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HomeMy WebLinkAboutClough 13-02-11"A. 1 0 0.1 If # 1--T.Aw W, L I ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 250 F.'r, ►I FBI K919111 ill I WA: A I& w GRIEVANCE OF S. CLOUGH UNWTITS-91 Arbitrator: For Ontario Public Service Employees Union For Bruce County EMS: Laura Trachuk Mitch Bevan Sandra Clough C. Eames D. Harris S. Latouf D. Smith N. McIver The arbitration of this matter took place in Kincardine on November 2, 2012 and January 17, 2013. The Ontario Public Service Employees Union, Local 250 (the "union") has filed two grievances. One alleges that Bruce County EMS (the "employer") violated the collective agreement by suspending Sandra Clough (the "grievor") for three days in July 2012 without just cause. The second grievance alleges that the employer violated the collective agreement by terminating the grievor's employment without just cause. Facts The grievor worked for 25 years as a paramedic. She has been employed by Bruce County since its amalgamation in 2000. She has had some health issues over the past few years. On April 17, 2012 she called in sick for her April 18 shift. She provided a Short Term Claim for Absence/injury Form as well as a record from the emergency department at the South Bruce Grey Health Centre to ACCLAIM Ability Management ("ACCLAIM"). ACCLAIM manages the employer's short term disability (STD) plan. The grievor was off work from April 18, 2012 until she was discharged on August 10, 2012. She visited emergency departments at least three times during that period and was hospitalized from May 4 to June 16. The grievor's doctors provided medical documentation to Ami Matesic, the Ability Management Consultant assigned to administer the employer's disability management policy on four occasions. The first report, noted above, was dated April 18. Ms. Matesic also received a claim form on June 13 dated May 31. It should be noted that this form and the one provided on April 18 asked for, and received, very detailed information about the grievor's medical condition including symptoms, history of the condition, diagnosis, diagnositic studies and prognosis among other things. It also included a "Consent to the Release of Medical Information" which the grievor signed. The grievor's hospital records were attached to the May 31 claim form. They included much detailed medical information, including her medical history. On July 24, Ms. Matesic received a claim form from the grievor's doctor dated July 19. Attached to that was the report from another medical test. Ms. Matesic testified that the form was undated but the date of July 19, 2012 is visible under the doctor's stamp. An emergency physician sent in a claim form on July 25 along with a letter. Ms. Matesic testified about her management of the grievor's short term disability claim. She explained that she does not provide the employer with medical information about the employees. She only advises the employer as to whether an employee's absence is medically supported. She also coordinates an employee's return to work, including any restrictions requiring modified duties. Ms. Matesic testified that the employer's policy requires employees to provide M medical documentation within five days but that she will give extensions as long as an employee remains in good contact with her and shows that she is making efforts to get the medical documentation. Ms. Matesic testified that she sometimes assist employees to obtain medical documentation by contacting the treatment provider directly. If an employee does not send in the required documentation she will send a "non-compliance" letter and close the file. If she subsequently receives medical documentation supporting the claim she will reopen the file. The notes in Ms. Matesic's file indicate that she spoke to the grievor at least 10 times from April 18 to July 25. Some of those calls were from the grievor and others were Ms. Matesic's attempts to get updates or discuss claim forms that had not been received. When the grievor spoke to Ms. Matesic she appears to have provided quite a lot of detail about her condition. On July 5, Ms. Matesic sent one of the claim forms to the grievor's doctor. The doctor was asked to fill out the form based on her July 5 or 11 appointments with the grievor. The grievor had advised Ms. Matesic about when her appointments were. Ms. Matesic testified that she spoke to the grievor on July 12 and she said she was very sick but would not elaborate. The grievor told Ms. Matesic that her next appointment was on July 19. On July 17 Ms. Matesic sent the grievor a letter advising her as follows: To date, we have not received any medical information to support your absence from: July 1, 2012 onward. As such, this letter serves to notify you that your file with ACCLAIM Ability Management Inc. is now closed and the County of Bruce has been advised that your absence is not medically supported through the available Sick Leave program. Therefore, your pay may be withdrawn and discipline may be taken by the Corporation of the County of Bruce, as this absence is without cause or without approval. The non-compliance letter had been sent after consultation with the employer. On the same date, the employer imposed a three day suspension on the grievor for failing to provide adequate medical documentation. The suspension letter said: We have received a copy of a letter to you from Acclaim Ability Management stating that they have not received any medical documentation frorh you supporting your absence from July 1, 2012 onward. As such, your absence has been deemed to be without authorization. -3- You have been off work on an approved absence since April 17, 2012. You were informed by Acclaim that any absence beyond July 1 would require more medical documentation prior to July 1. It is now July 18 and there has been no medical submitted. In view of the foregoing, taking into account your disciplinary record, (three (3) 1 -day Suspensions dated August 29, 2011, November 16, 2011 and April 11, 2012- attached), and following progressive discipline principles, you are hereby given notice that as of this date you are issued a three (3) day suspension without