HomeMy WebLinkAbout2004-2878.Pruski.06-07-13 Decis
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
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GSB# 2004-2878
Union# G-8504-SOE
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLEC TIVE BARGAINING ACT
Before
THE GRIEVANCE SE TTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Pruski)
Union
- and -
The Crown in Right of Ontario
(Greater Toronto Transit Authority - GO Transit)
Employer
BEFORE Vice-Chair
Belinda Kirkwood
FOR THE UNION
Simon Blackstone
Green & Chercover
Barristers and Solicitors
FOR THE EMPLOYER
Glenn Christie
Hicks Morley Hamilton Stewart Storie LLP
Barristers and Solicitors
HEARING
September 14, 2005; January 24 and
April 18, 2006.
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Decision
The Grievor suffered from Lymphatic Hodgson’s di sease, cancer of the blood, and was off work
for two years. After several r ounds of chemotherapy and a stem ce ll transplant, he returned to
modified duties in May 2004. He was advised by his doctor that he had to attend Princess
Margaret Hospital for follow up care, assessment and treatment, if necessary. Initially, such
visits took place at one week inte rvals, then two week intervals, then three month intervals and
finally at six month intervals. These visits must take place on Fridays, the only time at which a
team of doctors, and health care professionals, wh ich include the transplant co-ordinator, nursing
staff, stress management advisors, a psycho-soci al consultation, nutritionist, sociologist, and a
radiation oncologist from the Princess Margaret Ho spital, are available to carry out the tests and
provide treatment as required.
Initially, when the Grievor was on a modified retu rn to work which did not require him to work
every day, the appointments fell on his days off. After the Grievor returned to work on a full
time basis, the Friday appointments conflicted with his work. The Grievor asked the Employer if
he could use his short-term sick benefits to co ver his absences for these medical visits. The
Employer did not deny the Grievor the time off to attend these appointments, but the Employer
denied his request to be paid for those absences through the use of his s hort term sick benefits,
and encouraged him to use his vacation bank or such other leave to cover his absences. The
treatment of the Grievor’s absences to make these appointments has not been uniform. The
Grievor has been given the day o ff without pay, he has been paid for the day off by Great West
Life and he has taken floater days.
The Union claimed that the denial of the use of these sick leave benefits was a violation under
Articles B6.0 and B6.02, which state:
ARTICLE B6.0 SHORT TERM SICKNESS PLAN (S.T.S.P)
B6.01 When a full time employee h as completed at least ninety (90)
consecutive calendar days of employment, he/she shall be entitled to sick
leave of absence and, provided he/she meets the qualification criteria, shall
be entitled to sick credits.
Employees hired after December 31, 2003…
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B6.02 When an employee is unable to a ttend to his duties due to sickness or
injury, he shall be entitled to leave of absence with pay subject to provisions
outlined below:
- that the qualifying period of ninety (90) consecutive calendar days of
full-time employment as outlined in B6.01 has been satisfied
- that the qualifying days excluded vacation and any approved leave of
absence without pay
- that days worked before and afte r such leave shall be considered
consecutive
- that if an employee is absent fro m work due to sickness or injury
during the qualifying period, then the qualifying days begin again.
The Issue:
Article 6B.02 of the collective agreemen t states that in order to be en titled to a paid sick leave of
absence the employee must be “unable to attend to his duties due to sickness or illness.”
Therefore the Grievor’s situation must meet two criteria. He must be unable to attend to his
duties, and, the inability to do so, is due to a sickness or illness. The Grievor’s absences have not
been due to his inability to do his assigned tasks at work, but have been as a result of his
necessary attendance at the Princess Margaret Hospital on specific days which conflict with his
work. Therefore, the question is whether these attendances fall within the purview of Article
6B.02.
Relevant Arguments:
Union Counsel argued that the Grievor is entitled to use his sick leave as the Grievor meets the
qualifications as set out in Article B6.02, that “he is unable to attend to hi s duties due to sickness
and injury”. Union Counsel submitted that the Grievor is “unable to attend to his duties” as he is
ordered by his doctor to ha ve his “cancer in remission” treated on these specific days, and, his
absence, is “due to sickness”, that is, due to his cancer, which is in remission.
Union Counsel submitted that the Employer grante d the Grievor extensive sick leave while he
was in remission and was not working, and to now deny him the right to use his short term
benefits in the form of paid leaves of absence to cover thes e medical appointments as he has
returned to work, is absurd.
