Fortis Properties _Delta Hotel_ St. John's_ and UFCW_ Local 1252

					Ref. No. 2003.                                                Discipline – Discharge
                                                               Absenteeism, Failure to Produce
                                                                Detailed Medical Information
                                                              Culminating Incident
                                                              Post Discharge Evidence



                                 In The Matter of a Dispute

                                             between

           FORTIS PROPERTIES (DELTA HOTEL – ST. JOHN’S)
                             (hereinafter referred to as the “Employer”)

                                                and

 UNITED FOOD AND COMMERCIAL WORKERS UNION (LOCAL 1252)
                              (hereinafter referred to as the “Union”)


                                         The Grievance

       On May 31, 2002, Mr. Reginald Sampson filed a written grievance claiming the Employer

violated Articles 24:02 and 7:01 and any other relevant articles of the collective agreement when

it terminated his employment.

       Full redress was requested.



       Arbitration hearings were held at St. John’s, Newfoundland and Labrador, on November 19th,

2002; January 3rd, 14th, 27th, March 11th, April 9th, May 27th and June 18th, 2003


       For the Union:          Mr. Dana Lenehan
       For the Employer:       Mr. Denis Mahoney
       Sole Arbitrator:        Mr. David Alcock

       The parties agreed:

                                                 -1-
1)     to the selection of the arbitrator;
2)     that the grievance procedure steps had been waived;
2
3)     that the arbitrator had jurisdiction to deal with the merits of the case;
4)     that the arbitrator would remain seized of the matter for a period of 60 days following the
       date of publication of the award to deal with questions of interpretation which might arise
       from the award, including the quantum of compensation, if any, should the parties not be
       able to agree;
5)     that witnesses would be excluded.


Witnesses Called by the Employer:
Ms. Doris Vallin (via Summons) , Manager Transcription Services & Administration Services,
     Health Sciences Centre, St. John’s Health Care Corporation
Ms. Helena Lawlor, Executive Housekeeper
Ms. Brenda L. Gaulton, former Director of People Resources


Witnesses Called by the Union:
Mr. Gary Tracey, Laundry Attendant, Chief Steward
Ms. Florence Rossiter, Laundry Attendant
Mr. Reginald Sampson, Houseperson, grievor



       The following items were introduced into evidence by witnesses:

C#1    Collective Agreement by and between CHIMO HOTELS NEWFOUNDLAND INC. and
       UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1252;
C#2    Grievance form, May 31, 2002;
C#3    Termination letter, May 31, 2002:

              Dear Mr. Sampson:

              Your employment with Delta St. John’s Hotel & Conference Centre
              is being terminated for cause effective immediately.

              The decision arises from your actions of May 30, 2002 when you failed to
              report to work for your scheduled shift following your two days off.

              You are therefore requested to return your uniforms and any other Hotel
              property to the People Resources Office and remove any personal articles
              from your locker.
              As per our policy in this hotel, you are also advised that you are not
              permitted on hotel premises for a period of one (1) year.


                                               -2-
             Yours very truly,

             Kelly McCauley
             General Manager

C#4   Package of medical information concerning the grievor, including letter of referral to a
      Psychiatrist, March 15, 2002:

             Dear Dr. Ladha,

             Thank you for seeing this 47-year-old gentleman from Aquaforte. Mr.
             Sampson presented to me a few days ago with an attack of generalized
             tremor, palpitation, shortness of breath, nausea, racing thoughts, and fear. It
             lasted about 10 or 15 minutes and he terminated it with mental relaxation.
             He gave no neurological symptoms. His past medical history was negative.
             He’s a smoker, he drinks a lot of coffee and tea, and uses recreational
             marijuana (which he uses once or twice a day to call [sic] his nerves and
             control the aches and pains). His social history showed a man in his third
             marriage with seven children, four from his current wife. He works at the
             Delta hotel in maintenance. He claims a lot of stress at work especially with
             his managers. He also seems to have some financial problems. His review
             of systems was negative. He denied any homicidal or suicidal ideation.

             On assessment he was very dramatic with normal vital signs. An extensive
             physical examination and an ECG proved normal. I did discuss the diagnosis
             of a panic attack and stress reaction with him and he seemed to agree. We
             agreed on some basic investigations to assess his risk of heart disease. I gave
             him a short prescription of Ativan and kept him off work for a couple of
             days.

             His wife called on his first day back on the job, she informed me that he
             started tremor and the beginning of another attack after an argument at work
             and that he had to leave. He came to see me today and confessed his inability
             to function and that his financial problems and problems at work are
             overwhelming him. He needed some time off work. I did book him off for
             two weeks and started him on Celexa 20mg OD. He showed a desired [sic]
             to stop using recreational drugs. I did discuss the issue of smoking and
             caffeine intake with him.

             I will continue in my medical care of Mr. Sampson, but I do believe that he
             needs better psychiatric care then [sic] I can provide and especially that I feel
             some maladaptive personality traits in the background. As he is the main
             breadwinner in the family, I would be thankful you could see him at your

                                                -3-
             earliest convenience.

             His employer has asked him to see the “Company doctor”, Dr. O’Shea, for
             assessment and has asked him to get some information from me. I did not
             know whether relationship of Dr. O’Shea is with the employer. Mr. Sampson
             was worried about information being passed back to his employer and used
             against him. I did explain the difference between seeing a doctor in the
             therapeutic relationship and when a physician is working as an agent for a
             third party and reassured him that no physician involved in therapeutic
             relationship with can divulge information to his third party without the
             explicit consent of the patient. I left to him to decide whether or not to see
             Dr. O’Shea and in what capacity.

             Mr. Sampson agreed to this referral and to me sending you this letter. I am
             thankful for your kind prompt care and assessment of him.

             Sincerely yours,
             Rafi F. Setrak

HL#1 Brochure “Employee Assistance Program”;
HL#2 Attendance Policy, July, 2000:
HL#3 Minutes of Housekeeping Staff Meeting June 27, 2001;
HL#4 Acknowledgment of Review of Policy;
HL#5 Grievor’s Attendance Record 1999 – 2002;
HL#6 A Record/Notice of Discipline for June 14, 2001 “no show”
     B Record/Notice of Discipline for January 25, 2001 “no show”
     C Record/Notice of Discipline for February 10, 2002 “no show”
     D Record/Notice of Discipline for April 1, 2002 “no show”
     E Record of Performance Management for April 4, 2002 “no show” (Decision Making
         Leave Day);
HL#7 Letter from Brenda Gaulton to Reginald Sampson, April 26, 2002:

             Dear Mr. Sampson:

             I understand through your Manager that you will be off work for a period of
             approximately two weeks. To date we have received no medical
             documentation, which is totally unacceptable.

             In our last meeting regarding your attendance, we discussed your
             unacceptable attendance record and you received corrective action for
             unacceptable explanations for no shows for scheduled shifts. This behaviour
             resulted in our taking corrective action up to the last step of our process.
             Therefore, if you do not either report to work immediately, or provide the
             employer with the proper documentation from you and your attending

                                              -4-
             physician for the period of time you are off work, you will leave us with no
             choice but to take the next step in the corrective action process which is
             termination.

             If the employer does not hear from you by Saturday, April 27 as to your plan
             of action, we will consider you a no show for a scheduled shift and you will
             be terminated.

             If you have any questions, please to not hesitate to contact the undersigned.

             Yours truly,

             Brenda L. Gaulton
             People Resources Director

HL#8  Email correspondence, May 1, 2002 between Brenda Gaulton and Helena Lawlor;
HL#9  Medical Note from pad of Dr. Rafi F. Setrak, May 20, 2002;
HL#10 Employee attendance records, January 2002 – 1999;
HL#11 Performance Documentation Sheet, May 30, 2002;
BG#1  Letter, March 14, 2002, from Brenda L. Gaulton, People Resources Coordinator to
     Atlantic Offshore Medical Services;
BG#2 Report by Atlantic Offshore Medical Services Ltd., March 26, 2002;
BG#3 Letter with Weekly Indemnity Claim Forms for March 6, 2002 absence (3 – 6 weeks);
BG#4 Letter with Weekly Indemnity Claim Forms concerning April 23, 2002 absence;
BG#5 July 3, 2002 notes by Brenda Gaulton of conference call between the Grievor and Brenda
      Gaulton and Helen Lawlor;
BG#6 Medical Note from pad of Dr. Setrak, March 7, 2002;
BG#7 Medical Note from pad of Dr. Setrak, March 13, 2002;
BG#8 Medical Note from pad of Dr. Setrak, March 15, 2002;
BG#9 Medical Note from pad of Dr. Setrak, April 23, 2002;
RS#1 Medical Note from pad of Shamrock Medical Clinic, October 18, 2001 – signature
      unreadable;
RS#2 Medical Note from pad of Cowan Ave. Medical Clinic, February 22, 2001 – Dr. D. Hart;
RS#3 Medical Note from pad of Dr. D. Hart, August 20, 1998;
RS#4 Medical Note from pad of Dr. D. Hart, September 10, 1998;
RS#5 Medical Note from pad of Dr. D. Hart, July 9, 1998;
RS#6 Medical Note from pad of Dr. D. Hart, June 8, 1998;
RS#7 Medical Note from pad of Dr. D. Hart, April 23, 1998;
RS#8 Medical Note from pad of Dr. D. Hart, January 12, 1998;
RS#9 Medical Note from pad of Dr. D. Hart; October 18, 1996;
RS#10 Medical Note from pad of Dr. D. Hart; November 26, 1996;




                                              -5-
                                    Procedural Matters


1.   On November 19, 2002, the first day of hearings, the witness summoned by the Employer
     to bring all the grievor’s records appeared with an incomplete set of documents. While the
     witness did bring what was on file at the Health Sciences Centre in St. John’s, the
     documents from the Shamrock Medical Clinic in Ferryland were also being requested.
     Although both parties were in agreement with the witness appearing again on the next
     hearing date, Counsel for the Union wanted to proceed with the hearing on November 19th,
     whereas counsel for the Employer wanted time to review the requested documents before
     proceeding further. The Employer’s request was granted for a postponement to January 3rd,
     2003.

2.   On December 6, 2002, the Delta Hotel (then Chimo Hotels Newfoundland Inc.) was sold to
     Fortis Properties. On December 9, 2002, ten (10) senior and middle managers were let go.

3.   On January 3rd, hearings recommenced, but counsel for the Employer requested a
     postponement until January 14th. Counsel for both sides argued at length on the issue of
     whether the hearing should proceed on January 3rd. Counsel for the Union took the position
     that the pending sale was something both parties had been aware of for some time and,
     therefore, an advisor should have been available. The Union was suspicious of management
     and suggested that Ms. Whitten simply had other priorities at the time. Counsel for the
     Employer took the position that, since he was not retained by the new owner until sometime
     after the sale, only then did he have the right to speak to Ms. Elizabeth Whitten, the new
     Human Resources Manager, who would be his new advisor. Ms. Whitten was not available
     to attend on January 3, 2003 but was able to be present on January 14th. Although the
     Employer argued prejudice should it be compelled to proceed on January 3rd, it indicated
     that its next witness was available and it would proceed if required to do so. After repeated
     accusation and counter accusation about what was said by counsel in their telephone
     discussions in the days immediately preceding January 3rd, permission was granted for
     postponement to January 14th.

4.   In the meantime, the whole medical package concerning the grievor, including a contentious
     June 27, 2002, post discharge letter from Dr. R. Setrak, was submitted subject to a later
     determination of admissibility and relevance. The whole notion of post discharge evidence
     was debated at length, the Employer objecting to its admissibility and the Union insisting
     otherwise. At the early stages of the hearing, it was unclear whether the post discharge
     medical information might be relevant to the events leading to the grievor’s termination on
     May 31, 2002. So, the evidence was received pending subsequent determination of
     relevance. Until such time as a decision could be made on the issue, the parties demanded
     the right to deal with any matters which arose from the June 27th letter.

5.   The March 15, 2002 referral letter by Dr. Setrak to Dr. Ladha contained reference to certain
     marijuana use by the grievor, a matter of which the Employer had no knowledge until the

                                              -6-
       full medical file was made available on January 3, 2003. In the course of cross examining
       the grievor, counsel for the Employer began to question him on this matter. Counsel for the
       Union objected to such questioning on the grounds that the issue previously had not been
       raised with the Employer’s witnesses and that the Employer had no right to add to the
       grounds for dismissal. Those grounds were disputed by counsel for the Employer who put
       the Union on notice that the marijuana issue would be raised in its argument as a reason why
       the grievor should not be permitted to return to work.

       On April 9, 2003, the parties made formal submissions on the foregoing issues and a ruling
       from the arbitrator was requested for the next hearing date, May 27, 2003.



                                         THE EVIDENCE



       On balance, I think that this case can best be understood by setting forth the relevant events

in approximate chronological order. The evidence is too copious and detailed to reproduce

completely. Therefore, the following is what I consider to be a reduced version of the most salient

and relevant evidence adduced.



Background

       The grievor, Mr. Reg Sampson, was hired on April 5, 1990 to work in the hotel kitchen. For

the past seven (7) or eight (8) years prior to his termination on May 31, 2002, he filled the position

of Houseperson (cleaning floors and carpets -- using various chemicals and doing laundry, including

cleaning the press, etc). He was one of a four (4) person team of two (2) other Housepersons and

a Runner. His work schedule was Wednesday to Sunday 0830 - 1630 hours.



The Grievor’s Discipline Record

       For a number of years, Mr. Sampson had a record of absenteeism that the Employer

                                                 -7-
considered both excessive (more than 10 days in a 12 month period and far greater than the norm

among other employees) and characterized by a pattern of absences associated with his days off.

Ms. Lawlor was questioned at length about various entries in the relevant logs, which appeared to

be marked over by other symbols, but at the end of the day, despite some confusing entries, the

evidence clearly demonstrated that the grievor had incurred a substantial absentee record consisting

of a number of no shows (for which no doctors’ notes were received), some “sick” days (for which

notes from doctors’ pads were received), and a number of Weekly Indemnity (WI) absences for

which detailed medical information was provided to the Human Resources department on the

relevant WI medical forms. The grievor did not challenge the extent or pattern of his absences, but

did disagree that his record of absences was excessive.

       The notion of excessive absenteeism arises from the Employer’s Attendance Policy which

is set forth below:

                                      DELTA ST. JOHN’S

                                    ATTENDANCE POLICY
                                         JULY 2000

                                                                                  Page 1
       PURPOSE
       A tracking system is being implemented for the purpose of accurate and up to-date
       information on the attendance and punctuality of employees at the Delta St. John’s
       Hotel & Conference Centre. This tracking system will be used as a performance
       measurement tool and will be used in conjunction with Development Reviews to
       assist in the determination of transfers, promotion and mobility of employees.

       TERMS TO BE USED
       “Excessive Absenteeism” shall be the term for any absences that have increased in
       frequency or severity (i.e., failure to report an absence, lateness of 5 minutes or more
       for a shift, etc.) and exceed 10 days in any 12 month period. After a counselling
       session, these absences will be subject to corrective action.




                                                 -8-
                                                                            Page 2

“No Show” shall be the term used for any failure to report for a scheduled shift. In
such cases there will be zero tolerance and the disciplinary steps should start
immediately.

Tracking of Attendance
C     On a monthly basis, the Attendance Tracking Record should be reviewed and
      analyzed.
C     A copy of the Attendance Tracking Record must be forwarded to the People
      Resources department by the 10th day of each month.
C     Employees who are consistently appearing on the Attendance Tracking
      Record should receive a counseling [sic] session from their manager to
      determine the next course of action.

       WHY TRACK ABSENTEEISM AT THE DELTA ST. JOHN’S

General:              Regular, on-time attendance is a necessity in order to meet
                      our customer needs and our operational goals.

PRODUCTIVITY: Replacement employees may not be fully trained to complete
              the duties and responsibilities of the absent employee.

                      Overworked colleagues may be inefficient at the position
                      because of frustration and fatigue.

COSTS:                Additional employees may have to be called in to work or
                      work overtime to cover the required tasks.


                            TRACKING PROCESS

Manager’s Role

C      Managers must communicate the Attendance policy and Tracking process to
       all employees, stressing the importance of regular attendance and
       punctuality.

C      Managers should recognize employees who have good attendance or who
       have significantly improved their records.

C      Managers should consult with the People Resources Director when an
       employee has reached “excessive” absenteeism, in order to arrange a visit
       with Dr. O’Shea’s office.

                                        -9-
                                                                           Page 3

C      The Attendance Tracking Record is set up on a departmental basis showing
       the name of each employee and the individual days of each month. The
       coding for tracking purposes is as follows:

V      Vacation                      T        Tardiness/Late
H      Holiday                       A        Absent Without Leave
J      Jury Duty                     D        Lieu Day
B      Bereavement Leave             S        Sickness/Illness
L      Leave of Absence              C        STD/WCB
                                     SH       Statutory Holiday

At the end of the month the Manager should review and evaluate the Attendance
Tracking Record noting any patterns of absenteeism and ensuring that all sick days
and lateness issues have been addressed using the Individual Employee Absenteeism
Tracking Sheet. The Attendance Tracking Record must be forwarded to the People
Resources Department by the 10th Day of each month. People Resources will
provide an update to the Leadership Team.


Employee’s Responsibilities

C      When an employee will be absent or late, the Manager (or for the
       Housekeeping department Team Leader) must be informed by the employee
       by means of a telephone call (unless in the case of a medical emergency
       when a family member may call).

C      In order to have sick days paid, the employee must request the Manager to
       do so.


Role of People Resources

C      To coordinate and monitor the program, updating when necessary.

C      To consult with the Manager on any corrective action to be taken.

C      To report monthly and yearly tracking numbers to the Leadership Team.
                                                                        Page 4




                                       -10-
            ADDRESSING THE PROBLEM OF ABSENTEEISM

The first incident of excessive absence (use of 10 days sick leave) warrants a meeting
between the employee and the Manager. At this meeting, the following should be
discussed:

C      Why there is a problem with absenteeism or tardiness/lateness and why it
       would be considered excessive (show relevant tracking).

C      Explain the impact and outcome on guest service when employees are
       absent/not punctual.

C      Ask the employee for their input in providing solutions to the problems.

C      Suggest the Employee Assistance program (EAP) if the conditions for the
       problems warrant this.

C      This meeting must be documented using the Individual Employee
       Absenteeism Tracking Sheet.
C

…IF THE PROBLEM PERSISTS

If improvement does not result, another meeting should be scheduled between the
employee, the Shop Steward and the Manager. At this meeting the Manager should:

C      Explain that the problem previously discussed has not improved and inquire
       as to why this has happened

C      Ask why the solutions that were devised at the last meeting did not work

C      Inform the employee that they will be required to provide a detailed Medical
       Certificate for any illness, regardless of duration as well as any justification
       required for any absence.

C      Establish goals that the employee must meet within a certain time-frame.

C      All goals, time frames, and conversation should be documented and kept on
       the employee’s file. Inform the employee of its contents.

C      Explain that corrective action will be taken on the next incident of excessive
       absenteeism.

C      Document the meeting and forward a copy to the employee and the union

                                         -11-
       representative.


…AFTER NO IMPROVEMENT

If there has been no significant improvement after the above steps have been
completed, a meeting must be scheduled with the employee, department head, People
Resources and the Union. At this point, all documentation will be reviewed with the
employee and corrective action, including suspension will be discussed.


                                                                             Page 5

                              Attendance Policy

The success of the Delta St. John’s Hotel & Conference Centre depends on all
employees being present at work to provide quality service. If you are late or absent
you place an extra burden on your colleagues and, ultimately, they and the guests
suffer.

If a situation arises which makes it impossible for you to report to work you must
contact your Manager AT LEAST THREE HOURS in advance of your shift
reporting time, where possible. You must contact your manager and provide the
following information:

1.     Your name and department
2.     The time you are scheduled to work
3.     The reason for your absence
4.     When you are expected to return
5.     A telephone number where you can be reached

You will be notified by your manager of the home telephone numbers of the
management team of your department.

There will be zero tolerance for an unacceptable explanation for a “no show” for a
scheduled shift.

An absence of more than one day must be reported daily unless other arrangements
have been made with your Manager. An original Medical Certificate may be
requested for any absence due to illness at any time. An employee who has frequent
bouts of sickness may be required to supply a doctor’s note for each bout of illness
and subject to a second medical opinion.

The Medical Certificate on original letterhead must show:

                                        -12-
       C       Employee’s name
       C       Date of visit
       C       Date illness started
       C       Expected date of return to work
       C       Work restrictions
       C       Physician’s address and telephone number
       C       physician’s original signature

C      The original Medical Certificate must be forwarded to your Manager
       immediately.


                                                                               Page 6

Attendance Policy - Page 2

If you do not report to work and fail to call or respond to a call for three consecutive
days, it will be considered that you have resigned and you will be terminated.

Frequent or unexplained absences from work or lateness in reporting for work will
cause serious inconvenience to your colleagues and will hinder your chances of
promotion or transfer. There is a clear connection between your success and
attendance/punctuality record. Lateness (in excess of 3 times) and excessive
absence will result in corrective action.

It should be noted however, because there will be varying circumstances, all factors
will be considered before corrective action is taken. Any corrective action taken will
be in accordance with Article 7 of the Collective Agreement.


                                                                               Page 7
ACKNOWLEDGMENT

This is to confirm that I have reviewed the Attendance Policy. This policy has been
discussed at our Departmental Meeting.

____________________________________                   _________________________
Name                                                   Date

____________________________________
 Witness




                                          -13-
        The foregoing Attendance Policy was subject to considerable scrutiny, especially by counsel

for the Union, who repeatedly questioned management’s witnesses about the distinction between

the expression “detailed Medical Certificate” on page 4 and the expression “original Medical

Certificate” on page 5. Also questioned at length was that the 7 page document in dispute appeared

to be two (2) Attendance Policies.



        Prior to his dismissal on May 31, 2002, Mr. Sampson’s discipline record contained no

penalties for excessive absenteeism, but did contain a number of progressive disciplinary actions

imposed by the Employer for “no shows” for which no medical notes had been received, viz:

Date of                  Date of          Description
Discipline               Incident         of Incident                                        Penalty

June 15/01               June 14/01       Unacceptable explanation for no show               *Verbal
                                          for scheduled shift                                warning
Matters discussed with the grievor (with Union representation) were 1) the incident itself; 2) offered EAP
assistance if the grievor thought he needed it; 3) the pattern of absenteeism that was emerging; 4) the
seriousness of the consequences of being progressively disciplined; 5) whether the Company Doctor (Dr.
O’Shea at Atlantic Offshore Medical Services) might be able to meet any of the grievor’s needs.

June 28/01               June 25/01       Unacceptable explanation for no show               *Written
                                                                                             warning
Matters discussed with the grievor (with Union representation) were 1) the seriousness of the event; 2) this
was the second step in the progressive discipline process; 3) whether the grievor could use the help of EAP
or Dr. O’Shea; 4) the reason for his “no show” – no explanation given; 5) the pattern again of an absence
associated with his days off and 6) the impact of a no show, e.g., the Employer might have to incur overtime;
overburdens and stresses other employees (especially in the summertime), and, if the behaviour is not
corrected, it will lead to termination.

Feb. 20/02               Feb. 16/02       Unacceptable explanation for no show               *One (1) day
                                                                                              suspension
Matters discussed with the grievor (with Union representation) were 1) the incident itself and the reason
offered; 2) the seriousness of a no show and the ultimate termination of the grievor if he did not correct his
behaviour; 3) the pattern was repeated; 4) offered the services of the EAP and Dr. O’Shea.


Apr. 4/02                Apr. 1/02        Unacceptable explanation for no show **One (1) decision-
                                                                               making leave day

                                                     -14-
The decision-making leave day was Delta policy, designed to permit an employee, who is about to face the
final discipline step of termination, time to decide whether or not he wants to continue to work for the
Employer and, if so, to make the necessary commitment to improve.

Matters discussed with the grievor (with Union representation) were 1) the incident itself; 2) the impact of
his no show on the Employer; 3) his reason (unacceptable); 4) another absence in the same pattern; 5) that
he had been cleared to return to work by Dr. O’Shea; 6) offered EAP; 7) that he had to make a commitment
to the Employer in order to keep his job; 8) that Helen Lawlor would meet him at the beginning of his regular
shift on Sunday morning April 6th to discuss his decision.

*       grievor refused to sign Notice of Discipline form
**      grievor refused to sign Notice of Discipline form, but did sign Record of Performance Management
        form dated April 4, 2002, which states in the “EMPLOYEE COMMITMENT” section:
                 Want to work – will improve attendance
                 Does understand one more unacceptable NO SHOW will result in termination

        No grievances were filed on any of the “no show” disciplines.


