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HomeMy WebLinkAbout1978-0072.Dorman.78-07-27IN THE MATTER OF AN ARSITRATION Under The CROWN EMPiOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. William H. Cot-man Ami 8 The Ministry of Cocmmnity and Social Services Eefore: For the Grievor: For the Employer: Hearing: Professor Katherine Swinton Mr. George Peckham ;;;;e;hairman Mr. Harry Simon Member Mrs. Lillian Stevens Grievance Officer. Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario Mr. A. R. Rae Personnel Representative ?ersonnel Services Branch Ministry of Comnunity and Social Services 5th Floor Hepburn Block Queen's Park, Toronto Suite 2100 180 Dundas St. W. Toronto, Ontario June 8th. 1978 : 2. -2- In this case, the grievor claims that he was unjustly denied sick leave for the dates December 19 and 20, 1977. The original grievance included unjust denial of sick leave on December 18. 1977, but during the grievance procedure the grievor was credited with one day's compassionate leave for that day. The grievor is employed at the Rideau Regional Centre in Smiths Falls as a Counsellor 2 (Residential Life). He has worked at the Centre since October, 1959. The grievance arose out of an absence on December 18 to 20. 1977. Mr. Dorman, who is a single parent with three children, was notified by police on December 17 that his two sons ,had been involved in stealing a car in Carleton Place. The car had been driven to Kingston, where it was abandoned after being involved in a collision. Three boys had been seen running from the scene. Mr.~C!orman was understandably upset at this news. He did not know if the boys had been hurt.and they had been involved in similar incidents earlier that year. The next morning (December 18). he telephoned his place of employment and told Lois Bennet, a fellow employee, that he was experiencing family problems. He asked her to book him off sick. Mr. Dorman did not return to work until December 23. having missed three regular working days (December 18 to 20). HIS sons were finally found by Ontario Provincial Police on December 20. During the period when they were missing, Mr. Dorman made one trip to Kingston, on December 19, to look for them. By his own evidence, he was too distraught to work on the days when the boys were missing. -3 - The grievance arose because the Centre refused to treat his absence on December 18 to 20 as sick leave. Instead, it was treated,in the case of December 19 and.20, as vacation without pay. When Mr. Dot-man objected, the Acting Administrator of the Hospital, Dr. McKeough. told him,to obtain a medical certificate if he had been ill on those days. Mr. Donnan did so, on December 27. The certificate was issued by Dr. Barry, 'his family doctor for 25 to 30 years. The certificate (Ex. 4) is unfortunately cryptic, stating'that "Bill Dorman has been under medical care from 18 to 20 and is able to return to school/work on December 21". Under "Remarks", one finds "reported problem to me". The employer did not accept the medical certificate as proof that Mr. Dorman was ill on December 19 and 20. The Employee Benefits agreement (Ex. 1) sets out the conditions for attendance credits and sick leave (art. 13) and special or compassionate leave (art. 17). Article 13.1 provides that an employee will be credited with 15 days of~attendance credits On each October 1st. Under article 13.7, the employer can require an employee who has been absent less than five days to submit a medical certificate if an abuse of sick leave is suspected. Article 17 provides for special or compassionate leave and reads: SPECIAL OR COMPASSIONATE LFAVE .17.0 A Deputy Ninister may grant leave-of-absence with pay for not nwre than six days in any . fiscal year to an employee upon any special or compassionate ground and the period of the leave shall be charged against the credits of the employee. The union contends that Mr. Donnan was ill on December 19 and 20, due to emotional stress. It was argued that the onus is on the .i^ . -4- employer to take actfon if an abuse of sick leave is suspected. For example. it was argued that the employer should have asked for a more detailed form of assessment from Or. Barry if abuse of sick leave was suspected in this case. Alternatively, the union argued that if Mr. Dorman could not qualify for sick leave, he should have been extended special leave under article 30 of the Working Conditions agreement. That article reads: ARTICLE 30 - LEAVE - SPECIAL 30.1.1 Leave-of-absence with pay may be granted for special of compassimate~purposes to en employee,for a period of: 30.1.2 up to six (6) months with the approval if his Dsputy Minister and upon the certificate of the Commission; and .30.1.3 over six (6) months upon the certificate of the Conmission and with the approval of.the Lieutenant Governor in Council. From the wording of article 30, it is~clear,:that this Board could not allow the