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HomeMy WebLinkAbout2011-2370 Hernden Larkin 14-06-10 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2370, 2011-3166 UNION#2011-0678-0019, 2011-0678-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hernden/Larkin) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Felix Lau Ministry of Government Services Legal Services Branch Counsel HEARING September 3, 4, 2013 and May 28, 2014 - 2 - Decision [1] The Board is seized with a union grievance and nine individual grievances, all of which relate to employer requests for medical certificates for absences of less than five days due to sickness. The parties agreed to proceed with the individual grievances of Kevin Hernden and Jason Larkin, and requested that the Board remain seized with the remaining grievances. [2] Mr. Hernden and Mr. Larkin were employed as correctional officer 2 at the Algoma Treatment & Remand Centre in Sault Ste Marie, Ontario. Their grievances allege that by requesting medical certificates for their absences of less than five days on the days in question, the employer contravened the collective agreement. The relevant provision, article 44.10 reads: 44.10 After five (5) days absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employees’ manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days. [3] The central issue in these grievances is whether the employer was entitled to require medical certificates for the absences in question on the basis of a suspicion that there may be an abuse of sick leave by the grievors. The employer’s position is that both grievors had “a pattern” of absences which gave rise to a reasonable suspicion of abuse. The union contends that in all of the circumstances, there was no reasonable basis to require medical certificates, and that in any event the employer did not properly exercise its discretion under article 44.10. In addition to the foregoing issue, the parties jointly requested that the Board rule upon certain other positions asserted by the union in relation to article 44.10. [4] THE RIGHT TO REQUIRE A MEDICAL CERTIFICATE UNDER ARTICLE 44.10 FOR ABSENCES OF LESS THAN 5 DAYS - 3 - GRIEVOR KEVIN HERNDEN At the relevant time Mr. Hernden was on day shift. He booked off sick on Monday July 11 and Tuesday July 12 of 2011. The attendance records establish that in the preceding week, the grievor did not work. On Monday and Tuesday of that week he had regular days off, followed by vacation days on Wednesday and Thursday, followed again by regular days off on Friday, Saturday and Sunday. His Monday and Tuesday sick days were followed by regular days off on the Wednesday and Thursday. Thus when he did his shift Friday July 15, 2011, he had not worked on the 11 previous days, as a result of a combination of his regular days off, two vacation days and the two sick days in question. [5] Mr. Hernden testified that on July 25th some of his co-workers told him that the employer was starting to require medical certificates for short absences. Although he had not had a request for his recent absences, he went to the shift in charge office and asked Scheduling Manager, Mr. Mark Mei whether he was “supposed to submit a sick note” for his sick days on July 11 and 12. When Mr. Mei replied “yes”, he asked why. Mr. Hernden testified that Mr. Mei’s response was, “for booking shifts off sick in conjunction with stat or vacation”. Mr. Hernden testified that Mr. Mei made no mention of a pattern, past absences, or about his wages for the sick days. He added that the last time he booked off a sick day was approximately 10 months earlier. [6] Mr. Hernden then had a discussion with union steward Mr. Joe Wright about filing a grievance. They both approached Mr. Mei again. He advised Mr. Mei that his next doctor’s appointment was not until September 16, 2011 and asked if he could leave right away to get a medical certificate. Mr. Mei replied that he should not leave his shift and that it would be acceptable if a medical certificate is provided following his September 16th appointment. Nevertheless, Mr. Hernden called his doctor’s office and asked for the earliest possible appointment and received one for August 10th. [7] Mr. Hernden testified that he first found out that his pay had been docked for the two sick days when his wife called to inform that his pay cheque was short some $ 748.00. He obtained a medical note at the August 10th appointment and submitted it on his next shift - 4 - on August 12th. On August 15th, Mr. Hernden was advised that the medical note had been accepted. The two days’ pay was reinstated on or about September 5. [8] Under cross-examination, Mr. Hernden testified that he fell ill while visiting his son in Winnipeg during his days off. His plan was to return to Sault Ste Marie in time for his July 11th shift, but due to his sickness could not do so. He testified that when he spoke to Mr. Mei, Ms. Darlene LeBlanc, who he believed was an IC or security manager, was also present in the office. When Mr. Mei stated that a medical certificate was required, Mr. Hernden felt that he had no choice but to comply. He denied employer counsel’s assertion that Mr. Mei explained to him that if he did not comply, the two sick days would be without pay, and added that when he left with the union steward following the second meeting, he still believed he would get paid because he had agreed to comply. [9] In re-direct, Mr. Hernden stated that he had not requested vacation or any other kind of time off for the two days he had booked off sick. He testified that the employer did not question him about where he was or about his activity on the two days in question. [10] GRIEVOR JASON LARKIN Mr. Larkin testified that he lived in Desbarats, a small town 40 minutes east of Sault Ste. Marie. There was no hospital there and his doctor was in Sault Ste. Marie. He testified that he completed a 12 hour overtime shift on Monday December 19, 2011 from 6:00 a.m. to 6:00 p.m. and got home around 7:00 p.m. By 7:30 p.m. he began to move some concrete forms out of his garage. While doing so he hurt his back. Around 9:30 p.m. he called and night shift supervisor Mr. Al White answered. The gist of the balance of Mr. Larkin’s testimony was a repetition of the contents of the following letter he e-mailed on December 22, 2011 to Superintendent, Ms. Lou-Ann Lucier: My name is Jason Larkin, and I’ve been working with the Ministry of Correctional Services since June 1998. On Monday, December 19, 2011, approximately 21:30 hours I called shift supervisor Al While (OM16) at the Algoma Treatment and Remand Centre to book off sick for my Tuesday, December 20, 2011, 0700-1900 hours shift. Early Tuesday afternoon while I was sleeping a voice message was left on my answering machine by day shift supervisor Kevin Davis (OM16). The - 5 - message stated that he was calling on behalf of (Deputy Superintendent of Operations) Mike Byrne who was requesting I bring in a doctor’s note for that days book off. I called Mr. Byrne on this day to ask him why he was requesting a doctor’s note. He stated that he noticed on HPRO that I had booked off sick the day following me having worked an overtime shift on Monday, December 19, 2011. I asked him why he would require a doctor’s note when never once had I been in the Attendance Support Program in the past 15 years as an employee with the Ministry of Correctional Services. I also stated that he would not be able to show a pattern of abuse of sick time, because I had never booked off sick the day following having worked an overtime shift in my entire 15 year career. Mr. Byrne admitted to me that he had not checked HPRO to reveal any patterns of abuse. He stated he was asking for a doctor’s note based solely on this one time. I told Mr. Byrne that I had called my family doctor earlier in the day and had made an appointment. The earliest appointment I could make was for January 18, 2012, I also stated that I had sprained my back at home the night before and wasn’t about to drive 40 minutes to the Sault Ste Marie Hospital from Desbarats to wait hours to be seen by Emergency room doctor. In fact, he could take me off the schedule sick for Wednesday, December 21, 2011 as well because my back was still sore. He told me that he understood and would advise scheduling. I then asked Mr. Byrne if I would