A cautionary tale about vague medical notes and the limits of union representation duties
A marine cook's incomplete medical documentation prevented his return to work, and when his union declined to file a grievance, the Newfoundland and Labrador Supreme Court sided with the union.
Justice Trina D. Simms dismissed Mark Walsh's judicial review application on February 13, 2026, in a decision that underscores how poorly drafted medical notes can backfire on employees seeking accommodation.
Walsh, employed with the Department of Transportation and Infrastructure, submitted a medical note in September 2022 stating he could not work extra shifts due to medical issues. The note created an unexpected problem: it conflicted with his Transport Canada marine medical certificate, which contained no restrictions on consecutive days aboard vessels. When the employer requested additional medical information to reconcile the discrepancy, Walsh's medical appointment was cancelled and he could not provide the documentation before his scheduled return to work. His return was delayed as a result.
When 14 days off becomes six weeks
Walsh worked under a collective agreement specifying that "the shift rotation for the Marine Services, except Bell Island run, shall be fourteen (14) days on and fourteen (14) days off." His concern centered on being required to work six-week shifts when relief staff were unavailable, which would interfere with regularly scheduled medical appointments on shore during his time off.
However, the medical note he submitted stated that Walsh had "several medical issues" but it did not detail what they were or, more importantly, what he would require from the Employer to accommodate his continued employment. The vague language raised safety concerns about whether Walsh could comply with Transport Canada regulations governing marine medical clearance.
Though the note explained Walsh could not work extra shifts, it did not specify whether he could remain on the vessel beyond the scheduled fourteen-day shift if relief was not immediately available. This ambiguity became the crux of the employer's concern.
The union says no grievance warranted
When Walsh asked his union representative to file a grievance in November 2022, the union declined, writing "there is nothing there that is grievable." The union added: "If you can tell me where you feel there is a violation I would be happy to take another look."
Walsh filed a duty of fair representation complaint against the Newfoundland and Labrador Association of Public and Private Employees on December 8, 2022. The Labour Relations Board dismissed the complaint, finding the union had met with Walsh and the employer, reviewed the collective agreement, and investigated the matter before making its decision.
The Board determined the union did not act in a manner that was arbitrary, discriminatory, or in bad faith in considering whether to file a grievance.
Court defers to union discretion
Justice Simms upheld the Board's decision, noting that under established case law, "the employee does not have an absolute right to arbitration and the union enjoys considerable discretion." The court found the Board properly applied the principle that "the duty of fair representation does not require a Union to file a grievance or take a grievance to arbitration just because an employee wants it to."
The court determined the union had exercised its discretion appropriately by meeting with Walsh, reviewing the collective agreement, advising him of the importance of providing requested medical information, and ultimately working with him to facilitate his return to work on December 13, 2022.
Walsh was ultimately permitted to return to work after his physician provided another note on November 18, 2022, indicating he could remain on board if he had sufficient medical supplies and medicine for six weeks.
See Walsh v. Newfoundland and Labrador Association of Public and Private Employees, 2026 NLSC 15.
