IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
(hereinafter referred to as the “Railway”)
NATIONAL AUTOMOBILE, AEROSPACE TRANSPORTATION AND
GENERAL WORKERS UNION OF CANADA
(hereinafter referred to as the “Union”)
(Spatling – Dismissal Arbitration)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Railway: Edward J. (Ed) Houlihan and
Counsel for the Union: Brian McDonagh and John Burns
Place of Hearing: Vancouver, B.C.
Date of Hearing: March 14, 2002
A W A R D
I – Dispute
The Grievor, Norbert Spatling, alleges that he was dismissed without cause from his position as an electrician in the Railway’s Vancouver Maintenance Centre (VMC) on May 5, 2000. The Grievor was a long-service employee, having commenced his employment on June 1, 1981. Hence, at the time of his dismissal, he had approximately 19 years of service. The position of the Railway was that the Grievor’s dismissal, which was in response to his having exceeded 60 demerits in his discipline record, was for just cause.
The event that triggered his dismissal was the imposition of 20 demerits for an incident that occurred on April 4, 2000 when he failed to attend at a medical appointment to assess his mental fitness that the Railway had arranged for him with Medisys, an occupational medicine group retained by the Railway. The specific infraction, as recorded in the Railway’s discipline memorandum, was; “failure to attend a medical appointment scheduled at Medisys on April 4, 2000”. At the material time the Grievor’s discipline record stood at 55 demerits. The 20 demerits advanced the Grievor to 75 demerits with the result that he was dismissed in a disciplinary memorandum that recorded the reason as: “discharge [on] account [of] demerits in excess of 60”.
The Railway’s position in its initial submission was that the facts supported its right to require the Grievor to submit to at least a preliminary medical examination and to discipline him for his failure to keep the appointment. The purpose of the examination was to determine if he should submit to an expert evaluation of his stability and whether he was fit to perform his duties safely. The question with respect to his mental health arose out of a pattern of bizarre conduct in the workplace that began on March 28, 2000. I will review that conduct later. The Grievor, who had initially agreed to the examination, cancelled his appointment without notice to the Railway and without its consent. The Railway’s position was that his actions were insubordinate and constituted conduct deserving of discipline. That conduct, said the Railway, triggered an application of the culminating incident doctrine that more than justified the penalty selected.
The response of the Union was that employers are not free to compel employees to submit to examination by the employer’s doctor. The authorities, said the Union, support the proposition that refusing to submit to an examination by the Railway’s doctor was not insubordination. On that basis, said the Union, the Railway lacked any cause to impose discipline on the Grievor and thus lacked just cause to dismiss him. Its position was that the Railway should be held strictly to the reason it gave for imposing the discipline at the time, and, having failed to support that reason, should be required to reinstate the Grievor with full compensation for his wage loss.
In its reply in argument in these proceedings, the Railway submitted, in effect, that if the Grievor’s refusal to keep the medical appointment to which he had agreed was not conduct deserving of discipline, nevertheless his fitness to perform his duties remained in doubt and, as a result, he had a continuing onus to establish his fitness to return to work that had not been met. Taken to his its logical conclusion, the effect of the Railway’s position was that reinstatement, if it is found to be appropriate in the circumstances, should be limited to placing the Grievor in the employment status he occupied at the time of his dismissal with the question of his future employment and entitlement to compensation left to be decided upon events as they unfold.
The Union continued to assert that the sole issue in these proceedings is whether the Railway had the right to require the Grievor to submit to a medical examination by its doctor. However, upon a detailed review of the history of the dispute as it was developed in the hearing, it became apparent that, while the specific issue relates to the failure of the Grievor to submit to an examination by the Railway’s doctor, there was a remaining issue with respect to the mental competence of the Grievor to perform his duties now and at the time of his dismissal.
It maybe helpful in outlining the issues in this complex dispute to express the view that the Railway acted prematurely in imposing discipline on the Grievor in response to its perception that his decision not to keep the medical appointment he had agreed to amounted to insubordination. It is clear that employers must have authority under their collective agreement or by statute in order to compel an employee to submit to an examination by the employer’s doctor. It is equally clear that, absent such authority, a refusal to submit to such an examination does not constitute insubordination and is not conduct deserving of discipline.
In outlining the dispute it is convenient to set out what right the Railway had to deal with the issues raised by the Grievor’s conduct. In doing so, I advise that I will review the facts and arbitral authorities that support this analysis later. I commence with the finding that the conduct of the Grievor on March 28 through to his suspension on April 4, 2000 justified the Railway in requiring him to remain off work until his fitness had been assessed. The Railway elected not to do so, but its decision was based on interim security arrangements it had made and on the Grievor’s subsequent agreement to submit to an examination by its doctor. Hence, the decision not to suspend the Grievor pending a medical clearance does not detract from the fact that the Railway had the right to demand one.
Further, when the Grievor failed to submit to the examination that had been arranged with his consent, the Railway could have refused to permit him to return to work until his fitness had been established. The options available to the Railway in that regard included requiring the Grievor to produce medical evidence of his fitness sufficient to satisfy the Railway or a medical authority appointed by it. Alternatively, it could have sought to have the Grievor submit to an independent medical evaluation or to renew its request that the Grievor submit to an examination by a doctor appointed by the Railway.
In all of those options, the Railway’s remedy for a refusal by the Grievor to cooperate was a continued refusal to permit him to return to work. The Grievor’s remedy in response to any perceived invasion of privacy or unreasonableness on the part of the Railway was to challenge its requirements in the grievance and arbitration process. In that context, there is a wealth of arbitral authority regarding the rights of the parties with respect to medical examinations where the mental or physical fitness of an employee is called into question.
Based on that retrospective analysis, I conclude that on March 28, 2000 it was reasonable for the Railway to require the Grievor to submit to a medical evaluation of his conduct and to hold the Grievor out of service until he had complied with that request in a manner satisfactory to the Railway or deemed reasonable in a subsequent arbitral review. In my view, this dispute must be resolved in a manner that recognizes those rights and obligations of the parties.
II – The Facts
To place the issues in perspective, it is necessary to canvas the facts in considerable detail. Prior to the events that gave rise to the Grievor’s dismissal, he had a relationship with Ms. N., a co-worker. That relationship was terminated, presumably by Ms. N. Apparently there was a significant measure of bitterness on the part of the Grievor arising out of the breakup. The implication of bitterness was apparent in accusations that the Grievor made to management and Union officials commencing on March 28, 2000.
In particular, he falsely alleged that Ms. N. was engaged in sexual misconduct with numerous employees in the VMC, including management, and was spreading a venereal disease in the course of that conduct. It is not necessary to detail the accusations. It is sufficient to say that they were malicious and amounted to sexual harassment in the workplace. They were perceived as such by the management and Union officials to whom they were repeated. The initial accusations were made at a joint safety meeting held on March 28, 2000. The Grievor interrupted the meeting. He was persistent in his accusations and sought to justify his actions on the basis that Ms. N.’s activities constituted a health and safety issue.