be paid for my two sick days. He said yes, certainly. He told me that I would be marked off sick and would be paid on my regularly scheduled pay period, but he would still require a doctor’s note. I agreed that I would provide him with doctor’s note immediately following my January 18th appointment. On Wednesday, December 21, 2011 approximately 1600 hours, Mr. Byrne called me at home. He told me that after having discussed it with others it was decided that my 2 days would be changed to leave without pay until a doctor’s note was provided. I asked Mr. Byrne to please explain to me again why a doctor’s note was needed when he admitted that no pattern of abuse of sick time was ever looked into by him on HPRO. I also reiterated how I had never been in the Attendance Support Program in the past /15 years. He again stated that it was solely based on this one instance of me booking off sick the day following having worked an overtime shift. I asked him if he then was going against his word from the day before about paying me for my sick days. He stated: yes he was. I feel that this second conversation with Mr. Byrne was meant to harass and bully me. I feel he was calling to punish me for having called in sick. I feel I am being pressured, intimidated, and bullied by my employer to show up to for work when sick, or ailing. Why would he want me to put my fellow co-workers at risk of harm because I am not able to perform my duties at 100%, but show up for duty regardless for fear of not being paid. I feel stressed and burdened that I will be deducted 2 days’ pay following the Christmas Holidays. I’m saddened, hurt and embarrassed that my supervisor Mike Byrne would make me feel this way the week prior to Christmas with no Just Cause. - 6 - The content of the foregoing letter is also reflected in hand-written notes made by Mr. Larkin, which he testified were made on December 20 and 21 of 2011. [11] On December 23, 2011, Superintendent Lucier responded to his e-mail as follows: Thank you for your e-mail. It is my understanding that you were asked for a medical note for suspected sick abuse per article 44.10 of the collective agreement, specifically “where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days. It is my understanding that you worked overtime on December 19, 2011 and a few hours after leaving shift you contacted the manager and reported sick for your shift on December 20, 2011 (0700-1900 hours). It was also reported that you were quite indignant with Deputy Superintendent Byrne on the telephone and asked him to reconsider requesting a medical note. You also indicated you still had a sore back and would not be in for your next schedule shift on December 21, 2011 (0700-1900) either. I have reviewed the file and you have in fact worked overtime in the past and then booked sick for your following scheduled shifts. Please note that the ASMPP is separate and apart from the request for a medical note. The employer has requested a note per the provisions of the Collective Agreement. In terms of payroll to ensure that there is no disruption in May, I have approved the use of a credit pending an acceptable certified medical note as you have indicated you are attending an appointment January 18, 2012. If you can advise which credit, and type you would like to utilize I can then ensure that your payroll is not disrupted. I also understand that you have filed a grievance, which is the appropriate forum should you disagree with this direction. Thank you for bringing your concerns forward. [12] Mr. Larkin testified that he was concerned that he may not be able to pay his bills. Therefore, he wrote to Ms. Lucier that he wished to use vacation credits to cover the two sick days. He testified that as soon as Mr. Byrne advised him that a medical certificate was required, he called his doctor for an appointment. The earliest he was offered was January 18, 2012. At that appointment he obtained a medical certificate and submitted together with a receipt for $10.00 the doctor charged him for the note. Mr. Byrne told him that he could file an expense claim on IFIS for the $10.00 and Mr. Larkin advised that he could not do so because he was not signed up for IFIS. Mr. Larkin testified that he was subsequently paid for the two sick days and his vacation credits were returned. However, he was not reimbursed for the $10.00 expense he incurred for the medical - 7 - certificate. He testified that no one in management showed him that he had a pattern of absence that caused the employer suspicion. [13] Under cross-examination, Mr. Larkin agreed that one purpose of his letter to Ms. Lucier was to ask for an explanation of the reasons why he was asked for a medical certificate. He agreed that after Ms. Lucier gave her explanation in her response, he did not question it, but simply asked that vacation credits be used cover the two days. He also agreed that during his overtime shift on December 19th, he was not sick and exhibited no symptoms of being sick. [14] Ms. Annetta Golder, Deputy Superintendent Administration, and Mr. Mei testified for the employer. Asked how the employer decides whether to require a note for short absences under article 44.10, Ms. Golder testified that in most cases requests are made when operational managers flag to senior management a suspicious pattern of absences by an employee. As examples she mentioned absences during the summer months, absences preceding or following statutory holidays, vacations, regular or lieu days off or on days the employee, to the knowledge of the employer, has a function. When a pattern is flagged, a senior manager would review the circumstances including the employees’ absences and would make a decision. Ms. Golder testified that every employee who calls in sick on a day preceding or following a holiday or day off is not asked for a medical certificate. It is requested only where a review of the past absences reveals a pattern. Documentation showing instances where employees had booked off sick in conjunction with days off, but were not required to provide medical certificates was filed to substantiate that assertion. [15] Reviewing Mr. Larkin’s attendance record for the 26 week period from July 11, 2011 to January 02, 2012, Ms. Golder stated that on December 19th he had accepted a 12 hour overtime shift on his regular day off. Employer counsel asked why a medical certificate was required for Mr. Larkin’s absence on December 20 and 21. She gave three reasons. First, his sick days followed an overtime shift. Second, he had called in sick on December 19th for December 20th, just 2½ hours after completing his overtime shift with no sign of being ill. Third, previous occurrences were noted where Mr. Larkin had - 8 - booked sick days following an overtime shift. Asked why the timing of Mr. Larkin’s call raised a concern, Ms. Golder replied “We had no information that he was injured during the overtime shift and when he called no information was given about what the absence was related to, or what the sickness was”. She acknowledged that she was made aware that Mr. Larkin had informed Deputy Superintendent Byrne that he had hurt his back, but added that it made no difference because “absences following overtime was a pattern”. [16] Ms. Golder was asked to show the “pattern” of sick days following overtime. Referring to Mr. Larkin’s attendance record for the period July 2011 to January 2012, she pointed out three prior examples. On August 13th, and September 22nd he did overtime shifts and booked off sick the next two days. On Sunday October 23rd he did an overtime shift and booked off sick on the following Tuesday and Wednesday. Ms. Golder testified that Mr. Larkin’s attendance records prior to July 2011 do not show any examples of this pattern because Mr. Larkin had done minimal overtime prior to the latter half of 2011. [17] With regard to Mr. Hernden, Ms. Golder explained that he was asked for a medical certificate for July 11 and 12, 2011 because his sick days followed his regular days off which were preceded by two vacation days, and it was also noted that his absences tended to increase in the summer. She testified that a pattern was observed that his absences tended to precede or follow statutory holidays, vacations, days off and lieu days. Reviewing Mr. Hernden’s attendance records going back to March 