University of Windsor had right to strip prof of her teaching duties, but not to require a medical note

Employers are not free to compel employees to submit to medical examinations, says arbitrator

The University of Windsor was justified in suspending one of its professors from teaching, but it could not force her to get a doctor’s note before returning to the classroom, the Ontario Arbitration Board has ruled.

Charlene Gannagé was an associate professor in the department of sociology and anthropology at the university in Windsor, Ont. She was granted tenure in 1997.

On Dec. 22, 2002, she received a letter from the dean of the faculty of arts and social sciences. It said: “I am requiring that you do not teach next term… over the next six months.”

Gannagé filed a formal grievance through the faculty association. She said she had been disciplined without cause and the requirement to pass a medical assessment was without justification.

The board heard there had been a series of incidents during the fall term involving Gannagé and her colleagues or students. Gannagé burst into the dean’s office and announced she was resigning. She interrupted a colleague’s meeting and asked if the colleague could teach her class the next day. When told she couldn’t, Gannagé yelled at her for not helping.

There were several other incidents involving the way Gannagé treated her students in class. One resulted in a formal complaint signed by many students in one of her classes.

The university said it was within its management rights to choose a non-disciplinary approach to these incidents, and that requiring a medical examination is justified if there are reasonable grounds to be concerned about a professor’s fitness to teach.

Gannagé said 2002 had been her worst teaching year, but the dean had overreacted. She believed she could regain control of her class and herself, but was never given the opportunity to do so because of the overreaction and meddling of colleagues and university officials, she said.

The board said the dean’s actions towards Gannagé were not corrective — he believed she was under stress and suffering from some form of anguish. He had not intended to punish Gannagé. He sought to nurse the situation so the term could be finished.

Removing her from the classroom did not form part of her employment record and did not affect her pay or her classification as a full professor. She was still able to carry on research and writing and other university functions. As such the board said the school had acted within its management rights.

But it said the dean had no right to insist on a medical assessment before Gannagé could be allowed to return to teaching. Employers are not free to compel employees to submit to medical examinations.

The right may exist if there are reasonable grounds to believe there are medical concerns related to job performance, but here there was no medical evidence presented.

Gannagé acknowledged she needed to rectify her behaviour towards colleagues and students. Thus there was no justification for the medical assessment condition, the board concluded.

For more information see:

University of Windsor v. Faculty Assn. of the University of Windsor, 2005 CarswellOnt 4836 (Ont. Arb. Bd.)

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