FPSLREB Decisions

[1]    Mr. Gilles Alain Loyer has worked for the Correctional Service since 1978, and at the Cowansville Institution since 1989. On October 11, 2001, he lodged a grievance against his dismissal by the employer on September 28, 2001.

[2]    On April 13, 2002, the grievance was referred to adjudication; the case was heard during the week of September 9, 2003. This grievance was heard simultaneously with another case concerning Mr. Loyer, involving a $600 disciplinary sanction. This latter case was the subject of a grievance and a separate decision (Board File No. 2004 PSSRB 16).

[3]    The parties have agreed that the evidence adduced in the case of the $600 disciplinary sanction (Board File No. 2004 PSSRB 16) may be adduced in the present case and vice versa. Each case is to be the subject of a separate decision.

Facts

[4]    Although the ground for Mr. Loyer's dismissal is the fact that, in the summer of 2001, he refused to co-operate in a medical assessment required by the employer, the evidence adduced has to do with the grievor's overall behaviour in 2001 and previous years.

[5]    Mr. Claude Guérin is deputy warden of the institution. After management was informed by employees and by the union that, during a May 24, 2001 union meeting, Mr. Loyer apparently made bizarre remarks suggesting that he was discouraged and exasperated, he was convinced that Mr. Loyer needed help and, for his own safety and that of the other officers, should see a physician.

[6]    According to Mr. Guérin, Mr. Loyer had difficulties functioning during the months previous to May 2001. He was involved in an incident in the detention area, filed a complaint against his supervisor, Ms Manon Bisson, and was uncommunicative.

[7]    Mr. Guérin recalled that Mr. Loyer was occasionally depressed in 1991, at the time of his divorce. Apparently Mr. Loyer mentioned suicide and, because his family was afraid that he might commit suicide, the Court took away his hunting firearms at that time.

[8]    In that context, it was decided to transfer Mr. Loyer to positions not requiring that firearms be carried, starting on June 1, 2001 (Exhibit E-14). At the same time, Mr. Loyer was asked to see his physician.

[9]    Mr. Cyr, president of the union in 2001, witnessed the remarks made by Mr. Loyer on May 24, 2001. Mr. Loyer wanted action to be taken about the grievance he had lodged against his supervisor. He said he was fed up with waiting. Apparently he said that [translation] "he had problems and that it was hard to take, and alluded to firearms or something along those lines".

[10]    The following day, a number of employees were concerned about Mr. Loyer's state of mind. For that reason, Mr. Cyr decided to inform management in order to help Mr. Loyer and reassure the other employees.

[11]    Mr. Serge Ouimette has been retired since May 2003. In 2001, he was a correctional supervisor and Mr. Loyer reported to him. Before describing the events at the May 24, 2001 union meeting, Mr. Ouimette described incidents in the detention area in February 2001.

[12]    According to Mr. Ouimette, Mr. Loyer provoked an incident by not locking the door of a room.

[13]    In a February 27, 2001 memorandum, Mr. Ouimette notified Mr. Loyer that he was being removed from all positions in the detention area (Exhibit E-22). In this memorandum, he stated that a number of employees had noticed a change in Mr. Loyer's attitude. Mr. Loyer would express the frustration he was experiencing about his work, which had the effect of creating an atmosphere of tension that affected his co-workers and the inmates.

[14]    Mr. Ouimette and other members of management then met with Mr. Loyer on February 28, 2001. At that time, since Mr. Loyer verbalized a great deal of frustration, it was recommended that he contact the Employee Assistance Program (EAP). Mr. Loyer was also encouraged to consult a physician and to provide a psychiatric assessment. The institution reserved the right to require an assessment by a physician chosen by the employer. All these points were confirmed in a letter sent to Mr. Loyer on March 2, 2001 (Exhibit E-23).

[15]    Mr. Ouimette further emphasized that he was obliged to impose a one-day suspension on Mr. Loyer in June 2001, because Mr. Loyer insisted on returning to work in a position in the detention area instead of reporting to the workplace assigned to him (Exhibit E-24).