2008, Ms. Golder identified 18 prior occasions where he had booked off sick in conjunction with regular days off or vacation days. [18] Ms. Golder also testified that in August 2009 the employer had implemented a pilot Attendance Management Program, under which employees moved through the levels based on the number of occurrences of sickness. Under it, when time is booked off it is counted as one occurrence regardless of the number of days off sick. Ms. Golder testified that while previously Mr. Hernden had booked off single sick days, after the program came in he was booking off in two day blocks. - 9 - [19] Ms. Golder testified that summer is prime vacation time and all requests cannot be approved. In the summer months sick time increases notably. It causes significant scheduling problems. She pointed out that Mr. Hernden’s absences on July 11 and 12, 2011 fit into this pattern because it was summer time. Moreover, his two sick days combined with two vacation days and his regular days off gave him 11 consecutive days off, in effect giving him “an extended vacation”. [20] Ms. Golder testified that at a daily meeting she and Superintendent Lucier were made aware of a meeting held on July 25th between Mr. Hernden and Mr. Mei. She discussed with Ms. Lucier that there was a pattern in Mr. Hernden’s absences. Ms. Lucier instructed that Mr. Hernden be contacted at home and asked to provide a medical certificate for his absences on July 11 and 12. Ms. Golder was later advised that Mr. Mei had left a voice-mail for Mr. Hernden. Mr. Mei told her that when he met with Mr. Hernden he explained the reason for requesting a medical certificate and told him that the two days will be recorded as leave without pay until a medical note is submitted, and accepted as satisfactory. [21] Under cross-examination, Ms. Golder agreed that Mr. Hernden was typically scheduled to work four days in a row, and that therefore the first and fourth work days would necessarily be next to two days off. In other words, half of his work days would always either precede or follow two regular days off. That would not be the case only if he books off sick on the two middle days of the four day block. If he books off two sick days, they could be the first two days, middle two days or last two days of the four day block. In other words, in two of the three possibilities his sick days would be next to regular days off. Ms. Golder agreed. [22] Ms. Golder agreed that it is to the employer’s benefit when an employee notifies of an absence due to illness as early as possible and that employees are encouraged to do so. Counsel suggested to Ms. Golder that when an employee calls in sick, he may not know what the illness is, and even if he did, he is not required to inform what the diagnosis or sickness was. She agreed, but added that it is useful for the employer to know what the illness was, and that most employees routinely provide that information. - 10 - [23] Counsel pointed out that Mr. Larkin’s attendance records tendered in evidence covers the 26 week period July 11, 2011 to January 2, 2012, and suggested that there is no allegation of a pattern of sick days following an overtime shift outside this period. She agreed. Counsel suggested that out of the 24 weeks leading up to the sick days on December 20 and 21, Mr. Larkin had worked overtime shifts on 12 weeks. Therefore, if he fell ill on any of those 12 weeks, the sickness would fall in a week in which he did overtime, and there would be a good chance the sick day would be next to a day off. That had occurred only in three weeks out of the 24 weeks preceding the December 21 and 22 absences. Ms. Golder agreed. Referring to the attendance records, counsel put to Ms. Golder that while there were several weeks when Mr. Larkin had an overtime shift and sick days, sick days immediately followed an overtime shift only on two prior occasions in this 26 week period. In all other cases there were regular days off or worked shifts intervening between the overtime and the sick days. Therefore, the pattern relied upon consisted of two prior occasions of overtime followed by sick days in the period of 26 weeks, and there was no such pattern outside this period. Ms. Golder replied that “the pattern” included Mr. Larkin calling in sick immediately after or shortly after in the week after he had worked overtime. Counsel pointed out that even then there were only three past occasions in the 26 week period. Ms. Golder agreed. [24] Ms. Golder agreed that prior to the request for a medical certificate for December 20 and 21, 2011, Mr. Larkin had never been advised that the employer had observed a suspicious pattern of absence. Nor was such a concern identified in any performance evaluation. She also agreed that to her knowledge, at or before the request was made, no one had reviewed with Mr. Larkin his attendance record to point out the days of absence which constitutes a pattern. This was not done even after Mr. Larkin questioned why a medical certificate was requested. However, she believed that Ms. Lucier and Mr. Mei had explained the pattern to Mr. Larkin when he challenged the request. [25] With regard to Mr. Hernden, Ms. Golder stated that the suspicious pattern was twofold. First, his sick days followed regular days off, which were preceded by two vacation days. Secondly, Mr. Hernden’s sick days increased in the summer, and tended to precede or follow statutory holidays, days off in lieu, and vacations. She agreed that to her - 11 - knowledge no one had explained to Mr. Hernden this concern about a pattern, any time prior to the request for the sick days July 11 and 12, 2011. Nor was such a concern identified in any performance evaluation, even though the employer had relied on his attendance back to March 2008 in concluding that there was a suspicious pattern. She agreed that no medical certificate had been required from Mr. Hernden for any of the past absences, which the employer regards as a pattern, and that between September 27, 2010 and July 11 and 12, 2011 Mr. Hernden had no sick days at all. [26] Union counsel referred to a Ministry document titled “Culpable Absenteeism/Suspected Abuse of Sick Leave; Best Practices (“Policy”) and suggested that it is the Ministry policy on suspected abuse of sick leave. Ms. Golder replied “yes. It is a guideline”. When asked if it is in force, she replied that she understood that it was presently under review for purposes of revision. She agreed that the employer, however, was presently following it, although she herself did not use the prescribed forms. [27] Under the heading “Reasonable Grounds to Suspect Abuse”, the policy at p. 3-4 provides: In order to require an employee to provide a medical certificate before the required number of days had expired (five for OPSEU, seven for AMAPCEO, PEGO and MCP/Excluded) the employer must have reasonable grounds to suspect that the employee is not sick or injured. There are a number of circumstances that may reasonably raise the suspicion of the employer: (1) An employee requests and is denied leave for a specific day and later calls in sick on/for that day (2) A review of an individual’s attendance record indicates a pattern of absences. The stronger the pattern the more legitimate the suspicion. It is imperative that accurate records have been kept if considering pattern absences. Patterns of absence that may cause suspicion are, for example: . where an employee regularly calls in sick on a certain day of the week or at a certain time of the year; . where an employee takes excessive sick time combined with excessive overtime or overtime for shifts that immediately follow the absence due to illness; . where spouses or co-workers call in sick such that they are off at the same time; or - 12 - . other patterns. (3) A special event is occurring in the community that the employee or a group of employees is or are likely to attend, for example a hockey tournament. (4) A number of employees call in sick at the same time in a concerted manner (an illegal strike, “blue flu”). [28] Ms. Golder testified that in reviewing a pattern of absences for Mr. Hernden the employer followed para 2. She was referred to the following provision at pp. 4-5 under the heading “Process Relating to Suspected Sick leave Abuse based on a pattern of Absences”: Where abuse of sick leave