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Union Counsel submitted that these appointments were a necessary and integral part of the
aftercare for the illness, and his treatment should be viewed as a whole and not in segments. In a
similar fashion, Union Counsel submitted that it was held by Arbitrator Rayner in Abitibi-
Consolidated Inc. v. International Assn. of Machinists, Local 771 (Pattison Grievance) [2001]
O.L.A.A. No 908, File No. MPA/Y102641 (Rayner) that the requirement to attend the hospital
the day prior to surgery to complete the paperw ork, for “pre-documentation”, was considered an
integral and necessary part of the operation and was covered by sick leave, even though the
appointment was brief, and travelling time to the appointment was lengthy.
Union Counsel submitted that si milarly, as in the Board in Peel Board of Education and
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O.S.S.T.F. (Lambert) [1998] 73, L.A.C. (4) 183 (Albertyn) held, “sickness” covers a chronic
illness. “Sickness” in the Grievor’s case includ es ongoing remission which requires vital, but
relatively minor and frequent monitoring.
On this issue, Employer Counsel submitted that the scope of compensation must be determined
by the language of the collective agreement. The Employer and the Union agreed in the
collective agreement, that in order to receive sick pay, the employee must be unable to work
due to sickness. Employer’s Counsel argued that in Article B6.15 of a prior collective
agreement, the collect ive agreement of Go Transit and Amalgamated Transit Union, Local
1587 that applied from December 30, 1995 to March 31, 1996, the parties had agreed to allow
employees up to three and a half days absenc es of up to four hours for doctor and dentist
appointments. However, this benefit was rem oved in the following co llective agreement, Go
Transit and Amalgamated Transit Union, Local 1587 which applied from April 1, 1996 to
April 2, 1999, Article B6, and ha s not been included in subse quent collective agreements.
Therefore, Employer Counsel submitted that there is no longer any entitlement to payment for
absences to attend a doctors or dentists appointments.
Employer Counsel submitted that Article 6B.02 requi res the employee to have the disease at the
time the claim for sick pay is being made. Under this provision of the collective agreement the
benefit is to provide compensation to a person who is ill or injured and is incapable of working.
Employer Counsel submitted that this article does not provide compensation to attend a medical
appointment to an employee who had a disease which may or may not arise in the future.
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Employer Counsel submitted that the Grievor ha s been “disease-free” from October 2003.
Employer Counsel submitted that “cancer in remission”, as referre d to by Union Counsel, is not
a disease, and there was no evidence to support th e Union’s position. At most, the Grievor has a
higher statistical probability for developing cancer again.
Employer Counsel submitted that as of May 2004, the Grievor had returned to work and was
able to perform his duties. Employer Counsel submitted that the Grievor does not suffer from
any sickness or injury that prevents him from coming to wor k. Although there was evidence that
the Grievor had a testosterone de ficiency, there was no evidence that his testosterone deficiency
resulted in impairment at work. Employer Counsel submitted that although the Grievor had
developed sweats after the transplant, they have now been resolved.
Employer Counsel submitted that for a long peri od, the Grievor had a condition that prevented
him from working, and he received treatment for that condition and received the appropriate
benefits, but he is now well, and is in the same position as any other employee, such that he has
to use floater days, personal leave, vacatio n leave and unpaid leave to cover doctors
appointments.
Employer Counsel submitted that as in the Bell Canada and Communications Workers of
Canada(unreported) October 23, 1979 (Burkett) case, as the Grievor is well enough to work,
medical appointments for the purposes of monitori ng do not of itself give rise to sick leave
entitlement.
Furthermore, in the Grievor’s case, it is not an illness that prevents hi m from coming to work,
but the schedule set up by the doctors and as such is not entitled to sick leave benefits under the
collective agreement (Re General Bakeries Ltd. and Milk and Bread Drivers Union, Local 647 2
L.A.C. (3d) 444 (Rayner)).
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Decision:
In the Grievor’s case, as part of the treatment of his cancer, the Grievor was required to follow
a prescribed protocol set both by Dr. Keating, the Gr ievor’s attend ing physician, and Head of
the Medical Department of Oncology and Haemat ology at the Princess Margaret Hospital, and
the Princess Margaret Hospital, for patients who have had cancer and who have undergone
chemotherapy and stem cell transplants. This pr escribed protocol requires the patient to be
subjected to a battery of tests on regular occasi ons for the first five years after the stem cell
transplant, even when the patient is in remission. Dr. Keating testified that it is also important
that the assessment set out by the Princess Margaret Hospital be followed at the Princess
Margaret Hospital, and not through the family doctor, as the Princess Margaret Hospital is
better equipped and more knowledgeable in dis cerning symptoms that suggest a reoccurrence
of the cancer or the development of a new cancer. Ini tially such visits are weekly, then every
three months, then every six months, and ultimat ely annually. The presen t protocol continues
for five years while the patient is at a much hi gher risk of relapse and is more susceptible to
developing other forms of cancer, which may be a re sult of the initial cancer or its treatment.