Included in the persons the Grievor addressed was Eero Kuitunen, the Railway’s senior manager of operations. He reports to Marc Beaulieu, the Regional Director of Western Services. The Grievor’s demeanour and the outrageous accusations he was making led Mr. Kuitunen to question his mental fitness to perform his duties. The incident took place at approximately 2 p.m. on March 28. Mr. Kuitunen addressed the incident in a letter to the Grievor the next day. The unique facts make it desirable to recite the letter in full. It reads as follows:
This is in response to the discussion we had in the presence of Gillian Firestone and Hubert Pearce on March 28th, 2000. During this discussion you made some allegations concerning a certain individual that works at the Vancouver Maintenance Center. These allegations were of a very serious and personal nature, which you inappropriately shared with the two people previously mentioned, as well as myself. You alleged that a certain individual had herpes and was “sleeping around” with shop employees and you feared that this person was infecting your mates. You stated that you felt this was a safety and health issue and that you wanted us to address it. I was shocked by your comments. After some serious consid-eration and some fact finding, there is no evidence to support your allegations. I have come to the conclusion that this issue is not work related and that sharing this information with us was very inappropriate. Your comments concerning an individual have no business in the workplace and seem to be motivated by wanting to humiliate or undermine this persons dignity which is a form of harassment. I am advising you to immediately cease and desist these comments and allegations. You are also being in-formed that you have been accused of harassment and you are no longer permitted to speak to [Ms. N]. Failing to follow this directive, we would proceed with a formal investigation, which could warrant disci-pline. I am also advising you that any reprisals concerning this issue with any VIA RAIL CANADA employees would be considered a serious offence and would be dealt with appropriately. During the discussion you seemed quite agitated and you spoke in a disjointed fashion. I feel that you may have some personal issues you may need to resolve. I would suggest that you communi-cate with our employee assistance program, which could be helpful to you. The number for this service is 1-800-268-5211. If you wish, I could facilitate this process for you. In closing I would like to reiterate that this is a very serious issue and I hope that you will deal with it accordingly. (emphasis added)
I pause to note that the Grievor’s accusation caused Ms. N. to file a complaint of harassment. In these proceedings the Union questioned whether the Railway had followed the joint harassment investigation procedure when it received the complaint. However, Ms. N. advised the parties that she would be satisfied if the Grievor ceased his comments and left her alone. The timely initiatives with the Grievor by the Union and the Railway achieved those goals and, thereafter, the harassment complaint was irrelevant. In particular, it has no impact on the issues raised in this dispute.
Returning to the narrative, on April 4, 2000, one week after the episode began, the Grievor was suspended pending an investigation of his cancellation of the appointment the Railway had arranged with his consent. In the period between the safety meeting incident on March 28 and the Grievor’s suspension on April 4, 2000, the Grievor continued to attend at work but, on the facts, it was not clear exactly what schedule he followed and whether he followed a normal routine. In detailed exchanges in the second stage of the grievance procedure, the Union, on May 19, 2000, wrote that he had worked from March 31 through to April 4, 2000. In its reply on June 7, 2000, the Railway wrote that he had worked 2 ½ days over that period.
In addition to the dispute about the Grievor’s work schedule, the parties differed with respect to the details of what occurred between the incident on March 28 and the Grievor’s suspension on April 4. What is clear is that the Railway, while it did not suspend the Grievor until April 4, alerted supervisors in the VMC about concerns with respect to his stability and engaged additional security personnel to keep him under observation while at work. In the interim, the Railway arranged the medical appointment and documented its concerns in instructions to its doctor dated April 3, 2000. The accuracy of the summary was not disproven by the Union. The letter reads as follows:
An immediate need for assessment of the employee in question has arisen and the following comments are examples of the behaviour the employee has been exhibiting as well as comments he made. He has also been accused of harassment. Employee has been spreading “things” around his place of work re ex-girlfriend (also an employee).
Comments such as the following are causing concern:
· “I have been used as a pawn by [C.] and [J.] and I am sick of it.”
· “They have been lying [and] working against me.”
· “They have used me and have not been honest.”
· “They have taken advantage of me for too long and I won’t let them push me any more.”
· “They could kill people with Aids and this crap.”
· “I don’t think that I should be around electricity and moving trains in my state of mind.”
· “The Foremen are out to get me because [Ms. N.] is friends with them.”
· “Somebody has been fooling around with my toothbrush and towels.” (at home)
· “My tongue is black so I think someone has put stuff in my toothbrush.”
These are the kinds of statements that the employee has made to myself, which would lead me to believe that he is exhibiting paranoid behaviour. I am concerned as to whether he is fit to perform his duties or not. The employee is an electrician. Please provide an assessment as soon as possible indicating if the employee is fit to continue work. (emphasis added)
The events that led to the Grievor’s suspension and ultimate dismissal were reviewed in detail in grievance procedure exchanges filed by the parties in these proceedings. It is convenient to record those exchanges in full. The position of the Union is in a letter that appears as Appendix I to this Award. The response of the Employer was set out in a letter dated June 7, 2000 which appears as Appendix II. Those exchanges of position did not embrace all of the relevant facts and did not end the discussions between the parties with respect to the Grievor’s mental stability. In particular, six months later the Union acknowledged that the Grievor’s conduct in the events leading to his dismissal raised a concern about his mental fitness. On September 28, 2000, the Union wrote as follows to the Railway:
I am forwarding this letter in order to keep within the deadline, as we have discussed this present grievance at our last joint meeting on July 17 and 18 past. As promised, I contacted Mr. Spatling and he was advised to contact his physician. Mr. Spatling sent us a document, a brief prescription, to be precise, relating his difficulty to sleep due to a back problem. I wrote a letter to his treating physician, see attached copy, where I ask the physician for more details in order to try and reintegrate the worker. We consider that Mr. Spatling acted in an incoherent manner and that any comments that he could have voiced at the time appear irrational, but know for a fact that he was under extreme stress at the time, stress caused by his lack of sleep due to back pain and his recent domestic break-up. Those two events constitute, in our view, a reasonable doubt, that would explain the physical and mental condition of the worker although it does not excuse the utterances and hearsay that he might have propagated during this unfortunate period. We believe that Mr. Spatling received disciplinary sanctions that outweighed the offence that he committed under rather special circumstances and I will explain. The management of this present file by Mr. Beaulieu and Mr. Chamber, seems to me to be somewhat lacking as there was no in-depth investigation of the harassment complaint and no support was provided to a worker who was, according to these same people, in an incoherent and irrational state. This worker should have been accompanied to his doctor’s office, or referred to the health professional services of his choice, right at the beginning to subsequently limit the unfortunate incidents and the not irretrievable wrongs. We consider that Mr. Spatling was subjected to a double disciplinary sanction, being given twenty (20) demerit marks and being suspended without pay. This is why we request that Mr. Spatling be reinstated with full salary and benefits. (emphasis added)
Despite the Union’s efforts, there was nothing in the evidence to indicate any evaluation of the Grievor’s mental condition between his decision to cancel his appointment and the Union’s letter six months later. In fact, there was nothing to indicate the Grievor had taken steps to have his mental stability assessed at any time after the incidents on March 28 and before this hearing. In that context, it is noteworthy that the Union urged in these proceedings that the Grievor could be seen as having advised the Railway that, while he would not submit to an examination by the Railway’s doctor, he would, in effect, obtain an examination by his own doctor. The Railway understanding was that the Grievor had raised that possibility through the Union on April 3, 2000 and, when the overture was rejected, the Grievor did not pursue it either directly or through Mr. Chambers on behalf of the Union.
