P/0061/93, P/0066/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Dr. B.B. Bardhan

Grievor

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

John A. Willes

Vice-Chair

FOR THE GRIEVOR

John Brewin Labour Relations Consultant

FOR THE EMPLOYER

Stephen Patterson Counsel, Legal Services Branch Management Board Secretariat

HEARING

October 21, 1999 April 5, 6, 2000 May 1, 2000.

Decision

The Grievor, Dr. Bibhuti Bardhan, at the time of filing his grievances, was employed as a Staff Psychiatrist at the Whitby Mental Health Centre (formerly the Whitby Psychiatric Hospital). Prior to the filing of his grievances, the Grievor had occupied the position of Unit Director of the Neuro Psychiatric Unit. On November 1, 1993, he was assigned to the position of Staff Psychiatrist, a lower rated position, pursuant to Section 11(3) of Regulation 977 for alleged reasons of health, but retained his PMD23 classification and salary level.

On November 16, 1993, Dr. Bardhan filed the following grievance, objecting to the Employer’s actions:

16 November 1993.

Dr. P. Prendergast, Psychiatrist-in-Chief, Whitby Psychiatric Hospital, Whitby, Ontario.

Dear Dr. Prendergast:

Re: MY GRIEVANCE.

Pursuant to Section 44(2) of the Public Service Act (under “working conditions and Terms of Employment”), I hereby grieve the action you have taken against me in your letter dated November 1, 1993, received by me on November 5, 1993, (copy attached, Appendix A).

I believe that your order for me to work in a staff psychiatrist role, even for six months in the best possible eventualities, violates terms of my employment and affects my working conditions adversely for various reasons including the following: -

(1) The reasons you gave for your action are not tenable, namely,

(a) my “absence”: This is legitimate, proper in procedure, and within the terms of my employment; and

(b) my assignment as “sole psychiatrist and Unit Director on NPU”: according to the terms of my employment, this should not make me vulnerable to loss of my right to work unconditionally as PMD23 through such arbitrary action as, in my opinion, yours in question is, especially when and while all my employment, and when and while the state of my health has not affected my ability to work as PMD23 when I am not so absent.

(2) Under the circumstances as contained in (1) above, and in any circumstance, for that matter, Section 11(3) of the Public Service Act does not apply to my present case, especially given the fact that the state of my health has not affected my ability to work as PMD23, at least when I am not absent and and when all my absences have been according to the terms of my employment.

In support of my case, I would like to particularly point out the following here: -

(1) In support of your said action against me, you have referred to the report of Dr. W. L. Heslop, the specialist treating me at present (copy of this report attached, Appendix B).

Unfortunately, in my opinion, you have misrepresented Dr. Heslop’s expert opinion. You have selectively given the most negative and pessimistic interpretation of his overall very kind, compassionate, positive and optimistic view. For example, you have completely missed or ignored or have chosen to omit Dr. Heslop’s comments (after he characterised my present condition of illness as “moderately active” namely, most patients with moderate disease are able to function fairly normally in the workplace”, and “when he is in remission he will be able to work normally”.

Dr. Heslop has also stated, “I would expect that he will have flares and remissions, and that when he is flaring he may require time off work to allow him to get better”. The terms of my employment allow me to have up to 6 months/130 days per year “time off work” for such purposes without attaching any condition such as your said action in question does.

Your said action exposes me, unfairly and unjustly, as I have pointed out above, to the possibility of my losing the right to automatically continue to work as PMD23, contrary to the terms of my employment. In other words, as I see it, you have arbitrarily decided to deprive me of my rights.

(2) Your said action not only violates my rights under the terms of my employment and creates unjust and unfair working conditions for me, it also deprives the Government of Ontario (my employers) of available resources, e.g. by underutilization or non-utilisation of my services as PMD23 and, also, as an expert in neuro-psychiatric disorders (by your ordering me to work in the role of PMD22 and, for that matter, in the community Mental Health areas). Moreover, your said action also deprives the Neuro-Psychiatry Unit (of which I have been so far the Director since its inception in 1985, and admirably so according to my supervisors) of my services, whatever is available and as is available under the terms of my employment, especially when it has not been, nor is likely to be in near future, possible for you to find a proper replacement or even coverage for my absence in Neuro-Psychiatry Unit.

