FPSLREB Decisions

Grievances referred to adjudication

[1]   Dr. Chander P. Grover is the Director of the Radiation Standards and Optics Section of the Institute of National Measurements Standards (INMS) at the National Research Council of Canada (NRC). He filed five grievances over a period of some six months, which were scheduled for adjudication on April 12, 2005. Inter-party discussions resulted in an agreement to proceed with two of the original grievances. Two grievances would be withdrawn by the regular procedural means (PSSRB File Nos. 166-9-34834 and 166-9-34835), and the last one (PSSRB File No. 166-9-34240) would be postponed and rescheduled at a later date. Of the two grievances subject to these proceedings, the first concerns disciplinary cessation of salary, dated August 5, 2004 (PSSRB File No. 166-09-34836), and the second, a grievance regarding the grievor’s designation as being on “leave without pay for other reasons”, dated September 10, 2004 (PSSRB File No. 166-9-34837).

[2]   Dr. Grover is grieving the actions of the NRC, which he considers to be disciplinary. Its decision to designate him as being in a “no work, no pay” situation, effective July 21, 2004, and to record this as being “leave without pay for other reasons”, is as a result of his failure to undergo a medical assessment by a physician of the NRC’s own choosing. The grievor asserted that the employer considered this failure to attend the medical examination to be insubordination.

[3]   In his opinion, at issue in these two grievances is the question of whether the employer had reasonable grounds to request that the grievor attend a medical assessment by a physician other than his own personal physician and to further instruct him to refrain from presenting himself to work until he complied with the request, or whether these were unwarranted disciplinary measures imposed on the grievor.

[4]   The grievor argues that he had the right to refuse to be subjected to such an invasion of his privacy without a reasonable justification. Furthermore, he argues that the physician he was directed to was not independent from the employer and was, in effect, biased.

[5]   The employer’s position is that it was justified, under the circumstances, to make this administrative request and insist on the determination of two imperative issues:   first, the validity of a third medical certificate tendered by the grievor in June 2004, and second, his fitness to return to work. According to the employer, it had a duty to ensure that it was safe for the grievor to resume his duties. The employer acted accordingly and based its request on its Occupational Health and Safety Policy. For this reason, the employer would not accept the subsequent medical certificate from the grievor’s physician dated August 5, 2004, declaring him fit to return to work.

[6]   The employer argued that the fact that the grievor is now in a “no work, no pay” situation is only the administrative consequence of his failure to attend the medical assessment. As such, a preliminary objection to the jurisdiction of this Board was raised. The employer submitted that both grieved measures were not of a disciplinary nature but rather an administrative one. This objection was taken under reserve.

[7]   On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.   Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (the "PSSRA").

Summary of the evidence

[8]   The grievor testified on his behalf and a total of six witnesses were heard. Over 175 letters, memoranda and e-mail correspondences (most of which are found under Exhibit E-1, tabs 1 to 81, and in the 273 pages of Exhibit G-14), were introduced by the parties, as well as policies and other documents. Some documents appear in both the books, prepared by the parties. When I will refer to a document which appears in both books I will indicate, for ease of reading only and for no other particular reason, the document found in Exhibit E-1. The evidence was presented over seven days of hearing and both parties presented their arguments on May 24, 2005. I later reviewed each exhibit carefully.

[9]   The grievor is a physicist specialising in the field of optics. After his studies in France and a brief return to India, at the Indian Space Research Organisation, between 1975 and 1978, he moved to Canada. On July 3, 1981, he accepted a position as Associate Research Officer with the NRC.

[10]   In 1996, he was appointed to his present position, Director of the Radiation Standards and Optics Section of the INMS, with retroactive effect to August 21, 1992. This was done in accordance with an out-of-court settlement of Dr. Grover’s cases against the NRC before the Canadian Human Rights Commission (CHRC), signed on May 21, 1996 (Exhibit E-15). This settlement details, among other things, Dr. Grover’s classification level and salary and the structure of the section that he would direct. It is composed of four groups. Each is described and the document includes a designation of all personnel, as well as resources. Three other complaints are still before the CHRC and there is an ongoing action, filed in 2002 by Dr. Grover, in the Ontario Superior Court, also raising Charter issues.

[11]   The grievor’s present duties include the responsibilities of Group Leader for three groups out of four under his authority, as well as those of the vacant position of administrative assistant. His immediate supervisor during the period of August 2003 to August 1, 2004, Dr. Peter A. Hackett, described the grievor’s general duties as follows:

1)	provide technical leadership;
2)	participate in strategic meetings;
3)	assist the work and development of individuals in the group; and
4)	look after administrative matters.

[12]   Dr. Hackett was appointed Acting Director General for the INMS on August 1, 2003.

[13]   This appointment of Dr. Hackett triggered a noteworthy investigation of a harassment complaint against Dr. Arthur J. Carty, President of the NRC (Report of May 2004, Exhibit G-7). In a letter dated September 8, 2003, Dr. Grover alleged that the real purpose of the appointment of Dr. Hackett was to address his own situation: “…I believe that this arrangement is directly linked to my situation, and that Dr. Hackett has been sent to deal with me. I consider this to be harassment”. He closed his letter with the following statement: “The aggregate of these issues has caused me considerable stress”. Dr. Grover testified that he was not making a formal complaint against Dr. Carty; in fact, he was very surprised and distressed when he received the investigation report. He had not participated in the investigation for that reason.   When testifying, Dr. Hackett denied the suggestion that he had received any instructions to “deal” with Dr. Grover.

[14]   Dr. Grover testified that he had an understanding with Dr. Carty that if there was anything of concern to him, he would discuss it directly with him, which he did on September 8, 2003. This special access to the President of the NRC had been established since 1996, at the time of the settlement of the complaints with the CHRC.

[15]   It appears from the testimonies that at the time of Dr. Hackett’s appointment, the NRC was looking to make important changes, including new management structures and ultimately, by 2005, a reorganisation of the INMS. It would be in this light that Dr. Hackett modified the management committee of the INMS in September 2003 to include the Group Leaders of each section. This intention of the employer was confirmed by Mary McLaren, the Director General of Human Resources at the NRC since 2001.

[16]   Dr. Grover disagreed with this decision to modify the management committee, arguing that it was diluting the authority of the directors of the sections. Dr. Grover voiced his concerns at the meeting. Evidence was adduced by the grievor that, without his knowledge, Dr. Hackett had notified Dr. Carty of what he considered to be inappropriate behaviour on the part of Dr. Grover at management meetings (Exhibit G-5).

[17]   As the months went by, Dr. Grover seemed to become more and more uncomfortable with Dr. Hackett’s managerial style and decisions. They would again openly disagree during another management meeting on January 20, 2004. Dr. Grover again contacted Dr. Carty directly (Exhibit E-2). He indicated in that correspondence that he was “being routinely subjected” to discrimination by Dr. Hackett. The manner in which both Dr. Grover and Dr. Hackett represented their ideas at meetings in September 2003 and January 2004 was addressed by an independent investigation report in May 2004 (Exhibit E-3). This investigation was initiated as a consequence of Dr. Grover’s letter to Dr. Carty, also dated January 20, 2004. However, the grievor, having confirmed once more that he was not filing a formal harassment complaint against Dr. Hackett at the time, did not participate in the investigation. It was again conducted without any input on his part.

[18]   Following the January 20, 2004 meeting, the grievor was not feeling well and made an appointment with his doctor. A medical certificate was issued by his regular physician on January 24, 2004. It prescribed that the grievor take “stress leave for four weeks, spread over eight weeks, as required”.   Dr. Hackett accepted this certificate and the sick leave, as indicated, was authorised.

[19]   The evidence also revealed that, early in 2004, Dr. Hackett requested that Dr. Grover participate in his performance and merit review, as do all other managers.   Dr. Grover explained that he had been exempt since the CHRC decision in 1996 from participating in such reviews. He wrote to Dr. Carty, objecting to this request.   On March 8, 2004, Dr. Carty replied that Dr. Grover should “be advised that, as Dr. Hackett communicated to you in his letter dated  February 19, 2004, I expect PPRs and Merit Reviews to be conducted for all managers here at the NRC. … I believe it crucial that clear and sustainable goals be identified for all managers, including yourself” (Exhibit E-5). Ms. McLaren confirmed that from the employer’s point of view, it was important that all directors be managed the same way. This included participation in performance reviews.

[20]   Dr. Grover explained that when he read that March 8, 2004 letter, he did not interpret it to mean that Dr. Carty had specifically rescinded the agreement that they had had since 1996, and that he was now to be part of that process. He could not believe it.

[21]   On March 30, 2004, Dr. Grover returned to his physician and was issued the same prescription as before, effective April 2, 2004. The grievor notified his supervisor, Dr. Hackett, of his intention to use this new stress leave, from May 12 to 21, 2004, reminding him that he would attend a mediation with regard to his Superior Court action on May 10 and 11, 2004 (Exhibit E-1, tab 6). Despite the fact that Dr. Hackett had found it odd that Dr. Grover was predicting when he would use his sick leave, he accepted this second medical certificate.

