HomeMy WebLinkAboutFleming/Fockens 21-11-25In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
West Parry Sound Health Centre
(the “Employer”)
-and-
Ontario Public Service Employees Union, Local 342
(the “Union”)
Grievances of Fleming (OPSEU File #’s 2019-0342-0007) and Grievance of Fockens
(OPSEU File #2020-0342-0001)
Arbitrator: Randi H. Abramsky
Appearances:
For the Employer: Hugh Dyer, Counsel
For the Union: Indika Chandrasekara, Grievance Officer
Hearing: November 10, 2021 via video conferencing.
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AWARD
1. The Union, OPSEU Local 342, and two individual Paramedics, Bonnie Fleming and Tom
Fockens, allege that the Employer, West Parry Sound Health Centre, has violated the
Collective Agreement by failing to pay some of the costs they incurred in obtaining medical
documentation required by the Employer, specifically their mileage, meals, parking and
travel time. The Employer has denied any violation of the Collective Agreement. The
outcome turns on an interpretation of the parties’ Collective Agreement.
Facts
2. The Employer operates the Parry Sound District Emergency Medical Services (EMS),
which provides basic emergency medical services in the geographical District of Parry
Sound and neighbouring districts.
3. The parties proceeded on agreed facts, set out below:
Fleming Grievance
The Grievor, Bonnie Fleming, is a paramedic. She was absent
from work due to a workplace injury. Her claims relate to
August 10, October 1, October 15 and November 2, 2018. The
documentation submitted was required to assess her return to
work. She claims for her General Practitioner’s fee in
providing the documents, mileage, travel time, meals and
parking. Her grievance was filed on August 6, 2019. It states:
I grieve that West Parry Sound Health Centre fails to
reimburse costs to obtain APS/FAF/s as required and
requested by West Parry Sound Health Center dating
back to the initial workplace injury August 2018.
As per several emails and phone calls with [the
Employer], she has been provided with all relevant
information regarding my expenses. We the union
grieve that the employer has violated specifically but not
exclusively Article 22 and Article 22.02 – OPSEU Local
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342 Collective Agreement as well as any other
applicable articles, policies or acts pertaining to all costs
associated with obtaining employer requested
documentation to be covered in full by the West Parry
Sound Health Centre.
1. August 10, 2018 – There is no documentation in the
employee’s Occupational Health file related to this
appointment other than a September 10 FAF (Functional
Abilities Form) that may be based on the appointment.
Ms. Fleming states that she submitted a document. The
September 10 FAF states restrictions, supports a return
to work on modified duties on September 6 and indicates
a follow-up appointment for October 1. Ms. Fleming
was reimbursed for the doctor’s fee.
2. October 1, 2018 – The FAF shows updated restrictions.
The appointment was for a reassessment, not just for
documentation. The Grievor was to be reassessed on
October 15. Ms. Fleming was reimbursed for the
doctor’s fee.
3. November 2, 2018 – There is no documentation on file,
but the Doctor’s invoice is in the file. The appointment
was for a reassessment, not just for documentation. Ms.
Fleming was not reimbursed for the doctor’s fee.
4. The Employer denies liability for milage, travel time,
meals and parking.
4. Although the Employer raised a timeliness objection to Ms. Fleming’s grievance, at the
hearing, it decided to waive that objection on a without prejudice basis to any other
grievances.
Fockens Grievance
Tom Fockens is a Paramedic.He was on sick leave starting in
October, 2019. Occupational Health requested medical
documentation concerning a potential return to work on
modified duties in October and November, 2019. He was
absent due to illness in January, 2020. He claims for mileage,
travel time and meals for trips to see his chiropractor on
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October 21, November 4, and November 18, 2019 and to see
his General Practitioner on January 21, 2020. His grievance is
dated March 30, 2020. It states:
We grieve the Employer has specifically but not
exclusively violated article (22) of the OPSEU local 342
collective agreement as well as any other applicable
article(s), act and/or legislation regarding the employer’s
duty to cover “any” costs associated with providing
proof of illness.
5. Although the Employer raised a timeliness objection to Mr. Fockens’ grievance, it decided
to waive that objection on a without prejudice basis to any other grievances.
1. October 21, 2019 – The FAF confirmed the reasons for the
Grievor’s absence and indicates that the appointment was for
assessment/treatment, not simply for documentation. The
Grievor was to be reassessed on October 28, although nothing
was received by the Employer for that date. The Grievor
advised that he would be reassessed on November 4.
2. November 4, 2019 – The FAF indicates that the appointment
was for assessment/treatment and supported a return to work
on modified duties on November 6, 2019, and to regular duties
on November 18, 2019. His next appointment was for
November 18.
3. November 18, 2019 – The APS (Attending Physician
Statement) received after this scheduled appointment confirms
the grievor’s return to regular duties.
