FPSLREB Decisions
Decision Information
Rehabilitation - Cost - Obligation to pay - grievor had been suspended and subsequently discharged for substance abuse - adjudicator ordered reinstatement subject to condition that grievor have himself assessed by a competent medical authority approved by Health and Welfare Canada, follow any course of rehabilitation and treatment proposed and that when grievor certified to be drug-free and fit to resume his duties he was to be reinstated and for a period of one year after reinstatement employer may request grievor to provide satisfactory evidence that he is drug-free (reported at (1995) 28 PSSRB Decisions 25) - adjudicator remained seized in the event of difficulties in the implementation of the award - question arose as to whether the grievor or the employer was responsible for the cost of the required treatment - grievor referred the matter to the adjudicator requesting a determination that the cost of the treatment is the responsibility of the employer - adjudicator found that there is no provision in the Public Service Staff Relations Act or in the Canadian Human Rights Act that provides an inherent right on the part of an employee to demand the employer underwrite the medical costs arising out of a disability for a non-work related illness - adjudicator concluded that the costs associated with the rehabilitation of the grievor, in the absence of any contractual obligation to the contrary, is the responsibility of the grievor and not that of the employer. Entitlement determined.
Decision Content
Files: 166-2-26327 and 26328 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN DONALD GUNDERSON Grievor and TREASURY BOARD (Revenue Canada - Customs and Excise)
Employer
Before: P. Chodos, Deputy Chairperson For the Grievor: Joe Ahrens, Labour Relations Officer, Professional Institute of the Public Service of Canada
For the Employer: Ronald Snyder, Counsel (Decision rendered without a hearing)
Decision Page 1 DECISION The grievor had been suspended and subsequently terminated from his employment with Revenue Canada, Customs and Excise effective November 22, 1994. This matter was the subject of two grievances which were referred to adjudication. In a decision dated September 12, 1995 the undersigned issued the following order: ... the employer is directed to reinstate Mr. Gunderson in his position; however, the employer is not required to have the grievor resume his duties until he fulfills the conditions outlined below; the grievor shall be considered as being on leave without pay, except to the extent that he utilizes any sick leave or vacation leave currently to his credit. The conditions respecting his resumption of duties are as follows:
(a) the grievor will have himself assessed by competent medical authorities approved by Health and Welfare Canada; if this is not acceptable to the grievor, then the parties will choose a mutually acceptable health care professional for this purpose;
(b) the grievor shall follow any course of rehabilitation and treatment proposed by the health care professional; he shall provide the employer satisfactory evidence that he is attending any programs that have been prescribed for him and shall consent to the disclosure to the employer of information regarding his rehabilitation and treatment;
(c) where the health care professional certifies that he is drug-free and fit to resume his duties; the employer shall forthwith allow Mr. Gunderson to resume his duties;
(d) for a period of one year from the resumption of his duties, the employer may request the grievor to continue to provide satisfactory evidence that he continues to be drug-free; the employer is free to impose, during the one-year period, what restrictions it sees fit in respect of the grievor's access to confidential information.
I make no order as to retroactive compensation, as I believe the grievor bears responsibility for his failure to provide the employer with satisfactory evidence that he had been completing an appropriate course of treatment and rehabilitation. I shall remain seized of this matter in the event that the parties encounter any difficulties in implementing this award.
Public Service Staff Relations Board
Decision Page 2 In a letter dated February 15, 1996 the grievor's representative advised that "An issue has arisen with respect to the payment of costs associated with the treatment program."; Mr. Ahrens sought my intervention to resolve this matter. By letter dated March 18, 1996, the grievor's representative made detailed submissions concerning the events and issues which in his view, are relevant in respect of the implementation of this award. In light of the response from the employer's counsel, as set out in Mr. Snyder's letter of April 18, 1996 (see below page 15), for the purpose of this decision it is assumed that the facts as outlined in Mr. Ahrens' submissions of March 18, 1996, and the accompanying documentation, are not in dispute. It should be noted that neither party has suggested that there is a need for a further hearing on this matter, nor has any such request been made.
The following are the submissions made by Mr. Ahrens pursuant to his letter of March 18, 1996: In the decision dated September 12, 1995, reinstatement of the grievor, Donald Gunderson, was ordered subject to the following terms:
...... CHRONOLOGY OF EVENTS AND DESCRIPTION OF EXHIBITS
Shortly after receipt of the decision in this matter, I spoke with Colleen Trent, Human Resources Consultant, Revenue Canada, Edmonton, Alberta. Through several conversations, agreement was reached with respect to the appointment of a mutually agreeable physician, Dr. Ian Scott, to fulfil the medical aspects of the conditions contained in the Decision (i.e. assessment, drug tests and treatment). I advised Dr. Scott of his appointment and he prepared to commence his involvement.