[16]    Ms Brigitte Dubé has been warden of the Cowansville Institution since September 2000. She has 23 years of experience in the correctional system. Her first contact with Mr. Loyer was a telephone message in which he contested a performance evaluation.

[17]    Then, in December, she received a letter and a gift (a frozen chicken from Mr. Loyer's farm). In that letter, Mr. Loyer emphasized that he had conflicts with his supervisor, Ms Bisson, and that he contested his performance evaluation. Ms Dubé replied to him on January 17, 2001 (Exhibit E-30).

[18]    With other members of management, Ms Dubé participated in the February 28, 2001 meeting with Mr. Loyer. Like them, she concluded that Mr. Loyer appeared dissatisfied and had problems. She wanted him to see a physician.

[19]    Then the incident at the union meeting occurred. Given that Mr. Loyer's remarks upset employees, and fearing for Mr. Loyer's own safety, Ms Dubé decided to refer Mr. Loyer for a psychiatric examination. A letter was sent to Health Canada describing Mr. Loyer's behaviour and requesting an assessment report (Exhibit E-31).

[20]    As early as June 1, Mr. Loyer was advised that in future he could no longer occupy a position requiring that firearms be carried, and he was told that he would have to report for a medical examination (Exhibit E-14).

[21]    Mr. Loyer was then informed that he was to meet with Dr. Marc Guérin on June 21, 2001 (Exhibit E-33).

[22]    Mr. Loyer had previously been examined by Dr. Guérin. At the outset of the interview, there was an altercation between Mr. Loyer and Dr. Guérin and it was not possible to conduct the examination. Dr. Guérin recommended that Mr. Loyer be referred to another specialist.

[23]    When she was informed of the failure of the appointment with Dr. Guérin, Ms Dubé decided to place Mr. Loyer on leave with pay starting on June 27, 2001.

[24]    On June 29, 2001, Mr. Loyer was referred to Dr. Pierre Talbot, a psychiatrist at Institut Pinel, who is more specifically able to assess the degree of danger an individual represents.

[25]    Dr. Talbot testified at the hearing and confirmed that he had difficulty interviewing Mr. Loyer. He wrote a report for Health Canada describing the June 29, 2001 interview (Exhibit E-16). According to this document and Dr. Talbot's testimony, Mr. Loyer stated that he was required by his employer to undergo a medical examination.

[26]    Although initially Mr. Loyer told Dr. Talbot that he would not answer questions, Dr. Talbot asked him to remain while he examined the documents in the file that Health Canada sent him.

[27]    Dr. Talbot asked Mr. Loyer about the complaint of harassment. Mr. Loyer shot back that Ms Bisson had spread many rumours about that case. Mr. Loyer talked about his conflicts with his employer. Observing that Dr. Talbot was taking notes, he refused to say any more. Mr. Loyer said he mistrusted others; he did not want notes to be taken of things that might come back against him.

[28]    Dr. Talbot observed that it was difficult to continue the interview and that Mr. Loyer had already visited his personal physician, Dr. Jacques St-Hilaire. Dr. Talbot asked Mr. Loyer if he could refer to Dr. St-Hilaire in order to obtain more details; Mr. Loyer appeared to agree.

[29]    In his report, Dr. Talbot concluded that he was unable [translation] "to provide a formal opinion about Mr. [Loyer]'s ability or inability to perform normally the duties of his position. Similarly, I am unable to provide you with information about the degree of danger he represents to himself and others." Dr. Talbot added to this report the fact that, in concluding the June 29, 2001 interview, he asked Mr. Loyer to sign a file consultation authorization addressed to Dr. St-Hilaire, Mr. Loyer's attending physician. Although Mr. Loyer initially appeared to agree, he refused to sign this authorization and stated that he would talk to his physician about it.