And, from a somewhat personal point of view, if I may add here, your said action produces unnecessary and undue stress on me (e. g. by depriving me of job- satisfaction to its fullest and thereby affecting my productivity to a certain degree as may be normal under such circumstances, wastes my talents and my knowledge and expertise that I have accumulated over the years with my own initiative and with the advice and incentives from my employers.

The whole thing is especially regrettable, in my opinion, during the current times of economic hardships and constraints, and with limited available resources, especially in the area of my speciality, namely, neuro-psychiatry.

Remedy Sought

Under the circumstances, I request that your decision and order in question be rescinded and reversed forthwith and I be allowed to continue to work unconditionally as PMD23, preferably in the Neuro-Psychiatry Unit of Whitby Psychiatric Hospital.

Respectfully submitted.

Yours sincerely,

B. B. Bardhan.

On December 31, 1993, the Grievor filed a second grievance which reads as follows:

To:

Dr. P. Prendergast, Psychiatrist-in-Chief.

From:

Dr. B.B.Bardhan, CMHSU.

c.c. Dr. M. Rapp, Acting Psychiatrist-in-Chief.

I believe I have been subjected to harassments by my employer/Hospital Administration. I wish to grieve this.

Accordingly, I request a meeting with you as provided under Section 44(1) of the Public Service Act.

Respectfully submitted,

B.B. Bardhan. CMHSU

On January 11, 1994, the Grievor filed additional grievance allegations pertaining to his December 31, 1993, complaint.

11 January 1994

Dear Dr. Prendergast,

Re: My Grievance on Harassment, etc.

This is further to my memoranda dated 31 December 1993, and 4 January 1994 to you. This also refers to your letter 4 January 1994 to me (copies attached).

Pursuant to Section 44(2) of the Public Service Act, I hereby grieve that serious actions of yours and others in the hospital over a period of time have been causing harassments to me and thereby creating an unfair and unjust working condition for me and in addition causing serious other harms and damages to me.

I mention some of the more recent instances of such harassments as follows:

(1) Your demand on 22 December 1993 that I produce my doctor’s certificate of 21 December 1993 to you immediately that day was unduly and unwarrantedly hasteful and caused undue and unnecessary problem to me.

(2) You reassigned my duties on 22 December 1993 knowing well that I would be doing my duties as of 24 December 1993.

(3) You reassigned my duties on 22 December 1993 without exhausting all possible, reasonable and necessary measures to ascertain my then condition, if you had any doubt.

(4) You reassigned my duties on 22 December 1993 too far in advance for such drastic measure to be taken.

(5) Your reassignment of my duties on 22 December 1993 was too drastic a measure and too unusual an action for a person in your position.

(6) Even if you really did need to reassign my duties in case I, in fact, did need sick leave on 24 December 1993 or at any time, it should have been within your expectation and you should have been able to deal with it smoothly without causing any agony or damage to me.

(7) You had no good reason to foresee on 22 December 1993 that I would be “unavailable for work until January 4th, 1994.”

(8) Your decision on 22 December 1993 to review my situation on 4 January 1994 contradicts and/or runs counter and superfluous to the scheduled review in my letter dated 1 November 1993 to me.

(9) You had no good reason on 24 December 1993 and subsequent and no authority ever to impose any sick leave on me.

(10) On 24 December 1993 you arbitrarily and without good reason ordered me “to remain on sick leave” in spite of knowing, and even after being reminded by me and acknowledging to me that you knew, that this order would deprive me of my benefits and virtually my livelihood; and you took such measure without duly safeguarding my interest and giving me any necessary reassurance as my supervisor.

(11) Suspension by your office of my privileges to practice as a physician in the hospital on 29th, 30th and 31st December 1993 was without good reason and proper authority even as an emergency.

(12) Suspension of my privileges as stated in # (11) above exposed my patients to unnecessary and undue danger.

(13) Suspension of my privileges as stated in # (11) above deprived the hospital of my services, especially in time of acute need.

(14) In spite of my submitting on or about 7 December 1993 a proper request for two Social Contract days on 29th and 30th December 1993, you did not approve it in good time and, even, ever.

