HomeMy WebLinkAboutJeannotte 04-07-02
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IN THE MATTER OF AN ARBITRATION UNDER SECTION
48 OF THE LABOUR RELATIONS ACT, 1995 (as amended)
BETWEEN
Ontario Public Service Employees Union ("the union")
AND
North Simcoe Hospital Alliance ("the employer" or "the hospital")
And in the matter of the grievance of Shirley J eannotte, ("the
grievor") who claims that she has been discharged without just
cause.
BEFORE: R. O. MacDowell (Sole Arbitrator)
APPEARANCES:
F or the union: Anne Lee (Counsel)
Shirley Jeanotte
F or the hospital: Alan Whyte (Counsel)
Rishi Bandhu
Mary Lou McKelvey
Judy Eakley
Michelle Quealey
The hearing in this matter was held in Toronto, Ontario, on June 17
and June 18, 2004.
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AWARD
I - What this case is about, in brief
This arbitration proceeding arises from the grievance of Shirley J eannotte,
("the grievor") who claims that she has been discharged without just cause. The grievor's
employment was terminated on January 27,2003.
The hospital replies that it did have "cause" for the grievor's termination -
indeed, that her termination is specifically mandated by the terms of the collective
agreement.
*
The hospital alleges that the grievor has both abused the hospital's sick
leave policy, and failed to provide a satisfactory (or legitimate) reason for her prolonged
absence from work. The hospital's argument is put in various ways, but, basically, the
hospital contends that the grievor engaged in a scheme of misrepresentation, in order to
get a longer period of time off work than she was entitled to. In the hospital's view, the
grievor claimed that she was "sick", when she wasn't. Then she went on vacation.
In late 2002 the grievor applied for a 9 week leave of absence to go on
vacation. But for operational reasons the hospital could only give her a 6 week leave of
absence. The hospital asserts that the grievor was not content with that result, so she
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engaged in a deliberate scheme, feigning illness, so that she could take off the 9 weeks
that she had originally asked for.
The hospital says that the grievor was not really ill during this 9 week
vacation period. On the contrary, she sought to mislead both her employer and her
physician; and, in furtherance of this scheme, she deliberately withheld information, and
refused to supply a satisfactory reason for her absence.
The hospital points out that it had no explanation for the grievor's absence
for her prolonged period of time off (eventually, a total of 11 weeks). Nor did it know
when the grievor would reappear. The grievor simply left the country to go on vacation,
and did not tell anyone when she was expected to return. And in the hospital's
submission, it is no coincidence that the grievor's purported "illness" (and later
"recovery") coincides with the 9 week period of vacation that she originally asked for.
The hospital asserts that the grievor's behaviour constitutes ')ust cause"
for her termination, and also engages Article 1O.08(e) of the collective agreement, which
reads as follows:
10.08 An employee shall lose all service and shall be deemed to
have terminated if she:
(e) is absent from scheduled work for a period of three (3) or
more consecutive working days without notifying the Hospital of
such absence and providing a satisfactory reason to the Hospital;
...
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The hospital argues that the grievor's behaviour falls squarely within the
ambit of Article to.08(e); and that, in any event, she engaged in a pattern of dishonesty
and misrepresentation that justifies her tennination on a ')ust cause" basis under Article
4.0t(b). In the hospital's submission, an arbitrator has no authority to modify the
outcome stipulated in Article 10.08; and that, even if I had such jurisdiction, no
modification of the penalty would be warranted in this case.
*
The grievor denies these allegations. The grievor says that she was
legitimately sick and unable to work for the entire period of her absence. The grievor
maintains that there was no misrepresentation or intention to mislead anyone. She did
not provide the hospital with information about her medical condition, because she
thought that the hospital was not entitled to that information; and she did not give the
hospital more information about how long she would be off, because she did not know
how her illness would unfold, or how long she would be offwork.
In the grievor's submission, she has been discharged without just cause,
and should be reinstated to her former job, and compensated for all wages and benefits
lost.
*
A hearing in this matter was held in Toronto, Ontario, on June 17 and June
18, 2004. The parties were agreed that I have been properly appointed under the terms of
the collective agreement, and that I have jurisdiction to hear and determine the matters in
dispute between them. The parties were further agreed that if I found that the grievor was
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entitled to compensation, I could remain seized in the event that there was any difficulty
in calculating the amount to which the grievor might be entitled.
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It will be convenient to review the relevant events in rough chronological
order. First, though, it may be useful to say something briefly about "credibility".
n - An aside on the question of credibility.
It is clear from the foregoing introduction that the disposition of this case
will turn, at least in part, upon the credibility of the various witnesses - particularly the
grievor herself. For, among other things, I must determine, on the balance of
probabilities, whether the grievor was legitimately "sick" and unable to work for the long
period that she was off, (as the grievor claims), or, alternatively, whether the grievor was
merely feigning illness in order to get the extended period of time off that she had asked
for and been refused (as the hospital asserts). I must also consider the grievor's
explanation for why she kept the hospital in the dark about the reasons for her illness, and
why she failed to tell the hospital where she was, or how long she would be off work.
So there is an issue about "information sharing", as well as whether the
grievor was "really sick". And the grievor's credibility is relevant to both questions.
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When weighing the evidence of the various witnesses, I have found it
useful to consider the comments 0 f Y abosik J. in Landry v. P raft & Whitney Canada
[1996] 8 W.W.R. 511 at page 518:
Conflicting and irreconcilable testimony between witnesses
on essential matters requires an assessment of credibility
generally, and, also specifically, in light ofundisputed or
indisputable facts and such other facts as are very likely,
and probably, to be true, and also in the light of the burden
of proof in adducing evidence.
With respect to the oral testimony of the witnesses I have
heard and observed, I am entitled to believe the whole or a
part, or to disbelieve the whole or a part, of the testimony
of any witness, and to weigh the evidentiary value of the
testimony that I find acceptable and believable, and
therefore, credible. Credibility concerns, generally, the
assessment and weighing of the testimony of the witness.
It is in essence, believability; and a recognition of a
witness's worthiness to be believed; the truthfulness of his
testimony. Testimony that is not plausible or reasonable in
itself may be rejected on that basis alone, that is, that it is
not plausible or reasonable and, therefore, not worthy of
belief
There are numerous factors to be considered in determining
credibility generally, and no real set of rules to follow. It is
a matter in which many human characteristics, both strong
and weak, must be taken into consideration. Ultimately,
the task is left to good common sense and the accumulated
wisdom and experience of years of ordinary, everyday
living. In assessing the credibility of a witness generally,
the Court may consider the integrity and intelligence of the
witness, and the witness' appearance of sincerity and
truthfulness in the witness stand; whether the witness was
candid, frank and fair, forthright and responsive to
questions asked, or evasive or hesitant; and whether the
witness was biased or had a personal interest or lack of
personal interest in the outcome of the trial.
More specifically, the Court may consider the witness'
memory, the capacity to remember, and the ability to
describe clearly what was seen and heard; whether or not
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the witness has any particular reason to assist him in
recalling the precise event and what was said; and whether
or not there were inconsistencies in the witness' testimony
at trial, or in what the witness said trial and on a prior
occasion under oath or otherwise. Innocent discrepancies in
minor matters are often unimportant. Discrepancies
portrayed in detail on relevant matters may be deemed to be
something more than innocent discrepancies, and they must
be looked at very carefully in assessing credibility The
appearance and the demeanour of the witness and the
impression that made as to the witness' honestly and
truthfulness is also only one of the factors to consider in
determining the witness' credibility. The finding of
credibility should not depend solely on which witness made
the better appearance of honesty and sincerity in the
witness stand. If credibility was decided on that basis
alone, it would lead to a purely arbitrary finding, and
justice would depend to a large extent on how and who
(sic) made the best impression in the witness stand.
Where there are conflicting and contradictory accounts, the
judge should consider what facts are beyond dispute and
indisputable, add to those facts such other facts as seem
very likely to be true, and then examine which of the
conflicting accounts best accords with those facts. The
conflicting testimony 0 f t he witness may b e judged to b e
unreliable if his evidence is, in any serious respect,
inconsistent with the undisputed or indisputable and
otherwise found facts. When the iudge has done his best to
separate true from the false by these more or less obiective
tests. the iudge should consider which story is more
probable. The true test of the truth of the story of a witness
in cases 0 f se rious conflict must be its harmony with the
preponderance of probabilities which a practical and
informed person would readily recognize as a reasonable in
light of the existing circumstances and conditions. The
iudge endeavours to determine. if possible. which of the
conflicting stories is more consistent with the probabilities
and the surrounding circumstances and conditions when
examined in the background ofthe evidence as a whole.