Reason for Referring the Grievor to Atlantic Offshore Medical Services

        In the midst of the foregoing events for which he was disciplined, the grievor did not show up for his

scheduled shift on March 7, 2002,. The reason he offered was that he had an anxiety attack. On March 14,

2002, Ms. Brenda Gaulton wrote Atlantic Offshore Medical Services requesting an appointment for the

grievor for a full medical assessment, viz:

        Dear Kelly:

        Could you please arrange an appointment for our employee Reg Sampson.

        Mr. Sampson has excessive absenteeism, as defined by our Attendance Policy here at Delta
        St. John’s (i.e. more than 10 days in a twelve month period) In fact, Mr. Sampson has missed
        30 days of work due to illness in the last 12 months. A review of his attendance record shows
        that all sick days taken correspond with his scheduled days off, that is occurring before or
        after his scheduled days off. In a telephone conversation with Mr. Sampson yesterday he
        volunteered that his most recent bout of illness on March 7, 2002 started as a nose bleed and
        he suffers shivers through his body, which his physician has diagnosed as panic/anxiety
        attacks, for which he has been issued medication.

        Before we make any decision with regard to Mr. Sampson’s attendance, I am requesting a
        full medical assessment of him so that we can determine whether there is any significant
        medical reasons preventing him from working.

        Should you require further information, please feel free to contact me at 570-1629.

        Yours truly,

                                                    -15-
        Brenda L. Gaulton
        People Resources Director

        The result of Mr. Sampson’s medical assessment (voluntarily attended) is contained in BG#2 dated

March 26, 2002. In that form, Dr. C. McVicar wrote:

        A full medical history and examination was performed today. There are no medical reasons
        to explain his frequent absences from work. He has been cleared to RTW by his GP as of the
        28-03-02, or off until the 26-03-02.

No active interactions with Physio or Occupational Therapists were indicated. However, the Assessment

form noted that the grievor’s GP had referred him to a Specialist. While there is no indication on the

Assessment form what type of Specialist was involved, on BG#3, the Attending Physician’s Statement in the

grievor’s WI claim form for his absence commencing March 6, 2002, reveals that the Employer already had

information that the grievor had been referred to a Psychiatrist (see C#4, Dr. Setrak’s referral letter dated

March 15, 2002) who would see him in late April, 2002. Notwithstanding the pending appointment with the

Psychiatrist, the attending physician noted that the grievor’s physical examination was “essentially non-

contributory” and he provided a primary Diagnosis of “? Adjustment disorder & anxiety problems,” the

subjective symptoms of which were stated: “9conc; panic attack ppt. by stress, irritability, excessive worry.”

Subsequent to the AOMS assessment, Mr. Sampson visited Dr. Setrak again, expressing dissatisfaction over

having seen the Company doctor. (It was then, Mr. Sampson claims, that he asked Dr. Setrak for a referral

to a specialist, the timing of which he was obviously mistaken). Although he told Dr. McVicar during the

Assessment that he had a lot of stress, he felt that the doctor ignored this information and concentrated instead

on his physical examination. Nothing was said about his anxiety. Indeed, stress was the reason for his

absence on April 1st, however, he did not discuss medical certificates with Ms. Lawlor at that time.

        In the Sunday morning April 6, 2002, meeting between Ms. Lawlor and the grievor after his decision-

making leave day, Ms. Lawlor stressed that he had to improve or the next step would be termination. She

explicitly told him that one (1) more unacceptable “no show” would result in his dismissal. According to Ms.

Lawlor, Mr. Sampson said that he did not want to lose his job and that he would improve his attendance.


                                                      -16-
        On April 24, 2002, the grievor went off work again after his two days off. Ms. Lawlor telephoned

him and told him that, if he was sick, the Employer would require a detailed explanation and that the

Employer would not accept a doctor’s notepad stating “unable to work.” Mr. Sampson was then asked to pick

up a letter on the matter written by Brenda Gaulton on April 26, 2002, along with the necessary Weekly

Indemnity papers that had to be completed, viz:

        Dear Mr. Sampson:
        I understand through your Manager that you will be off work for a period of approximately
        two weeks. To date we have received no medical documentation, which is totally
        unacceptable.

        In our last meeting regarding your attendance, we discussed your unacceptable attendance
        record and you received corrective action for unacceptable explanations for no shows for
        scheduled shifts. This behaviour resulted in our taking corrective action up to the last step
        of our process. Therefore, if you do not either report for work immediately, or provide the
        employer with the proper documentation from you and your attending physician for the
        period of time you are off work, you will leave us with no choice but to take the next step
        in the corrective action process which is termination.

        If the employer does not hear from you by Saturday, April 27 as to your plan of action, we
        will consider you a no show for a scheduled shift and you will be terminated.

        If you have any questions, please do not hesitate to contact the undersigned.

        Yours truly,

        Brenda L. Gaulton
        People Resources Director

         Mr. Sampson testified that he could not recall any telephone call from Ms. Lawlor on April 24th;

nor could be remember seeing the April 26th letter before this arbitration. The grievor had difficulty reading

that letter at the hearing. Referring to his Grade V education for this deficiency, Mr. Sampson admitted that

there were some portions he could read and some portions he could not. Upon reading the April 26th letter

at the arbitration hearing, the grievor believed that its message was that he would be fired if he did not bring

in the proper doctor’s note. He also believed that the proper doctor’s note was the same as the other doctor’s

notes he had brought in for previous absences. In his view, the doctor’s note, BG#9, dated April 23, 2002,

was a proper doctor’s note. Notwithstanding the foregoing, Mr. Sampson testified in cross examination that


                                                     -17-
on April 24th, Ms. Lawlor did tell him that a simple doctor’s pad note would not suffice anymore.

        Although the grievor testified that he could not recall seeing the April 26, 2002 letter before, he

thought he recalled picking up the letter with some WI forms in an envelope at the Hotel. He also said that

he was unsure whether his discussion with Ms. Lawlor occurred around that time, or whether he was off on

sick leave at that time. He later testified that he could not remember the Employer giving him WI forms for

Dr. Setrak to fill out. He also could not remember taking the WI forms to Dr. Setrak and he could not recall

any delay by Dr. Setrak filling out those forms. He also could not recall hearing Ms. Lawlor or Ms. Gaulton

testify to such a delay. Furthermore, he could not recall Dr. Setrak saying that he was reluctant to fill out the

WI form because the information asked for pertained to Dr. Ladha’s observations. He specifically could not

recall Dr. Setrak saying that his job was on the line and he could not recall telling Ms. Lawlor that

information. He did, however, recall the Employer telling him by the end of April 2002, that he had a serious

attendance problem, that detailed medical information was required and that a doctor’s notepad would not

suffice. In the past, the grievor had brought in detailed medical notes, namely, the relevant WI forms, which

explained why he was sick.. However, as far as doctors’ notepads were concerned, he always accepted

whatever a doctor wrote and always brought them to the Employer. In his view, those notes contained

detailed medical information concerning the reason he could not report for work.

        Notwithstanding the foregoing, the evidence is that the grievor did come to the Hotel on Saturday

morning, April 27th, gave his Team Leader a note (BG#9) and said he had to go because he was not feeling

well, which, he testified, was a result of the anxiety that was affecting him at the time. The evidence is also

that the Team Leader gave him Ms. Gaulton’s April 26th letter and the Weekly Indemnity forms. There was

no reason for his April 24th - May 7th absence on the note he brought in that day (see BG#9). However, the

evidence is that Mr. Sampson did subsequently submit to Ms. Gaulton the relevant Weekly Indemnity forms,

BG#4, which provided detailed medical information required for his absence. Those forms, which were made

available to the Employer on or around May 10, 2002, state in the Attending Physician’s Statement that the

patient’s condition was a “continuation of same condition. See form dated 20.03.02.” The name of the

                                                      -18-
Psychiatrist was indicated, the primary Diagnosis was expressed as “Anxiety,” and the subjective symptoms

were expressed as “see prev. form – symptoms worsened after return to work.”



The Events of May 30, 2002

        Immediately following his two days off, Mr. Sampson was absent from work again on May 30th.

Ms. Lawlor learned from the Team Leader that the grievor had called to say that he was sick and would not

be in. Upon being advised of the situation, Ms. Gaulton instructed Ms. Lawlor to telephone Mr. Sampson

to see why he was not coming to work. Ms. Lawlor sought out Gary Tracy, Shop Steward, and asked him

to accompany her to her office where she explained the situation and informed him that she was going to

advise Mr. Sampson to come to work because his circumstances were serious and that he was facing

termination.

        There are somewhat different accounts of what was said in the ensuing telephone call which occurred

sometime between 0900 hours and 1100 hours on May 30th..

        According to Helena Lawlor’s direct examination, when she put the call on the speaker and asked

the grievor what was wrong, he said he was “not feeling well.” She then told Mr. Sampson that if he did not

show up with a detailed medical record, he would be terminated. She also urged him to take a rest and then

come in for part of his shift because she needed him to work, to which Mr. Sampson responded, “I can’t help

it if I’m not feeling well.” At the end of the conversation, the grievor said, “I’m going to see the doctor this

morning.” Ms. Lawlor reminded him that “we won’t accept a note without detailed medical information.”

Mr. Sampson then reiterated the only explanation he provided to her, namely, “I can’t help it if I’m not

feeling well.” In cross examination, Ms. Lawlor confirmed that she made it clear to Mr. Sampson that he

would be terminated if he showed up the next day without detailed medical information, which, she

understood, was justified for “no shows” by the Attendance Policy (under the heading of Medical

Certificates). In Ms. Lawlor’s view, since the issue of “proper documentation” was previously mentioned

in the April 26th letter, Mr. Sampson was aware what detailed medical information meant. Indeed, she told

                                                     -19-
him herself that note pads would no longer be accepted. On HL#11, Performance Documentation Sheet for

May 30/02, Ms. Lawlor wrote:

        Reg was scheduled to work 8- 4:30 pm today following 2 days off. He called in sick around
        7:00 am – told Juanita (team leader) that he wasn’t feeling well. Consulted with HR & was
        advised to call him to make certain that he understood the consequences of his actions. I told
        him that we were no longer accepting sickness as a reason for his not showing up for shifts.
        This unacceptable explanation for a no show would result in termination, unless detailed
        documentation was received from Dr.

Ms. Lawlor further explained in cross examination that the reason doctors’ pad notes were no longer

acceptable was because the grievor had been referred to the Company doctor two months earlier and had

been cleared to return to work. He had also been cleared by the Psychiatrist. Despite these medical

clearances indicating that he was fit to work, the grievor persisted in his pattern of not showing up for work

on a day after his two days off.



        Mr. Gary Tracey testified that he attended the first, third and fourth of the grievor’s discipline

meetings. He recalled that the April 1st no show involved a sick child, but there was little discussion on the

issue of medical certificates, rather the focus was on his absences. Mr. Tracey indicated that he was not

present when Ms. Lawlor called Mr. Sampson on April 24th, and he did not see the April 26th letter until this

arbitration hearing. Since the Employer normally sought out his presence in matters of discipline, he was not

aware of any other shop steward who might have been involved in the April 26th matter.

        Mr. Tracey was informed by the Team Leader, Juanita Morgan, that Mr. Sampson had called in sick

on May 30th. Ms. Lawlor then told him that she wanted to talk to Mr. Sampson later that morning. She also

said that, at that point, the disciplinary step for a no show would be termination. Therefore, Mr. Tracey

agreed to speak to Mr. Sampson on the speaker phone in Ms. Lawlor’s office between 1000 hours and 1100

hours. Ms. Lawlor placed the call and asked the grievor why he had called in sick. Mr. Sampson told her

that he was not feeling well enough to drive to work. Mr. Lawlor advised him that that action would lead to

his termination, so she asked him to return to work. She also asked him whether he was throwing up, etc.


                                                     -20-
Ms. Lawlor told him to “get to work, even put in an appearance” so as to avoid termination. In Mr. Tracey’s

view, since the drive from Aquaforte would take the grievor two (2) hours, it was obvious that Ms. Lawlor

wanted him to come to work just so that he would not have another no show.

        As is indicated on HL#11, the May 30th Performance Documentation Sheet, Ms. Lawlor did tell Mr.

Sampson that the Employer was no longer accepting “sickness” as a reason for not showing up for shifts.

However, Mr. Tracey had never heard the Employer say that before. HL#11 also mentions “unacceptable

explanation for a no show.” However, in that telephone call, the emphasis was on the no show regardless

of any reason. Mr. Tracey also could not recall any discussion about the grievor being required to bring

detailed documentation from the doctor.

        In cross examination, Mr. Tracey said that there were 22 other Shop Stewards in the hotel, including

one in Housekeeping. Therefore, the grievor would not have to go far to find representation. He indicated

that the grievor was the first one of the Housekeeping team (of four (4) persons) who was terminated. As

Shop Steward, Mr. Tracey had been aware that there were employment issues with Mr. Sampson since 2001.

He agreed that the Union did not file grievances on three (3) of Mr. Sampson’s previous disciplines. There

was a grievance filed on the February 10th incident, but it was abandoned. In the result, Mr. Tracey agreed

that he was aware in April 2002 that, if the grievor has any more unexplained “no shows,” he could be subject

to termination. He also agreed that he was aware that the Employer referred Mr. Sampson to Atlantic Medical

Offshore Services for a medical assessment in March 2002, but no grievance was filed on that referral. The

Union concurred with the Employer that referrals to Dr. O’Shea would occur when employees exceeded the

10 or 11 day absence mark. In essence, Mr. Tracey testified that he was aware of the grievor’s whole

attendance problem and that “the Employer had been doing everything to stem the problem for him.”

However, Mr. Tracey said that, while he works with both employees and management to resolve problems

at work, other than possibly telling Mr. Sampson as a friend where he was headed and not to have any

unexplained absences, he never spoke to him to try to get him to improve his attendance. He further agreed

that the Union had not suggested any other method of resolving Mr. Sampson’s attendance problem. In his

                                                    -21-
view, he was not frustrated with the grievor’s particular attendance situation, rather he treated Mr. Sampson’s

case the same as any other employee who had attendance problems.

        Mr. Tracey testified that he said nothing and objected to nothing during Ms. Lawlor’s May 30th

telephone call. He only sat and listened. While Ms. Lawlor did say that the Employer was no longer

accepting sickness as a reason for no showing up for work (something Mr. Tracey disagreed with but did not

object to at the time), and she may have told Mr. Sampson to bring in a doctor’s note, he could not recall her

telling him to bring a “detailed” doctor’s note. Mr. Tracey agreed that while Mr. Sampson was telling Ms.

Lawlor that he was not feeling well, Ms. Lawlor was looking for more explanation than that, and she told

him that sickness is no longer acceptable. Ms. Lawlor did not say what explanation would be acceptable. Mr.

Tracey assumed that Mr. Sampson was being told to bring in the same type of medical note that he had on

other occasions. In the meantime, Ms. Lawlor was clearly telling him that he had to come in to work no

matter how sick he was. In Mr. Tracey’s view, since the grievor’s appointment with the doctor was not until

later, no further explanation was available at the time of the telephone conversation. It was his understanding

that a note from that doctor would then avoid a “no show.”

        Mr. Tracey, was not present at Ms. Lawlor’s April 24th telephone call to the grievor, and did not see

the April 26th letter until this arbitration. Moreover, since he had no calls or communication from Mr.

Sampson to make him aware that the letter had been received, and since it is unlikely that the grievor would

have called anybody else in the Union, he assumed that the Union was not consulted on this matter. In

addition, Mr. Tracey was not made aware by anybody that the grievor was having troubles getting his WI

forms submitted for his April 24th- May 7th absence.



         Mr. Reg Sampson confirmed that he telephoned the Team Leader in Housekeeping at 0700 hours

on May 30th and told her that he would not be at work because he was not feeling too well. At approximately

1030 hours, Ms. Lawlor phoned him and asked what was wrong and said that he had to provide reasons.

Then she said something to the effect that there would be actions taken against him if he did come to work.

                                                     -22-
She proceeded to ask him if he had a headache or was throwing up. His answer was, “I’m not feeling too

well.” Ms. Lawlor told him to come in to work. He told her that he “was too sick to drive over the road and

besides I have a doctor’s appointment that morning. I’m very sorry.” That ended their conversation. There

was no further response from Ms. Lawlor.

        The grievor testified that, on May 29th, Wednesday, he put a set of swings outdoors (after a day’s

rain) and was “eaten” by flies. He was bitten severely on his chest, stomach, back, arms, head and behind

his ears. He said he had so many fly bites that he was sick to his stomach, had headaches, and the bites were

swelling. When he saw Dr. Setrak on the morning of May 30th, he was not given a prescription, but was

advised by the doctor to purchase Benadryl over the counter. When he returned home, he told his wife that

he had to go to work. However, she objected and would not let him drive because he was drowsy from the

medication he had taken. So he brought the doctor’s note (BG#9) to work the next morning.

        In cross examination, Mr. Sampson confirmed that on May 30th, Ms. Lawlor asked him what was

wrong with him and she suggested a number of ailments, e.g., headache, stomach pains, etc., but he did not

want to tell her specifically why he was not coming to work. The decision not to come to work was his

decision based on the fact that he was sick. He already had an appointment with the doctor later that morning,

and he knew that he would have to get a form from the doctor saying what was wrong with him and why he

could not work. At the arbitration hearing, Mr. Sampson agreed that the May 30, 2002 note from Dr. Setrak

does not explain why he could not come to work.



The Events of May 31, 2002

        Helena Lawlor testified that, when she came in that morning, Mr. Sampson was working in the

Laundry. She asked him if he had brought a letter from his doctor and he said yes. Ms. Lawlor then read

HL#9, a note from a doctor’s pad which had been given to the Team Leader and placed on Ms. Lawlor’s desk,

which said only “not fit for work on May 30, 2002.” Her reaction was to go immediately to Ms. Gaulton’s

office, but discovered that she was out of town. Therefore, she consulted her supervisor Cindy French, who

                                                     -23-
was aware that Mr. Sampson had come to work with precisely the kind of doctor’s note that Ms. Lawlor had

asked him not to bring. Ms. French then went to see the General Manager and the decision was made to

terminate the grievor.

        Ms. Lawlor asked Gary Tracey to get Mr. Sampson and come to the Comptroller’s office. Mr. Frank

Whelan (Unit Chairperson) accompanied them to the meeting, which was also attended by Ms. Lawlor and

Ms. French. Ms. Lawlor began the meeting by saying that she was reacting to a situation that had been

created by Mr. Sampson (showing up with exactly the type of note she had told him not to bring) and that she

was taking no pleasure in doing what she had to do. She then asked Mr. Sampson for an explanation. His

reply was that he had an allergic reaction to the medication he had put on his fly bites. Ms. Lawlor (noting

to herself that he seemed not to be suffering from any lingering effects from any illness) reminded him that

no explanation for his absence was provided on the note that he had brought. Mr. Sampson did not offer any

reason for that. Ms. Lawlor stated that his absence occurred 1) directly after his days off (part of the pattern);

2) after all the previous disciplinary steps had been taken and 3) after he had been told to bring detailed

medical information, but did not do so. She then gave him the termination letter, C#3. Mr. Sampson reacted

to this by shaking Ms. Lawlor’s hand and saying, “ It was good working with you.”



        Ms. Florence Rossiter, the grievor’s co-worker in Housekeeping, recalled that she spoke to Mr.

Sampson briefly by the press about five (5) minutes after he came to work on May 31st. She could not recall

anybody else being present at that time. Although unsolicited by her, he pulled up one of his long sleeves

and showed her an arm that had red and yellow spots that were really sore. Repulsed, she drew away saying,

“get away from me.” Mr. Sampson then told her that they were flybites he had gotten on May 29th when

putting up a swing outdoors.



        Mr. Gary Tracey testified that he was working on another shift on May 31st, but there was some

overlap with Mr. Sampson’s shift. He saw the grievor at approximately 0800 hours and discussed his absence

                                                      -24-
of the previous day. Mr. Sampson was in the process of talking to Ms. Rossiter and showing her his flybites.

He noted that, when he rolled up his sleeves, his arms were covered with red and white lumps that appeared

to be seriously infected. Ms. Rossiter recoiled when she saw them.

        When the meeting occurred later that morning in the Comptroller’s office, Ms. Lawlor acted as Chair

and started things by saying that the termination letter had been prepared. Ms. Lawlor told the grievor that

he was being dismissed because of a no show and because of other days missed on his record. She also told

Mr. Sampson that he was not able to perform his duties and that this was the final straw. Then she gave him

his letter of termination.

        Mr. Tracey understood that Mr. Sampson had provided a medical note for that day. However, the

only comment made about the note at the meeting was that it was not very specific. The main focus was on

the fact that the grievor had missed more work.

        In cross examination, Mr. Tracey added that he did not ask any questions when Ms. Lawlor contacted

him to bring Mr. Sampson to a meeting. Although he knew that the topic would be Mr. Sampson’s situation,

neither he nor Unit Chairperson, Frank Whelan, gathered any extra information or discussed anything with

the grievor before the meeting occurred. At the meeting, Mr. Sampson was given the letter of termination.

Ms. Lawlor said that the action was being taken because of the event on May 30th and the unacceptable no

shows for which he had already been disciplined. Although the meeting lasted abut fifteen (15) minutes, Mr.

Tracey could not recall anything else that was said. It was not a give and take meeting; Ms. Lawlor did the

talking, neither Union representative said anything. Ms. Lawlor may have said that the doctor’s note was

unacceptable. Not a great deal was said about the note itself except for Ms. Lawlor saying to Mr. Sampson

that he had missed more work again and that he had brought in a simple note with a tick indicating “unfit for

work.” Mr. Tracey did not consider the note to be a significant matter. He was satisfied that it was a standard

note like others that had been accepted by the Employer. In his opinion, Ms. Lawlor’s main thrust was that

the grievor had missed work again.



                                                     -25-
        Mr. Reg Sampson testified that he could not remember whether he gave the note, HL#9, to Ms.

Lawlor or had passed it into the office on May 31st. He did recall talking to Florence Rossiter that morning

after punching in. He was scratching and Ms. Rossiter asked him what was wrong with him. He pulled up

his sleeve and she asked him what the lumps were. He told her that he had flybites. She said, “get away from

me, you have a disease.” The bites had pus coming out of them, they had caused his body to swell and he

was scratching.

        At the meeting, Ms. Lawlor simply read out the termination letter, which had already been prepared,

and told him that he had to stay out of the Hotel for one (1) year. Nobody asked him at that meeting for an

explanation why he did not get to work the previous day. And he could not recall Ms. Lawlor saying that the

medical note he had passed in was not adequate. When the letter was read, Mr. Sampson got up, shook her

hand and said, “It’s been nice working with you.”

        In cross examination, Mr. Sampson said that, in the May 31st meeting, he did mention having had an

allergic reaction. Dr. Setrak did not give him a prescription but advised him to pick up some Benadryl at the

Pharmacy. No medication was given to him for his headaches or nausea. Although he could remember very

little about the meeting, Ms. Sampson disagreed that he felt it was right that he should be fired. He was eaten

by flies on May 29th, his body was swollen the next morning and he had headaches and nausea, he called his

supervisor to say that he would not be in because he was not feeling well, he saw the doctor about his

condition, and he brought the Employer the note that the doctor gave to him. When Ms. Lawlor called him

in the morning, he told her the same thing that he had told his supervisor. After he saw the doctor and

received the note, he did not read it or pay any attention to it. He simply folded it up and put it in his pocket.

Mr. Sampson disagreed that he deliberately ignored Ms. Lawlor’s instructions, but he agreed that, by not

reading the note, he did not know that it was the very note that he had been asked not to bring.

        Asked how difficult it is to obtain a doctor’s note, Mr. Sampson said that it is not easy. In his view,

Dr. Setrak would not give him a note unless he was actually sick, under stress, or experiencing personal

problems (which he wanted to keep to himself.). To get a doctor’s note, he would have to visit him for his

                                                      -26-
sickness. Only after the doctor had seen him would he ask for a note for work.. Mr. Sampson said that he

never obtained any note from Dr. Setrak without seeing him first. However, he conceded that he could recall

once when he was too sick to visit the doctor himself that his wife called the doctor and obtained the note for

him.