(15) I was not allowed to use the hospital Fax Machine, Mail Room Postal Services, etc. at all, even if I reimbursed.

(16) Incoming telephone calls to me were interrupted or denied to me.

(17) The Clinical Records Department denied me access to their services quoting “being so ordered”.

(18) The hospital Administration told individual services/department to deny me of their services, even if I reimbursed, without telling me either alone or in advance - as I learnt later.

(19) In view of your letter of 1 November 1993 to me, your demand on 24 December 1993 for any medical evaluation at that time was too early and obtrusive.

(20) The agreement of the Deputy Minister to the request for my medical examination under Section 63-3 of The Public Service Act was obtained through misrepresentation of my case with wrong, insufficient, incomplete and/or misleading statement of facts.

(21) Your refusal, in your letter of 4 January 1994 to me, to meet with me for the purpose: Section 44(1) of the Public Service Act denies me of my right to seek justice in a due, orderly and timely manner. This also places me in the so-called and proverbial “Catch 22” situation where I cannot win in any event.

Respectfully submitted,

B.B. Bardhan.

The Employer rejected the grievances, and when the parties were unable to resolve the dispute, the grievances came on for hearing before the Public Service Grievance Board. At the outset of the hearing, the Employer raised a number of preliminary objections to the jurisdiction of the Public Service Grievance Board to hear certain aspects of the Grievor’s complaints.

Three objections were raised by Counsel for the Employer:

(1) The issues raised in the grievance dated November 16, 1993, were moot, and therefore this Board should not hear the grievance.

(2) The subject matter of the grievances in so far as they relate to allegations of the Employer’s actions causing injury to the Grievor’s health, should be addressed under the Workers’ Compensation Act, as this Board has no jurisdiction to deal with matters that fall under that Act.

(3) The Public Service Grievance Board has no authority to award punitive damages as a remedy in grievance matters.

This Board addressed the preliminary objections of Counsel for the Employer in an Interim Decision dated November 10, 1999. The Decision provided as follows:

“On the issue of punitive damages, Counsel for the Grievor submitted that this Board has the authority to award both aggravated and punitive damages in wrongful dismissal instances, based upon the Supreme Court of Canada decision in the Vorvis case (supra). The Court in that case noted that the award of punitive damages should clearly be limited to those rare cases where an actionable wrong had been committed against the employee, and as the Court noted on p. 208, reserved for those cases where the conduct “is of such a nature as to be deserving of punishment because of its harsh, vindictive and malicious nature”. Unlike the courts, however, labour relations tribunals and boards such as the Public Service Grievance Board tend to view their role as regulatory in the sense that their remedial awards should be compensatory rather than punitive, and have been reluctant to consider punitive damages as a remedy in matters that come before them. In the Morrison case, supra, the Public Service Grievance Board rejected punitive damages as a remedy, and at p. 7 stated:

“For this Board, an award that has a punitive character should have no place at the present time in our remedial quiver. It would be contrary to the thrust of remedial principles that both the P.S.G.B. and labour tribunals elsewhere in Ontario and Canada have regularly followed. We accept the oft-cited rationale that adopting punitive damages would be seriously detrimental to the well-being of the ongoing relationship between the parties where it is governed by a statutory framework”.

This Board can see no reason why it should stray from this policy, and would not be prepared to adopt punitive damages as a remedy in the case now before this Board.

On the allegation of Employer responsibility for certain health problems of the Grievor, Counsel for the Employer submitted that this aspect of the Grievor’s complaint was a matter that should be placed before the Workers’ Compensation Board, and argued that this Board has no jurisdiction to award damages for work-related injuries suffered by an employee.

The Workers’ Compensation Act embodies a compensation system whereby an employee surrenders his or her right to take legal action against the employer for injuries suffered in the course of employment, and in return acquires the right to full compensation for such injuries where the employer is found to be at fault. The nature of the injury that an employee may suffer is broadly defined in s.1(1) of the Act.

s.1(1) In this Act,

“accident” includes,

(a) a wilful and intentional act, not being the act of the worker,

(b) a chance event occasioned by a physical or natural cause, and,

(c) disablement arising out of and in the course of employment.