grievance on the basis that Mr. Dorman was unjustly denied special leave. The article clearly requires special approval of the Deputy Minister and a certificate of the Civil Service Commission and there is no evidence that such leave was sought. The main issue in this grievance is whether Mr. Dorman was entitled to sick leave on December 19 and 20. There is no 'doubt that Mr. Dorman was under emotional strain on those days, and one must -5- sympathize with him. His sons had a history of runnfng away, and Mr. Dorman'experienced this final incident at a time when he was on vacation for four days because his car had been destroyed by fire and he was unable to con&e to work. The situation was one in which an employee would be cl.early deserving of compassionate leave, and the Ministry recognized this in granting him the sixth and final day of compassionate leave available.to him under article 17 of the‘ Benefits Agreement. It is difficult, however, to find that Mr. Dorman was 111 on the other two days on which he was absent. The union argued thatthe benefit of the doubt as to the reason for absence should have been',given to Mr. Dorman. referring the Board to several cases: .Re-United Steel Workers, Local 6500 6 International Nickel Co. of Canada Ltd. (1966), 17 L.A.C. 71 (Bigela?); Re Canadian Westinghouse Co. Ltd. (19541, 5 Z.A.C. 1824 (Cross); Fiberglas: Canada Ltd. (19681', 20 Z.A.C. 11 (Haorahan); Minnesota Mining and Mfg. of Canada Ltd. (19681, 20 Z.A.C. 14 (Curtis). - These cases are ones involving discipline, in which the onus is on management to show just cause for the disciplinary action taken against an absent employee. That is not the case here, where the grievor is not being disciplined. In a discipline case, the employer should make inquiries as to the explanation for an absence to determine if~it is a reasonable one. More relevant here are cases which discuss the sufficiency of medical certificates, such as Re Steel co. of Canada Ltd. (1975), 8 L.A.C. (2d) 298 (Beatty); Re Gilbarco Canada Ltd. (19741, 5 L.A.C. 2,. , -6- (2dJ 205 (O'Shea); Molson’s Brewery (Ontario) Ltd. (1961), 11 L.A.C. 381 (Laskin). The cases cited show that the probative value of a medical certificate depends in part on the thoroughness of the diagnosis contained therein and the date of the medical examination in relation to the date of the illness. An employer is not required to accept a medical certificate which is in a standard form with little or no diagnosis as proof that the employee was~absent due to illness. Of course, if the employer takes disciplinary action because of doubt as to the adequacy of the reason for an absence, it may find its conclusions and actions challenged in arbitration proceedings, In this grievance, the grievor admittedly was~at home because of a family crisis and the medical certificate was obtained several days after his return to work. The medfcal certificate which he then presented to his employer is one to which little weight can be given. .He admittedly did not see Dr. Barry till December 27. Had the diagnosis been fuller, the delay might not have been fatal because of Dorman's long-term familiarity with this doctor and Dr. Barry's awareness of previous family problems. However, Dr. Barry's diagnosis or explanation reveals nothing about an illness. He states that Dorman "reported problem to me". No further elaboration was obtained by Mr. Dorman at any stage in the grievance procedure, even though the employer rejected the original medical certificate. The only elaboration of his condition is a letter from Dan Devlin, Supervisor of the Children's Aid Society in Smiths Falls to the Administrator of the Centre dated January 24, 1978 (Ex. 21): It states that Mr. Dorman was under "a great deal of stress" due to serious family problems in the past several months. This is true, but does not prove that Mr. Dorman was ill December 19 and 20. The question becomes whether the employer should have asked Mr. Dotman for a further certificate or required him to undergo a medical examination. The onus is on the grievor to show that he was entitled to sick leave. He had initially indicated to the employer that his absence was due to family problems. As a result,he : was told to obtain a medical certificate. This should have indicated the need for a medical report from Dr. Barry sufficient to show that he was ill because of these problems, Such a report might still . ' have been obtained during the grievance procedure. While Mr. Dorman's family crisis might be grounds for compassionate leave, the collective agreement limited the number of such days availab1.e to him to six. The evidence does not show that he was entitled to sick leave for the dates December 19 and 20, 1977. The grievance is therefore denied. Dated at Toronto this 27th day of July, 1978. Katherine Swinton - Vice-Chairman I concur George Peckham - Member I concur Harry Simon - Member -