        When counsel for the Employer was questioning the grievor about the nature of his job, whether the

press had any moving parts, whether he used any particular chemicals in his job, etc., counsel asked him if

he could remember Dr. Setrak asking him if he used marijuana. Mr. Sampson recalled the doctor asking

about that but denied that he is a user of marijuana. At that point, counsel for the Union objected to such

questioning because it constituted additional grounds for termination. Considerable acrimonious argument

ensued between both counsel, whereupon the arbitrator adjourned the hearing for the day and instructed them

to make formal submission on the issue for the next scheduled date. Before leaving the room, counsel for the

Employer put the Union on notice that he would raise the grievor’s marijuana use in arguing that a return to

work should not be considered in those circumstances.

        The parties’ submissions are as follows:

        The Union’s Written Submission

        1.       The Grievor is a twelve year employee of the Employer in the laundry department.

        2.       In the first five months of 2002, the Grievor missed more than thirty days from
                 work. For most of these days he provided medical documentation to substantiate the
                 absences. Within this time period the Grievor also missed days for which he did not
                 provide a doctor’s note or other satisfactory explanation. These days were classified
                 as “no shows” by the Employer.

        3.       The Grievor received a number of disciplinary notices for these “no shows”.

        4.       Upon his fifth “no show” on 30 May 2002 the Grievor was dismissed for cause. The
                 union grieved the dismissal.

        5.       The arbitration hearing commenced on 19 November 2002. At the outset of this
                 hearing the counsel for the Employer confirmed the Employer’s grounds for
                 dismissal were repeated “no shows” culminating with the “no show” of 30 May
                 2002.

        6.       The first witness called by the Employer was Doris Vallin, the director of medical

                                                     -27-
      records for the Health Care Corporation of St. John’s. Ms. Vallin provided, inter
      alia, the records of the Shamrock Medical Clinic in Ferryland. The Grievor’s family
      doctor, Dr. Setrak, works out of this Corporation-run clinic. It was Dr. Setrak who
      provided the various doctor’s notes for the Grievor, including the note of 30 May
      2002. Included in the materials as well was a referral letter from Dr. Setrak to Dr.
      Ladha, a psychiatrist, dated 15 March 2002, in which there was mention of frequent
      alcohol and marijuana use by the Grievor. Ms. Vallin provided no evidence on the
      actual contents of the medical records.

7.    The hearing proceeded on 14 and 27 of January, 2003 and 11 March, 2002. The
      Employer called Helena Lawlor, a supervisor, as its second witness.

8.    At the conclusion of counsel for the Employer’s Examination-in-Chief of Ms.
      Lawlor, Mr. Mahoney asked Ms. Lawlor the following questions:
              “Did you have any prior knowledge of Mr. Sampson
              having anything to do with illegal drugs in the
              workplace?”
              “What about drinking in the workplace, any prior
              knowledge of Mr. Sampson drinking in the workplace?”

9.    These questions were the last questions posed to Ms. Lawlor in her direct
      examination.

10.   The final witness called by the Employer was Brenda Gaulton, human resources
      director of the Employer. In the middle of the Examination-in-Chief, the following
      question was posed of Ms. Gaulton:
               “Did you, or to your knowledge, anybody with the
               employer have any knowledge of Mr. Sampson’s use of
               illegal drugs?”

11.   The union began its case on behalf of the Grievor on 11 March 2002. Its first
      witness was Gary Tracey, chief steward, followed by Florence Rossiter, the
      Grievor’s co-worker. The union’s last witness was the Grievor.

12.   During the Employer’s cross-examination of the Grievor the Employer asked the
      Grievor whether he had ever used marijuana.

13.   Counsel for the Grievor objected to the question on the basis of its relevance given
      the Employer’s grounds for dismissal.

14.   Counsel for the Employer replied that it was relevant as the Employer was relying
      on the alcohol and marijuana use, which it discovered post-discharge, to justify the
      dismissal.

                                       ISSUES

15.   Can the employer rely on post-discharge evidence information to justify a dismissal
      based on entirely different grounds?


                                         -28-
16.   Can the employer advance this new position at this late stage after failing to give
      notice to the arbitrator or the union of its intentions and after the union has
      completed its cross-examination of the employer’s witnesses and after completing
      its own presentation without knowledge of this new position?


                                    ARGUMENT

17.   The Grievor submits that the employer can rely on after-acquired evidence to
      advance a position on dismissal which is based on entirely different grounds.
      However, this reliance is based on a number of qualifications.

18.   The basic principle states that an employer is not allowed to change or add to the
      grounds for discipline which were given at the time the penalty was imposed. The
      rationale behind this principle is that allowing an employer to rely at arbitration on
      grounds that were not raised or discussed in the grievance process would undermine
      the grievor’s right to fair treatment. The board is justified in a case of challenged
      discharge to hold the employer fairly strictly to the grounds upon which it has
      chosen to act against an employee. The employer therefore ought not to be
      permitted to reform an assigned cause for dismissal into something different merely
      because the evidence does not support the assigned cause. The parties prepare their
      submissions to arbitration according to the issues raised by the grievance.
                                                  Aerocide Dispensers Ltd. and U.S.W.A.
                                                  (1965), 15 L.A.C. 416 [Tab 1]

19.   Arbitrators have noted some exceptions to the alteration of grounds principle. The
      most common exception is when the alternative grounds raised by the employer
      were unknown to it at the time it took disciplinary action. Arbitrators are more
      willing to admit evidence to support altered grounds in these cases so long as the
      union and the employee have had adequate notice to enable them to prepare properly
      for the hearing.
                                      Ontario Hydro and C.U. P. E. , Local 1000
                                      (1988), 3 L. A. C. (4th) 112 [Tab 2]

20.   The case of Ontario Hydro and C. U. P. E., Local 1000) (supra) provides a good
      discussion of this exception. In this case Playtex and Mitel were two of the
      employer’s customers for whose accounts the grievor was responsible. The
      employer suspected that the grievor had falsified overtime and meal claims in
      connection with Playtex and Mitel but had difficulties pursuing its investigation in
      that regard. The employer therefore decided to discharge the grievor on the basis
      of the information that it already had, but to continue the inquiry into his dealings
      with the two companies. The letter of discharge made general allegations of theft
      and falsification of records, but it was not until several months afterward that full
      particulars of the charges with respect to Playtex and Mitel were disclosed to the
      union. The union objected at the hearing that any evidence relating to these
      accounts was inadmissible.

21.   The board admitted the evidence on the basis that where an employer discovers a
      new ground, one which would justify discipline on its own, the employer is entitled

                                          -29-
      to rely on it, provided the union receives full notice before the hearing. In this case,
      the board held that the evidence pertaining to Playtex and Mitel was not within the
      employer’s knowledge at the time, arose from the same investigation into the
      grievor’s conduct, related generally to the reasons given for discharge, and was
      made available to the union as soon as it came to light. Since the union was not
      taken by surprise, allowing the employer to rely on additional ground would not
      undermine the grievance procedure.

22.   This case was distinguished from Aerocide Dispensers Ltd. and U. S. W. A. (supra)
      on the basis that, in that case, the board was not dealing with new evidence acquired
      after discharge which gave rise to a new and separate charge against the employee.
      It was dealing rather with an attempt by the employer to change the grounds for
      discipline after the evidence was heard, while effectively abandoning the stated
      grounds merely because the evidence brought forward at the hearing could not
      support the stated grounds. It was an attempt to recharacterize the grounds for
      discharge to fit the evidence it actually had as opposed to the evidence it thought it
      had.

23.   This scenario is distinguished in Ontario Hydro and C. U. P. E., Local 1000 (supra)
      on the basis that it is not a situation where, prior to the arbitration, the employer
      gives notice to the union that subsequent to the discharge it had discovered
      additional examples of wrongdoing for which it would have disciplined the
      employee had it known of them while the employee was still in its employ.

24.   The added requirement that the union receive full notice of the new grounds before
      the hearing means that it is not taken by surprise and therefore is not deprived of its
      ability to present its case.
                                         York (City) Board of Education and
                                         C. U. P. E., Local 994 (1993), 37 L. A. C. (4th)
                                         257 [Tab 3].

25.   In York (City) Board of Education and C. U. P. E. Local 994 (supra) the grievor, a
      caretaker of a school was arrested during his shift on charges of sexually assaulting
      his 21 year old niece earlier in the day. While in detention the grievor arranged for
      a friend to lock up the school and activate the surveillance system. When the
      employer interviewed him the grievor denied that he had done anything to his niece
      and the employer discharged him on the basis that he had been absent from work
      without permission, allowed an unauthorized person to take over his duties and lied
      about what had happened.

26.   At trial, the grievor admitted to having sex with his niece on school property but was
      acquitted of sexual assault. At the subsequent arbitration hearing the employer tried
      to introduce evidence of the admission but the union objected on the basis that the
      employer was trying to alter or add to the original grounds for imposing discipline.

27.   The board dismissed the objection and admitted the evidence on the basis that
      arbitral jurisprudence permitted the employer to expand the grounds on which it had
      initially imposed discipline, provided the requirements for natural justice were
      satisfied. In this case the employer had advised the union of its intention shortly

                                           -30-
      after the trial but well in advance of the arbitration hearing.

28.   In the more recent case of Bruce Retirement Villa and S. E. I. U., Loc. 210 (1998),75
      L. A. C. (4th) 245 [Tab 4] the grievor was terminated from his position in the nursing
      department for insubordination, aggressive and profane language during a telephone
      conversation with the administrator, which was set out in a letter of termination sent
      to the grievor. At the beginning of the hearing, the employer advised that it sought
      to rely on additional grounds for discharge, specifically, that the grievor had called
      in sick for work one day but had worked at another health care facility that day
      instead.

29.   The union opposed the attempt to enlarge the grounds for discharge. The employer
      stated it was entitled to rely on the additional grounds as the information relating to
      same was only discovered after the date of discharge. The union had been advised
      2 weeks prior to the hearing of the employer’s intention to rely on additional
      grounds but were unable to provide particulars at that time of the new grounds.

30.   The board noted that the period of advance notice to rely on new grounds was
      materially shorter in this case than in the case of Ontario Hydro and C. U. P. E.,
      Local 1000 (supra). The board held that, while it may exercise its discretion in
      appropriate cases, the general rule to restrict the employer to the original grounds
      applied as the employer had not provided timely notice to the union of its intention.
31.   In the case of Unilever Canada Ltd. And Milk & Bread Drivers Dairy Employees,
      Caterers and Allied Employees, Local 647 (2001), 101 L. A. C. (4th) 285 [Tab 5] the
      grievor was terminated for allegedly falsifying his time card and for verbal abuse
      and threatening behaviour towards his supervisor. More than a year later the
      employer emptied the grievor’s locker and found items it claimed were the property
      of the employer and a mini tape recorder. The employer wanted to rely on the new
      grounds as additional reasons for discharge and the union objected.

32.   The board held that the employer was entitled to rely on the additional grounds as
      they were discovered after the discharge but before the first step in the grievance
      procedure. The board stated that adequate notice had been given to the union so that
      there was no surprise or lack of due process or lack of fairness to the grievor.

33.   In the case of Canadian Airlines International and C. A. L. P. A., Re (1998), 35 L.
      A. C. (3d_ 66 [Tab 6] new grounds arose during the course of the hearing on the
      basis of evidence tendered by witnesses called by the union. The evidence showed
      that the grievor, an airline pilot, reported for duty prior to his discharge while aware
      stress was affecting his behaviour and performance. The employer sought to use
      this new ground to support the discharge imposed initially on other grounds.

34.   The employer’s request was allowed by the board on the basis that the employer
      only became aware of these grounds after discharge and that there was no threat to
      natural justice and no real prejudice to anyone. In this case, although the new
      grounds only became known during the course of the arbitration, it was not wholly
      disconnected from the original grounds as demonstrated by the fact that the medical
      evidence was brought forward by the union as an explanation for the grievor’s
      specifically alleged misconduct, and that the union was afforded the fullest possible

                                           -31-
                 opportunity to address the new ground for dismissal because the union had a least
                 1 year to address it because there was a lengthy period between the original award
                 and the resumed hearing.

        35.      The Employer in this hearing has provided no notice to the union or the Grievor of
                 the additional grounds for dismissal.

        36.      The Grievor submits that the case is very clear that reliance by the Employer on new
                 grounds of dismissal which arises as a result of post-discharge evidence is only
                 permitted when the requirements of natural justice are satisfied.

        37.      The Grievor submits that these requirements have not been met in this case as no
                 notice has been provided in any form to the union or to the Grievor of the
                 Employer’s intention to rely on additional grounds.

        38.      The Grievor has therefore had no opportunity or ability to respond to the
                 Employer’s allegations.

        39.      The Grievor submits that it is clear from the above-noted leading decisions that
                 these new grounds for discipline proposed by the Employer are subject to a number
                 of qualifications, the most important of which is the giving of notice to the union
                 and Grievor well in advance of the arbitration hearing. The law is clear that these
                 new advancements by the employer must be done in accordance with the rules of
                 natural justice, which means that notice must be given to the union well in advance
                 of the hearing so that it has adequate time to prepare its case. This was clearly not
                 the case with respect to the Grievor.

        ALL OF WHICH IS RESPECTFULLY SUBMITTED
        DATED at St. John’s, Province of Newfoundland and Labrador, this 9th day of April, 2003.


The Employer’s Submission

        The Employer took the position that there were two issues: 1) the Employer’s right to question the

grievor about the reference in his medical documentation to his use of illegitimate drugs and to rely on such

evidence as additional grounds to establish just cause for his dismissal, and 2) the Employer’s right to

establish that the matter of his drug use is an aggravating factor in any decision to reinstate and that the

Employer is entitled to use that information to defend against the Union’s claim that the penalty should be

reduced. In the Employer’s view, the grievor’s drug use is relevant to the issue of just cause to discipline and

to the issue of the appropriate penalty.

        On the first day of hearings, Ms. Vallin did not bring along the grievor’s complete medical record.


                                                     -32-
Since counsel for the Union already had solicited and received a copy of his medical record, the Union was

aware of what it contained, including the March 15, 2002 letter by Dr. Setrak. The parties’ opening

statements were made before Ms. Vallin submitted the grievor’s medical records. Therefore, the Employer’s

comments were made without knowledge of what the records contained. After the full medical package was

introduced, copies were then made. In the meantime, counsel for the Union said that the package could be

retained as a consent item because Dr. Setrak was going to be called to testify. With that understanding, the

parties were free to discuss the grievor’s complete medical record in detail. On page 3 of the record, there

is an entry dated March 19th, 2002, in which there is a reference to the grievor having used pot once since last

week. Four days before that, Dr. Setrak wrote to Dr. Ladha mentioning that the grievor uses recreational

marijuana once or twice a day. By any standard of reasonableness, any Employer would be alarmed at

becoming aware of such information.

        According to counsel for the Employer, opposing counsel was verbally notified in a discussion

between them on November 19, 2002, that the Employer intended to rely on the drug issue at arbitration.

When arbitration hearings resumed, Helena Lawlor was asked the question whether she had any knowledge

of the grievor taking drugs. Counsel for the Union now claims that this question was buried among other

matters. However, the fact of the matter is that counsel for the Employer had a job to do. His job was to

establish the drug issue through company witnesses so that the basis would be laid to subsequently question

the grievor in cross examination. The issue was established by questions put to both Ms. Lawlor and Ms.

Gaulton and they both said that they had no knowledge of drug use by the grievor. In those circumstances,

it is not enough for counsel to now claim that he did not hear those questions or that the issue is irrelevant.

It is not the Employer’s fault that counsel for the Union did not cross examine the Employer’s witnesses on

that issue.

        The Union suggests that the arbitrator should act like a court. However, section 88.(1) of The Labour

Relations Act establishes the powers of a rights arbitration board. The statute indicates neither a duty to

discover witnesses to find out what evidence they will give, nor a duty to give notice when a party wishes

                                                     -33-
to consider new evidence that might affect the determination of penalty. Indeed, the Act simply provides that

an arbitrator may review and modify a penalty. In Canadian Airlines, supra, there was evidence that the

grievor was aware that his own condition placed others at risk. Mr. Sampson’s job entailed working around

heavy machinery and equipment and chemicals. Therefore, if the grievor were under the influence of drugs

in the performance of his duties, he would be a potential risk to himself and his co-workers. That case also

says at page 5 that the Employer may use any grounds for discipline as long as notice is given. In the instant

case, the Employer was not aware of the drug matter until after arbitration hearings had commenced.

        In support of its argument that post discharge evidence is admissible both as an independent ground

for discipline and as a factor in assessing the quantum of penalty, the Employer submitted Re McRae Waste

Management Ltd., and International Union of Operating Engineers, Local 115 (1998), 73 L.A.C. (4th) 174

(McEwen); Re R.S. Jones Timber Ltd. and I.W.A.-Canada, Local 1-3567 (1999), 86 L.A.C. (4th) 105 (Hope);

Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1999), 82 L.A.C. (4th) 325

(Thorne) and Re Centre For Addiction and Mental Health and Ontario Public Service Employees Union,

Local 500 (2000), 88 L.A.C.(4th) 13 (Surdykowski).

        The grievor here seeks reinstatement. Yet he has an absenteeism problem, a pattern of absences

revolving around his days off, and a problem with anxiety for which he has used marijuana once or twice a

day. All those factors are relevant considerations on the issue of his return to work. The Employer does not

assert that the grievor’s alcohol use is a consideration in this case



Union Rebuttal

        Although the Employer says that an arbitrator is not a court, the Employer then cites jurisprudence

to establish that arbitrators have decided on such matters. This essentially means that arbitrators may relax

the rules of evidence, but they cannot ignore the rule of law. Both the Employer and the Union agree what

the law is, but they disagree on the facts. In McRae, supra, at page 6, the point is made that a new ground

for discipline cannot be wholly disconnected from the original ground. In this case, the grievor has an

                                                      -34-
attendance record, but counsel for the Employer said that the culminating incident was the “no show,” i.e.,

a failure to report for work. The question is whether the Employer can reach so far as to claim that the

marijuana issue is connected to those matters.

         The Employer has asserted that, since the Union had access to the medical documents weeks before

the arbitration hearing, it should have been alerted that it should question the Employer’s witness on the drug

issue. In the first place, counsel for the Union vehemently objected to counsel for the Employer commenting

on a November 19, 2002 private meeting between them that was held without prejudice. In the second place,

Counsel for the Union categorically denied that counsel for the Employer verbally notified him that it would

rely on the grievor’s marijuana use during the hearing. The only significant point in their discussion was that

counsel for the Employer indicated what Ms. Gaulton’s reaction was to the medical records. In Union

counsel’s view, he was ambushed at arbitration and he also doubted that the arbitrator had ever been notified

of the Employer’s alleged intentions.

         The Union takes issue with the Employer’s claim that alcohol is not a consideration in this case.

There is no doubt that the record will show that alcohol was raised by counsel for the Employer in the same

question to Ms. Lawlor in which he asked about drug use. Why then should the Union give prominence to

the reference to drugs?



Employer Rebuttal

         It is disturbing to listen to counsel for the Union say that he is right and counsel for the Employer is

not truthful in stating that verbal notice was given to him in their discussion. It is true that Ms. Gaulton’s

reaction to the medical documentation was discussed, but counsel for the Employer proceeded to the January

3rd hearing confident that he had advised the Union that it would rely on the grievor’s drug use at arbitration.



Ruling

         The following written ruling was delivered to counsel at the commencement of the May 27th hearing:

                                                      -35-
                               Procedural Ruling

I apologise to counsel for not having this ruling ready for them well in advance of
the hearing date of May 27th. As I indicated in our telephone conversations on May
26th, I completely forgot that I was to make a ruling before the above date. I regret
any inconvenience this delay may have caused.

The Union objected to the Employer’s attempt to cross examine the grievor on
information contained in medical documentation that was obtained after the hearing
had already commenced. In particular, the Employer sought to cross examine the
grievor on the expression “uses recreational marijuana (which he uses once or twice
a day to call [sic] his nerves and control the aches and pains)” in a March 15, 2002
referral letter from his family physician to a Psychiatrist.

The grievor was discharged on May 31st, 2002 , after he “failed to report to work for
your scheduled shift following your two days off.” The Employer had no knowledge
of the marijuana issue at the time of discharge, but it subsequently obtained a copy
of the above medical documentation after the first arbitration hearing date. This
document was admitted into evidence by consent with the Employer later noting that
counsel for the Union said he intended to call the author.

I have reviewed the Union’s objection to this procedural matter and the Employer’s
response, including jurisprudence submitted. I have little difficulty deciding that
post-discharge evidence can be relied upon if the Employer subsequently discovers
a new ground, one which might justify discipline on its own had it been known at the
time.
However, the question is whether or not appropriate and timely notice must be
provided to the Union once the new information is discovered. The Employer cites
the arbitrator’s powers under the Labour Relations Act to review and modify
penalties as giving the arbitrator authority to consider mitigating and aggravating
factors, and argues that the latter is associated with safety issues on the grievor’s
potential reinstatement to the workplace. Also, the Employer argues that the Act
does not require what the Court may require. For example, neither pre-hearing
disclosure nor notice is required on matters concerning a determination of penalty.


Although there is no pre-hearing discovery in arbitration and it may well be the case
that the Labour Relations Act does not specifically require notice of changes in
grounds as they may arise, I am nonetheless satisfied that the Union is entitled to
know the case it has to meet at arbitration. Therefore, the Employer’s responsibility
is to clearly disclose the grounds on which it relies to establish just cause for
discipline as well as for the particular penalty that should be imposed. If new

                                        -36-
evidence becomes available during the hearing, the Employer is obliged to be clear
about its intent to rely on that new information both to prove just cause for discipline
and for the appropriateness of the penalty.

On balance, I am satisfied the Employer had knowledge of the disputed medical
documentation reasonably early after the first hearing date on November 19, 2002.
According to my notes, Ms. Lawlor was subsequently questioned whether she had
any previous knowledge of the grievor having taken illegal drugs in the workplace.
Ms. Lawlor was also asked the same question in relation to the grievor’s use of
alcohol in the workplace. Ms. Gaulton was simply asked whether she had any
knowledge of the grievor using illegal drugs. The answer to all three questions was
no. The Union did not seek to cross examine on those issues.

There is no doubt then that the drug use matter was raised by counsel for the
Employer, but it was anything but clear in the instances described that the Employer
was intending to rely on the grievor’s use of drugs or alcohol as a new ground for
discipline or to establish the appropriate penalty. Ms. Lawlor was asked about both
his drug and his alcohol use in the workplace. In Ms. Gaulton’s case, his drug use in
the workplace was not mentioned and no question was asked of her concerning his
use of alcohol. In my view, it was difficult to tell from those questions that the
Employer was relying on the grievor’s drug use (but not the alcohol use) in the
workplace. Although counsel for the Union is a lawyer and I am not, I am not
prepared to demand of him a higher test of awareness of opposing counsel’s intent
than I myself bore in those circumstances. I accept that counsel for the Employer
had a job to do and that he believed by asking the brief questions mentioned above
that he had properly raised the matter so as to permit him to cross examine the
grievor on the subject. I do not share opposing counsel’s view that the questions put
to the Employer’s witnesses were deliberately buried among the evidence and that
he was ambushed. However, the fact of the matter is that both of us missed the issue
when it was raised. We did not miss it due to lack of perception or inattention, but
because it was raised in a manner that lacked the necessary clarity to identify it as a
new ground on which the Employer wished to rely. And even as I ponder the
questions at this point, I feel that, while the Employer may have meant otherwise, its
intent to rely on the disputed information does not sufficiently reveal itself from
those brief discourses during the hearing.

In the result, I am satisfied that the Union did not know that it had any case to meet
on the grievor’s use of marijuana.

While counsel took opposing positions on whether advance notice was required in
these circumstances, I note that counsel for the Employer also took the position that
he verbally informed counsel for the Union in a private meeting on November 19,
2002, that he was going to rely on the marijuana information. This was challenged
in most vehement fashion by counsel for the Union who denied that such notice was

                                          -37-
given because their discussion point was only that counsel for the Employer told him
about Ms. Gaulton’s reaction to the medical information. Counsel for the Union also
claimed that their conversation was held in confidence and without prejudice and,
therefore, he did not raise the drug issue with the Employer witnesses in cross
examination.

In my view, it is one thing for an arbitrator to have to deal with issues of credibility
among witnesses, but it is quite another thing to be asked to choose the word of one
counsel over the other on the basis of what transpired between them in a private
meeting. I simply choose not to do so. Instead, I base my ruling on the other
information that is available on the matter.