pay. Said suspension shall be served upon your return to work. Your continued lack of adherence to policies and procedures will not be tolerated and future incidences will result in escalated discipline up to and including termination of employment. You are required to submit medical to Acclaim by July 27, 2012 to support your on-going absence and in order to continue your employment with the County of Bruce. On July 25, the grievor's doctor faxed a form to Ms. Matesic dated July 19. It indicated that she was not able to return to work on July 16 but that she "may be able to return to full time work on July 25". The grievor spoke to Ms. Matesic twice on July 25. She told Ms. Matesic that she had not received the claim forms, although Ms. Matesic had sent them, and she asked that they be sent to her personal email. Ms. Matesic testified that the grievor called back and was angry because she had still not received the forms. She said that she had to go to the hospital and asked for them to be sent there. Ms. Matesic faxed them to the emergency department. On July 26, Ms. Matesic received the form filled out by the Emergency Room doctor on July 25. On that form, along with many other things, the doctor wrote the words "work related stress". He also indicated that the grievor had felt ready to return to work but that a "multitude of stressors made symptoms worse". He advised further that her return to work date was " 7 days at earliest". The doctor also provided a letter stating: I have seen this patient today in the emergency department. She is clearly unable to work at her job as a paramedic, as previously scheduled for tonight. In my opinion, she will not be able to do her scheduled recertification Friday July 27. ME I have prescribed appropriate treatment, including absence from work environment and recertification programs for the next 7 days minimum. Ms. Matesic took the position that the reference to work related stress meant that the grievor was making a Workplace Safety and Insurance Board (WSIB) claim. She called the grievor and said that since the illness was work related she would have to contact her supervisor and make a WSIB claim. The grievor then told Ms. Matesic that the doctor told her to stay away from anything work related for at least seven days so she would not be calling anyone. That was the last time Ms. Matesic spoke to the grievor. She did not tell her that she would need to provide another report supporting her absence beyond July 31. Ms. Matesic advised the employer that she was closing her file because the grievor was claiming her illness was work related. The employer filled out a Form 7 and submitted it to the WSIB. WSIB contacted the grievor and she denied that she was making such a claim. WSIB denied the claim and Ms. Matesic reopened the file at the employer's request on August 8. She decided that the grievor's claim was only supported until July 31. Ms. Matesic then provided the employer with an Acknowledgement of Receipt advising that the grievor's doctor had provided a return to work date of August 1. Sherry Latouf, the employer's Disability and Wellness Coordinator described the employer's relationship with ACCLAIM. Employees provide medical documentation to ACCLAIM and ACCLAIM advises the employer as to whether the STD claim is approved or whether an employee can return to work with restrictions. ACCLAIM does not provide the employer with the medical documentation that it receives. Ms. Latouf also testified about the information Ms. Matesic provided with respect to the grievor's situation and the decision to suspend and terminate her. Ms. Latouf did not make the decision to terminate the grievor herself but she said that she was consulted. On April 27, Ms. Matesic advised Ms. Latouf that the grievor's absence was supported until May 11. On May 8 the grievor called the employer and advised that she would not be returning for her weekend shifts. On May 10, Ms. Matesic advised Ms. Latouf that the grievor had been hospitalized and would be off for at least a week. On May 17 Ms. Matesic advised that she still had no documentation but that the grievor was still in the hospital and that her shifts should be filled through June 3. On May 31 Ms. Matesic advised the employer that she had received no documentation since April 23 but that the grievor would not be in at all the following week. On June 7, Ms. Matesic advised the employer that she still did not have updated medical documentation although she had called the grievor and her doctor. She also advised that the grievor was back in the hospital and that her shifts should be covered through June 22. On M June 13 Ms. Matesic advised Ms. Latouf that she had received the medical documentation and that she had approved the grievor's absence until July 1. On July 5, Ms. Matesic advised Ms. Latouf that she had spoken to the grievor and that, although she did not have medical documentation beyond July 1, she did not expect her to return until her STD benefits ran out on July 31. (The parties advised that the grievor's STD benefits had actually ended on June 14.) The grievor called the employer herself on July 5 and advised that she would know more about her situation when she went to the doctor the following Wednesday. On July 17, Ms. Matesic advised Ms. Latouf that she had sent the grievor a non- compliance letter and provided a copy. The employer sent out the three day suspension letter. On July 25, Ms. Matesic advised Ms. Latouf that she had told the grievor she would need to speak to her supervisor about her work related claim. She said that the grievor told her that her treatment provider "said she is to have nothing to do with work for a week. Not me, not you, not her Supervisor and then she hung up on me." On July 26, Ms. Matesic advised Ms. Latouf that she received medical documentation on July 24 that supported the grievor's absence until July 23. (The medical report actually says July 25.) She then said that she received a set of claim forms on July 25, "indicating that Sandy is now off for a work-related illness". She advised that she was closing the file that she had just reopened and attached a denial letter for any time beyond July 23. Ms. Matesic's