BETWEEN

(the "Company")

AND

(the "Union")

Sole Arbitrator: Michel G. Picher

A hearing in this matter was held in Toronto on Tuesday, September 16, 1997.

This arbitration concerns the grievance of Mr. D. Ross, on whose behalf the Union alleges a wrongful termination, by the closure of his employment record effective March 4, 1996. Mr. Ross, who was absent by reason of a medical disability pursuant to a work-related injury, had, in the Company’s view, failed to respond to its inquiries as to his medical status and likely date of return. The Union alleges that the grievor’s very condition prevented him from communicating directly with the Company. It asserts that, in any event, he did so through an agent, and alleges that the termination of Mr. Ross was in fact without just cause, in all of the circumstances. The nature of the dispute is outlined in the Joint Statement of Issue, which reads as follows:

The facts are not in substantial dispute. On January 17, 1995 the grievor was the victim of a severe electrical shock, which he suffered while operating a shampooing machine during the course of his assignment, which was to clean the inside of a GO Train coach at the Willowbrook GO Transit facility. He was immediately taken to Queensway General Hospital for treatment, and has been off work consistently from that time to the present. He was in receipt of Workers Compensation benefits until November 14, 1995. It appears that at that time the Workers Compensation authorities determined that he was fit to return to work, and so advised the Company by letter dated November 23, 1995.

The evidence now placed before the Arbitrator confirms that at that time certain physicians who were involved in the treatment of Mr. Ross were of the view that he was not fit to return to work. Part of the diagnosis of the grievor was performed at the McMaster University Medical Trauma Assessment Unit. It is common ground that part of the injury for which Mr. Ross was being treated was "psychological anxiety", a condition originally recognized by the Workers Compensation Board, and a partial basis for the allowing of his claim. For reasons which are not apparent on the face of the Workers Compensation Board letter, authored by Senior Claims Adjudicator R. Tung, and dated November 23, 1995 the Board directed the grievor to return to work, even though it acknowledged" "there is no psychological consultation report on file." Mr. Tung apparently believed, as further expressed in his letter, that the grievor should have no psychological difficulties if he followed the medical advisors’ precaution "of avoidance of dangerous work around "live wires"".

The position of the Union is that, notwithstanding the directive of Mr. Tung, the grievor was in no psychological or emotional condition to return to work in late November of 1995 when he received a double registered letter from the Company dated December 6, 1995 directing him to communicate with Superintendent R. Garrett. He then retained a paralegal agent who directed a letter to the Company on December 14, 1995 stating, in part:

The Company takes the position that the above communication has no status with respect to the grievor’s obligation to communicate with his employer. Its representative submits that it had no direct communication from Mr. Ross indicating that the paralegal agent was authorized to make any statements on his behalf, or to be his official agent in communicating with the Company.

Mr. Ross remained off work, and out of touch with his employer. The Company then convened the grievor to a disciplinary investigation scheduled for January 18, 1996 the purpose of which was: "to determine the facts with regard to your unauthorized leave of absence from 14 November 1995." When the grievor did not appear for the investigation the Company again wrote directly to him on January 18, 1996. That letter by Superintendent R. Garrett, reads as follows:

During the delay period of forty-five days, on January 22, 1996, Mr. Garrett received a note from the grievor’s doctor at the Levy Medical Clinic. The note stated simply: "This patient remains under my care and is unable to work at this time due to his WCB problems." The Company proceeded to terminate Mr. Ross, as indicated in a letter from Mr. Garrett dated March 1, 1996 which reads as follows:

The employer’s perspective is, to a certain degree, understandable. To the time of his termination, the Company had heard nothing directly from Mr. Ross. Although its refusal to acknowledge the status of his paralegal agent is questionable, the information received from that source was cryptic, at best. Finally, the note from the grievor’s physician with respect to his "WCB problems" was seen as less than satisfactory, to the extent that the Company was aware that the Workers Compensation Board had ruled the grievor fit to return to work. Indeed, it does not appear disputed that the Company was in possession of video tape which showed the grievor performing vigourous workout exercises in a gymnasium. Those workouts were in fact part of his prescribed therapy.

The Union’s case rests entirely on its submissions with respect to the grievor’s mental and emotional state at the time of these events. Very simply, it asserts that Mr. Ross was severely disabled in his ability to function normally by reason of acute anxiety and depression. The ample medical record tabled before the Arbitrator bears out the Union’s submission. As early as August, 1995 Mr. Ross was diagnosed as suffering severe psychological problems as a result of the electrocution he experienced. In an e-mail note dated August 24, 1995 a WCB physician, Dr. Aronshtam, wrote, in part: "This I.W. presents with post-traumatic stress disorder, as per his recent assessment by Dr. Birb, psychiatrist. He was started on some meds & supportive psychotherapy. … This I.W. needs psychological intervention;". The record further reveals that possible cardio-vascular damage was addressed by the grievor being directed to an intensive exercise program at a gymnasium. Unfortunately, it is this latter event which prompted the Company, which was apparently unaware of the psychological aspect of the grievor’s condition, to video-tape the grievor’s activities in the gymnasium, and to forward a copy of the transcripts of the video-tape and photographs to Mr. Tung, of the Workers Compensation Board. A memo authored by Mr. Tung on November 8, 1995 goes into great detail as to the physical prowess exhibited by the grievor and concludes as follows:

Unfortunately, the record is devoid of any indication as to whether Mr. Robert Tung had any knowledge or appreciation of the extent of the grievor’s psychological and emotional condition.

