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HomeMy WebLinkAboutFaria 10-05-10 05/10/2010 12:10 FAX 4162560265 ABRAMSKY I4l 003 In the Matter of a Labour Arbitration pursuant to the Ontario Labour Management Relations Act Between: THE CORPORATION OF TOE COUNTY OF 8RANT -and- ONTARIO PUIJLlC SERVICE EMPLOYEES. UNION. LOCAL 256 Grievance of Michelle :Faria Arbitrator: Randi II. AbramsJ...')' Appearances For the County: B R. Baldwin Counsel ForOPSEU: David Wright Counsel Hearing: May 6.2010 in Brantlord, Ontario 05/10/2010 12:10 FAX 4162560265 ABRAM SKY AWARD Facts: There was nu dispute regarding the facts, and no evidence was called. The parties agreed thallhe grievor, Michelle Feria, a paramedic, had booked vacation days for June .I and June 2, 2009. On her shift prior to those dales~ May 28, 2009, the grievor did not work due to illness. On the morning of June 1, 2009~ the hrrievor reaJi7.ed that she was still ill and sought to change her vacation day to a sick day. This is pemlittcd by Article 20.03(g) of the collective agreement, which states: If during a fully paid leave of absence, an employee becomes ill, the employee should advise the Employer uf Lhe illness. Appropriate certification, if required, will be requested. An employee on any leave of absence that is not a fully paid leave will not be eligible for payment of short-term benefits in the event of illness. Eligibility for short-term benefits will be reinstated once the cmployce rcturns to work, as authorized. At approximately 9:30 a.m., the grievor called the employer, speaking first to a secretary and then to Randy Papple, Duty Manger of Opemtions, County of Brant Ambulance Service. He advised her that she could switch from a vacation day to a sick day, but would be required to produce a doctor's note. The grievor advised him that she wasn't "faking" being ill, and he noted that she sounded sick but that all employees seeking to switch fl'Olll a leave day to a sick day had to provide a doctor's note. Th~re is no dispute that the grievUT was genuinely ill on June I. She was unable to secure an appointment with her family d01..1or on June 1, but did so on June 4, and provided the required doctor's note. The co!.1 was $15.00, which the County reimbursed to the grievor. The Employer accepted the doctor's note and the grievor received sick leave for June 1. She felt better on June 2, and used her previously scheduled vacation day on that date. I4l 004 2 05/10/2010 12:11 FAX 4162560265 ABRAMSKY On June 22, 2009, Ms. Feria. filed the instant grievance, alleging that the Employer.s request tor a doctor's note for June 1 was ~(an inappropriate request for a Doctor's note and cost Michelle valuable time and money..," The request was alleged to violate" Article 20.03 a, c, g, and h and any other relevant or related Articles...... The grievance requested, among other things, that the gricvor "be made whole as to mileage, note cost, and time expenses... [and be issuedl a letter stating that this was incorrect and shall not occur in the future...." The grievance was denied by Manager Charles Longcway. In the denial. the Employer stated that it "may a::lk 'for appropriate certification as per Article 20.03(g)" and that the request "wa.<: appropriate and verified the illness." It also noted that the grievol', pOr Article 20.03(e) had heen reimbursed the full cost of the doctor's notc but that the Employer was LLnot required to, and never has, paid lor mileage and time spent to obtain a Doctor's note." At the third step, the grievance was denied by Chief Administrative Officer Donald Glassford., based on. the view that "Article 20.03(1$) gives the employer the right to ask lor a Doctor's note." There are several relevanL provisions in the collective agreement: ARTICLE 3 - MANAGEMENT RIGHTS 3.02 In the exercise of it!p functions as provided for in this Article or otherwise, the Employer shall act reasonably, fairly, and in good faith, in a manner consistent with the collective agreement. ARTICLE 7 - ARBITRATION PROCESS 7.07 The arbitrator shall not have any power to alter or change any of the provision of this Agreement or to substaitutc any new provisions for any ex.isting provisiuns. not () give any decisions inconsistent with the terms and provisions of this Agreement. ARTICLE 17- VACATION WITH PAY 17.03 Employees are to indicate their vacation preference by November 1st in each year. ... 1o'ioo1 vacation schedules will be posted by December I sl of each year at the I4l 005 3 05/10/2010 12:11 FAX 4162560265 ABRAMSKY I4l 006 latest~ to begin January 1s1 urllcss otherwise agreed. Once posted, changes may be made only with a minimum of fourtcen (14) calendar days, and written notice tu the supervisor, where both the ~upervisor and employee agree in writing. ... ARTICLE 20 - SHORT TERM DISABIUTY PLAN 20.0 I The Employer providcs a Short Teml Disability Plan for period of up to seventeen (17) weeks. 