[22]   Lorna Jacobs, the Director of Human Resources for the INMS, testified that during the same period, she had regular interactions with Dr. Grover.   They would meet at least twice a month with respect to human resources issues in his section. This would include discussions regarding the possibility of downloading some administrative tasks to people in the Photometry and Radiometry Group, as well as the appointment of a Group Leader. She also recalled discussions regarding a harassment complaint filed against Dr. Grover by one of his employees. At one such meeting, she found Dr. Grover to be very agitated. Worried about the effect this appeared to be having on his health, she told him to be careful and to take care of himself. She reported that incident to Dr. Hackett because she was concerned about Dr. Grover’s health. Dr. Grover denied having been agitated at that meeting; he testified that it was she who was agitated.  

[23]   During that same period, the grievor was also asked to see to the nomination process for one Group Leader position in his section. A disagreement also arose in this regard and a reprimand was issued on April 26, 2004, followed by a disciplinary measure imposed on June 1, 2004. This is the subject of the separate grievance (PSSRB File No. 166-09-34840) and as indicated earlier, its hearing has been postponed by the parties.

[24]   On May 10 and 11, 2004, the mediation at the Ontario Superior Court proceeded with a court appointed mediator.   Although she did not personally witness these events, Ms. Jacobs, who was present, was told by the mediator that the grievor had become extremely ill during the mediation session, late in the day, and that he had had to leave the premises.   The mediator seemed very concerned about the grievor’s health at the time. Ms. Jacobs immediately reported the mediator’s concerns to Dr. Hackett.

[25]   Dr. Grover testified that he was simply very distraught at the process because he felt that, at the end of the second day, it was going nowhere. He denied having felt ill; it was simply very stressful. He went outside to get some fresh air, had some water, talked with his counsel and then drove home. He was never told that these two incidents, reported by Ms. Jacobs to Dr. Hackett, were regarded as factors in the NRC’s decision to require a medical assessment.   However, he admitted that the workplace did generate significant stress for him at that time. He mentioned a few factors, such as the appointment without a competition of Dr. Hackett, which he felt had been a way to bypass him for this position; regular disagreements with the latter, whom he was trying to avoid. He also referred to a difficult situation with one of his employees, which was taking too long to resolve. He felt that he did not have the full support of management in dealing with this situation.

[26]   Furthermore, it was a period when he was completing performance reviews for all of his staff, including this difficult employee for whom this process was very time consuming, and then, his necessary involvement in a harassment investigation of the complaint made by that same employee. He testified that some meetings with the investigator, in May and June 2004, lasted all day. He insisted on pointing out that his duties as such did not generate stress and that he was fulfilling them all.

[27]   The grievor produced a third medical certificate, dated June 1, 2004, signed by a colleague of his regular physician. The prescription being identical, the grievor notified Dr. Hackett on June 3, 2004, that he would be on stress leave from June 4 to 25, 2004 (Exhibit E-1, tab 8).

[28]   Dr. Hackett forwarded this communication to Human Resources and received, that same day, an analysis on sick leave use.   It showed that the grievor was absent on sick leave on Mondays and Fridays during the months of February and March 2004, and then sometimes on Wednesdays and Thursdays by the end of April 2004 (Exhibit E-1, tab 9). It was established that these were the days when the management meetings had been scheduled and that Dr. Grover was sending a substitute in his place. Dr. Grover testified that he was never told that this was of concern to the NRC.

[29]   Ms. Jacobs testified that she never doubted that Dr. Grover was legitimately under stress. In her opinion, he insisted on doing a lot of work and the workload was too much. This, coupled with the two incidents she had been aware of, explained her concern both with his health to carry on his job and with his performance. She was not surprised to see a third medical certificate.

[30]   Dr. Hackett testified that he had been increasingly concerned about the grievor’s workload, as Director of the Institute. He was holding the position of three Group Leaders, as well as doing all the administrative duties.   Dr. Hackett was also concerned that the grievor was not attending more than 30% of the management meetings, despite the fact that this was Dr. Grover’s primary responsibility. Dr. Hackett changed the management meeting schedule in order to allow Dr. Grover to be present and encourage him to attend.   To his dismay, Dr. Grover started taking sick leave on Wednesdays and Thursdays, as well as on the other days that meetings were scheduled.

[31]   He became even more concerned when he received a copy of the third medical certificate. Considering that the prescription was identical, he concluded that despite the treatment, there was no improvement in Dr. Grover’s medical condition.   He was, furthermore, perplexed when a different doctor wrote exactly the same prescription. In fact, in his view, Dr. Grover was increasing the concentration in which the time was to be used. Dr. Grover would now be present at work only 50% of the time.  

[32]   In Ms. Jacobs’ opinion, the concern regarding the last medical certificate was due to the fact that it was the third one with the exact same wording.   Considering that it was a different physician, it left one to wonder what information the physician had considered in order to provide the third prescription. Questions arose as to how much the doctor knew of the history of the case and what information the patient had provided him with.

[33]   On June 10, 2004, Dr. Hackett informed the grievor that he was not prepared to accept the third medical certificate unless Dr. Grover’s medical situation was confirmed by the “NRC’s chosen physician”. The grievor was asked to refrain from presenting himself to work until such time as this assessment was completed and Dr. Hackett was apprised of the results. This letter specifically explained that the NRC sought to determine both the validity of the current medical situation and the grievor’s medical capacity to resume his duties and responsibilities (Exhibit E-1, tab 10).

[34]   Contrary to the suggestion of some personnel in Human Resources, Dr. Hackett testified that he was not ready to accept the conclusion that the grievor was abusing his sick leave credits.   However, he was not ready to accept this third medical certificate because, in his view, the three certificates had the same prescription and he could see no improvement in Dr. Grover’s medical situation. Furthermore, in his correspondence, Dr. Grover was telling him that he would carry all of his duties when present at work.   This, for Dr. Hackett, was a contradiction.   However, he admitted that he never raised this concern with the grievor.

[35]   Considering the inherently stressful position of a Director and the fact that Dr. Grover was carrying five sets of duties by working additional hours when at work, and the fact that he was not attending management meetings, there could be, in Dr. Hackett’s mind, only two explanations. Either there was an abuse of the system or Dr. Grover was not fit to work.   In order to answer this question, Dr. Hackett thought it best to request a medical assessment by a doctor of the NRC’s choosing. This would be the fairest way to obtain the necessary information to ascertain Dr. Grover’s medical situation.

[36]   During cross-examination, Ms. Jacobs confirmed that the NRC was not concerned that Dr. Grover was abusing sick leave, but was greatly concerned about his health.   The report for absenteeism was not compiled to terminate Dr. Grover.   In her view, she felt that the grievor was really ill.   However, she confirmed that she never expressed this concern to Dr. Grover except on the day, sometime in the spring, when she had asked him to calm down.

[37]   Dr. Hackett also admitted that he never raised his concerns about Dr. Grover’s health with him. He testified that the request for the medical assessment was based on the NRC’s Occupational Health and Safety Policy. Section 13 of Chapter 6 would present the relevant dispositions:

…

6.13.2 b) While the Occupational Health Monitoring Policy is for the benefit of employees, and is voluntary, it does not limit NRC’s right to require a medical where necessary under the Canada Labour Code, Part II or under other NRC policies, such as the Policy on Self-Contained Breathing Apparatus.   Also, when there is evidence sufficient for management to be concerned over the ability of employees to perform their jobs without creating a safety risk to themselves or others, including the potential for damage to physical property, management has not only the right but also the obligation to require a medical assessment of the employee in order to determine whether the employee’s health is sufficient to continue to undertake the work.   An employee may be denied access to the work place until management is satisfied the employee can perform the duties in a safe manner.

…

[38]   As such, the employer was acting prudently and according to its duty and obligation to provide a safe environment for the grievor and other employees.   For Dr. Hackett, this was a simple matter and, with cooperation, it should have been quickly resolved. Ms. McLaren confirmed that the employer was attempting to determine what exactly Dr. Grover’s medical situation was, considering the circumstances. She would not define it as a risk or a safety issue, but certainly as a matter of the health of the employee, which could potentially become a risk issue.   She stated:   “We did not know the underlying causes”.

[39]   Dr. Grover’s reaction to this request brought on further concerns, considering the letters from his attorneys, dated June 18 and July 7, 2004 (Exhibit E-1, tabs 12 and 16), alleging that the employer’s attitude was causing Dr. Grover further adverse effects to his health. This, in Dr. Hackett’s mind, confirmed the need for an assessment.  

[40]   On June 28, 2004 , Dr. Grover returned to work despite instructions not to do so. Dr. Hackett called him into his office and asked him to leave the workplace.   He testified that it was a calm meeting. Dr. Grover confirmed this meeting on that first day of his intended return to work but described the encounter as having been very difficult. He was told to leave immediately. He felt humiliated and scared.