With those comments in mind, I have taken into account such factors as:
the demeanour of the witnesses when giving their evidence; the firmness of their
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recollections; the clarity, consistency, and overall plausibility of the testimony when
compared to the testimony of others and tested by cross-examination; the ability of the
witnesses to resist the tug of self-interest or self-justification when framing their answers;
the consistency or otherwise with whatever documentary material is available to
corroborate what must have occurred; and what seems most probable in all the
circumstances.
I have tried to assess the evidence in its totality, in order to see whether
the witnesses have been candid throughout their testimony. This is not to say that a
witness cannot be credible in one area and less than credible in another. Credibility is not
an all or nothing thing. However, a lack of candour in one area may cast doubt on other
aspects of a witness's evidence, and may reflect upon his/her general credibility. A
witness who lies or exaggerates in one part of his/her testimony, runs the risk that the
whole will be disbelieved.
I shall have more to say later about a particular points in the evidence. For
present purposes, I simply note that, applying these criteria to the evidence before me, I
prefer the evidence of the other witnesses whenever there is a conflict with the testimony
given by the grievor. The grievor's testimony was often evasive or equivocal; there were
frequent - but convenient - gaps in her memory; and the grievor's story was contradicted
on material points, by other more plausible evidence. Neither her demeanour nor the
content of her testimony carried the ring of truth.
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That lack of candour complicates the fact-finding process. But it is also
relevant in assessing the grievor's overall conduct, and whether this is an appropriate case
for reinstatement (assuming, for the moment, that I have the jurisdiction to ignore Article
10.08, and put the grievor back to work - a legal point that the hospital does not
concede).
III - The background in a little more detail
The North Simcoe Hospital Alliance ("the hospital") is an amalgamation
of two formerly independent institutions: the Penetang General Hospital, and the Huronia
District Hospital. The union is the bargaining agent for a bargaining unit of "paramedical
employees" who work for the hospital. The parties are bound by a collective agreement
that runs from April 1, 2001 to March 31, 2004.
The grievor is a part-time employee, who has worked for the hospital as an
"allied health assistant" for approximately 12 years. Her duties involve doing tests and
drawing blood from patients at the Penetang Mental Health Center. From time to time she
works at other locations as well.
The grievor typically works 16-20 hours per week (four or five 4-hour
shifts per week). She has no previous record of misconduct.
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On Sept. 18, 2002, the grievor made a written request for a 9 week leave
of absence, so that she could go on an extended vacation to the United States. The request
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was addressed to Judy Eakley, the grievor's supervisor, and reads as follows (emphasis
added):
I am asking for a leave of absence. The time I am asking
for is starting, December 28102 until March 1/03. The
reason for this leave is an extended holiday, an answer
must be given by September 30/02 in order to make the
necessary arrangements. Thank you.
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Judy Eakley is the manager of the Department of Diagnostic Imaging. The
grievor is one of about a dozen part-timers who work in Ms. Eakely's department. Ms.
Eakley is responsible for scheduling these employees so that the patients' needs are met.
Ms. Eakley told the grievor that, for operational reasons, she was not in a
position to grant a leave of absence for the entire 9 week period that the grievor had
requested. ~or was the hospital able to accommodate that portion of the grievor's
proposed absence that fell in the period from December 15 until just after New Year's;
because there were a number of holidays during that period, and other employees were
also seeking time off. Ms. Eakley pointed out that the employee complement in the
grievor's department was already reduced by illness and an imminent pregnancy leave,
and Ms. Eakley did not want the department to be short-staffed during the holiday season,
or in late February/early March, when the pregnancy leave was anticipated. Ms. Eakely
was also worried about the incidence of flu - justifiably, as it turned out.
Accordingly, by letter dated September 24, 2002, Ms. Eakley advised the
grievor that she could not approve the 9 week leave of absence (from December 28 until
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March 1), that the grievor was seeking. However, Ms. Eakley did approve a 6 week leave
of absence, (from January 4 until February 15). Ms. Eakley's letter to the grievor reads,
in part:
The dates approved reflect my ability to staff the department.
Specifically, it is the policy of the North Simple Hospital Alliance
that vacations are not usually granted from December 15th until
the first week in January in order to accommodate Christmas and
New Years requests. Also there will be staff off on pregnancy
leave in approximately late winter, and I don't wish the
department to be in a position where we could be short staffed. I
hope the dates continue to meet your needs.
The grievor was further advised that in order to confirm her 6 weeks off.
she would have to submit a formal "leave of absence form". On October 3, 2002, the
grievor met with Ms. Eakley to complete these formalities.
At the meeting on October 3, the grievor produced a leave of absence form
requesting time off from January 4 to February 15 (i.e. what Ms. Eakley had already
approved in her letter), together with an additional two weeks leave, from February 16 to
February 28. Despite Ms. Eakley's letter of September 24, the grievor was still looking
for time off until the end of February.
However, Ms.Eakley reiterated that for operational reasons, the additional
time off (two weeks at the end of February) could not be granted. So the late February
dates were struck out, the deletion was initialled, and the 6 week leave of absence (from
January 4 to February 15) was jointly "signed off', "as amended".
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I might note, parenthetically, that immediately under the agreed upon time
off (January 4 - February 15), and just above the grievor's signature, the leave of
absence form contains the following warning:
"I agree that my failure to report for work on the day
following the expiration of this Leave of Absence without
adequate written notice or reason will automatically act as
separation from the employ of this Hospital with the loss of
all seniority and service rights" A Doctor's Certificate
Attached 0 [emphasis added]
The form makes it clear that employees who overstay a leave of absence
are putting their jobs on the line. Adherence to the agreed-upon leave is important; and if
an individual is away from work beyond the authorized leave period, s/he has to justify
that extension or face the consequences of Article to.08(e) as applied to the "extension".
In other words, an employee who takes advantage of an authorized leave
of absence, to take more time off than s/he is authorized to take, is in the same position as
an employee who is off work without a satisfactory reason. In both cases s/he has to have
a satisfactory reason for being off work - or face the negotiated consequences.
Accordingly, the grievor would have known that if she took an extra two
weeks off at the end of her authorized leave (the last two weeks of February that she had
twice asked for, and been refused), then she would have to justify that additional two
weeks off.
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There is no "v" in the "Doctor's Certificate box" on the leave of absence
form submitted by thegrievor, because the grievor was not seeking a medical leave of
absence. The reason for the leave was "vacation".
According to Ms.Eakley, the grievor was very unhappy that she was only
being allowed to take 6 weeks off, instead of the 9 weeks off that she had requested. The
grievor concedes that she was angry and disappointed that she did not get what she
wanted.
The grievor testified that when the hospital authorized only six weeks off,
(instead of the nine weeks off that she had requested), she and her husband discussed the
situation, to decide what to do. The grievor was troubled, she said, because the "time was
not right".
The grievor testified that her husband had obtained a 9 week leave of
absence from his employer, running from late 2002 until early March 2003; and while
she later "waffled" about when his vacation leave was finalized, I am satisfied that it was
settled fairly early on - and well before the couple actually left the country. So the
grievor was faced with a problem: what to do? Her husband had off from December 28
until March I, but the grievor did not.
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The grievor testified that she and her husband discussed the situation, and
they decided that they both wanted "to get away from everything". So, as the grievor put
it "we just went".
The grievor testified that she could not recall whether this decision to take
the vacation was made before or after she had talked to Dr. Karson, her family physician.
However, the context of her testimony suggested that the planned vacation that she was
talking about, ("we just went") was for the period of time that her husband would have
off (late December 2002 until early March 2003). And in my view, that is confirmed by
other evidence as well (see below).
Whether or not the time approved by the hospital was "right", the grievor
and her husband were resolved to follow through with their vacation plans.
*
On Sept. 26 2002 there was a staff meeting that the grievor attended.
Among other things, the hospital reminded the employees of its policy not to grant
vacation leaves between December 15 and January 4, so that time off over the Christmas
season could be fairly apportioned among all staff members who wanted to spend time
with their families. It was the same point that Ms. Eakley had made in her letter to the
grievor, written two days before.
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In early November 2002, all employees - including the grievor - received a
memo, along with their pay cheques. The memo dealt with a number of personnel issues,
including the following item:
Don 't forget that medical leaves of longer than three days
require submission of medical documentation. The required
forms are available from your manager, switchboard,
occupational health office, or on the "p" drive. The
medical form is required to support absence for medical
reasons, to support duration of disability, to determine
fitness to work, and to support eligibility for disability
benefits. [emphasis added]
As a result of Ms. Eakely's letter, the meeting in late September, and the
memo in early November, the grievor would have known that taking time off between
December 15 and January 4 ppsed real difficulties for the hospital. The grievor would
also have known that medical leaves had to be supported by proper medical
documentation. Moreover, on at least two previous occasions, the grievor has taken time
off for medical reasons, and on each of those occasions, she filled out the required
medical forms, without controversy, confirming the reason for, and duration of, her
absence. The grievor was familiar with the process.