In short, the Grievor neither requested an examination by a doctor appointed by him, nor did he offer any medical opinion in which his mental fitness was addressed in the context of his earlier behaviour. The circumstances preceding his cancellation of his appointment with the Railway’s physician were the subject of some disagreement. They were reviewed in an e-mail message sent by Mr. Chambers, the Union’s harassment representative, to John Burns, the vice-president of the Union. It reads as follows:
Here is some information for you, which lead to the dismissal of [the Grievor]. March 31 interview with [the Grievor], myself and [Mr.] Beaulieu, concerning harassment of [Ms. N.]. [The Grievor] was talking very strange and paranoid in his comments during investigation. It was suggested that he should seek some counseling to remedy his problems. [The Grievor] agreed that maybe seeing a counselor may help him. [Mr.] Beaulieu told [the Grievor] he would set up an appointment with medisis for him. April 3 [the Grievor] received a notice to go to medisys and asked me if the company can make him go. I told him I don’t believe they can force him to go to medisys under the collective agreement and you should be allowed to see your own doctor instead. I told him we may be able to win a grievance against it. I also said that be expected to be suspended as I was pretty sure that [Mr.] Beaulieu would suspend him pending investigation. And that it could take a while through the grievance procedure to get him back to work and could not guarantee we would win the grievance. I thought at this point he was going to go. April 4 [the Grievor] does not go to medisys. I felt suspending [the Grievor] was unnecessary and [he] should have been allowed to see his own doctor to remedy his problems as he was no danger to himself or others which [Mr.] Beaulieu must have believed too or he not have allowed [the Grievor] to return to work pending doctors appointment. (emphasis added)
Those facts coincide with the evidence as developed by the Railway. On p. 4 of the letter written by Mr. Beaulieu that appears as Appendix 2, he recorded an April 3, 2000 telephone conversation with Mr. Chambers on behalf of the Union in which he acknowledged that Mr. Chambers had asked on behalf of the Grievor that he “see his own Doctor instead” of the Railway’s doctor. He recorded having rejected that proposal and having cautioned Mr. Chambers that if the Grievor did not keep the appointment that had been made for him “he would be suspended pending and investigation for failing to attend a medical appointment”.
The conclusion invited by the facts regarding cancellation of the appointment is that the Grievor consulted the Union about seeing his own doctor, but when that proposal was rejected by the Railway, neither he nor the Union notified the Railway that he did not intend to keep the appointment. In fact, it would seem that the decision to cancel the appointment was made by the Grievor immediately before it was to take place and without consultation with either the Railway or the Union.
The documentary evidence filed in the proceedings indicates that the Grievor did not pursue the proposal to arrange an examination by his own doctor. On the facts, the behaviour of the Grievor that caused the Railway to question his fitness was never addressed in any form of medical examination at any time prior to the hearing, although it was clear that the Union was striving to obtain an assessment of his condition. In a letter dated September 27, 2000, the Union wrote to the Grievor’s doctor as follows:
I write to you as Vice President of Local 100, VIA Rail, and am presently working to get Mr. Spatling reinstated in his job as VIA Rail Canada. In order to do this, we need copies of your notes in his file, or a letter from you, describing the facts that lead to the firing of the worker. When these events happened, in the Spring of 2000, in April more precisely, Mr. Spatling was having sleep difficulties and had just gone through a domestic break up. We wish to have a description of the diagnoses that were reached and also a report on the actual condition of the worker as the Corporation is asking that Mr. Spatling be in sound mental and physical condition before he comes back to work. We also would like to know what are the care or medical precautions that Mr. Spatling might need in the future; your answer is crucial to the re-employment of the patient. Please, forward all requested material to the address above; you can contact my co-worker, Mr. Burns, if you have additional questions; the worker has also been informed of this request.
It was not clear in the evidence, but it would appear the Union’s letter was in response to a cryptic note provided by the Grievor’s doctor on September 6, 2000. It reads as follows:
This patient had trouble of sleeping due to neck injury and pt [patient] also had poor concentration and pt [patient] is fine now.
On September 9 that note was forwarded by the Grievor, apparently to the Union, with the accompany comment:
This note is the best my doctor will do for me. I hope it will be of use in my grievance.
As stated, there was no indication in the facts developed in these proceedings that the concerns of the Railway, (as reflected in its letter to its doctor), were addressed by the Grievor through his own doctor or through an independent medical examination. Those circumstances are tempered, of course, by the absence of a move by the Railway to have the Grievor submit to an alternative form of examination which would address its concerns after he cancelled his appointment, including its refusal of the proposal made by Mr. Chambers on the Grievor’s behalf.
I pause to note that the Railway’s concerns, as outlined in its letter to its doctor, were not communicated to the Union formally, but it would seem that they were well known by the Union, at least in general terms. It can be assumed that the somewhat restricted exchanges between the parties reflected in the facts were influenced by the sensitivity of the subject matter involved and a desire on both parties to maintain a high degree of confidentiality.
III – Positions of the Parties
(i) – The Railway
Accepting that the Grievor was in a mental state that placed his fitness to perform his work in doubt, an issue of fact arises with respect to the Railway’s reliance in these proceedings on the discretion it possesses under Rule 21.2 of the collective agreement. The position of the Railway was that the Grievor, who had returned from a period of absence caused by an injury, could be seen by that fact as falling within that provision. It reads as follows:
21.2 Employees granted leave of absence will be required to obtain a clearance from the Corporation’s recognized Medical Department prior to terminating their leave of absence and resuming active duty, if the absence was as a result of any of the following conditions:
(i) heart or pulmonary (cardio-vascular) condition;
(ii) anxiety state or mental illness;
(iii) off-duty accident or over four (4) working days absence;
(iv) vision problems;
(v) hearing problems;
(vi) illness of over six (6) months.
In addition, the employer must obtain clearance prior to actually reporting to duty if the employee requires a light duty assignment.
If, in the opinion of Management, an employee returning from leave of absence due to illness appears to be acting in a manner that may result in injury to the employee or fellow employees, such employee will be required to obtain clearance as described above and will be compensated for any time involved at straight time rates of pay. (emphasis added)
The facts relating to the application of the Grievor’s prior absence to that provision were addressed in another context by the Railway in a letter to the Grievor dated May 1, 2000. That letter was written in response to an attempt by the Grievor to claim benefits arising from the prior injury. The letter reads as follows:
I have received and reviewed your letter of April 18th, 2000 (copy attached) regarding your availability for further investi-gations. Our records indicate an incident form (copy attached) was filed for you on October 09th, 1999 for a head and neck injury. On the “Temporary Assignment Prescription Form” it states that you were unable to perform regular duties and did not warrant you having any medical restrictions. This form is signed by Dr. R.D. McNight at Vancouver General Emergency. Between October 09th, 1999 and April 17, 2000 (12 days after your suspension) there is no record of any medical intervention or report regarding your neck and head. There is no record of you ever suffering a back injury. Since there is no documented medical evidence that indicates that you have sustained a disabling injury, we cannot accept your claim as being valid at this time. (emphasis added)
On the facts, the Grievor had not been “granted a leave of absence” coincidental with the events leading to the Railway’s arrangement to have the Grievor examined. As indicated in the Railway’s May 1, 2000 letter, the facts presented in these proceedings did not establish a nexus between the Grievor’s prior injury and the incident that motivated the Railway in scheduling an appointment for him to be examined by its doctor. The Railway sought to shoehorn those facts into the provision as a basis for finding that the Grievor’s cancellation of his appointment amounted to conduct deserving of discipline. In particular, the Railway urged that the provision vested it with the authority to require the Grievor to submit to a preliminary examination by its doctor to determine if a referral for further examination was required. In any event, the Railway saw the Grievor’s conduct in the period between March 28 and April 4, 2000 as incorporating bizarre behaviour that not only justified, but required that he be examined to determine his mental stability. His last-minute cancellation of the appointment he had agreed to was deserving of discipline, said the Railway, and constituted a culminating incident that justified his dismissal.