is suspected based on a pattern of absences over a reasonable period of time the following will apply: (1) The deputy superintendent, administration or other appropriate manager will meet with the employee and inform the employee that abuse of sick leave is suspected and the reasons for the suspicion. Any documents demonstrating the pattern will be shared with the employee. The employee is entitled to have union or association representation at this meeting if they choose. In the case of OPSEU-represented employees, where representation is declined it must be done in writing (Art. 44.13). Ms. Golder admitted that with respect both grievors that provision was not followed. [29] Mr. Mark Mei testified that on July 25th, Mr. Hernden questioned why a medical note was required. He explained that the request was made “because he was using sick time in conjunction with stat time and time off, giving reason for suspicion of abuse of sick time”. Mr. Mei also recalled that he advised Mr. Hernden that “If there was no note, the absences would be leave without pay”. He testified that Mr. Hernden requested that he be allowed to “go get a note now”, and that he told him that he had to do it on his own time. He testified that the same day he sent an e-mail to Mr. Byrne, with copy to Ms. Lucier and Ms. Golder. It reads: Please be advised of a conversation I had with Mr. Hernden today at approximately 1030 hrs. While in the shift i/c’s office I was approached by Mr. Hernden concerning my request for a medical certificate for his absences on July 11 and 12, 2011. It appears that Mr. Hernden is challenging the direction by stating he has not used any sick time for the past 11 months and wishes to be paid for the 2 days in question. I explained to Mr. Hernden of using sick time in conjunction with vacation and days off was the employer’s suspicion of abuse of - 13 - sick time and was the reason to request a medical certificate for the periods of absence. Mr. Hernden requested to leave NOW to see his doctor (while on duty). I told him “NO”, he would have to do this on his own time. Mr. Hernden then stated he has a doctor’s appointment on Sept 16, 2011. He also stated he would be out of town on his days off to go to a walk in clinic or the emergency dept. I told Mr. Hernden if no medical certificate was made available for the periods of absence in question, then leave without pay would be used for the 2 sick days he requested. I have since taken a stage 1 grievance from Mr. Hernden and his rep. J. Wright. [30] Mr. Mei testified that later that day Mr. Hernden, accompanied by union steward Mr. Wight, met with him and advised that he would get a medical certificate at the next doctor’s appointment which was on September 16th, but that he would be filing a grievance. [31] In cross-examination, Mr. Mei testified that at the first meeting with Mr. Hernden he referred to a suspicion about abuse of sick time, but did not provide any specifics about any pattern of absences and did not provide any documentation to show any pattern. He testified that the decision to request a medical note was made by Superintendent Lucier and that she directed him to inform Mr. Hernden that “a medical note was needed for the two sick dates taken in conjunction with days off”. Ms. Lucier had no discussion with him about a pattern of absences. Union counsel asked Mr. Mei if he was surprised that the employer was requesting a medical note for the two days in question. Mr. Mei replied he was surprised that a request was made in Mr. Hernden’s case, because based on his experience of over 30 years “there were other cases where there were more prevalent issues of abuse”. Mr. Mei testified that since Mr. Hernden told him that he already had a doctor’s appointment and would provide a medical note following that, he was confident that Mr. Hernden would comply with the employer’s request. Counsel pointed out that according to his e-mail to Ms. Lucier what he told Mr. Hernden was that the two days will be leave without pay only if a note is not provided, and not that his pay will be docked pending the note. Mr. Mei agreed. - 14 - [32] Union Steward, Mr. Joe Wright, testified in reply that when Mr. Hernden advised him of the employer’s request, on July 25th he went with Mr. Hernden to the Shift IC office and met Mr. Mei. He explained to Mr. Mei that under article 44.10, the employer is entitled to require a medical note for a two day absence only if it reasonably believes there was abuse, asked “What is the abuse here?”, and stated that this was a violation of articles 2, 3 and 44.10. Mr. Mei replied that there was suspected abuse because the absences followed Mr. Hernden’s days off. Mr. Wright testified that there was no mention by Mr. Mei that Mr. Hernden’s pay was being withheld, and he found out only after the fact that Mr. Hernden was not paid for the two days. [33] In cross-examination, Mr. Wright was asked whether his testimony is that Mr. Mei never mentioned at the meeting that Mr. Hernden would not be paid for the two days, Mr. Wright replied, “I got the impression that he will be paid if he gets a note at the appointment. We left the meeting under the impression that everything was fine”. [34] SUBMISSIONS The union submitted, and the employer did not disagree, that in requiring medical certificates for absences of less than five days, the employer is required to exercise discretion. Union counsel submitted that in exercising its discretion, it must comply with the condition set out in article 44.10 that a note may be required only “where it is suspected that there may be an abuse of sick leave”. Counsel argued that to exercise the discretion there must be reasonable grounds for suspecting abuse. It is not sufficient that the employer honestly believed that there may be abuse of sick leave. Reliance was placed on Re Kuyntjes 513/84 (Verity). There the Board reviewed the administrative law concepts that have been applied by arbitrators in relation to exercise of managerial discretion under collective agreements. At p. 16 the Board set out the minimum standards that must be met for a proper exercise of discretion as follows: In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: - 15 - 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review. 4) All relevant facts must be considered and conversely irrelevant consideration must be rejected. [35] Counsel argued that with regard to the grievors, the employer had not complied with paragraphs 3 and 4 above. He submitted that the employer is not entitled to come up with a rationale for requiring a note after the fact. Counsel pointed out that at the hearing Ms. Golder reviewed in great detail the employees’ attendance records in an attempt to convince the Board that there was in fact a suspicious pattern of absences. However, there is no evidence that the decision – maker did that kind of analysis of the attendance records at the time the decision was made. If it had done such analysis, it would still be obliged to explain to the grievors what the alleged pattern was and what specific absences constituted that suspicious pattern. This was not done. The grievors were only given a vague and general allegation that there was a pattern of absences which gave rise to suspicion. Counsel pointed out that Re Kuyntjes requires the employer to consider the merits of the individual case. He submitted that since the grievors were not advised of the basis for its conclusion that there was a suspicions pattern, the employees had no opportunity to explain any of those absences. The employer merely relied on the absences as recorded, but did not hear from the employees to ascertain whether they had a reasonable explanation which may well have dispelled suspicion. On that basis, counsel submitted that the employer did not consider the individual circumstances of the respective grievors. [36] Counsel relied on the policy where it states that “where abuse of sick leave is suspected based on a pattern of absences over a reasonable period of time” … the employer “will meet with the employee and inform the employee that abuse of sick leave is suspected and the reasons for the suspicion”. While conceding that this is an employer policy and not an enforceable agreement, counsel submitted that it nevertheless supports his argument. Counsel pointed out that there