[41]   The first appointment for a medical assessment was scheduled for June 30, 2004, with Comcare Health Services. Dr. Grover notified the NRC that he had no intention of attending this examination. On June 29, 2004, Dr. Hackett wrote to the grievor. He closed his letter by stating: “It has come to my attention that you have declined to attend such a medical assessment scheduled for 9:00 A.M. on Wednesday, June 30, 2004. I advise that failure on your part to undergo this assessment at the location set out below will also be considered insubordination and further disciplinary action may follow” (Exhibit E-1, tab 14).

[42]   On July 7, 2004, Dr. Hackett wrote to the grievor to inform him that the NRC would not permit him to attend an international conference as planned.   He stated that: “In light of the fact that you failed to attend an independent medical assessment to determine whether you are fit, unfit or fit with limitations to resume your job functions, I must inform you that your travel to Tokyo, Japan is cancelled…” (Exhibit E‑1, tab 15). Dr. Hackett then went on to notify Dr. Grover that he had requested that a new appointment be scheduled and that “Failure on your part to undergo this assessment will be considered a further act of insubordination”. He then concluded: “I must also inform you that should you fail to attend this assessment your absence from the workplace will then be considered a ‘no work, no pay’ situation and you will not be paid until such time as this medical assessment has been completed and I have been apprised of the results”.

[43]   On July 19, 2004, Dr. Hackett again wrote to the grievor (Exhibit E-1, tab 20) stating:

…

My records reveal that on April 26, 2004 you received a written reprimand and again on June 1, 2004 you received a further three‑day suspension for insubordinate behaviour by your continued refusal to follow my instruction to initiate a staffing process to fill the position of IRS Group Leader.

In view of the foregoing, I am left with no alternative but to conclude that you once again deliberately chose to be insubordinate by disregarding my instruction to attend this independent medical assessment.

Your persistent refusal to follow direction by continuing to blatantly disregard my instructions is unacceptable and cannot and will not be tolerated.   Consequently, under the authority delegated to me, I am suspending you without pay for a period of three days which will be served upon your return to the workplace.

Effective immediately, you are to follow my instructions in a diligent and timely manner.   Failure on your part to adhere to my direction may result in further disciplinary action up to and including termination of your employment.

[44]   In a separate letter, also dated July 19, 2004, Dr. Grover was notified of a newly scheduled appointment with Comcare Health Services for July 21, 2004. Dr. Hackett reiterated in his letter that “failure to attend this scheduled assessment will be considered a further act of insubordination and disciplinary action may follow. I further inform you that failure to attend this assessment will result in a ‘no work, no pay’ situation and you will not be paid until such time as this medical assessment has been completed and I have been apprised of the results” (Exhibit E-1, tab 22).

[45]   On July 20, 2004, (Exhibit E-1, tab 23) Dr. Grover informed Dr. Hackett that he was “… not prepared to consent to this assessment, as I have not been provided with sufficient information to understand the reason for this request or to determine whether the physician whom NRC has chosen is independent. To be clear, this decision is based upon my right to consent to any invasion of my person or disclosure of my personal information and the fact that NRC has not provided sufficient information to me to determine whether this assessment is necessary or whether Comcare Health Services is independent” (Exhibit E‑1, tab 23).

[46]   In that same letter, Dr. Grover offered to see a physician, agreed to by both parties, assuming it was necessary.  He received no further explanation but rather, as a result, was considered in a “no work, no pay” situation effective July 21, 2004, since he “refused to attend the scheduled medical assessment” (Exhibit E-1, tab 26). In his letter, Dr. Hackett stated: “In addition, under the authority delegated to me, I am suspending you without pay for a period of five days, which will be served upon your return to the workplace”. This suspension was later rescinded and the grievance in this regard was withdrawn.  

[47]   Dr. Hackett was determined that the employer was on the right course. The request was justified under the circumstances and the grievor’s right to refuse his consent to a medical examination by a physician not of his choosing was recognized.    However, he maintained that the grievor did not have a right to determine which physician would be acceptable to him. The failure to attend the requested medical examination had to have consequences.   The NRC was not ready to allow the grievor to return to work without the determination as to whether he was fit to return to work. On the other hand, the grievor was still unconvinced of the justification for such a request and the information he was provided with in this regard was always the same and remained insufficient in his opinion.

[48]   Dr. Hackett admitted that he had no indication that the grievor was not fulfilling any of his duties except for his lack of attendance at management meetings.   These meetings dealt with an evolution process for the INMS.   Dr. Grover was not providing input into this important process, as he should have. This was an important and substantive part of his responsibilities at the time, which could not be fulfilled by a substitute.   However, on September 17, 2004, when Dr. Grover asked to be allowed back to work, in order to contribute to this process (Exhibit G-14, page 107), the employer still denied him access to the workplace. Dr. Grover testified that this concern for his contribution was, in fact, never brought to his attention. This evidence was not contradicted by the employer. The grievor recognised that he was avoiding the management meetings on purpose because they were causing him undue stress.  

[49]   Notwithstanding the directive to stay away from the workplace and not “undertake work”, the grievor testified that he kept working from home and that he met in shopping malls with employees.   As such, Dr. Grover said that he was following his instructions to the letter by not “undertaking any new work”. He explained that he continued the “work in progress” and continued to assist his employees with their work and answered their requests sent by e-mail.   He argued that the employer should have notified his employees of his situation. The employer’s expectation, on the other hand, was that a manager at the grievor’s level would clearly understand that he was to refrain from any work and that he could have informed his employees directly of his status.

[50]   On August 1, 2004, Dr. Hackett was replaced by Dr. Sherif Barakat as Acting Director General for the INMS. Dr. Grover saw this as an opportunity to resolve the situation. On August 5, 2004, he wrote to Dr. Barakat, telling him that he had been under increased stress at work since January 2004, but that he was now ready to return to work.   As evidence, he attached a medical certificate dated the same day from his regular physician, confirming that he was fit to return to work on a full-time basis, effective July 5, 2004 (Exhibit E-1, tab 29).

[51]   Upon receipt of the letter, Dr. Barakat looked into the situation and was briefed by Ms. Jacobs. He also reviewed the correspondence up to this point. Dr. Barakat testified that he was not ready to accept the August 5, 2004 certificate, considering that a long time had elapsed since Dr. Grover had been at work and that he had been partly at work prior to that for a period of six months.   Furthermore, there had been no changes in the workplace and Dr. Barakat did not know what information the physician had considered when making this determination.

[52]   On August 10, 2004, Dr. Barakat wrote to the grievor to advise him of the fact that he was not accepting this latest certificate.   His letter provided a summary of the situation and his view at the time: “It is my understanding that you are currently in a ‘no work, no pay’ situation, as a direct result of your refusal to undergo an independent medical evaluation (IME) to determine both the validity of a medical certificate submitted by you, dated June 3, 2004, and your medical capacity to resume your duties and responsibilities” (Exhibit E-1, tab 30).

[53]   On August 16, 2004 (Exhibit E-1, tab 31), Dr. Grover reiterated his proposal that the parties agree on a physician. He added: “In the event that the NRC is not prepared to discuss a mutually agreeable independent physician, please advise me of your rationale for this position in writing”.   This letter remained unanswered.   Dr. Grover later offered direct communication with his own physician.

[54]   On August 17, 2004, the grievor, at his request, met with Dr. Barakat. Essentially, he wanted to discuss the situation and try to come to an agreement with the new manager. Dr. Grover asked for explanations for the request and why he was not allowed back to work. He did not obtain any more information than he had in the past, except that he was now referred to an NRC Policy, a copy of which he was promised he would receive a few days later. Dr. Grover testified that Dr. Barakat told him that Dr. Hackett had made the decision and that he could not change it. He also testified that Ms. Joanne Lapierre, from Human Resources, was the most active speaker during that meeting, not Dr. Barakat. This testimony was not contradicted.

[55]   When he returned home that day, he received a letter from the Pay and Benefits Section, dated August 11, 2004, informing him that his “leave without pay for other reasons” had been authorised (Exhibit E-1, tab 45). He was very disturbed and confused by this turn of events. He understood that such a leave could only be the consequence of a request by the employee. Under that policy, Dr. Grover then notified the Pay and Benefits Section, on August 18, 2004, that he was electing to return to work effective that day (Exhibit E-1, tab 46). This letter was answered by Ms. McLaren on August 25, 2004 (Exhibit E-1, tab 47). In a very brief letter, she explained that “for Pay and Benefits purposes, a ‘no work, no pay’ designation is recorded as ‘leave without pay for other reasons’”, and expressed her regrets for the ambiguousness of the August 11, 2004 letter.