4. January 21, 2020 – The Grievor was absent due to illness from
January 9 until January 17, 2020. The Employer’s policy
(consistent with 1992 HOODIP) requires proof of disability
for 3 or more days of absence.
5. The Employer denies liability for milage, travel time, and
meals.
6. It is undisputed that both Grievors live approximately 150 kilometres from their medical
providers.
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7. The relevant provision in the Collective Agreement is Article 22.02. That provision reads:
Article 22 – Sick Leave
22.02. In order to qualify for sick leave an employee must
notify the supervisor or appropriate assigned delegate and such
supervisor or delegate shall be identified by the employer with
a telephone number for contact, at least one (1) hour prior to
the beginning of the employee’s working day on the day shift
and at least two (2) hours prior to the beginning of the
employee’s working day on the afternoon or night shift. The
Employer reserves the right to require proof of illness from a
qualified medical practitioner after three (3) days of absence in
cases of suspected abuse. The employer shall be responsible
for any costs associated with an employees’ requirement to
provide proof of illness.
8. An employee’s obligation to provide medical documentation to the Employer is found
beyond Article 22.02. Under Article 22.01, Sick Leave, full-time employees under the
1992 HOODIP plan must provide proof of total disability when absent for three days or
more, as follows:
Proof of Total Disability (such as a doctor’s certificate), that is
satisfactory to your employer, is required if you are absent for
three days or more, and is subject to a periodic review
thereafter. Such proof may also be required at any time in order
for you to qualify for benefits.
9. Under Article 21.01(d), if a full-time employee utilizes sick leave to attend a medical
specialist more than 150 kilometers away from their home base or home, “[d]ocumented
proof of appointment and location of appointment may be required at the Employer’s
expense.” Article 22.01, Sick Leave, Applicable to Full-time Employees, provides:
The Employer assumes total responsibility for providing and
funding a short term sick leave plan at least equivalent to that
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described in the 1992 Hospitals of Ontario Disability Income
Plan (HOODIP) brochure. …
(d) The Employer agrees to the utilization of sick leave to
permit the full-time employees to attend medical specialists if
referred by a Medical Doctor and if the specialist is located
more than one hundred fifty (150) kilometers from their home
base or home whichever is closer. … Documented proof of
appointment and location of appointment may be required at
the Employer’s expense. …
10. Under the Employer’s Attendance Management Program, Sick Time Procedures, the
Employer “reserves the right to verify that an absence is medically justified” and states that
the “Employee’s Role” includes:
Provide Human Resources with suitable medical
documentation upon his/her return-to-work for absences of 3
days or more.
Reimbursement for Attending Physician’s/Practitioner’s
Statement will occur only:
If required (i.e., 3 days absence or on Phase 3 (or higher) of the
Attendance Management Program; and
The note contains meaningful medical information such as:
i.e., - the nature of illness
- dates involved
- expected duration of illness
- medical expectations
- treatment program
If requested, for special circumstances by either Human
Resources and/or the Occupational Health and Safety Manager
…
Provide medical documentation to Human Resources prior to
a medical leave of absence.
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11. As the circumstances of the two grievors demonstrate, medical documentation may also be
required for a return to work, with or without modifications, and for accommodation.
12. It is undisputed that Article 22.02 has been in the parties’ Collective Agreements since
2007 has not been amended. It is also undisputed that the Employer has never paid for
mileage, travel time, parking, or meals. It has only paid the physician’s or medical
practitioner’s fees.
Positions of the Parties
The Union
13. The Union asserts that the “modern approach” to the interpretation of collective agreements
should be utilized when interpreting Article 22.02, citing Re SEIUWest.ca and Saskatoon
Regional Health Authority (Reimer, Thoms Grievances), 2015 CarswellSask 960 (Zuck).
Under that approach, “words must be read in their entire context, in their grammatical and
ordinary sense, harmoniously with the scheme of the agreement, its object and the intention
of the parties.” Saskatoon Regional Health Authority, supra, at para. 112.
14. Applying that approach, the Union asserts that the last sentence of Article 22.02 should be
read to mean what it says –that the Employer “shall” pay “any costs associated with an
employees’ requirement to provide proof of illness”. It submits that it is exhaustive and all-
inclusive requirement. With other payment provisions, the Employer’s financial obligation
is specified (e.g., uniforms “footwear shall be compensated to each paramedic upon receipt
of satisfactory proof of payment by employee to a maximum of one hundred and seventy-
give dollars ($175.00) per year”; meal allowance – “ten dollars ($10)”; jury duty
(reimbursed for “meals, mileage, parking and accommodation in accordance with the
Employer’s policy relating to such matters.”), education (“the Employer shall pay the full
cost associated with courses, (i.e., texts and tuition)”. In contrast, under Article 22.02, the
Employer agreed to pay “any costs associated” with providing “proof of illness.” In its
view, the “costs associated with” providing proof of illness go beyond the actual cost of
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the form. The Union contends that the Employer could have included limiting language
but did not. It agreed to pay “any costs associated with an employee’s requirement to
provide proof of illness.”