email also said: The claim forms advised that she is to be off for `at least 7 days', and Sandy was unwilling to discuss anything with me, advising that the Dr. advised her to 'stay away from anything work-related for 7 days, including you' (meaning me), at which time she hung up on me. The claim forms also indicated that she is in receipt of El sick benefits, so I'm not sure if you need to contact them to advise that they should cease payment until the WSIB has made their decision? The attached Acknowledgment of Receipt said that the "Date of Return to Work established by consulting physician" was "Full Time: July 24". On August 8, Ms. Latouf sent an email to Ms. Matesic advising that she had received a phone message from WSIB stating that the grievor had denied that her absence was work-related. Ms. Latour asked Ms. Matesic to reopen the claim for her absence "beyond July 24 until her LTD date of August 1." Ms. Matesic responded that she had approved the grievor's absence until July 31 based on the documentation that she had received. She also advised: Please note that even though her approval coincides with the end of her STD benefit period (105 days, ends on July 31), this is only a coincidence. in We do not have any medical documentation supporting her absence beyond July 31, 2012. Ms. Matesic attached an Acknowledgement of Receipt which stated that the "Date of Return to Work established by the consulting physician" was "Full Time: August 1, 2012". Ms. Latouf testified that the employer had been advised that the grievor's absence was medically supported to July 31. It terminated the grievor's employment when it did not receive any communication from her to explain her absence on August 3, 4, 5, 8 and 9. The employer sent her the following letter: This letter serves to inform you that your employment with Bruce County EMS and Corporation of the County of Bruce (the County) is terminated for just cause effective today, August 10, 2012. The facts giving rise to the decision to terminate your employment include: (a) You have failed to call in to report your absence beyond July 31, 2012. The Collective Agreement Article 11.05 states: `A permanent employee's seniority shall be forfeited and his employment shall be deemed to be terminated and there shall be no obligation to rehire under the following conditions: a) He voluntarily resigns or quits. An employee shall be deemed to have resigned when: (ii) he is absent for more than (3) days without notifying the Corporation unless a reasonable explanation is given to the Corporation. (b) You have failed to send in medical documentation or to contact Acclaim Ability Management to support any absence beyond July 31, which is in excess of the 5 days required under the County's Attendance Management Policy and Program. In view of the foregoing, taking into account your disciplinary record, (a (3) 3-day Suspension dated July 18, 2012, three (3) 1 -day Suspensions dated August 29, 2011, November 16, 2011 and April 11, 2012- attached), and following progressive discipline principles, the County has no alternative but to end the employment relationship. -7- Once you have had the opportunity to make decisions regarding fixed payments to the County (if any) and submit any paperwork for outstanding expenses, a final pay covering the period up to and including today's date will be issue to you. You are required to immediately return your Ministry OASIS identification card, uniform and all other County of Bruce property in your possession. No one from the employer or ACCLAIM called or emailed the grievor prior to terminating her to find out if she would be returning to work or whether she was still ill. The union filed these grievances on August 16, 2012. The union requested that the employer produce the schedule for August 1 to 9, 2012 but the employer was unable to do so. Nicole McIver, the Administrative Coordinator, provided evidence about the scheduling process. Employees are scheduled on two person teams. She uses a master schedule so the paramedics know what shift they are going to be working up to two years in advance. A part- time employee covers the absence of a full -time employee. Any absence up to six consecutive months is filled by being offered to part-time employees on a rotating basis based on seniority. Ms. McIver must make a call for each shift an employee is absent even if she knows how long they will be away in advance. The part-time employees are entitled to refuse shifts so Ms. McIver may need to make several calls to cover one shift. An absence that is expected to last more than six months must be posted. Ms. McIver testified that employees are supposed to let her know when they are going to return from an illness. Ms. McIver testified that the grievor often did not follow the correct procedure for contacting her to advise that she was not returning to work. As a result, she often had to contact ACCLAIM for an update. On June 18, Ms. McIver advised the grievor that she was out of sick time and that her LTD date was not until August 1 so she would have to apply for Employment Insurance. The grievor told her that she had just got out of the hospital and might require surgery. Ms. McIver told her she was booked off until July 1 and needed to keep her informed if she was not returning on that date. According to the emails that were submitted, the grievor did contact Ms. McIver the week before July 5 and said that she was feeling better and expected to be back. On July 5 the grievor called Ms. McIver and said that she would know more after her doctor's appointment the following week. There was no evidence that the grievor had any subsequent contact with Ms. McIver. M Ms. McIver acknowledged that the grievor had requested vacation for the first week of August but could not recall whether it had been granted. She said that vacation would have been turned into sick leave if the grievor were still off sick. Ms. McIver also testified that employees who were off for three months needed to recertify at the Base Hospital before they could be scheduled. The Base Hospital sends her an email once an employee has been recertified. She acknowledged that she had not received such an email about the