[56]   On August 18, 2004, the grievor returned to work, as indicated in his letter to the Pay and Benefit Section. He was asked by Dr. Barakat to leave the premises after another discussion about his status and the motivation for each other’s position. Again, he found that meeting to be insulting and humiliating and was not provided with further justification to the request for the IME.   To the contrary, he was becoming more confused. His intention was to try to come to an agreement with Dr. Barakat but the latter seemed to rely solely on Dr. Hackett’s decision. On August 26, 2004, the grievor received the NRC’s Occupational Health and Safety Policy upon which the request was based (Exhibit E-1, tab 34).

[57]   On September 16, 2004, an article in TheOttawa Citizen (Exhibit E-1, tab 41) was published where Dr. Grover is reported to have said that “he is tending to heart problems that he said were brought on by stress”.   Although this article was of concern to the employer, Ms. McLaren testified that this was not cause for the employer’s decisions, which had been made and communicated to Dr. Grover long before that.

[58]   Letters were exchanged regularly between September 7 and  November 8, 2004, regarding documentation, the independence of CompreMed and the possible modification of the grievor’s consent to this assessment. On November 8, 2004 (Exhibit E-1, tab 60), the grievor wrote to Ms. McLaren outlining clearly, in five points, examples of the concerns he had that had not yet been addressed by the employer.

[59]   Dr. Grover testified that, rather than becoming clearer as to what the employer expected of him, he was becoming more confused. To illustrate this, he pointed to a letter dated September 24, 2004, where the employer informed him that it was now considering the issue of the June medical certificate to be “moot” (Exhibit G-14, p. 116). Furthermore, he reviewed the policy, especially section 6.13.2 b), and did research on the IME process and still could not see how this Occupational Health and Safety Policy applied to his situation. He also enquired with Health Canada, which was not a provider for the NRC until April 1, 2005. Finally, he looked into other alternatives in order to try to find a solution. His actions and correspondences, as well as his testimony, are an indication of his attempts throughout this episode to find an acceptable solution for both parties.

[60]   During the month of November 2004, there was more correspondence between Ms. McLaren and Dr. Grover, as well as with Dr. Andrew Woodsworth, Acting Vice‑President, Research for Life Science and Information Technology, to try to come to an agreement with the grievor to provide his consent, either to attend the CompreMed assessment or to provide information from his own physicians. This attempt failed.

[61]   Despite the sentiment that nothing could bring Dr. Grover to cooperate in one way or another, on December 1, 2004, Dr. Woodsworth made a final attempt at addressing and explaining the reasons for the request of an IME, and stated in 12 points the many concerns taken into consideration by the NRC to make this decision (Exhibit E-1, tab 64). They are as follow:

…

1)	That within a brief period of five months, you had tendered three medical certificates, all of which indicated that you were incapable of working by reason of illness.   This serial production of certificates in and of itself had become a concern;
2)	That these identical certificates were signed off by two different physicians, the first two by Dr. M. Reny and the third by Dr. Dr. A. Saeed;
3)	That each of these medical certificates identically prescribed that you take four weeks stress leave over an eight week period to be used at your discretion, a prescription which is questionable on its face;
4)	That in respect of the first medical certificate, you had established a consistent pattern of taking sick leave on the Mondays and Fridays of each week;
5)	That in respect of the second certificate, you determined in advance particular days you planned to utilize as sick leave for stress as opposed to taking it when required as delineated in the medical certificate.   Specifically, in a May 7th email, you indicated your intention to take sick leave for stress on May 12 and 17 to 21;
6)	That the third certificate, as confirmed by your counsel, was predicated on your providing the physician a copy of the earlier certificate and on information you alone determined to be relevant;
7)	That you have made no effort to satisfy the NRC’s concerns by providing additional physician clarification or insight to the medical certificates as earlier confirmed in our July 26th correspondence;
8)	That you tendered a medical certificate dated August 5th in which the physician curiously stated that you were fit for work one month earlier, specifically July 5th.   No further clarification or insight in respect of this certificate has been provided by your physician;
9)	That subsequent to your tendering of the third certificate, your counsel confirmed that it is “not surprising that [you] continue to require sick leave”;
10)	That you recently expressed to the Ottawa Citizen that you have been experiencing heart problems brought on by stress;
11)	That the five month period preceding your “no work no pay” status, you had worked only marginally greater than fifty percent of the time; and
12)	That your substantive position as a Director is an inherently stressful one, particularly in view of both past and continuing changes at INMS and IMS.

…

                     [Sic for the whole citation]

[62]   In February 2005, Dr. David Simpson took over from Dr. Woodsworth and continued the correspondence with the grievor in further attempts to bring an end to the situation and accommodate the grievor with his concerns. The situation remained unresolved.

[63]   On February 24, 2005, Dr. Grover wrote to Dr. Simpson with his own attempt to move past the impasse. He made a proposal and asked the employer to choose between five possible options (Exhibit E-1, tabs 76 and 77). These were found unacceptable and Dr. Grover was notified as such on March 22, 2005 (Exhibit E-1, tab 78). He was again asked to provide his consent to allow the NRC to communicate with his physician, as discussed over the last few months. Finally, on April 7, 2005, Dr. Grover was asked to provide his consent to undergo a fitness-to-work evaluation from Health Canada (Exhibit E-1, tab 80), which became a provider for the NRC as of April 1, 2005. The situation remained unresolved at the time of this hearing.

[64]   Questioned on the issue of the independence of the physician Dr. Grover was instructed to meet, Ms. Jacobs explained that Comcare Health Services had been a contractor for the NRC for over 10 years.   In her eight years with the NRC in Ottawa, she was twice involved in independent medical evaluation requests. She explained that she did not know Dr. Moran, the physician who had been assigned to Dr. Grover’s case. It was Comcare’s responsibility to assign the doctors under its contract with NRC.

[65]   Ms. McLaren confirmed the contractual relationship with Comcare Health Services and the procedure by which such an assessment is initiated with the provider. She insisted that there was no involvement on the part of the NRC in the choice of the physician to be assigned to any specific case. She also referred the grievor later on to the Website for the new provider that replaced Comcare (CompreMed Canada Inc.) (Exhibit E-1, tab 57).

[66]   She explained how the NRC considered CompreMed to be totally independent of the NRC when providing services for a medical assessment. She offered Dr. Grover the opportunity to amend the consent form provided by CompreMed and without which it would not proceed, and she asked him to complete and return the consent by October 18, 2004 (Exhibit E-1, tab 53). She also provided the same explanation which formed the basis of the NRC request for this medical assessment to Dr. Grover in many correspondences with him. However, when Dr. Grover did offer to amend the consent form on April 20, 2005 (Exhibit E-10), it was refused by Health Canada (Exhibit E-13) as the “forms cannot be altered since they are considered legal documents …”.

[67]   Ms. McLaren testified that the “no work, no pay” status was an administrative one and no mention of these events was recorded in the grievor’s disciplinary record. This situation could not and would not be used in the future to build a case of discipline against him. The grievor’s refusal to attend the medical assessment and to provide his consent by signing a form amended by him was resulting in administrative consequences. She notified the grievor of these consequences, as had Dr. Hackett and Dr. Barakat in the past.   In that same letter of November 1, 2004, she pointed out: “As you have been previously advised, a decision to not complete [the consent form] will attract consequences. … You have choices to make and you are being fully informed of their implications”.

[68]   Ms. Jacobs and Ms. McLaren confirmed that there is no policy on approval or rejection of medical certificates tendered by employees.   Each is examined individually.   As for the request for an independent medical examination, the procedure is found in the Occupational Health and Safety Policy, at chapter 6, section 13, paragraph 2 b).   In Ms. Jacobs’ opinion, the determination to be made under this policy has to be made by management.   In order to do so, they have to have all the information necessary.   Ms. Jacobs recognised, however, that the independent medical examination is one option.   The other is to ask the employee to provide specific information from his own physician.   Although this avenue was considered at the time, Dr. Hackett chose to request the independent medical examination. In January 2005, Dr. Grover was finally given that other option but the NRC did not receive any more cooperation from him under that option.

[69]   Dr. Grover insisted that this request for an independent medical examination and the lack of justification and information on the part of the employer for it and its insistence in pursuing different investigations, despite the fact that Dr. Grover did not make a formal complaint, were all a reflection of the manner in which he had been treated since he arrived at the NRC. (Another investigation was initiated in January 2005, further to a letter from Dr. Grover alleging bias from the manager who was to be his director general, upon his return to work.)   Clearly this request for an IME was a way to bring him in line or to sidetrack him while the INMS was being restructured. In his opinion, he was never provided with a reasonable justification for the request. It was clearly meant to punish him and as such, was disciplinary in nature.

Summary of the arguments

For the employer

[70]   The employer argued that if I were to conclude that this is not a question of discipline, I must dismiss the case outright.   In support of this argument, the employer referred to Dhaliwal v. Treasury Board (Solicitor General Canada – Correctional Services) 2004 PSSRB 109, in which the jurisdictional principles are set out. The applicable provision is subsection 92(2) of the PSSRA.  