15. The Union cites to dictionary definitions of “any” which reveal a broad inclusive term. In
the Union’s view, “any costs” includes mileage, meals, parking and travel time – costs
incurred by an employee. It urges me to apply the “ordinary definition” of “any costs” to
Article 22.02.
16. The Union submits that there are many times that an employee is required to provide
medical documentation to the Employer – for sick time in excess of three days, for the
Attendance Management Program, for accommodation and a return to work, before a
medical leave of absence, among others. Article 22.02 sets out one such time – when the
Employer suspects abuse – but submits there are many other times as well, and in its view,
the last sentence of Article 22.02 requires the Employer to pay for “any costs” associated
with the supplying of such medical documentation, whether it be for proof of illness or to
receive benefits. It contends that the last sentence of Article 22.02 applies whenever an
employee is required to submit medical documentation, not just in cases of suspected
abuse.
The Employer
17. The Employer agrees that a contextual approach is appropriate to interpret the Collective
Agreement. It submits, however, that such an approach leads to a different result than that
proposed by the Union. In its view, Article 22.02 must be read as a whole – not just the last
sentence in isolation. In its view, the last two sentences are tied together to create an
obligation on the Employer to pay the costs of providing proof of illness when it suspects
sick leave abuse. It contends that the last sentence of Article 22.02 is not an omnibus
reimbursement requirement that applies to any and all times that an employee must submit
medical documentation. It contends that the obligation only arises when the Employer
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requires “proof of illness” when it suspects sick leave abuse. The last two sentences of
Article 22.02, it submits, are directly connected by both proximity and context.
18. The Employer argues that throughout the parties’ Collective Agreement, what the
Employer is obligated to pay is found in the same subsection, that this is the “pattern” used
by the parties. For example, if there is movement between bases under Article 24.01, the
Employer pays “mileage”, what is required for uniforms is spelled out, what is required for
a meal allowance is specified, and so forth. In its view, Article 22.02 is the same – it sets
out what is to be paid within the section. It is not a commitment to pay for “proof of illness”
in all circumstances.
19. Under this interpretation, the Employer contends that neither Grievor is entitled to any
further compensation beyond the doctors’ fees since neither was required to provide “proof
of illness” due to suspected abuse. In Ms. Fleming’s case, the documentation was to assess
her return to work after a work-place injury, including any limitations. In Mr. Fockens’
case, it involved a return to work and a subsequent illness where proof was required under
the 1992 HOODIP plan, not because of suspected abuse.
20. The Employer also argues, in the alternative, that the type of expenses sought by the Union
here are not “costs” associated with providing proof of illness. The term “costs”, in its
view, means something that is actually paid by the employee for the proof of illness – such
as the fee to the doctor - and would not include travel time, meals or parking.
21. In the further alternative, the Employer contends that the Union is estopped from arguing
that a broader interpretation applies due to the parties’ consistent past practice, since at
least 2007, that the Employer has only paid the fee charged by the doctor to provide proof
of illness.
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Reasons for Decision
22. The goal in a contract interpretation case is to determine the intent of the parties based on
the language negotiated, in the context of the whole Collective Agreement. The “modern
approach” set out in Re SEIUWEST.ca and Saskatoon Regional Health Authority, supra,
at para. 112, is consistent with the approach taken by most arbitrators – “words must be
read in their entire context, in their grammatical and ordinary sense, harmoniously with the
scheme of the agreement, its object and the intention of the parties.” One looks at the
language, in the context of the provision and the Collective Agreement as a whole.
23. The main concern that I have about the Union’s interpretation is that it views the last
sentence of Article 22.02 as if it were a stand alone provision, obligating the Employer to
pay the costs incurred by employees every time medical documentation is required. It
views it as an omnibus reimbursement provision for all types of medical documents that
employees are required to supply for sick leave as well as benefits. That interpretation
might be plausible if that provision did stand alone and was worded more broadly, but it
does not, and it must be read in context with the language negotiated.
24. The context is sick leave. It states:
22.02. In order to qualify for sick leave an employee must
notify the supervisor or appropriate assigned delegate and such
supervisor or delegate shall be identified by the employer with
a telephone number for contact, at least one (1) hour prior to
the beginning of the employee’s working day on the day shift
and at least two (2) hours prior to the beginning of the
employee’s working day on the afternoon or night shift. The
Employer reserves the right to require proof of illness from a
qualified medical practitioner after three (3) days of absence in
cases of suspected abuse. The employer shall be responsible
for any costs associated with an employee’s requirement to
provide proof of illness.