[30]    Given the failure of the appointments on June 21 with Dr. Guérin and on June 29 with Dr. Talbot, another appointment was made for July 13, 2001, with Dr. Talbot.

[31]    In the meantime, Dr. Talbot sent to Health Canada a report of his observations following his review of the assessment report produced by Dr. Guérin (Exhibit E-19).

[32]    The July 13, 2001 interview lasted nearly one hour and 40 minutes.

[33]    However, as he notes in his report (Exhibit E-18), Dr. Talbot was unable to make a specific diagnosis. He noted that initially Mr. Loyer wanted to record the interview, a request to which he objected.

[34]    Mr. Loyer was constantly on the defensive; according to Dr. Talbot, he did not provide formal agreement that would allow a report of that assessment to be written.

[35]    Given this second failure, Ms Dubé wrote to Mr. Loyer, informing him that disciplinary measures would be taken against him if he refused to report for a medical appointment.

[36]    After obtaining information from Health Canada and Correctional Service regional management, Ms Dubé learned that it is unusual for an employee to have more than three appointments with a medical specialist and that Mr. Loyer's attitude placed him a difficult situation.

[37]    After discussing Mr. Loyer's case, the employer decided to place him on leave without pay from the time the August 16, 2001 letter (Exhibit E-38) was received until Mr. Loyer was examined by a physician.

[38]    Another appointment with Dr. Talbot was made, for August 29, 2001.

[39]    Mr. Loyer did not keep the appointment; he sent a letter to Ms Dubé in which he indicated that he was suspended from his duties without pay starting on August 16, 2001, that he had to work, and that appointments for him would have to be made outside working hours. A copy of this letter was sent to the Prime Minister and to Mr. Loyer's Member of Parliament (Exhibit E-41).

[40]    Since four appointments with physicians did not succeed in obtaining specific reports on Mr. Loyer's state of health, and given his lack of co-operation, Ms Dubé called Mr. Loyer to a disciplinary meeting on September 20, 2001.

[41]    At that meeting, the minutes of which were adduced in evidence (Exhibit E-43), Ms Dubé emphasized to Mr. Loyer and to his union representative that the reports by the physicians stated that Mr. Loyer did not co-operate or participate in the examinations. She reminded Mr. Loyer that he had been advised that he could be subject to dismissal.

[42]    Ms Dubé continued, stating that if there were to be a fifth appointment, it would be at Mr. Loyer's expense. She asked if Mr. Loyer was prepared to co-operate this time.

[43]    Mr. Loyer answered that he had always co-operated, and that it would be his word against that of the physicians. He emphasized that he had told the union that he wanted to be accompanied by a witness to the appointments with the physicians.

[44]    Ms Dubé again asked whether Mr. Loyer wanted to co-operate. Mr. Loyer repeated that he had always co-operated, and stated that he had asked his personal psychiatrist for an assessment report in order to prepare his defence.

[45]    Mr. Loyer reminded Ms Dubé that he had already been under the care of a psychiatrist in 1991, for personal reasons following his divorce. At that time, he was required to take medication and his physical and mental condition was seriously affected. He had already [translation] "been down" and did not want to undergo that experience again.

[46]    Ms Dubé ended the September 20, 2001 meeting by stating that she would consider the matter and was unable to help Mr. Loyer if he did not co-operate.

[47]    The last ensuing meeting was the September 28, 2001 dismissal meeting. The employer confirmed in writing (Exhibit E-44) that Mr. Loyer had not convinced the employer of the reasons that had apparently prevented him from keeping the medical appointments or co-operating in them.

[48]    The employer considered that it had reasonable grounds for wanting to ascertain Mr. Loyer's state of health.

[49]    Mr. Gaétan Blanchard, called as a witness by Mr. Loyer, has worked as a correctional officer (CX-01 and CX-02) for 30 years. He emphasized that overall Mr. Loyer did a good job, adding that on one occasion between 1990 and 1995 some inmates appeared aggressive towards Mr. Loyer.