In support of its position the Railway relied on the following authorities; Re Firestone Tire & Rubber Co. of Canada and United Rubber Workers, Local 113, (1973) 3 L.A.C. (2d) 12 (Weatherill); Re Canada Post Corp. and Canadian Union of Postal Workers (Rostie), (1990) 11 L.A.C. (4th) 226 (Bird); Re Certified Brakes and United Steelworkers, Local 14831, (1990) 15 L.A.C. (4th) 358 (McKechnie); Re Cambridge Memorial Hospital and Service Employees International Union, Local 204, (1996) 59 L.A.C. (4th) 195 (Brent); CP Rail and UTU, April 13, 1995, CROA No. 2608 (Picher); and CP Rail and CAW, April 23, 1999, SHP-480 (Picher).
The Railway relied on the reasoning in Cambridge Memorial Hospital and CP Rail and CAW to support its application of the culminating incident doctrine. The arbitral approach to use of a prior record in support of a subsequent disciplinary initiative was addressed in CP Rail and CAW as follows:
The preponderant jurisprudence in Canadian labour arbitration recognizes that where an employer determines that the conduct of an employee merits discipline, it may treat that conduct as a culminating incident which, in light of the employee’s prior discipline, justifies the termination of his employment. In that circumstance it is permissible for the employer to adduce evidence with respect to the employee’s prior disciplinary record. As a general rule the state of the prior record need not be stated as part of the reason for the discipline assessed in relation to the culminating incident. (See, e.g., Cascade Construction Ltd., (1986) 26 L.A.C. (3rd) 108 (Beattie); Newton Readimix Readi-Mix Ltd., (1984) 17 L.A.C. (3rd) 33 (Dorsey); American Standard, Division of Lobco-Standard Ltd., (1977) 14 L.A.C. (2d) 139 (Burkett). Certainly within the railway industry, both in the Canadian Railway Office of Arbitration and in the presentation of grievances to arbitration within the shopcraft trades, parties generally rely upon the prior service and disciplinary record of employees, both good and bad, to advance their positions in relation to the appropriateness of discipline assessed for a particular incident. That is a process arguably essential to the administration of progressive discipline.
The Brown System of discipline reflects that reasoning. That is, where an employee is dismissed in response to an accumulation of demerits, the underlying reasoning is that imposing demerits reflects a progressive approach to the imposition of discipline that justifies an inference that employees who accumulate a series of demerits that come to exceed the allowable limit can be seen as incapable of responding to lesser penalties and are thus unlikely candidates for retention of the employment relationship.
In the application of that reasoning to the facts present in this dispute, the Railway argued that an examination of the Grievor’s discipline record invited the inference that his employment relationship was incapable of being restored. Its position was that his record demonstrated a pattern of defiance of authority and a lack of cooperation with management. The Railway relied in that context on the comments of Arbitrator Brent on p. 212 of Cambridge Memorial Hospital where she wrote:
[A] key factor in considering a culminating incident and whether discharge is warranted is whether the employment relationship has been irreparably harmed. In this case, the grievor was given a clear warning that discharge could result if she engaged in similar unprofessional conduct again. Further, the past record is not based on trivial, unrelated events. The last disci-plinary event relied on as the culminating incident is not totally unrelated to the previous record. While it in itself would justify discharging the grievor, we consider that when it is viewed in the context of the entire record it is reasonable to conclude that the employment relationship has been seriously undermined by the grievor’s actions. The culminating incident and the record appear to indicate that the grievor is incorrigible and that previous corrective discipline had no effect.
In addressing the merits of the incident that gave rise to the imposition of 20 demerits, the Railway urged that the actions of the Grievor on March 28 and the intervening period before his suspension on April 3 justified a requirement that he submit to a preliminary medical examination to determine whether he was fit to perform his duties. The Railway relied in that regard on the following extracts from pp. 9-10 of CP Rail and UTU where Arbitrator Picher wrote as follows:
As the cases disclose, boards of arbitration strive to balance the interests of the employer in assuring itself of the fitness of an employee to resume his or her duties with the rights of privacy and dignity of the employee in sensitive and personal matters of physical and mental health. Given the stigma which, rightly or wrongly, can attach to a label of emotional or psychiatric abnormality, boards of arbitra-tion must generally require compelling evidence to establish that an employer has reasonable and probable cause to require that an employee undergo a psychiatric examination as a condition of continued employment.
. . . . . . . . . . . . . . . . . . . . . .
It is, however, an extremely serious matter for an employer to require an employee to subject himself or herself to a psychiatric examination as a condition of continued employment. At a minimum, as the cases reflect, the employer must have reasonable and probable grounds to do so. There may be circumstances, I am sure, where such grounds may arise simply on the face an individual’s conduct, without the need for a professional medical opinion. If for example an employee should begin to hallucinate or act in an entirely irrational fashion in the work place, such conduct might, of itself, justify an employer requiring a physical and psychiatric certification of an employee’s fitness to resume his or her employment. (emphasis added)
The Railway submitted that the reasoning in that decision applies to the facts present in this dispute where it was the bizarre conduct of the Grievor and the hostility he expressed toward fellow employees that justified a requirement that he submit to an examination by its doctor. The Railway cited the decision of Arbitrator Weatherill in Firestone Tire for his review of the principles that have application to the right of employers to require employees to submit to medical examinations.
In addition, the Railway, as stated, raised an issue in reply to the Union’s submission to the effect that if it lacked just cause to suspend and then dismiss the Grievor, it was entitled to hold him out of service until he had obtained a medical assessment and had demonstrated his ability to perform his duties. In Firestone Tire, Arbitrator Weatherill wrote on p. 13 as follows:
There is no doubt that an employer has both the entitlement and the obligation to satisfy itself as to the fitness of its employees to carry out the tasks to which they will be assigned. What is proper will depend, in each case, on the nature of the work and the circumstances to which it is to be performed. In Re U.A.W., Local 525, and Studebaker-Packard of Canada Ltd., (1960) 11 L.A.C. 139 (Cross), it was held that it was a paramount right of management to require that employees be physically fit to perform the work that they are required to do and to satisfy itself by medical opinion if necessary, that this is so.