The risk of relapse diminishes significantly after five years.
As part of this protocol, the Grievor is required to go to the Princess Margaret Hospital in order
that the medical team can monitor his physical condition and perform medical tests to detect
any reoccurrence of this type of cancer, and for other malignancies, for cat scans to assess the
lymphatic system and to monitor the side e ffects created by the stem cell procedure.
This protocol is not a doctor’s visit where the pa tient visits the doctor to consult with the doctor
about his condition, but requires attendance at the Ho spital to be subjected to a series of tests,
with the tests being analyzed and treatments give n as necessary. For example, as seen in the
Grievor’s situation, such tests have revealed testosterone deficienci es, a by-product of the
cancer and its treatment, and as such he is bein g treated for those deficiencies as well as for
excessive sweating, another by-product of the can cer and its treatment. Although the Grievor’s
condition is monitored during these visits, it would be artificial to differentiate these
attendances from the Grievor’s original post operative assessments and treatments when they
are part of the original and ongoing assessment a nd treatment. There can be no differentiation
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between these attendances and the actual treatm ent for cancer until the five-year mark set out
by the protocol has been reached.
Employer Counsel’s argument was based upon the pr emise that no one has perfect health and if
the individual is capable of working, but needs to visit a doctor to be followed or to be
monitored, that individual does not fulfill the crit eria set by the collective agreement that he is
“unable to perform his duties”, “due to illne ss.” This argument was based upon the analysis
made by Arbitrator Burkett in the Bell (supra) decision, of the purpos e of doctors’ visits, and
when such visits can be considered to be due to illness.
The issue before Arbitrator Burkett was whet her the grievor had been hospitalized for the
treatment of Crohn’s disease, and who, after hi s return to work, had arranged for a follow up
appointment at his doctor’s clinic was “absent on account of illness”.
In paragraph 9, Arbitrator Burke tt considered whether visits to the doctor can be considered as
being absent on account of illness. He characterized the types of doctor’s appointments as
follows:
It is necessary to distinguish thr ee types of doctor’s appointments.
Employees may visit the doc tor because of the onset of health problems
which are making it difficult or impossibl e for them to carry out their daily
functions…Employees may also visit th e doctor after having been confined
because of sickness in orde r to be advised as to whet her or not they are fit to
return to their normal routine. Em ployees may also vi sit the doctor when
they are well enough to work but su ffer from some ongoing health problem
which requires periodic monitoring.
Arbitrator Burkett then held at paragraph 10, that “sickness” referred to a state of health which
rendered a person unable to attend at work and accordingly, the entitlement to payment under
the collective agreement, occurred when the employ ee is unable to work because of the state of
his health. Accordingly, Arbitr ator Burkett held that sick pay applied to the first two
categories, but not to the third. Finally Arbitr ator Burkett concluded that the grievor missed
work not because of his health was such that he could not work, but because he scheduled a
doctor’s appointment during his scheduled working hours and he was not prepared to work at a
different time in order to make up for the lost work time.
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I do not disagree with Arbitrator Burkett’s anal ysis, and it does provide a useful tool when
considering whether a doctor’s visi t is due to illn ess. However, the anal ysis cannot be applied
blindly without looking at the facts in issue. I find that the facts and the findings in the Bell
(supra) decision of Arbitrator Burkett are distingu ishable from the case at hand. Although the
Grievor was undertaking a series of tests which we re required to determine the status of his
cancer, and was in that sense being “monitore d”, the Grievor was following a prescribed
protocol for a period of five ye ars that originated from his original illness and these tests were
an integral part of his treatment. This is not a doctor’s visit in the sense of monitoring as put
forward by Arbitrator Burkett. However, afte r the completion of the five year period, the
analysis of Arbitrator Burkett would be applicable as the initial protocol would have been
completed, and the Grievor’s situ ation would fall into the third category, whereby the Grievor,
as other employees may require annual visits to a doctor, but the focus of such annual visits is
tailored to the individual a nd may in his case include monitoring his condition. As such, under
the current collective agreemen t, after the completion of the five-year period, the Grievor
would not be entitled to paid sick leave to attend these medical appointments.