[71]   It was argued that in the present case, the employer has established that it was legitimately concerned with the health of the grievor.   The employer acted in good faith and with bona fide concerns for the health of the employee.   In the employer’s opinion, based on the preponderance of evidence, the grievor did not demonstrate bad faith in the disciplinary nature of the measures grieved.   Should I come to the conclusion that Dr. Hackett acted with legitimate concerns for Dr. Grover’s health, my role would come to a ‘shuddering halt’ (Canada (Attorney General) v. Penner, [1989]  F.C. 429 (C.A.) referred to in Dhaliwal (supra)).   Then, the question of whether or not the measures were appropriate would not be my concern.

[72]   The employer submitted that, under the circumstances, it is very important to review the context in which the decision was made.   In its opinion, the answers provided by the grievor during cross-examination give great insight into his mind and shed light as to the number of correspondences found during this period of time. It is an indication of the grievor’s state of mind.   It allows for the appreciation of the context in which the employer was seeking, without success, the grievor’s cooperation in order to determine his fitness to work.

[73]   The underlying theory for the grievor, as revealed during cross-examination, qualifies the measures as disciplinary or a way for Dr. Hackett to “get him”.   However, there are no facts that prove this theory.  

[74]   This mindset of the grievor made the situation very difficult for the employer.   This was the context in which the employer made many attempts to explain to the grievor the reasons behind the request for a medical assessment.   In the employer’s view, a reasonable explanation had been provided many times over, and no further explanation would ever satisfy the grievor.   The employer set out 12 reasons why it required a medical certificate in its letter of December 1, 2004 (Exhibit E-1, tab 64). Still, the grievor was not satisfied with the explanation and failed to see how the Occupational Health and Safety Policy would apply to him.   The employer can only interpret this behaviour as difficult and uncooperative, as evidenced by the correspondence and the testimonies.   The employer kept all communications in writing on purpose.

[75]   The employer felt that it legitimately needed to understand Dr. Grover’s medical situation.   The employer based its assessment on many factors and was not prepared to take a risk because the prevailing conditions had not changed since Dr. Grover started to take sick leave in February 2004 and still existed in the workplace.  

[76]   The situation, where the grievor found himself in a “no work, no pay” status, was simply the consequence of his choice not to attend the medical assessment.   With regard to the second grievance, where his status was recorded as “leave without pay for other reasons”, it is submitted that his absence was recorded as such because it is the appropriate administrative code.  

[77]   The employer’s concerns were further confirmed in the grievor’s counsel’s letter of June 18, 2004 (Exhibit E-1, tab 12). While the grievor was maintaining that he was fit to work, his counsel was concerned about the adverse health effects of the situation on the grievor. This was later confirmed by an article in TheOttawa Citizen on September 16, 2004 (Exhibit E-1, tab 41), where Dr. Grover was said to be “tending to heart problems that he said were brought on by stress”.

[78]   The employer also pointed to a contradiction in the grievor’s letter of August 5, 2004 to Dr. Barakat (Exhibit E-1, tab 29) where, on the one hand, the grievor recognized that he had been subjected to increased stress experienced in the workplace and, on the other hand, he was tendering a medical certificate dated the same day indicating that he was fit to return to work on a full-time basis.   Again, the employer underlined the fact that nothing had changed in the workplace during that period.

[79]   Finally, the employer pointed out that the grievor refused, all along, to cooperate and to provide information required by the employer to determine his medical situation. In summary, the grievor’s own testimony confirmed the appropriateness of the employer’s decision, considering that the grievor testified to being afraid of receiving letters at home, that he found that there was a systematic problem at the NRC, and that his workplace was very stressful.   The employer was justified in requiring a determination of his medical status.

[80]   Even more recently, when the employer tried to get information from the grievor’s own physician, it was met with further uncooperativeness on the part of the grievor.   The employer put in a lot of effort in this alternative, consulting extensively with Health Canada in order to carefully craft the questions for Dr. Grover ’s physicians.   At this point, the grievor did a complete 180º turnaround and questioned how the proposed questions would provide information as to his fitness to work.   He was then in disagreement with the employer ’s proposal of asking non-medical questions to his physicians. After stating that he did not want any medical information to go to the employer, now the grievor is, in fact, saying the contrary.

[81]   The employer concluded that the grievor is the one who is really responsible for the present situation because of his lack of cooperation.   Any reasonable person could only conclude that the grievor never had any intention of cooperating in this matter.   The employer did all that was possible to provide the grievor with a reasonable explanation for his request.   The same message was repeated over months.   It is clear from the grievor’s letter of December 8, 2004 (Exhibit E-1, tab 65), that no information would ever convince him.

[82]   The employer tried to find a solution and offered many different avenues in order to get the grievor back to work.   The grievor’s position would never change.   In his opinion, the employer had to accept the medical certificates at face value.

[83]   In support of its argument, the employer submitted the jurisprudence in the following cases: Ricafort v. Treasury Board (Department of National Defence), PSSRB File No. 166-2-17422 (1988); Campbell v. Treasury Board (Canadian Radio and Television Commission), PSSRB File No. 166-2-25616 (1996) and Masterfeeds and U.F.C.W., Local 1518 (2000), 92 L.A.C. (4^th) 341.

[84]   In Ricafort (supra), the employer pointed to the Board’s decision, drawing a parallel with the present situation.

The substantive factual issue in this case is whether the employer had sufficient grounds for questioning the fitness of the grievor to return to work, notwithstanding his apparent request to do so.   In my view, even in the face of the medical certificates provided by the grievor, there were ample reasons for the employer to doubt the grievor’s fitness to perform his duties and to conclude that by returning to work the employee might be further jeopardizing his health.   Given the grievor’s own equivocation about the state of his health throughout the period in question, it was entirely reasonable for the employer to err on the side of caution in requiring the grievor to submit to further medical examination as a condition for returning to work.   In addition, the tenor and content of several of the memoranda composed during this period by the grievor understandably led management to conclude that the grievor continued to suffer quite profoundly from the accumulated effects of stress.

I must also reject any suggestions that the grievor was the victim of a conspiracy to permanently remove him from the workplace.   There is simply no cogent evidence to support this contention.   I am not convinced that the employer’s actions were motivated by anything other than a concern for the grievor’s health and his capacity to perform the duties as required.

. . .

As to whether the employer had the authority to act as it did, in my view the preponderance of arbitral jurisprudence supports the employer’s position.   In fact, virtually all of the arbitral awards cited by the grievor’s representative either implicitly or explicitly recognize that the employer has the authority, and indeed the obligation in certain circumstances, to prevent an unfit employee from returning to work.

[85]    In Campbell (supra), this Board noted the unwillingness of the grievor to cooperate with his employer to find a suitable situation that would permit Mr. Campbell to return to work.   In that case, the employer was found to be extremely patient and human in dealing with Mr. Campbell, who could only see persecution and mistreatment.   The Board concluded at paragraph 61:

. . .

An employer who has serious reasons to believe that the physical or mental condition of an employee is such that the employee cannot adequately perform the duties of his or her position, or who has reason to believe that the condition of the employee may affect the health and security of others, may require that the employee submit to a physical or psychiatric medical examination by a specialist of its choice as determined by National Health and Welfare Canada.   In such circumstances, an employee who refuses to abide by the employer’s request does so at his or her risk and peril.   The statutory framework in such matters is clear.   The Minister of National Health and Welfare is required by statute (the Department of National Health and Welfare Act) to promote and conserve the health of public servants and other government employees.

. . .

[86]   Finally, in Masterfeeds (supra), the general principles in these matters are set out.   In the opinion of the employer, they are the same in the public sector as they are in the private sector, with the exception of the choice of physician.   Based on those principles, in the present case, the tendering of the three medical certificates and the increased absenteeism of the grievor were grounds enough for the employer to question this last certificate.   In the employer’s opinion, the evidence is overwhelming that it had grounds for this request and that it was only prudent to require more information to reassure the NRC that there would be no further deterioration of the grievor’s medical condition upon his return to work.   It is only the grievor’s lack of cooperation, when he chose to remain at home, that put him in a “no work, no pay” situation, as an administrative measure.

[87]   There is no evidence that the employer had any motivation other than assessing the grievor’s health and responding to its concerns for the grievor’s capacity to fulfil his duties as required.   The employer referred to two other decisions in support of its argument that the measures taken were of an administrative nature, and not disciplinary: Canadian Imperial Bank of Commerce (Chargex Centre) and Union of Bank Employees ( Ontario), Local 2104 (1987), 28 L.A.C. (3d) 134, and Metropolitan Separate School Board andOntario English Catholic Teachers Association (1994), 41 L.A.C. (4^th) 353.