[50]    Mr. Andrew Cathcart, another of Mr. Loyer's co-workers, described the incident that occurred in the detention area in 1999 or 2000.

[51]    He explained that in that area there are small rooms in which specialist staff members can meet with individual inmates. According to the directive, when a supervisor or a parole officer meets with an inmate in a room, the officers on duty (usually three in number) lock the door of the room.

[52]    When Ms Bisson and a parole officer met with an inmate in a room, Mr. Loyer left the door unlocked. He did so because the officers had previously noticed that the inmate concerned was agitated, and Mr. Loyer apparently deduced from that discussion that it was better to leave the door unlocked so that he could intervene if necessary.

[53]    Things happened otherwise, because another inmate, returning from the shower, noticed that the parole officer was in the room and opened the door to speak to the parole officer, which had the effect of surprising the persons in the room.

[54]    Ms Bisson was furious, came out of the room, and bawled out Mr. Loyer. Mr. Cathcart intervened to point out that the decision not to lock the door was the result of a discussion among the three officers on duty.

[55]    In his testimony, Mr. Loyer revisited this incident.

[56]    In his arguments, Mr. Loyer emphasized that he had worked for the Correctional Service since 1978. He worked at the Leclerc Institution Leclerc from 1978 to 1989, and then requested a transfer to Cowansville.

[57]    Mr. Loyer stated that he took an interest in his work and had taken a number of specialized courses offered by the employer.

[58]    In 1991, he went through a divorce and his mental and physical health deteriorated; he was required to take medication, and became depressed to the point that his family feared that he would commit suicide. An application was made to the Court to take away his hunting firearms. The hunting firearms were returned to him after 12 months (Exhibit F-3).

[59]    At that time (1991) he was examined by Dr. Guérin.

[60]    Mr. Loyer then referred to the incident with Ms Roberte Nadon (Board File No. 2004 PSSRB 16). He concluded that, overall, he did not have difficulty working with women co-workers.

[61]    The incident that occurred in the cell was of greater concern to Mr. Loyer. He admitted leaving the door unlocked and telling Ms Bisson that he believed he had done right in doing so. According to Mr. Loyer, Ms Bisson should not have reprimanded him and bawled him out in the presence of co-workers and inmates.

[62]    He filed a complaint with management, and Ms Bisson apologized to him for losing her temper. However, in an evaluation report, she noted that Mr. Loyer did not follow the established procedures and should have notified the persons concerned in making a decision about the situation (whether to lock the door of the small interview room).

[63]    Mr. Loyer considered that this note should not appear on his evaluation, since Ms Bisson apologized to him about this incident.

[64]    He filed a complaint against Ms Bisson, but observed that no one agreed with him. Mr. Loyer felt isolated and stressed at work; as well, in 1999 and 2000 he consulted Dr. Jacques St-Hilaire, a psychiatrist. In a September 5, 2003 letter (Exhibit F-4), Dr. St-Hilaire confirmed that state of stress in 1999 and 2000, but emphasized that since the spring of 2000, Mr. Loyer appeared motivated and had peaceable relations with his co-workers. That was his observation at the November 13, 2001 interview with Mr. Loyer.

[65]    Regarding the incident at the May 24, 2001 union meeting, Mr. Loyer attended the meeting because he wanted to be heard about the grievance he had lodged. When told that that item was not on the agenda, he told the meeting, [translation] "If some people went through things that were that tough, they might shoot themselves."

[66]    Management then called him to a meeting and prohibited him from occupying positions requiring that firearms be carried; he was also told that he was required to meet with a physician.

[67]    Mr. Loyer admitted that for several months he had been taking notes of incidents that occurred, including the meetings with his co-workers or line superiors.

[68]    When he was told in June 2001 that he was required to meet with Dr. Guérin, he saw the situation as an opportunity to rectify things that Dr. Guérin had noted about him in 1991. He wanted to rectify the notation that in 1991 his hunting firearms had been taken away for fear that he would threaten his family, when in fact they had been taken away for fear that he would make an attempt on his own life.