grievor and, therefore, would not have been able to schedule her in an ambulance as of August 1. She could not recall when or how the August 3,4,5, 8 and 9 shifts were filled but acknowledged that she may have known they had to be filled as the grievor had not been recertified. Ms. McIver testified that if the grievor was expected to work and did not show up, the Shift Superintendent would have filled the shift. The County of Bruce has an Absence from Work policy that includes the following: Procedure: 1. Notification of Absence It is the employee's responsibility to notify his/her Supervisor or designate, of any absences from scheduled work prior to their normal starting time. Supervisor's Responsibility An Absence Notification Form is required to be completed and sent to ACCLAIM for any of the following absences: -more than three (3) consecutive days (4th) -Greater than 3rd occurrence. The fourth (4 occurrence and every occurrence thereafter in a calendar year. -One working day prior to or following a paid holiday, which is to be charged to sick leave. Employee's Responsibility A "Short Term Sick Claim for Absence/injury Form" (Full-time or Part-time) form must be completed by a Medical Practitioner for short term absences. A "Claim for Absence due to Illness/injury" from must be completed by a Medical Practitioner for ailments of a more serious nature. (e.g. Surgery, broken bones, serious illnesses, etc.) or at the request of ACCLAIM for further information to verify eligibility for sick benefits. M Consideration will be given to employees attending medical specialist, dental specialist, and ophthalmologist or psychiatrist appointments. These may be covered under "sick time". In the case of long-term and continuous absence, medical forms requested by Acclaim must be completed and returned to Acclaim until the employee is eligible for LTD benefits or returns to work. PLEASE NOTE: Failure to submit the required medical forms within five (5) days of the first day of illness or injury, may result in the uncertified days of absence being charged to leave without pay. If medical information is not provided in time for the transmission of payroll, employees will be paid for the applicable days of the following pay. 2. Notification of Return to Work Prior to returning to work, the employee is responsible for notifying their immediate Supervisor of their intention to return to work. Medical forms must be forwarded to Acclaim before the resumption of regular duties. In cases of minor illnesses (e.g. cold, migraine, flu etc.) employees may return to work prior to Acclaim receiving the forms, at the discretion of the Supervisor and the Human Resources Department. Brucy County EMS has its own Attendance and Illness Reporting policy that requires employees to notify a duty officer at least two hours prior to the commencement of the shift if they are going to be absent. It also provides that if an employee is required by her shift supervisor to produce a medical certificate verifying illness, she must do so within seven days. One of the grievor's tasks during a period in which she had been on modified duties was to review the policies. They were also provided to her when she was disciplined. The grievor has three, one day suspensions on her record. One of them relates to a failure to call in an absence prior to a shift. Another one of them references violations of the Attendance Management Policy. The third was for an unrelated incident. The employer provided the grievor with Long Term Disability (LTD) forms on July 5. She authorized ACCLAIM to disclose her medical documents to the LTD provider on August 13, 2012. There were problems with the application and that me claim was not determined until November 9, 2012 when it was denied. It has been appealed. Collective Agreement 11.05 A permanent employee's seniority shall be forfeited and his employment shall be deemed to be terminated and there shall be no obligation to rehire under the following conditions: a) He voluntarily resigns or quits. An employee shall be deemed to have resigned when: ii) he is absent for more than three (3) days without notifying the Corporation unless a reasonable explanation is given to the Corporation; Submissions The employer submits that the grievor knew about her obligation to report absences and to provide medical documentation to ACCLAIM. It maintains that the grievor chose not to comply with those rules from the beginning of her illness in April 2012. The employer argues that even when the grievor asked to have the medical forms faxed to the hospital, she did not have them filled out. The employer says that the onus was on the grievor to provide the medical documentation or to ensure that her doctor did so. It contends the onus was also on her to provide the employer with information about her absences and her certification status. The employer notes that she did not testify and its evidence was thus not challenged. The employer argues that the union's claim that the grievor's doctor was responsible for the failure to provide the medical documents is not a defense to her failure to provide them. It submits that the grievor never asked Ms. Matesic to intercede with her doctor to get the forms filled out. Furthermore, according to the employer, Ms. Matesic was more than fair and gave the grievor repeated extensions to get her documentation in. The employer says that Ms. Matesic consistently gave the grievor the benefit of the doubt and it was'only in mid-July, when she had failed to provide medical documentation for three weeks, that she sent out a non-compliance letter. Nonetheless, she adjudicated the claim when she did get the documentation. The employer submits that it was irresponsible for the grievor to tell Ms. Matesic that she was not going to have any contact with anyone from the employer including Ms. Matesic. It notes that the grievor's failure to pick up her registered mail was also an example of her irresponsibility. The employer also argues that -11- the grievor's failure to apply for LTD before August 1 was a further instance of her acting irresponsibly. Ms. Matesic had sent the forms to her so the grievor should have provided further medical documentation