On balance, I am satisfied that neither counsel for the Union nor the arbitrator was
made aware until March 11, 2003, when the Employer attempted to cross examine
the grievor on his marijuana use, that the Employer intended to rely on such evidence
for any purpose in this hearing. On the one hand, the Union’s position is that the
Employer is now altering the grounds for discipline without appropriate notice and
consequently that it has been denied the opportunity to cross examine the Employer’s
witnesses on the matter. On the other hand, the Employer’s position seems to
suggest that the matter of the grievor’s marijuana use goes more to the issue of
appropriate penalty, or defending against the Union’s attempt to reduce it, than it
does to the issue of just cause to discipline.

In my view, the choice of penalty is first and foremost the Employer’s decision,
subject to the arbitrator’s consideration of the nature of the offense as well as any
relevant mitigating and/or aggravating factors that might exist. We are all aware of
the role that mitigating and/or aggravating factors play in determining the
appropriate penalty. I submit that consideration of such factors are appropriate
because they place the offence complained of in context of its seriousness, the
grievor’s overall employment record and his record of discipline. In that respect,
whether they mitigate or aggravate, such factors do not normally attract discipline
in their own right. They are simply factual conditions which might serve to
ameliorate matters such as the existence of provocation, lengthy seniority, a clean
discipline record, etc., or to exacerbate matters such as a record of blameworthy
conduct which attracts more severe penalties as it progresses.

In this case, the Employer’s primary interest appears to be in applying any evidence
relating to the grievor’s use of marijuana that may be elicited from witnesses,
including the grievor himself, to either support the penalty it has chosen, or to
address any attempt by the Union to have that penalty reduced. In my opinion, the
nature of the marijuana issue in dispute is more than an aggravating factor of record
to which due consideration may be given in determining the appropriateness of the
penalty. Rather it is an issue for which the Employer might arguably be entitled to
impose discipline if it is able to establish just cause at arbitration. In other words,

                                          -38-
I do not agree that the Employer should be able to adduce evidence on this issue
without first addressing the issue of just cause. In essence, before the Employer can
make any case on the issue of penalty, it bears the onus of proving that it had just
cause to discipline the grievor for improper conduct regarding his use of marijuana.
It is up to the Employer to call the necessary witnesses who will establish such cause.
The Union is not obliged to call any particular witnesses if it deems them to be
unnecessary or inadvisable. As part of the exercise of discharging its onus, the
Employer is obliged to clearly disclose the disputed issue as one of the grounds on
which it is entitled to rely. If it fails to make that ground known to the Union, and
because of that failure the Union misses the opportunity to question the Employer’s
previous witnesses and any other previous witnesses on the subject, then at the very
least a denial of natural justice would have occurred. With the greatest of respect,
I find that to be the situation that has occurred in these circumstances. In my view,
the questions asked of Ms. Lawlor and Ms. Gaulton lacked the necessary clarity to
indicate to opposing counsel that the Employer intended to rely on the issue of the
grievor’s marijuana use as a new ground on which to base disciplinary action
deserving of a penalty in its own right. Therefore, the Union was denied the
opportunity to cross examine Ms. Lawlor and Ms. Gaulton on that issue.

I note that counsel for the Employer closed his case believing that the questions he
had asked of his witnesses were sufficient to justify subsequent cross examination
of the grievor on the same subject. Therefore, one option would be for me to forbid
any further questions on the issue and leave it at that. That would certainly end the
matter at this arbitration subject, of course, to judicial review, but it is less certain
that the issue would not survive, if, for example, the grievor happened to be
reinstated and the Employer subsequently decided to take independent disciplinary
action against the grievor on the ground of drug use. Then the parties would likely
face another submission to arbitration with its attendant costs. On balance, while I
have no burning desire to seize jurisdiction for somebody else’s future arbitration
case, it seems to me that this discharge hearing is the most logical, practical, timely
and cost effective forum to deal with the merits of new grounds that may arise during
its proceedings. Therefore, to balance the legitimate interests of both parties as far
as due process is concerned, I consider it both my authority and my responsibility
to attempt to provide reasonable opportunity for the Union to address the relevant
subject matter in evidence.

Although it may be somewhat disjointed, inconvenient and costly to recall witnesses
at this stage, I feel that the damage done is not yet irreparable and it may well be the
most cost effective option under the circumstances. Therefore, I deem that these
particular circumstances now be considered reasonable notice to the Union of the
Employer’s intent to rely on the grievor’s use of marijuana as a new ground on
which to discipline him and to impose an appropriate penalty. In that regard, I will:

1.      reopen the Employer’s case to permit the recall of Ms. Lawlor and Ms.

                                          -39-
               Gaulton to be cross examined by the Union on the marijuana issue in dispute,
               including relevant questions regarding safety considerations and any alternate
               management responses that might be available in the circumstances;

       2)      permit the Employer to adduce any relevant evidence in redirect
               examination;

       3)      permit the Union to raise the above issue(s) with its previous witnesses,
               including, the grievor, if it deems necessary;

       4)      permit the Employer to cross examine the grievor on those and other issues
               as it sees fit.

       Thereafter, the hearing may proceed in normal fashion with redirect examination of
       the grievor and the interviewing of any other witnesses that the Union may consider
       necessary to call.

       Respectfully submitted as the ruling of this arbitrator dated this 26th day of May, 2003.



       ____________________________________
             David L. Alcock
             Sole Arbitrator



Result of the Ruling

       Counsel for Union indicated that he had no intention to recall Ms. Lawlor or Ms. Gaulton.

He also suggested that, by the two brief questions asked of his witnesses, counsel for the Employer

has assigned the prominence which is due to the issue of the grievor’s marijuana use. A request

from counsel to confer with the grievor on the marijuana issue was granted. Thereafter, counsel

elected not to address the matter in direct examination. In the result, counsel for the Employer

proceeded to cross examine the grievor on the issue of his marijuana use.



The June 27th Medical Note and the July 3rd Telephone Call

                                                -40-
       Ms. Helen Lawlor indicated in direct examination that, on June 27th, Ms. Gaulton advised

her that the following note from Dr. Setrak had been received. The note contained other reasons for

his absence on May 30th, viz:

       Shamrock Medical Clinic
       P.O. Box 89
       Ferryland, NF, A0A 2H0
       Tel. (709) 432-2340, Fax (709) 432-2342

       Dr. James Oosthuizen                                        Dr. Rafi F. Setrak

       Date: 27.6.02

                                    To Whom it May Concern

               This is to certify that     Reginald Sampson

               of           Aquaforte           Has visited this clinic on

                     30.5.02         On       11:30 am

               He / She is       Not Fit / ___ Fit For      Work/ School for

               the period from                         To                    .

               Notes: On that visit, Mr. Sampson had suffered more than 50 insect
               bites and presented with severe itching that had prevented him from
               attending his duties at work.

               Sincerely,

               DR. RAFI F. SETRAK

At the meeting on May 31st, Mr. Sampson said that he had experienced an allergic reaction to

medication he had put on his flybites. Therefore, in the Employer’s opinion, the June 27th note

conflicted with what Mr. Sampson had said earlier. Also, Mr. Sampson had mentioned nothing

about flybites when Ms. Lawlor called him on May 30th. And he showed no lingering effects of any

condition when he was at work on May 31st.

                                                -41-
       After receiving the June 27th note, Ms. Gaulton made a call over the speaker phone to Mr.

Sampson (with Ms. Lawlor present) on July 3rd during which she advised him that the reason for the

call was to clarify what was the matter with him on May 30th. Mr. Sampson replied that he had had

an allergic reaction to the Benadryl he had used to treat the itching from his flybites. Ms. Gaulton

then asked him why he had not told Ms. Lawlor that in their telephone conversation on May 30th.

The grievor’s answer was that Ms. Lawlor did not ask. Ms. Gaulton then asked him whether his

company was still there. He answered yes. (On May 27th, Mr. Sampson had requested to leave work

early because he was expecting guests. He appeared pleased and well when he left work that day.)

Ms. Lawlor’s reaction to this telephone call was that she still had questions and was still suspicious.

Clearly, Mr. Sampson had not provided a detailed note for May 30th until June 27th.

       In cross examination, Ms. Lawlor also said that the Employer had tried hard to counsel Mr.

Sampson and it wanted to obtain the true story for his absence. However, she was still suspicions

after the July 3rd call and also because Mr. Sampson had spoken to her after May 31st about

headaches. She felt that the grievor himself had provided different accounts of his condition.

Although she did not know whether Ms. Gaulton intended to rescind the termination decision, or

if she had contacted the General Manager about the June 27th note, but Ms. Lawlor herself was

certainly not inclined to rescind the termination. She was not at all worried that the grievor had been

terminated improperly. In one section of cross examination, Ms. Lawlor testified that she felt that

all she did was act on the grievor’s pattern of absenteeism and his excessive absenteeism. However,

she agreed that Mr. Sampson was not disciplined for his “sick” days, rather he was terminated for

his no show and his prior discipline record. Since the grievor had been cleared to work by the

Company doctor and a Psychiatrist, it was his responsibility to show up for work. In the same


                                                 -42-
section of cross examination, Ms. Lawlor said that, when Mr. Sampson came to work on May 31st

without detailed medical information, he totally disregarded what she had asked of him. Therefore,

she terminated his employment on the basis of excessive absenteeism, i.e., his pattern of

absenteeism. Ms. Lawlor referenced the section of the Attendance Policy under the heading Medical

Certificates, particularly that part dealing with “if the Problem Persists” as support for her view that

the employee is obliged to provide detailed medical information to the Employer. It was her

understanding that such measures are justified for “no shows.” Ms. Lawlor agreed that she was

suspicious that the grievor was really “sick” on May 30th. Nonetheless, she also agreed that, if Mr.

Sampson had given her the June 27th note on May 31st, she would have accepted it even though the

grievor told her that day that he had had an allergic reaction to the medication he put on his flybites.




       Mr. Gary Tracey indicated that he declined to participate in the July 3rd telephone call even

though he was aware that the call was intended to seek clarification for the grievor’s situation.

Therefore, no Union representation was present during that call. The reason he declined was

because he felt uncomfortable in speaker phone calls. In his view, Mr. Sampson seemed to be put

on the defensive by two (2) management people shouting questions at him. On balance, he felt that

a face-to-face meeting would have been better. Nevertheless, he did not object to Ms. Gaulton and

Ms. Lawlor acting alone on the July 3rd, telephone call.

       Mr. Tracey explained that, in post discharge grievance discussions, Ms. Gaulton suggested

that a medical note would be a possible resolution to the grievance. Acting on that suggestion, Mr.

Tracey contacted the grievor and advised him to get the June 27th medical note from Dr. Setrak.


                                                  -43-
       Mr. Reg Sampson testified that he could not remember how he got the second June 27th

medical note from Dr. Setrak. One or two months after being fired, he had no income to live on, so

he had to approach Social Services for more than $400 to get him by one month. He managed to

obtain Social Assistance for two or three months. Meanwhile someone from EI asked him if he had

brought in a note for April 23rd. He told them that the Employer had that note. After that he got

several EI cheques. As of April 2003, that money had run out.



The Evidence of Brenda Gaulton

       Ms. Gaulton’s testimony covered a range of subjects, but because of her position as former

Director of People Resources and her knowledge of Human Resource policy, her explanation of the

Attendance Policy was primary.

       First of all, Ms. Gaulton established that the Employee Assistance Program (EAP) was fully

functional and had been well communicated to both employees and managers of the Hotel. The

EAP is anonymous and confidential, and those wishing to avail of its services will be put in touch

with a counselor within 24 hours. The evidence is that Mr. Sampson was aware of the EAP, was

offered its services on numerous occasions, but did not accept such help because he was reluctant

to disclose his most private personal problems to anybody. Those private problems were briefly and

reluctantly mentioned by the grievor during the arbitration hearings, but were not addressed in depth.

       Second, Ms. Gaulton explained that the Attendance Policy was a re-work of a former Policy

with improvements designed to help employees who had attendance problems. The development

of this Policy, completed in 2000, involved Ms. Gaulton meeting with the Union as a focus group,


                                                 -44-
examining other attendance policies and seeking the advice of Atlantic Offshore Medical Services.

The Union did not dispute at the hearing that it was consulted and involved as the Policy was

developed and that it did not grieve any part or portion of it. Communication of the Policy was done

at monthly meetings with the Union so that everybody would understand it. In fact, Mr. Sampson’s

signature is affixed to documentation showing that he was personally made aware of the Policy’s

details.

           Ms. Gaulton explained that “excessive absenteeism” is defined in the Policy and that a “no

show” without justification falls within that definition and is subject to disciplinary action.

Attendance is administered by a manual tracking system and is reported to management on a

monthly basis. Mr. Sampson’s absences were found to be excessive in number and a definite pattern

was established associated with his days off. Ms. Gaulton was previously involved in disciplinary

action against the grievor, which included a verbal warning, written warning, suspension and a

decision-making day which is designed to allow an employee to consider his actions, meet with his

managers, and establish his commitments for the future and how he subsequently would be

monitored. For the grievor’s unacceptable no show on April 1st, Ms. Lawlor met with him on April

4th and filled out HL#6E, Record of Performance Management. However, on the section dealing

with how his future progress would be monitored, Ms. Gaulton subsequently wrote the comment

“On a bi weekly basis.”

           Ms. Gaulton confirmed much of Ms. Lawlor’s evidence concerning the development of the

grievor’s previous discipline record and reference to the Atlantic Offshore Medical Services. She

also added that representatives of the Union were involved in each event, but did not make any

suggestions how the grievor could improve his attendance. Some of his absences involved Weekly


                                                  -45-
Indemnity, for which specific forms had to be completed by the employee, the Employer, and the

Attending Physician. Considerable detailed medical information was required in those forms so that

Manulife would know why the employee could not perform his/her job. The Employer was aware

from reading the relevant statements that, in March 2002, the reason for the grievor’s absence was

“panic attacks,” which were being treated by supportive psychotherapy and medication. When Mr.

Sampson went off work again in late April, Ms. Gaulton prepared the April 26th letter because the

Employer got word that he was off work but no medical documentation was delivered to the

Employer. Therefore, the letter told Mr. Sampson either to come to work or provide detailed

medical information why he could not, a matter which Ms. Lawlor had spoken to him about. The

appropriate WI forms were subsequently submitted, showing that the grievor’s diagnosis was

“anxiety” and that his condition had worsened since he returned to work in March.

       For occasions when he did not show up for work up to March 2002, the Employer accepted

from the grievor the usual doctor’s note pad stating “unfit for work.” However, that changed when

the grievor’s level of absenteeism increased. Therefore, the Employer referred him to AOMS to

determine whether there was any justification for him to be off work again. When he went off work

again on April 23rd, the April 26th letter advised him what medical information was required and it

reminded him where he stood in the discipline process. Mr. Sampson neither questioned that letter

nor voiced any concerns about it. When he next came in with a note, Ms. Gaulton asked Ms.

Lawlor whether the note had come from his family doctor. She was told that Mr. Sampson’s doctor

needed time to fill out the forms, which eventually did provide the justification for his absence.

Actually, the grievor met with his Manager, Sandra Puddister, on Monday, April 29th, to discuss who

(i.e., which doctor) would have to complete the WI forms and the Employer subsequently waited


                                               -46-
for them to be passed in. As Ms. Gaulton recalled, Mr. Sampson had never previously objected to

the disclosure of his medical information on those forms.

       On May 30th, Ms. Gaulton was informed that Mr. Sampson had called in to say he would not

be in to work. Ms. Gaulton and Ms. Lawlor discussed the situation after which Ms. Lawlor called

the grievor to remind him what his responsibilities were (to provide detailed medical information)

if the reason for his absence was “sick.” Apparently, his only response was to say that he was not

feeling well. Ms. Lawlor advised him that “not feeling well” was not enough and, therefore, he had

to come to work. By the end of their conversation, the grievor said that he had a doctor’s

appointment that morning.

       When Mr. Sampson reported for work on May 31st and was terminated, Ms. Galway did not

attend the meeting because she was out of town doing training at another Delta Hotel.. However,

prior to the grievor’s termination, Ms. Gaulton was consulted on the decision. Since there was no

detailed information on the note he brought, it was considered to be unacceptable and management

made the decision to terminate him.

       The Union was involved in every step of the grievor’s disciplinary process, but at no time

did it suggest that the Employer was not entitled to ask for detailed medical information from an

employee to justify his absence from work. Also, up until the time of termination, no explanation

was offered why the grievor had not supplied the detailed medical information requested of him.



       As far as Ms. Gaulton recalled, the June 27th note from Dr. Setrak was given to her by Mr.

Tracey. At no time was that note solicited by the Employer. Indeed, Ms. Gaulton had no knowledge

that the grievor or the Union were going to obtain that note and then provide it at a later date. As


                                                -47-
the matter stood, the June 27th note was not acceptable as justification for the grievor’s absence

because there were inconsistencies in the reasons voiced by Mr. Sampson. For example, on May 31st,

he first spoke of experiencing an allergic reaction from something he put on his flybites. Also, he

later told Ms. Gaulton that it was nausea and vomiting that prevented him from coming to work.

The note simply made reference to the flybites and itching, but did not mention anything about an

allergic reaction. Therefore, in Ms. Gaulton’s view, the stories do not add up.

        After receiving the note, Ms. Gaulton and Ms. Lawlor called Mr. Sampson on July 3rd for

the purpose of ensuring that Mr. Sampson had been given every opportunity to provide the medical

information that he had been asked for in the first place and to explain any inconsistencies. The

shop stewards (Gary Tracey) declined to participate. Ms. Gaulton took notes of the discussion of

the speaker phone conversation. The grievor did not indicate that he had any problems answering

questions on conflicting information. He said that he had an allergic reaction to the fly bites and that

the treatment was Benadryl (over the counter medication). He agreed that he did not tell the Team

Leader about his allergic reaction when he called on May 30th because he had no reason to do so.

So, he just told her that he was not feeling well. Asked why he did not tell Ms. Lawlor about the

allergic reaction on May 30th, Mr. Sampson replied that he would have done so if she had asked

him. Ms. Lawlor interjected that she did ask him what was wrong with him. Mr. Sampson did not

respond further. Asked why there was no mention of a migraine in the note, the grievor said that

the doctor simply didn’t include it.

        Ms. Gaulton specifically asked Mr. Sampson why he did not get the detailed medical

information on May 30th, he replied that the doctor told him that he was not required to give out such

information. Ms. Gaulton asked if he was saying that the doctor would not provide the required


                                                  -48-
information. Mr. Sampson’s response was that only when he told the doctor that he had lost his job

did Dr. Setrak give him a note with the required information.

       In the Employer’s view, the conference call on July 3rd only added to the inconsistencies in

the information surrounding his May 30th absence. Also, Mr. Sampson gave no explanation why his

absence followed his two days off again. Therefore, no reconsideration of the termination decision

was made.

       In Ms. Gaulton’s view, the grievor was discharged because of his discipline record to-date,

i.e., his pattern of absences attached to his days off and because, on May 30th when he was called

by Ms. Lawlor and he told her that he was not feeling well and he was then directed what

information to bring in and what would not be acceptable, he failed to do so.

       In cross examination, Ms. Gaulton related that her previous Human Resources experience

with DFO and the Post Office involved compensation, recruitment, staffing and classifications, etc.,

but did not involve arbitrations or adjudications or the decision making process for terminating

employees. Since she began work with the Delta in 1997 as People Resources Director, she also has

been actively involved in labour relations duties such as training, negotiations, attending labour

relations meetings, etc. Her first involvement with an attendance policy was at the Delta Hotel. She

explained that “corrective action” for “excessive absenteeism” in the Policy means disciplinary

action imposed by the Employer. “Excessive absenteeism” is defined on page 1 of the Policy as:

       “Excessive Absenteeism” shall be the term for any absences that have increased in
       frequency or severity (i.e., failure to report an absence, lateness of 5 minutes or more
       for a shift, etc.) [sic] and exceed 10 days in any 12 month period. After a counselling
       [sic] session, these absences will be subject to corrective action.

The Policy also provides zero tolerance for “no shows” if an employee fails to call or show up for

work. However, if an acceptable explanation is received, each case would be dealt with on its own

                                                 -49-
merits.

          Ms. Gaulton confirmed that the Attendance Policy consists of all seven (7) pages of the

document, not just pages 5 - 7 titled “Attendance Policy.” That title is on page 5 (as well as on the

cover of the Policy) because it simply was not removed from the original document when it was

revised. Page 5 mentions the issue of zero tolerance for an unacceptable explanation for an absence

and, Ms. Gaulton explained, the Employer’s practice was to request a “medical certificate” for each

day of absence. Asked whether it was mandatory, she explained that, if an employee was in

“excessive absenteeism,” or “pattern” mode, then a medical certificate was mandatory. However,

for someone without excessive absenteeism or a pattern of absences, the Employer may not ask for

a medical certificate unless some reasonable suspicion existed. In other words, a medical certificate

was not required in every instance.

          Ms. Gaulton could not say when Mr. Sampson was first required to bring in a medical

certificate of any kind. It might have begun in the previous year, but certainly when corrective

action was started for the grievor, medical certificates were required of him. Mr. Sampson had

reached the third stage of being disciplined for unacceptable reasons for no shows, but no medical

certificates or any other medical information was involved in those “no shows.” At a point in an

Attendance Policy where an employee has a verbal warning, a written warning and a suspension,

the Employer wants to do everything possible for the employee to correct his attendance problem

so as to avoid termination. That is why the Employer wanted the AOMS assessment, i.e., to assist

Mr. Sampson to attend work regularly. This was triggered when the grievor was off work on March

7th with a bout of illness and the Employer also offered EAP services.

          Page 5 of the Attendance Policy states that there will be zero tolerance for an unacceptable


                                                  -50-
explanation for a “no show.” On page 4 of the Policy in the section titled . . .”If the Problem

Persists,” mention is made of what should happen when improvement does not result, namely,

“another meeting should be scheduled between the employee, the Shop Steward and the Manager,”

during which the Manager should, among other things “Inform the employee that they will be

required to provide a detailed Medical Certificate for any illness, regardless of duration as well as

any justification required for any absence.” In Ms. Gaulton’s view, Ms. Lawlor was in compliance

with this aspect of the Policy by virtue of the discussions she held with the Union and the grievor

each time he was disciplined. However, she agreed that the issue of a detailed medical note was not

discussed with the grievor until April 24th and on that date, no shop steward was present. On Page

5 of the Policy, seven requirements are listed which must be shown on a “Medical Certificate on

original letterhead” namely:

       1.      Employee’s name
       2.      Date of visit
       3.      Date illness started
       4.      Expected date of return to work
       5.      Work restrictions
       6.      Physician’s address and telephone number
       7.      physician’s original signature

Other than the foregoing references to “detailed Medical certificate” and Medical Certificate,” the

policy provides no definitions for those terms. Ms. Gaulton agreed that nowhere in the Policy is

there a requirement for an employee to disclose the nature of an illness. In her opinion, the

Employer’s main concern is whether there is justification why the employee cannot work and

whether there are any work restrictions. However, a note stating “illness” does not tell the Employer

why an employee cannot work.

       Once an employee’s absenteeism is excessive, even a one (1) day absence would require


                                                -51-
detailed medical information. While a detailed Medical Certificate is not defined by the Attendance

Policy, such a certificate would, in Ms. Gaulton’s view, require the kind of medical information that

is on a Weekly Indemnity claim form, such as an employee’s physical and cognitive impairment,

etc. The Employer uses Weekly Indemnity and Worker’s Compensation forms to gather information

on the treatment that an employee will be receiving. However, those forms are not specified in the

Attendance Policy. If an employee wanted to know what was meant by “detailed Medical

Certificate,” he would ask his Manager what would be required in his particular circumstances.

       Ms. Gaulton agreed that BG#6, 7, 8 and 9 are 2002 medical certificates for the grievor’s

absences on March 7th-10th; March 13th; March 15th and April 23rd respectively and none of them

contains any reason for the absence except “not fit for work.” She also agreed that she was aware

on March 20, 2002, from reading the relevant WI forms that Mr. Sampson had been referred to a

Psychiatrist in late April, and that a 3 - 6 week absence for his anxiety would be necessary. The

grievor also told her on March 13th that he had suffered a panic attack. However, since the

information in the WI forms is confidential, she did not make AOMS aware of the contents of the

March 2002 forms. She would not share that information without the employee’s permission. The

AOMS assessment ultimately concluded that there were no medical reasons to explain the grievor’s

frequent absences and it cleared him to return to work on March 28th.