On November 20, 1995, I received a call from Dr. Scott. He advised that he had received no notification from Revenue Canada nor Health Canada regarding his retention or acceptance of associated costs. He subsequently contacted Dr. E.R. Jorundson, Occupational Health Physician, Health Canada, in this regard. Regrettably, this caused a delay in the commencement of treatment.
Public Service Staff Relations Board
Decision Page 3 Tab 1 On November 23, 1995 a letter was sent to Dr. Scott from Ms. Trent. In this letter, Ms. Trent informs Dr. Scott that the employer will pay the costs associated with the assessment, random drug screening and treatment. She mentions the employer's perception that the latter is the patient's responsibility, but nevertheless indicates that the employer is prepared to "cover the cost of the treatment process at this time".
The only reference made to the "patient's responsibility" is in reference to "the actual treatment". That treatment is clearly in reference to an in-residence program.
It is noteworthy and very telling that Ms. Trent expresses in her letter, the employer's preference of treatment that should be provided to the grievor. In this respect, she writes:
While we agree that he should have the treatment that would benefit him the most, if both programmes are equally effective, the Ponoka cost of $10.00 per day for 28 days is more reasonable that (sic) the Grande Prairie cost of $4500 for 28 days. We will wait for your recommendation on this. (emphasis mine)
On behalf of the department, Ms. Trent has taken the liberty of assuming the role of the client or at least the one who is paying the bill. She obviously considers that not only is she entitled to input, but that the department will make the medical decision based upon Dr. Scott's recommendation. Whether the department believes that they are the client or if they are simply operating from the premise that "He who pays the piper calls the tune", the result is the same. They can not "call the tune" now and offload the cost associated with it to the grievor at a later time.
What seems clear from the outset is that the department considered the financial responsibility of the Decision theirs. As will be seen, this premise changed through the further exchange of correspondence.
Tab 2 On November 24, 1995, Ms. Trent wrote to Mr. Gunderson. In her letter, the grievor is notified that the employer will pay the costs associated with assessment and treatment. She adds "it is possible that it may be determined at some time in the future that you should pay all or a portion of these costs". She provides no idea of the circumstances under which repayment may or may not be required.
Public Service Staff Relations Board
Decision Page 4 Although the costs of assessment, drug screening and treatment are mentioned, similar to Tab 1, only the latter is referred to as a patient's responsibility.
Following what seems to be a clear approach by the employer (i.e. that assessment and drug screening costs are not subject to recovery, but treatment may be) the letter becomes vague, as follows:
The adjudicator did not stipulate that the employer will be responsible for either the assessment costs or the treatment costs. However, in order not to delay any treatment Dr. Scott may prescribed (sic) for you, Revenue Canada is prepared to pay for the treatment at this time. It is possible that it may be determined at some time in the future that you should pay all or a portion of these costs. (emphasis mine).
In December, 1995, I spoke with Dr. Scott. At that time, he advised that Mr. Gunderson's progress was good. He felt that an in-residence program may not be necessary.
Tab 3 On January 15, 1996, I wrote to Ms. Trent. In light of the uncertainty of the letters referred to above (Tabs 1 and 2), I sought clarification of the employer's position with respect to the matter of potential recovery of each of the costs of assessment, drug tests, and treatment. In addition, in light of my conversation with Dr. Scott, I requested concurrence of the employer that the outstanding matters only be referred to the P.S.S.R.B. if and when an actual need arose.
Shortly after the sending of the above-referenced letter to Ms. Trent (Tab 3), I was notified by Dr. Scott that treatment at the Business and Industry Clinic at Grande Prairie, Alberta was prescribed. This is also referred to as the Northern Addictions Centre. The cost of this 28 day in-residence treatment program is $4500.
In light of the uncertainty of the content of Tabs 1 and 2, I had hoped, as a result of this letter, to achieve a clear understanding of which cost(s) were at issue. In this regard, I wrote:
Notwithstanding the foregoing, if I understand correctly, it is the department's intent to pay for the cost of assessment and random drug screening without any potential of recovery of these costs. It is further my understanding that treatment protocol is covered by Alberta Health Care. Thus, it appears to me that the only potential cost subject to recovery
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Decision Page 5 would be attendance at a treatment program, such as that offered in Ponoka or Grande Prairie, Alberta.
I asked the department to confirm this understanding. Tab 4 On January 19, 1996, Henry Lee, Interim Director, Edmonton Tax Service, Revenue Canada, wrote to Mr. Gunderson.