to her even though her STD benefits had run out. The employer contends that the grievor made a false WSIB claim. It maintains that she told Ms. Matesic that her illness was work related and then denied it when WSIB contacted her. The employer also says that there was no medical evidence to support the claim of stress. It says that the "new malady" was suspect because Ms. Matesic had taken the position the grievor was ready to return to work on July 24. The employer argues that the grievor could not have been on vacation in August if she was still sick. It also says that the grievor never claimed that she had been scheduled for vacation prior to this hearing. It asserts that she would have done so if that were true. The employer denies that Ms. Matesic harassed the grievor by calling her. It notes that the grievor gave Ms. Matesic her phone numbers. The employer says that Ms. Matesic was trying to acquire the information required under the STD policy. It contends that Ms. Matesic was trying to help the grievor avoid the consequences that eventually occurred The employer also contends that it terminated the grievor in accordance with Article 11.05 of the collective agreement. It says that the grievor was absent for three days without reasonable explanation as she was refusing to talk to the employer. It says that she took that position at her peril. The employer denies that the grievor would have been serving her suspension on those three dates. It also says that there was no evidence that she was on vacation. The employer concludes that the three day suspension was consistent with the principles of progressive discipline and that there was just cause for that penalty. The grievor repeatedly broke the rules and had received prior suspensions. The employer says that she broke them again after receiving the suspension and it, therefore, had just cause to discharge her. The employer asks that the suspension and the discharge be upheld. The employer refers to the following award: Bruce County EMS and Ontario Public Service Employees' Union, Local 250, (Unreported October 15, 2012 (Knopf)). -12- The union submits that the employer did not have just cause to suspend or discharge the grievor. It claims that the employer discharged the grievor because she was ill. It alleges that was the real reason for the termination. The union objects to the employer casting doubt on the legitimacy of the grievor's illness as the employer had never previously made such an allegation. The union says that, on the contrary, the employer said that it was not questioning the grievor's illness. The union also argues that the employer cannot discipline an employee for not providing a doctor's note quickly enough. It asserts that the forms had been sent to the doctor on July 5 and it was the doctor who failed to return them, not the grievor. The union insists that the grievor never refused to provide information. The union submits that employees should not have to go to their doctors and demand that a note be provided so that they will not be disciplined. The union also argues that the employer harassed the grievor by contacting her for documents while she was in the hospital. The union maintains that the employer did not have cause to discharge the grievor. It points to the Acknowledgement of Receipt that Ms. Matesic provided to Ms. Latouf at the end of July. It says that the return to work date of August 1 had been established by the consulting physician. However, the union contends, that was not true. The medical form dated July 25 said she could return after seven days at the earliest. The doctor did not say the grievor was fit to return to work on August 1. The union argues that the grievor did not get a copy of the Acknowledgment of Receipt and had no idea that she was expected to return on August 1. There was, therefore, no reason for the grievor to call her employer on August 3 to say that she was not coming in. The union maintains that ACCLAIM was the employer's agent and, therefore, the employer cannot claim that it did not know what was in the medical documentation. It asserts that ACCLAIM sits in the shoes of the employer. The union also submits that if the employer expected the grievor to be back at work on August 3, 4 and 5, it should have contacted her to find out why she was not there. The union contends that if the employer had contacted her it would have found her at home and still sick. The union maintains that the grievor was scheduled to go on vacation on August 1 if she was well enough to return to work so she would not have been scheduled to work in any case. -13- The union also asserts that if the grievor were to provide medical documentation to anyone on August 1 it would have been the LTD provider not ACCLAIM. Therefore, the employer should not have relied on the failure to provide documentation to ACCLAIM as grounds for termination. The union also maintains that even if the grievor had been able to return to work on August 15, she would have been suspended. The suspension letter says that it is to be served on her return to work. Therefore, she would not have been scheduled August 3, 4 and 5 anyway. The union argues, further, that the grievor had to be recertified so she could not have returned to work on August 3. She would not have been able to recertify until after August 1 because, even on the employer's case, she was sick until that date. The union says that she would also have had to do the Basic Life Saving training before she started ambulance work as well. The union argues that Article 11.05 refers to a "reasonable explanation" but that the employer never asked for one or gave the grievor a chance to offer one. It contends that by failing to contact the grievor for an explanation the employer applied Article 11.05 improperly and she was never, therefore, properly discharged. The union also maintains that there was no cause to suspend or discharge the grievor and it asks that both grievances be upheld. The union refers to the following awards: OLG Point Edward Casino and Teamsters, Local 879 (Beaupre), [2011] 107 C.L.A.S. 334 (Jesin); NAV Canada and C.A. T. C.A., [1998] 53 C.L.A.S. 247 (Swan); Oaklands Regional Centre and Ontario