Loading...
HomeMy WebLinkAbout1982-0425.Heath.83-02-01425/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between; Before: For the Grievor: For the Employer: Hearing: Windsor, January 11, 1983 OPSEU (James L. Heath) . Grievor - And - The Crown in Right of Ontario (Ministry of Health) Employer P. M. Draper E. J. Bounsall N. J. Cazzola Vice Chairman Member Member P. A. Sheppard Grievance Officer Ontario Public Service Employees Union M. H. Campbell Counsel Legal Branch Ministry of Health -2- DECISION The Grievor, James Heath, grieves that the Employer has refused to accept a valid medical certificate and requests that three days recorded as vacation days by the Employer instead be recorded as sick leave days. The Grievor was employed-by the Windsor Provincial Ambulance Service as an Ambulance Officer 2 from August, 1973 to August, 1982. In November, 1981, suspecting that .the Grievor was abusing his sick leave entitlement, the Employer invoked Article 51.10 .of the collective agreement and informed the Grievor that he would thenceforth be required'to submit a medical certificate for any absence due to sickness of one day or more. ,' Under a provision of the Employer's Manual of Corporate Policy and Procedure published in July, 1981, where an employee becomes ill prior to a scheduled vacation and the illness extends into the vacation period, the Employer may, in its discretion, re-schedule the vacation. The k provision appears to contemplate that the affected employee, rather than taking the vacation as scheduled, will re- request that it, or part of it, be re-scheduled. The pro- vision had not been invoked prior to the present case. The Grievor was aware of the existence and effect of the provision. On May 4, 1982, while on vacation at Port Elgin, the Griever injured his left ankle. An X-ray revealed no break and the injury was diagnosed as a severe strain. The Grievor was scheduled to return to work on Monday, May 10th . -3- and on Sunday, May 9th, having failed to reach either the Employer's manager or assistant manager, he notified an act- ing supervisor that he would be unable to do so. On his return to Windsor on Monday, May lOth, he was examined by Dr. E. P. Sinclair, who is associated in practice with Drs. S. J. Kizis and D. JYPaterson. Medication and a further X-ray were prescribed. The Grievor informed the Employer's manager, William Fawcett, that he did not know when he would be able to return to work. On Thursday, May 13th, he saw Dr. Kiwis who told him he'could return to work on Monday, May 17th. He worked his regular shifts on that day and on Tuesday, May 18th and ~took his.scheduled days off on Wednesday, May 19th and Thursday, May 20th. The Grievor's garage had been damaged by fire and he was required to raze it under municipal regulations. While doing so on his days off, he re-injured his ankle. On Friday, May 21st, he "called in sick" and was reminded by Fawcett that he had not yet submitted a medical certificate in respect.of his earlier absence. The Grievor then went to see Dr. Kizis who confirmed the re-injury and recommended that he remain off work until Wednesday, May 26th when he would re-examine him. The physician also gave him two notes hand-written on prescription pad paper, initialled and dated May 21st, one reading "Off work May 5 till May 17 strained ankle" and the other reading "Off work till May 26/82 strained ankle" which he took to the Employer's assistant manager, Conrad Marier , on the same day, May 21st. we find as a fact that . '(T . i : J -4- the Grievor did not request, on Friday, May 21st, that part of the scheduled vacation he was to begin the next day be credited as sick leave. As had been arranged with the:Employer on Monday, May 17th, and after consulting Dr. Kizis, the Grievor used his vacation entitlement to attend the Canadian Labour Congress biennial convention in Winnipeg, the period covered being from Saturday, May 22nd to Saturday, May 29th. We interpose here our opinion that Dr. Kizis' approval of the Griever's attend- ance at the convention has no'bearing on' the question whether the Grievor was on scheduled vacation or sick leave while there. On his return, the Grievor required no further medical attention and resumed his regular work schedule. Subsequently, the Grievor was informed by Fawcett that the notes from Dr. Kizis were not acceptable. On Monday, June 21st, the Grievor obtained a note from Dr. Sinclair, handwritten on prescription pad paper, signed and dated June 21st which read "I certify that Mr. Heath was under my care for ankle injury and instructed 'not to work May 10 11 12 13 14 and 21/82". We note, in passing, that Dr. Kizis' notes cover dates that fell in both of . the Griever's scheduled vacation periods and that Dr. Sinclair's note covers only dates on which the Grievor was off work between those two periods. On Tuesday, June 22nd, Fawcett discussed the matter of the certificates with the Grievor and Victor Cooper, a Union staff representative, and on Thursday, June 24th, -5- having decided to accept Dr. Sinclair's note, wrote to the Grievor stating that the necessary pay adjustments would be made for the period May 10th to 14th and May 21st. The Griever's request that three days of his scheduled vacation, May 22nd, 23rd and,,26th, be credited as sick leave days was denied and the present grievance was filed on June 30th. The Grievor's case is based on the argument that Dr. Kizis' note of May 2lst stating that the Grievor would re- main off work until May 26th is a valid medical certificate that required the Employer to credit as sick leave'days three days that would otherwise have been scheduled vacation days: We have concluded that the question whether or not that note, in form and .substance, is a valid medical certificate is not the issue here and that the case, therefore, does not turn on its acceptance or rejection by Fawcett. The con- sequence of the Griever's decision to proceed on his sched- uled vacation was that the prospective situation provided for in the note (that the Grievor would remain under medical care and would see Dr. Kizis on May 26th) did not come about, the note was thus rendered redundant and the corporate pdlicy mentioned earlier came into play. .FawCett's decision was undoubtedly influenced by his dissatisfaction with the note. But he clearly had in mind, as well, the Griever's unacceptable attendance record. In our opinion, that consideration and Fawcett's firm view that the Grievor was not entitled to be absent due to an injury on one day, depart on a scheduled vacation on the following day and, -6- after the fact, claim that he had been on sick leave for part of the vacation period, together constitute proper and reasonable grounds for the decision to deny the Grievor's request. In the result, we find that the Grievor has failed to discharge the onus of proving that he was wrongly denied three days of sick leave as alleged. The grievance is dismissed. DATED AT Consecon, Ontario, this 1st day'of February, 8: 3250 /ch "I dissent" (see attached) E. J. Bounsall, Member N. J. Cazzola, Member DISSENT I agree with all the facts as stated in majority award. I disagree with the conclusion drawn from Dr. Kizis’ note’ of May 21 (indicating he should remain off work until May 26) that by using his scheduled vacation credits over that period to attend a CLC convention, he rendered the note redundant. The Crievor clearly stated he could not have worked with his injured ankle over the period of the CLC convention, and indeed his leg had to be sunported on a chair throughout and he was limited in participating in the social activities of the convention. The note of Kizis covering the period !4ay 21-26 is a valti note and there was no evidence presented by the Employer to indicate that the Grievor did not supply medical evidence promptly when requested. It is not the Griever’s fault that Fawcett could not or would not, understand the simple happenings of a 3 Doctor group practice, and allowing himself to become irritated by receiving notes in different Dr's names. resulting in an absurd didn't lead off with legality stance - one of rejection, if the note " I certify . ..". The management does have some discretion in the matter, but all evi- dence suggests that management had never failed to transfer vacation days to sick days when requested, as was dutifu lly done in this case. What is highly significant in my mind is. that the decision not' to grant the transfer of days was communicated on June 30 - some seven days after the Grievor had been disciplined in another incident. !4anagement therefore did not exercise their discretion fairly in this case and it is a disguised discipline and the grievance should be u_oheld.