PIGHEADED DISCHARGE OVERTURNED AT ARBITRATION!

On July 29, 2011, Arbitrator Joan Gordon overturned an indefinite suspension and subsequent discharge that was imposed on Kay Matheson on the grounds of her refusal to attend an Independent Medical Examination (IME) by a physician of Manulife’s choosing. Matheson, a long-term Shop Steward and Depot 74 Letter Carrier, was indefinitely suspended on April 29, 2010 and later discharged on August 6, 2010. Her discharge came as the culmination of a series of threatening letters from numerous members of Canada Post’s management team operating under the leadership of Marie Robinson, Director of Operations.

The Dispute

The dispute arose in August 2009, when Manulife requested the first of two updates regarding Ms Matheson’s physical limitations. At the time of the Manulife’s request, Ms Matheson remained assigned to the same PPD route that she had held for close to twenty (20) years.

As in the past, Ms Matheson’s physician confirmed that her patient’s longstanding limitations remained in effect. Without any explanation, Matheson was then instructed to attend an IME on September 30, 2010, by a physician of Manulife’s choosing.

Out of concern for her right of privacy, Ms Matheson refused to attend the IME and requested that any concerns with the information that had been previously provided be put to her in writing for review and response by her physician.

On October 15, 2009, without any explanation, Manulife again instructed Ms Matheson to attend an IME by a physician of its choosing. In response, Ms Matheson refused to attend and requested that any specific concerns be put in writing for review and response by her physician.

While the Collective Agreement gives Canada Post the right to refer an employee to a medical examination by a physician of its choosing, that right is balanced against an employee’s fundamental right of privacy. To ensure that balance, arbitrators have consistently held that Canada Post must first properly articulate its concerns with the medical information that has first been provided by an employee’s own physician so that the employee and his/her physician will have the opportunity to provide any necessary clarification. It is accepted that Canada Post must seek such clarification before asserting a lack of confidence in the information provided by an employee’s physician. It is further accepted that an IME may not be used as a lie detector test.

Canada Post’s Pigheaded Approach!

Notwithstanding the established arbitral consensus, Canada Post embarked upon a pigheaded approach from the beginning and steadfastly remained entrenched in it until the end. On various occasions, Canada Post’s leadership team claimed that Ms Matheson’s physicians had not provided requested medical information or were not qualified to provide it. On May 11, Marie Robinson claimed that the information requested by Manulife had not been provided:

The information that Manulife has been seeking has not been provided and therefore the request for an IME was put forth.

On May 13, 2010, Marie Robinson claimed that Ms Matheson’s physician was incapable of responding to Manulife’s enquiries:

It is Manulife’s indication that her physician’s [sic] lacks the ability to provide such clinical evidence…

On May 17, 2010, Ursula Markovic, former Depot 74 Superintendent, claimed that “every attempt” had been made to explain why an IME was necessary:

I am unable to accept your explanation, that you do not understand why an IME is required….it is clear that every attempt has been made to clarify for you why this information is required.

In reality, Ms Matheson’s physicians properly responded to the questionnaires that were received from Manulife but no attempts were made to properly communicate any specific concerns as Manulife conducts its communications via form letters. Despite the Union’s attempts at injecting common sense into the matter (which included eight (8) separate letters of intervention alone), Canada Post, under the leadership of Marie Robinson, steadfastly remained unwilling to take steps to properly disclose any specific shortcomings in the information that had been provided by Ms Matheson’s physicians.

Instead, the Canada Post leadership team remained entrenched in its position that Ms Matheson would either attend the IME or be fired.

On six (6) occasions, Canada Post threatened Ms Matheson with discharge.

The Arbitration Hearing

During the eight days of hearing, Canada Post produced evidence of a number of telephone conversations involving Ursula Markovic and Judith Hreich of Manulife. In spite of that evidence, Ursula Markovic testified that she was unable to call Hreich to request that Manulife’s concerns be properly communicated to Ms Matheson:

Ms Markovic then disagreed that she had the ability to call Ms Hreich and instruct her to call the Grievor and communicate what was missing.

Amazingly, Markovic also claimed that it was not possible for Manulife’s concerns to be set out in writing:

When pressed on this point and asked “wouldn’t it be possible for Judith Hreich or Dr. Sutton to write out for the Grievor’s doctor – here are our concerns, please comment” – Ms Markovic disagreed, but did not say why.

Dr. Neal Sutton, Manulife’s Medical Consultant, was flown in from Toronto for a guest appearance at the hearing. Dr. Sutton (who is not a specialist) would not agree with the documented limitations previously recognized by Canada Post’s previous Medical Consultant, Dr. Eric Jeffries (who is a specialist). Sutton disagreed with the findings of Ms Matheson’s physicians and testified that he “suspected” that an IME conducted by a specialist of Manulife’s choosing might produce limitations different than those provided by Matheson’s own physicians. On that point, Arbitrator Gordon found that suspicion is an insufficient basis upon which to support the intrusion of an IME:

I accept the Union’s submission that on the authorities something more than suspicion is required to warrant resort to Article 33.10 (c).

An Exception to Obey Now, Grieve Later Rule!

During the period leading up to her discharge, Ms Matheson consistently offered to provide any medical information required by Manulife as part of its review but maintained that she would not attend an IME because of concerns with her right of privacy. At the hearing, Canada Post argued that Ms Matheson was insubordinate by failing to follow orders but Arbitrator Gordon found otherwise:

Where, as here, her privacy interests are at stake, she is not obliged to “obey now, grieve later” as long as she satisfies her part in terms of communications….I am satisfied, and I find, that the Grievor at no point refused to provide reasonably necessary medical information to update her physical limitations.

Discharge Ruled a Nullity – Time Limits

As a result of the Union’s preliminary objection, Arbitrator Gordon ruled that the discharge was a nullity because Canada Post failed to comply with its contractual time limits; the August 6, 2010 letter of discharge and the “final warning” letter as well as other reports were found to be inadmissible because Canada Post failed to place those reports on the Grievor’s personal file within ten (10) calendar days as required by the Collective Agreement.

Although the discharge was found to be null and void, Arbitrator Gordon based the remainder of her ruling on the propriety of the indefinite suspension was that imposed on Ms Matheson on April 29, 2010, prior to her discharge.

Failure to Seek Clarification Fatal to CPC’s Decision to Impose Indefinite Suspension!

In finding that Canada Post and Manulife failed to properly communicate any specific concerns with the medical information that had been provided by Ms Matheson’s physicians, Arbitrator Gordon noted that Manulife relied on generic form letters. She also noted that the concerns articulated in Dr. Sutton’s testimony were unveiled for the first time at the hearing. On the basis of Canada Post’s failure to comply with the clarification process, the indefinite suspension was rescinded. However, the Arbitrator also stated that had she been required to base her ruling on Dr. Sutton’s opinion, she would have found his opinion unreasonable because it was based on a misinterpretation:

Given my prematurity finding, it is not strictly necessary to determine whether Dr. Sutton’s objection to the Grievor’s physicians’ opinions was reasonable. However, had such a finding been necessary, I would have found that, when viewed in the context of the evidence as a whole and in particular the Grievor’s uncontradicted evidence relating to the two examinations conducted by [the Grievor’s physicians], the stated objection was not reasonable because it was based on a misinterpretation of the physician’s medical reports.

In the result, Arbitrator Gordon ordered that Ms Matheson be reinstated to her route and be compensated for all lost wages and benefits arising from her indefinite suspension of April 29, 2010 up to and including the effective date of her reinstatement.

Welcome back, Kay!

In solidarity,

Ken Mooney – Grievance Officer Aug 8, 2011 cope 225