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HomeMy WebLinkAbout1991-2937.Flett.93-03-01 ONTARIO EMPLO¥£S DE LA COURONNE CROWN EMPLOYEES OE L 'ON TARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS lEO DUNDAS STREET WE~T, SUITE 2100, TORONTO, ONTARIO. MSG IZ8 TELEPHONE/T~-~..~-~HON£: (4~6~ 326-~38~ 180, RUE DUNDAS OUEST, ~UREAU 2~GO, TORONTO (ONTAriO)+ MS~ IZ8 FACSIMILE/T~L~COPIE ,' (~ t6) 326- 2937/91 IN THE MATTER OF AN~%RBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Flett) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE H. Finley Vice-Chairperson J. Laniel Member D. Clark Member FOR THE P. Munt-Madill GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors ~OR THE C. Slater RESPONDENT Senior Counsel Legal Services Branch Management Board of Cabinet HEARING November 18, 1992 January 14, 1993 GSB 2937/91 DECISION The Grievor, Mr. Terry Flett, is a Property Assessor in the Field Operations Division of the Ministry of Revenue. He grieves that he was denied sick leave credits in violation of Article 52 of the Collective Agreement for the following 7 days: December 23rd, 24th, 27th, 30th and 31st, 1991 and January 2nd and 3rd, 1992. The relevant portion of that article reads as follows: 52.1 An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of-absence with pay as follows: (i) with regular salary for the first six (6) working days of absence (ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence in each calendar year. Mr. Flett asks that these credits be applied according to the Collective Agreement and that his sick leave bank, rather than his vacation bank be debited. The evidence shows that Mr. Flett submitted a request for 1991/1992 Christmas/New Year's vacation in December, 1990, received approval in the spring of 1991 and in March, arranged flights and accommodation for himself, his wife and his twenty- year old daughter. This was a trip that he and his wife had made before, and it coincided with his wife's Christmas break from her teaching position. For his daughter, however, it was her first trip and her Christmas present. The flight was scheduled to depart on December 21, 1991, and to return to Ottawa on January 3, 1992. The Fletts were to reside at the condominium of a friend where they had previously vacationed. On December 19, 1991, Mr2 Flett became iii with a sore throat and respiratory symptoms of which he has a history and for which he has been referred to both a specialist and an allergist. Similar symptoms have caused him to be absent from work in the recent past. On the morning of December 19th, Mr. Flett telephoned early ~to report his illness and consequent inability to attend at work. He then made an appointment with his phys£cian, Dr. Della Zazerra. The following day, he reported his continued illness by telephone, as required, and visited his physician later in the morning. During an appointment which lasted, according to the physician's coding system, approximately ten minutes, he received a "Physician's Certificate of Disability for Duty" which indicated that the physician had seen him, was familiar with his condition, and was of the opinion that he was incapable by reason of illness to work at his normal occupation. This information was provided on a form with boxes for checking. The estimated date of return to work was given by the physician as January 4, 1992. Mr. Flett testified that his physician advised him to "rest and take it easy". He testified that he told his physician of his vacation plans and was told that the rest would do him good. His physician testified that he was unable to recall any mention of the vacation and that it was not recorded in his notes He explained that this would not being unusual given that he did not consider Maul to be a high risk destination from a medical point of view. In evidence, Dr. Della Zazzera, stated'that January 4th was selected probably in order to allow a follow-up appointment for which he himself, would not be available until January 6, 1992. Mr. Flett also receiYe~ a prescription for both an antibiotic and a cough suppressant/decongestant. Following his medical appointment, Mr. Flett went to his own office arriving sometime between 11.40 a.m. and 12.30 p.m., in order to give his medical certificate to his supervisor, Mr. Laflamme, or to Mr. Hillman, the commissioner, even though he realized that the sick leave would not be sanctioned at that time. It was important to him that someone in authority be aware 2 of his situation. This happened to be the day on which the office staff was holding its Christmas lunch, a fact of which Mr. Flett was aware, and at the time he arrived, no manageF.ent personnel were in the office, other than Nancy Andrusek, the .support staff manager, who did not have authority to deal with 'the matter. Ms. Andrusek testified at the hearing that due to a last minute change in plans, all other management personnel had left a short while before. Failing to find his supervisor or the commissioner at the office, Mr. Flett, after speaking with Ms. Andrusek for 15 minutes or so, placed, the certificate in his desk drawer along with his personal attendance register. He did