Public Service Employees Union, Local 249, (Unreported October 10, 1995 (Thorne)). The employer replies that it was only questioning the legitimacy of the grievor's WSIB claim not the rest of her absence. The employer also replies that there is no evidence to support the union's arguments because the grievor did not testify. It says that there was no evidence that she was still sick after August 1. It denies that the grievor was terminated for being sick and argues that there was no evidence to support that claim. The employer also replies that the employer should not have been expected to call the grievor before terminating her as she had indicated that she did not want to communicate with them. M Decision The employer relies upon Article 11.05, the deemed termination provision of the collective agreement, to justify the termination of the grievor. It also claims, in the alternative, that it had just cause for the three day suspension and to discharge the grievor. It is necessary to first comment upon the evidence provided. The employer has the onus of proof in both grievance and the union is entitled to argue that it has not proven its case without calling any evidence. However, it would have been preferable to hear from the grievor about what she understood her obligations were with respect to providing medical documentation and contacting her employer. In the absence of that testimony I have relied solely on the testimony of the employer's witnesses and the documents submitted into evidence. As ACCLAIM is the employer's agent with respect to its STD policy, any documents provided to ACCLAIM are considered documents provided to the employer. Furthermore, any conversations the grievor had with Ms. Matesic are considered conversations with the employer. I have found, based on the evidence provided by the employer, that it has not met the onus of proof in either grievance. Article 11.05 I described collective agreement provisions like Article 11.05 in Ontario Nurses' Association and St Peters Hospital, (Unreported November 8, 2007) as follows: A "loss of seniority and deemed termination" clause permits an employer to terminate an employee as an administrative matter, that is, without having to show just cause, any kind of progressive discipline or applying any of the other principles associated with disciplinary action. When parties negotiate such a provision they agree that if certain thresholds are met, the employee will lose all of her seniority and her relationship with the employer is "deemed" to be at an end. However, as the application of a loss of seniority and deemed termination clause has such significant consequences for the employee, such clauses must be strictly construed. There can be no question about the meaning of the article nor can there be uncertainty about whether the threshold has been met.... In this case the threshold issues are: whether the grievor was absent for three days; if so, was she absent without notifying the corporation; and if she notified the employer, was a reasonable explanation provided. The employer has not met any of those thresholds. -15- In order for the employer to prove that the grievor was absent for three days, it would have to show that she was scheduled for three days. It has failed to do so. The employer was unable to produce any schedule demonstrating that the grievor was scheduled to work on August 3, 4, 5, 8 or 9. Ms. McIver testified that she uses a master schedule but was unable to say, conclusively, that the grievor was expected to be at work on those dates. Ms. Latouf had been advised on July 26 that the claim forms Ms. Matesic had received indicated that the grievor would be off for "at least 7 days" and that she was to stay away from anything work related for at least seven days. The grievor had been on sick leave for months and the medical documentation that had been received had consistently shown the absence was legitimate. Ms. McIver, therefore, would have had a reasonable expectation that the grievor might not return to work at the end of the seven days. She also acknowledged that the grievor had requested vacation for that week and could not recall if it had been granted. Ms. McIver confirmed that she had not been informed that the grievor had been recertified so she knew that she could not schedule her until she received that confirmation. Finally, the employer's policy requires an employee to inform her immediate supervisor of her intention to return to work and the grievor had not done so, nor had she provided the return to work medical documentation contemplated in the policy. The employer also failed to meet the next threshold, i.e. that the grievor was absent without notifying the corporation. Even if the grievor had been scheduled to work August 3, 4 and 5, the employer had received medical documentation dated July 25 providing that she would be unable to work for at least seven days. That meant that she might be back on August 1 but may well be off for longer. The employer had, therefore, been notified of the absence or, at least, the potential absence. The employer was entitled to inquire as of August 1 as to whether the grievor would continue to remain off work. However, it was not entitled to take the position that she had been cleared to return and then apply the deemed termination provision. Finally, the medical documentation dated July 25 described an employee who was unable to work due to illness so a reasonable explanation for her absence had been provided. For all of these reasons, the employer failed to meet the threshold for applying Article 11.05. Discipline and Discharge The employer disciplined and then discharged the grievor for failing to provide medical documentation supporting her absences. The employer said that her absences were "deemed to be without authorization ". If the employer is going to take action against an employee for failing to provide medical documentation, the employee must be informed that documentation is required, that it is required by -16- a particular date, and that there will be consequences if it is not provided. Thus, in order to prove it had just cause to discipline and then discharge the grievor, the employer was