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25. What this provision does is set out what an employee must do to qualify for sick leave. It
then provides that the Employer has the right to require proof of illness from a qualified
medical practitioner after three days of absence in cases of suspected abuse. If it does
require that, the “Employer shall be responsible for any costs associated with an
employee’s requirement to provide proof of illness.” The last two sentences, in the context
of Article 22.02, are clearly tied together. The Employer may require proof of illness if
abuse is suspected, and if such proof is required, it will pay the cost. That is the context of
Article 22.02 – in regard to sick leave, it ties the Employer’s obligation to pay the costs for
requiring the employee to provide “proof of illness.” This also makes sense – if the
Employer questions whether the employee is really sick and requires proof of illness, they
have to pay for that proof.
26. The words “proof of illness” also support the interpretation that the agreement to pay the
costs is tied to situations when the Employer suspects abuse and requires proof that the
employee was actually ill. Proof of illness is very different than other types of medical
documentation required in other contexts, such as a return to work form, what
limitations/restrictions an employee may have, what the employee’s prognosis may be,
accommodation, a work hardening regime and so forth. The last sentence of Article 22.02
does not, by its terms, require the Employer to pay the cost of all “medical documentation”,
as the Union suggests. It requires it when the Employer requires “proof of illness” when
the employee is utilizing sick time. This difference in terminology-“proof of illness” versus
“medical documentation”- is important and serves to limit the scope of the Employer’s
obligation in the last sentence of Article 22.02.
27. Similarly, in Article 22.01, Sick Leave Applicable to Full-time Employees, under
subsection (d) employees may utilize sick leave to attend medical specialists if referred by
a doctor if the specialist is located more than one hundred fifty (150) kilometers from their
home base or home. It further provides: “Documented proof of appointment and location
of appointment may be required at the Employer’s expense.” This is another payment
provided for in the Collective Agreement, in the same article – again when proof of the
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appointment and location is required by the Employer. If the Employer requests the proof,
it pays for it.
28. Not all medical documentation required of an employee, however, is contractually paid for
by the Employer. As set out in Re SEIUWest.ca and Saskatoon Regional Health Authority,
supra, at para. 116, “clear language spelling out the Employer’s obligation to pay the cost
of medical reports is required.” In the absence of language which obligates the Employer
to pay the cost of medical reports an employee bears that cost. Under Article 22.01, Sick
Leave Applicable to Full-time Employees, the Employer assumes responsibility for
providing and funding a short term sick leave plan at least equivalent to that described in
the 1992 Hospitals of Ontario Disability Income Plan (HOODIP) brochure.” That plan
states:
Proof of Total Disability (such as a doctor’s certificate), that is
satisfactory to your employer, is required if you are absent for
three days or more, and is subject to a periodic review
thereafter. Such proof may also be required at any time in order
for you to qualify for benefits.
There is no provision concerning Employer payment of costs found there.
29. The Employer’s obligation to pay for costs under the Attendance Management Plan is
found under that policy, not the Collective Agreement. Under Article 22.02, in contrast,
the Employer has agreed to pay the costs when it requires the employee to provide “proof
of illness” due to suspected abuse.
30. The question remains, what costs are included in the words “any costs associated with an
employee’s requirement to provide proof of illness”? The language is quite broad (“any
costs associated…”), and, as asserted by the Union, stands in contrast to other provisions
in the Collective Agreement where the costs that the Employer has agreed to pay are
specified. On the other hand, “any costs associated…” may be read to mean actual costs
paid by an employee to obtain proof of illness, as asserted by the Employer. On their face,
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I find the words “any costs associated…” to be patently ambiguous – susceptible to either
the broad interpretation asserted by the Union or the more limited one asserted by the
Employer.
31. The parties’ consistent past practice, however, aids in the interpretation of these words.
The same language has been in the Collective Agreement since 2007, without change, and
included in many successive Collective Agreements. It has consistently been interpreted
by the parties to be limited to the actual cost paid by an employee to obtain the “proof of
illness” documentation required by the Employer – the doctor’s fee. The Employer has
never paid mileage, travel time, meals or parking. I have no doubt that these costs are real
and can be substantial for employees, especially when multiple medical visits and forms
are required. Given this very long-standing past practice, however, which both parties
were clearly aware of, I am persuaded that this is the intended interpretation of Article
22.02.
32. Accordingly, I am not persuaded, on the balance of probabilities, that the Employer
violated the Collective Agreement when it did not pay the Grievors’ claims for mileage,
meals, parking or travel time.
Conclusion
33. For all of the reasons set out above, the grievances must be dismissed.
Issued this 25th day of November, 2021.
Randi H. Abramsky
_______________________
Randi H. Abramsky