was no meeting held with either grievor, at which the employer explained its reasons for suspicion. At best, they were told of a - 16 - vague and general allegation that there was a pattern. Counsel submitted that to meet the requirement in Re Kuyntjes, the employer was obliged at the time of deciding whether to require a medical note, to undertake the type of detailed analysis it provided at arbitration. There is no evidence this was done. [37] Counsel for the employer submitted that article 44.10 is a complete code with respect to the requirements in relation to sick notes. He argued that article 44.10 does not include a requirement to provide to the employee the reasons for requiring a medical note or to permit the employee to explain the absences. Citing case law, he submitted that, regardless of the Board’s view of what is fair or what makes sense, it has no authority to add obligations which have not been negotiated by the parties. [38] Counsel reviewed the absences Ms. Golder had testified about in detail as establishing a suspicious pattern of absences. He submitted that while the employer is required to be reasonable in concluding that there is a suspicion of abuse, it is not required to be correct. He submitted that the employer had more than reasonable grounds for concluding that there was a suspicious pattern of absences on the basis of the grievor’s respective attendance records. [39] CONCLUSION In Re Young, 220/79 (Swinton), reported at (1979) 24 L.A.C. (2d) 145, at pp. 147-148, this Board described its role in reviewing management exercise of discretion as follows: An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restricted role. It must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The board’s concern is the reasonableness of the decision, not its ‘correctness’ in the board’s view. Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective agreement gives the employer a broad discretion and where the board has less familiarity than the employer with the needs of the work place. Unlike the disciplinary area, where employee interests in job security require active arbitral review, it is unwise for an arbitration board to second guess management in the structuring of the work-load.” - 17 - It is to be noted that in describing the Board’s role, in Re Young (supra) the Board drew a distinction between “situations such as leave of absence cases”, and discipline cases where employee interest in job security is involved. [40] In applying these general principles to the exercise of discretion under article 44.10, careful attention must be paid to the language in article 44.10, in the context of other relevant provisions of the collective agreement. Article 44.1 confers a substantive right on employees as follows: “An employee who is unable to attend to his or her duties due to sickness or injury is entitled to leave of absence with pay …”. The provision then sets out the rates of payment for the first six days of absence and longer absences. [41] As employer counsel correctly pointed out, the general arbitral principle is that in order to claim sick pay, an employee must meet the initial onus of proving that his absence was due to sickness. In article 44.10, in the Board’s view, the parties have consciously addressed the nature and the extent of that onus. In doing so they have distinguished between absences of less than 5 days and longer absences. In the first sentence, article 44.10 clearly requires a medical certificate certifying that the employee was unable to attend work due to illness. This requirement is triggered only “after five days of absence caused by sickness”. Thus, for absences in excess of 5 days, the onus is placed on the employee, consistent with the general principle. However, the latter half of article stipulates that for absences of less than five days, a medical certificate may be required at the employer’s discretion but only where there is a suspicion of abuse of sick time. The effect of this provision, in the Board’s view, is that under article 44.10 as a general rule employees are entitled to paid sick leave for absences of less than five days without the need for a medical certificate. However, the parties have negotiated an exception to this general rule. That is, a medical certificate may be required at the employer’s discretion, where abuse is suspected. In the Board’s view, the onus is on the employer to satisfy the Board that the exception applies in the particular circumstances of each case. [42] The foregoing view is supported by prior decisions of this Board. Thus in Re Jarvalt, 178/83 Vice-Chair Swan, dealing with the predecessor of the present article 44.10 which - 18 - had substantially the same language, referred to Re Ralph 364/80 and 370/80 (Gorsky) and at pp. 5-6 wrote: What Vice-Chairman Gorsky was suggesting, as seen elsewhere in the decision, is that it is not sufficient for the Employer to have a good faith suspicion that there is an abuse of sick leave; the suspicion must also be reasonable in all of the circumstances. The present Vice-Chairman, in Re St. Jean de Brebeuf Hospital and Canadian Union of Public Employees (1977), 16 L.A.C. (2d) 199 (Swan) made a similar plea for reasonableness in the administration of sick leave plans generally, pointing out that in the absence of reasonableness employers, employees and the medical profession would be engaged in a never-ending waste of scarce resources in providing medical certificates for minor illnesses. The present parties, in our view, have crystallized that general concern in clause 51.10, by providing that absences of less than five days may result in a requirement for a medical certificate only in special circumstances. We agree with the panel of the Board chaired by Vice-Chairman Gorsky that, in order to invoke the second sentence of the clause 51.10, the Employer must demonstrate a suspicion which is not only held honestly, but is also held reasonably (Emphasis added). [43] The question then is whether the employer has met its onus. In order to do so, it must demonstrate to the Board that it held a suspicion of abuse on the part of each grievor, not only honestly, but also reasonably. In the present case, the employer’s honesty and good faith are not in issue. The issue is whether the discretion was exercised reasonably. For that to be the case it must establish that the minimum standards set out by this Board in Re Kuyntjes have been met. [44] The parties, particularly the employer, submitted numerous authorities and relied on dicta therein. The majority of the cases were discipline cases. Others dealt with exercise of management rights or discretion in relation to other specific provisions of the collective agreement. In one case, the Board’s comments were made in relation to the employer’s rights under the first part of article 44.10 under which the requirement for a medical certificate is mandatory and there is no exercise of discretion involved. Those observations by the Board, in my view, are of no assistance or relevance to the interpretation and application of the second part of article 44.10, which has specific language dealing with the employer’s discretion to require medical certificates in special circumstances. Therefore, I will not review that case law put before me. [45] On a careful review, the Board concludes that the employer has not presented sufficient evidence that it exercised its discretion under article 44.10 reasonably. The employer’s - 19 - own evidence was that the decision to require medical certificates from each grievor, was made by Superintendent Lucier. She did not testify in this proceeding. Of the two employer witnesses who did, Mr. Mei had no involvement at all in the decision-making process. Ms. Golder’s testimony is reviewed in detail above. After she had described the general process followed by the employer in deciding whether to require medical certificates for absences of less than five days, employer counsel questioned her about the individual grievors. When asked why a sick note was required from Mr. Larkin for December 20 and 21, 2011, she replied that (1) December 20th was flagged as a shift following an overtime shift; (2) that he had called in sick for December 20th, just 2½ hours after completing the overtime shift on December 19th with no apparent sign of sickness; and (3) that “We also noted previous occurrences of sick time following overtime”. She was then asked to point out examples, in Mr. Larkin’s records, of sick time following overtime. She identified three prior examples in the 26 week period preceding the two days in question, and added that “We believed there was a pattern”, and that “we requested a note and waited to make our next decision”. Ms. Golder also observed that when Mr. Larkin called in sick, he hid not informed what illness prevented him from working the next day. [46] With regard to Mr. Hernden, Ms. Golder testified that he was asked for a medical note for July 11, and 12, 2011 because it was flagged that those days followed his regular days off which were preceded by vacation. She also testified that Mr. Hernden’s sick time increased during summer months, and they tended to follow or precede days off, vacation, statutory holidays or lieu days. She testified that it was also noted that since August 29, 2009, when the Absenteeism Management Program was launched, Mr. Hernden’s pattern changed from one day absences to two day absences. The right to sick pay is a very important right in any collective agreement. Employees rely on it in order to meet their day to day financial obligations in times of sickness. That right must not easily be interfered with. [47] In my view, the employer must be held to a higher standard in reviewing the evidence in order to determine whether the employer has met its onus of establishing that it exercises the discretion under article 44.10 reasonably. Unlike in other situations where the - 20 - employer is granted discretionary authority under the collective agreement, such as approval of unpaid leaves or compassionate leave, here its exercise of discretion has the result of infringing upon a substantial right employees have under article 44.1 to paid leave for sickness. I refer to the distinction drawn in this regard by the Board in Re Young (supra). The Board has held in relation to this provision that “any erosion of negotiated rights is not to be easily inferred” and that “… the employer’s rights must be balanced against those of the employees”. It is useful to set out the reasoning of the Board in that decision in Re Ralph (supra) at p. 16: “When the parties negotiated the first sentence of (Clause 51.10) this gave a real and substantial right to employees not to be bothered with the inconvenience of securing a medical certificate for every illness. The danger of abuse is considered in (Clause 51.9) which gives the Employer an overriding and uncircumscribed right to require an employee, who is frequently absent from work, to submit him or herself to a medical examination at the expense of the Employer. While the purpose of the second sentence of (Clause 51.10) is to furnish an additional means to the Employer to protect itself against employee abuse of the sick leave provisions of the agreement, the existence of the first sentence of (Clause 51.10) requires that the Employer’s rights must be balanced against those of the employees’. Any further erosion of negotiated rights is not to be easily inferred. Whatever might be the broader dictionary meaning of the word “suspected”, as found in the last sentence of (Clause 51.10) it is subject to being affected by the context in which it is found. My interpretation of (Clause 51.10) is consistent with furnishing the Ministry with meaningful rights when it suspects an employee is malingering. It also preserves a meaningful application of the first sentence of (Clause 51.10) to the extent that it creates rights in favour of employees.” [48] In addition to affecting a substantive collective agreement right, the employer’s exercise of discretion under article 44.10 has other adverse impact on employees. An illness, in many situations, may prevent an employee from working, but may not require a visit to a doctor. For example, influenza, a migraine headache or upset stomach. Many illnesses causing short term distress may be treated with common medication or rest, without a visit to the doctor or a hospital. When an employee has to obtain medical note in these circumstances it would require him to go out and spend time in a doctor’s office or hospital when the illness requires him to rest. One need not be medically qualified to suggest that at least in some circumstances the exertion may exacerbate the illness. There also may be some travel expenses depending on the mode and distance travelled. In Mr. - 21 - Larkin’s case, he had a 40 minute drive each way to his doctor’s office. Additionally, like in his case, the doctor may charge for the note for which the employee is responsible. [49] Even where the suspicion is reasonable and the exercise of discretion is in compliance with article 44.10, the employee is denied sick pay for up to four days. As in this case, the employer may ultimately decide when the medical certificate is received that its suspicion was not borne out and sick pay may be reinstated. The employee, however, would have been denied his pay in the interim period, which could be many months given the reality that a doctor’s appointment in some cases may not be available on short notice. [50] The Board recognizes that absenteeism, particularly in corrections, is a legitimate concern for the employer. The Board does not doubt that, where medical substantiation is not required, abuse could, and does, take place. When it does, it would cause significant difficulties in meeting the employer’s scheduling and staffing requirements. Therefore, it is not surprising that the employer would want to take proactive steps to prevent abuse. However, that can only be done within the confines of the negotiated provisions. In the first sentence of article 44.10 the parties ensure that absences of five or more days sickness are supported by a medical certificate. That addresses the employer’s interest that paid leave will be only for genuine cases of sickness. Then the parties in essence provide that for short-term illness of less than five days, paid leave will be available on an honour system without the need for medical substantiation. However, it is clear that the parties have also recognized that such honour system opens up the potential for abuse. They have therefore addressed that by including an exception where at its discretion the employer is allowed to require medical substantiation even for short absences where it reasonably suspects abuse. The Board has held that for the exercise of that discretion to be reasonable and proper, certain minimum standards must be observed. Regardless of how acute the absenteeism problem is in any given institution, the exercise of discretion must meet those standards. Unless the employer meets the standards in reaching the conclusion that there may be abuse of sick time, the suspicion is not reasonable. - 22 - [51] For a number of reasons, I have concluded that the employer has not presented sufficient evidence to satisfy the Board that in concluding that there was suspected abuse in each of the two cases it complied with the minimum requirements. The decision maker, Superintendent Lucier did not testify to explain how and why she exercised the discretion in the particular circumstances of each grievor. Ms. Golder testified to the effect that “we reviewed records” and “we noted a pattern” etc. There was no evidence as to when this review took place or who did the review specifically, was it at a meeting and if so who participated in it, or what specific information was reviewed. It is not known whether the review was done separately by several senior managers, or what the reviews disclosed. Based on the evidence before the Board, it is not clear that Ms. Lucier was part of the review, or how the results of the review were used by Ms. Lucier to reach her conclusion. While Ms. Golder during testimony reviewed each grievor’s attendance records in detail to identify a pattern, there is insufficient evidence that such a review of each grievor, individual circumstances was carried out by, or for the decision-maker, at the time she made the decision. Ms. Golder did testify that she discussed with Ms. Lucier “that there was a pattern”. However, there was no evidence as to the extent of that discussion. Ms. Golder’s testimony about how the decision was made lacked the level