not leave a copy or a note for his supervisor, nor did he requ~est that Ms. Andrusek deliver a message to his supervisor. On his way home, Mr. Flett had his prescription filled, and upon arriving home took his medication and went to sleep. Saturday, December 21st, was the Fletts' travel day. The family arose at 5.30 a.m. and was driven by a neighbour to Ottawa International Airport where they boarded their flight to Maul ~ia Toronto, Los Angeles, and Honolulu. They checked their luggage through to Maul, changed planes in Toronto and had brief stop- overs in Los Angeles and Honolulu. The travelling time was 17 hours including stop-overs which involved some walking and they arrived in Maui at 6.45 p.m., local time, where they retrieved their luggage, picked up a rental car and Mr. Flett drove to the condominium, although his wife was available to do so. on the way, they stopped off at a local pharmacy/convenience store where they purchased, at the pharmacist's suggestion, Tylenol, according to Mr. Flett, and Neo-Synepherine, according to Ms. Born-Flett, to relieve Mr. Flett's ear discomfort. They also purchased some basic grocery items. The Fletts arrived at their destination at approximately 9.00 p.m. local time or 2.00 a.m. Ottawa time. They had, by then been up and travelling 20.5 Hours. During this time, Mr. Flett had slept approximately 3 hours, lifted the five pieces of luggage briefly, driven, eaten less than usual, drunk some fluids but no alcohol and taken his 3 antibiotics as scheduled and cough suppressant/decongestant as~ needed. He also experienced considerable aural pressure and pain during and following the flight. This discomfort continued for the next 3 days. Mr. Flett retired shortly after his arrival at the condominium and slept until noon on December 22nd. He went to bed that evening at approximately 7.00 p.m. and at that time set his alarm for 3.00 a.m. local time, (8.00 a.m. Ottawa time) on Monday, December 23rd, to report his illness to the officeo Early, daily reporting is his normal practice when illness prevents him from attending work, although not normally at such a distance or subject to such a time difference. He arose at that time, telephoned and spoke to Mr. Laflamme, according to the reporting rules, indicating that his physician had advised 2 wee~s' rest and that he was asking for the 2 weeks off. When the question of continued reporting arose, he was told that he need not telephone daily as is the policy, but that he should report to M~. Hillman, on his return. He then returned to bed and slept until noon. Both Mr. Flett and his wife, Ms. Born-Flett testified as to the activities during their vacation and how they differed from their normal vacations in Maui. The evidence shows that Mr. Flett normally enjoys an active vacation as opposed to a sedentary one. On past vacations in Maul, he and his wife would also dine out frequently, and while Ms. Born-Flett enjoys relaxing on the beach with a book, Mr. Flett prefers to participate in sightseeing, scuba diving, surfing and snorkeling. Their compromise has been to plan alternating active and rest days. This vacation was different, for two reasons. In the first place, they were accompanied by Mr. Flett's daughter who was visiting Maui ~or the first time, and in the second place, Mr. Fiett was ill for at 'least part of the time, feeling generally miserable, devoid of energy, and taking medication. '£h~ presence of the daughter appears to have had little impact on the Fletts' plans, other than to have resulted in Mr. Flett's undertaking certain activities he might not have undertaken had she not accompanied them. Mr. Flett's illness did, however, alter his vacation activity, particularly during the first week. During the first week, he was suffering from a number of ~ymptoms and was also experiencing drowsiness from his elective medication. This resulted in his sleeping about 2 hours during ~ne daytime and retiring at about 7:00 p.m., considerably earlier than his wife and daughter. The family did not dine out during this week, opting instead to eat either in their condominium or in the complex, choosing foods which did not require an extended stay in the restaurant. Mr. Flett drove, when not drowsy from his medication, during the first week. At the end of the first, and during the second week, encouraged by his daughter's increasing boredom, and feeling that he was not providing the kind of holiday and Christmas that he had hoped to or that she had expected, Mr. Flett participated in 4 different excursions: Excursion 1 Friday. December 27th Day-trip to Haleakela Crater This four-hour trip began at 10.00 a.m. and involved a drive of some 38 miles of gradually increasing altitude, ending with a climb of 26 steps. The altitude is such that warning signs are posted advising slow ascent and caution to those with physical limitations. Ms. Born-Flett climbed to the top of White Hill, Mr. Flett, two-thirds of the way and his daughter, feeling drowsy because of the high altitude did not participate in the climb. In the past the Fletts have stayed at this tourist site for about 3 hours, but on this occasion, they only stayed 15 or 