[69]    At the outset of the June 21, 2001 medical interview, he greeted Dr. Guérin with this request for rectification. He expressed mistrust of reports that might be made and demanded that Dr. Guérin give him a copy of the authorization he had been given by Health Canada.

[70]    Dr. Guérin refused to give him a copy but allowed him to read the authorization. Mr. Loyer stated that he then observed that Dr. Guérin had been informed by the employer of all the things for which he was allegedly being criticized, particularly the fact that he had problems with women employees, with the inmates and with one superior, and the allegation that he had mentioned suicide.

[71]    In light of these facts, Mr. Loyer felt trapped and considered the situation [translation] "rotten". He demanded a copy of the authorization, stating that otherwise he would leave. Eventually he did leave.

[72]    Mr. Loyer stated that he no longer trusted Dr. Talbot. He confirmed that the interviews with Dr. Talbot were difficult to conduct. Mr. Loyer emphasized to Dr. Talbot that he had filed a complaint against Ms Bisson.

[73]    Even during his testimony in the present case, in September 2003, Mr. Loyer appeared to have concerns regarding Ms Bisson. He adduced a letter sent by his counsel to the warden, emphasizing that Ms Bisson apparently disparaged Mr. Loyer when private-sector employers requested information in the course of Mr. Loyer's search for employment in 2001 and 2002, following his dismissal (Exhibit F-7).

[74]    Mr. Loyer was dismissed on September 28, 2001, on the ground of his refusal, on four occasions, to report to or to co-operate in being examined by a physician of the employer in order to ascertain his state of health. The employer considered that it had reasonable grounds for wanting to ascertain Mr. Loyer's state of health. As well, the employer was not convinced of the reasons that had apparently prevented Mr. Loyer from keeping the medical appointments or co-operating in them (dismissal letter in the file).

Arguments

[75]    Counsel for the employer emphasized that the employer has the right to require a medical report on an employee when the employer has reason to believe that the employee may be unable to perform his or her duties.

[76]    The incidents occurring from February to May 2001, combined with Mr. Loyer's behaviour at the May 24, 2001 union meeting, justify the employer's concern about Mr. Loyer's state of health. Mr. Loyer showed impatience and aggressiveness towards his co-workers and superiors, and tried to solve his problems at the union meeting.

[77]    As early as the February 28, 2001 disciplinary meeting, it was noted that Mr. Loyer verbalized frustration he was experiencing at work, and it was recommended that he see his physician and produce a psychological assessment.

[78]    Given the fears expressed by employees about Mr. Loyer's condition, the possibility that he might take regrettable action towards himself or persons around him, and his previous profile involving fear of a suicide attempt in 1991, management was justified in requiring a medical report.

[79]    Given Mr. Loyer's lack of co-operation in the medical appointments and his refusal to co-operate or explain his behaviour, management was justified in dismissing him. According to counsel for the employer, even if the adjudicator were to find that the employer's decision was not justified, the attitude of mistrust and non-co-operation shown by Mr. Loyer during the summer of 2001 justifies the grievor's not being reinstated in a position at the institution.

[80]    On the other hand, counsel for Mr. Loyer considered that this case was clearly a disciplinary matter and that Mr. Loyer was dismissed for [translation] "his work overall". In this counsel's view, the employer took advantage of the circumstances and, following Mr. Loyer's remarks about suicide at the May 24, 2001 union meeting, inflated matters and made them into a medical issue.

[81]    Mr. Loyer has 23 years of service. Following the May 24, 2001 incident, Mr. Loyer's employment was maintained but limited to positions not requiring that firearms be carried. However, matters were precipitated from July to September 2001 because, according to the employer, Mr. Loyer did not co-operate with the physicians to whom he was referred.

[82]    Mr. Loyer's mistrust might have been justified when he observed that Dr. Guérin had a detailed file on him, in which the employer emphasized points such as his shortcomings, his attitude towards women, his relations with his superiors and his aggressive attitude.