specificity required to satisfy the Board that at the time of the decision to require the medical notes from Mr. Larkin or Mr. Hernden their individual circumstances were given meaningful consideration. [52] The union disagreed that there were reasonable grounds to suspect abuse by either grievor even on the basis of the analysis provided at the hearing. However, counsel submitted that even if that was the case, it is not sufficient for the employer to provide an analysis of a grievor’s record to show at the hearing that a pattern reasonably leading to a suspicion of abuse in fact exists. The employer must establish that such an analysis was undertaken at the time the decision maker exercised the discretion to require a medical note. The Board agrees. Due to the lack of specificity in the evidence, the employer has failed to establish that it undertook a meaningful consideration of the particular grievors’ individual circumstances. For example, Ms. Golder testified that in Mr. Larkin’s case, a pattern of sick time in conjunction with overtime was noted. However, she agreed in cross examination that since correctional officers worked blocks of three or four - 23 - consecutive work days under a compressed work week agreement, there was a good chance that any sick day booked off would be next to a regular day off. In Re Pilger et al, 2008-2793 etc. (Abramsky) the same issue came up. At Para.37 the Board wrote: [37] It seems clear that a compressed work week would result in more occasions when an absence could fall into the pattern of extending time off between sets of shifts. But that fact, in my view, is countered by the five or more times parameter used to determine a pattern. That limitation, plus the prior filtering performed by the employer (the 2007 and 2008 absence levels and screening for known medical issues), resulted in only 14-16 of approximately 400 employees demonstrating established potential patterns. This shows that there were sufficient safeguards built into the methodology to prevent the compressed work week issue from improperly skewing the results. [53] There, the employer satisfied the Board that it considered the fact that a compressed work week would result in more “patterns”, and had built in sufficient safeguards into the methodology to prevent improper showing of the results. In contrast there is no evidence here that the employer even turned its mind to the fact that the grievors worked a compressed work week. Similarly, the evidence is uncontradicted that based on Mr. Larkin’s record, he did overtime on 12 of the 24 weeks relied upon by the employer. Thus, in that period, there was a significantly increased chance that any work day booked off would be next to an overtime shift. The records indicate that this happened on three prior occasions in the 26 week period. There is no evidence that the employer gave any consideration to the possible impact of the combined impact of Mr. Larkin doing significant overtime and working a compressed work week in deciding whether there was reasonable grounds to suspect abuse. [54] Mr. Larkin emphatically testified that Deputy Superintendent Byrne told him that he had not reviewed attendance records to see if there was a pattern, and that the request for a medical certificate was based solely on his sick time on the one instance. He communicated that to Ms. Lucier in an e-mail. (See, paragraphs 10-11supra). Since neither Mr. Byrne nor Ms. Lucier testified, Mr. Larkin’s testimony in this regard remains uncontradicted. This evidence adds to the doubt whether there was any meaningful consideration of Mr. Larkin’s individual circumstances prior to the request being made. The evidence is simply insufficient to meet the employer’s onus to establish that the - 24 - exception applied. For all of those reasons the Board finds that the employer has not adduced sufficient evidence to satisfy the Board that the individual circumstances of either grievor were given proper and meaningful consideration. [55] Counsel for the employer submitted that the collective agreement does not require the employer to meet with or to provide reasons to an employee as to why a note was required. I agree that once a decision is made and conveyed to an employee, no such obligation exists. However, when applying the administrative law principles of fairness applicable in the exercise of discretionary powers set out in Re Kuyntjes (supra) to the collective agreement between these parties, the employer is required, at the time of making its decision, to consider all relevant facts. In the Board’s view, before the employer decides to infringe upon the collective agreement right to sick pay for absences of less than 5 days without medical substantiation, it must consider the circumstances surrounding the absences, past as well as the culminating absence, which triggered the suspicion. In order to do that the employer must permit the employee to provide input before exercising its discretion. In Mr. Larkin’s case, Ms. Golder testified that he did not provide any information as to what the sickness was when he called, although most employees do provide that information. While the employer has no right to a diagnosis, if it were to properly exercise its discretion under article 44.10, it must invite the employee to provide any information he wishes to provide and consider such information as part of the decision-making process. In Mr. Larkin’s case, the fact that he called in sick for the following day, only a few hours after completing his shift with no noticeable symptoms of illness, influenced the employer’s suspicion of abuse. In Ms. Lucier’s e- mail dated December 23, 2011 (supra para. 11) she notes that Mr. Larkin informed Mr. Byrne after the note was requested, that he had a sore back. He had advised her the previous day that he sprained his back at home the night before. There is no reason therefore to believe that Mr. Larkin would not have disclosed that information if his input had been sought before the request was made. If the employer had requested, and if Mr. Larkin had opted to explain that he was injured after returning home following his shift as he did after the fact, the employer’s decision may have been influenced by a consideration of that information. Similarly, the employer’s suspicion about abuse of sick time by Mr. Hernden was exacerbated by the fact that he was not home when Mr. - 25 - Mei called. Ms. Golder testified that it was reasonable to expect that an employee would be home if he was sick. This speculation, with no inquiry into the facts, would have been prevented had the employer sought Mr. Hernden’s input and Mr. Hernden had informed that he fell ill while in Winnipeg. Those are relevant facts, which must be considered, if the employee elects to provide it. That would prevent interference with employee collective agreement rights on mere speculation. In providing an employee the opportunity to provide relevant input, the employer is, of course entitled in the exercise of its management rights to stipulate the method in which the information is to be provided, and to set reasonable time limits to do so. [56] While the policy is not a binding agreement, it is a directive from the Ministry to managers which sets out the process to follow when exercising the discretion to require medical certificates for short absences under article 44.10. It envisages a face to face meeting at which the employer provides its reasons for the request to the employer. The requirement for such a meeting inferentially envisages that the employee would have the opportunity to provide a response or input if he wishes to do so. If not, the Ministry would not have required a meeting. It would have given managers the option of communicating its reasons by other means. Thus the ministry’s understanding of the proper exercise of discretion requires that managers consider any input provided by the employer. In the Board’s view that understanding is correct and is consistent with this decision. While article 44.10 does not require a face to face meeting as contemplated in the policy, it obliges the employer to seek input from the employee and to consider the input if provided. By failing to do so the employer failed to consider very relevant facts and thereby was non-compliant with the minimum standards set out in