The Railway noted that the conduct of the Grievor in the initial incident on March 28 and in subsequent discussions justified requiring him to submit to a medical examination. In its submission, his initial agreement to and ultimate withdrawal from the appointment was conduct deserving of discipline. In an adaptation of the principles in Firestone Tire, the Railway argued, in effect, that the Grievor was obligated in the circumstances to establish his fitness to perform his duties in light of his conduct. Arbitrator Weatherill concluded in Firestone Tire that where an issue as to fitness arises on facts that make it reasonable to require a medical assessment, the initial onus is on the employee to prove his fitness. Here, said the Railway, the Grievor failed to meet that onus when he cancelled the medical evaluation arranged with his agreement.
The Railway relied on the decision of Arbitrator Bird in Canada Post to support the proposition that if the Grievor’s failure to attend the medical appointment to which he had agreed amounted to conduct deserving of discipline, the fact that he made his decision on the basis of advice from the Union would not be an answer. On p. 247 Arbitrator Bird wrote:
[T]he grievor must bear some responsibility for her behaviour, for if she does not, this award will stand for the proposition that if the union advises conduct which turns out to be contrary to the collective agreement, the employee will escape penalty. This would offer a great temptation to union officers to abuse their positions and employees to behave irresponsibly. However, I do not suggest that the advice given here by the union was not given in good faith or that the grievor behaved irresponsibly.
In applying those principles to the facts present in this dispute, the Railway did not challenge the good faith of the Union, but did urge that the pattern of conduct of the Grievor in agreeing to submit to a medical examination and then canceling his appointment at the last moment justified its response. The Railway saw the decision of Arbitrator McKechnie in Certified Brakes as a reflection of the general principles applicable to the facts present in this dispute. There, an employee was examined by the employer’s doctor coincidental with his absence from work due to alleged injuries. The employer developed a suspicion that the grievor was exaggerating his injuries. The issue was whether the grievor in that case was capable of returning to work and performing light duties.
Initially the grievor in the dispute cooperated by submitting to examinations by the employer’s doctor but grew uncooperative when the doctor concluded that he was capable of returning to work on light duties. The grievor did not accept that conclusion and did not accept the doctor’s direction that, if he wished to challenge the diagnosis, he should consult his own doctor. He also failed to keep an appointment arranged with an independent medical expert scheduled by the insurance carrier administering the disability benefits program from which the grievor was receiving compensation for his wage loss.
The grievor was dismissed by the employer “because he refused to work and refused a medical examination to determine if he was fit for work”. The position of the union in that case, as in this case, was “that the grievor was under no contractual obligation to submit to a medical examination”. Arbitrator McKechnie did not agree with that submission on the particular facts. He found that an employer is not entitled to require employees to submit to an examination by the employer’s doctor if the employee addresses the issue of fitness through his own doctor or through submission to an independent doctor. But an employee cannot frustrate an inquiry into issues that require a medical evaluation by refusing to cooperate in some fashion that addresses the issues in acceptable terms. That reasoning applies here, said the Railway, and the grievance must be dismissed. If it is granted, said the Railway, the remedy must be limited to reinstating the Grievor to a status that leaves him accountable with respect to his fitness to return to work.
(ii) – The Union
The Union submitted that the arbitral authorities spelled out in clear terms that employers cannot require employees to submit to examinations by doctors appointed by the employer unless there is statutory authority or language in the collective agreement that recognizes that right. In support of its position the Union relied on the decision of Arbitrator Picher in CN Rail and BMWE, November 9, 1988, CROA No. 1850. On p. 2 Arbitrator Picher wrote as follows:
The first issue is whether the grievor was under an obligation to comply with Mr. Pettorosso’s directive to be examined by a Company physician to determine his fitness for light duty. On this issue the arbitral jurisprudence is well established. While it may [be] the prerogative of an employer to require a medical certificate to justify an employee’s absence, and to require an employee to undergo a medical examination where there are reasonable and probable grounds to doubt the employee’s fitness to return to work in a safe and efficient manner, absent some statutory or contractual authority, as a general matter an employer does not have a right to require an employee to subject himself or herself to a medical examination. (See Re Riverdale Hospital and Canadian Union of Public Employees, Local 79, (1985) 19 L.A.C. (3d) 396 (Burkett), Re Brewers Warehousing Co. Ltd. and United Brewers Warehousing Workers Provincial Board, Local 311, (1982) 4 L.A.C. (3d) 257 (Knopf) and Re Monarch Fine Foods Co. Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647, (1978) 20 L.A.C. (2d) 419 (M. Picher)).
In the final analysis, what the Union confronted was a dismissal of the Grievor following an investigation that ended when the Railway found that the Grievor had cancelled his appointment with the Railway’s doctor. The Union’s concern was whether the Grievor had been afforded a fair opportunity to address his behaviour through some other medium and establish his fitness to perform his duties.
The Union read the arbitral authorities with respect to medical examinations as supporting a restriction on the right of an employer to require an employee to submit to a medical examination by an employer’s doctor. In particular, it saw the decision of Arbitrator Picher in CN Rail and BMWE as support for its assertion that the Railway lacked the authority to require the Grievor to submit to an examination by its doctor. It further relied on his reasoning to support its submission that the act of the Grievor in cancelling his appointment without the consent of the Railway could not be seen as conduct deserving of discipline.
That precise issue, said the Union, was raised before Arbitrator Picher and he concluded that a refusal to submit to a medical examination which is beyond the authority of the employer to impose does not amount to insubordination and cannot be the subject of discipline. Hence, said the Union, the Railway failed to establish conduct in these proceedings deserving of any discipline and the dismissal must be seen as without just cause. The Union’s position with respect to a restriction on the right of the Grievor to reinstatement with full compensation was that the Railway had made its choice with respect to the offense for which it imposed discipline and, in effect, that was end of the matter. Having failed to support the only grounds advanced for imposing the discipline, said the Union, the Railway was not in a position to change the grounds at the hearing.
IV – Decision
The facts as they were developed in the hearing support the submission of the Union with respect to whether the Grievor’s cancellation of his appointment constituted conduct deserving of discipline in the circumstances. That is not to say that the arbitral authorities support the extreme position of the Union that the only circumstance in which an employee can be required to submit to an examination by the Employer’s doctor is when there is contractual or statutory authority supporting that right. A review of the decisions cited by the authors in Brown & Beatty, Canadian Labour Arbitration, (2001) supports the following summary in para. 7:3220:
However, arbitrators have held that where reasonable grounds for requiring the examination can be shown to exist, it is implicit in the rights of management to be able to insist that the employee submit to such an examination prior to discharge or at least permit the employer to have access to his personal medical records.
The decisions cited in support of that proposition include; Zochem, Div. Of Hudson Bay Mining and Smelting Co. Ltd., (2001) 93 L.A.C. (4th) 289 (Springate); Master Feeds, Div. Of AGP Inc., (2000) 92 L.A.C. (4th) 341 (Kinzie); and Nav Canada, (1998) 74 L.A.C. (4th) 163 (Swan). On the basis of those authorities, I conclude that while the Railway failed to establish just cause for imposing discipline on the Grievor in the circumstances, the facts invite the conclusion that the Railway was entitled to require the Grievor to submit to a medical examination which would provide reasonable assurance that he was fit to perform his duties safely and to hold out of service if he refused.