20 minutes partly due to the ear discomfort Mr. F'lett experienced. They had lunch on their return trip. Excursion 2 Sunday, December 29th Daw-trip to HaDa This outing consisted of a 55-mile drive of which Mr. Flett did a 5 larqe part, with a 45-minute stop for a snack and a brief viewinq the waterfalls, which involved a 15-minute walk. The Fletts set out at 10.00 a.m. and returned, according to Ms. Born-Flett, between 5.00 and 6.00 p.m.. Following this outing, Mr. Flett retired for the night at 7.00 p.m.. It was Ms. Born-Flett's impression, that although her husband's energy had not returned to his normal level at this point in their holiday, the medication seemed to be working. Excursion 3 Monday, DecemDer 30~ 1391 Boat Trip to M01okini Crater This excursion, which Mr. Flett decided to .participate in at the last minute, consisted of a brief drive and an hour and fifteen minute boat trip each way during which there was an opportunity for snorkeling o~ which Mr. Flett and Ms. Born-Flett took advantage. According to Ms. Born-Flett, her husband returned to the boat sooner than she did, which was not usual, and when she did she f0und him nauseous, and vomiting along with 3/4s of the other 30 passengers, in spite of the fact that he was wearing wrist bands ior sea-sickness. On the return trip a meal was available and, at Ms. Born-Flett's encouraqement, Mr. Flett did eat, and as a consequence, his nausea subsided. Excursion 4 Tuesday. December 3tst Fly and Drive Trip to the Kilauea Volcano on the Island of Hawaii The Fletts left for this trip at 9.00 a.m. and returned about 7.30 p.m.. It involved a drive to the airport, a brief, low- level flight, a drive at the other end, and the same on return. Mr. Flett drove part of the 30-mile drive. Tired on his return, Mr. Flett resisted his daughter's wish to go out to the local high-spots for'New Year's eve and the family spent the evening at the condominium, retiring at 12.30 a.m. on January 1st, 1993. As well as the above excursions, Mr. Flett, undertook surfing, 6 and boogie boarding, all for only a short time but some more than once on difierent days and mostly during the second week. He went in the pool at the complex on two occasions and went in the ocean briefly on three occasions. All of these activities affect Mr. Flett's ears and it is normal procedure for him to protect them with silicone seals, which he did. At some point during their stay, Ms. Born-Flett and Mr. Flett's daughter went on a whale-watching expedition, but Mr. Flett chose not to accompany them. Mr. Flett completed his 7-day programme of antibiotics during their stay on Maul, took his cough suppressant/ decongestant when required and took Tylenol for 'the first three days of their stay. He limited his alcohol intake to two beers during the trip. The Fletts departed from Maul on January 2nd, 1992 and arrived in Ottawa on Friday, January 3rd. During this trip, Mr. Flett did not experience aural discomfort although he did experience a feeling of claustrophobia initially. As well, his coughing appeared to have subsided and he was not complaining of a sore throat. He returned to work on January 6, 1992, and filed his weekly Personal Attendance Records, noting the sick leave on the last three slips and attaching the medical certificate. He was informed by Mr. Laflamme that management would not accept his sick leave and was told to change the sick days to vacation days. His Union representative advised him to make the change and note t~at he was not in agreement with the.use of the vacation days. Dr. Della Zazzera testified that he has been Mr. Flett's family physician since March 1988 and that he is familiar with his patient's job duties. He indicated that sore throats and coughing episodes have been on-going 'problems for Mr. Flett and that he had previously diagnosed his having bronchitis, which his diagnosis on December 20th, 1991. His notes, made at the time, indicated that Mr. Flett was zemain off work from December 20th to January 3rd and that as well as prescribing an antibiotic, and cough suppressant/decOngestant, he advised the use of a cold-mist humidifier, stating that he very probably 7 would have mentioned the increased consumption of fluids, whether or not a patient with Mr. Flett's symptoms were to travel. In response to questions as to the length of rest time prescribed, Dr. Della Za~zera testified he gave Mr. Flett "two weeks off" and that when he reviewed the matter, asked himself why. It would be normal, he testified, for him to "give ten days off work" for such an illness and that in retrospect, Mr. Flett's Certainly merited at least 7 to 10 days and that it was likely that Mr. Flett could have returned to work 7 to 10 days after December 21, 1991. He also indicated that his office would have been closed during the Christmas/New Years period and therefore he would not have been available to carry out a follow-up examination prior to January 6th at which time he did. He noted that Mr. Flett had a normal blood test but complained of having experienced sweating and chills on January 2nd and of a reappearance of his cough. He also testified with respect to Mr. Flett's ability