[83]    The employer claimed that it wanted to help Mr. Loyer and wanted a medical report for his own good, but in fact it used disciplinary measures to hound Mr. Loyer, suspending him without pay and requiring a medical report at Mr. Loyer's expense during the day and at Institut Pinel, which, it must be remembered, is a penal institution.

Reasons

[84]    First, it is appropriate to consider the nature of the measure imposed by the employer. The letter from the employer refers to dismissal; however, in her testimony, Ms Dubé, warden of the institution, explained it had been preferable to use that expression in order to ensure that the grievor did not lose certain benefits.

[85]    The September 28, 2001 letter refers to refusal to co-operate; the minutes of the September 28, 2001 meeting (Exhibit E-43) clearly state that [translation] "the purpose of the meeting was disciplinary".

[86]    Mr. Loyer was first suspended from his duties with pay in June, next suspended without pay in August, and then dismissed in September. In Ville de St. Lambert et Fraternité des policiers de St. Lambert Inc., [1998] R.J.D.T. 415, the adjudicator emphasized that the extent of the adjudicator's jurisdiction depends on the measure being contested:

[Translation]

Essentially, the employer's purpose in asking the employee to make use of the Employee Assistance Program and to consult a psychiatrist is to reassure itself about the complainant's psychological ability to perform the work. These measures are therefore administrative in nature; in a case of this type, the adjudicator's role is limited to considering whether the employer's decision was unreasonable, discriminatory or abusive. The purpose of the suspensions aimed at forcing the complainant to submit to the employer's demands is to correct the complainant's insubordination, and in that regard the suspensions are disciplinary in nature. The adjudicator has jurisdiction to confirm, to rescind or to replace them with any other measure the adjudicator considers appropriate.

[87]    Given that the July 1 and August 31 letters from the employer state that the employee's refusal to attend or to co-operate in the medical examination could lead to administrative or disciplinary measures, or both, and that the September 28, 2001 meeting was described as disciplinary in nature, and given the context of all the evidence adduced, the present case must be considered from a disciplinary perspective.

[88]    From the testimony and the documents adduced at the hearing, it emerges that during 2000 and 2001 Mr. Loyer developed a defensive attitude towards his co-workers and especially towards his line superiors.

[89]    As I noted in my decision in Board File No. 2004 PSSRB 16, Mr. Loyer had difficulty accepting the recommendations of the harassment investigation committee. It is true that greater emphasis was placed on the sexist aspect than on the problem of interpersonal relations.

[90]    Mr. Loyer then developed a defensive attitude towards his superior, Ms Bisson. Mr. Loyer even tried to meet with the warden of the institution, Ms Dubé, in order to settle the dispute between him and Ms Bisson.

[91]    Mr. Loyer did not accept that, in an evaluation report, Ms Bisson noted that he did not meet the objectives concerning an event in the detention area. Exhibit E-25 reads in part as follows:

[Translation]

A-C-D) Was called to a meeting by his U.M. about a situation in the detention area with the inmate -----, in which the officer considered that the inmate was aggressive. He did not notify those concerned prior to the interview; the situation was not justified. The employee then filed a written complaint against the manager, which proved to be unfounded.

H) Mr. Loyer regularly complains about procedures he considers inappropriate, even if they have been established by persons such as correctional supervisors who are qualified to do so.

[The name of the inmate has been supressed to preserve anonymity.]

[92]    In his testimony, Mr. Loyer reiterated that he could not be criticized for that incident because the decision had been made as a team and Ms Bisson had apologized for commenting publicly on Mr. Loyer's behaviour.

[93]    On this point, Mr. Loyer is wrong; he is getting two things mixed up. Ms Bisson apologized for the way she reacted to the incident, by bawling him out in the presence of his co-workers and inmates, not for the fact that she was critical of the action he took in leaving the door of the interview room unlocked.