On November 15, the hospital posted the work schedule for the next three
months. The gnevor was scheduled to work, periodically, until the end of
December/early January; then her 6 week leave was scheduled to begin on January 4.
That was what had been agreed to and "signed off', on October 3.
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When determining the staffing levels over that period, Ms. Eakely factored
in the grievor's 6 week leave of absence - which is how the grievor's time off appeared
on the work schedule. The grievor was expected to work her scheduled shifts until
January 4, 2003; then she would go on leave for 6 weeks; then she was expected to be
back at work, immediately after her permitted leave of absence, which ended on February
15,2003.
There is no dispute that the grievor knew when she was required to work,
when she had scheduled time off, and when she was expected to be back at work. The
grievor also knew that any departure from these agreed upon arrangements, would pose
difficulties for the hospital - and perhaps for her co-workers, who would have to fill in
any gaps. She knew that her department was short staffed during the period in question.
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The grievor testified that on December 2, she went to see Dr. Karson, her
personal physician. She told Dr. Karson that her job was "getting to her", that she was
stressed and depressed, and that she needed some time away from work. She said that
she was anxious to go on the vacation trip which her husband had planned, and that she
was disappointed that she might not be able to go.
According to Dr. Karson, the grievor told him that she was stressed and
"depressed" and unhappy about the situation in which she found herself. Dr. Karson was
sympathetic. However, Dr. Karson testified that he was in something of a "dilemma" [his
word] about how to deal with the request for time off.
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Dr. Karson testified that he knew that the grievor wanted to go on vacation
with her husband, and that he was anxious to accommodate that wish. He also thought
that the grievor would benefit from having some time off. But he did not feel comfortable
saying that she was "disabled" from work, or that she should receive sick benefits,
because it was evident that she would be going on vacation, and would not be receiving
any treatment.
Dr. Karson said that he was familiar with how insurance claims work, and
he knew that it was quite problematic to suggest that an employee was "disabled" and
had to be absent from work for medical reasons, if that employee immediately went off
on vacation, and was not receiving any medical treatment for the purported illness. It
would look very suspicious.
Dr. Karson testified that he was "in a bind" [his words] and concluded
that the best option was to write a note requesting a "leave of absence", rather than a
"disability", as such. He was uncomfortable with doing something that might trigger the
payment of disability benefits; and in his view that characterization ("leave of absence")
would avoid a scenario in which the allegedly disabled employee immediately went off
on vacation and was not receiving treatment.
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It was, Dr. Karson said, a "compromise" [again - his word]. So he
prepared a note, dated December 2nd, indicating that the grievor should have a "leave of
absence" from December 28,2002, until mid-March, 2003.
I do not know the precise terms of this doctor's note, because it was never
produced in evidence (see below); so it is not clear whether it was an instruction or
merely a recommendation. But obviously, it pertained to the very period of time off that
the grievor's husband proposed to be off work - and also the very period of time off that
the grievor had asked for and been refused (although the doctor did not know that).
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In cross-examination Dr. Karson was taken carefully, step-by-step,
through the list of the symptoms and manifestations of depressive illness, listed in the
DSM IV - the standard tool used by mental health professionals for diagnosing and
assessing mental illnesses. Dr. Karson agreed that the grievor did not show those
symptoms. He said that he was not familiar with the DSM IV.
Dr. Karson also said that he did no testing, and did not undertake or
arrange for a depression inventory. He simply accepted the grievor's assertions that she
was stressed at work, that she was feeling depressed, that she was not sleeping well, and
that she wanted time off to go on a trip with her husband. He also accepted the grievor's
suggestion that the time off work would be good for her.
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The grievor's recollection was that when she said that she "needed time
away" the doctor replied "that may do it" and there wasn't much more to the discussion
than that.
Dr. Karson agreed in cross-examination, that it was very unusual to give a
medically-based leave of absence that operated prospectively - to say, in effect, (in this
case, on December 2, 2002) : "I have assessed your medical situation, you are fine to
work for the next four weeks, then you should get 2 months off in 2003 because you will
be unfit to work by then, and you will need that 2 months off to deal with your illness".
And to repeat: from Dr. Karson's perspective, the grievor was not "disabled" from
working in December; and for the reasons mentioned earlier, he was not even
comfortable with formally labelling her condition a "disability", for the two month period
of time that she expected to be on vacation. He frankly testified that he was "in a bind"
about what to do.
Dr. Karson also agreed in cross-examination that a 2-2 Yz month leave of
absence, to be taken in the future, was not medically indicated or linked to some
objective aspect of the grievor's condition. Rather, it was a convenient block of time
which was suggested by the grievor herself. Dr. Karson conceded that, had the grievor
not mentioned that precise period of time off, he would not have specified time off for
those dates - from December 28 until March. Dr. Karson also conceded that if he had
known, at the time, that the grievor had already secured a leave of absence for six weeks,
beginning in early January, he might have responded quite differently.
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Dr. Karson testified that, in his experience, patients with clinical
depression responded positively to active intervention (medication, physiotherapy,
counselling etc.). But there was none of that in this case. The grievor refused the
suggestion of medication, and none of the other options was ever pursued.
In summary then, while there is no doubt that the grievor complained to
Dr. Karson about stress at work and about feeling depressed, the thrust of his evidence
was that she was equally, if not more concerned, about going on vacation with her
husband. Which, interestingly, is also reflected in the grievor's testimony, when she
described her disappointment about only getting six weeks off, which did not match her
husband's 9-week leave.
It is difficult to understand how Dr. Karson was able to distinguish the one
source of depression from the other - which is to say, to distinguish depression or stress
or unhappiness related to her work, from depression or "feeling down" and "feeling
disappointed" about not being able to go on the full vacation that she and her husband
had planned. Nor is it clear how he bridged the gap between a subjective expression of
unhappiness or "being depressed" about something, or "wanting some R&R", with a
clinical finding of "illness" and medical inability to work. The only "objective"
observations recorded in the doctor's clinical notes were "affect depressed" and "affect
flat" and "decreased eye contact". That was the way the grievor presented and conducted
herself; and that is the only basis upon which a physician could conclude that she had a
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mental condition/disability purportedly justifying (as it turned out) many weeks off work.
And as I have already noted: the number of weeks off and the timing of those weeks off,
did not flow from the grievor's alleged medical condition, but were suggested by the
grievor herself.
No doubt the grievor did want some "R&R" (as she put it), and she was
disappointed, and downcast and troubled when she did not get what she wanted. It does
not follow, however, that she was therefore "ill" - let alone disabled and unable to work
for 11 weeks, or in need of a "medical" leave of absence for 9 weeks or more. Moreover,
the evidence is that, to a very significant degree, Dr. Karson adopted not only the
grievor's self-diagnosis, but also her suggested "treatment".
It is also useful to recall that, in the course of explaining that she was
stressed and depressed and needed time off to go on vacation, the grievor did not tell Dr.
Karson that she had alreadv asked for a 9 week leave of absence. and had secured
approval for six-weeks off. beginning January 4. so that she could gO on vacation. Nor
did the grievor share the fact that the hospital had already considered and rejected the
very request for 9 weeks off, that the doctor repeated in his note on December 2. The
grievor's focus was on her husband's leave of absence for the longer period, beginning
on December 28 (the period of9 weeks off that ultimately appeared on the doctor's note
of December 2); and the doctor accepted the grievor's suggestion that she should have
those particular nine weeks off, (beginning 4 weeks later). But, as noted, that suggestion
came from the grievor, not Dr. Karson.
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In other words, when the grievor was telling the doctor that she was
stressed, and depressed, and needed time off and wanted to go with her husband on a .2
week vacation beginning December 28, the grievor did not tell Dr. Karson that the
hospital had already rejected that 9 weeks off, but had authorized a 6 week vacation
beginning only a few days later than her proposed departure date.
Dr. Karson confirmed that the grievor was not impaired or disabled, in the
usual sense; nor did what she was feeling, prevent her from responding to
communications or explaining her plans or carrying out her normal daily activities. And
there is no evidence of physical impairment at all.
Dr. Karson also suggested in his testimony that if the grievor found her
work stressful, the hospital might have considered some modification of her job duties, or
perhaps a change in her work assignment. He is right to make those suggestions.
However, the grievor never complained to the hospital about work place stress, nor did
she ask for any change in her job duties. Nor did the hospital ever have anything from Dr.
Karson or anyone else, suggesting that alternative as a response to the "stress" at work.