       Later in April, Mr. Sampson went off work again and Ms. Gaulton wrote the letter of April

26th, which required him to bring in “proper documentation.” At that time, the “proper

documentation” referred to detailed medical information on the WI forms for his April 24th - May

10th absence. Ms. Gaulton conceded in effect that the Employer waited for sixteen (16) days without

“proper documentation” for a “no show.” In other words, the Employer trusted the grievor at his


                                                -52-
word that the forms were coming, albeit late, and it waited until May 7th or possibly May 10th to

receive them. Although she was uncertain of the timing, Ms. Gaulton understood that Mr. Tracey

(i.e., the Union) and Mr. Sampson were notified that, after March 2nd, medical note pads would no

longer be acceptable, although she agreed that the Union was not copied on the April 26th letter.

Also, given Mr. Sampson’s stage of the discipline process at the time, he was told by Ms. Lawlor

on April 24th that from now on he had to have more detailed information, i.e., a detailed medical

certificate, for his absences. However, Ms. Gaulton herself did not notify the Union of that

requirement, and neither did she ask anybody else to notify the Union. However, she thought that

this was communicated to the Union in some meeting.

       On May 30th, Mr. Sampson did not report for work because he was not feeling well. Ms.

Lawlor was instructed to call him and tell him that, if his absence was due to illness, then detailed

medical information would be required as to the nature of the problem. Ms. Gaulton wanted to make

certain that the grievor understood what was required of him at that stage in his discipline process.

“Not feeling well” would not be sufficient given that he was so close to termination. She conceded

that the Employer was suspicious of the justification for his absence. She was not, however,

suspicious of previous doctors’ notes. The Employer was satisfied with those notes until AOMS

reported that Dr. Setrak had cleared him to return to work.

       According to Ms. Gaulton, what changed after the AOMS assessment was that the stage of

corrective action had progressed to the point of the grievor being required to take a decision making

day. The Employer was concerned about his attendance record and his pattern of absences (although

he previously had provided medical notes for such pattern absences, which the Employer deemed

acceptable). He had excessive absenteeism and he was also at the last stage of the discipline process.


                                                 -53-
Therefore, he was told that, in future, what he had provided in the past would no longer be

acceptable. Next time more detailed medical information would be required.

       When pressed by counsel for the Union, Ms. Gaulton agreed that Ms. Sampson had only

been disciplined for four (4) “no show” days. He had not been disciplined for his pattern of

absences. Despite the long period of time and a series of lengthy absences since the AOMS

assessment in March, Ms. Gaulton did not feel that it was necessary to request another AOMS

assessment for the grievor in May. In her view, it was sufficient that his own doctor had cleared him

to return to work on May 10th.

       On May 31st, Ms. Gaulton was in Toronto on business. Prior to that date, the General

Manager had been kept up to date on the grievor’s situation. Ms. Cindy French, Rooms Manager,

called Ms. Gaulton and told her that Mr. Sampson had come to work without detailed medical

information from the doctor, i.e., all he supplied was a doctor’s pad note saying “not fit for work.”

Ms. French also told her that Mr. Sampson said that he had an allergic reaction to the “stuff” he had

put on his flybites, but he showed no ill effects of that on May 31st. Mr. Sampson was given every

opportunity to provide the required detailed medical information for his “no show”on May 30th.

Page 5 of the Attendance suggests that a Medical Certificate is appropriate for no shows, but, in Ms.

Gaulton’s view, it would not be acceptable for “excessive absenteeism.” On page 4 of the Policy

it is clear that, if no improvement is made, corrective action may occur for the next incident of

excessive absenteeism. However, Ms. Gaulton did not know whether the grievor was given another

opportunity to obtain a more detailed medical note on May 31st before terminating him. Even if Mr.

Sampson had come in on May 31st and showed some ill effects from May 30th, Ms. Gaulton did not

believe that it would have made any difference anyway. The fact of the matter was that he had not


                                                -54-
come in with the detailed medical information he had been directed to bring. In other words, the

issue was his failure to accede to the Employer’s directive. Asked why the Employer did not wait

for a day or two for a long term employee (12 years) to obtain what the Employer asked him for, Ms.

Gaulton said that it was because the grievor did not indicate (as he did in April) that he was having

difficulty getting the information from his doctor and because he had already been told on the

previous day what was expected of him. She agreed that, on May 30th, she was not satisfied with

the reason provided by the grievor. She did not, however, disbelieve his doctor and she had nothing

to do with a subpoena for the doctor’s records. That was the decision of counsel for the Employer.



       Ms. Gaulton testified that she wrote the May 31st termination letter on May 30th before she

left town. Then the General Manager signed it after the grievor failed to bring in the detailed

medical information Ms. Lawlor previously instructed him to bring. Ms. Gaulton disagreed that the

decision to terminate had been made prematurely. The wording of the letter was chosen to reflect

what everybody knew would happen if Ms. Sampson came in to work on May 31st without the

required information. Although the letter does not state that the grievor was terminated for

excessive absenteeism, his pattern of absences and his failure to bring in an acceptable medical note,

those were the reasons for his dismissal.

       The grievance was filed on May 31st, the same day that the grievor was discharged and there

was no resolution of the grievance by July 2nd. Ms. Gaulton stated that, if the June 27th note had

been given to the Employer on May 31st, she probably would have accepted it. It was during

grievance meetings that mention was made of the grievor experiencing nausea and migraines.

       Finally, Ms. Gaulton said that Mr. Tracey’s evidence was wrong that it was her suggestion


                                                 -55-
that the grievor obtain a more detailed medical note, i.e., the June 27th note.



The Marijuana Issue

        Mr. Sampson testified that, as a Houseperson, part of his duties involved operating a

shampooing machine (which he said looked like a mini-Zamboni). He also used the laundry press

(a piece of equipment that had several moving parts), which handled large sheets, linen, tablecloths,

etc. He also used a variety of cleaning chemicals in his daily work.

        The grievor did not accept that his absences were excessive, that they were always connected

to his days off, or that they caused problems for employees at work – mainly because the Employer

can call in other employees to replace him. When he was off sick, he simply brought in his doctors’

notes. However, he could not explain why his absences were often associated with his days off. He

agreed, however, that the Employer had tried to address his absences with warnings, a suspension

and a decision making leave day. After the decision making leave day, he agreed to improve his

attendance.

        Mr. Sampson did recall Dr. Setrak asking him if he used marijuana, but he denied at the

arbitration hearing that he uses it. He agreed that his medical record mentions in some places that

he was taking marijuana at the time. The grievor said that he began to smoke it when he started to

get really sick. He had begun to lose weight and had aches and pains, etc., and the marijuana helped.

In a visit to Dr. Setrak a few days before March 15, 2002, he asked for help in controlling his nerves,

i.e., his anxiety, (he had “shakes” at the time) and in their discussion about his condition, he told the

doctor that only lately (a period of two (2) or three (3) weeks) had he been using marijuana. He

never used the drug before that time and when he did start, he did not smoke it at work or in front


                                                  -56-
of his children. Dr. Setrak’s letter of March 15th mentions that he “uses recreational marijuana

(which he uses once or twice a day to calm his nerves and control the aches and pains).” It also

mentions that “he showed a desire to stop using recreational drugs.” However, while he probably

told the doctor he did it once or twice a day, Mr. Sampson denied that he used it every day as the

letter states. At the conclusion of that visit, Dr. Setrak put him on a pill to control his shakes and

anxiety.

       As his cross examination continued, Mr. Sampson disagreed that his use of marijuana had

been regular. He “only smoked it one in a blue moon to take his problems away.” However, he was

concerned about using the drug at all, so he went to see Dr. Setrak to tell him about his nerves and

that he “was concerned about the stuff that was going on the various doctor’s notes, which he felt

was not the Employer’s business.

       Mr. Sampson could not recall whether he subsequently talked to Dr. Ladha, Psychiatrist,

about drugs. In any event, he made it clear that the marijuana he smoked was not prescribed. The

grievor explained that he was very confused at that time. However, his overriding concern was that

he did not want the Employer to know anything about the fact that his four (4) year old son had been

abused in 1998. That was also the reason he did not avail of the Employee Assistance Program. He

felt that he had to deal with the issue of his son’s abuse by himself and he did not want anybody to

know that this was the cause of his persistent stress. And it distressed him greatly that the Employer

did not simply accept the Doctor’s notes he brought in. He agreed, however, that the reason for his

May 30th absence had nothing to do with the foregoing.

       Mr. Sampson agreed that he had been back to work for a few days before he saw Dr. Setrak

in March 2002. He did not consider himself to be a smart man, but he felt that it was his


                                                 -57-
responsibility not to use marijuana on days when he was going to work, i.e., never before work or

during the day. However, he restricted his use of marijuana to 2130 hours or 2200 hours on just

some of those nights. In other words, he did it once per night three days per week, probably Monday,

Wednesday and Friday. He agreed that, if he did smoke on a Wednesday night, he would go to work

the next day. In his opinion, in those circumstances, the drug would have no effect on him the next

day.

       On further questioning by counsel for the Employer, Mr. Sampson said that in March and

April 2002, he used marijuana every now and then to deal with his problems. However, almost in

the next sentence he said that he stopped using marijuana when he saw Dr. Setrak and he was put

on a pill for his anxiety. He also added that, since that time, he has never used any drugs while he

has been off work.

       Mr. Sampson, recalled that Dr. Setrak prescribed the anxiety pill (Celexa) for him, then Dr.

Ladha told him to take a full pill, but he would not do so because Dr. Setrak had told him to take

only a half dose, i.e. 20 mg. Although an entry on his medical record for March 19, 2002 says that

he used pot once last week, Mr. Sampson explained (and the entry confirmed this) that he had not

started the Celexa prescription at that time. He insisted that he has not used marijuana since he

started using Celexa. An August 7, 2002 entry on his medical record shows that he had ceased

taking Celexa, he has not used marijuana since that time either.



                                         ARGUMENT



The Employer


                                                -58-
       This is a classic case of culminating incident. All of the steps of the progressive discipline

process have been completed. The grievor has been coached and counseled, he has been warned

both verbally and in writing, he has been suspended, and he has received a decision-making day.

Mr. Sampson has admitted that he was warned that termination would follow if he did not do as he

was instructed, namely, provide a detailed reason for his absence, not a doctor’s notepad that gives

little information. However, the grievor brought in the very thing he was told not to bring. On the

basis of the foregoing, the issue is penalty. Even the Union’s actions appear to lean in that direction,

e.g., the Union does not think he should have been terminated.

       The grievor has a significant attendance problem. His absences have been excessive to the

extreme, with a pattern associated with his days off. Mr. Gary Tracy testified that the Employer

was doing everything in its power to stem the grievor’s problem. Mr. Sampson, the Union, and the

employer had all been working together to address his difficulties, right up to the date of his

termination. The Union was involved in all counseling meetings. The grievor’s discipline record

was not challenged. All the steps and strategies taken in dealing with Mr. Sampson have never been

challenged. The direction given to the grievor has also never been challenged. In fact, no

challenges have occurred anywhere in the employer’s attempts to deal constructively with his

problems.

       The Employer has an Employee Assistance Program (EAP) and the grievor was aware of it.

He was also aware of the Employer’s attendance policy. He knew he was required to provide

medical certificates and detailed medical certificates. The Union had been consulted on this policy

and had never challenged it. It is part of management’s right to maintain and enforce reasonable

rules and regulations (see Article 3.01(c)). Neither the employer’s attendance policy nor its actions


                                                  -59-
are curtailed or limited by the collective agreement. The issue of detailed medical certificates is

silent in the collective agreement. Therefore, the Employer may revert to its management rights as

stated in its Attendance Policy.

       What culminated on May 31 was the grievor’s May 30 th absence plus the unacceptable

document he brought in, which had been earlier addressed in the April 26th letter. This changed

things. Both Employer witnesses gave the same answer: the grievor then had major attendance

problems (he had been off thirty days from January through March and he had a pattern of absences

which had been neither justified nor explained). Mr. Sampson had been disciplined up to the highest

step before dismissal. The Employer sent him to AOMS. Mr. Tracy was concerned with this

because he felt it would avoid corrective action. All necessary steps had been taken to deal with Mr.

Sampson’s difficulties. But he was again absent on April 24th. He was then asked for detailed

medical information for his medical absence. He provided the nature of his problem, etc., on the WI

forms. In other words, it was sufficient for the Employer to know why an employee is absent. This

type of detailed information has never been challenged before this hearing. The Employer handled

those WI claims without problems. The grievor also has provided the Employer with information

on the reasons he was sick enough to the point that he could not work. And he has never challenged

those forms before. The Employer has answered fully why there was a reasonable shift to asking

for more detail on the grievor’s medical reasons for absence. A reasonable and justifiable

explanation has been provided for absences for which Mr. Sampson was required to provide detailed

medical information. This started in late April and then the issue arose again on May 30th.

       On May 30th Ms. Lawlor called the grievor on the telephone for the purpose of avoiding

termination. The call was attended by Mr. Tracy who chose to remain silent throughout. When Ms.


                                                -60-
Lawlor asked the grievor what was wrong, he said he wouldn’t tell her anything. All the elements

were there on May 30th. Mr. Sampson had been told that the doctor’s pad note would not be

acceptable. The grievor confirmed that he had been told not to bring in such a note. There were

inconsistencies in his account for the reasons for his absence. Mr. Sampson was non-compliant.

He willfully disregarded the direction given him by the Employer to bring in a satisfactory

explanation for his absence.



       This brings us to May 31st when the grievor showed up with the very note that he was told

not to bring. He was walked silently by two Union representatives (who said nothing to him) to the

termination meeting. Those Union representatives did not challenge the grievor’s attendance

problem, his absence on May 30th, or the note which he was asked to bring in. In fact, there was

no debate on any aspect of that meeting. All the grievor did was get up and say, “It was nice

working with you.”

       Ms. Lawlor testified about her history in dealing with the grievor, namely, no other employee

had such an absenteeism record, all the counseling and discipline, etc., and the direction had been

given to the grievor, all in the spirit of corrective action. Mr. Lawlor spoke of the grievor’s April

24th absence and that she had told him that a detailed letter from his doctor explaining why he could

not work would be acceptable if it contained parameters of what he could do at work. On May 30th

during the telephone call, Ms. Lawlor gave the grievor clear instruction on the note that was required

and warned him of termination if he did not bring the proper documentation. The reason for the

May 31st meeting was that the grievor brought in the very note that the Employer told him not to

bring. Ms. Lawlor discussed the grievor’s credibility vis à vis the reasons which he offered for his


                                                 -61-
absence. At no time was she ever challenged by the grievor or the Union on how she handled the

discussions.

       Ms. Gaulton explained the attendance policy and spoke of her work with the grievor. She

explained what happened in April to require the detailed medical certificate, and she said that the

grievor had never previously objected to disclosing detailed medical information for his absences.

Therefore, Ms. Gaulton felt that she and the Union previously had been working together on the

grievor’s problems. Ms. Gaulton also spoke of inconsistencies in the grievor’s reasons.

       Mr. Tracy downplayed the May 30th telephone call, saying that he didn’t recall much about

it. He also said that he was part of the conversation between the grievor and Florence Rossiter in

the laundry room. However, those two individuals could not recall whether or not Mr. Tracy was

present at the time. In the termination meeting on May 31st, the Employer explained his no-show

and his absentee problem. The Employer also explained that the May 30th absence was the final

straw because the note he brought was inadequate, something the Employer counseled him on and

asked for since April. It was never challenged by the Union representatives in that meeting that this

was an improper requirement for the Employer to expect from the grievor.

       Mr. Tracy said he knew that the grievor could be terminated and that the Employer had been

doing everything in its power to stem the problem and that the Union had offered no other

resolutions. He agreed that he knew where the grievor was headed if any further no-shows occurred.

And he also said that he had worked with the Employer to resolve the grievor’s attendance problem.

He agreed it was standard to require some form of medical note to explain absences. Mr. Tracy also

said that on May 30th, he had thoughts and concerns about the grievor’s future and was just hoping

that the grievor was sick that day. He knew that the explanation “not feeling well” was not


                                                -62-
acceptable on May 30th.

        Ms. Florence Rossiter said that she saw only one of the grievor’s arms on May 31st.

Everything else was covered. He showed her his arm. However, she did not ask him to do this.

Clearly, this conflicts with the grievor’s evidence. Also Ms. Rossiter said that Mr. Tracey was not

present. This also conflicts with Mr. Tracey’s evidence.

        Mr. Reg Sampson said that he was seeing Dr. Setrak for stress and that he had obtained a

prescription. He was referred to Dr. Ladha, yet the WI forms were filled out by Dr. Setrak. Then

the grievor testified that he was not seeing Dr. Ladha, the Psychiatrist, i.e., that he was not seeing

the Psychiatrist any more and he was not taking the medication that he was given by Dr. Setrak as

it was prescribed, only as he felt he needed it.

        The letter of April 26th from Brenda Gaulton was read out loud by the grievor on the stand.

He said that, to him, the letter meant that he would be fired if he did not bring a proper doctor’s note.

On May 30th, Mr. Sampson testified that, on May 30th, he would not give any information to Ms.

Lawlor. In the Employer’s view, this was inexplicable. In spite of all his psychological problems

that he had already disclosed in detailed medical information to the Employer on weekly on Weekly

Indemnity forms, on May 30th he said that he did not want the Employer to know anything about his

personal problems. Yet he had a flybite problem on May 30th and still he did not want the Employer

to know anything. He agreed that Ms. Lawlor told him to bring in a detailed medical note, not the

basic notepad. He said he knew he had to have Dr. Setrak say why he was sick and why he could

not come to work. The grievor testified that he was sick to his stomach and he had headaches from

his flybites. None of this information was given to the Employer, or to Dr. Setrak for that matter.

        Mr. Sampson testified that his wife told him that he could not work on May 30th because he


                                                   -63-
took some medication and couldn’t drive. He also said that he saw Dr. Setrak before getting his

prescription. He told the doctor that he intended to go to work, but that Dr. Setrak said he could not.

Yet he also said that the decision not to go to work was his and his alone. The grievor was asked

how the post-discharge note came about, but his answer was simply that the Employer wanted a

proper doctor’s note.

       The grievor admitted that he could not explain his pattern of absences and further admitted

that the Employer had done counseling and had taken every step including warnings and suspensions

and a decision-making day and had also recommended the Employee Assistance Program for him.

He also admitted that he knew that detailed medical information was required on May 30th and that

he would be terminated unless he brought it.

       With respect to the issue of drug use, counsel for the Employer asked that the arbitrator

evaluate the grievor’s evidence. In the Employer’s view, his explanations were not credible. When

first asked about his drug use on the first day of questioning, he denied using drugs. After a recess

of the hearings, he then changed this testimony and said that he used marijuana once in a blue moon.

Then he said he used marijuana once or twice a day. He also said that he was using it to deal with

his problems and there was no prescription given to him for its use. Then he said that he smoked

marijuana at 9:30 at night on Mondays, Wednesdays and Fridays and reported for work the next day.

Mr. Sampson also said that he was on a prescription. On the basis of all these changes in his

testimony , the Employer feels that he has not established that he was not using marijuana at work.

Mr. Sampson associated the use of marijuana with medication. Then when he got the medication

from Dr. Setrak, he stopped using marijuana. Then when he came off the medication, he says he

never went back on marijuana. Yet, he was still seeing a doctor. Then he took medication only as


                                                 -64-
he saw fit.

       In summary, the grievor had engaged in some misconduct on May 30th which warranted

some discipline. Therefore, the penalty is the issue. Progressive discipline was applied in the

grievor’s circumstances and he was given every reasonable chance of resolving his circumstances.

Therefore, the burden shifts to the grievor to show why mitigating factors should be considered.

That has not occurred. Dr. Setrak was not called by the Union. The doctor could have explained

a lot of things that remain unexplained. The doctor’s note of June 27th is not admissible as evidence

and should not be considered to alter the information known to the Employer and the grievor on May

31st. That note cannot alter the state of affairs that existed on the date of the grievor’s termination.

       Mr. Sampson provided explanations for his absence after he was terminated. However, the

grievor was not terminated because he was or was not ill. He was terminated for not following

instructions. He was directed to bring in proper medical information and he did not do so. That was

the basis for his discipline, and that was the culminating incident. Mr. Sampson had been given

every opportunity to do as he was instructed. He knew he was non-compliant.

       On the drug use issue, although this is post-discharge information that came after the grievor

was terminated, the grievor has admitted to using drugs while he was working at the hotel. Drug

use is, therefore, an aggravating factor which militates against reinstatement. The grievor’s

behaviour on the witness stand does not provide the required level of confidence that a second

chance at employment will change anything.

       In support of its position that the Employer had the right to require the grievor to provide a

more detailed Medical certificate, the Employer submitted: Re Fishery Products (Marystown) Ltd.

and Newfoundland Fishermen, Food & Allied Workers, Local 1245 (1979), 22 L.A.C. (2d) 439


                                                  -65-
(Hattenhauer); Re Fletco Coatings Ltd. and Communications, Energy and Paperworker’s , Local

601 (1996), B.C.C.A.A. No. 233 Award no. X-63/96 (Beattie); Re Canadian Regional Airlines Ltd.

and Canadian Union of Public Employees (1998), 72 L.A.C. (4th) 167 (Smith); Re Salvation Army

Grace Hospital and United Nurses of Alberta, Local 47 (1995), 47 L.A.C. (4th) 114 (Tettensor); Re

Kawneer Company Canada Ltd. and International Association of Bridge, Structural, Ornamental

and Reinforcing Iron Workers, Local 835 (2001), 100 L.A.C. (4th) 129 (Luborsky); Re Health Care

Corporation of St. John’s and Newfoundland Association of Public Employees (2002), 103 L.A.C.

(4th) 227 (Christie). On the issue of culminating incident, the Employer submitted: Re Culinear

Foods Inc. and American Federation of Grain Millers, Local 242 (1995), 48 L.A.C. (4th) 99 Brandt);

Re Ball Packaging Products Canada Inc. and United Food and Commercial Workers’ Union, Local

175 (1989), 8 L.A.C. (4th) 315 (Clement); Re Sunworthy Wallcoverings and Communications,

Energy and Paperworkers Union, Local 304 (1996), 59 L.A.C. (4th) 151 (Simmons). And on the

issue of post discharge medical evidence, the Employer submitted Re Dominion Castings Ltd. and

United Steelworkers of America, Local 9392 (1998), 72 L.A.C. (4th) 342 (Murray) and Re

Compagnie miniere Quebec Cartier v. United Steel Workers of America, Local 6869 [1995] 2 S.C.R.

1095, [1995] S.C.J. No. 65, File No: 23960, Supreme Court of Canada (Lamer C.J., et al).

       With regard to the post discharge evidence issue, the Employer added that the grievor

provided an explanation for his absence after he had been terminated. However, that is not relevant

to the reason for discharge in this case, which was that Mr. Sampson did not follow the instructions

given to him by the Employer.

       In the result, the Employer urged the arbitrator to uphold the grievor’s discharge on May 31st

and to deny the Union’s request to provide Mr. Sampson with a second chance.


                                                -66-
The Union

       Contrary to the Employer’s assumption, the issue in this case is not merely about the penalty.

It is about just cause to discipline in the first place. However, if the arbitrator should find some

justification for discipline, then the Union would agree in the alternative to a modification of the

penalty imposed. Clearly, the Union does not wish to see the grievor out of work because of the

events in dispute. As stated, the Union’s primary position is that there should be no discipline

whatsoever in these circumstances.

       Counsel for the Employer is also incorrect about two (2) other points. First, counsel claims

that Ms. Sampson was not dismissed because he was ill. That is simply not true. Second, counsel

claims that the grievor was dismissed for failing to follow a directive. That is also not true: there

was no proper directive given in these circumstances.

       There has been a distinct lack of fairness her on the part of the Employer. However, in no

way does the Union impute maliciousness on the part of either Ms. Lawlor or Ms. Gaulton. In the

Union’s view, the question is whether the Employer acted objectively and fairly in requesting the

grievor to supply a detailed medical certificate for excessive absenteeism.

       On the first day of hearings, counsel for the Union said that the handling of the grievor’s

situation probably should have been on two distinct tracks, namely, the illness track and the

disciplinary track. If the grievor was incurring too many absences for illness, then it was obvious

that he had some problems. In fact, the Employer knew he had personal problems because, in

March, WI forms were received by the Employer which stated that Mr. Sampson had been referred

to a Psychiatrist.. Therefore, that should have been a signal to the Employer that he had some

unknown psychological problems. In essence the referral to AOMS was an attempt to follow the


                                                -67-
illness track by trying to determine whether the grievor could work, and if he could, were there any

limitations on the duties he had to perform.

       The disciplinary track had clearly been used to address the grievor’s no shows. The Union

took no exception to disciplinary actions that have previously been taken.