required to demonstrate that it informed the grievor that medical documentation was required by a certain date, that she failed to provide it and that she was aware that there would be consequences for failing to provide it. The employer asserts that it has a policy requiring employees to provide medical documentation "within five days" and that the grievor, therefore, knew when documentation was required and that there would be consequences if she did not provide it. However, the employer's five day policy applies to the beginning of an absence due to illness. The "Absence from Work" policy states: PLEASE NOTE: Failure to submit the required medical forms within five (5) days of the first day of illness or injury, may result in the uncertified days of absence being charged to leave without pay. If medical information is not provided in time for the transmission of payroll, employees will be paid for the applicable days of the following pay. [emphasis added] The policy does not require employees who are already off work due to illness to provide medical documentation according to any timeframe or schedule. It says: In the case of long-term and continuous absence, medical forms requested by Acclaim must be completed and returned to Acclaim until the employee is eligible for LTD benefits or returns to work. Thus, pursuant to the employer's policy, medical documentation is required when requested by ACCLAIM. ACCLAIM must, therefore, make a clear request and provide a specific date by which the employee is required to provide the documentation or be found to be absent without authorization. The employer has failed to demonstrate that anyone advised the grievor that medical documents were due on either July 1 or July 31 or that she would be disciplined or discharged if they were not submitted by a specific date. Even if the employer's five day policy did apply to continuing absences it would be necessary to clearly establish the date at which the five days would start to run. However, there was no evidence that such dates were provided to the grievor. The evidence provided by the employer's witnesses demonstrated that Ms. Matesic would regularly tell Ms. Latouf that she had approved the grievor's absence up to a certain date. There was no evidence, however, that that information was conveyed to the grievor in any clear way. There are notes in Ms. Matesic's file in which she states that the grievor's absence was approved to a on certain date. I was provided with emails in which the employer was informed of the approval. However, there are no notes indicating that Ms. Matesic told the grievor that her absence was only approved to a certain date, let alone that if she did not provide medical documentation by then there would be consequences. She also did not testify that she told the grievor either of those things on the telephone. There is no doubt that Ms. Matesic had discussions with the grievor about when she could expect medical documentation from the grievor's doctor. However, Ms. Matesic never advised the grievor that if her doctor did not provide documentation by a certain date that the grievor would be disciplined. There is no evidence that anyone else from the employer told her that either except in the suspension letter. In that letter she was advised that she was required to provide medical documentation prior to July 27 and she did. The employer argues that the grievor had been uncooperative since her illness began in April. It did establish that the grievor did not always provide medical documentation as often or as quickly as it wanted. However, the documentation that she did provide was very detailed and went beyond what the employer is entitled to under the jurisprudence. She also signed a, "Consent to Release of Medical Information" and had numerous conversations with Ms. Matesic in which she went into some detail about her condition, at least prior to July 12. It is, therefore, not accurate to describe the grievor as having been uncooperative throughout the period of her absence. The Three Day Suspension The grievor did know, at least by July 5, that Ms. Matesic was looking for further medical documentation. It was reasonable for Ms. Matesic to be doing so as the grievor was discharged from the hospital on June 16. However, the employer has not proved that Ms. Matesic or anyone else at the employer told the grievor that the documentation was due by a certain date or the grievor would be considered absent without authorization. The suspension letter said that the grievor had been advised that she needed to have documentation in prior to July 1. However, Ms. Matesic did not testify that she told the grievor that and it is not found in her notes. The grievor told Ms. Matesic on July 5 that her doctor said she did not have anything to report that day and suggested that there would be something at the July 11 appointment. Ms. Matesic did not tell her that if she did not provide something by then she would be considered absent without authorization. On July 12, the grievor told Ms. Matesic that she was still really sick and was seeing her doctor on July 19. Ms. Matesic did not say that she could not wait that long. On July 17, Ms. Matesic called the doctor's office to get the forms. The office was closed. However, she did not then call the grievor and say that if she or the sm doctor did not submit the forms by a particular date she would be disciplined. Instead she sent a notice of non-compliance, which led to the suspension. Ms. Matesic appeared to believe that the grievor would know that documentation was due five days after July 1 as that was the date to which she had supported the grievor's absence. However, although she told the employer that the grievor's absence was supported to July 1 there is no evidence that she clearly advised the grievor that she had until July 5 to provide medical documentation or she would be considered absent without authorization. The employer has failed to prove that ACCLAIM advised the grievor that her medical documentation was due by a specific date. The evidence did demonstrate that she continued to be ill throughout July. The employer has, therefore, not demonstrated that she was absent without