For as we will see below: the only thing that the hospital ever had £Tom the grievor was a
later note, dated December 12, saying that she was going "off work due to illness" for
some indefinite period. There was no mention of stress or depression, no linkage to her
work duties, and no request for a change in those duties in order to deal with the
situation.
22
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iJ
The grievor worked all of her regularly scheduled shifts between
November and mid-December.
The grievor went to see the doctor again on December 12. According to
the doctor's clinical notes, the grievor said that she was anxious, and stressed, and felt
that she needed time off right now. The doctor thought that the grievor seemed downcast
and depressed; so in response to her plea for immediate tiine off, he provided the grievor
with a note that reads "Shirley will be off work due to illness as of today". The grievor
said that she did not want to take any medication; and according to her recollection, the
doctor did not suggest counselling and she did not ask for it.
At the time that he wrote the "Shirley will be off work due to illness as of
today" note of December 12, Dr. Karson did not know that the earlier December 2nd
"leave of absence note" (the one saying that the grievor should have a "leave of absence"
from December 28, 2002 until mid March 2003), had never been presented to the
hospital. Nor, as noted, did the doctor know about the previously authorized 6 week
vacation from January 4 until February 15.
On December 13, 2002, the griever did not report for work as scheduled.
-
Instead, she left a voicemail indicating that she would not be in that day.
23
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-
At the end of the day, on December 13, the grievor came to the hospital
and dropped off an envelope for Ms.Eakley. The grievor did not say what it was. Nor did
she otherwise account for her absence. The envelope contained the December 12 note
from Dr. Karson that reads: "Shirley will be offwork due to illness as of today".
This is the only medical information that the grievor has ever provided to
the hospital to justify her absence for any period between December 13, 2002 until early
March 2003. In particular, that was all that she ever tendered to cover the three week
period preceding her authorized leave of absence (i.e. December 12 - January 4), and the
two week period after February 15, when, (had the authorized leave been adhered to), the
grievor should have been back at work. The grievor has never produced the other note
that the doctor says he gave her on December 2, 2002; and she never elaborated upon
what her illness was, or how it affected her ability to work, or when she might return to
work. Nor did she later tender any further explanation for her "extra" three weeks off in
December, and her "extra" two weeks off at the end of February (at which point, of
course, she had already been off work for two months).
The grievor denies that she ever received a note from the doctor dated
December 2. The grievor maintains that there was only one note - the one dated
December 12, mentioned above. She says that the doctor is mistaken.
24
1.
}
I prefer the evidence of Dr. Karson on this point. Not only did he recollect
giving the grievor a "leave of absence" note on December 2, but that document is
mentioned in his clinical notes, which he also made on December 2.
I find not only that the grievor received a medical note on December 2,
indicating that she was going to be off work from December 28 to March, but also that,
for her own reasons, the grievor intentionally suppressed that note. Then she denied it, in
her evidence in this proceeding.
*
From Ms. Eakley's point of view, the note of December 12 was totally
inadequate. It gave no indication of why the grievor was off work, or how long the
grievor would be off work, or when she could be expected to return to work. Moreover,
the Christmas season was fast approaching, and Ms. Eakely needed to know the grievor's
status, so that she could rearrange the work schedule for other employees. So Ms. Eakely
telephoned the grievor at home.
Ms Eakely advised the grievor that the information that she had provided
was insufficient, and she reminded the grievor that she would have to fill out a medical
leave of absence form (the standard form that was mentioned in the memo circulated to
employees in November, and the one that the grievor had filled out before). The grievor
told Ms. Eakely that she should mail the medical form to grievor's home.
25
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}
1
The grievor offered no further information about her illness or its likely
duration. Nor was there any mention of the grievor's proposed departure from the
country, a couple of weeks later, on December 28 (and recall that the grievor's
authorized leave did not start until January 4).
On December 16, Ms. Eakely sought the advice of Mary Lou McKelvey
the hospital's occupational health nurse. Ms. Eakely complained that she needed further
information, so that she could finalize the staffing schedule over the holiday period and
into the new year. Ms. Eakely wanted some help in clarifying the situation.
Ms. McKelvey has been the occupational health nurse for approximately
10 years. Ms. McKelvey testified that about 80% of her job is the management of
employee illness and disability.
Ms. McKelvey is involved in monitoring health-related claims under the
hospital's insurance scheme; she deals with the treatment of injuries and disabilities under
various public statutes (worker compensation, human rights, health & safety etc.); she is
engaged in the quest for modified work for employees with disabilities; and she
participates in structuring the "return to work" plans for persons who have been off work
for health-related reasons. In the course of those duties, Ms. McKelvey has to follow up
with doctors, in order to ensure that the medical information provided for these various
purposes, is both timely and accurate
26
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,
In her capacity as the occupation health nurse, Ms. McKelvey routinely
reviews the medical information provided by employees (and their doctors), in order to
determine whether the documentation supports their absence from work. Ms. McKelvey
also considers whether the employee's condition impinges upon his/her ability to work in
a hospital setting, and whether there is alternative work available that the employee can
do, despite the illness or disability.
Ms. McKelvey explained that the fact that someone has an "illness", or
"disease" or "disability", does not necessarily mean that there is no work for them to do.
A diagnosis that an individual is "unfit" to do his regular job, does not mean that he is
"unfit" to do any work at all. On the contrary, in many cases, the hospital is able to
provide an alternative assignment or modified duties, so that the employee can continue
to work, despite the illness, disease or disability. Indeed, the employer has a legal
obligation to search for alternative work and to accommodate an employee's disabilities.
The hospital's ability to pursue alternatives depends upon the nature of the
illness, whether the treatment regimen (including any prescription drugs) might affect the
ability of the employee to do one job or another, what alternative work may be available
within the employee's limitations, and so on. Likewise, the nature of the illness and any
resulting I imitations, have to be taken into account, when an employee is returning to
work after a period of time off due to illness. And to fulfill its responsibilities - legal and
operational- the hospital needs information.
27
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¡
Ms. McKelvey testified that she acts as a conduit of such information, as
well as a "buffer" or "intermediary" between the employee's immediate supervisor, and
the employee's physician(s). Ms. McKelvey maintains the confidentiality of the
information that she receives, and only shares that information, when it is necessary for
the hospital to fulfill some legal responsibility, or to assist the employee's safe return to
work.
On December 16, Ms. McKelvey faxed the hospital's standard
"Physician's Statement of Employee Disability" form to Dr. Karson, the grievor's family
physician. This form has been used since 1995, and is to be filled out by a physician,
whenever an employee is off work as a result of illness or disability. The form contains
the following notations:
To Employee: If illness or other disability requires an
absence from work of more than three days completion of
this form is required to support absence for medical
reasons, to support duration of disability, to determine
fitness to work and to support eligibility for disability
benefits. Please ask your attending physician to complete
this form and return in to the Occupational Health Service.
Confidentiality of medical information is ensured. Please
sign and date the following authorization.
To Attending Physician: documentation is required to
support leave of absence due to disability, for
administration of benefits and for coordination of modified
work if appropriate. The hospital has a modified work
program to assist in prompt and safe rehabilitation of this
employee. Functional limitations (restrictions appropriate
to the specific diagnosis) and diagnosis specific capabilities
will be matched to the demands of the job and if necessary,
the work will be modified accordingly to promote early and
safe return to work.
28
l
,
Dr. Karson is familiar with forms of this kind. He has filled them out for
other patients who work at the hospital. He has also filled them out for the grievor,
(without controversy), on two previous occasions, when the grievor was absent from
work for medical reasons.
On December 18, Ms. McKelvey received a telephone call from Ms.
Eakley, who was becoming increasingly anxious about how she could cover her staffing
needs over the next few weeks. As a result of that call, Ms. McKelvey telephoned Dr.
Karson's office, to see whether the doctor had filled out the form that had been faxed to
him on December 16. An employee at the doctor's office replied that the form had not
yet been filled out, and that the hospital should not expect the grievor to return to work
before Christmas. The employee also said that she would speak to the doctor about filling
out the form.
There was no further information on the grievor's status, and no indication
when any additional information might be provided. Accordingly, on December 19,
Ms.Eakley sent the grievor the following letter:
Your current absence is occurring under suspicious circumstances
in view of your previous request for extended time off. As I
indicated to you on the phone on December 13th, requests for
absence from medical reasons must supply supporting
documentation on the prescribed hospital form. I contacted you
again on Monday, December 16th with a message confirming
again that the form was required, that it would be faxed directly to
your physician, and asking that you contact me. To date, you have
not called and no form has been submitted.
If you do not submit the required form to Mary Lou McKelvey in
Occupational Health, and contact me directly, by January 3,2003,
29
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,
the Hospital will require your consent to an Independent Medical
Examination. The Hospital reserves its right to reqUIre
satisfactory medical evidence supporting the duration of the
absence before any medical leave is approved.