This letter seeks to confirm the issue, but makes it even more confusing. Mr. Lee writes, in part:
As mentioned in our letter to you dated November 24, 1995, Revenue Canada is prepared to pay for the assessment and treatment costs at this time. (emphasis mine)
Yet, the letter of November 24, 1995 in fact makes no mention of a possible recovery of the assessment cost. That letter reads, in part:
...Revenue Canada is prepared to pay for the treatment at this time.
Mr. Lee also wrote: Failure to maintain complete abstinence could result in the termination of your employment with Revenue Canada and full recovery of all costs paid on your behalf.
This is the first time that the department has enunciated a position regarding future termination. Reference to the cost of drug screening is specifically excluded. Different from previous correspondence (Tabs 1 & 2), the cost of assessment has been added to the costs subject to possible recovery.
Tab 5 On January 19, 1996, Ms. Trent wrote to me. She included a copy of the above referenced letter (Tab 4).
Her letter is specific to assessment and treatment costs. Since the department's position regarding assessment, drug screening and treatment costs were specifically requested, it seems clear that the department does not intend drug screening costs to be subject to possible recovery.
Similar to Mr. Lee's letter to Mr. Gunderson, Ms. Trent clarifies the department's position as follows:
The Adjudicator did not stipulate that the employer will be responsible for either the assessment costs or
Public Service Staff Relations Board
Decision Page 6 the treatment costs. It is the Department's position that failure to maintain complete abstinence during the treatment period and for a period of one year from the resumption of duties, could result in termination of employment and full recovery of all costs paid on Mr. Gunderson's behalf. (emphasis mine)
Tab 6 On February 15, 1996 I wrote to Ms. Trent. This letter served to confirm that we do not accept the condition imposed unilaterally by the employer providing for automatic termination in the event of a breach of abstinence. The letter further served to inform the employer that it was our intent to place the matter of costs before the P.S.S.R.B. for determination.
Tab 7 Treasury Board Policy entitled "Employee Assistance Program", Chapter 1-2, Occupational Safety and Health.
This policy, discussed further below, provides a clear mandate and responsibility to departments to provide for medical assessments. This policy particularly emphasizes the assistance that is to be provided in relation to substance abuse issues.
Tab 8 Treasury Board Policy entitled "Occupational Safety and Health", Chapter 1-1, Occupational Safety and Health.
Similar to Tab 7, this policy similarly provides a mandate and responsibility to departments to provide for medical assessments.
Tab 9 P.S.S.R.B. Decision - Donald Gunderson and Treasury Board (Revenue Canada - Customs and Excise)
Tab 10 The Canadian Human Rights Act. The provisions of the Canadian Human Rights Act must be considered in relation to decisions made in the jurisdiction for which it applies. As discussed below, the rule established by the employer in respect to the recovery of costs are in violation of this Act since it, amongst other things, differentiates adversely in relation to Mr. Gunderson's employment. The duty to accommodate a disabled employee flows from this Act, and has particular relevancy to this matter.
Public Service Staff Relations Board
Decision Page 7 ------------ The issue of the propriety of subsequent discharge is one which need not be determined as it is academic and (sic) this point, at (sic) will hopefully remain that way. I feel it only fair to mentioned (sic) my view in order that the employer not be taken by surprise at a later time. It seems that this sort of condition is one which an adjudicator can and does make as illustrated in some of the decisions inside the Decision that Deputy Chairperson Chodos referred to such as Re: Powrmatic du Canada Ltee and Syndicat des travailleurs et travailleuses de Powrmatic and Re: MacMillan Bathurst Inc., Whitby Plant and International Woodworkers, Local 242. Deputy Chairperson Chodos has chosen not to include any such provision. The employer is not free to include such a provision on their own. In any event, this is not a matter that needs to be dealt with at this juncture. Should that occurrence arise, it will be dealt with at the time through the provisions of the Public Service Staff Relations Act.
------------ It appears that the department has clarified the issue of drug screening costs through Tabs 4 and 5 such that it will not be the subject of recovery.
It also seems that assessment and treatment costs will only be recovered upon termination of employment in the case of a breach of abstinence during the period extending to one year following reinstatement.
The issues have become more clear through the exchange of correspondence, however, the department's position remains unacceptable, for the following reasons.
Condition (a) The grievor will have himself assessed by competent medical authorities approved by Health and Welfare Canada; if this is not acceptable to the grievor, then the parties will choose a mutually acceptable health care professional for this purpose;
Issue Condition (a) has been partially resolved. In this regard, the parties and Health Canada agreed upon the appointment of Dr. Ian Scott, M.D. to carry out the medical aspects of the order.