Thematic in the arbitral authorities is recognition that employers are required to ensure that employees are fit to perform their duties safely. That obligation arises in positive terms with respect to employees who are returning to work from an accident or illness. However, a similar obligation can arise in response to workplace conduct that calls into question the ability of the employee to perform his duties safely. The right to require a medical examination can include a right to require submission to an examination by a doctor appointed by the employer or by an independent doctor.
However, difficulty arises with respect to the rights of an employer who confronts a refusal on the part of an employee to have a medical issue addressed. The authorities do not recognize the right to impose discipline on such an employee. Rather, the remedy for an employer in those circumstances is to refuse to return the employee to active employment until the issue has been addressed. The general question of medical examinations was addressed by Arbitrator Swan in Nav Canada. On p. 184 he wrote:
There may be circumstances where only the opinion of a physician, whether a specialist in aviation medicine or some other discipline, would be sufficient to satisfy the Employer that a particular ATC is capable of returning to work or remaining on duty. If the employee does not consent to providing information to that physician or undergoing a physical examination by that physician, the Employer may simply be unable to satisfy itself of the employee’s fitness, as it is both entitled and required to do. In my view, in such circumstances, the Employer has authority under the management rights provision of the collective agreement, again provided that it has acted reasonably in exercising this discretion, to refuse to allow an employee to return to duty or to continue at duty. Such a decision may or may not, depending upon the circumstances, amount to an administrative suspension from duty. It may also result, in some circumstances, in a reduction in or cessation of salary. In each case, the collective agreement must be consulted to determine the rights of the individual employee affected. (emphasis added)
Those observations should be read as contemplating that the extent to which an employer can require an employee to submit to examination by a doctor appointed by the employer will turn on whether the requirement is reasonable in light of the particular facts. That is, where it may be reasonable to require an air traffic controller who has a vital role in public safety to submit to examination by a specialist, that same requirement may not apply to someone whose condition carries less implication in terms of fitness or safety.
However, in terms of this dispute, it is sufficient to say that while employers are recognized as having the right to require examination by medical authorities sufficient to address issues relating to the employee’s ability to perform his work safely, they do not have the power to impose discipline for a refusal. On p. 184 Arbitrator Swan wrote:
[I] have concluded that the Employer has no independent right to require disclosure of medical information or third party medical examination which can be enforced by disciplinary action. Article 3 and Article 9 are, however, broad enough, for the reasons set out above, to justify administrative action to withhold sick benefits, or to refuse to allow an employee to return to or continue to work until the Employer is satisfied under Article 9 of the validity of a claim for sick benefits, or is satisfied that the employee is fit for duty, pursuant to its general rights and obligations under Article 3. If, in all of the circumstances, the Employer can only reasonably be satisfied by the disclosure of evidence to its medical advisors or by an examination by a physician specified by the Employer or agreed between the parties, then the employee may have to choose between suffering the continued administrative consequences, or consenting to the release or the examination. (emphasis added)
Those principles were embraced by Arbitrator Kinzie in Master Feeds. On p. 353 he wrote:
While Firestone Tire & Rubber Co. of Canada Ltd., supra, refers to one of the options available to an employer being “to require a medical examination, preferably by an independent doctor”, the decision in that case does not, in my view, support the proposition that an employee can be disciplined for refusing to consent to such an option. Instead, in my view, it shows that the remedy available to the employer in such circumstances is to refuse to allow the employee to return to work. (emphasis added)
In Hudson Bay Mining, Arbitrator Springate adopted the reasoning in Brewers Warehousing co. and United Brewers’ Warehousing Workers’ Provincial Board, Loc. 311, (1982) 4 L.A.C. (3d) 257 (Knopf). On p. 308 he cited the following extract from her decision:
The concepts of an employee’s privacy and an employer’s need for information affecting the work place often come into conflict. Seldom is the conflict more difficult to resolve than where personal medical information is involved. This is what makes this case a difficult one for the parties to resolve on their own. The question usually arises in situations where an employer is seeking or requiring medical examinations of employees. While that is not the case in this arbitration, a review of the arbitral authority in this area is helpful and establishes the general theory that an employer does not have an unqualified right to require medical examinations of his employees. The right can be established in the collective agreement or by statute. In addition, the right to require a medical examination may arise if an employer has reasonable and probable grounds for suspecting that, because of a medical condition, the employee is a source of danger to himself, other employees, or company property, or that the employee is unfit to perform his job. Indeed, this right can be viewed as a duty where there are reasonable and probable grounds to suspect danger. (emphasis added)
The arbitral reasoning with respect to medical examinations reflects a consensus that, while employers cannot impose discipline upon employees for a refusal to submit to either an independent medical examination or an examination by a doctor appointed by the employer, they can be kept out of service where the employer has reasonable grounds to question the fitness of the employee to perform his duties. That reasoning has particular application to the facts found in this dispute. There is no doubt that the conduct of the Grievor in the circumstances giving rise to his ultimate dismissal was sufficient to put the Railway in a position to require him to provide proof of his fitness to work safely.
The difficulty in the dispute arose when the Railway moved prematurely to discipline and then dismiss the Grievor in response to his refusal to keep the medical appointment to which he had previously agreed. It is clear on the authorities that it was beyond the rights of the Railway to impose discipline on the Grievor in response to that failure. However, that leaves open the question of the Grievor’s status with respect to his reinstatement. That issue was addressed by Arbitrator Albertyn in Consumer Glass and United Steelworkers of America, Local 260G, (1998) 70 L.A.C. (4th) 140 (Albertyn). In that dispute the grievor was dismissed in circumstances which have similarity to the facts present in this dispute.
Commencing on p. 147 Arbitrator Albertyn recorded that the grievor had been sent home from work for bizarre behaviour which included an assertion that one of his male supervisors had developed a sexual interest in him. There was an abortive harassment complaint against the grievor which, as in this dispute, dissipated as events unfolded. The grievor was suspended and shortly thereafter he was advised to consult with his doctor to determine whether he was mentally fit to attend work. The grievor supplied a medical certificate from his personal physician which did not address his mental state. In response the employer required, inter alia, that the grievor obtain “a psychological assessment by the treating specialist” engaged by his doctor and “a psychological assessment by a specialist of the Company’s choosing that concurs with the report from your specialist”.
Two months later, the grievor confronted his supervisor in public while the supervisor was on vacation. Shortly thereafter the grievor’s personal physician referred him to a psychiatrist. That referral resulted in a brief report which was also unacceptable to the employer. A number of steps were then taken involving psychiatric assessment of the grievor, including an evaluation by a psychiatrist who was jointly appointed by the parties. However, a further incident took place that led to the grievor’s dismissal. Once again it was a confrontation initiated by the grievor with his supervisor on a social occasion away from the workplace.