It is clear that the physicians treating Mr. Ross had great concern about his mental and emotional state. On August 4, 1995 Dr. H. Bibr of the outpatients’ psychiatry unit of St. Joseph’s Hospital prepared a report diagnosing the grievor has having suffered post-traumatic stress disorder, major depression and generalized anxiety disorder, and placed the grievor on prescription medication. An extensive trauma assessment report of the McMaster University Medical Centre, Trauma Assessment Unit was done on September 6, 1995. The assessment team concluded in part "… ongoing psychiatric assessment is necessary and vital for complete recovery." The report indicates that the grievor was experiencing insomnia and nightmares, mood swings, fatigue, frustration and anger. The report notes the WCB’s assessment of the grievor having suffered post-traumatic stress disorder, as well as several other reports, including that of Dr. Richard Levy, indicating that the grievor suffered from anxiety, and was experiencing memory difficulties. Dr. Levy’s reports indicate continuing anxiety through July of 1995, resulting in a referral to Dr. Bibr, whose report of August 4, 1995 is referred to above. Consistent with the foregoing, the assessment of the McMaster University Trauma Assessment Unit, on September 6, 1995 contains the following diagnosis and prognosis.

The evidence confirms that the grievor’s psychological and emotional frailty continued through and beyond the period of the Company’s attempt to have him attend disciplinary investigations. A report dated July 2, 1996 by Dr. Michel P. Rathbone of the McMaster Trauma Services Unit relates the following with respect to the grievor’s emotional condition at that time:

A more recent report, dated September 12, 1997, prepared by Dr. Trish Murphy, a psychiatrist on the McMaster team, confirms that the grievor still has a serious ongoing condition of "generalized anxiety disorder as a direct result of the work accident of January 17, 1995". Dr. Murphy further comments:

To the same effect, the Union has filed a letter signed by Dr. Adrian R.M. Upton, head of the Division of Neurology of the Trauma Services at McMaster’s Medical Centre, dated September 16, 1997. It reads as follows:

The record further reveals that the grievor is now appealing the Workers Compensation Board ruling which found him fit to return to work and discontinued his benefits payments. It should be noted, however, that the appeal came after only a very substantial delay on the part of the grievor, and that during the course of its disciplinary investigations the Company had no indication that Mr. Ross was challenging the WCB’s position.

What conclusions are to be drawn from the facts and opinions reviewed above? At the outset, the Arbitrator is satisfied, on the basis of the extensive medical documentation tendered, that the grievor has suffered and continues to suffer extensive depression and anxiety as a result of the tragic accident which he sustained in the service of the Company. This Arbitrator is well aware that the reports of physicians can, on occasion, exhibit a degree of bias, to the extent that a doctor might have a natural tendency to become an advocate for his or her patient. In the instant case, however, the extent of the medical record belies any possibility of malingering or the covering over of a doubtful condition. There is no medical opinion before me which in any way questions the legitimacy or seriousness of the grievor’s psychiatric and emotional state from the time of his accident to the present. The unqualified and unanimous weight of opinion among a substantial number of physicians, including a number of psychiatrists, confirms that Mr. Ross was severely incapacitated, from an emotional and psychological standpoint, at the time of the disciplinary investigation.

The Company’s representatives submit that none of these factors excuse the grievor’s failure to respond directly to the letters sent to him by the Company, or to attend at his disciplinary investigation. I cannot agree. The grievor’s avoidance of the Company’s officers and processes is not inconsistent with the behaviour of a person suffering from acute anxiety. To the extent that Mr. Ross’s anxiety was in substantial part related to his view of the Company and its involvement in his predicament, his failure to deal with the Company’s officers at the time of these events, although not entirely excusable, is understandable.

Secondly, the Arbitrator cannot share the Company’s view that it no weight should be given to the communications it received from Mr. Ross’s paralegal agent. It appears to the Arbitrator that, although the primary onus was on the grievor to be forthcoming with information, it would have required little effort on the part of the Company to make inquiries of the grievor, through his paralegal agent, firstly to confirm that the agent indeed acted for him, and secondly to attempt to obtain a release of medical information with respect to his psychological and emotional condition. What the case discloses is an unfortunate failure of communication.

In the result, the Arbitrator is satisfied that while the Company’s concerns are understandable, it did not have just cause to terminate Mr. Ross. Based on the limited information available to them, the Company’s operating officers concluded that the grievor violated his obligation to provide information to the Company with respect to his condition and expected date of return. Reasonable diligence on its part, however, would in all likelihood have produced information which would have led to a outcome other than termination of the grievor’s employment. In the case at hand, however, there is no suggestion that the grievor has, at any time, been fit to return to work. This is not, therefore, a case for an order of compensation in respect of wages. Whether Mr. Ross is entitled to benefits is another matter, and may depend, in part, on the outcome of his Workers Compensation Board appeal.

For all of the foregoing reasons the grievance is allowed. The Arbitrator directs that the Company remove from its records the suspension and termination of Mr. Ross, and that he be reinstated to benefits, if any, to which he may have been entitled during the period of his suspension and termination. I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.

Signed at Toronto, September 29, 1997