Re Kuyntjes. [57] The Board next turns to the additional issues in dispute between the parties. IS A MEETING UNDER ARTICLE 44.13 REQUIRED AT THE TIME OF EXERCISING THE DISCRETION TO REQUIRE A MEDICAL CERTIFICATE FOR ABSENCES OF LESS THAN FIVE DAYS? The union takes the position that a meeting under article 44.13 must be held as a pre- condition for requesting a medical certificate under article 44.10. The employer submits - 26 - that the collective agreement imposes no such obligation, and that the Board has no authority to impose one. [58] Article 44.13 provides: 44.13 Where an employee is interviewed by a member or members of management in respect of the employee’s record of attendance at work, no evidence of that interview or of the particular aspects of the attendance record upon which that interview was based shall be admissible before the Grievance Settlement Board in the arbitration of a disciplinary grievance unless the employee was given reasonable notice of the interview and of the right to have Union representation at that interview, and the employee either had such Union representation or declined that representation in writing prior to the interview. The Board finds that this provision does not oblige the employer to hold a meeting under any circumstances. It only stipulates that if such a meeting is held, some requirements must be complied with, if certain evidence related to that meeting is to be admissible at the arbitration of a disciplinary grievance. It has no relevance to the rights and obligations under article 44.10. Therefore, the Board agrees with the employer’s position. [59] IS THE EMPLOYER REQUIRED TO PROVIDE REASONS TO THE EMPLOYEE AS TO WHY THE EMPLOYER CONCLUDED THAT THAT THERE WAS A SUSPICIOUS PATTERN OF ABSENCES As I understand, the union’s complaint is that when the employer conveyed its decision to the grievors that a medical note was required, the employer did not detail what facts it relied on to decide that there were reasonable grounds to suspect abuse of sick time. I agree with employer counsel that the collective agreement does not include an obligation to provide reasons at the time the request is made. [60] However, I have already concluded that as part of the decision-making, the employer is required to seek and to consider any input from the employee with regard to its suspicion. This is required as part of the employer’s obligation to consider all relevant facts in deciding whether to exercise its discretion. Needless to state, the employee would not be able to provide input, unless he is made aware what the employer’s concern or suspicion - 27 - is. Therefore, in seeking input, it is incumbent upon the employer to sufficiently set out the basis for its suspicion, so as to enable the employee, if he so wishes, to provide any relevant information for the employer’s consideration. To be clear, this must be done as part of the decision-making process, and not after the fact at the time of conveying a decision already made. [61] IS THE EMPLOYER REQUIRED TO REIMBURSE THE EMPLOYEE FOR ANY COSTS OF OBTAINING A MEDICAL NOTE AT THE REQUEST OF THE EMPLOYER? On first blush it seems that where a medical certificate is obtained pursuant to a requirement by the employer, it would be fair that the employer should be required to pay for its cost. However, I agree with employer counsel that in the absence of an obligation under the collective agreement, the Board has no authority to impose a monetary obligation on the employer. This is more so under the collective agreement between these parties, where they have stipulated that the employer must pay for medical information it seeks in certain circumstance, but have not done so in relation to requests for medical certificates under article 44.10. Thus, where the employer requires that an employee submit to a medical examination under article 44.9, it is explicitly provided that the examination will be “at the expense of the employer”. The parties have put their minds to when the employer must bear expenses when it seeks medical information. If the parties intended that medical notes required under article 44.10 would be at the employer’s expense, they would have said so as they did in article 44.9. That has not been done. Therefore, in the circumstances, the Board concludes that the employer has no obligation to pay for medical certificates required under article 44.10. [62] IS THE EMPLOYER ENTITLED TO WITHHOLD PAY PENDING THE RECEIPT OF A MEDICAL CERTIFICATE REQUESTED AT ITS DISCRETION UNDER ARTICLE 44.10? The union’s position is that unless the employee indicates that he would not comply with an employer request for a medical certificate or one is not provided within a reasonable time, the employer is not entitled to withhold the employee’s sick pay. Counsel pointed out that both Mr. Hernden and Mr. Larkin, while not agreeing with the employer’s - 28 - entitlement to request a medical certificate, agreed to comply. In Mr. Larkin’s case, Mr. Mei explicitly indicated to him that there was no urgency and that it was acceptable if the medical note for his absence on December 20 and 21, 2011 is provided following his doctor’s appointment, which was not until January 18, 2012. It is the union’s position that where employees agree to provide the requested medical certificate, the employer is not entitled to withhold pay until its actual production. [63] The employer disagrees. Counsel submitted that the union’s position ignores the general principle that an employee is entitled to receive sick pay only after he establishes that his absence was due to sickness. This onus is satisfied only when a medical certificate is provided substantiating that the absence was in fact due to sickness. Citing case law, counsel submitted that where an employee claims a monetary entitlement, he bears the onus to establish his entitlement. Until the employer receives the certificate, and finds it to be acceptable, the employee has no entitlement to sick pay. [64] The Board disagrees with the employer’s position. I have concluded earlier in this decision that under article 44.10 the general rule is that employees have a right to sick pay for absences of less than five days without the need for any medical certificate. This substantive right may be affected only in the special circumstance where abuse is reasonably suspected. The Board has also concluded that the onus is on the employer to prove that the exception applies. Therefore, the position advanced by the union does not, as the employer argued, result in “flipping the onus” which is on the employee, to the employer. The onus of proving that the employee’s particular circumstance falls within the exception is always with the employer. The employee has no onus to prove that the exception does not apply. [65] Therefore, until the employer determines that the absence was not due to sickness, the employee’s right to be paid without the need for a medical certificate is unaffected. That right may be infringed only where the employer concludes that the absence was not due to sickness in circumstances where the employee refuses to provide a medical certificate within a reasonable period or where a medical certificate provided does not sufficiently substantiate that the absence was due to sickness. The employer is not entitled to - 29 - withhold pay until it is in a position to decide, and in fact decides, that the absence was not due to sickness. [66] For all of the foregoing reasons the grievances of Mr. Hernden and Mr. Larkin are upheld. [67] REMEDY The union did not assert that either grievor suffered any actual loss as a result of the employer’s violation. Nevertheless, it requested remedies including $5,000.00 in damages for each grievor “in recognition of the employer’s wrong-doing” and the seriousness of the violation. The Board finds that any award of damages is not warranted or justified in the circumstances. The Board orders as follows; (1) The Board declares that the employer contravened article 44.10 in the manner it exercised its discretion under that provision. (2) The Board declares that the employer also violated article 44.10 by withholding sick pay from the two grievors. [68] The Board remains seized with all of the remaining grievances. Dated at Toronto, Ontario this 10th day of June 2014. Nimal Dissanayake, Vice-Chair