not attributable to any lack of due diligence on Kimoto's part. The nurses reviewed the form and determined that Kimoto was able to perform the duties required of a plumber, and he was allowed to start work commencing in the early hours of July 10, 1987.
The union did not take the position that Hydro had no right to question the medical fitness of employees who are sent from the hiring hall, nor did counsel for the union argue that the nurses acted unreasonably in the circumstances when it was determined that it was necessary for Kimoto to secure some medical evidence of his physical condition. However, counsel for the union argued that since Kimoto was ultimately able to provide Hydro with evidence that he was physically fit to perform the job duties required of him, Hydro was required to pay Kimoto from that point in time when he initially would have been scheduled to work for Hydro. Since Kimoto spent some time on the employer's premises during the pre-employment assessment, the parties agreed, without prejudice, that the grievance should be allowed to the extent of awarding Kimoto four hours' pay at his regular rate. After recessing to consider the evidence and the parties' submissions, the Board orally ruled at the hearing on January 6, 1988, H. Kobryn dissenting, that the grievance should be dismissed in all other respects.
An employer has both the right and the obligation to satisfy itself as to the medical fitness of employees to carry out the work that they will be required to perform. If reasonable grounds exist, an employer is entitled to request an employee to provide a medical opinion in order to remove any doubts with respect to an employee's fitness to perform work. Among other things, the risk of injury to the employee concerned and other employees necessitates such an approach. Once the employee provides the employer with information from which the employer should be in a position to determine that the employee is medically fit to work, the employee should then be allowed to resume work. Cases of this sort usually focus on the issue of whether the employer had reasonable grounds to make the determination that it did. If the reasonable grounds are found not to have existed, a grievance of this sort will succeed. On the other hand, if it is found that the employer has reasonable grounds to take the position that it did, the grievance will be dismissed. If reasonable grounds exist to raise a doubt about an employee's medical fitness, the employer is entitled to deny the employee the right to start working until the employee can provide evidence which should satisfy an employer concerning his or her fitness. During this interim period of time, there is no obligation on an employer to compensate the employee whose physical fitness is in doubt. If one were to accept the union's argument, one in effect would be penalizing an employer for acting reasonably.
The union conceded that Hydro acted reasonably when the nurses concluded that Kimoto required some medical evidence to establish his fitness. We are satisfied that Hydro did not act unreasonably in the way in which it required Kimoto to provide evidence of his medical fitness. Kimoto was asked to have a physician of his choice fill out a standard form and to return the completed form within 48 hours. Kimoto did not object to this procedure at the time. Although the procedure utilized by Hydro in situations where an employee's medical fitness is in issue has changed since the Kimoto incident, we cannot conclude that the procedures used in Kimoto's case were unreasonable. We are satisfied that Hydro did not contravene the collective agreement when it declined to compensate Kimoto for July 7, 8 and 9, 1987.
The Board directs Hydro to pay to Kimoto forthwith the amount of four hours' pay at his regular rate in accordance with the parties' agreement. As the Board noted at the hearing, the grievance in all other respects is dismissed.
DECISION OF BOARD MEMBER H. KOBRYN;
My dissent from the majority decision in this case is solely based on principle, for reasons listed below.
Employers have consistently made accusations and statements that injured workers would much rather remain on Workers Compensation Benefits than return to work.
Wherein, in this case, you have management's cumbersome guidelines which prevented a willing and candid injured worker from immediately returning to work without further loss of earnings, in order to secure a written medical confirmation that he is physically fit to perform heavy duties. In this instant, it took the worker three days to get this medical form signed, with the ensuing loss of earnings.
The one positive effect of this grievance was that management subsequently amended its cumbersome guidelines wherein they allowed the First Aid nursing staff to telephone the doctor in question to get oral confirmation that the worker is physically fit to return to work. They also amended the medical form to read "fit for regular duties" rather than the wording in the existing form at the time of this grievance reading "fit for heavy duties", which the worker is asked to get signed by his doctor to confirm the oral confirmation. This is now done without the worker losing any work time. Again, a very positive step.
On the basis of principle, I would have allowed this grievance