The cost of the medical assessment remains at issue. The employer has paid this cost, however the issue of whether the employer intends to recover this cost remains unclear. A
Public Service Staff Relations Board
Decision Page 8 review of the correspondence would leave the impression that the employer did not intend to propose recovery of the cost of assessment (Tabs 1 & 2), until clarification was requested (Tab 3) whereby their position in this regard changed (Tabs 4 & 5).
Position of the Grievor The medical assessment of Mr. Gunderson should not be subject to recovery.
Argument This condition seems to have a twofold purpose. One is have a medical assessment to serve to commence the process of treatment and rehabilitation. The other is to inform the employer of the grievor's condition.
The medical authority is to be chosen by the employer's medical agent, Health Canada. Some room is left for the input of the grievor, but subject to the approval of the employer.
Since the selection of a physician was to be done at the prerogative or approval of the employer, the financial obligation must also rest with the employer. Tab 1 illustrates the extent to which the department believes that they are the client, or at least the decision maker.
If this is not so, the employer would have the legitimate right to select or approve a physician who charges exorbitant rates with the knowledge that the grievor, who has been without income for a period of almost 1 1/2 years, would be required to pay these costs.
On behalf of Revenue Canada, and all other departments, the Treasury Board of Canada has already accepted responsibility for medical assessments. The Treasury Board policy entitled "Employee Assistance Program" (Chapter 1-2, Occupational Safety and Health) (Tab 7) provides for the following at page 4:
Responsibilities On request, Health Canada, through the Public Service Health Program, shall:
− provide or arrange for medical diagnosis or initial counselling on alcoholism or other health problems and refer clients to community agencies for subsequent treatment;
Public Service Staff Relations Board
Decision Page 9 Similarly, the Treasury Board policy entitled "Occupational Safety and Health" (Chapter 1-1, Occupational Safety and Health) (Tab 8) describes The Public Service Health Program as follows at page A-1:
This program is administered by Health and Welfare Canada under delegation from the Treasury Board. The Public Service Health Program is a corporate resource and should be used by departments accordingly. Its services are essentially preventative and they should not interfere with or replace those available through private physicians and community health agencies.
The program deals with: − health assessments of employees and emergency medical services;
Revenue Canada and its medical agent, Health Canada, have the ability and indeed the mandate and responsibility to provide resources to its employees in matters of fitness. The policy regarding Employee Assistance stresses the particular applicability it has to matters of substance abuse. The required assessment is for the benefit of the department and their employee, Mr. Gunderson.
If the Employee Assistance Program had been made available to Mr. Gunderson when the employer first became aware of his substance dependency, it is doubtful that the recovery of the cost of medical assessment would have been threatened. Mr. Gunderson should not be treated differently now because the employer mishandled the situation at the beginning.
Condition (b) the grievor shall follow any course of rehabilitation and treatment proposed by the health care professional; he shall provide the employer satisfactory evidence that he is attending any programs that have been prescribed for him and shall consent to the disclosure to the employer of information regarding his rehabilitation and treatment;
Issue Point (b) is resolved to the to the (sic) extent that Mr. Gunderson is attending individual counselling with Dr. Scott. Dr. Scott has prescribed a 28 day in-residence treatment at the Business and Industry Clinic at Ponoka, Alberta. The cost of this treatment if $4500. The employer has promised to pay this cost, also subject to possible recovery.
Public Service Staff Relations Board
Decision Page 10 Position of the Grievor The cost of treatment should not be subject to recovery. Argument Mr. Gunderson must, as a condition of reinstatement, follow all treatment prescribed by the physician appointed/approved by the employer. All medical evidence and information regarding his attendance; rehabilitation and treatment must be disclosed to the employer.
In light of the fact that Mr. Gunderson is limited to input only of the selection of physician and the treatment to be followed, it is unfair that he be required to shoulder the cost.
Mr. Gunderson can not say "no" to this treatment. Mr. Gunderson can not decide whether to attend based upon whether or not he can afford it.
Through the period of suspension followed contiguously by discharge until reinstatement of salary pursuant to the order of the P.S.S.R.B., Mr. Gunderson remained without salary for almost 1 1/2 years. His financial situation is critical. Along with recovery related to his addiction, Mr. Gunderson has also just begun the process of financial recovery.
If the employer were to decide to recover the cost in the near future, Mr. Gunderson would be financially devastated. This could only serve to impede his medical progress. Tabs 1 and 2 make no reference to when the employer might pursue recovery of these costs. Tabs 4 and 5 seem to refer to a possible recovery occurring at the time of a future discharge. We submit that this would be the worst possible time to shoulder an employee with a financial burden. Additionally, a subsequent discharge may similarly be without cause. A matter which can only be determined through the grievance/adjudication process.