to travel to Maul and his alleged inability, to attend his work. Dr. Della Zazzera made the point that the idea of remaining in one's house, with the physician making house calls, was outmoded and that it was, in fact, "a great idea to recuperate in a climate other than Gttawa's". In his opinion, the negative effects of lengthy air travel were outweighed by the positive effects of arriving and recuperating in a sunny, more humid climate than one is subjected to in the dryer homes of Ottawa. It was his opinion that the dehydrating nature of air travel can be compensated for by the consumption of large quantities of fluids. His notes did not show, nor did he recall advising this. Dr. Della Zazzera stated that the fact Mr. Flett took this lengthy trip did not change his view o~ his ability to work and that provided he rested, as advised, there was no reason why his health should not improve. When questioned on the physioiogical effect of jet lag, Dr. Della Zazzera responded that he did not have particular expertise in this field, but that it was his understanding that the effect was more enduring when one travelled from west to east and less when one travelled from east to west, a matter of a day in the first. case and several days in the second. Mr. Flett acknowledged during cross-examination, that he had previously, in 1986, been on vacation, become ill, .and subsequently provided a physician's certificate indicating that he had been under the physician's care for a week and would be able to return to work following that time. The certificate indicated that Mr. Flett suffered from a "Viral Infection- Sinusitis". He further acknowledged that he had wished to replace his vacation days with sick days and had filed a grievance respecting 5 days, settling the matter at 2 days. Arqument Counsel for the Union, Pamela Munt-Madill, submitted that Article 52 entitles an employee to a 'leave of absence with pay if that employee is unable to attend to job duties due to sickness or injury. If the Union proves that the Grievor was sufficiently ill to be unable to attend to his job duties, he is then entitled to have those days on which he was absent counted as sick days rather than vacation days and to have his sick day and vacation banes adjusted accordingly. Ms. Munt-Madill argued that the evidence clearly establishes that Mr. Flett was unable to carry out his job duties between December 19, 1991 and January 5, 1992, that the trip was not an unreasonable one for an ill person to take under the circumstances, that his holiday activities were considerably curtailed from the normal pattern particularly during the initial week, and that the family physician's evidence is the best evidence of Mr. Flett's lack of ability to perform his job duties during the days following December 21st. Counsel for the Employer, Craig Slater, submitted that the Grievor's entitlement to sick leave turns on the question of the Grievor's inability to attend to his job duties and whether his illness was sufficiently severe to satisfy the entitlement. The Employer does not dispute the physician's evidence that the Grievor was ill, but does .dispute the degree of the incapacity 9 caused by the illness and' suggests .that the physician's prognosis may have been too conservative given the degree of activity on the part ot the Grievor. Counsel took the position that the Grievor has absolutely no claim with respect to December 30th and 31st and 'January 2nd and 3rd, and that the Union has failed to discharge the onus on December 23rd, 24th, and 2~th. Mr. $1ater submitted that the physician, acknowledged that 7 to 10 days was the usual time off work for this type of illness, that the return date of January 4th bore no relationship to the his medical conclusions, and that Mr. Flett could have returned to work 7 to 10 days after his examination. .He recognized'that the Grievor's level of normal holiday activity was diminished for the initial portion of his holiday but maintains that this is not so for the last 4 days and the frequency combined with the type of activity, he argues, provides clear and convincing evidence of the Grievor's ability to perform his duties. Mr. Slater also called into question the consistency and reliability of the Grievor's evidence. He perceived as well, a discrepancy between the Grievor's words and his actions and went so far as to suggest that the previous vacation/sick leave situation in 1985 in which the Grievor requested 5 days of vacation be considered sick leave and in a settlement agreed that 2 days would be converted, established a pattern of abuse of the sicK-leave provision on the part of the Grievor. In reply, Ms. Munt-Madill argued that no such pattern had been established and that a settlement in which the parties agree to a reduction is not evidence of abuse. Further, the physician's evidence of which the certificate is a part, stated that January 4, 1992 was to be the return date and this would allow for a follow-up, which was appropriate under the circumstances. The parties submitted the following cases for the Board's reference: OPSEU ~Ewart) and Ministry of Health (GSB 2456/87) OpSEU (Do,man) Ministry