In addressing the dismissal, Arbitrator Albertyn gave a preliminary decision that amounted to a conditional reinstatement of the grievor subject to prescribed conditions. In the context of this dispute, the following extract illustrates the discretion vested in arbitrators to reinstate employees subject to conditions:
As stated at the conclusion of this award, and for the reasons stated herein, these are my conclusions and this is my decision:
(a) the grievor’s pattern of behaviour in and out of the workplace up to now may be consistent with, and suggestive of, an underlying psychiatric disorder;
(b) the exact nature of his mental state is not clear, and, in order to determine his psychological profile a proper and thorough assessment needs to be undertaken under controlled conditions by an independent psychiatrist or psychiatrists …
(c) the grievor is not at present fit to return to work;
(d) the grievor may not return to the workplace without the express written consent of the Company’s management or by my decision;
(e) without prejudice to either party’s rights in this case, the grievor is deemed to be an employee of the Company …
In Babcock and Wilcox Industries Ltd. and United Steelworkers of America, Local 2859, (1995) 42 L.A.C. (4th) 209 (Williamson), Arbitrator Williamson also granted a grievor what amounted to a conditional reinstatement. On p. 224 the Arbitrator wrote as follows:
By way of summary, and for all the foregoing reasons, the grievance is allowed in part. The grievor is to be reinstated with benefits and full seniority as of the date of his termination. He is to be returned to work upon receipt by the employer of a medical report from a physician agreed upon by the parties stating that the grievor is fit to return to work. The board will remain seized of the matter in the event there are any implementation difficulties.
A similar result was imposed in Thompson General Hospital and Thompson Nurses M.O.N.A., Local 6, (1991) 20 L.A.C. (4th) 129 (Steel). In that decision, Arbitrator Steel had previously reinstated an employee who had been terminated in circumstances described in a prior decision (15 L.A.C. (4th) 257). The reinstatement came in response to a conclusion by Arbitrator Steel that the grievor’s resignation was not binding upon her because of her mental and emotional state at the time.
In the subsequent proceedings, the Arbitrator began with the acknowledgement that, “the union at the hearing indicated that the grievor was under medical care and, if reinstated, would not be returning to work immediately”. The Arbitrator directed that a series of steps relating to the evaluation of the mental fitness of the grievor be undertaken with a return to active employment conditional upon the issue of fitness being satisfactorily addressed. Issues relating to compensation and implementation of the award were postponed pending a resolution of the issue of fitness.
I conclude on the facts that the Railway failed to prove conduct deserving of discipline on the Grievor’s part and he is entitled to reinstatement. However, I conclude on the authorities that I have, and should exercise, jurisdiction to order a conditional reinstatement with a requirement that the Grievor provide a satisfactory medical assessment of his fitness to return to work. The assessment is to be conducted on terms agreeable to the parties. I will retain jurisdiction to impose a process if the parties are unable to agree. I will also retain jurisdiction to resolve any dispute with respect to whether the Grievor has established his fitness. The issues of compensation and implementation of the award will be postponed pending a resolution of the issue relating to the Grievor’s fitness. At that time, if requested, I will assist the parties in addressing those issues.
DATED at the City of Prince George, in the Province of British Columbia, this 9th day of April, 2002.
“H. Allan Hope, Q.C.”
H. ALLAN HOPE, Q.C. – Arbitrator
Please accept this letter as a Step II grievance filed under the provisions of Agreement 3.
Reference, Via Rail’s decision to access discipline to Mr. N. Spatling resulting in discharge for:
“Failure to Attend A Medical Appointment At Medisys on April 04, 2000”
According to a letter from Local Chairperson R. Chambers (copy enclosed) on March 31, 2000 N. Spatling attended a meeting with M. Beaulieu and R. Chambers to discuss Mr. Spatling’s alleged behaviour towards another Employee.
At that meeting according to R. Chambers, it was suggested Mr. Spatling should seek assistance from a councilor and that Via Rail would set up an appointment through their medical provider (Medisys).
On April 3, 2000 Mr. Spatling received a letter to attend a Medisys appointment for a medical assessment.
Mr. Spatling claims in a letter addressed to me, he was unsure exactly what the medical was for stating in part;
“On April 3rd/00 I received a letter from M. Beaulieu to attend a Medisys appointment. I asked M. Beaulieu what the appointment was for. But did not receive a clear answer”.
Mr. Spatling also claims he told Via Rail and R. Chambers he;
“would supply any medical expertise from my Doctor”
This is substantiated in Mr. Spatling’s Employee Statement dated April 28, 2000 (A & A #11)
“Because I didn’t know what the appointment was for and if the Company needs any medical expertise on myself I will provide it from my doctor”
It is clear from his communication to all parties on April 3, and his Employee Statement April 28, Mr. Spatling was prepared to provide any medical information that was required of him, however, he wished to attend his own Doctor.
It is the Unions position, Mr. Spatling informed the Company on two separate occasions that he was willing to provide any medical information that was required, and therefore, Via Rails assessment of twenty (20) demerits was excessive and unwarranted.
Also, in Mr. Chambers letter he indicates that he felt suspending Mr. Spatling was unnecessary and that he should have been allowed to see his own Doctor.
Rule 27.5 of Agreement 3 states in part;
“An employee will not be held out of service unnecessarily pending the rendering of a decision”
If Via Rail felt there was a valid reason to suspend Mr. Spatling, why did they allow him to work March 31, April 1, 2, 3, & 4, pending a medical appointment?
It is the Unions position Via Rail did not have justification to suspend Mr. Spatling.
The Company also states in their letter “Notice of Suspension” in part;
“Since you did not attend the appointment the cost of the cancellation fee is $86.67”
During Mr. Spatling’s Employee Statement (question #15) he was asked;
“Did you cancel the appointment at Medisys”
Mr. Spatling answered;
“I guess I did”.
Mr. Spatling clarified this cancellation further by indicating in answer #16 that he phoned from the lobby.
According to the letter of Monday April 3, 2000, Mr. Spatling was not notified of any time frame in which he had to cancel this appointment, therefore, as indicated, Mr. Spatling complied with the Company’s request and canceled the appointment.
(1) Mr. Spatling notified the company he would submit any medical information required.
(2) Mr. Spatling did cancel the appointment as requested.
(3) Via Rail did not have justification to suspend Mr. Spatling as they let him work (5) days prior to attending a medical appointment.
For the aforementioned reasons, it is the Unions position the discipline assessed Mr. Spatling is excessive and unwarranted and respectfully requests Mr. Spatling be returned to service and made whole for all time lost.
The following is my response to the Step II grievance concerning the assessment of discipline to Norbert Spatling resulting in his dismissal.
This issue began on March 28th, 2000. At that time, Mr. Spatling requested a meeting with members of the OSH Committee and an On-Train Services employee who apparently has a medical background as a nurse. He stated that he had an urgent Health & Safety issue that needed to be resolved.
During this meeting Mr. Spatling alleged that an employee, who is his former girlfriend, was sleeping with everyone in the shop and spreading Herpes. He also stated that he was doing this to protect his friends and he needed to put an end to it because he couldn’t take it anymore. He had also spoken about the allegations with other shop employees, which was documented in a subsequent harassment intervention.
Two of the people that were present during the meeting on March 28th, 2000 sent me a written statement. Part of the statement indicates that Mr. Spatling was very agitated and spoke in a disjointed way during the discussion. This raised our cause for concern.
On March 31st, 2000, Mr. Spatling’s ex-girlfriend formally accused him of harassment after being made aware of the comments he had been making about her combined with the fact that he had been verbally abusive towards her both on and off the job. This interview on that date, took place in the presence of myself and Rick Chambers, C.A.W. Harassment Representative and Local Chairperson.