The Workers’ Compensation Act also addresses the effect of the legislation and the rights of the parties under the Act. S.16 of the Act provides:

“The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his or her family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to the worker or any occupational disease contracted by the worker on or after the 1st day of January 1915, while in the employment of such employer, and no action lies in respect thereof”.

The Grievor’s complaint with respect to his health problems is essentially that the Employer’s treatment of the Grievor was such that it caused his heart condition, and he seeks damages for the Employer’s actions. The Public Service Grievance Board has authority to address working conditions or terms of employment issues under s.34 of Regulation 977, but the authority of the Board is for the most part remedial in nature, largely to resolve or correct working condition problems that arise between employees and their employer. It is not intended to deal with matters that have been specially addressed in separate legislation, particularly where appropriate administrative frameworks have been established to deal with such matters.

In the case of injury to employees, the Workers’ Compensation Act represents specific legislation to deal with workplace injury-related claims. S.16 of the Act provides an employee with the right to seek compensation under the Act in lieu of his or her other rights, and provides that no right of action lies against the employer. In a sense, the administrative process under the Act replaces most rights that an employee may have to damages for employment-related injuries. Nothing in the Public Service Act or Regulation 977 would appear to give this Board the right to encroach on the exclusive jurisdiction of the Workers’ Compensation Act to deal with a health related injury to an employee, and this Board is reluctant to deal with this aspect of the complaint. The Grievor’s complaint in so far as it relates to damages or compensation for the alleged injury to his health is therefore a matter to be addressed by the Workers’ Compensation Board rather than this tribunal.

The third objection to this Board’s jurisdiction is related to whether the November 16th grievance concerns an issue that is moot, and therefore should not be dealt with by this Board. Counsel for the Employer submitted that the temporary assignment of the Grievor to the Staff Psychiatrist position for reasons of the Grievor’s health under s.11(3) of Regulation 977 did not result in a change of the Grievor’s classification as a PMD23 nor did it change his salary, and consequently, he suffered no loss as a result of the Employer’s actions. Counsel for the Employer argued that this Board should exercise its discretion to not hear the grievance.

Counsel for the Grievor conceded that the Grievor suffered no loss of income as result of the assignment to the position of Staff Psychiatrist, but argued that the issue was the way in which the Employer made the November 1st change. He stated that the Employer did not approach the issue of the Grievor’s job function in a proper way, given his terms of employment, and it is for this reason that the Grievor was claiming aggravated and punitive damages. Counsel for the Grievor also argued that the issue was not moot because there remains the probability of the Grievor’s return to work, and as long as it remains so, the issues raised stand the prospect of coming back into play.

On the surface, at least, the Grievor would appear to have suffered no monetary loss as a result of the Employer’s decision to temporarily move the Grievor to the Staff Psychiatrist position for health reasons under s.11(3) of Regulation 977, and on this basis, the matter would appear to be moot. However, given the allegations of Employer impropriety concerning the decision, and the possibility that the Grievor may return to work in the future, these events raise the question of whether the issue is moot or not. Since the two grievances before the Board are to some extent inter-related, this Board will not exercise its discretion to decline jurisdiction to hear the grievance dated November 16th, 1993.”

The hearing continued on April 5, 2000, to hear evidence and argument on the remaining issues raised in the grievances. In essence, the key issue is: did the Employer breach the employment contract of the Grievor by its actions? A secondary matter that would flow from an affirmative finding on the issue would be the question of damages that might arise from a breach of the employment relationship.

Counsel for the Grievor submitted that the Employer had acted improperly in its dealings with the Grievor, and in support of his position, called the Grievor to testify.

The Grievor testified that on November 1, 1993, he was relieved of his responsibilities as a Unit Director, and assigned to a position of Staff Psychiatrist, a lower level position in the institution, and the transfer caused him considerable embarrassment. He also testified as to the events that took place after his transfer, including the events set out in his grievances. In particular his evidence was that he returned to work on November 30th, after a lengthy bout with his arthritis, and worked until December 20th. On December 21st, he felt ill and went to see his physician. He called in sick and informed the hospital that he would be off work pending a report on blood tests. He indicated that his physician had told him that he would be able to return to work on December 24th, 1993.