       However, along the way, those two tracks crossed because the Employer’s frustration with

the grievor’s excessive absenteeism cause it to alter its approach. Initially in these arbitration

hearings, the Employer said that the issue was culminating incident, but subsequently, the focus

became the excessive absenteeism. Obviously, the Employer found it difficult to separate excessive

absenteeism from the disciplinary process. What it did was altered the discipline process to include

discipline for excessive absenteeism and that has coloured the matter somewhat.

       There is one category of jurisprudence which stands for the proposition that the Employer

has a duty to tolerate innocent absenteeism, especially if the employee has personal problems. In

other words, if the Employer tried to discipline for innocent absenteeism in such circumstances, it

would be in trouble because it would have a duty to accommodate. In the instant case, the Employer

was initially tolerant, but it lost its tolerance prematurely. By taking action against the grievor

because of his excessive absenteeism, the Employer essentially interfered with the disciplinary

process it had established for “no shows.”

       In support of its position on innocent absenteeism, excessive absenteeism and

accommodation, the Union submitted: 1) Re Emery Worldwide (C.F. Co.) And Syndicat Des

Travailleurs De L’Energie et de la Chimie, Section Locale 156 (1992), 31. L.A.C. (4th) 341

(Frumkin); 2) Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (Oct. 13, 1989;

September 13, 1990), S.C.C.; 3) Re Airbc Ltd. and Canadian Airline Dispatchers Association (July


                                                -68-
21, 1995), 50 L.A.C. (4th) 93 (McPhillips); 4) Re Cape Breton Healthcare Complex and Canadian

Auto Workers, Local 4600 (2000), 90 L.A.C. (4th) 403 (Ashley); 5) Re Calgary District Hospital

group and United Nurses of Alberta, Local 121-R (1994), 41 L.A.C. (4th) 319 (Ponak).

        The Union also submitted Re Alcan Smelters and Chemical Ltd. and Canadian Auto

Workers, Local 2301 (1996), 55 L.A.C. (4th) 261 (Hope), an award that held that post discharge

evidence is admissible where it is relevant to the circumstances existing at the time of dismissal.

In other words, as the Union puts it: post discharge evidence is relevant if it calls into question the

factual basis underlining discharge. In the instant case, by mid-March 2002, the Employer had WI

forms which showed a psychiatric referral for the grievor and reasons for that referral. Therefore,

the Employer knew that there was an underlining problem affecting the grievor. It is not a trivial

matter for a person to consult a Psychiatrist. The problem had already caused the grievor to be off

for two or three weeks at that time. In the result, the Employer was provided with good reason to

show tolerance towards Mr. Sampson’s situation. Indeed, the Employer was tolerant for a short

while, but it lost it prematurely.

        The next issue is medical certificates, a subject with which the Union disagrees with the

Employer. This Employer was simply not entitled to require more from the grievor than it did

previously, i.e., by way of information on Weekly Indemnity forms and doctor’s notes. In support

of its position on the Employer’s right to compel disclosure of personal medical information, the

Union submitted: Re Belleville General Hospital and Service Employees Union, Local 183 (1993),

37 L.A.C. (4th) 375 (Thorne); Re NAV Canada and Canadian Air Traffic Control Association (1998),

74 L.A.C. (4th) (Swan); Re Shell Canada Products Ltd. (Shellburn Refinery) and Canadian

Association of Industrial, Mechanical, & Allied Workers, Local 12 (1990), 14 L.A.C. (4th) 75


                                                 -69-
(Larson); Re Regional Municipality of Halton and Ontario Nurses’ Association (1993), 32 L.A.C.

(4th) 137 (Swan), and Re West Park Hospital and Ontario Nurses’ Association (1993). 37 L.A.C.

(4th) 160 (Knopf).

       Relying on the foregoing, the Union argued that, absent a statutory right collective agreement

provision requiring the production of medical documentation, there is a limit to which an employee

must submit to an employer’s requests for medical information in cases of absence from work.

Employers are not permitted to ask for whatever they want. An attendance policy that requires such

has no validity if there is no legal entitlement in the first place. In the instant case, there is no

statutory right and no collective agreement provision making the issue consensual.

       In Re Health Care Corp of St. John’s, supra, a Functional Assessment Form introduced was

found to be subject to the requirements of the oft quoted KVP rules. However, in the instant case,

the Employer’s Attendance Policy did not meet at least two of the KVP rules, i.e., 1) it was not

unreasonable and 2) it was not clear or unequivocal.

       This Employer improperly altered its disciplinary process in the grievor’s situation. Mr.

Sampson did not show up for work twice in June 2001, and again in February, March and (early)

April 2002, but on none of those occasions was he told that he had to come in with a detailed

medical note. In Late April 2002, he was absent again. Only then did the Employer require detailed

medical information. At that point, the Employer mixed the illness track with the disciplinary track

by requiring the grievor to provide more than he ever had to provide before. The AOMS doctor said

that there were no medical impediments preventing the grievor from working on March 28th. In

other words, that doctor found no medical reasons why he could not attend work. It must be noted

that the AOMS doctor did not know that the grievor had been referred to a Psychiatrist for a late


                                                -70-
April visit. However, the Employer was aware of that referral (by the WI forms) at that time.

Despite being cleared to return to work by his own doctor and confirmed by the AOMS doctor, Mr.

Sampson went off work again in early April (1 day) and late April (2 weeks). Obviously, there was

reason to believe that there was something affecting the grievor at those times.

       The Employer’s Attendance Policy is anything but clear and unequivocal. The cover page

contains the title “Attendance Policy July 2000.” That page is followed by pages 1 - 4, which

existed prior to page 5 onwards, i.e., the revision to the Policy. But Page 5 also begins with the title

“Attendance Policy.” In essence then, the document indicates that there are two (2) Attendance

Policies. That might be great fodder for a lawyer who might be able to read the parts in isolation

and link them, but how is a layperson supposed to interpret and understand such a document? On

page 5, reference is made to “original Medical Certificate,” and “Medical Certificate,” and it states

that such a “Medical Certificate may be requested for any absence due to illness at any time.” Then

it lists seven (7) items which a Medical Certificate” must show. The Union submits that the

doctor’s medical pad notes which the grievor had previously provided met the requirements on this

list. It should be noted that the nature of the illness was never required and was never provided.

       Having been accustomed to submitting what page 5 of the (second) Policy required of him,

the grievor was suddenly required in late April to provide something more, which the Employer says

is expressed on page 4 of the (first) Policy, namely, a “detailed Medical Certificate” if the problem

persists. Ms. Gaulton tried to explain that “the proper documentation” mentioned in her letter of

April 26th meant that the Employer wanted the grievor to provide something like Weekly Indemnity

or Workers Compensation forms. Since the Policy does not mention those forms anywhere, how

are employees to know what is in the Employer’s mind? This is all very vague. It is certainly not


                                                  -71-
sufficiently clear to employees if it requires an explanation by the Employer at arbitration. In the

Union’s view, the Policy is ambiguous, because the “detailed Medical Certificate” on page 4 (which

is not defined) could be understood to apply to the “Medical Certificate” on page 5 (which is

defined).

       The evidence is also that the Employer did not comply with its own Policy in dealing with

the grievor. On page 4, in the section “. . . If the Problem Persists,” where improvement does not

result, there is a requirement that “another meeting should be scheduled between the employee , the

Shop Steward and the Manager.” In that meeting, the Employer is expected to “inform the employee

that they will be required to provide a detailed Medical Certificate for any illness, regardless of

duration as well as any justification required for any absence.” There was no such meeting

involving a Shop Steward in late April 2002. Mr. Sampson was given a letter in an envelope at the

top of some WI forms. That letter demanded that he report for work immediately or provide the

Employer with “proper documentation.” The letter did not say “detailed medical information” or

“detailed Medical Certificate.” Also, it should be noted that Ms. Lawlor’s phone call to Mr.

Sampson on April 24th did not involve a shop steward. Therefore, that call cannot be construed to

be the meeting contemplated by the Attendance Policy. Clearly, if the Policy can be said to apply,

then the Employer did not follow it. Why then should the grievor be compelled to meet a higher

standard of compliance?

       On page 6 of the Attendance Policy, it says that “because there will be varying

circumstances, all factors will be considered before corrective action is taken.” In the Union’s view,

the foregoing recognizes that it must act fairly in disciplining employees for absenteeism. There

were varying circumstances involved in the grievor’s case, but the Employer did not consider all the


                                                 -72-
relevant factors associated with his situation.

       On May 30th, Ms. Lawlor called the grievor and told him he had to bring a detailed medical

note. The Employer claims that the grievor’s failure to do this is the basis for discipline. Since the

Attendance Policy was ambiguous on what is meant by “detailed Medical Certificate,” and since Ms.

Lawlor’s instructions to the grievor were based upon the Policy, then, by default, her instructions

were also ambiguous.

       The arbitrator is asked to read the evidence of what happened on May 30th and weigh it

carefully. Mr. Tracey was present during Ms. Lawlor’s telephone call. His understanding of Ms.

Lawlor’s primary message was that the grievor had to come to work that day no matter what. Ms.

Lawlor’s testimony was that she told the grievor that “we are no longer accepting sickness as a

reason for not showing up for shifts.” In the Union’s view, this suggests that the Employer was

accepting no reason at all for the grievor’s absence. In other words, the Employer wanted him to

come to work that day regardless of any medical condition he might have. As further proof of that,

the termination letter was written by Ms. Galway on May 30th. That letter cites the only reason for

his dismissal as being his “actions of May 30th, 2002 when [he] failed to report for work for [his]

scheduled shift following [his] two days off.” There is no mention of an unacceptable note. The

reason for his dismissal is solely because he did not come to work on May 30th. And it was written

with full knowledge that Mr. Sampson had advised Ms. Lawlor that he was going to see a doctor that

very day.

       In the Union’s view, the issue of a medical note is something that was raised at arbitration

as an attempt to add to the grounds expressed in the termination letter.

       As for the Employer’s claim that the Union should have called Dr. Setrak to testify, the only


                                                  -73-
reason for his testimony would be to confirm that the grievor was unable to attend work on May 30th.

That has already been established. The evidence is that Ms. Lawlor and Ms. Gaulton were

suspicious that there were legitimate reasons for the grievor’s absence on May 30th. That suspicion

was the basis for the Employer wanting to subpoena the grievor’s medical records in the first place.

In the Union’s view, the Employer was surprised to find that there actually was a medical

intervention by Dr. Setrak on that day. In other words, the Employer knows that its suspicions on

May 30th and May 31st were wrong. It is well established that Mr. Sampson came to work on May

31st with a severe flybite condition which was seen by Ms. Rossiter and by Gary Tracy. Despite

being told by the grievor at the termination meeting on May 31st that he had an allergic reaction to

the medication he put on his flybites, Ms. Lawlor obviously did not believe him. In effect, she

simply did the job she was commissioned to do, namely, proceed with the grievor’s termination

which had already been decided beforehand. That hardly supports the Employer’s contention that

it was very understanding of the grievor’s situation and previously had done everything possible to

assist him.

       The fact of the matter is that Ms. Gaulton was frustrated with Mr. Sampson’s attendance

record, which she described as excessive. That is what was intolerable for her, not his no shows.

The WI forms available clearly indicated that the grievor had underlining psychiatric problems.

Despite being aware of that information, the Employer still found his absences intolerable.

       On May 31st, Mr. Sampson passed in his medical note, went to work, was called (with Union

representation) to a meeting with Ms. Lawlor & Ms. French, and was curtly terminated. The

Employer suggests that both the grievor and the Union representatives should have said or done

something at that meeting. But the question is what would be the point in the face of a termination


                                                -74-
letter that had already been written before the meeting commenced. What Mr. Sampson did do was

commendable: he acted in a very dignified manner by shaking hands with those who terminated him

and telling them that it had been nice working with them. Mr. Tracey’s account of the meeting does

not reveal that the medical note was discussed. That issue was not even mentioned in the

termination letter. In the Union’s view, none of that is surprising because the Medical Note was not

a big issue until the Employer put its case together for arbitration. It is not true that the grievor was

not terminated because of sickness. The fact of the matter is that on May 30th the Employer was

suspicious of his claim that he was sick that day.

        Ms. Lawlor has testified that, had the grievor submitted the June 27th medical note on May

31st, he would not have been terminated. At first blush it would appear that the Employer is

backpedaling now. However, in the Union’s view, the Employer had already made up its mind to

terminate him before May 31st. Therefore, he would have been fired anyway.

        The Employer has an overriding responsibility to be fair to an employee. It must keep non-

disciplinary, excessive absenteeism matters separate from the discipline process. It did not do so

in this case because Ms. Gaulton was fed up with Mr. Sampson’s absenteeism and was suspicious

that sickness was the reason for his absence. What is fair about the grievor, an employee who has

emotional problems, coming to work on May 31st, in possession of a medical note from a doctor

saying that he was not fit for work on May 30th, with the physical evidence of infected flybites on

his body indicating that he had been legitimately sick, only to be fired immediately. Compare that

treatment against his absence in late April when the Employer was content to wait 13 days until the

grievor submitted completed WI forms on May 10th. When that documentation came in, it

confirmed that he was sick. Mr. Sampson was also sick on May 30th. Yet he was fired for bring a


                                                  -75-
note which the Employer says was not sufficient. That is hardly fair treatment for an employee with

12 years service.

       When all the evidence is considered, it becomes clear that there was no culminating incident

here. Rather the Employer created another obstacle for the grievor to overcome between the 4th and

5th steps of the discipline system. It is not fair that he should have been fired for that. Mr. Sampson

should have been given clear guidance and direction by the Attendance Policy, but the Policy was

deficient. And he should have been shown tolerance in producing medical documents, especially

in light of his obvious psychiatric problems.

       The Employer’s case hinges on a thin thread, i.e., the medical note he provided which does

not even warrant mention in his termination letter.       In the result, there was no just cause to

discipline Mr. Sampson for anything in these circumstances. Therefore, he should be reinstated fully

retroactive to May 31st, 2002. He is already much improved and is ready to return to work.

       The post discharge letter of June 27th is admissible because it is relevant to the grievor’s

medical condition as it existed on May 30th, 2002. In other words, it is evidence of his medical

condition as of the date that he was discharged.

       If for some reason the arbitrator feels that some discipline is warranted in these

circumstances, it should be noted that all the relevant factors were not considered in this situation:

1) the grievor was expected to bring in a note containing detailed medical information, that is not

defined in the Attendance Policy and was not adequately explained in the Employer’s instructions

to him; 2) he was an employee with emotional problems which the Employer chose to ignore and

3) no attempt was made to have the grievor obtain an explanatory note. At the very least, the grievor

should be reinstated as of June 27th when the Employer was given Dr. Setrak’s more detailed


                                                 -76-
medical note explaining why Mr. Sampson could not come to work on May 30th.



Employer Rebuttal

       On May 31st, 2002, Mr. Sampson was told by the Employer that he was being terminated for

cause -- a disciplinary termination. In his opening statement on November 2002, counsel for the

Employer told the Union (again) and the arbitrator that this case was about the dismissal of Reg

Sampson for cause. For some inexplicable reason, which can only be characterized as an attempt

to detract from the real issue in this case, namely, disciplinary misconduct, counsel for the Union

has repeatedly insisted in trying to persuade the arbitrator that the Employer’s position is something

which the Employer has repeatedly denied and the documentation suggests otherwise. Jurisprudence

on disability and discrimination are not relevant because those are not the issues in this case. This

case has always been about culminating incident. Counsel for the Union seems to want to suggest

that the Employer should handle the matter differently and that, somehow, the Employer has

merged the two principles of discipline and innocent absenteeism as a ground for termination. That

has never been the case.

       Case law is clear that an employer must have generally some justification for asking an

employee to provide something other than the ordinary, which in this case is a medical certificate.

Indeed, counsel for the Union himself asked Ms. Lawlor what changed in April 2002. The issue

of the grievor’s attendance problem, his excessive absenteeism, his patterns of absence, the AOMS

referral, and the Attendance Policy are the foundation, i.e., the background, on which the Employer

decided to handle Mr. Sampson’s case the way it did on May 31st. Cases of this type are not

presented in a vacuum. All of the above information justifies why there was a shift. It was not the


                                                 -77-
basis on which the Employer acted on May 31st or at any previous time. It was the context in which

this person has been treated on an individual case, on individual merits, justifying why the Employer

asked for the information it requested on May 30th. Mr. Sampson ignored the instructions he was

given by bringing the very note that he had been told would be unacceptable. Therefore, the

arbitrator is being asked to determine whether the grievor’s failure to provide what he had been

instructed to provide constitutes misconduct. From the Employer’s perspective, there is case law

to support the Employer’s position. There was a culminating incident at the end of an undisputed

discipline record. That has been the Employer’s case from the beginning. Therefore, the Union has

no right to tell the arbitrator that this case is about something other than the specific action that the

Employer has actually taken.

        Counsel for the Union suggests that he is hesitant to make an alternative argument on penalty

because he is certain that there were no grounds for discipline of any kind. However, that position

is at odds with the position he took on April 9th, 2003 (when the drug use matter arose) when he said

that the Union was challenging the penalty. He went on to say that the issue is the penalty only

because the Union does not believe the grievor should be dismissed. He also asked questions of Ms.

Gaulton, by way of example, that clearly indicated that the Union has always taken issue with the

penalty, not genuinely with whether Mr. Sampson did something wrong on May 30th and 31st, but

more to the point, i.e., whether he should lose his job for what he did. For example, counsel for the

Union asked Ms. Gaulton why she did not sit down with the grievor and tell him that this is a

culminating incident and then give him another chance to make matters right. In other words,

counsel’s suggestions were that a fair and more moderate disciplinary response should have been

taken by the Employer to avoid dismissing him in these circumstances. In the result, up until the


                                                  -78-
Union’s final argument, its clearly articulated position has been squarely focused on the issue of

penalty.    In the Employer’s view, the Union has made repeated representations during the

arbitration hearing that the issue in dispute has only and always been about the penalty, and now it

is backpedaling.

       In Emery Worldwide, supra, the employer’s position as summarized on page 2 was that “the

grievor’s attendance record was such that the level of absence and lateness reflected in that record

is unacceptable.” In the instant case, the Employer never said that. It was further indicated in

Emery Worldwide, supra, that the employee was absent without providing notice to the employer.

However, the arbitrator disagreed, saying that he was not satisfied on the evidence that the grievor

failed to give notice of his absence as required by the employer’s policy. Consequently, the

arbitrator found on page 5 that there was a final offense on which to establish a culminating incident.

In the instant case, it is suggested by the Union that Mr. Sampson is a model employee who should

be given every consideration on principles of fairness. However, the fact of the matter is that Mr.

Sampson was told only one month earlier in April that his attendance was such a serious problem

that he would be terminated unless he addressed his absenteeism. What was his response to that?

When Ms. Lawlor tried to constructively tried to deal with his situation on the telephone on May

30th, he refused to give her any information. Curiously, it has been suggested that the logic of his

actions was predicated on his psychiatric problems, which, in Union counsel’s opinion were

significant and the Employer was not aware of the scope of them. However, an examination of that

alleged scope reveals that in March the grievor saw Dr. Setrak. Dr. Setrak referred him to Dr. Ladha

in late April. Dr. Ladha saw him once only, and has never seen him since. Further more, the

culminating incident had nothing to do with psychiatric problems. It is claimed that his problem


                                                 -79-
then was flybites, or nausea, or stomach pains, or migraines. Yet at the end of the day, the grievor

admitted he refused to supply the information Ms. Lawlor asked for in circumstances when he was

again absent after his two days off. Psychiatric problems had nothing whatsoever to do with that.

Indeed. All the medical evidence covering the period since he was terminated is about aches and

pains, not psychiatric problems.

       Counsel for the Union stated that the grievor has improved since his termination. The

question, however, is improved from what? As far as it relates to the culminating incident, his

improvement would have to be that he understands the gravity of his absenteeism and being

compliant in acceding to the Employer’s reasonable request to provide justification for his absence.



       The Attendance Policy provides most of the justification for the Employer’s actions in the

grievor’s case. What has been conveniently omitted from the Union’s reference to an undefined

“detailed Medical Certificate” in the third bullet on page 4 is the requirement that the employee will

be required to provide “any justification required for any absence.”       Clearly, the issue of the

“detailed Medical Certificate” cannot be looked at in isolation of the latter phrase. The Employer’s

position in this respect has not faltered from the very beginning. The Employer has always claimed

it had justification, i.e. reasonable grounds (as articulated by Ms. Lawlor and Ms. Gaulton

concerning his attendance problem) to request Mr. Sampson to provide more than the ordinary to

justify his absence. He did not provide that when he was asked. However, he seems not to have had

much difficulty in obtaining what was requested after he had been terminated. This raises the

question why the Employer should have to terminate an employee and thereafter have him comply

with the original request almost two (2) months later. The fact that Mr. Sampson could get an


                                                 -80-
acceptable note from Dr. Setrak on June 27th indicates that it was available earlier. Therefore, his

culpable conduct was not complying with the Employer’s request on May 30th. There was no

justification for him not bringing that note when he was first asked to do so.

       On balance, the Employer’s jurisprudence supports the action that it took for the culminating

incident it has established. None of the Union’s jurisprudence is relevant or appropriate because

there was no disability or innocent absenteeism involved in this case. In essence, what the Union

has done is submit jurisprudence to support the notion that the Employer had no right to dismiss the

grievor for innocent absenteeism. However, non-disciplinary termination was not what was imposed

on Mr. Sampson. He was terminated because of culpable misconduct, which was the culminating

incident in his established disciplinary process.

       On May 30th, appropriate circumstances existed for the Employer to ask Mr. Sampson for

a medical certificate with more information than simply stating “off for sickness.” The Employer

was entitled to know that he suffered from some condition that actually prevented him from

performing his duties.

       In the May 31st meeting, if it was their sincere belief that a big mistake was being made, it

was the responsible and reasonable thing for the grievor and/or the two (2) shop stewards to tell Ms.

Lawlor exactly that. It was simply not acceptable for them to remain silent until he had been

terminated and only afterwards adopt the position that the medical information requested by the

Employer was actually available. There is a significant disagreement between the Employer and the

Union about what was actually said in the termination meeting. Gary Tracey, Helena Lawlor and

Reg Sampson all acknowledge in their evidence that Ms. Lawlor clearly said the medical note that

Mr. Sampson brought was inadequate.


                                                -81-
       Although the Employer is reluctant to criticize Dr. Setrak here because he was not called by

the Union to testify, there is one point on which the Employer does take issue. The Union has said

that it respected Dr. Setrak’s integrity. Yet the evidence in the grievor’s medical record establishes

that Dr. Setrak once issued a medical note for the grievor on the basis of a telephone call from his

wife. The same medical record also establishes that Dr. Setrak asked Mr. Sampson how long he

wanted to be off and then wrote a medical note to that effect. With all due deference to Dr. Setrak

and the issue of his integrity, the medical evidence in this case clearly shows the ease by which

employees may obtain medical notes – a subject previously dealt with by arbitrator Hattenhauer in

Re Fishery Products, supra. Therefore, medical notes are not royal writs. They may be questioned

in a number of different circumstances.

       At the end of the Attendance Policy it states:

       It should be noted however, because there will be varying circumstances, all factors
       will be considered before corrective action is taken. Any corrective action taken will
       be in accordance with Article 7 of the Collective Agreement.

Im March the Employer could have implemented the same expectation that it deferred until May.

However, it did not do so because it did take more moderate steps before corrective action was

imposed. That is precisely what Gary Tracey said: he concurred with Mr. Sampson being referred

to AOMS in March to try to determine whether there were some other explanations or any

contributing factors as to why he was missing so much work. That was not only fair, it was

consistent with the spirit of the Policy. Now, however, the Union insists that the Employer has not

treated the grievor fairly. Such an accusation flies in the face of the actual evidence. Moreover, the

evidence also shows that the Employer gave Mr. Sampson 13 days in April to bring in a doctor’s

note because he told the Employer that he was having difficulty getting his doctor to complete the


                                                 -82-
necessary documents. Those documents (WI forms) show on their face why he was having

difficulty getting this completed. In his own medical notes in C#2 and again in BG#4, the WI forms

for the April24th -- May 7th absence, Dr. Setrak signed his name to treatment by Dr. Ladha , with

whom Dr. Setrak was not in practice, i.e., “increased Celexa to 40 mg POOD by psychiatrist.”

Despite that irregularity, the Employer accepted the document without any disciplinary action upon

the grievor. That is an example of the very fairness that counsel for the Union insists the Employer

failed to give to the grievor. Yet the Employer is now being criticized for exercising such fairness

in those circumstances. The facts are that, on two occasions. the Employer fairly applied more

moderate measures to avoid disciplining the grievor.