Between the approximate months of May, 1994 until October, 1995, Mr. Gunderson was without salary due to his suspension and discharge. If he is again dismissed, it may again be without cause. Nevertheless, he would be without salary once again for a similar length of time. It is unconscionable that it would be at that precise juncture that the employer would attempt its recovery.
If Mr. Gunderson were any other employee who the department agreed to assist, it is very doubtful that recovery of costs associated with medical treatment would be threatened.
Public Service Staff Relations Board
Decision Page 11 It is important to keep in mind that contrary to the purpose of the Employee Assistance Program and the general obligations an employer has to assist, not penalize, disabled employees, this employer did not provide any assistance to Mr. Gunderson when his disability came to their attention. Instead, suspension followed by termination of employment was actioned. Deputy Chairperson Chodos makes reference to this in his decision at page 24, as follows:
The other side of the coin is the right of an employee not to be terminated without just cause, and the obligation owed to a long-term employee who had over a number of years faithfully performed his responsibilities on behalf of the employer, and then finds himself in a condition where he is unable to continue to perform those responsibilities at least for a temporary period. In this context, it should be noted that arbitrators and others have widely accepted that drug addiction is an illness or disability requiring treatment and rehabilitation (see for example Brown and Beatty, Canadian Labour Arbitration, paragraph 7:3210).
And at page 25: I am surprised that Ms. Luit, who had responsibility for the Employee Assistance Program, apparently did not accept that drug addiction is an illness which requires treatment.
And at page 27: The evidence however demonstrates that the employer did nothing to assist the grievor in the rehabilitation process; nor did management even clearly inform the grievor as to the consequences of failure to follow the course of treatment. I find it astonishing, for example, that there was no written documentation provided to Mr. Gunderson or his representative outlining the steps which the employer expected him to take in order to satisfy the employer that he may be able to resume his duties in the near future, and the consequences that would flow from failure to adhere to such conditions.
And finally at page 31: I must weigh these considerations with my conclusion that the employer to date has made very little effort to attempt to accommodate the grievor's disability, nor, as noted above, has it clearly conveyed to Mr. Gunderson its expectations and requirements concerning his own efforts to rehabilitate himself.
Public Service Staff Relations Board
Decision Page 12 The employer did not accommodate Mr. Gunderson, their long-term disabled employee. Had accommodation, rather than suspension and termination, been chosen by the employer, Mr. Gunderson would have had the opportunity to recover and return to his role as a productive member of the workforce.
In the face of an adjudication decision directing the reinstatement of the grievor subject to several conditions, the employer is doing the bare minimum in terms of accommodation. If the employer refused, outright, to pay any costs associated with the conditions specified in the Decision, it would be clear that they are again failing to accommodate the employee. By paying the costs but threatening to recover some or all of them at some point, the level of accommodation is marginally more than it has been all along. Even this level is nowhere near the point of undue hardship.
If Mr. Gunderson fails to achieve and maintain fitness for work it will not be for lack of commitment or effort on his part. In this regard, I have recently been advised by Dr. Scott that Mr. Gunderson has completed the four week program and has agreed to voluntarily remain in the program for an additional week. It seems that this employer who initially penalized the grievor for having an illness in the first place, is now intending to penalize him if, in their view, he is unable to successfully achieve fitness. This is akin to an employer agreeing to pay the costs associated with chemotherapy for a cancer patient, subject to the recovery of those costs if the cancer is not successfully defeated.
Clearly, the employer continues to fail to understand Mr. Gunderson's illness and continues to desire to discipline him. The issue is less the employer's specific obligation to pay for medical costs as it is their ability to recover amounts that they have already agreed to expend for this purpose.
We ask that this matter be determined such that the employer is deemed to be responsible for the costs associated with the conditions with no provision for recovery of these costs.
Condition (b) where the health care professional certifies that he is drug-free and fit to resume his duties; the employer shall forthwith allow Mr. Gunderson to resume his duties;
Issue Mr. Gunderson is not yet fit to resume his duties. However, this condition, similar to condition (d) contemplates drug
Public Service Staff Relations Board
Decision Page 13 testing. A review of the correspondence would seem to indicate that the employer is not contemplating any recovery of the cost of drug testing.
Position of the Grievor The cost of drug tests and fitness to work certificate should be paid by the employer and not subject to recovery.
Argument The employer has the right to be satisfied as to Mr. Gunderson's fitness to work. However, since the purpose of this certification is to satisfy the employer, the cost should be theirs as well. Put a different way, Mr. Gunderson knows whether he is drug-free. The results of the tests will tell him nothing he does not already know.