of Community and Social 10 Services (GSB '72/78) OPSEU (Muryani) Liquor Control Board of Ontario (GSB 28/83) In considering the instant case the Board has taken into account the comment of Arbitrator Samuels in the Ewart an~ Ministry of Health case, supra,: A vacation is intended for recreation and relaxation. It is of benefit both to the employee and the employer. It is in both their interests that the employee get the repose provided for in the collective agreement so that an employee can return to work refreshed and more productive. It is for this reason that arbitrators have held that, in certain circumstances, a vacation period can be interrupted for a leave of absence unless the collective agreement says otherwise. It has also followed Arbitrator Swinton in Dorman and Ministry o[ Community and Social Services, supra, with respect to onus: The onus is on the grievor to show that he was entitled to sick leave. The Board takes as its point of departure that an employee need not be in perfect health in order to attend to his or her job duties. The Grievor has requested that 7 working days between Saturday, December 21, 1991 and Sunday, January 5, 1992 which have been debited from his vacation bank be designated as sick days and be debited from his sick leave, bank instead. The Board must ¢onsiaer each o~ these days and determine, based on the eviGence presented, whether, on any, all, or some of these days, the Grievor's illness was such that he was unable to carry out his job duties and is, therefore entitled to sick leave. The Board accepts Dr. Della Zazzerza's evidence that at the time he examined Mr. Flett, he was suffering from a serious illness, one that warranted medication to deal with the infection, medication to alleviate the symptoms, and rest. It also accepts his 11 opinion, that under the circumstances, it was not unreasonable for Mr. Flett to follow through with his vacation plans since they offered the possibility of convalescence in a climate and setting conGucive to recovery. Further, The Board does not concur with the Employer's argument that the fact the occurrence of the vacation/sic~-leave situation twice within a period of 5 years establishes a pattern of abuse. The evidence covers a nineteen-day period, containing work days, weekend days and statutory holidays. A calendar helps one to have a focussed view of this situation: 1991 1 Thursday December 19 Work day Ill Absent from work 2 Friday December 20 Work day M.D. appointment Seriously ill diagnosis Prescription given and medication obtained Absent from work 3 Saturday December 21 Weekend day Departure from Ottawa Uncomfortable flight Arrival Maui 4 Sunday December 22 Weekend day Minimal activity 5 Monday 0ecemDer 23 Work day Minimal activity 6 Tuesday December 24 Work day Minimal activity 7 Wednesday December 25 Statutory holiday Minimal activity 8 Thursday December 26 'Statutory holiday Minimal activity 9 Friday December 27 Work day 4 hour excursion to Halea~ala Crater 12 Ant i b i o t i c pr ogram completed 10 Saturday December 28 Weekend day Minimal activity 11 Sunday December 29 Weekend day 7 1/2 hour excursion to Hana 12 Monday December 30 Work day 2 1/2 hour boat excursion to Molokai Crater Snorkeling and Vomiting 13 Tuesday December 31 Work day 10 1/2 hour excursion to Kilauea Volcano In-house New Year's Eve 1992 14 Wednesday January 1 Statutory holiday No evidence re activity 15 Thursday January 2 Work day Departure from Maul Chills and sweats Claustrophobic feeling during part of flight 16 Friday January 3 Work day Arrival in Ottawa 17 Saturday January 4 Weekend. day Estimated day to return to work 18 Sunday January 5 Weekend day t9 Monday January 6 Work day Return to work M.D. appointment Reported chills/sweats and reappearance of cough on return home Blood test normal There is no dispute between the parties that Mr. Flett was ill on December 19th and 20th and these days are not included in 13 the 7 that are requested. One can see from the calendar that on December 23rd and 24th, Mr. Flett was continuing his programme of antibiotics, taking his decongestant/cough suppressant and Tylenol and engaging in only minimal activity. This continued for the following two days which were statutory holidays but were · still part of Mr. Flett's period of convalescence. We note that it was during this 2-day period that Mr. Flett stopped taking his Tylenol. December 27th is indicative of an increase in the Grievor's level of activity and was the final day of his programme of antibiotics. He was engaged in an activity on this day requiring a renewed level of physical energy. December 28th was a minimal activity day while, from December 29th on, the Grievor was able to participate in excursions of increasing duration and physical demands, prior to his return trip. Some of these involved lengthier periods than his normal working day and activity commensurate with his normal work activity. The Board does not accept the Union's argument that the "Physician's Certificate of Disability for Duty" offers the best evidence of Mr.. Flett's ability to carry out his normal job duties on the particular days in question, and'observes