[88]   Considering that it was reasonable for the employer to require information to determine the medical status of the grievor under the circumstances; considering his absences; considering that he was not performing important duties such as attendance at key management committee meetings; considering his own lawyer’s letter expressing concerns about his health; and considering the comments that the grievor made to the press, one can only conclude that this request was reasonable. The employer has established that it was legitimately concerned about the health of the grievor and that it acted in good faith and with bona fide concerns for his health under the appropriate Occupational Health and Safety Policy.

For the Grievor

[89]   This is a case about balance between privacy and the employer’s legitimate right to operate safely and effectively.   More specifically, it is about when an employer has a right to request that an employee attend a medical examination by a physician not of the employee’s own choosing.

[90]   The grievor did not question the authority of the employer to make a request for an independent medical examination, but rather the grounds upon which the request was made in this case and the procedures that were followed. In his opinion, the employer failed to establish that it had reasonable grounds for the request and that any alternative options were considered or reasonably attempted. The employer made no effort to rally the grievor’s consent. He also argued that the request of the employer was premature.

[91]   The general principles have been established since 1963, in the often cited decision of Thompson v. Town of Oakville (1963), 41 D.L.R. (2d) 294, that:   “The right of the 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”, and that is based on the principle that: “A medical practitioner, who examines a person against his will and without authority to do so, commits a trespass”.

[92]   Furthermore, the grievor submitted that an important distinction exists whether the employer is challenging a medical certificate tendered by the employee or whether it is questioning the fitness to work in the future of the same employee. Doing both appears to be a contradiction. In each case, the rules are different and the onus is on the employer in the case of establishing fitness to return to work.

[93]   This distinction was made by the Court in Monarch Fine Foods Co. Ltd. v. Milk and Bread Drivers, Dairy Employees, Catering and Allied Employees, Local 647 (1978), 20 L.A.C. (2d) 419:

There is an obvious difference between requiring a medical examination for the purpose of establishing fitness to work and requiring a medical examination to substantiate the truth of an employee’s assertion, supported by his own medical certificates, that his absences were the results of some illness or injury.   A company which has reasonable and probable grounds to doubt the validity of medical certificates tendered by an employee may request further medical documentation from a physician of the employee’s choosing or from a physician chosen by agreement of the company and the employee.

[94]   The Board determined that in the case of a medical examination for the purpose strictly to test the truth of a medical certificate and asserted illness or injury, there is no basis for this implied management right. It is submitted that where the employer finds reasonable and probable grounds to doubt the validity of a medical certificate tendered by an employee, its course of action is to request more information from the employee and his physician or to come to an agreement on the choice of a third-party physician.

[95]   The Board further stated:

The arbitrary cases which have dealt with this issue most frequently are those in which an employee returns to work after an absence due to illness and an issue arises as to the ability and fitness of the employee to return to work.   Boards of arbitration have consistently held that it is implicit in the rights of management to require that employees be physically fit to perform their work efficiently and safely.   Thus, it has been found that an employer may, where reasonable and probable grounds exist, require that the employee pass a medical examination by the company’s doctor or by a medical practitioner named by the company to determine an employee’s fitness to return to work….  

[96]   Such a case is found in Air Canada v. Canadian Airline Employees Association (1982), 8 L.A.C. (3d) 82. In circumstances essentially similar to the instant case, the Board decided that the order to the employee to attend a medical examination by the employer’s physician was improper.   In that case, the grievor had suggested several alternatives to the employer, such as an offer to be examined by her own doctor once again and suggesting that the employer’s doctor could issue instructions to her doctor setting in detail any requirements he needed to satisfy him that she was fit to return to work.   She also offered to be examined by an independent doctor who was neither her own doctor nor the company’s doctor, but all these options were not accepted by the employer.

[97]   The Board decided that the employer had no right at that stage to insist that the grievor be examined by its own physician.   These offers appeared to have been reasonable and ought to have been accepted by the employer.   It is conceivable in the Board’s mind that the information that would have been supplied to the employer would have been sufficient and would have ended the matter.

[98]   The grievor also argued that having the employer simply state that it did not know what was going on is not enough to require an independent medical examination.   There is a need for more, particularly when the employee is performing his or her duties, as is the case here.   In support of this argument, the grievor referred to Riverdale Hospital v. Canadian Union of Public Employees, Local 79 (1985), 19 L.A.C. (3d) 396.   Relying on this Board’s decision in Kolski v. Treasury Board (Agriculture Canada), PSSRB File Nos. 166-2-25899, 25900 and 26020 (1994), the grievor is also arguing that the request of the employer in the present case is premature.

[99]   As to what the employer should consider in such circumstances and what should be considered a safety risk, the grievor referred to the decision in Inco Limited v. United Steel Workers (1988), 35 L.A.C. (3d) 108.   The Board decided that: “In deciding this issue, we must consider the nature of the work, the medical condition of the employee precipitating the concern of the company and, finally, the medical information made available to the company in support of the employee’s request to return to the full range of his duties”.   The grievor submitted that, in the present case, the alleged inadequacy of the medical certificate should not have been enough to justify the employer’s request, considering that there was no serious illness and considering the nature of the grievor’s work.   The case before me is not one of an employee who could be required to wear a 30-pound air pack and face mask and climb up to six flights of stairs carrying out search and rescue duties while suffering from coughing attacks.

[100]   As stated in York County Hospital Corp. v. Service Employees International Union, Local 204 (1992), 25 L.A.C. (4^th) 189, the onus is on the employer to show that information is reasonably required and that other means to investigate the grievor’s claim have been exhausted.   It is argued that the employer could have done a number of inquiries, both with the grievor and with his physicians, prior to making the request for the medical examination.

[101]   Along the same lines, in the case of Laurentian Hospital v. C.U.P.E., Local 161 (1990), 20 C.L.A.S. 325, the Board determined that the employer was entitled to request more or better information from the grievor’s doctor but absent permissive language in either the collective agreement or in the Public Hospital’s Act (in that case), the employer had no right to insist on an examination by a physician of its choice.

[102]   The grievor, in conclusion, argued that an employee should be allowed to exercise his/her consent, by receiving an appropriate explanation and justification for the employer’s request, as well as detailed information regarding the employer’s concerns, in accordance with the Thompson (supra) principles regarding the balance of rights and efforts needed on both parties to find a way to satisfy both.

[103]   As to the implied duty of the employer to insure the safety of its employees, it was argued that the employer necessarily has to establish reasonable and probable grounds for the reasons why it is not satisfied with a medical certificate tendered by an employee as established in Thompson General Hospital v. Thompson Nurses M.O.N.A., Local 6 (1991), 20 L.A.C. (4^th) 129, quoted in Nelsons Laundries Ltd. and Retail Wholesale, Local 580 (1997), 64 L.A.C. (4th) 120:

. . .

Before the employer can place any additional requirements on the employee, it must, in accordance with ordinary principles of fairness, state the grounds of his objection to the medical certificate offered by the grievor and must point out to the employee what it requires before it will permit his return. “If the certificate in itself is not satisfactory, the employee must be advised of that, so that he may either protest reasonableness of the company’s rejection of it, or request a more ample certificate from his doctor. If a further medical opinion is required, then again, the company must advise the employee of that fact. (Re Firestone Tire v. Rober Co. of Canada Limited)”.

. . .

…the right is premised on the employer having reasonable and probable grounds for assuming that the employee is unfit or would present danger to himself, his fellow employees, or to the company property.

. . .

In summary, once an employee produces a medical certificate stating unequivocally that he is fit to return to work, the onus shifts onto the employer to establish that he is not fit to return to work.   If the employer has reasonable grounds on the facts of the case to question the validity or the completeness of the opinion stated in the medical certificate, then it must explain clearly to its employee the reason the medical certificate is not acceptable and what specific information is requested so that the employee can return to its treating physician and obtain the proper information.

. . .

…an employer may not refuse to allow an employee to return to work on the mere possibility of medical problems in the future, although the precise degree of risk that the employer must bear is a matter of some debate among arbitrators and will depend upon the facts of each case.

. . .

[104]   The employer did not provide a substantive reason for its request.   It was a matter of speculation considering that the grievor testified that he had used very little sick leave until that time.   The real intentions of the employer are therefore questionable. Communications from the employer to the grievor had to be clear.   On many occasions, the employer seemed to change its mind, but the onus was on the employer to establish the reasonableness of its rejection of the certificates.

[105]   The grievor argued that his tabling of the August 5, 2004 medical certificate, declaring him fit to return to work, had satisfied the initial onus of proof of capability to perform his duties as stated in Consumer’s Glass and C.A.W. Local 29,   18 C.P.L.S. 171.   In that decision, the Board was of the opinion that:

…if the employer is not satisfied with the medical information contained in the certificate, the employer can require an employee to undergo a medical examination by a physician, not necessarily of the employee’s choosing.   However, in the interest of procedural fairness, and in respect of employee’s right to privacy, … it must, in the very least, state to the employee the grounds upon which it rejects that certificate and indicate what is required in order that the employee may then take steps to satisfy the employer’s concerns by obtaining further information from his or her own physician.  