I am advised by Dr. Scott that drug testing for clinical purposes are covered by Alberta Health Care. Therefore, if the grievor's physician has any need for testing, no cost to the patient or employer would be incurred.
Drug testing for the purpose of reporting to an employer is not covered by Alberta Health Care. It is only when the employer requires a test that any cost is incurred. Clearly, in this circumstance the cost should be the employer's as well. If this were not the case, the employer could require weekly or even daily tests.
The above applies equally to the fitness to return certificate. I am advised by Dr. Scott that this cost will be negligible.
Condition (d) for a period of one year from the resumption of his duties, the employer may request the grievor to continue to provide satisfactory evidence that he continues to be drug-free; the employer is free to impose, during the one year period, what restrictions it sees fit in respect of the grievor's access to confidential information.
Issue Continued drug testing and the cost associated with this are involved.
Position of the Grievor The cost of continued drug-testing should be paid by the employer and not subject to recovery.
Argument Public Service Staff Relations Board
Decision Page 14 Please refer to (c) above. Canadian Human Rights Act In the recent P.S.S.R.B. decision in Yarrow (Board File 166-2-25034), the adjudicator found that she must apply the law of the land. This was in specific reference to the Canadian Human Rights Act. The same holds true in this matter. Mr. Gunderson suffers a disability, this was determined in Tab 9. The relevant sections of the Canadian Human Rights Act are as follows:
Sec. 2 The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, marital status, disability or conviction for an offence for which a pardon has been granted.
Sec. 3 (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
Sec. 7 It is a discriminatory practice, directly or indirectly. (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
Sec. 25 In this Act, "disability" means any previous or existing mental or physical disability and includes disfigurement and previous dependence on alcohol or a drug.
Due to his disability, Mr. Gunderson must meet the conditions prescribed by Deputy Chairperson Chodos in order [to] continue employment with his employer. To do this, he requires the assistance of his employer. Revenue Canada has the mandate and the means to provide this assistance. In fact, they have already committed to paying all costs. The
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Decision Page 15 rule established by the employer such that costs may be recovered in the event that Mr. Gunderson is unable to overcome his disability to their satisfaction is discriminatory. It is well within the authority of the adjudicator to determine this issue on the basis of the Canadian Human Rights Act.
Summary For all of the foregoing reasons, the grievor requests a determination that the costs associated with the conditions for reinstatement be paid by the employer and not subject to recovery.
On behalf of the employer Mr. Snyder, by letter dated April 18, 1996 responded to the above submissions as follows: I have had an opportunity to review the submission made by Mr. Joe Ahrens in regard to the above-captioned matters. As I understand his position, it is the Employer who must bear the costs associated with the drug-related assessment and treatment of the Grievor, and that he seeks confirmation to that effect from the Adjudicator.
Upon review of the various letters issued by Revenue Canada on this subject, there appears to be some ambiguity as to the financial responsibility it is willing to underwrite in this regard (as noted by tabs 1, 2, 4 & 5 of Mr. Ahrens submission).
For the record, the Department, to date, has borne the total costs associated with both the Grievor's medical assessments and treatment program. More specifically, the Department has paid all of the expenses associated with the Grievor's initial medical assessment as well as those associated with his required random drug screening. Furthermore, it absorbed the total cost of having the Grievor attend a twenty-eight day treatment program in Grande-Prairie during the month of February, 1995. The cost associated with this latter undertaking totalled approximately $4500.00.
It is the intention of the Department to recover this latter amount in the event that the Grievor is unfit to resume his duties within a reasonable period following his treatment or fails to remain drug-free upon the resumption of his duties in accordance with the conditions as set out by the Adjudicator in his decision.
It is recognized that the Adjudicator may seize this matter notwithstanding it not having been explicitly dealt with in the
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Decision Page 16 decision. In making a determination, however, consideration must be given to the following:
(1) There is no requirement, legal or otherwise nor any precedent which requires a Department to bear the costs of financing the treatment of a non-work related illness. Had a nexus been established demonstrating that the Grievor's illness arose directly from his workplace activities, then such disability would have entitled the Grievor to benefits, including treatment coverage pursuant to the Government Employees' Compensation Act;
(2) Contrary to Mr. Ahrens' understanding of Treasury Board's policy with respect to occupational safety and health (as referenced at Tab 8 of his submissions), said policy strictly concerns itself with the Employer's responsibilities vis-Ã -vis workplace safety. The reference to health assessments of employees and emergency medical services noted at page A-2 of the document, is concerned with work-related illnesses and injuries, the assessments and services of which are provided by Health Canada;
(3) The Employee Assistance Program policy (referenced at Tab 7 of Mr. Ahrens' submissions) states that Health Canada shall:
provide or arrange for medical diagnosis or initial counselling ... and community subsequent treatment (p. 4).