that the procedure which was followed to determine the "estimated date of return to duty" lacks a rational basis, other than its relationship to the end of Mr. Flett's holiday. If the follow- up appointment was the reason, then surely Dr. Della Zezzarra would have made the return to work. on January 6th, the day he was once again available, .or on the day following. In arriving at the estimated date of return of the patient following the period of illness, Dr. Della Zazzera does not appear to have taken as his starting point the number of convalescent days required and to relate them to 'the number of work days within the period of convalescence. Weekend days and statutory days are also days of 'convalescence. Dr. Della Zazzera stated that he gave "two weeks". He distinguished this from "7 to 10 days off" which he would normally prescribe for such a condition. It was clear that from his perspective, "2 weeks" was 14 longer than "7 to 10 days off". Ten days off work could result in a different number of convalescent days, depending on the timing. In the most straight-forward situation, if one visited the doctor on a Friday and was given '10 work days off beginning the following Monday, one would have 6 non-working convalescent days between the time of the appointment and the day of return to work. If there was a statutory holiday within that period, there would be 7. Taking another example, if the medical appointment was on a Monday, and the individual received 10 work days off beginning on a Tuesday, the return to work would be 2 Tuesdays hence and thus there would be 4 non-work, convalescent days. When the physician considers the recovery time required for a patient to whom he or she is planning to issue a medical certificate, it is reasonable to begin by looking at the number of convalescent days required, from a medical perspective, and then determining the number of work days are within that period. A certificate related to that number of days would then be issued. In Mr. Flett's case, the certificate which was dated December 20, 1991, indicated that the absence began on December 19, 1991 and that the estimated date of return to work would be January 4, 1992, which, since Mr. Flett did not work Saturday', effectively became January 6, 1992. The certificate covered a total of 14 days between the date the certificate was issued and the Grievor's estimated date of return to work. But in actuality the number of days was 16, because Mroi: Flett returned to work on Monday rather than Saturday. Seven of these were work days, 6 were weekend days and 3 were statutory holidays. Ail, however, were convalescing days. The fact that the estimated date of return to work was the day following Mr. Flett's return to Ottawa, the fact that the estimated date of return happened to be on a Saturday, and the physician's difficulty in medically rationalizing that date, all lead the Board to conclude that the return to work date was arrived at to coincide with the end. of Mr. Flett's vacation. 15 recall and had not noted the Grievor's vacation, which the Grievor testified he mentioned during the appointment. Lack of recollection of this detail by someone in Dr. Della Zazzera's position is understandable. The Board is of the opinion that the Grievor's level of activity provides the bes't indicator of whether or not he would have been able to carry out his job duties on each of the days in question. Based on his level' of activity, Sunday, December 29th, was the turning point in Mr. Flett's condition. As well, his wiie commented that although he was not his usual self, he had a little energy and the medication seemed to be working. At that point in time, he had sufficient energy to take part in a 7 1/2 hour excursion which was followed on subsequent days by a 2 1/2 hour boating and snorkeling outing and a 10 1/2 hour fly and drive excursion to the Island of Hawaii. The fact that he chose to retire early on some of these evenings and at t2.30 a.m. following a quiet New Year's Eve celebration may be indicative of his energy not being at its optimum level, but it is not indicative of an inability to carry out his job duties which, in the case of Mr. Flett, do not involve heavy physical or highly stressful activities. Further, the Board does not accept that his sea-sickness on December 30th, and his claustrophobia on January 2nd stemmed from his illness. It is of the opinion that these were caused bY the particular activities which he had chosen to.undertake and would otherwise, not have been present. In the result, the Board has concluded that Mr. Flett's illness on December 23rd, 24th and 27th was of sufficient severity to prevent him from carrying out his job duties but that' on December 30th and 31st and on January 2nd and 3rd his illness would not have prevented him from carry out these duties. The grievance succeeds in part and the Employer is ordered to make the necessary adjustments to Mr. Flett's sick leave and vacation banks. The Board will remain seised in the event that the parties have difficulty implementing this award. 16 March 1 1993 Helen S. Finley, Vice-ch Don M. Clark, Member Jean-Claude haniel, Member 17