[94]    As well, Mr. Loyer did not accept that no follow-up action was taken to the complaint he filed against Ms Bisson. He contested being removed from the detention area and no longer being assigned there.

[95]    Mr. Loyer wanted the union to push the matter further; that was why he exploded at the May 24, 2001 union meeting.

[96]    Following that incident, in June 2001 management considered it prudent to remove Mr. Loyer from positions requiring that firearms be carried. As well, as early as February and March, Mr. Loyer was considered to show a great deal of dissatisfaction and frustration about his work, and management suggested that he see his attending physician and produce a medical report.

[97]    Given these facts, in June 2001 the employer was justified in requiring a medical report. I believe that management was acting in good faith in emphasizing that this report would reassure employees and verify Mr. Loyer's state of health in order to establish whether the observed signs of discouragement and impatience might lead him to take regrettable action towards himself or others that would jeopardize security in a penitentiary setting.

[98]    That established, my remaining task is to consider the behaviour by the employer and by Mr. Loyer in determining whether the disciplinary measures subsequently proposed were justified.

[99]    In June, Mr. Loyer worked in positions not requiring that firearms be carried; on June 21, 2001, he was to meet with Dr. Guérin at the employer's request. The interview went very badly. At the outset, Mr. Loyer wanted to have a previous report, issued by Dr. Guérin in 1991, rectified. As well, Mr. Loyer became mistrustful and demanded to see the psychiatrist's authorization. Mr. Loyer reacted badly when he observed that the psychiatrist was in possession of a file from the employer setting out [translation] "what was wrong" with him, such as his animosity towards women and his relations with his superiors. Dr. Guérin recommended referring Mr. Loyer to another psychiatrist better able to assess the degree of danger.

[100]    Informed of the failure of the examination interview with the psychiatrist, Ms Dubé, the warden, decided to take Mr. Loyer off duty and to suspend him with pay. That was an administrative decision for which the warden provided few explanations at the hearing. She stated that she wanted to help Mr. Loyer.

[101]    I see no disciplinary aspect in that suspension; it can be explained as a prudent move aimed at preventing Mr. Loyer from taking impatient or confrontational action at work, as it was interpreted he did with Dr. Guérin.

[102]    On June 29, 2001, Mr. Loyer was referred to Dr. Talbot. According to the evidence, the conversation was difficult. Mr. Loyer wanted comments noted and behaved defensively. Dr. Talbot was unable to produce an assessment report.

[103]    An appointment was made for July 13, 2001; once again, even though the interview lasted one hour and 40 minutes, it was not possible to produce an assessment report. Mr. Loyer initially wanted to record the interview but later changed his mind.

[104]    Then, Mr. Loyer was suspended without pay. Another appointment for him was made, for August 29, 2001. Mr. Loyer did not keep the appointment and was called to a disciplinary meeting on September 20, 2001; he was dismissed on September 28, 2001.

[105]    One aspect of the September 20, 2001 meeting that I consider important is Mr. Loyer's statement that he had already been obliged to see a psychiatrist and was on medication in 1991. According to his statement, at that time he was depressed and his health was affected. As he put it, he had [translation] "been down" and did not want to undergo that experience again.

[106]    It is unfortunate that Mr. Loyer withdrew into himself during his visits to the psychiatrists (Dr. Guérin and Dr. Talbot). His difficulties in 1991 may have been a factor, but there is also the fact that he perceived these demands for an assessment report more as a disciplinary measure than as an assistance measure.

[107]    The September 5, 2003 letter from Dr. St-Hilaire (Exhibit F-4) is revealing about what Mr. Loyer was experiencing. Dr. St-Hilaire noted:

[Translation]

. Mr. Loyer was back at work starting in February 2000, appeared motivated and had peaceable relations with his co-workers.

For those reasons, at that time I was able to state that Mr. Loyer did not manifest any psychiatric disorders, was fit to perform his regular work as a correctional officer starting in February 2000, presented no danger to his women co-workers, and was motivated to perform his duties. Since he did not manifest any psychiatric disorders, he did not need to take any medication.