That same day, December 19, the grievor attended at her doctor's office,
and reviewed the form that the doctor had, by that time, filled out. The grievor instructed
the doctor not to supply any information to the hospital. The following day, the doctor's
office advised the hospital that no more information would be forthcoming. And on
December 22, the grievor wrote to the hospital as follows:
WITHOUT PREJUDICE - REGISTERED MAIL
I am in receipt of your letter dated December 19th 2002 which I
received by courier.
It is my understanding that my Physician has already provided the
appropriate documentation in regards to my absence from work.
As you mayor may not know, Ontario Law stipulates that I am
under no obligation to release any specifics of my medical history
to you. Therefore no further documentation will be forthcoming,
and if you continue to persist in this matter I may retain legal
counsel. I further caution you that I have notified union
representatives ofthese latest developments in this case and
I am deeply saddened and distressed by the tone and innuendo of
your letter.
In conclusion my Physician will determine when I am able to
return to work
The grievor initially testified that she had prepared this letter entirely on
her own. She said that she had no help at all. Later, though, she testified that she talked
to a number of people, including her husband, about the contents of the letter. So it was
not something that she did entirely on her own.
30
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t
There is no particular significance to this contradiction. It is merely an
illustration of the grievor's propensity to seize on a position, asserted with conviction,
from which she later retreated on cross-examination.
Another troublesome point is the grievor's assertion that she talked to the
union about Ms. Eakley's letter of December 19th, but never discussed her concerns about
confidentiality. And according to the grievor the union never advised her to cooperate
with the hospital. Neither of these assertions seems likely given the grievor's alleged
concerns about confidentiality, and the language of Article 10.08(e).
The medical form that the doctor completed on or about December 18,
was never provided to the hospital. However, that document was produced at the hearing
(as part of Ex. 7), in response to an Order for Pre-hearing Production, made in March
2004. The hospital was kept "in the dark" from December 2002, throughout 2003 while
the grievor's claim was being processed through the grievance procedure, and ultimately,
until March 2004, when production was directed in connection with this arbitration
proceeding. [The decisions concerning pre-hearing production are dated September 18,
2003 and March 4, 2004].
The notations that Dr. Karson made on the "Physician's Statement of
Employee's disability" are broadly similar to those that he said he made on the earlier
note that was given to the grievor on December 2 (the December 2nd note was not
31
)
produced). The "diagnosis" is listed as "anxiety disorder/depression"; the treatment is to
include supportive counselling and a referral to a psychiatrist; and the grievor is to be off
work until March 2003.
In other words, the medical form, like the note of December 2, mentions a
leave of absence for about the same time period that the grievor had originally asked for
and been denied ( although Dr. Karson did not know that) - which was a Iso the same
period of time off that the grievor's husband had obtained for vacation purposes.
The grievor testified that the information sought by the hospital was
personal, and that she did not want to disclose it. She also testified that she was worried
about the confidentiality of her medical information. She said that she either did not read,
or did not notice, the assurance of confidentiality at the top of the form. She just told the
doctor's office that no information should be released.
The grievor indicated that she was aware that the hospital had a policy of
protecting the confidentiality of medical information. She said that she did not trust that
policy. She conceded in cross-examination that there is no basis for such mistrust.
The hospital suspects (and urges me to find) that the grievor's reticence
about disclosing information, had nothing to do with the alleged illness, as such. Nor the
alleged concern about "confidentiality". Rather, the hospital suggests that the grievor was
32
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.
troubled by the overt mention of the leave of absence that precisely matched her original
request for time off to go on vacation.
In the hospital's submission, the timely tendering of either the December 2
note, or the December 18 "physician's statement", would have heightened the hospital's
scrutiny of the grievor's plans, and might well have jeopardized them. Either document-
but particularly the note of December 2 - would have prompted the hospital to press for
more information, and to demand further or independent medical verification for the
grievor's proposed time off work; and if the grievor was still at home, (as she was until
December 28) it would have been difficult to resist the hospital's enquiry. So the grievor
withheld both documents, tendering only the one of December 12 ("Shirley will be off
work due to illness as of today".
It seems to me that that is a reasonable and probable inference from the
evidence before me.
Whatever the precise form of the December 2nd note (i.e. whether it was
viewed as some sort of "sick leave note", or merely a doctor-supported request fora
"leave of absence"), the fact that the leave was to take place a month later, and was for
the same time period as the grievor had initially sought "for vacation", was sure to attract
attention. Likewise, the medical form that the doctor filled out on December 18. If either
of those documents had been given to the hospital, the hospital might well have pressed
for the independent medical assessment, that was mentioned in the letter that Ms. Eakely
33
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,
sent to the grievor on December 19. Either document would likely have generated -
before the grievor's departure - the same kind of letters, and demand for answers, that
were ultimately sent a few weeks later (by which time the grievor had left on vacation).
One can only speculate about what the result would have been, ifthere
had been a timely reassessment of the grievor's condition - either by Dr. Karson once he
had been fully informed ofthe situation, or by an independent medical practitioner. The
fact is, the grievor's refusal to supply information, foreclosed that inquiry. And in my
view that is what it was intended to do.
*
Aside from the grievor's letter of December 22 (the one refusing to
provide information) there were no further communications from, or about, the grievor.
On December 28, the grievor left the country to go on her planned motor trip to the
United States. She did not return from her vacation until March 1.
The g rievor' s alleged" illness" did not impede her vacation activities in
any way. On the contrary, the grievor testified that by the first week in January, (i.e. a
few days after her departure) she was feeling much better.
The hospital did not know where the grievor was, or why she was away
from work, or when she would likely be back to work. Nor did the grievor make any
effort to further explain her situation - or to indicate to her employer when she might be
expected to return to work. All the hospital had was the note of December 12, saying that
34
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t
"Shirley will be off work due to illness as of today", and the grievor's letter of December
22, refusing to elaborate.
The grievor testified that she thought that the December 12 note would be
sufficient - although she knew, prior to leaving the country, that the hospital thought
otherwise. She hoped that a doctor's December 12th note saying that she was "off work
due to illness", followed by a later doctor's note saying that she was fit to go back to
work, were all that were necessary, and had to be accepted by the hospital. She reiterated
that she was "sick" and was therefore entitled to be offwork.
The grievor testified that she could not advise the hospital about how long
she might be expected to be away from work (i.e. something that would not involve the
disclosure of any medical information), because she simply did not know what the
duration of her illness or absence would be. This was repeated in both the grievor's direct
examination, and when she was asked about it, again, in cross-examination. In both
instances the grievor said that she was off"sick", that she had an illness of indefinite
duration, and that she did not know when she would be returning to work.
The grievor testified that when she left the country on December 28, to go
on her motor trip to the United States, she did not know when she might be returning to
work. That was why she didn't tell the hospital. Yet, the December 2nd leave of absence
note (not given to the hospital) and the December 18th physician's statement (reviewed
by the grievor, but also not given to the hospital) both envisage a leave of absence from
35
J
,
December 28 until early March - the precise period oftime offthat the grievor had asked
for in September and actually ended up taking for her pre-planned vacation, and the
precise period of time off that her husband had arranged.
The grievor gave no plausible explanation for why she could not have told
the hospital about that - which would not have involved revealing anything about her
illness. Nor was there any plausible reason why the grievor did not indicate that she
would be out of the country after December 28. But of course, if the grievor had
mentioned that she wouldn't be back until March, there would have been additional
questions about the last two weeks if February - the period that she had asked for, but
had been both initially refused and later deleted from the leave of absence form.
*
Moreover, when the evidence is considered as a whole, the grievor's
period of time off work also involves two, quite remarkable coincidences.
*
The first interesting coincidence is one that I have already noted: the
grievor's alleged illness, as originally discussed in December, was to result in a leave of
absence a few weeks later that precisely paralleled the one she had asked for; and that as
things ultimately turned out, the period of illness extended for the essentially same time
as her initial request (back in September) for a leave of absence to take a vacation.
In September 2002, the grievor had asked for 9 weeks off beginning on
December 28. She also said that she needed an answer by September 30, so that the
36
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.
~
vacation plans could be finalized - which suggests that whatever it was that was planned,
had to be planned in advance, and could not easily be changed later. But at that time, the
grievor only received 6 weeks off, beginning on January 4. Hence the "timing" dilemma
mentioned earlier: the grievor's authorized leave of absence did not match her husband's.