20.02 Procedure liligibility 20.03 ... (e) An employee may be required lo produce a medical certificate from a duly qualified medical practitioner for absences from work wherc such employee has been absent tor more than three (3) comieculive shifts. Where the Employer requires a.ny medical certificalc, the Employer shall reimburse the employee for the full cosl. (g) If during fully paid leave of absence, an employee becomes ill, the employee should advise the Employer of the illness. Appropriate certification, if required, w1l1 be requested. An employee on any cave of absence that is not fully paid leave will not be eligible for payment of short-term benefit.. in the event of illness. Eligibility (hr short-term benefits will be reinstated once the employee returns to work, as authorized. The Employer also introduced documentary evidence concerning two earlier grievances regarding medical notes. One grievance was withdrawn on a without prejudice or precedent basis. The other bmevanee was resolved on a without pr~iudice or precedent basis. The Employer seeks to rely on the documents to show that it has consh;lently taken lhe position that it has the right tu require medical notes under both 20.03(e) and (g). There was no evidence. however, that the Union accepted the Employer's interpretation oftlle collective agreemenl. IJositions of the Parties The Union 4 05/10/2010 12:11 FAX 4162560265 ABRAMSKY I4l 007 The Union assert..,; that based on the language or the collective agreement, eonsidered as a whole, the Empluyer was not entitled t.o require the grievor to producc a doctor's nute for her absence OJl June I, 2009. It asserts that Article 20.03(g) states: ....Appropriate certification, ~frequi,.ed, will be requested" and that under Article 20.03(e). which deals with the provision of medical certificates, a medical note may be required only "where such employee has been absent tor more than three (3) consecutive shills." The Union contends that to interpret this 1anb'Uage to mean that thc Employer may require the note simply by requesting it makes thc provision redundant. It submits that a medical note may only be properly requested "if required" by the collective agreement. Undcr Article 20.03(e), it argues, that is only where the employee is absent for three consecutive shifts. It contends that thtrre is no right, otherwise. to request a doctor's note. In the alternative. the Union submit..':llhat even if Article 20.03(g) may be read Lo give the Employer the right to require a medical certiticalo short of three consecutive absences, there must be some reasonable ba.<iis to require a doctor's note, such as suspicion of abuse, and that there was Jl() suspicion regarding thc grievor's absence in this case. In support of its position, the Union ciL~s to Re St. Joseph's General Ho.\pital Elliott !.ake and UNA (2008), 170 L.A.C.(4Ih )115 (Sheehan), asserting that then, is no general right to require doctor's note and that it must be based on the collective agreement. Tbe Employer The Employer argues that the governing provi~i()n is Article 20.03(g} which specifically allows an employee on a paid leave day, such a..'l a vacation day, to switeh it to a paid sick leave day .- which is what occurred here. Under this provision, the Employer a..'i.'itlrL~ that it may requirc an empluyee tu provide a doclor's note to justify the Rwltch. It notes that once a vacation day is approved under Article 17.03, it Cl.UlII.oL be 5 05/10/2010 12:11 FAX 4162560265 ABRAMSKY I4l 008 lightly changed. An exception is Article 20.03(g) whon an employee becomes ill during a fully paid leave of absence. The Employer argues that unlike Article 20.03(e), Article 20.03(g) cont.ain~ no three-day time frame, or any time frame at all. It does not refer Lo Article 20.03(e) or include similar language. in fact, the Employer submits that had the Union wan Led to limit the Employer's right to require a doctor's note to threerday absences, it should have done so in subsection (~). It fw'ther submits that the Union's imposing a three-day requirement to the circumstances of this case shows that its interpretation makes no scnse because tbe grievor was only scheduled for two days of vacation. Thai interpretation. the Employer submits, effectively negates its right to request a doctor's note Legally, the Employer submits that Article 20.03 (g), which deals specifically with the situation of an employee switching from a paid leave day to a sick leave day, governs over the more general. provision in Article 20.03(e). In support, it cites to the following ca.'1e~: UnitiJd Ster.dworkers c?f America. !.oeal 6571 and Co-Steel LClSCO (Overtime Grievance) l2000] o J..A. A. No. 647 (Whjtaker)~ Re TRW Canada LId and Thompson Producls Employees' Association, 2005 C.LR. 10983 (Raymond)~ Re National Ltd and United Steelworkers, Local 7/35 (2007), 16 t L.A.C. (4Ih) 182 (Burkett). In the Employer's view, in the absence of any contractual limitation, it may request a doctor'~ Tlote to justify the change in bcncfit as long as the Employer is not behaving "miserably." Reasons for Decision At issue is whether the Employer properly required the grievor to provide a doctor's note fur her absence on June 