[108]    Why did Dr. St-Hilaire mention that Mr. Loyer presented no danger to his women co-workers? Did Mr. Loyer suggest to Dr. St-Hilaire that management perceived him as antifeminist and that he would be aggressive towards his women co-workers?

[109]    The employer may not base its September 2001 decision on the letter from Dr. St-Hilaire, because that letter was written after the incidents. However, the employer had in its possession, or could have had through Health Canada, Dr. Talbot's reports.

[110]    The July 10, 2001 report (Exhibit E-19) is highly significant. Referring to the June 21, 2001 interview with Dr. Guérin and to the June 29, 2001 interview with himself, Dr. Talbot notes:

[Translation]

Mr. [Loyer]'s functioning at that interview, as described by Dr. Guérin, shows an aggressiveness that did not actively manifest itself when I met with him, and shows at least what I have referred to as losses of control over the quality of his vocabulary.

[111]    Dr. Talbot took the trouble of writing a memorandum between the June 29 interview and the appointment made for July 13, 2001. He mentioned to Dr. Carole Leclair, regional medical assessment officer, that he and Dr. Guérin did not observe [translation] "any disconnection with loss of reality checks or delusional psychotic formulations".

[112]    I also note that the employer never insisted that Mr. Loyer produce a medical report from his attending physician.

[113]    Mr. Loyer has 23 years of service. It is true that in 1999 and 2000, he showed signs of mistrust and some degree of aggressiveness towards management and his co-workers.

[114]    It is clear that the employer was obliged to respond to Mr. Loyer's refusal to co-operate. In August 2001, the employer suspended Mr. Loyer without pay.

[115]    Since, according to the warden's comments, the employer wanted to give Mr. Loyer one last chance, proactive measures should have been taken with him and the onus placed on him to respond and to demonstrate his desire to return to work, rather than having him withdraw into himself and adopt a defensive attitude. It is true that, in August 2001, the employer had not obtained a single complete assessment of Mr. Loyer's state of health. However, Dr. Talbot's comments do not appear to anticipate that Mr. Loyer was in a psychic state of disorganization.

[116]    It was not urgent to make a final dismissal decision in September 2001. For example, Mr. Loyer could have been suspended without pay with a requirement that, in order to return to work, he would have to produce a medical report from his attending physician, agree that his physician could provide information to the physician chosen by the employer, and agree to provide a cross-assessment report by a physician chosen by the employer.

[117]    In Bell Canada et Le Syndicat des travailleurs en communication du Canada, [1988] T.A. 319, as well as in Ville de St. Lambert (supra), the adjudicators took into consideration the employee's record, finding the hasty use of dismissal disproportionate in sanctioning the employee's refusal to submit to medical examinations.

[118]    In the present case, I believe that the dismissal decision made by the employer was hasty and inappropriate.

[119]    Given the fact that after his dismissal Mr. Loyer disparaged the employer and the fact that, at the hearing in 2003, I was able to observe that he still had aggressiveness towards persons in management at the institution, reinstating him is inappropriate and I am obliged, as was agreed by the parties at the hearing, to consider establishing compensation in lieu of reinstatement.

[120]    Given the circumstances, I do not believe that Mr. Loyer deserved to be dismissed in September 2001. I therefore rescind the dismissal measure taken by the employer.

[121]    Neither party wishes Mr. Loyer to be reinstated and, as I noted earlier, I believe that reinstatement would be inappropriate. I must establish compensation in lieu of reinstatement.

[122]    Given the complexity of the case and the parties' inability to make representations concerning the amount of compensation without having parameters for a decision of this nature, I retain jurisdiction to hear the parties concerning the amount of compensation to be established. In this regard, the parties will be convened by the clerk of the Board.

Jean-Pierre Tessier,
Board Member

OTTAWA, March 1, 2004.

P.S.S.R.B. Translation