In other words, the employer must first seek to obtain the required medical information from the employee’s physicians prior to making a request to the employee to undergo an independent medical assessment.  

[106]   That analysis also seemed to indicate that the nature of the work to be performed by the employee, as well as the length of the absence of that employee prior to the return to work would be relevant considerations.   Finally, the grievor pointed out that an important conclusion of that case is that the employer had to have a substantive reason and not mere speculation as to the medical condition of the employee in order to request the independent medical examination.

[107]   In the instant case, the evidence demonstrates that the employer believed that the grievor was in fact abusing his sick leave credits.   Furthermore, the employer wanted to communicate to the grievor, a difficult employee, that compliance with instructions was expected in the future.   In the grievor’s opinion, the employer escalated this issue to whether he was fit to work.  

[108]   When looking at the situation as a whole, it appears that there was a concerted action on the part of management to deal with a difficult employee. It is significant that the employer never communicated to the grievor its concerns about his health and its concern about the fact that the grievor was missing what were considered to be important management meetings. This is supported both by documentary evidence and through testimonies.   A key document in this regard is the employer’s letter of June 10, 2004.   Immediately, there is a threat of discipline.   It is informing the grievor that his third medical certificate will not be accepted because of three similar prescriptions given by two different doctors.   This letter can only be interpreted to communicate the disbelief on the part of the employer as to the grievor’s medical condition.  Then the employer contradicts itself by requiring proof of fitness to return to work, which could only be justified if the employer believed that the grievor’s medical condition was such that he could not perform his duties.

[109]   The second most important letter would be the July 19, 2004 correspondence to the grievor.   It was the first time that the employer mentioned its concern for health and safety.   However, this was pure speculation.   There was nothing before the employer at that point which would allow such a conclusion.   When the grievor offered a compromised solution by agreeing to a mutually designated physician, the offer was flatly refused.   A few days later, he received a five-day suspension.   Clearly, this is an indication of the building of the disciplinary case. The employer’s motivations are suspicious.

[110]   Another indication that the employer was not concerned about the grievor’s health is that it never offered him the opportunity to exhaust his sick leave.   His vacation leave was even refused and his travel to an international conference was denied. From the grievor’s account, as of June 10, 2004, and over the following year, he was threatened with discipline 40 times, insubordination 30 times, and termination of his employment 10 times.

[111]   When testifying, all managers agreed that Dr. Grover’s workload was unusually heavy.   However, no real offers were made to assist him.   The grievor testified that he was meeting all of his responsibilities and duties during the period from January to June 2004 and this was never contradicted, except for his lack of attendance at management meetings. The request for an independent medical examination in the grievor’s mind was only a pretext to bring him into line as a manager and keep him away from the workplace while changes and reorganization were taking place .  

[112]   More than one witness testified that the employer did not know what Dr. Grover’s medical condition was.   That is evidence that the employer was speculating as to his medical condition and as such, was not justified in its request and instructions to put the grievor on a no work, no pay status.

[113]   The grievor concluded that the actions of the employer can only be qualified as disciplinary and that I should reject the objection. The grievor requested that he receive his back-pay from July 21, 2004, to date, that he be reinstated with full benefits and accumulated sick leave and that I remain seized to determine further remedies.

Reply

[114]   In its rebuttal, the employer pointed out that it had been consistent and up front in telling the grievor the reasons for its request for an IME and, while recognizing his right to refuse his consent, informed him of the consequences.   Ultimately, the grievor would be terminated for innocent absenteeism.   The employer kept constant correspondence with the grievor and in so doing, provided due process.   The employer also tried to obtain more information from the grievor’s physician, but was in fact denied access.   In conclusion, no matter what efforts or accommodation were made to meet the concerns of the grievor, there was no progress.

Reasons

The matter of jurisdiction regarding the aspects of the case relating to human rights issues

[115]   The grievor testified to human rights issues underlying the situation he finds himself in. The documentation presented before me also refers to such issues. Therefore, I asked the parties to submit representations in this regard.

[116]   They both confirmed that they did not object to the jurisdiction of this Board based on this reason. Having reviewed the evidence and representations, as well as jurisprudence submitted in this matter, I conclude that human rights issues are not the essence of the two grievances before me. Based on the now well established jurisprudence of this Board, the issues before me qualify as being principally a labour relations matter and of full jurisdiction of this adjudicator, subject to the other jurisdictional issue dealt with below.

Preliminary objection and merits

[117]   As mentioned in the introduction of this decision, the employer raised a preliminary objection to the jurisdiction of this Board, based on subsection 92(2) of the PSSRA. It was submitted that both grieved measures were not of a disciplinary nature but of an administrative one. This objection was taken under reserve and I will turn my attention to it, as its determination will dictate whether or not I need to address the fundamental issues of the case.

[118]   After a careful review of the documentation and testimonies, I have come to the conclusion that I must reject the objection. The measures initiated by the employer regarding the cessation of salary and the designations of a “no work, no pay” status as well as “leave without pay for other reasons” can only be characterised as disciplinary in nature in the instant circumstances. I will provide reasons for this conclusion with the further analysis of the merits of the case before me.

[119]   The difficulty in this case, and probably the source of confusion for the grievor, is the fact that the employer appears to have made it a matter both of administration and of discipline. To add to this confusion, the employer chose to challenge both the medical certificates tendered by the grievor in June 2004, as well as his fitness to return to work under the Occupational Health and Safety Policy. The onus is different in each case, as argued by the grievor.

[120]   Before the date of this hearing, the employer rescinded the disciplinary suspensions and the two grievances in relation to them were withdrawn with the caveat that the facts relating to them could still be factored in the present case. The grievances before me concern only the grievor’s status. However, the simple fact that the employer characterised its actions as administrative by referring to an administrative policy or prerogative does not automatically make them so. An analysis of the facts and context will be determinative.

[121]   Therefore, the questions before me are: What was the character of the employer’s actions? Was the grievor suspended indefinitely as a result of his insubordination and failure to attend the medical assessment or is he in a “no work, no pay” and “leave without pay for other reasons” status as an administrative consequence of his refusal to attend a medical examination by a physician other than his own? A review of the correspondence and the events is telling.

[122]   On June 10, 2004, the grievor was told that his latest medical certificate dated June 1, 2004, would not be accepted. The reasons provided were twofold: one, this was the third certificate produced since February 2, 2004, prescribing the same treatment and, secondly, this last one was from a different physician. He was instructed not to present himself to work until an assessment by a physician of the NRC’s choosing had determined both his “current medical situation as well as [his] medical capacity to resume [his] duties and responsibilities” and that Dr. Hackett was apprised of the results (Exhibit E-1, tab 10).

[123]   Following the grievor’s return to work on June 28, 2004, Dr. Hackett wrote to the grievor the next day (Exhibit E-1, tab 14), telling him that failure on his part to adhere to his instructions not to report to work until he had attended the scheduled medical assessment would be considered insubordination and could result in disciplinary action. Having also been informed of the grievor’s refusal to attend the assessment scheduled for June 30, 2004, Dr. Hackett advised the grievor that failure to undergo the next scheduled assessment “will also be considered insubordination and further disciplinary action may follow”.

[124]   In fact, Dr. Hackett was telling the grievor that a failure to adhere to an administrative measure would be considered insubordination, and therefore, a disciplinary matter. Only later on did the employer characterise its actions as also administrative.

[125]   In response to the June 10, 2004 letter, the grievor, through his attorneys, requested, on June 18, 2004 (Exhibit E-1, tab 12), that he was to be provided with a specific indication as to why the June 2004 medical certificate was deficient. He reminded the employer that in the event that it questioned any aspect of the certificate, the employer “must point to a clear and compelling problem with the certificate or the physician’s assessment in order to request the employee to submit to another examination”. This response also provided an explanation as to the reason why the medical certificate was signed by a different physician, his regular physician being unavailable that day. It also asserted that this other physician was provided with relevant information in the course of the examination, including the previous certificates.

[126]   On July 7, 2004, Dr. Hackett reiterated (Exhibit E-1, tab 15) that failure to attend the next appointment scheduled for July 8, 2004, would be considered “a further act of insubordination”. This letter, however, had an additional paragraph and, in a separate statement, the grievor was also told that if he failed to attend the next scheduled appointment, “[his] absence from the workplace [would] then be considered a ‘no work, no pay’ situation and [he would] not be paid until such time as this medical assessment [had] been completed” and Dr. Hackett had been apprised of the results.  

[127]   Having received no further explanation as to the reasons for the request, the grievor failed to attend the appointment and a three-day suspension was imposed on July 19, 2004 (Exhibit E-1, tab 20). He was further advised that failure to follow instructions could result in disciplinary action, including termination of employment. The same day (Exhibit E-1, tab 22) he was also notified of the rescheduling of the assessment for July 21, 2004. He was informed that: “failure to attend this rescheduled assessment will be considered a further act of insubordination and disciplinary action may follow”.