1, 2009. II is undisputed that the brrle'Vor was originally scheduled lor vacation days for June I and June 2, 2009. It is also undisputed Lhallhc collcct.ivc agreement, pursuant to Article 20.01(g), permits an employee who "becomes ill" "during II fully paid leave of 6 05/10/2010 12:11 FAX 4162560265 ABRAMSKY I4l 009 absence", such as a vacation day, to utilize sick time insLead of a vacation day. The grievor ~ought to utilize that provision when she spoke to Mr. Papple during the morning of June 1, 2009. He advised her that she could switch to a sick day if she provided a doctor's note for the day. The Employer's right to require II doctor's note in these circumstances of a switch Irom a paid leave day to a sick day governed by Article 20.03(g). In particular, it turns on the sentence: "Appropriate certification, if required, will be requested." The clause does not define when a certificate may be "requlred" nor otherwise address the issue. The Union argues that to interpret the language "if required" under Articlc 20.03(g), one mustluuk to Article 20.03(e) which outlines when an employee, generally, may be required lo produce a medical certificate for abscnees from work. With respect, 1 eannot agree. First, lUlder the Union's interpretation of Article 20.03(e), the Employer may only require a medical certificate where the employee has been absent for more than three consecutive shifts. That requirement makes t'IO sense in the circumstances of lhis case. The grievor's vacation was unly for two days, and she only sought sick leave for one of those days. Tn this situation, under the Union's view, the Employer wuuld have no ability to require a Incdical note belhrc allowing the employee to convert a vacation day to a I'llck day. The three-day requirement in Article 20.03(c) is to deal with more prolonged absences - noL the single day or even lwo that might occur under Article 20.03(g). 1 also agree wilh thl,'; Employer that the specific provision of Article 20.03(g) cuntrols over the more general provisiun in Article 20.03(e). As stated in Re Uniled Steelworkers of America, Local 6571. supra at par. 39: 1I. is a well e8tllblishcd principle or interpretation that the various provisions of a collective agreement should be read. wnere possible. in an internally consistent manner. It is also an accepted canon of construction that limited and spccilically constrained provisions arc to bl.: read as moditicatinml or exeeptions to broader generali7..ed provisions. Put another 7 05/10/2010 12:11 FAX 4162560265 ABRAMSKY I4l 010 way, where the general and specific terms appear to be inconsistent, the specific is seen to modify the general rather than the other way arouJ;uL Article 20.03(e) deals with general medical certificates. Article 20.03(g) dcals with medical notes in the context of an employee attempting to use a sick day instead of another type of paid leave. It is also significant, in 1l'Iy view, that Article 20.03(g) provides no time frame such as set out in Article 20.03(e), nor refers to Article 20.03(e). It easily could have done so jfthat had been intended. I do [md it somewhat troubling. however, that the Employer has imposed a blanket requirement for a medical note to support a switch to sick time from tlme ot10n leave, Under Article 3.02, the Employer must act "reasonably, fairly and in good faith" in the exercise of its functions. There is merit to the Union's argument that the Employer is imposing a mOl'e stJ'ingent requirement for medical notes in the context of a switch under Article 20.03(g) than it is generally. The question therefore arises, is the Employer's requiremenl or a medical note tn support a. switch to sick little reasonable, fair and in good faith? In this case, there waS no suspicion that the grievor was not HI 011 June I, 2009. After much consideration, based on the limited evidence presented, I conclude that the requirement is a flir and reasonable one, and was imposed in good faith, The right afforded to employees under Article 20.03(g) to convert a vacation day to a sick day is a significant benefit one certainly not round in all collective agreements, The use or lhis provision is different than an employee claiming sick leave generally because it allows the employee to retain their vacation or other paid leave, whiJe obtaining paid sick leave instead. Clearly, it should only be used fur bona fide illness. While there is no question that the grievor's i.Ill1ess was genuine, the Employer's ability to require a medical note before an employee can exercise this benefit ensures that it will not be casually or lightly requested and will only he u~ed fl)r legitimate purposes. 8 05/10/2010 12:11 FAX 4162560265 ABRAM SKY Conelusion: Fur the reasons sel forth above, I conclude that the Employer's request that the hrrtcvor produce a medical note for heT to switch JUDe 1 from a vacation day to a sick day did not violate the collective agreement. The grievancc~ therefore, is dismissed. Issued this 10th day of May, 2010. /r~j) ~ H.-,~IM- J\- ~ H. Abramsky, Arbitrator -U 141011 9