       However, the Employer should not be expected to employ such measures indefinitely. At

the time in dispute, Mr. Sampson was at the last step of the discipline process; he had twice been

given considerations based upon fairness and alternative measures to avoid discipline. Therefore,

on May 30th, the Employer was entitled to hold him responsible for providing a more detailed

medical certificate, a feature of the Attendance Policy that the Union had been fully consulted on,

had never challenged, and had worked on with the Employer. Then suddenly counsel for the Union

has troubles with that Policy which had never been a problem before.

       The April 26th letter mentioning “proper documentation” should not be looked at in the

abstract because there was a telephone call between Ms. Lawlor and Mr. Sampson in which she did

tell him that he had to bring in a detailed medical certificate. Besides, the grievor’s testimony was

that, by the end of April, he knew what was required of him.

       It should also be noted that, Ms. Lawlor consulted with the General Manager and other

management, after receiving the inadequate medical note from Mr. Sampson on May 31st.


                                                -83-
Therefore, the May 31st termination letter was not delivered unilaterally. It followed a consultation

process that resulted in the decision to terminate.

       This Employer went beyond the norm in demonstrating fairness to the grievor. It also gave

him every opportunity to improve and to correct. Therefore, the onus was on Reg Sampson to

demonstrate why he should be given another chance. Everything that was required of the grievor

could have been provided on May 31st. He did not do so. He had a prior disciplinary record. He

should be accountable for his actions.

       In the Employer’s opinion, the grievor has not demonstrated why he should be given a

second chance. Therefore, the decision to terminate should be upheld.



                                      CONSIDERATIONS



       Discipline cases generally require an initial determination whether just cause has been

established and, if so, whether the penalty imposed can be considered just and reasonable in all the

circumstances. Occasionally, the parties may agree that just cause has been established and,

therefore, the issue at arbitration is penalty alone. Since there is no such agreement in the instant

case, both just cause and penalty are at issue.



Whether Just Cause To Discipline Has Been Established

       On the one hand, counsel for the Employer takes the position that the grievor’s failure to

follow the Employer’s instructions to provide a detailed Medical Certificate for his May 30th, 2002

absence was culpable conduct, which the Employer was entitled to address by disciplinary action.


                                                  -84-
       On the other hand, counsel for the Union takes the position that no just cause has been

established because 1) the Employer’s instructions were neither clear nor unequivocal due to the fact

that they were based on a flawed Attendance Policy and 2) the Employer improperly merged the

non-disciplinary track for dealing with innocent absenteeism with the disciplinary track it had

imposed on the grievor for no shows.



The Grievor’s Discipline Record Prior to May 30, 2002

       It is common ground that, immediately prior to the May 30th incident in dispute, the

grievor’s discipline record contained four (4) disciplinary actions, i.e., a verbal warning, a written

warning, a suspension, and a decision-making leave day. All of the disciplines were for no shows

for which the grievor provided unacceptable excuses. Since only one of the disciplines have been

grieved and that one was abandoned, I am satisfied that they constituted the grievor’s valid

disciplinary record immediately prior to May 30, 2002. As such the Employer would be entitled to

rely on that record for the purpose of determining an appropriate penalty for a next offence.



Setting the Stage for Applying the Doctrine of The Culminating Incident

       Since the Employer is relying on culminating incident in this case, and since a critical

element of that doctrine is the requirement that it must be made clear to the employee that discharge

will follow for the next incident, it is important to note Ms. Helen Lawlor’s evidence that she met

with the grievor on Sunday morning April 6, 2002, after his decision-making leave day, and in that

meeting she stressed that he had to improve his attendance or the next step would be termination.

What she explicitly told him was that one (1) more unacceptable “no show” would result in his


                                                 -85-
dismissal. According to Ms. Lawlor, Mr. Sampson responded that he did not want to lose his job

and that he would improve his attendance.

       I am satisfied that Ms. Lawlor’s discussion with Mr. Sampson on April 6th, as well as on

previous occasions when he was disciplined, also involved concerns about the significant number

of days he had been sick and the pattern of his absences associated with his days off. Although his

Attendance Record shows that he had been sick 16 times from January 1st to March 31st, 2002, the

Employer did not invoke on April 6th any of the requirements it claims are triggered by “excessive

absenteeism” under the Attendance Policy. Actually that did not occur until Mr. Sampson was

absent again on April 23rd. Nevertheless, it is clear to me that, on April 6th, Ms. Lawlor’s warning

to the grievor was that the next step would be termination if 1) his attendance did not improve, or

2) he had another unacceptable no show.

       While I find it easy to accept the termination warning for another unacceptable no show, I

have considerably more difficulty accepting such a warning for an additional “innocent” absence,

e.g. for legitimate sickness, etc. The no shows on the grievor’s record were all unacceptable because

he either had no excuse at all or his excuse was not valid and, more to the point, no medical notes

were involved. In other words, the grievor was guilty of culpable misconduct in each case.

Therefore, it would be very straightforward and valid for the Employer to impose discipline for

another unacceptable no show indicating the same kind of culpable misconduct. Indeed, the

application of culminating incident on which to ground termination would be most defensible in

those circumstances.



Whether Culminating Incident Applies to Innocent Absenteeism


                                                -86-
       However, I do not accept that the Employer would necessarily be able to apply the notion

of culminating incident if the grievor was absent again for legitimate sickness. I say “necessarily”

because I am not satisfied that the doctrine of culminating incident should apply to cases of innocent

absenteeism, i.e., non culpable conduct.

       As I see it, while the Employer is free in most cases to address an employee’s innocent

absenteeism by such means as counseling, reference to EAP, other medical assistance, or

accommodation, absent a collective agreement provision permitting disciplinary action in such

circumstances, discipline would be an inappropriate response. In my view, except perhaps in the

case of major workplace rule infractions, the underlining purpose of discipline is to correct

inappropriate behaviour. If a person is missing work because he/she is legitimately ill, then his/her

absences are not due to inappropriate behaviour. I cannot imagine how the imposition of discipline

can correct absences which have nothing to do with an employee’s behaviour but have everything

to do with his/her medical condition. That is not to say, however, that an employer is necessarily

without means to address an employment relationship which has been “undermined,”

“fundamentally breached,” “rendered totally moribund or frustrated” (see para. 7:2310 Brown &

Beatty).   As long as there are no collective agreement restrictions and the employer has

accommodated to the point of undue hardship, the employer may terminate on the basis of some

final absence provided that there is sufficient medical evidence to prove that the employee will not

be able to attend work reasonably and perform his/her duties in future.

       In the instant case, at no time was the Employer was in possession of medical evidence that

the grievor would not be able to attend work reasonably and perform his duties in future. Essentially,

the sine qua non for termination for innocent absenteeism did not exist on April 6th, 2002, or on any


                                                 -87-
other date for that matter. While the evidence strongly suggests that members of management had

become frustrated with Mr. Sampson’s absenteeism and were suspicious of the reason cited for the

May 30th absence, there is no evidence that the employment relationship itself had been undermined,

fundamentally breached, or rendered totally moribund or frustrated. Therefore, despite the existence

of an Attendance Policy stating that excessive absenteeism would be subject to corrective action,

i.e., discipline, the Employer had no grounds to warn the grievor on April 6th that termination would

occur if his attendance did not improve.

        I am satisfied that, despite their statements to the contrary, both Ms. Lawlor and Ms.

Gaulton were suspicious of the reasons for many of Mr. Sampson’s absences, especially those

associated with his days off. I can see no logical explanation for taking issue with a pattern of

absence involving the grievor’s days off unless there was considerable doubt in the Employer’s mind

that such absences were really legitimate. Indeed the evidence is that this issue was discussed every

time the grievor was disciplined for a no show. In my opinion, the Employer did develop serious

doubt as time went on that Mr. Sampson was sick on most of those occasions, such doubt for all

intents and purposes, synonymous with suspicion.

       If an employer is suspicious that an employee’s absences are really innocent, the employer

is free to discipline. However, it should be remembered that such disciplinary action ultimately may

be subject to arbitration where the employer will be required to provide proof that its suspicions

were correct. In the instant case, the evidence is that, for the grievor’s previous absences, the

Employer accepted plain doctor’s notepads stating simply that he was unable to work. Having

already accepted the reasons previously cited, it would be difficult for the Employer, in the absence

of new evidence supporting its suspicions, to take retroactive disciplinary action against the grievor


                                                 -88-
based on those suspicions. Also in the absence of proof establishing that a subsequent absence is not

legitimate, suspicion alone could not ground disciplinary action.

        Also as part of setting the sage for culminating incident, the Employer explained the details

of the grievor’s next absence from April 23rd - May 7th. It is clear that the grievor’s overall

absenteeism had become “Excessive Absenteeism” (e.g. exceeding 10 days in any 12 month period)

as expressed on page 1 of the Attendance Policy, and that was the basis on which Ms. Lawlor

decided on April 24th that she would require Mr. Sampson to provide “a detailed explanation and that

the Employer would not accept a doctor’s notepad stating “unable to work..” Ms. Gaulton’s April 26th letter

also stated that Mr. Sampson had to “provide the employer with the proper documentation from you and

your attending physician for the period of time you are off work,” or be considered an unacceptable no

show. I am satisfied that Ms. Lawlor’s “detailed explanation” but “not a doctor’s notepad stating

unable to work” was the same as Ms. Gaulton’s “proper documentation,” and that both women were

referring to the WI forms that were to be completed by the grievor and his attending physician.

Interestingly, in spite of Ms. Lawlor’s instructions, Mr. Sampson still showed up on April 27th with

the very doctor’s notepad stating “unable to work” that Mr. Lawlor had told him would not be

acceptable. However, the Employer did not discipline the grievor in that case because it knew the

WI forms were coming, albeit somewhat delayed. In other words, no issue was taken with his

failure to do what the Employer had instructed.

        Here was an absence, which for all intents and purposes, fell squarely within the parameters

of the warning that the Employer had made on April 6th, namely, if his attendance did not improve,

the next step would be termination. Yet the Employer did not terminate him. Rather it accepted

medical information (as Ms. Gaulton indicated in her April 26th letter) expressed on the appropriate



                                                   -89-
WI forms as justification for his absence. Although the threat was made to terminate him as an

unacceptable no show if he did not provide proper documentation, he was not considered a no show

when he showed up with the same type of doctor’s note that he had always brought before.



The Grounds Relied on for the Grievor’s Termination and the Role of the Attendance Policy

       When Mr. Sampson was absent again on May 30th, Ms. Lawlor told him again in a phone call

to his home that he would be terminated if he showed up with a plain doctor’s notepad saying

“unable to work.” Not only did she tell him that a doctor’s notepad stating “unable to work” would

be unacceptable, Ms. Lawlor also spoke to him in terms of providing “detailed medical

information,” an expression only slightly different from the “detailed explanation” for sickness she

required from him on April 24th. In my opinion, while it was made clear to the grievor what would

not be acceptable, i.e., a doctor’s note saying “unable to work,” it was not made clear what would

be acceptable. For the April 23rd - May 7th absence, it was abundantly clear that completion of the

appropriate WI forms would provide the “detailed explanation” Ms. Lawlor sought and the “proper

documentation” mentioned in Ms. Gaulton’s April 26th letter. However, WI forms (which contain

specific sections to be completed by the Employer, the employee and the attending physician --

including details of specific medical information, e.g diagnosis, etc.) were not relevant to the single

day’s absence on May 30th.

       The grievor’s letter of termination states the grounds for his termination, viz:

       Your employment with Delta St. John’s Hotel & Conference Centre is being
       terminated for cause effective immediately.

       The decision arises from your actions of May 30, 2002 when you failed to report to
       work for your scheduled shift following your two days off.


                                                 -90-
        ....

As the Union has noted, there is no reference in that letter to any medical certificate that the

Employer considered to be unacceptable. That particular unstated ground, however, is the very one

the Employer insists was the sole ground for disciplining the grievor in these circumstances. On

balance, I take the liberty of interpreting the wording above, especially, “failed to report for your

scheduled shift following your two days off” and I find that the notion of failure to report for work

presumes that the grievor was absent without legitimate excuse. In my view, whether or not there

was a legitimate excuse could be construed as a function of determining the acceptability of the

contents of a medical note. In the result, I will allow the Employer’s claim that its ground for

discipline was the grievor’s failure to provide an acceptable doctor’s note explaining his absence

on May 30th, and that this action, along with his discipline record, culminated in his termination.

        I am satisfied that, based on the Employer’s previous requests in April, Mr. Sampson’s sole

experience with “detailed medical information” was the WI forms themselves. In spite of being told

by Ms. Lawlor what not to bring to the Employer, he brought the usual doctor’s note. In my

opinion, that action might be attributed either to deliberate refusal to follow the Employer’s

instructions, or inability to understand the instructions in the first place. Frankly, I think the latter

explanation is the more plausible one. Since the grievor has only Grade 5 education, he could be

expected to have limited ability to read and understand reasonably complex letters and documents.

Judging by the difficulty he demonstrated reading Ms. Gaulton’s April 26th letter at the arbitration

hearing, I am satisfied that he did not grasp much of the content of that letter. He appeared to

understand some aspects but not others, and of the subject matter that he could explain, his answers

appeared to be very simplistic.


                                                  -91-
       On balance, my sense of the grievor’s testimony and of the conclusions that can reasonably

be drawn from his actions as related by other witnesses, both Employer and Union alike, is that Mr.

Sampson is a very simple man whose explanations of what he has been told are often confused at

least and wrong at best. In answering questions from both counsel, his answers were often prefaced

by “I don’t remember,” or “I can’t recall,” and then he would proceed to answer what he thought

the question was, often exhibiting a misunderstanding of the question and, therefore, providing an

invalid answer. On a large number of other questions, which other witnesses had already led

evidence on and the grievor heard during arbitration proceedings, Mr. Sampson could not remember

the issues or the events. Overall, I found Mr. Sampson’s testimony confusing, but not deliberately

evasive. Based on the evidence, I am convinced that his often confused testimony was a

consequence of his inability to understand what was being asked of him as well as of an extremely

poor short and long term memory.

       I am satisfied, however, that the grievor understood one message given him by Ms. Lawlor,

i.e., that he would be terminated if he showed up with a plain doctor’s note, but I do not believe that

he fully understood what it was she said that he had to bring to the Employer to avoid being

terminated. I submit that there may well have been good reason for his confusion and lack of

understanding on that issue. On my review of the evidence, Ms. Lawlor’s instructions primarily

referred to “detailed medical information,” but occasionally referred to a “detailed medical note”

and once to a “detailed medical record.” It is not certain that she actually used the expression

“detailed Medical Certificate,” in her conversation with Mr. Sampson at all, or if she answered a

question with that expression in it (for example the grievor answered yes to a question whether she

had told him he would be terminated if he did not bring a detailed Medical Certificate) and simply


                                                 -92-
repeated the phrase that she had just heard. It appears that the issue of “detailed Medical

Certificates” primarily arose in Ms. Gaulton’s testimony concerning the role of the Attendance

Policy. Her evidence was that Medical Certificates were first required from the grievor at some

point soon after corrective action had begun and detailed Medial certificates were required on April

23rd, 2002.

       In the result, on my review of the evidence concerning the events of May 30th, “detailed

medical information” was the predominant request made of the grievor and possibly a “detailed

medical note,” or “detailed medical record” but not “a detailed Medical Certificate.” However,

whatever it was that Ms. Lawlor asked for, I am certain that she did not explain to Mr. Sampson

what specific detailed medical information a medical note or a medical record had to contain.

Bearing in mind the considerable detail contained in a WI form, with which Mr. Sampson did have

some familiarity, surely Ms. Lawlor was not asking him to have WI forms completed for his May

30th absence. But if not WI forms, what written instrument, if any, was Ms. Lawlor expecting the

grievor to provide? Was it a doctor’s notepad with additional medical detail? Or was it a letter from

the doctor? Indeed, Ms. Lawlor’s evidence is that, on May 31st, she asked the grievor if he brought

a letter from his doctor. His response was affirmative, but to him a letter meant a doctor’s notepad.

Nowhere else in the evidence is there any indication that Ms. Lawlor asked the grievor to bring

detailed medical information in the form of a letter. In my view, if that was her real request, it was

incumbent on her to tell the grievor clearly and unequivocally what type of information should be

written by the doctor in a letter. This is especially true for a person who has a very limited

education.

       If a “detailed Medical Certificate” was in Ms. Lawlor’s mind when she instructed the grievor


                                                 -93-
to bring “detailed medical information,” it was also incumbent on her to make perfectly clear to the

grievor what that meant. Although the notion of a “detailed Medical Certificate” arises from the

Attendance Policy and Mr. Sampson was part of a group who was present when that Policy was

explained to them, that is not enough to establish that he knew what detail he had to bring. And,

despite Ms. Lawlor’s evidence that the grievor did not indicate that he did not understand the Policy,

that too is not enough to establish knowledge for a person of such limited education, especially since

there is no specific explanation in the Policy what detail is to be included in a detailed Medical

Certificate. As for his not indicating that he did not understand the Policy, Mr. Sampson does not

strike me as the kind of person who would call attention to his low level of education by asking

questions about matters that other employees seemed to understand.

       As counsel for the Union has argued, the Attendance Policy is a document which appears

to contain two (2) attendance policies and the terminology of the first, e.g., “detailed Medical

Certificate” (which is not defined) on page 4 arguably can be construed to be the same as “original

Medical Certificate” (which is defined) on page 5. To those of us who are accustomed to reading

and interpreting complex language, an analysis of this particular Attendance Policy might, with

some effort, achieve a consolidated understanding of what is written and at the same time perhaps

be able to distinguish between “detailed Medical Certificate” and “original Medical Certificate.”

But to those who are far less unaccustomed to reading even moderately expressed language, such

as Mr. Sampson, I submit that it would be anything but clear or unequivocal what is required by the

Attendance Policy to be shown on a detailed Medical Certificate. On that issue, I note Ms.

Gaulton’s testimony that an employee so instructed who was unsure about what detailed medical

information was required would ask his/her Manager for guidance. However, there appears to be


                                                 -94-
an element of inconsistency in suggesting on the one hand that an employee would need a manager’s

guidance, but on the other hand insisting that the Attendance Policy was clear on the subject in the

first place and had been well communicated to all employees. In my view, an unsophisticated reader

asked to supply a detailed Medical Certificate would likely conclude from the Attendance Policy

that the list of items on page 5 of the Policy is the appropriate detail that is being required. And it

would also be a reasonable conclusion that this list of items matches very closely the information

on doctor’s note pads that the Employer has previously accepted.

       Therefore, in the absence of clear direction as to the specific kind of detailed medical

information being sought by the Employer as well as clear indication as to what type of written

instrument (e.g., a medical note pad, a separate and different medical certificate, or a letter by the

physician) an employee is expected to obtain, a manager’s instruction to an employee to bring

detailed medical information, or a detailed medical note or record, or even a detailed Medical

Certificate, will be necessarily vague. In the case of Mr. Sampson, whose only prior experience

obtaining medical information from his doctor for work purposes has been doctor’s note pads and

WI forms, I find that the instructions given to him by Ms. Lawlor on May 30th were not sufficiently

clear for him to understand precisely what specific medical information or written instrument to ask

for from his doctor. In effect, he was left to figure that out for himself.

       What the grievor did understand is that the Employer would terminate him if he brought a

doctor’s note pad saying “unable to work.” Therefore, his responsibility was to ask the doctor for

more than a plain doctor’s note. In Ms. Gaulton’s testimony, albeit in reference to her July 3rd

telephone discussion with the grievor, she asked him why he did not get the required medical

information on May 30th. Although I would have preferred to have heard from Dr. Setrak himself


                                                 -95-
on this as well as on some other issues, that opportunity was not made available. However, there

is evidence suggesting that the doctor told him that he was not required to disclose confidential

information. In my view, for the doctor to make that comment, there must have been some request

made by the grievor for the doctor to provide the Employer with medical information in excess of

the usual doctor’s note pads stating “unfit for work.” Mr. Sampson testified that, when he told the

doctor on May 30th that he was supposed to be working that day, the doctor told him that he could

not work in his condition, and that he would write a note to put him off. I am satisfied that, at that

point, the grievor asked that he provide medical information on the note pad because his Employer

was asking for it. Ms. Gaulton questioned him further on that point, asking if the doctor would not

provide the information. Mr. Sampson’s reply essentially reiterated what he said above. However

he added that, later in June when he told the doctor that he had lost his job, Doctor Setrak did

provide the information required. Since the June 27th note described the nature of the grievor’s

medical condition on May 30th, it is obvious to me that both he and the grievor believed that this was

the information that the Employer wanted. It is also obvious to me that the doctor had the grievor’s

permission to release that information on June 27th.

       It might be argued that the grievor should have disagreed or taken issue with the doctor on

May 30th when he said he was not required to disclose such information. However, in my view, to

a simple man whose personal makeup has always been to accept without question what a doctor

wrote on a medical note, I would imagine that the prospect of challenging an educated medical

professional would be daunting. After all, what the doctor had always written had been sufficient

to explain his previous absences. On medical matters then, it appears that the grievor genuinely

deferred to his doctor. And in the particular circumstance of his May 30th absence, where it was not


                                                 -96-
clear precisely what particular medical information was required, he did inform the doctor that the

Employer wanted more information, the doctor presumed that meant disclosing confidential

information and he told the grievor that he was not required to do that, so Mr. Sampson then

brought to the Employer the only medical note in his possession. I accept the grievor’s evidence on

those matters. I also accept the evidence that Doctor Setrak provided a medical certificate stating

the precise nature of the grievor’s illness only when he was advised by the grievor that he had lost

his job because of the insufficiency of the previous note. That suggests that, on May 30th, the issue

of the grievor’s pending termination was not discussed with the doctor.

       To this point, I have dealt with the issue of what the Employer told the grievor not to bring,

that there was no clear or unequivocal instruction as to the specifics of what he did have to bring

(other than “detailed medical information”) and that the doctor gave him the only note he was

willing to provide at that time. Under the circumstances, I see no indication on the part of the

grievor that he was blatantly refusing to follow the Employer’s instructions. While he may have

failed to bring the kind of information the Employer wanted, he did not deliberately set out to do so.

In other words, there were extenuating circumstances involved in this event for which due

consideration must be given even if those circumstances might do violence to the application of

culminating incident. Although some of the evidence concerning those extenuating circumstances

was not made known to the Employer at the time of dismissal, and notwithstanding the post

discharge nature of that evidence (which I will deal with later), I accept such evidence as relevant

to the circumstances grievor’s termination on May 31st. For the moment, however, I wish to deal

with the issue of the Employer’s right to ask the grievor for detailed medical information.




                                                 -97-
The Issue of the Employer’s Right to ask for Detailed Medical Information

        I do not hesitate to agree with the Employer that, on the basis of the grievor’s excessive

absentee record alone, jurisprudence strongly supports the notion that it was justified in asking the

grievor to provide more than a simple doctor’s note stating “not fit to work.” At the point in an

employment relationship where an employer can reasonably establish that a particular employee’s

absentee record is well beyond the norm for other employees in the same institution, the employer

is entitled to protect its own interests. In my opinion, Mr. Sampson’s absentee record was excessive.

Due to his absences persisting, and despite being cleared to work as of May 7th by his own doctor,

and a medical assessment in March finding no medical reasons for his absences to date, one of the

Employer’s interests as I see it was to be reasonably assured that the reason for any subsequent

absence was that an illness or some other medical condition legitimately prevented him from

performing his duties on that day. In my view, a simple doctor’s note with a tick beside “not fit to

work” does not provide that assurance. The question of course is how much more the Employer is

entitled to know about the grievor’s personal medical circumstances.

        The parties, particularly the Employer, have provided me with a good deal of jurisprudence

on this subject. I do not intend to do an exhaustive analysis on each an every case submitted to me,

but I have read them all and I am prepared to conclude that, on the one hand, there is one train of

thought that an employer has the right in excessive absenteeism situations to require an employee

to disclose the exact nature of his illness, even to the point of disclosing full diagnosis. On the other

hand, there is another train of thought that requiring the exact nature of an illness, or a diagnosis,

is generally unnecessary and is also an infringement of privacy because it compels the employee

to reveal what is a matter of confidentiality between himself and his doctor. On balance, I subscribe


                                                  -98-
to the latter train of thought.