However, as it turned out, the unexpected "illness" added a few days "to
the front end" of that authorized period of time off, as well as a couple of weeks to "the
back end" of her permitted leave of absence, so that, in the result, the grievor avoided the
hospital's restrictions on taking vacation over the Christmas break, and ended up being
off work and on vacation in the United States for precisely the period that she had
initially asked for, on September 18 (a "vacation" from December 28 until March 1). Her
alleged illness (so severe that she could not work) did not frustrate her vacation plans, it
confirmed them. In particular, it gave her back the last two weeks in February, which had
been specifically deleted and initialled on her leave of absence form on October 3,2003.
In the circumstances, it is difficult to resist the conclusion that the
December 28 departure date was fixed well in advance, and that the grievor was
determined to leave on that date, whether the hospital approved or not. She was also
determined to remain off work for the full period of the planned vacation. Or to put the
matter another way: the pivotal consideration was the vacation, not thegrievor's health
status or her work responsibilities.
*
37
I
i
The second interesting coincidence is that the ultimate duration of the
grievor's alleged total disability and complete inability to work, also largely parallels the
period oftime off that the grievor's husband was given by his employer.
In view of the coincidence between the duration of the grievor's alleged
disability, the vacation taken, the vacation leave initially applied for, and the leave
successfully secured by her husband, the grievor was asked when her husband's leave had
been finalized. This is one of the areas where her evidence was evasive and equivocal.
The grievor said different things, at different points in her testimony.
However, I find that the true state of affairs was revealed early on in the
grievor's testimony, when she indicated that as early as mid-September, she and her
husband had planned a vacation stretching from the end of December until early March.
That is the time period that she requested in her original note (which required an
immediate answer, so that her vacation plans could be finalized by September 30); that is
the time period largely repeated on October 3; that is the time period suggested by the
grievor and mentioned in the doctor's first note written on December 2; that is the time
frame that her husband had arranged to have off; that is the time period that appears on
the second medical form completed by Dr. Karson on December 18 (but never submitted
to the hospital); and that is the time that the grievor actually took off work for her
vacation, beginning on December 28 and returning on March 1, 2003 - just as she said
she wanted to do, back in September, and in order, she said, that her husband could get
back to work on time.
38
, "
,
..
When the doctor's evidence is taken into account, it is evident that there
are no coincidences here. The doctor chose the period of leave that the grievor suggested
to him; and that is the period that she was on vacation - leaving on December 28 and
returning on March 1, just as she had expected to do all along.
Against that background, the suggestion that the grievor did not know how
long she would be off work, is simply untenable; and it also throws doubts on the validity
of the alleged illness, which (the hospital says "too conveniently") allowed the grievor to
accomplish her objective to be on vacation from December 28 until March 1. So does the
doctor's testimony - particularly his concession in cross-examination that the period of
time off that he was recommending was not dictated by her condition, but was suggested
by the grievor herselfto conveniently coincide with her husband's planned vacation.
What the grievor could not get from the hospital, she was able to get (so
she thought) from her doctor - merely by saying that she was stressed, and depressed, and
downcast, and concerned that she would not be able to go on vacation with her husband
from December 28 until early March.
*
Nothing of significance happened over the "Christmas break". However,
by early January, the hospital had still received no information on the grievor's status.
Accordingly, on January 9,2003, Ms. Eakley sent the grievor a registered letter that reads
as follows:
39
~
"
I have received your letter dated December 23, 2002.
Unfortunately, this letter is not satisfactory to the Alliance. As
previously advised, the medical which you submitted is not
satisfactory, and not in accordance with the procedures of the
Alliance. You and all employees received a reminder of the
requirements for proper medical documentation as part of the
People System communication attached to pay cheques in
November 2002.
The Alliance requires documentation on the appropriate form in
order to determine your eligibility for a sick leave. If this required
documentation is not received by January 24, 2003, the Alliance
will terminate your employment under Article 10.08 (e) of the
Collective Agreement. Alternatively, the Alliance will terminate
your employment for cause as of that date for failure to provide
appropriate documentation to support your absence and/or failure
to provide a satisfactory reason for your absence.
Please be advised that the Alliance will only deal with you and/or
your certified bargaining agent on this matter -- the Ontario
Public Service Employees Union.
Ms. Eakley did not know that the grievor had left the country. Nor did Ms.
Eakley know that the grievor had arranged for her mail to be received, but not opened.
There was no response to Ms. Eakley's letter of January 9,2003, because
the grievor was in the United States. Accordingly, on January 27, 2003, the hospital sent
the grievor a further registered letter, terminating her employment:
As previously advised, the medical which you submitted was not
satisfactory to claim a medical leave, and not in accordance with
the procedures of the Alliance. In our last letter, we indicated that
the appropriate documentation was required by January 24,2003,
and clearly outlined the consequences if the documentation was
not provided.
Since you have failed to provide the documentation to determine
your eligibility for a sick leave, your employment with the
Alliance is terminated effective immediately under Article 10.08
(e) of the Collective Agreement. Alternatively, your employment
40
..
~
is terminated for cause for failure to provide appropriate
documentation to support your absence and/or failure to provide a
satisfactory reason for your absence.
Our records indicate that you have a vacation monies due to you.
These will b e p aid 0 ut b y direct deposit within the next top ay
periods. In addition, the pension plan requires you to either
complete a termination form, or a request for pension benefits.
Please see Janet Marchildon in the People System [human
resources] office as soon as possible to complete to this form.
The grievor did not actually receive this letter until he she returned home,
on or about March 1,2003.
*
The grievor received no medical treatment of any kind, either before she
left on vacation, or while she was away on her motor trip in the United States.
*
On March 6, 2003, shortly after her return to Canada, the grievor went to
see Dr. Karson again. But that visit concerned an unrelated medical problem. The grievor
and Dr. Karson both confirm that there was no discussion of the grievor's depressive
illness at all. Nor was there any follow-up enquiry, or follow-up treatment of any kind.
In other words, the condition which had arisen unexpectedly in December
2002 and is said to justify an absence from work for many weeks, was (on the grievor's
testimony) virtually alleviated by the first week of January, and had completely vanished
by March 6 - all without any medical intervention or treatment at all. Nor was there even
any follow up enquiry about this alleged medical condition, which, the grievor says,
justified being off work for all those weeks.
41
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,
The grievor visited Dr. Karson once again on March 20, 2003. Once again,
the visit was in respect of an unrelated matter. And once again, there was no discussion of
the grievor's depression/illness at all.
an March 20, the grievor told the doctor that she had been fired, and that
she needed a note saying that she was fit to return to work. If the doctor provided such
note, it was not introduced into evidence. Nor did the doctor provide any further
elaboration about the grievor's psychiatric condition between December 12, 2002, the
day that he last saw her, and her return from vacation in early March 2003. (For example,
there is nothing addressing the last two weeks of February, when the grievor was still on
vacation, but was expected to be at work, following her authorized leave of absence).
Now, ofcourse, Dr. Karson had no way of knowing what the grievor's
condition was from December 13, 2002 until March 6, 2003. The grievor was in the
United States for much of this period. However, the alleged mental illness (described as
of moderate severity), which, the grievor says, made her unfit for work for all 11 weeks,
was not even discussed after December 13, 2002. Thus, for the period after December 13,
I have nothing with respect to the grievor's actual fitness for work, except her own
testimony that she was feeling much better within a few days (i.e. early in January) -
together with the entirely implausible assertion, that 6 weeks later, after a full 9 weeks
off, she was still "too sick" to report for work for the last two weeks of February.
42
1
IV - Discussion and Disposition
I have carefully considered the evidence before me, and I find that the
hospital has made out the allegations upon which the grievor's termination was based.
In my view, it is more probable that not that the grievor was not "sick" as
she alleges, but rather was merely feigning illness, in order to secure a period oftime off
that matched that of her husband's leave of absence, so that the two of them could go on
a planned vacation.
I am not persuaded that Dr. Karson's opinion is sustainable, or that it
accords with the weight of the evidence. In his zeal to accommodate his patient's wishes,
the doctor allowed himself to be manipulated, and misled.
It seems to me that this is the most probable explanation for the sequence
of events outlined above - including the grievor's failure to mention to Dr. Karson the
already agreed upon 6 week leave of absence; her suppression of the December 2 note;
her withholding of the December 18 physician statement; her refusal to discuss the
situation or share any information with the hospital; her completely implausible
testimony that as of December 28, 2003 when she left the country for a vacation planned
weeks before, she had no idea at all how long she would be off work; and her equally
implausible assertion of disabling illness for the last two weeks of February.
43
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,
I
I find that the grievor was anxious to go on a planned vacation with her
husband for the period December 28 - March 1; that she was angry and frustrated when
the hospital did not authorize that leave; that she and her husband decided to go anyway;
and that thereafter, she engaged in a course of conduct designed to secure that objective.