Arbitrator Burkett’s analysis on the reasons fo r attending doctors has also been applied in Re
General Bakeries (supra); Re Simcoe District School Board and Ontario Public Service
Employees Union, Local and in 330 Re Municipality of Metropolitan Toronto (supra), cases put
forward by Employer Counsel, but, again, in each case the facts are very different from the
Grievor’s situation.
In Re General Bakeries (supra), Arbitrator Rayner found th at the grievor who had chronic
migraine headaches, was not absent from work due to his chronic migraines, but as a result of a
conflict between his work schedule and the sche dule of the specialist, and therefore was not
entitled to paid leave for a “verified illness”, as required under the collective agreement. At
first glance, this case appears similar to the case before me, in that the only day available for
the specialist to see the grievor in Re General Bakeries was on the grievor’s work day, and in
the case before me, the Grievor had no flexibilit y in determining when he could be treated.
The only possible time at which he could undergo th e tests and be assessed was when the team
of health care specialists were assembled on Friday s. However, the two cases are different. In
the Re General Bakeries (supra) case, the grievor had chroni c migraine headaches and saw his
family doctor. He made a decision to see a sp ecialist after he had spent two days in hospital
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and his supervisor at work suggested that he s hould see another doctor. They are two separate
instances. One is the hospitalization for chronic headaches, and the other is a separate decision
to see a specialist. In Re General Bakeries (supra) case, the grievor was not assessed and did
not receive treatment as part of the treatment he received at the hos pital for his migraine
headaches, as was the Grievor’s case.
In Re Municipality of Metropolitan Toronto (supra) there was also a difference between the
original cause of paid leave given, and subs equent dentist appointme nts, which were not
included under the sick leave pr ovisions. The grievor had broken a molar. She left work and
the next day the dentist treated the problem on a temporary basis. Subsequently, she suffered
pain and swelling, and ultimately the tooth was extracted, and the dentist then decided to
replace the tooth with a bridge prosthesis. Ar bitrator Davis held that the requirement for the
bridge was only discovered because of a subseque nt infection and was not part of the original
treatment. Again, her situation is unlike th e Grievor’s whose treatment and appointments
directly flowed from the original di agnosis and treatment of his cancer.
Again, Re Simcoe District School Board and Ontari o Public Service Employees Union, Local
330(supra) is not of assistance as the facts and the collective agreement are very different from
the case before me. In that case, the grievor un successfully attempted to use sick leave benefits
for her own personal reasons, and not to cover absences arising from her own illness. In that
case, the grievor’s work schedule was changed w ith the result that it prevented the grievor
from being able to take her son to karate, which was necessary therapy for the child’s
development.
In summary, on the facts before me, the Grievor meets the criteria set out in Article 6B.02, that
he is “unable to attend to his duties due to si ckness or injury” as he is required to attend the
Princess Margaret Hospital and follow the prot ocol set by his doctor and the Hospital for a
period of five years, up to October 2008. The Grievor’s inability to attend to his duties is
directly due to his cancer and his treatment ar ising from the chemotherapy and the stem cell
transfer. Furthermore, the fact that the tests and treatment do not impact the Grievor’s ability
to work has no effect on the issue before me, as the testing and treatment, which continues for
five years, is an integral part of the Grievor’s initial treatment for cancer. Similarly, as it was
found by Arbitrator Rayner in Abitibi-Consolidated(supra) that the “predocumentation” was a
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necessary part of the operation that the grievor was to undertake, and was integral to the
operation, the after-care for the five years after the stem cell transplant as set by the Princess
Margaret Hospital was integral with the Grievor’s treatment.
Accordingly, within the five-year period from th e stem cell transplant, if the appointments to
attend the hospital, arisi ng from the protocol, fall on days th at the Grievor is supposed to be
working, he is “unable to attend to his duties due to an illness” and is th erefore entitled to sick
leave with pay.
The Union put forward alternative arguments that the Grievor suffered a handicap and a
disability and was discriminated against when he was denied the right to use his sick leave
benefits to cover his absences to see the doctor. In light of my decision, it is not necessary to
make any finding on the issues flowing from these arguments.
As a result, therefore this grievance is upheld. I will remain seised with the implementation of
this grievance.
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Dated at Toronto, this 13 day of July, 2006
Belinda Kirkwood, Vice-Chair