The Company filed two employer grievances, claiming reimbursement from the Union of expert costs it was forced to assume for two (2) employees, after they both failed to attend a scheduled medical assessment. The first employee arrived late at her scheduled appointment. The second employee notified the Employer on the same day that he would be absent, stating solely that he was unable to attend as he had not received his salary insurance benefits.
The collective agreement governing rights between the parties provided that the Employer would be liable for costs arising out of any medical assessment required by management.
The arbitrator first discussed two lines of the case law in relation to reimbursement of medical costs: one was based upon Article 1457 C.c.Q. (principles of civil liability) and the other upon the requirement to act in good faith. The first line of cases stands for the proposition that where no valid ground justifies the absence/delay, the employee should reimburse the costs incurred by the Employer. The second line of the case law states that in order for an employee to be liable for payment of costs, it is necessary to prove an abuse of right, malicious conduct or bad faith on the part of the employee.
The arbitrator underlined that in the presence of a clause such as the one in the collective agreement, the Employer seeking to obtain repayment of costs incurred for a mandatory medical assessment has to show that the case falls under one of the exceptions, thus allowing it to set aside the general rule.
The arbitrator preferred the second line of cases based upon the requirement of good faith :
“In this sense, any employee who refuses to facilitate completion of a medical assessment required by Management by interfering, or acting in an excessive or unreasonable manner, is not meeting the requirements of good faith and may be required to reimburse costs incurred by the Employer resulting from such an act.”
Applying these principles to the present matter, the arbitrator ruled that the employee who overslept should not be ordered to reimburse the costs incurred. Her testimony was clear and coherent. She also explained that she had overslept due to medication she was taking. She attempted to contact the physician and even attended on the premises, in spite of being late. She then attended a “replacement” assessment at the request of her Employer. There was no evidence of bad faith or malice, quite the contrary. The employee demonstrated good faith throughout the process.
On the other hand, the second employee should be held liable to pay the costs incurred by the Employer. He failed to attend attend his appointment. Nor did he directly notify the HR officer, electing rather to leave a vague message by voice mail. It was not possible to reach him by telephone subsequently, etc. The arbitrator observed that he could easily have notified the Employer in advance that he was unable to attend the appointment, or could have at least discussed other alternatives, but failed to do either.
The arbitrator thus ruled that “M. clearly had no intent to attend the appointment and deliberately hampered the due undertaking of his medical assessment the overall evidence is sufficient to support the conclusion that the reason provided by the employee is neither reasonable nor valid, and is indicative of a wanton recklessness that does not correspond to that of a reasonable person acting in similar circumstances.”
See : Université du Québec à Montréal v. Syndicat des employés de l’UQAM – SCFP, section locale 1294 (Management grievances), 2016 QCTA 375.