In view of the fact that the Department has undertaken to bear the full costs associated with the Grievor's initial medical assessment and the random drug screening analyses, the determination of the Department's financial obligation, if any, in respect of these matters has been rendered moot. It is clear, however, that the Department is solely responsible for referring employees to agencies for treatment, and not for the payment of costs associated therein. The very fact that the Department, without any obligation on its part, has committed itself to accommodating the Grievor by absorbing the full cost of his treatment program provided that he continues to remain drug-free, is indicative of good faith on its part;
Public Service Staff Relations Board
refer clients to agencies for
Decision Page 17 (4) The Grievor has been in receipt of full pay since September 12, 1995. Such pay has been prescribed in the form of sick leave benefits. He is additionally accumulating all of the pecuniary benefits as outlined in his terms and conditions of employment contract. Therefore, the implied suggestion that the Grievor is wholly impecunious is therefore not defenceable; and
(5) To suggest that the Department is liable to cover all treatment costs of an employee who suffers from an illness which did not arise out of the workplace, is to raise serious broad policy concerns as to the constituent purpose, role and obligation of an employer vis-Ã -vis its employees.
In conclusion, the Employer requests that the Adjudicator declare the following:
(A) That the Employer had no obligation to bear any costs associated with the Grievor's treatment in Grande Prairie; and
(B) That the Employer's conditional recovery of the treatment costs is permissable.
By letter dated May 2, 1996 Mr. Ahrens responded to Mr. Snyder's submissions: I have now had an opportunity to review the submission made by Ronald Snyder on behalf of the employer dated April 18, 1996. In view of my previous lengthy submission, I will add only the following brief comments in direct response.
1. Mr. Snyder has clarified that only the cost of treatment at the Business and Industry Clinic at Grande Prairie, Alberta is at issue.
2. The issue of a specific absence of a requirement to finance the expense of this treatment is, in my respectful opinion, not the point of this matter. The point is the employer's duty to accommodate their disabled employee.
The award of Deputy Chairperson Chodos was designed to reverse the action to dismiss Mr. Gunderson and replace that action with a rehabilitative mechanism for which he may return to the workplace as a productive employee.
Public Service Staff Relations Board
Decision Page 18 In my view, when dealing with an issue of accommodation, all parties must do what they can to facilitate the employee's return to work. In this regard, Mr. Gunderson bears the direct requirement, responsibility and accountability for following all prescribed treatment. Mr. Gunderson is required to deal with and stay in control of his illness. Mr. Gunderson's circumstances are such that he can not afford the cost of treatment. The employer, the other party directly involved in this matter, can do its part by covering the cost. Both parties' requirements are burdensome, but both contribute to the overall goal of accommodation.
3. The employer has already paid all costs, as Mr. Snyder correctly points out. Thus the issue is more the propriety of the recovery of the treatment cost. Mr. Snyder writes the following at page 2:
The very fact that the Department, without any obligation on its part, has committed itself to accommodating the Grievor by absorbing the full cost of his treatment program provided that he continues to remain drug-free, is indicative of good faith on its part;
I agree that the commitment to finance treatment costs is indicative of good faith. To put Mr. Snyder's sentence another way, had the employer failed to commit to absorbing the cost of treatment, it would have been indicative of bad faith. While the initial coverage of treatment costs and subsequent recovery of those costs may appear to be in better faith, the result is the same. That result does not satisfy the duty to accommodate.
4. The employer has changed its position several times in relation to the circumstances upon which recovery will occur, and continues to do so. As illustrated previously, in Tab 2 the employer informed that it may seek recovery for any reason. In Tab 4, the employer defined the circumstances upon which recovery may occur, but simultaneously enlarged the issue to include all costs and also added a basis for future termination of employment. Even in Mr. Snyder's submission to the P.S.S.R.B., in relation to attempts to clarify this matter, a basis is added; that being "the event that the Grievor is unfit to resume his duties within a reasonable period following his treatment".
Keeping in mind that this is the same employer who showed no compassion towards Mr. Gunderson whatsoever once they learned of his illness, and in light of the continually changing conditions that the employer is imposing, there is no reason to believe that the
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Decision Page 19 employer will not recover the amount of treatment for some reason or another if they are permitted to do so.
5. Mr. Snyder suggests that broad policy concerns would arise in relation to the determination of this matter. I disagree. The question before you deals with a matter of implementation of a specific award pursuant to a specific set of circumstances involving a specific employee.
