In Calgary Co-operative Assn. (2012), 220 L.A.C. (4th) 329 (Ponak), the arbitrator employed a just cause analysis to uphold an employee’s termination for having failed to provide medical records to support a continuation of his medical absence. This decision ignores the usual privacy considerations and essentially flies in the face of existing arbitral law.
Privacy in regard to the provision of confidential medical information involves a matter of balancing the respective interests of the parties. (see the comments of arbitrator Hope in Ocean Construction Supplies Ltd at page 14 of the Illness and Absenteeism manual).
In the absence of a statutory or express contractual provision in a collective agreement, an employer cannot compel an employee to disclose confidential medical information regarding her health. This principle flows from the acceptance that a medical examination constitutes a form of physical assault, and consequently, an employee cannot be disciplined for refusal to undergo or disclose the contents of a medical examination. However, as discussed at page 179 of the Illness and Absenteeism manual, there can be other significant consequences flowing from an employee’s failure to comply with a justifiable request to submit to an employer-directed medical exam. “These may include the withholding of sick pay, placement of the employee on paid or unpaid administrative leave, holding the employee out of service until the employer’s valid concerns had been addressed, and running the risk that the medical record will be incomplete or unpersuasive.” These principles apply equally to other forms of employer-requested medical information.
It appears from the case that neither party cited the foregoing law, with the matter then being argued in the absence of privacy considerations and the consequences that would normally flow in such circumstances.
At some point shortly before his termination, the employee requested a buy-out package because he said he did not want to return to work. He continued to advance this request at the same time that medical information was being sought without success. The employer declined this request and offered the employee the opportunity to work at another location. The employee refused that offer.
Shortly before his termination, the employee’s physician provided him with two handwritten notes, neither of which were provided to the employer until after the employee had been terminated. The first note said “came to see me today”, while the second stated “advised to quit employment due to medical reasons.”
As arbitrator Ponak noted, “The Union agreed with the Employer that the questions to be answered were whether the Employer had just cause to discipline the Grievor and, if so, was discharge the appropriate penalty: William Scott & Co. …  1 C.L.R.B.R.1 (B.C.L.R.B. (Weiler).” Arbitrator Ponak concurred, stating:
I accept William Scott & Co. as the appropriate analytical framework: 1) did the employer have just cause for discipline; and 2) if so, was the amount of discipline, in this case discharge, justified in all the circumstances? The third question posed by William Scott & Co. addresses any substitution of penalty, an issue on which both parties asked me to reserve should I conclude that the discharge should be overturned.
After having set forth excerpts from several authorities, none of which dealt with the balancing of the respective rights of the parties regarding the issue of privacy, arbitrator Ponak stated:
Based on these and other authorities cited by the parties, discipline will meet a just cause standard if the following tests are met in cases where an employee is legitimately away for medical reasons but then fails to either return to work or justify a continuing absence: 1) the absence extends well beyond the date last supported by medical documentation; 2) multiple requests for medical information are unheeded; 3) a clear warning is issued that failure to provide updated medical information by a specific date will result in discipline; 4) the union and employee are aware of the warning and the consequences for non-compliance; and 5) no medical or other reason is established that precludes the provision of medical information or a return to work.
After concluding that discipline was warranted, arbitrator Ponak turned his attention to the presence of mitigating factors. Those that would favour a suspension rather than a termination included the employee’s 28 years of discipline free service; that there was no question but that the employee had been ill; and that the employee was not functioning at normal capacity because of depression-related anxiety that he was projecting toward his employer.
Arbitrator Ponak stated that factors that would support a dismissal included the employee’s failure to express regret coupled with his argumentative, defensive and vague testimony during the hearing; the possibility that the employee’s reluctance to provide new medical information may have been part of a strategy to obtain a payout that he was not entitled to under the collective agreement; and finally, and most damaging, was that the union and the employee had withheld medical information from the employer.
The collective agreement provided that prior to discipline, there must be an investigative meeting involving the affected employee, a union representative, and management “to discuss the actions giving rise to the discipline” and to present and discuss “all information pertaining to the matter”. The arbitrator distinguished this mandatory provision from one that was discretionary in nature. He stated that here, if the employer wished that the investigatory meeting be waived, “it needed to unambiguously raise that issue with the Union and receive confirmation that discipline could proceed without the meeting.” Moreover, the elements of estoppel had not been satisfied in this particular case.
The arbitrator stated that the violation of this mandatory provision required a remedy. He accepted that violation of such a provision did not automatically overturn disciplinary action that had been imposed. He stated that “arbitrators are required to consider all factors and impose a remedy appropriate in the circumstances … Available remedies include (but are not restricted to) overturning the discipline, awarding monetary damages for the contractual breach, simply issuing a declaration, or applying some combination of the foregoing.”
The arbitrator upheld the termination but reserved jurisdiction to provide the parties with an opportunity to agree on an appropriate remedy.