        In the instant collective agreement, there is no provision requiring medical certificates or

specifying any particular medical information that must be supplied to the Employer for employees

missing work due to illness. However, the agreement does provide for sick leave and weekly

indemnity benefits. The evidence is that an insurance carrier, Manulife, approves and administers

weekly indemnity benefits on the basis of completed WI forms containing detailed medical

information for all such absences. The parties appear to accept the kind of information that the

insurance company requires.       However, approval for sick leave benefits appears to be the

Employer’s responsibility and, as such, I find that it is a matter of management right to require

appropriate medical information before payment of sick leave benefits is made. The evidence is that

ordinary doctor’s notes stating “unfit for work” have been generally accepted for that purpose.

        The creation of an Attendance Policy which requires more detailed Medical Certificates is

also a matter of management right, subject, of course, to the grievance and arbitration procedures,

the latter almost certainly putting the Policy to the KVP test. I have already found that the

Employer’s attendance Policy is neither clear nor unequivocal in informing employees what kind

of detail and how much detail is required by a “detailed Medical Certificate.” Therefore, the Policy

is deficient in that regard. In the result, it would be incumbent on the Employer in cases where

detailed medical information or “detailed Medical Certificates” are concerned to be perfectly clear

on the specifics of the detail being requested. On that issue, I have found that such specifics were

not made clear to the grievor on May 30th. Rather, it was left to him to interpret what was meant by

Ms. Lawlor’s request. If WI forms were applicable to his circumstances, the detailed questions

already printed on the WI forms would clearly indicate what was required of the doctor. However,


                                                -99-
for a vague request for detailed medical information, the grievor had no written instrument to present

to the doctor and, therefore, could only guess what to ask his doctor to provide.

       As I review the evidence in this case, I am satisfied that, with honest faith in the validity of

the Attendance Policy, Ms. Lawlor believed that she had the right to know the specific nature of the

grievor’s illness. I am satisfied that, on the morning of May 30th, Ms. Lawlor was suspicious that

the grievor was really sick and that is why she told him that he had to come to work that day. In

fact, with the knowledge that he was facing termination, she virtually pleaded with him to come to

work, suggesting that he take a rest and come in for a part of his shift because she needed him. I am

also satisfied that Ms. Lawlor asked him what was wrong with him, e.g., was he throwing up, which

in my opinion, strongly suggests that she wanted to know the exact nature of his “illness.”

       At first blush, Ms. Gaulton’s evidence on this subject seemed to initially disagree that the

Employer was entitled to know the specific nature of the grievor’s illness. She agreed that nowhere

in the Attendance Policy is there a requirement for an employee to disclose the nature of an illness

and that, in her opinion, the Employer’s main concern is whether there is justification why the

employee cannot work and whether there are any work restrictions, but a note stating “illness” does

not tell the Employer why an employee cannot work. Then in an apparent contradiction, Ms.

Gaulton said that, while a detailed Medical Certificate is not defined by the Attendance Policy, such

a certificate would require the kind of medical information that is on a Weekly Indemnity claim

form, such as an employee’s physical and cognitive impairment, etc. Such information, also from

Worker’s Compensation forms, is gathered by the Employer to determine the treatment that an

employee will be receiving.

        In my opinion, Ms. Gaulton had it right the first time. The Employer’s legitimate interest


                                                -100-
in such situations is twofold: 1) whether there is justification why the employee cannot work on a

particular day or days and 2) whether there are any work restrictions after he seeks to return to work.

There might possibly be certain instances where it is necessary for the Employer to have greater

knowledge of the nature of an employee’s illness, for example, where things have reached the stage

that the duty to accommodate to the point of undue hardship is triggered. In that situation, the

Employer might not be able to discharge its responsibility without additional medical information.

At that point, it might be possible to thwart the Employer’s legitimate interest by denying it adequate

information on which to base an accommodation decision. That may well be a situation where the

Employer’s interest prevails over those of the employee. Support for this approach may be found

in arbitrator Swan’s comments in Re Regional Municipality of Halton, supra, at page 12, viz:

       . . . Briefly, we declare that the corporation is not entitled to require an employee to
       provide as part of the evidence of disability [as required by the employer’s sick leave
       plan procedures] signed by her physician a diagnosis or description of the nature of
       that disability. There will be exceptions to this general conclusion, but only in cases
       where the corporation can establish that the balance of its legitimate management
       interests outweigh the employee’s interests in privacy and in the confidentiality of
       the physician-patient relationship.

And further in Re Health Care Corporation of St. Johns, supra, the arbitration Board quoted with

approval from Re Faculty Assn. of the University of St. Thomas and St. Thomas University (Goltz),

[1996] N.B.L.A.A. No. 37 (QL), at para. 73 [summarized 44 C.L.A.S. 501]:

       There is ample authority for the proposition that, in balancing the grievor’s right to
       privacy against the employer’s right to prevent abuse of the sick leave system, the
       employer may only seek information reasonably required to confirm the validity of
       the claim. . . .

However, at this particular stage of the grievor’s employment relationship, I am satisfied that there

was no reason to invoke an exception of the type envisioned above. For certain, the grievor’s

excessive absenteeism had not yet triggered a duty to accommodate on the part of the Employer.

                                                 -101-
In my view, in these particular circumstances, the Employer would not be justified in asking the

grievor to provide a medical certificate, or a letter, or any other instrument for that matter, by a

physician which designates the diagnosis or describes the nature of his illness.

        To be assured of its first interest, namely, that there is justification why the employee cannot

attend work, it would be sufficient for the Employer’s interests for it to require the grievor to

provide a valid medical certificate or letter which clearly specifies that he suffered from a legitimate

illness or medical condition which rendered him unable to attend work. (As an aside, it might be

helpful if the Employer were to devise an appropriate form with the appropriate wording for

employees to give their doctors, or at least make available to employees a document specifying the

detailed information being requested). Obviously, there would have to be some trust in the

examining doctor to be truthful in his statement. If not, and the Employer were to reject such a

statement, the end result might be an arbitration hearing in which the doctor would be called to

testify, a situation which would obviously require the Employer to explain why it took such action.

In my view, this scenario would not be likely.

       The note provided to the grievor by his doctor on May 30th was insufficient to meet the

legitimate interest of the Employer in being assured that he had a legitimate illness or medical

condition that prevented him from coming to work. But not having been advised that this was the

detailed medical information he had to bring, it was natural for the grievor and his doctor to assume

that the Employer was requesting something more, i.e., something that would disclose the nature of

his illness, i.e., a matter of physician-patient confidentiality. In those circumstances, the doctor

obviously chose the path of confidentiality. Therefore, I do not accept that the grievor should have

been faulted for the insufficiency of the doctor’s note he presented to the Employer on May 30th.


                                                 -102-
        If Mr. Sampson had known specifically that he had to bring a statement from his physician

to the foregoing effect and did not do so, then I would agree that the Employer would have grounds

to discipline him because its request would have been legitimate. That would have validly triggered

a culminating incident. However, since the Employer’s request was vague and could have been

interpreted as requiring disclosure of the nature of his illness, that request was not legitimate and,

therefore, he should not have been disciplined for bringing the note that the Employer rejected.

        To be assured of its second interest, namely, whether there were any work restrictions

affecting the grievor, I am satisfied on the basis of the grievor’s excessive absenteeism that the

Employer also would have been entitled to require verification from his doctor that he was fit to

work on May 31st and that any limitations on his ability to perform his duties be disclosed. In my

view, it is one thing to require medical documentation that an employee was unable to work on a

particular day, and it is quite another thing to require the details of limitations, if any, when the

employee seeks to return to work. Both requirements are equally valid and appropriate for an

employee whose absenteeism record is clearly excessive. The first provides explanation for the day

of absence. The second demands proof of fitness to work. It seems to me that both requirements

need to be addressed when dealing with an employee with excessive absenteeism.

        Put in the context of the events of May 30th and 31st, the Employer had the right to require

the grievor to provide medical information verifying that he suffered from an illness or medical

condition that prevented him from coming to work, and it also had the right (although it did not act

on it in this case) to prevent him from coming to work again unless he provided verification from

his doctor that he was, in fact, fit to return to work and that his limitations, if any, were detailed by

the doctor. In other words, I believe that an employee with the kind and extent of attendance


                                                  -103-
problem possessed by Mr. Sampson, should not be able to presume that a medical certificate for

yesterday’s absence should be accepted as proof of today’s fitness to return to work.

       I realize that the foregoing notion might be onerous for an employee in the grievor’s

circumstances because he might have to make two visits to his doctor to cover both issues.

However, I see those requirements as part of the balancing of interests of the individual and the

Employer where excessive absenteeism is concerned. I also realize that this notion is rather moot

as it applies to the events of May 30th and 31st because the Employer did not exercise its right to

require proof of fitness from the grievor.



The Issue of Post Discharge Evidence

       In the instant case, post discharge evidence has been made available regarding a doctor’s

note dated June 27th in which the doctor specifically stated the nature of the grievor’s medical

condition on May 30th, i.e., flybites, and stated that this condition did prevent the grievor from

working that day. On the basis of this note, a post discharge telephone conversation took place with

the grievor to clarify the reasons he missed work on that day. There is also further post discharge

evidence concerning various reasons offered by the grievor for his absence on May 30th. The

question is whether or not this evidence should be admitted.

       On this issue I believe that I need to look no further than the seminal case on the subject,

namely, Cie miniere Quebec Cartier, supra, in which the Supreme Court of Canada held at para 13

on page 5:

       This brings me to the question I raised earlier regarding whether an arbitrator can
       consider subsequent evidence in ruling on a grievance concerning the dismissal by
       the Company of an employee. In my view, an arbitrator can rely on such evidence,
       but only where it is relevant to the issue before him. In other words, such evidence

                                               -104-
        will only be admissible if it helps to shed light on the reasonableness of the dismissal
        under review at the time it was implemented. . . .(Emphasis Mine.)

I note that in the grievor’s termination meeting on May 31st, Ms. Lawlor asked him why he missed

work the day before and the grievor responded by saying that he had an allergic reaction to the

“stuff” he had put on his flybites. I am satisfied that there is not the slightest doubt that Ms. Lawlor

did not believe his answer because 1) she was already suspicious due to the fact that his absence

once again occurred after his days off, 2) the medical note he had provided made no mention of an

allergic reaction to flybite medication, 3) he had not mentioned anything about an allergic reaction

to her during their conversation the day before and 4) he exhibited no adverse symptoms of such a

reaction on May 31st.

        There is no dispute that the medical note provided was the very note Ms. Lawlor warned the

grievor not to bring, but I have already found that the Employer’s instructions regarding detailed

medical information were not sufficiently clear or valid to justify disciplining the grievor for non

compliance.     Notwithstanding that deficiency, and ignoring for the moment the foregoing

considerations finding that the nature of the grievor’s illness was not a legitimate request for the

Employer to make, I am of the view that Mr. Sampson did offer an explanation for his absence, and

Ms. Lawlor simply chose to disbelieve him, assuming that strict compliance with the Employer’s

directive was of overriding importance compared with the grievor’s explanation. I note that Ms.

Lawlor did ask Mr. Sampson why his medical note did not mention the reason he offered and that,

when Mr. Sampson did not respond, she interpreted his silence as support for her own suspicions

that his absence had not been legitimate.          However, I think it was unreasonable in those

circumstances to ignore the possibility that the grievor was telling the truth. After all, there was solid

evidence before Ms. Lawlor that the grievor had actually visited Dr. Setrak as he told her he would

                                                  -105-
on the previous day and that the grievor then offered in the termination meeting what could

reasonably be construed as additional evidence of his condition. In my view, those factors taken

together should not have been ignored. Rather they should have been sufficient to make Ms. Lawlor

and Ms. French hesitate long enough to reasonably consider the possibility that he might be telling

the truth and that his absence might have been legitimate. On balance, I am quite convinced that the

Employer’s representatives, instead of terminating Mr. Sampson outright, after being presented with

all this information, had an obligation to be as certain as reasonably possible that the grievor had

not been legitimately absent the day before. In that regard, they had the option of asking him to

obtain confirmation of his explanation on another Medical Certificate within a reasonable period of

time and that he would not be permitted to work until he did so.

        In my opinion, that approach would have caused the grievor to go back to his doctor and

further discuss the implications of the Employer’s request. I submit that the outcome of their

discussion would be either 1) the release of confidential medical information to the Employer or 2)

a challenge to the authority of the Employer to require such information. My best guess is that the

Employer would get what it wanted but was not entitled to receive. Judging by Ms. Lawlor’s and

Ms. Gaulton’s testimony, the contents of the June 27th note would have been accepted if it had been

received before termination had occurred. Unfortunately, that would have perpetuated the belief that

the Employer could require disclosure of the nature of an employee’s illness. If, however, a

challenge were to be made against the Employer’s authority in this regard, perhaps even in the form

of a grievance, at least it would have given the Employer reason to seek legal advice on the matter,

and if it then proceeded to discipline, everybody would know for certain what the subject would be

at arbitration.


                                               -106-
        By ignoring or disbelieving the grievor’s explanation, his opportunity to obtain proof of his

illness and incapacity which did exist at the time of termination but was not known to the Employer,

was removed from him. In the result, any such proof offered at any time subsequent to his

termination would necessarily be post discharge evidence, but since such proof would “help to shed

light on the reasonableness of the dismissal under review at the time it was implemented,” it is

relevant to the issue of the grievor’s termination. This evidence does not fall into the category of

information that was only created after termination had occurred. It actually existed at the time of

termination and it deals with the very issue that is really in dispute here, namely, the legitimacy of

the grievor’s absence on May 30th. Therefore, I declare the evidence of the June 27th doctor’s note

to be admissible in this case. I am not concerned with whose idea it was to obtain that note, only

with its receipt

        Equally admissible is the evidence concerning the July 3rd telephone conversation which

arose because the June 27th note had been received by the Employer. Ms. Gaulton’s evidence is that,

in that conversation, the grievor told her that the doctor said he was not required to give the

information the Employer was requesting. She also indicated that the July 27th note was not

acceptable to her on that date because it was inconsistent with the reasons Mr. Sampson had given

for his absence, i.e., first he said allergic reaction on May 31st and later he told her that he had

nausea and migraines. The inconsistency Ms. Gaulton saw in the note was that it only spoke of

itching from the flybites. There was no mention of allergic reaction. I note that during this phone

call, the grievor was asked why he did not mention this allergic reaction to his Team Leader when

he called in sick on May 30th, or to Ms. Lawlor in their telephone conversation in the morning of that

day. As I recall the evidence, Mr. Sampson made another of his confounding and confusing


                                                -107-
comments by stating something to the effect that he wasn’t asked to do so. Obviously, he was not

thinking straight at that time because the explanation was blatantly obvious. The benadryl he used

on his flybites was something the doctor advised him to pick up from the clinic. That could not

possibly have occurred until after he visited the doctor in the late morning of May 30th. In any event,

when the grievor spoke to the Team Leader and Ms. Lawlor on the morning of May 30th, he had not

visited the doctor and had not obtained the medication for his flybites. Therefore, there was

absolutely nothing that the grievor could have told either of them about any allergic reaction when

he spoke to them that day. In my view, therefore, to the extent that Ms. Lawlor and Ms. Gaulton

relied on their erroneous perception that Mr. Sampson had lied to them, it fueled their already

established suspicions that, despite a valid doctor’s certificate setting forth the nature of his medical

condition on May 30th, he had not actually been legitimately ill that day. In my opinion, that

position was tantamount to either disbelieving the doctor or assuming that Mr. Sampson had

somehow misrepresented his condition to the doctor in the first place.

        However, the evidence does not support that notion. First, I think it would be very difficult

to misrepresent flybites to a doctor. Second, I note Ms. Rossiter’s uncontradicted testimony that she

saw those flybites on May 31st and was repulsed by them. Therefore, I am satisfied that the flybites

did exist, the doctor did assess them and concluded that the grievor could not work in that condition

on that day. That is precisely what he wrote on the June 27th note. He did not mention allergic

reaction because, at the time he examined the grievor, the benadryl had not been applied. The

allergic reaction Mr. Sampson described was his drowsiness after he had taken the medication

recommended by the doctor. That is something he would remember about that day, but his doctor

would have no knowledge of it whatsoever. It should be remembered that Dr. Setrak had already


                                                  -108-
put the grievor off work for his condition long before any drowsiness occurred. Therefore, I suspect

that drowsiness could only exacerbate matters. As for the nausea and headaches Ms. Gaulton said

the grievor also mentioned to her post discharge, I do not know why that was not on the July 27th

note. However, one possible explanation might be that the doctor considered them to be effects of

the flybites and not the primary illness itself, so he thought it sufficient to describe only the primary

nature of the grievor’s condition in his note. In any event, I am satisfied that nothing material turns

on the evidence of nausea and headaches in this case.



The Issue of Marijuana Use

        The testimony of both Ms. Lawlor and Ms. Gaulton revealed that they had no knowledge that

the grievor used drugs. That evidence does not establish just cause to discipline the grievor. There

is no indication that the Employer had any reason to suspect that Mr. Sampson was using illegal

drugs of any kind.

        Most of the evidence on the grievor’s use of marijuana came from the grievor himself. Once

again, his evidence was disjointed and confusing, sometimes seeming to contradict himself in

answering questions put to him in cross examination, but I am satisfied that he did the best he could

to answer the questions put to him and he was not deliberately misleading. I have examined his

testimony carefully and I find that he did smoke the drug once or twice a day, Mondays,

Wednesdays and Fridays for a period of approximately three (3) weeks, most of which preceded his

visit to Dr. Setrak a few day prior to March 15, 2002. I am satisfied on the evidence that he had

never used marijuana before this, and he only did so to relieve his stress, aches and pains, which he

claimed to be severe at the time. There was a short period of overlap when he returned to work in


                                                  -109-
March and he continued to smoke marijuana until he began to take a prescription for Celexa for his

anxiety. The evidence is that after he started Celexa, he stopped smoking marijuana and has never

smoked it since.

For the short overlap period when he was at work, the grievor smoked marijuana late at night so that

it would not interfere with his work the next day.

       In my opinion, this case does not warrant an exhaustive study of the effects of marijuana in

general and in the workplace in particular. While it is clear that Mr. Sampson did use marijuana at

night and did go to work the next day, no evidence or jurisprudence was presented as to the residual

effects of marijuana, if any, or the duration of such effects. On balance then, I find that the

Employer has not proven on the balance of probabilities that the grievor’s use of the drug for the

short overlap period mentioned could have had any effect on him while he was at work the next day.

There is some evidence that the grievor’s job involves using certain pieces of equipment, one of

which, the press, might present some safety risk to others if operated improperly. However, the

cause and effect relationship between marijuana consumption at night and the grievor’s ability to

perform his workplace duties eight (8) or nine (9) hours later has not been sufficiently established.

Therefore, I find that just cause to discipline the grievor for marijuana use for a brief period in

March 2002 has not been proven.

       As for whether the grievor’s brief marijuana use can be considered an aggravating factor

which militates against reinstatement, I note that the evidence before me has established only that

Mr. Sampson smoked marijuana for two or three weeks in March 2002. I am satisfied that there is

no evidence that he has used the drug since. Therefore, since any reinstatement would take place

in 2003, more than one year later, I find that there are insufficient grounds to consider the grievor’s


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distant marijuana use as an aggravating factor which militates against reinstatement.



Summary of Major Findings

       I find that the Employer:

1.     did not adequately inform the grievor what specifically should be included in its request for

       “detailed Medical Information”;

2.     believed it had the right to know the nature of the grievor’s illness or medical condition, but

       was not actually entitled to such information in these particular circumstances;

3.     failed to send the grievor back to the doctor for written confirmation of the explanation he

       offered verbally on May 31st;

4.     mistakenly assumed that he had lied about his verbal explanation;

5.     did not have just cause to discipline the grievor for bringing a plain doctor’s note on May

       31st;

6.     has not established just cause to discipline for the grievor’s brief marijuana use in 2002 and

       has also not established that the grievor’s marijuana use should militate against his

       reinstatement;

7.     I further find that the post discharge evidence objected to by the Employer in this case was

       admissible because it was relevant to the issue of the grievor’s termination and it shed light

       on the reasonableness of the dismissal under review at the time it was implemented.



The Remedy

       Having determined that the Employer did not have just cause to discipline the grievor in


                                                -111-
these circumstances, I am compelled to reinstate the grievor to his employment. In doing so,

however, I confess that there are aspects of this whole case that I find disconcerting. First of all, a

reading of my considerations might suggest that this whole affair was all the Employer’s fault and

that its actions were improperly motivated and carried out. With the greatest of respect, that is not

my intention. Second. it is very understandable that the Employer has worked hard at revising its

Attendance Policy, has involved the Union in that process and, having established well founded

concerns about the grievor’s excessive absenteeism, has involved the Union all the way through the

grievor’s disciplinary process, including the referral to AOMS. In my view, this employer was

frustrated with Mr. Sampson’s absences and took steps to have him improve his attendance, all in

good faith believing that they were doing the right thing. I recognize fully that my decision will

either send the Employer back to the drawing board on the issue of action that may be taken for

innocent absenteeism, or it will conclude that my decision is wrong and will head off to judicial

review. Neither option will be particularly relished I am sure.

       However, there is an even greater concern, for which I have considerable empathy, and that

is the grievor’s reinstatement without any further evidence that Mr. Sampson’s absenteeism has been

addressed. Nothing can be clearer than the fact that Mr. Sampson does not recognize, or is incapable

of recognizing, that his absenteeism has been excessive, that he had a pattern of absences involving

his days off, or that his absences have adversely affected the Employer. What then should the

Employer’s expectations be for his return? I submit that his prospects for reasonable attendance at

work are in considerable doubt. Mr. Sampson has a problem getting to work on a regular basis. He

denies that problem. At the same time, and this is the most troublesome of all, the grievor has

refused EAP on numerous occasions, citing reluctance for others to find out about the thing that has


                                                 -112-
really been the cause of his stress, namely, the previous abuse of his four year old son. It is

abundantly clear to me that Mr. Sampson is unable to deal with that matter himself. He needs

professional assistance to resolve the issue personally. And there is no evidence that this problem

has been addressed by psychiatric help or any other help to this point. In the result, I have, and I am

sure that the Employer has, considerable reservations about Mr. Sampson’s ability to correct, much

less improve, his attendance problem. It is unknown even whether his personal problem might

contribute to another “unacceptable no show,” but it must be stated clearly and unequivocally, that

another unacceptable no show will end his employment. On this point I invoke the application of

Article 7.03 which states:

       7.03    When an employee has given twelve (12) consecutive months service with
               no unsatisfactory documentation in his file, the company agrees to remove
               all prior disciplinary notices.

I find that, during the period since Mr. Sampson has been terminated, he has not given 12

consecutive months of service with no unsatisfactory documentation in his file. Therefore, in my

view, on his reinstatement, he will be back at square one as it were. In other words, his discipline

record will be precisely what it was at the date of his termination. As such, the next legitimate

discipline imposed will trigger the doctrine of culminating incident and he will be terminated.

       The following are my final directions on this matter, some of which both counsel will

recognize as a liberal stretch of my jurisdiction, but I do so with the most sincere intentions.

       It is my decision that Mr. Sampson is to be reinstated in employment effective the date of

his termination on May 31st, 2002, subject to medical assessment of his physical and psychological

conditions (including his personal problems). If he agrees to another assessment by AOMS, that

would be fine. However, absent such consent by the grievor, the assessment may be done by the


                                                 -113-
medical physician(s) of his choice. Prior to attending work, the grievor must present the assessment

which must certify that he is fit to work and must also detail any and all limitations on the

performance of his regular duties.

       Upon presenting the required assessment with the required information, the grievor will be

permitted to work in his former position and be reimbursed for all lost pay and benefits to May 31st,

2002, subject of course to his duty to mitigate for the period he has been terminated.

       I also direct that, following successful presentation of the assessment and upon returning to

active duties, Mr. Sampson shall be referred to and attend EAP for one year for private and

confidential monitoring and maintenance of his circumstances.

       I will remain seized of the implementation of these conditions for a period of 60 days

following the publication of this award, as is provided at the beginning of this award.



                                           DECISION

       On the basis of the evidence and by the foregoing considerations, I find that the Employer

did not have just cause to discipline the grievor in these particular circumstances.

       I further find that the grievor shall be reinstated in his former position and shall be

reimbursed for all lost pay and benefits to May 31st, 2002, subject to the conditions described above.



       Respectfully submitted as the decision of the arbitrator.

Dated at Mount Pearl, Newfoundland and Labrador, this 13th day of October, 2003.




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____________________________________
            David L. Alcock
            Sole Arbitrator




                                       -115-

				
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