Finally, in a letter dated March 13, 1996 to the Board, Mr. Snyder questioned the basis for the Adjudicator's involvement since the decision made no specific reference to this issue. Should Deputy Chairperson Chodos determine that in fact his involvement is not warranted, I feel it only fair to note here that the grievor takes the position that the employer does not enjoy the unfettered right to recover monies expended pursuant to the award. The grievor would therefore retain the right to challenge this action at the time that recovery action takes place. This is consistent with my request made of the employer as indicated in Tab 3, where I wrote:
In the event that you are unable to provide more favourable consideration, I would suggest that we reach agreement that this matter may be laid before Deputy Chairperson Chodos, if in fact an actual cost is incurred. (emphasis added)
Thank you for your consideration of this matter.
REASONS FOR DECISION The parties are ad idem that the issue to be addressed here is to what extent the employer has an obligation, flowing from the above-noted adjudication decision, to underwrite the cost of Mr. Gunderson's treatment, and to refrain from recovering those costs from Mr. Gunderson. I would note at the outset that it would appear that the employer has not at this time taken steps to recover such costs; accordingly, a determination as to whether the employer has the right to engage in such a recovery is at best premature, and possibly academic. I would however make the observation that in my view the matter of the costs associated with the rehabilitation of the grievor is, in the absence of any contractual obligations to the contrary, the responsibility of the individual employee, and not that of the employer. If it were otherwise, then the various provisions in collective agreements respecting sick leave, workers'
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Decision Page 20 compensation, injury on duty leave and disability benefits, would be entirely superfluous. I do not believe that there is anything in the Public Service Staff Relations Act or the Canadian Human Rights Act, that provides that there is an inherent right, again, absent any contractual obligations, on the part of an employee to demand that the employer underwrite the medical cost arising out of a disability from a non-work related illness. I would note that Mr. Ahrens did not cite any jurisprudence which would support such a position, nor have I been able to find any. Indeed, the only case-law which I have been able to find having some relevance to this issue appears to support the employer's view. In Canadian Airlines International Ltd. v. Canadian Air Line Pilots Association [1996] 3 W.W.R. 683 the British Columbia Supreme Court addressed inter alia whether an arbitrator had the authority to order the employer to place the grievor who had been dismissed in a rehabilitation program. In overturning the arbitrator's award the court concluded:
(at p. 697-698) If an arbitrator substituted suspension and reinstatement for dismissal in a case where the employee had, say, broken his leg and could not return to active employment, the employee's entitlement to disability benefits on the date of reinstatement would surely be governed by the language of the collective agreement. I do not interpret s. 60(2) of the Code as empowering the arbitrator in such a case to order the employee reinstated to disability benefits the employee was not otherwise entitled to under the collective agreement, since that would not be an "other penalty" under s. 60(2) but a benefit. If the collective agreement did not provide disability benefits, the employee would simply have to wait until his leg was healed before the reinstatement to active employment took effect.
Although there was a good deal of argument addressed to the question of whether the program was part of the collective agreement, that is not in my view an issue that needs to be resolved. Unless the collective agreement or the program document contain a provision which entitles the grievor to participate in the program, he is not entitled to do so, just as he is not entitled to disability benefits on reinstatement unless he qualifies for them under the language of the collective agreement. It is not open to the arbitrator, acting under s. 60(2) of the Code to create entitlement to benefits or to order that the grievor be admitted into the program if he is not otherwise entitled to be admitted under the terms of the collective agreement or program document.
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Decision Page 21 Mr. Ahrens has referred to the employer's Employee Assistance Program, as described in the Treasury Board Manual (Chapter 1-2) in support of his submission that the employer, as part of its duty to accommodate a disabled employee, must underwrite the cost of his rehabilitation; I do not necessarily agree with Mr. Ahrens that this policy statement provides that the employer has this responsibility; in any event, it does not appear to me that, if there is such an undertaking on the part of the employer, this is a matter which I have the authority to enforce pursuant to my responsibilities under section 92 of the Public Service Staff Relations Act.
Accordingly, the request of the grievor for a determination that the costs associated with the conditions for reinstatement be paid by the employer is denied.
As noted above, in my view it is apparent that the question of cost recovery is premature and perhaps academic. I specifically refrain from commenting whether the employer, having undertaken to pay for at least part of the costs associated with treatment and assessment, is under any obligation to continue to underwrite those costs. However, I do not believe that it is either necessary or appropriate at this time
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Decision Page 22 for me to make any order in respect of the possible recovery of any assessment or treatment cost by the employer.
P. Chodos, Deputy Chairperson.
OTTAWA, July 25, 1996.
Public Service Staff Relations Board