The grievor went to her doctor. She said that she was depressed and
needed time off (carefully omitting the fact that she already had six weeks off). She
persuaded him to ¡)UPport a period of absence coincident with her husband's leave (and
her earlier leave request - which she also failed to mention). She eventually obtained a
doctor's note ("Shirley will be off work due to illness as of today") that seemed
sufficiently open-ended to cover the entire period that she planned to take off work
(including the last two weeks of February); then she calculated that when she returned
from her motor trip in the United States, she could obtain a "back to work" note in much
the same way, and no one would question it.
In my view, it is too much of a coincidence to suggest - as the union does
- that the time off ultimately taken is completely legitimate; for there are simply too
many features in the evidence which point in the opposite direction: the grievor's failure
to fully inform the doctor; the timing coincidences; suppressing the December 2 note;
blocking the December 18 report; refusing to supply any information about her absence
at all; and the grievor's prevarication in her testimony in this proceeding. All of these
elements undercut the grievor's position. So does the absence of any objective basis for
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the doctor's diagnosis; the selection of a period of leave of absence (but not then a
"disability"), for the precise dates that the grievor suggested; the fact that the proposed
leave from December 28, 2002 - March 1, 2003 was "prospective"; the absence of any
treatment of any kind, at any time; the grievor's remarkable recovery, only a few days
into her vacation, yet her alleged unfitness to report for work for the last two weeks of
February - 6 weeks later, and the last two weeks of her planned vacation; the grievor's
ability to carry on all of her vacation activities without impairment; the fact that upon the
grievor's return, this rather significant "illness", which supposedly justified weeks off
work, had not only disappeared without any treatment at all, but was not even mentioned
in her next two visits to her doctor; and (to be fair to the doctor), Dr. Karson's own
reservations a bout h ow to deal with the situation (hence his feeling that hew as "in a
bind"). For although he was not fully informed of what was going on, his reservations
about describing the grievor as "disabled" were entirely justified.
I find therefore that the grievor did not adequately report her absence to
the hospital, and that she did not provide a satisfactory reason for her prolonged absences
from work. She was not sick and unable to work, as she said she was from December 13
2002 until her return from vacation on March 1,2003; and, in particular, she was not sick
and unable to work for the period of her pre-planned vacation from December 28, 2002
until March 1, 2003. Nor was there a satisfactory reason advanced for the period of
absence immediately preceding her departure from Canada, or for the last two weeks of
February, when she knew that she was scheduled to be back at work, after her authorized
leave of absence was to expire.
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The reasons that the grievor advanced do not withstand scrutiny, and are
not supported by the weight of the evidence. They are not "satisfactory".
***
So what does that mean for the disposition of this case?
***
Let me begin by observing that this is not a case where the collective
agreement is silent about employee absences, or how they are to be dealt with. Nor is this
a case where the arbitrator has carte blanche to dispense "palm tree justice". My task is to
apply the terms of the collective agreement to the situation before me. And in the present
case, there is a provision which is directly applicable to the conduct under review.
Article 10.08 of the collective agreement has specifically addressed the
issue of employee absences from work. The parties have negotiated a contractual regime
that requires the employee to notify the hospital when the absence exceeds three
consecutive days, and to provide a "satisfactory" reason for that absence. It is a two-
pronged obligation; and if the employee does not meet these requirements, then the
collective agreement provides that s/he "shall lose all service and seniority, and shall be
deemed to have terminated".
In the instant case, therefore, the grievor was obliged to tender a
"satisfactory" reason for being off work after December 13 at least up to December 28,
and also a satisfactory explanation for the additional two weeks off that she had at the end
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of February, when she likewise asserts that she was unfit to work. If she did not do so,
she faced the consequences spelled out in Article 10.08(e).
The "deemed termination" contemplated by Article 10.08 may seem to be
a harsh result. However, it is the one that the parties have clearly negotiated; and, it
serves to underline how important absenteeism (whatever causes it) can be in this
hospital context. After all, the employees are providing an essential service and are
ministering to the needs of the patients; and against that background, unexpected or
unjustifiable absences may have more operational significance than in other work
contexts. And in any event, there is nothing unreasonable about requiring an employee
who is going to be off work, to notify his/her employer that s/he will be absent and to
supply a "satisfactory" reason for that absence.
However, I decline to speculate about what may have motivated the
parties to adopt Article 10.08(e). It is clear that the parties to this collective agreement
have negotiated a legal regime in which employees must inform the hospital of their
absences and must provide a "satisfactory reason" for those absences; and if they do not
do so, their continuing employment will be in jeopardy.
*
However, let me be clear about one interpretative point that surfaced
during the course of argument.
*
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I do not think that the particular phrasing found in Article 10.08 (e)
["satisfactory to the hospitar], gives the employer an unfettered discretion to decide
what is "satisfactory". It seems to me that the validity or sufficiency of the employee's
reason for absence - what is "satisfactory" in a particular case - must be determined on an
objective basis. If the explanation advanced by the employee is objectively reasonable, it
is not open to the hospital to reject it, even if the hospital disagrees; moreover, given the
vagaries of life, the elasticity of the word "satisfactory", and the serious consequences
flowing from the application of the clause, there will usually be a "range of
reasonableness" about which individuals may reasonably differ. So long as the
employee's explanation is true, and falls within that range of reasonableness, the
employee's job is not in jeopardy.
So, for example, I doubt that an employee could be said to fall under
Article to.08(e) if s/he were honestly following his/her doctor's advice, so long as that
advice itself was supportable - even if further consideration shows that the doctor was in
error. Indeed, absent some transparent scheme or misrepresentation (of the kind that we
see in this case), a doctor's advice, honestly sought and reasonably given, will ordinarily
shield an employee from jeopardy - at least until the medical situation is clarified. In my
view, the word "satisfactory" is broad enough to encompass good faith medical
misjudgements, upon which the employee can reasonably rely.
Similarly, with respect to "notice". An employee cannot reasonably
predict how his/her illness will progress, or how long it will take for recovery; and it is
48
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not difficult to envisage scenarios where, because of the nature of the illness, an
employee may not be able to give any "advance" notice at all. Accordingly, all that an
employee can be expected to do under Article 10.08 is to act in good faith, and give such
notice as is reasonable and possible in the circumstances. And where the absence exceeds
three days, s/he must also provide a satisfactory reason for it.
Had the parties meant to make the hospital's application of Article 10.08
unreviewable, then they would have said so, clearly and explicitly. But they have not.
And in my view to adopt a more stringent interpretation than the one articulated above,
might well collide with the protections given disabled workers under the Human Rights
Code.
On the other hand, I do not think that obtaining a doctor's note is a
"complete defence" in all cases - which is to say, that a doctor's opinion conclusively
determines what is "satisfactory". While an arbitrator does not have carte blanche to
dispense palm tree justice, neither does a doctor - however sympathetic he may be to his
patient's wishes. The explanation and justification for an absence from work must be
bona fide and reasonably sustainable on the evidence. The doctor's discretion is not
unfettered or unreviewable either.
In my view, therefore, the reason for being off work is not automatically
"satisfactory", merely because a doctor says that the employee should have time off
49
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work. That assessment, too, must be within the realm of reasonableness; and, as in the
instant case, may depend upon what the patient tells the doctor about her condition.
A physician's statement is ordinarily entitled to considerable weight; and
even if questioned, may well justify the employee being off work, while the opinion is
being explored or verified. However I cannot conclude that a doctor's note will always,
and inevitably, provide a "satisfactory" reason for every absence, in every case. Nor will
it completely immunize the employee from scrutiny regardless of what else is happening
at the time - not leaSt because, as Ms. McKelvey pointed out: and employee's fitness for
work, and his/her fitness for a particular job, are two different things; and an employer is
under a legal obligation to find alternative work for a disabled employee, just as the
employee may be required to cooperate in that search.
The fact that an employee suffers from some disability does not mean that
there is no work available for him/her to do; and in fact, the reported arbitration decisions
are replete with examples ofthe kinds of accommodations that employers may be entitled
or required to make, so that an employee can continue to work. That is not something that
a doctor can necessarily determine unilaterally (at least without some communication
with the employer); and in the instant case, of course, neither the doctor nor the hospital
had any opportunity to even consider that alternative.
Be that as it may, the link between disease/disability and absence from
work, in simply not as direct and automatic as the union says it is.
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In summary, then, unless the employee notifies the hospital as s/he is
required to do, and has an "objectively satisfactory" reason for the absence, then s/he will
be exposed to the negotiated consequence of this default. A doctor's note goes a very
long way to satisfying the latter requirement, but it is not necessarily conclusive -
particularly where, as here, the only medical document tendered to support the grievor's
time off work, is the note of December 12 ("Shirley will be off work due to illness as of
today"); and the grievor intentionally frustrated all efforts to secure further information.