[128]   Furthermore, he was again notified, in a separate statement: “I further inform you that failure to attend this assessment will result in a ‘no work, no pay’ situation and you will not be paid until such time as this medical assessment has been completed and I have been apprised of the results”. For the second time, the employer made a distinction between the two avenues of recourse it was following.

[129]   On July 28, 2004 (Exhibit E-1, tab 26), the grievor was notified that having failed to attend the latest assessment, he was then in “a no work, no pay” situation effective July 21, 2004. The letter then went on to notify the grievor that: “In addition, under the authority delegated to me I am suspending you without pay for a period of five days which will be served upon your return to the workplace”. Again, the employer appeared to be pursuing two different avenues, including progressive discipline.

[130]   There followed numerous correspondences and attempts on both sides to come to some agreement. The grievor put forward some options and requested and obtained meetings. The employer provided the Policy on which it had based its request and offered the grievor the opportunity to amend his consent to the examination. There were many discussions regarding the independence of the physician. However, this latter issue is not, in my opinion, relevant to the determination of this case.

[131]   Then, the grievor was advised by Dr. Woodsworth, on December 1, 2004 (Exhibit E-1, tab 64), that the previous disciplinary measures were rescinded. He was further advised that the situation could not continue indefinitely and that there would be no alternative but to terminate his employment due to sustained absence from the workplace. This message was repeated by Dr. Woodsworth on January 11, 2004 (Exhibit E-1, tab 68). It appears from this later correspondence that the NRC was now exclusively considering termination of employment for absenteeism.

[132]   In the meantime, Dr. Grover was still offering options to the employer in order to try to resolve the situation. On February 24, 2005 (Exhibit E-1, tabs 76 and 77), he offered, without success, the following options:

…

1. I am willing to allow NRC to communicate with my physician as per the draft of the covering letter, questions and consent that were attached with my letter of February 3, 2005.
2. I am willing to provide NRC with a medical certificate from my physician based on my recent medical visits, including an annual medical examination.
3. I am willing to undergo a medical examination performed by a physician of my choice who is not my regular physician.
4. I am willing to undergo a medical examination performed by a physician who is considered to be independent both by myself and the NRC as I have previously proposed.
5. I am willing to undergo the “Independent Medical Evaluation (IME)”, if NRC demonstrates to me how the “IME” is justified as per subsection 6.13.2(b) of the NRC Occupational Health and Safety policy and provides me with the evidence, if at all, it purports to have in its possession regarding my ability to perform my job without creating a safety risk to myself or others.   I note that NRC has previously informed me that subsection 6.13.2(b) of the NRC Occupational Safety and Health policy governs the “IME”.

[Sic for the whole citation]

[133]   Even more recently, on April 7, 2005 (Exhibit E-1, tab 80), Dr. Simpson advised the grievor that he would remain in a “no work, no pay” situation, considering his refusal to attend the latest scheduled IME.   While recognising his right to refuse to submit to the IME, he confirmed that the situation could not continue indefinitely and that the grievor’s employment could be terminated due to his continued absence from the workplace.

[134]   In my view these measures were clearly disciplinary in nature, as appears from these correspondences with the grievor and the overall context and attitude of the employer. The grievor was also found to be insubordinate by not attending management meetings. He was found to be insubordinate by not cooperating and by resisting preparing a performance review for himself. He was perceived to be uncooperative, as regards the reorganisation of his section and of the Institute itself, as implemented by Dr. Hackett. However, when Dr. Grover asked to be allowed back to work, in order to be consulted about the changes to the structure of the Radiation Standard and Optics Section, on September 17, 2004 (Exhibit G-14, page 107), the employer still denied him access or a means to contribute to the process.

[135]   Confusing the two issues, validity of the medical certificate and fitness to work, should not serve as a determination in favour of the administrative nature of the actions of the employer.   The measures were used to bring compliance on the part of the grievor. The fact that the instructions were based on administrative prerogatives does not change the fact that discipline was imposed on the grievor as a result of his failure to comply with the administrative request. The grievor sustained an important pecuniary sanction, as he was in fact suspended indefinitely by being forbidden to present himself at work.

[136]   The evidence points to a conclusion that the employer did not have sufficient reasons to request such an examination. It was admitted that the employer did not know what the medical situation of the grievor was. It was speculating.   Furthermore, it was in a contradictory position, both questioning the grievor’s illness and medical certificate and at the same time suspecting that his health was so deficient that he should not present himself at work until the employer was reassured as to his fitness to work. The grievor’s responsibilities did not warrant such a measure, as opposed to an employee with suspected back problems who is expected to lift heavy equipment regularly.

[137]   Furthermore, there was no evidence adduced by the employer that Section 13 of Chapter 6 of the NRC’s Occupational Health and Safety Policy did in fact apply in the circumstances. The employer did not demonstrate that there was “evidence sufficient for management to be concerned over the ability of Dr. Grover to perform his jobs without creating a safety risk to himself or others” (emphasis added). The grievor asked for clarification in this regard the moment he received a copy of the policy. He was not provided with any further explanation other then the ones already provided in July.

[138]   It is also very significant that concerns for the grievor’s health were never addressed with him (this was admitted by all managers) and that there is no evidence that he was ever offered an opportunity to exhaust his sick leave. His request for vacation leave was also denied (Exhibit E-1, tab 30). Also significant, is the fact that the grievor was never told that his absence from management meetings was an important concern to Dr. Hackett.  

[139]   Finally, the 12 reasons provided in the December 1, 2004 letter, some five months later, from Dr. Woodsworth, do not shed any more light on the concerns of the employer or provide any more reasonable or probable grounds for suspecting that the grievor would be a source of danger to himself or others. In fact, these twelve points do not address the policy or explain how it is relevant to the situation at hand.   Points one to three are a reiteration of the original reasons provided in the June 10, 2004 letter. The grievor had addressed some of these concerns and was unable to obtain clarification on the reasons why the employer remained dissatisfied with his responses. Furthermore, they do not, in my opinion, constitute reasonable grounds to question his fitness to return to work, considering the evidence that the grievor was fulfilling all his duties, except for attendance at the management meetings.

[140]   Points 4, 5 and 11 of that same letter, were not raised at the time. However, Dr. Hackett denied that abuse of sick leave was ever a consideration for his decision, even if he was aware that the greivor was absent on the days of management meetings. As to point 6, an explanation had been provided, both with regard to the timing of this appointment which had appeared to have corresponded with a disciplinary measure issued the same day, and the reason for the second physician, including the information provided to him at the time. Point 7 is ignoring Dr. Grover’s numerous efforts to meet and resolve the situation. Points 8 to 10 are post facto elements, some of which other managers have denied were part of the decision making process in July 2004. Finally, the employer never conveyed to Dr. Grover the elements contained in point 12 before that day, as admitted by managers.

[141]   The employer had many other options and ignored the usual process for the questioning of a tendered medical certificate. Dr. Grover never had the opportunity to provide further information from his physicians because he could never get a clear answer from the employer as to what it was looking for.

[142]   Furthermore, the request for an independent medical examination to determine fitness to work should be considered only in exceptional and clear circumstances. The justification for it should also be fully disclosed to the employee (Canadian Labour Arbitration, 3 rd Edition, 7:6142). There were no exceptional circumstances in this case. Again, Dr. Grover was performing his duties adequately all along. The concerns expressed by the employer were neither serious nor reasonable; managers admitted that they were speculating as to the grievor’s health. This is not sufficient grounds for such a request, as stated in Campbell (supra):

An employer who has serious reasons to believe that the physical or mental condition of an employee is such that the employee cannot adequately perform the duties of his or her position, or who has reason to believe that the condition of the employee may affect the health and security of others, may require that the employee submit to a physical or psychiatric medical examination by a specialist of its choice…

[Emphasis added]

[143]   Discipline was without a doubt unwarranted according to the Shell Canada Products Ltd. and Canadian Association of Industrial Mechanical & Allied Workers, Local 12, 14 L.A.C. (4th) 75 decision. The Board analysed the consequences of a failure to attend an independent medical assessment and concluded: “The reason that it is not insubordination is that the employer is not entitled to order the employee to do it. Furthermore, it is difficult to see how it could be construed to be a defiance of the authority of the employer if the primary motivation of the employee is only to preserve a personal confidence”.

[144]   Having concluded, based on the evidence and jurisprudence, that the actions of the employer are to be characterised as disciplinary and that discipline was unwarranted since the grievor was not provided with reasonable justification for such a request, I make the following order:

Order

[145]   The grievances are allowed. The grievor is to be reinstated immediately and compensated for salary and all benefits retroactively to July 21, 2004.

[146]   I will remain seized for a period of 90 days from the date of this decision to address any matters relating to its implementation.

October 3, 2005.

 

 

Sylvie Matteau,
adjudicator