authorization and the suspension grievance is allowed. Discharge The employer also argues that it had just cause to discharge the grievor for failing to call in to report her absence after August 1. However, in order for the employer to demonstrate that it had just cause to terminate the grievor, it is required to prove that she knew she was expected to return to work. No one told the grievor that more information was required or who it should go to. Ms. Matesic had told grievor that her file was closed because of the WSIB claim. The grievor knew that a report had been provided on July 25 supporting her absence. It would not be reasonable to expect her to anticipate that another one would be due a week later unless someone told her. There was no phone call, email, or even a non-compliance letter sent to her before she was terminated. Nothing to let her know that she was expected to return to work or to provide more medical information. We do not have the grievor's evidence as to what she thought. However, it is a necessary part of the employer's case to show that the grievor was informed that she was only cleared to be off until July 31 and was expected back to work on August 3. It has failed to prove that. It is true that the grievor had told Ms. Matesic that she was not going to talk to anyone at the employer for seven days. She did not say "at least" seven days so the seven days ended on August 1. Thus, even if the grievor's request was respected, someone could have called after August 1. The grievor also told Ms. Matesic that she was not going to speak to them on the advice of the doctor. The report from the emergency I room indicates that the grievor was under significant stress at that time and that the stress was exacerbating her symptoms. It also identifies medication she was taking for that. The July 25 medical note says that the grievor could not do her recertification. Ms. Matesic saw that report but all that she took from it was that the grievor was claiming the illness was work me related and she should, therefore, close her file. In fact, the report said that multiple stressors were contributing to the grievor's condition. There was a line of the form that asked if it was a work related illness/injury and the doctor indicated yes, "work related stress". As the grievor was not at work at the time the only reasonable conclusion was that the prospect of returning along with the other stressors was exacerbating her condition. Being suspended for three days while she was off sick was also probably stressful. Stress could well be an exacerbating or contributing factor to the kinds of problems the grievor had been having for months and the medical reports indicated that she reported her symptoms had become worse. That is what landed her in the emergency department on July 24. Ms. Matesic had all that information and it was simply unreasonable for her to take the position that this was a completely new illness that was work related. It was also unreasonable for the employer to characterize these facts as the grievor making a false WSIB claim. The employer argues that the grievor should have been in contact with it as well as Ms. Matesic throughout her illness. That is consistent with its policies and the grievor should have been more compliant with that. Nevertheless, the grievor was in contact with the employer's agent. In any case, neither the employer nor Ms. Matesic informed the grievor that she was expected to return to work at the beginning in August. If the grievor ever saw the emergency room report and knew that it raised the possibility that she might return in seven days she should have called someone to say that she was still ill. However, the employer cannot use that report to support its claim that she was due back at work and failed to show up. I do not find, however, that anyone acted in bad faith or with any discriminatory intention in this matter. This situation arose because the people who decided to terminate the grievor made assumptions about what had been conveyed to her. They also acted without any knowledge of what was wrong with her. The employer has chosen to use ACCLAIM to manage its STD plan at least partly out of concern for its employees' privacy. However, that process meant that it made the decision to terminate the grievor without much of the information that one would have expected to be considered in making such a serious decision. Ms. Matesic, who had the information, was not one of the decision makers. The result, in this case, was that the decision was not justified. The employer should have satisfied itself that the grievor knew it was expecting her to return to work by contacting her before it terminated her employment. No doubt it was frustrating for the employer not to know when the grievor was returning to work. However, I note that Ms. McIver has to cover each shift on a day to day basis whether or not she knows in advance that an employee is going to be absent. In any case, it is not always possible to predict when a person will -20- be able to return to work. Sometimes there will be improvement followed by decline. That was characteristic of the grievor's illness, as Ms. Matesic knew. The grievor ended up in hospital instead of getting better. On one occasion she was released from hospital only to end up back there later in the day. She made three visits to emergency rooms in a three month period. The grievor had been a paramedic for 25 years. She had worked for the employer since amalgamation and for one of its predecessors prior to that. She was terminated at the end of a legitimate absence of more than three months because she failed to provide one final medical report within seven days of a previous one. There was no cause to discipline her, let alone discharge her, and that grievance is allowed. There was also no cause to impose a three suspension on her on July 17, 2012. 1 order that the suspension be removed from the grievor's record and that she be reinstated. The parties have agreed that all other remedial issues should be remitted to them. I remain seized with those issues in the event.that the parties are unable to resolve them. Dated at Toronto, February 11, 2013 Laura Trachuk