I think that it is important to recognize that the grievor's own conduct is
not "neutral" here - or without consequence. Because, one of the difficulties for the
grievor in this case is that while Dr. Karson might have provided a satisfactory reason
(i.e. one that would have survived scrutiny) if he had been permitted to do so; he was not.
And in my view, the reason he was not, is that the grievor strongly suspected that if Dr.
Karson had been asked for any further justification, he would have become more fully
informed about the background, and would probably not have supported the 9 week leave
of absence that the grievor was seeking --especially in light of his own reservations, and
the fact that he did not know that the grievor was already going to be off for six weeks.
That is, I think, the reasonable inference from his testimony that if he had known that the
grievor had already secured a 6 week leave of absence, he might have acted differently.
For what is striking about this case is not only the absence of any objective
evidence to support the grievor's prolonged absence, but also the extent to which the
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grievor went to prevent any objective or more thorough assessment of her situation.
Having secured a note that she thought would cover her vacation plans, she was
determined that no one would be able to go behind that note or assess its validity.
*
In the instant case, the grievor did not have a satisfactory reason for her
prolonged absence(s), and she made no effort to notify the hospital of the nature or extent
of those absences, or when she was likely to return to work. The grievor's position was
that she did not have to tell the hospital anything at all - not about the period from
December 13 to January 4; not about how ill she was (or wasn't) for the period of
authorized vacation leave from January 4 - February 15; and not about the "add-on"
period from February 15 - February 28, which comprised her last two weeks of vacation,
when she also claims that she was still too sick to go back to work. The note of
December 12 does not withstand scrutiny, and does not meet the requirements of Article
to.08(e).
However, in my view, when the grievor took that rigid position, refusing
to explain what was going on, she brought herself within the ambit of Article 10.08(e),
- .
and she was putting her job on the line. She was taking the risk that the cryptic note of
December 12 would not meet the requirement to have the "satisfactory" reason for the
prolonged absence which followed. And her intentional non-cooperation prevented her
physician from either questioning or from bolstering the "medical case" for taking so
many weeks off.
*
52
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"
Leaving aside for now the particular consequences spelled out in Article
10, it seems to me that the clause itself, is pretty clear. The provision also reflects the
bargaining parties' judgment about the seriousness of unwarranted absenteeism, as well
as the anticipated employer response when an employee is off work without a satisfactory
reason. The parties themselves have prescribed that employees who engage in that kind
of behaviour, are risking a termination of their employment; and in my view, the
grievor's conduct falls within the parameters of Article 10.08(e).
*
That said, is there some "external legal reason" why the clause should not
be applied in accordance with its terms? For example, does the clause collide with the
Ontario Human Rights Code - either generally, or in application to the particular
circumstances ofthis case? In my view, the answer is no: the grievor's situation does not
. -
engage the provisions of the Ontario Human Rights Code.
*
First of all, for the reasons already outlined, I am not persuaded that the
grievor was legitimately "sick" or "disabled" for the period of time that she was off work.
She did not have a "disability" from December 13, 2002 to March 1, 2003, so as to attract
the protection of the Code; and in particular, there is no satisfactory evidence of disability
in December just prior to her departure for the United States - or for the last two weeks of
February, when she chose to remain on vacation, instead of returning to work as she was
scheduled to do. Rather, I accept the hospital's submission in that regard, and find that
the purported illness was simply a pretext for obtaining a leave of absence to which the
grievor was not otherwise entitled - and which had, in fact, been refused.
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On the basis of the evidence before me, I doubt that there was any genuine
illness of any kind, (as opposed to disappointment and unhappiness that the grievor did
not get what she wanted), but there was certainly no proven "disability" of such kind as
to warrant the leave of absence discussed above. It is not enough for the grievor to assert
that she is "disabled" or "too sick to work"; the evidence must show that she is. And it
doesn't.
To reiterate: I do not think that an adjudicator should lightly disregard the
diagnosis or recommendations of a physician. However, a physician's opinion is neither
infallible nor inevitably determinative - particularly where, as her~, it depends almost
entirely on subjective expressions of feelings by a patient who was not being fully candid
with her own physician, let alone with this board, and then acted intentionally to frustrate
any further assessment of the doctor's opinion.
In my view, despite the doctor's assessment, (which itself was somewhat
equivocal and a "compromise" for the reasons that Dr. Karson advanced), I am unable to
accept the grievor's assertion that she was "sick" from December 13,2002 until March 1,
2003. That assertion is simply inconsistent with the weight of the evidence; and requires
me to accept the accumulation of "coincidences" mentioned above. And, once again, it is
not without significance that the grievor was not completely forthcoming with this board
of arbitration or with her own physician. While Dr. Karson may not have had any reason
to disbelieve the grievor, neither was he fully "in the picture".
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It is also important to remember that the grievor was not terminated solely
for failing to provide a "satisfactory" explanation for her absence for a day or two. There
was also a complete failure - and refusal - to communicate any information at all about
the alleged illness, even though that information would have been kept confidential.
The hospital questioned the validity of the grievor's disability, but it was
also concerned that the grievor had refused to share any information about the impact of
her alleged illness (whatever it was) on the hospital-leaving Ms. Eakley to ponder what
that cryptic note might mean, and scramble to fill any scheduling gaps. Moreover, the
grievor was well aware of these operational problems. That was the reason why the
hospital could only give her six weeks off, instead of the nine weeks off that she had
originally requested.
The grievor knew that she was being asked to supply information; and she
knew the operational consequences of leaving the hospital uncertain. But she was not
concerned about that. She suppressed the December 2nd doctor's note; she withheld the
"physician's statement" of December 18; she declined to discuss her situation in any
way; and she wrote a letter making it plain that she intended to supply no information at
all. And she never did.
It seems to me therefore that the grievor's actions where calculated, wilful,
and intentionally provocative; and that she knew, or ought to of known, that she was
55
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putting her employment in jeopardy. Yet in the course of this proceeding there was no
recognition that she was asserting her own interests and ignoring those of her employer-
an employer which, be it noted, had tried to accommodate the grievor by approving six
weeks off, in the approximate time frame when she wanted to go on vacation. The
hospital was both reasonable and flexible, while the grievor was neither.
These factors are more directly relevant to the ')ust cause" basis for
discharge, which the employer asserts in the alternative. However, it seems to me that
they also colour the validity and adequacy of the grievor's efforts to provide an
explanation for her various periods of time off. To the extent that the agreement casts an
"onus of explanation" on the grievor, the way in which she went about it, colours the
explanation that she eventually g ave. And a Iso explains why the employer reacted the
way it did.
*
In any event, in view of the foregoing, I do not think that the grievor is
being a "discriminated against" or "penalized" because of any illness or disability; nor
has the employer failed to accommodate a disability. Indeed the grievor finds herself in
her current predicament, because she was not disabled, but claims that she was.
Moreover, even if the grievor's illness were legitimate - which I find it was not - any
ability to accommodate her condition, (for example, by changing her work assignments)
was thwarted by her own refusal to cooperate.
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{"
<'-!,
There is no automatic connection between having a disability and being
off work, if there is alternative work available; but in any event, the grievor did not seek
or want accommodation. She wanted a vacation leave of absence that was the same as her
husband's. And she was determined to take that vacation even if it meant putting her job
at risk.
*
To be clear once again: there is no doubt that if there is any "collision" or
operating incompatibility between the terms of the collective agreement and the Ontario
Human Rights Code, it is the Code that must prevail. Similarly, if an employer's decision
is inconsistent with the Code (i.e. whether it is based upon a provision in the agreement
or not) that decision cannot stand. However, in my view, the grievor's behaviour in this
case, does not attract the protection of the Ontario Human Rights Code.
Or, to put the matter another way: the application of the collective
agreement and the employer's decision to discharge the grievor, do not contravene the
Code in the circumstances of this case. The grievor is not being "penalized" or
"discriminated against" for a disability; rather the terms of the agreement are being
applied to a scheme to get an unwarranted sick leave, and a refusal to provide information
that the employer could legitimately require. It is the grievor's behaviour, not her alleged
disability, that attract sanction.
In conclusion, I find that the provisions of Article 10.08 are engaged, and
that termination is the penalty that is specifically mandated by that clause.
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The behaviour in which the grievor engaged, results in a deemed
tennination of her employment.
In view of that finding, it is unnecessary to consider the hospital's
alternative argument that the termination can also be justified on a "pure just cause
basis", or the union's alternative argument that even if there was ')ust cause" for the
discharge, the penalty should nevertheless be modified.
For the foregoing reasons, the grievance is dismissed.
~
Dated at Toronto this ~ day of July 2004
R. O. MacDowell (Sole Arbitrator)~
58