The Grievor stated that Dr. Prendergast wrote him a letter dated December 22, 1993, advising him to remain off work until an independent medical assessment of his health was made, and that he should return to work on January 4, 1994. His evidence was that he was given a note from his physician on December 24, 1993, which stated that he was fit to work on that date, and he returned to work. On December 29, 1993, he was advised that he was denied access to the Fax machine, the mail room, and no telephone calls were forwarded to him. He testified that he was examined by an independent medical practitioner as directed, but did not return to work thereafter, and eventually went on long term disability.

Counsel for the Grievor submitted that the Employer was in breach of its employment obligations to the Grievor, and in support of his evidence and argument, cited: Re Tele-Direct (Publications) Inc. and Office & Professional Employees International Union, Local 131 (1989) 1989 CanLII 9323 (ON LA), 8 L.A.C. (4th) 159; Re Nelsons Laundries Ltd. and Retail Wholesale Union, Local 580 (1997) 1997 CanLII 25084 (BC LA), 64 L.A.C. (4th) 120.

Counsel for the Employer called Dr. Prendergast, the Psychiatrist-in-Chief and Clinical Director as a witness. Dr. Prendergast testified as to his concern over the time lost by the Grievor due to the Grievor’s arthritic condition, and his concern about the functioning of the Neuro Psychiatric Unit under the Grievor’s direction. In particular, he was concerned about the Grievor’s deteriorating health and its effect on the Grievor’s ability to carry out the administrative functions as a Unit Director. He stated that he discussed the Grievor’s health problem and absences from work in February of 1993, and again in July 1993. He eventually decided that it was necessary to re-assign the Grievor on November 1, 1993, as a result of the Grievor’s continuous absence for the period July 19, 1993 to October 29, 1993 and the uncertainty of the Grievor to maintain regular attendance at work in future. His evidence was that the Grievor went off work the next day, November 2, 1993, and remained on sick leave until his return on November 30, 1993.

Dr. Prendergast testified that the Grievor called in sick on December 21, 1993, and at that point he decided to obtain an independent medical assessment of the Grievor’s illness as well as his ability to carry out his duties in future. He arranged for the medical assessment, and on the basis of the ambiguity of the doctor’s note as to the ability of the Grievor to return to work, advised the Grievor to remain off work until the assessment of his health was made.

Dr. Prendergast denied placing any restrictions on the Grievor’s telephone or access to Fax or office equipment. His evidence was that the restrictions placed on the Grievor’s use of Fax machines and equipment were made by the Assistant Administrator when staff complained that the Grievor was creating a disturbance in the office. His understanding was that the Assistant Administrator did so because the Grievor was not engaged in Corporate business.

Karen Clark, the Attendance Management Co-Ordinator, testified that she had arranged for a medical assessment of the Grievor as a result of his illness on December 21 and December 22, 1993. Her evidence was that she had spoken to the Grievor on December 23, 1993, and attempted to arrange a medical appointment for the Grievor as soon as possible, but because most specialists’ offices were closed between Christmas and New Year’s Day, the earliest appointment available was January 5, 1994. Her testimony was that she had to appeal to the doctor’s office staff with her concerns about the Grievor’s health in order to get the early appointment.

Counsel for the Employer submitted that the Employer had not breached its employment obligations to the Grievor, and in support of the evidence and argument cited: Re Thompson General Hospital and Thompson Nurses M.O.N.A. Local 6 (1991) 1991 CanLII 13395 (MB LA), 20 L.A.C. (4th) 129.

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This Board has carefully considered the evidence and arguments concerning the grievances filed, and in particular the Grievor’s evidence as to his illness, which in the period prior to the filing of his grievances was seriously debilitating. Without question the Grievor’s arthritic condition was such that the Grievor was unable to work for extended periods of time, but at times, when the condition was in remission, he was able to perform his duties. Both parties agree that the Grievor was able to satisfactorily perform his professional duties at those times when he was at the workplace. However, from the evidence, the Grievor’s condition deteriorated significantly during the latter part of 1992, and in 1993. The Grievor was off work for 55 working days in 1992 (most during the latter half of the year) and 126.64 working days in 1993. According to the evidence, the Grievor’s condition was such that he was off work entirely from July 19, 1993 to October 29, 1993. He worked on November 1, 1993, and was off work again for the balance of the month. He returned to work on November 30, 1993 and worked until December 20th. The next day, he reported in sick, albeit with an upper respiratory infection rather than as a result of his arthritis.