The woman in question was very upset and cried often during the interview. She also stated that she had no problems with Mr. Spatling and that the only resolve she was looking for was to be left alone and for him to resolve his problems.
Following our interview, Mr. Chambers and I were informed that Mr. Spatling had called in sick. Due to the seriousness of the issue we decided to call him at home to inform Mr. Spatling that he had been accused of harassment. We also informed him that he was to cease and desist this behaviour and that any reprisals would be dealt with appropriately. At that point Mr. Spatling asked if we could pass on a message to his former girlfriend and he began making more allegations about her. During his statement he was very erratic and aggressive. Some of the comments he made are the following:
Many more statements were made that I would rather not include at this time. These statements are retained in a confidential harassment file for future reference, if required.
During the conversation we had with Mr. Spatling, I asked if he could come to my office to meet with Mr. Chambers and I. His first reply was that he had bills to pay and starter problems. (it is important to note that this should have been a normal working day for Mr. Spatling). I asked him to call me later and he agreed to do so.
Mr. Chambers and I then called Mr. Spatling’s former girlfriend to discuss the latest allegations he had made. (She was scheduled to work that day but went home because she felt very upset). She denied all the allegations.
Mr. Chambers and I decided we had to interview the people that Mr. Spatling had mentioned during his statement. All of our interviews confirmed that Mr. Spatling had discussed the fact that his ex-girlfriend had “slept around the shop” but none of them could confirm his allegations and all of them denied knowing or being involved in any such situations.
We then telephoned Mr. Spatling back to ask him to come into the VMC and meet with us. He agreed and arrived approximately two and a half hours later. He was given a letter informing him that he had been accused of harassment and that he was to cease and desist immediately. He none the less began making more allegations and naming employees, which I would rather keep confidential at this time. Mr. Spatling was agitated and difficult to follow throughout the discussion.
I will share the end of the discussion as it occurred on March 31st, 2000. Present were: Rick Chambers, Norbert Spatling, and myself. I asked Mr. Spatling to commit and agree to certain conditions:
Question: “Bob, do you understand that you cannot speak to [Ms. N.]?”
Question: “Do you agree to go for an assessment at Medisys?”
Question: “Did you call the E.A.P.?” (This had been suggested to him during the phone interview that morning.)
Answer: “To get advice, Yes.”
Question: “I will arrange for you to get harassment training and an assessment next week, OK?”
Question: “Rick (referring to Mr. Chambers) do you want to ask Bob any questions?”
Answer: “No, that’s fine.”
Mr. Chambers and Mr. Spatling left my office and went to the front door of the building. Mr. Chambers returned to the office and stated the following to me. “I really think Bob needs an assessment.” I agreed and committed to arranging one as soon as possible.
On Monday, April 03rd , 2000, Mr. Spatling phoned Foreman, Sidney Jones to request vacation. Having asked the Foremen to pay special attention to Mr. Spatling he related this request to me. I immediately phoned Mr. Spatling and reminded him that he had agreed to attend harassment training and an assessment that had been scheduled over the following two days. Mr. Spatling agreed to come to work after some discussion. Later that day he attended the harassment training.
On the afternoon of April 03rd, 2000, I personally gave Mr. Spatling a letter confirming that he had an appointment at Medisys to validate whether he was fit to perform his duties or not. I reminded him that he had agreed to this the previous Friday.
A short time later (April 03rd, 2000), Mr. Chambers phoned to ask if we could cancel the Medisys appointment for Mr. Spatling. I reminded Mr. Chambers that he and Mr. Spatling had agreed that this assessment was required and that I felt it was the Corporation’s duty to ensure that all employees are fit to perform their duties. I also told Mr. Chambers that this was one of the conditions that Mr. Spatling had agreed to as part of the harassment interventions. He then requested that Mr. Spatling see his own Doctor instead. I told him I could not agree to this and that if Mr. Spatling did not attend the appointment that had been scheduled for him, he would be suspended pending an investigation for failing to attend a medical appointment. I also reminded Mr. Chambers that Mr. Spatling had a record of fifty-five (55) demerits and that any further discipline would warrant his dismissal. At this time it was also made very clear that if Mr. Spatling went to his own Doctor, he would still be required to see the company’s Doctor, which is Medisys.
The allegation that Mr. Spatling did not know why he was required to attend an appointment is false. Mr. Chambers is also well aware of this since he took the time to return to my office to reiterate this to me on March 31st after Mr. Spatling left the premises.
You state in your grievance that Mr. Spatling worked on March 31st. This is incorrect, as he was only present to conduct a harassment interview. He did work on April 1st and 2nd because extra precautions (a security Guard) and very close supervision was made available to monitor the situation closely. This is a demonstration that we were acting in good faith and that as long as Mr. Spatling was meeting certain conditions he would not be disciplined.
On April 03rd, we arranged for harassment training to take place, which we thought would be beneficial to him. At the commencement of the harassment training session, we were advised that Mr. Spatling was not present. We had to look for him on two (2) occasions before he was found at which time he proceeded to the training class. The session start was delayed by approximately twenty (20) minutes in order Mr. Spatling not miss any of the information being provided.
On April 04th, Mr. Spatling worked under close supervision until he left the property stating that he was going to his appointment.
Throughout the entire process, Mr. Spatling was erratic, evasive, aggressive and difficult to deal with.
The summary of your grievance stated that “Mr. Spatling notified the company he would submit any medical information required.” As I am sure you are aware, the Corporation has the right and the duty to ensure its employees are fit to work and pose no danger to themselves or to others. We could not continue to monitor him closely as we did on April 1st, 2nd, 3rd, and 4th. Mr. Spatling’s behaviour and actions warranted an assessment by our corporate Doctors.
You also state: “Mr. Spatling did cancel the appointment as requested.” In a letter given to Mr. Spatling (copy attached) it states that he would be responsible for the cancellation fee should he not attend. No one requested him to do so. It also stated that we would not be able to confirm that he would be fit for duties should he not attend the appointment.
Your Item #3 states “VIA Rail did not have justification to suspend Mr. Spatling as they let him work (5) days prior to attending a medical appointment.”. As stated previously, he did not work five (5) days but during the two and a half (2 ½) days he did work, he was always monitored closely. This was an act of good faith that we were willing to do, provided he continued to adhere to the commitments he made during the harassment intervention.
When the harassment interventions took place on March 31st, Mr. Chambers was in full agreement of all the actions that needed to be taken. Mr. Chambers was well aware that if Mr. Spatling did not attend the appointment, he was subjecting himself to discipline. Mr. Spatling was also aware of this. Mr. Spatling has a long history of insubordination, aggressive behaviour, threatening, failure to attend medical appointments, leaving work without authorization and failure to follow directives.
Mr. Spatling has been counseled on many occasions. His cooperation and attitude have never improved. He has been given many opportunities to keep his employment in spite of his extensive discipline file yet he continued to be uncooperative, insubordinate and disregard directives on a continuous basis.
It is our position that Mr. Spatling’s actions and his failure to attend the medical appointment do not warrant another opportunity for his continued employment at VIA Rail Canada.
For all of the abovementioned reasons, your grievance is respectfully denied.