The Grievor’s absences from work due to his illness first caused the Clinical Director to express his concern to the Grievor about his medical condition and attendance at work in February 1993, and again in July of 1993. On the latter occasion, the Clinical Director also expressed his concern about the adverse effect that the Grievor’s absences were having on the operation of the Neuro Psychiatric Unit, and the difficulties of staff managing the unit without the regular presence of its Director. The Grievor apparently left on sick leave a few days later, and remained off work until the end of October, 1993. On November 1, 1993, after a brief discussion with the Grievor about his condition, the Clinical Director assigned the Grievor to a staff psychiatrist position for a six month period for health reasons. He did so pursuant to s.11(3) of Regulation 977 which reads as follows:

s.11(3) A full-time civil servant who, for reasons of health, is assigned to a position in a classification having a lower maximum salary shall not receive any salary progression or salary decrease for a period of six months after his or her assignment and, if at the end of that period the civil servant is unable to accept employment in his of her former classification, the civil servant shall be assigned to a classification consistent with his or her condition.

The Grievor continued to receive his salary and classification as a PMD23. The evidence of the Clinical Director was that he found it necessary to assign the Grievor to a staff position in an effort to free the Grievor from his day-to-day administrative responsibilities as a Unit Director and to have a time period in which to assess any improvement in the Grievor’s health condition. Given the evidence, the actions of the Clinical Director were reasonable under the circumstances, and the assignment of the Grievor to a Staff Psychiatrist position under s.11(3) of Regulation 977 did not violate the Grievor’s employment rights.

The Grievor also set out a lengthy list of events in his grievances which he characterized as harassment by his Employer. These events pertain to the period following the Grievor’s absence on sick leave on December 21, 1993. From the evidence, the Grievor reported in sick on December 21, 1993, and indicated that he would be returning to work on December 24, 1993, provided that certain blood tests were satisfactory. To allay the Clinical Director’s concerns, the Grievor obtained a medical certificate that indicated that he ‘may’ be fit to return to work on December 24, 1993. The inconclusiveness of the medical certificate, and the Grievor’s previous difficulties with his illness led the Clinical Director to believe that he should re-organize staff coverage for the holiday period December 24, 1993 to January 1, 1994, and made the necessary staffing changes to permit the Grievor to remain on sick leave until such time as a full medical assessment of the Grievor could be made.

From the evidence, it was necessary to have some degree of certainty as to staff coverage for the holiday season, and given the evidence, the actions of the Clinical Director were not unreasonable in making the necessary changes to the work schedule and arranging for a medical assessment of the Grievor’s condition.

According to the evidence of the Grievor, he did attend at the workplace during the period between December 24, 1993 and December 31, 1993. From his evidence, he was attempting to reach his association representatives concerning the events that had taken place, and was apparently engaged in activities not related to corporate business. The unrefuted evidence of the Employer was that he was eventually denied telephone, Fax and other services because he was causing a disturbance and was engaged in non-corporate business. Given the absence of evidence to the contrary, and the admission of the Grievor that he was engaged in personal business, this Board can only assume that the order of the Assistant Administrator was warranted under the circumstances.

From the Grievor’s perspective, the actions of the Employer in this case may appear to be unsympathetic to him, given his health condition. However, the needs of the institution require a level of certainty of attendance at the workplace with respect to its professional staff in order that patient care may be maintained. In this case the Grievor was unable to deliver his services with any degree of certainty, and the Employer was obliged to ensure that the services were provided by others. This Board accordingly finds that the actions of the Employer in taking the steps that it did were justified, and did not constitute a breach of the Grievor’s employment.

On the basis of the evidence before this Board, and for the reasons given, the grievances are hereby dismissed.

DATED AT TORONTO THIS 31st DAY OF MAY 2000.