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HomeMy WebLinkAbout1983-0178.Jarvalt.84-11-06IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Tiina Jarvalt) and The Crown in Right of Ontario (Ministrv of Citizenship and Culture) Before: For the Grievor: 5. Laycock Grievance Officer Ontario Public Service Employees Union For the Employer: Hearing: Grievor Employer K Swan H. Simon W. Lobraico i Vice-Chairman Member Member R. 8. Itenson Senior Staff Relations Officer Civil Service Commission June 1, 1983 - I - Tiina Jarvalt - 178/83 The present grievance was filed on February 8, 1983 and is in the following form: “I grieve that I have been disciplined without just cause, in a letter dated January 24/83 from Eustace Mendis” More precisely, the grievor was denied paid sick leave for December 29, 30 and 31, 1982, on which she was absent from work and phoned in to’repcrt illness, but for which days she refused to submit a medical certificate despite a number of requests from the Employer for such a certificate. In the absence of such certificate, the Employer has refused to pay for those days pursuant to the provisions of Article 51 of the Waking Conditions and Employee Benefits Collective Agreement. It appears that, late in December, 1982, the griever discovered that she had more vacation days than she would be entitled to carry over to 1983. She therefore decided to apply for one and one-half days of vacation on December 29 and 30, in order to reduce her total accumulation below the 15 day carryaver maximum. On December 20, 1982, she made such a request to Dr. Eustace Mendis, the Chief Scientist of the Ontario Science Centre and the person to whom the griever, who is a Biology Imtructor at the Centre, repcrts. After looking into the possibility of giving the griever vacation leave as requested, Mr. Mendis informed her that the request would have to be refused. For reasons which are not made clear to us, this caused the grieva a considerable degree of distress. She indicated that she has had -2- _ previous misunderstandings about certain issues involving her employment, and she felt that this was yet another misunderstanding which would provide difficulty for her later. In any event, it was her evidence that the misunderstanding aggravated a chronic gastrointestinal condition from which she has suffered for some time. By December 28, she said, she was very ilf with this condition, vomiting blood and suffering from’diarrhoea with accompanying fever. On December 29, she stayed home from work and phoned in to report her illness, as she did on the December 30 as well. About 3 p.m. on December 30, Dr. Mendis phoned the griever at home. He did so after a discussion with the Personnel Office of the Ministry, at which time he expressed his doubts about the griever’s absence on the very days which she had requested as vacation leave. Purportedly acting under clause 51.10 of the Collective Agreement, Dr. Mendis asked the grieva to submit a medical certificate upon her return to work. Apparently, because the griever asked for this requirement in writing, he also prepared a memorandum to her to the same effect, although it is not :‘. clear when this document was delivered. The Grievor consulted with the President of the Union Local, .Mr. Tony, Petty, shortly after she received the request from Dr. Mendis. She was upset about the call, and requested that he intervene on her behalf. Mr. Petty did so by telephoning Dr. Mendis, but the result of this conversation was that Dr. Mendis repeated his requirement that the griever provide a medical certificate if she wished ~to be, paid for the time off 9, ~,. work. Eventually, ,Mr. Petty advised the grievw not to provide a medical certificate, although one had been obtained, and although the Employer made two further written requests for such a docuinent which included ‘- 3 - ! : threats of disciplinary action. The matter eventually came before the Grievance Settlement Board for resolution. The provision of the Collective Agreement here in issue is clause 51.10 of the Working Conditions and Employee Benefits Agreement. That clause is as follows: “After five (5) days’ absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is fwwarded to the Deputy Minister of the Ministry, certifying that the employee is unable to attend to his official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the Deputy Minkter or his designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days.” Mr. Petty, on behalf of the Union, acknowledged that the second sentence of clause 51.10 was regularly invoked in respect of employees whose absentee records over a period of time gave rise to a suspicion that sick leave was being abused. The review of absenteeism records is held in conjunction with the Union, and Mr. Petty indicated that where there is no dispute about the nature of the record, the Union rarely contests the use of clause 51.10 in such cases. On the other hand, he took the position that the situation of the griever was quite different. Although she had been off work a substantial amount over the previous few years, there was nothing in her record to indicate that those absences were anything but genuine. It appeared that Dr. Mendis was simply reacting to the coincidence of her request for vacation days and her absence from work by suspecting the honesty of her claim to be ill, and Mr. Petty took the position that, if the Union advised the griever to submit a medical certificate in such circumstances, the employer would be able to demand a medical certificate in virtually every situ;ltion. in derog;ltioll from the -4- ,express provisions of the Collective Agreement. i Generally speaking, arbitrators have always cast the onus on an employee to demonstrate that he or she is entitled to paid sick leave in certain circumstances. Brown and Beatty, Canadian Labour Arbitration, (Second Edition), at paragraph 8:3320, sums up the jurisprudence as follows: “As well as being obliged to establish one’s employment status in order to claim benefits payable under a medical plan or a sick-pay scheme; arbitral jurisprudence in general, and collective agreements in particular, invariably require an employee affirmatively to prove the fact of the injury or the illness which caused him to remain off work, unless, of course, it was the employer who’ required the employee to book off sick. The.nature of the proof that can properly be required by . the employer is usually described in the agreement, and medical certificates of one form or another are the most common vehicle. Where the agreement authorizes the employer to require the production of such a document, arbitrators have differed as to whether it would be proper and within its power for the employer to unilaterally require its employees to sign a form authorizing it to make private enquiries of the employee’s physician.” : In the present case, the Collective Agreement specifically sets out the circumstances in which a medical certificate may be required. Leaving aside the basic requirement to produce a medical certificate for an illness longer than five days, the provisions of clause 51.10 also permits this requirement .to be extended to cases of absences of less than five days, where two conditions are met. First, it must be “suspected that there may be an abuse of sick leave”. Second, the Deputy Minister or his designee must exercise the discretion which is set out in the provision. In the ~: present case Dr. ,Mendis asserted, and the Union didnot challenge, that he had the authority to invoke such a requirement under clause 51.10. The only issue to be decided, therefore, is whether the first condition was met. As Mr. Petty indicated, a clause of this sort is normally invoked when a long-term pattern of absences leads the Employer to think that the employee k abusing the sick leave clause. But that does not preclude, in our view, the possibility that the Employer may invoke the clause for a particular absence of less than five days. A predecessor to the present clause 51.10 was considered by this Board in Ralph and The Crown Right of Ontario (Ministry of Correctional Services), 364/80 and 370/80,(Gorsky). That decision, at page 16, set out the factors to be considered in the following terms: “When the parties negotiated the first sentence of (Clause 51.10) this gave a real and substantial right to employees not to be bothered with the inconvenience of securing a medical certificate for every illness. The danger of abuse is considered in (Clause 51.9) which gives the Employer an overriding and uncircumscribed right to require an employee, who is frequently absent from work, to submit him or herseff to a medical examinarion at the expense of the Employer. While the purpose of the second sentence of (Clause 51.10) is to furnish an additional means to the Employer to protect itself against employee abuse of the sick leave provisicns of the agreement, the existence of the first sentence of (Clause 51.10) requires that the Employer’s rights must be balanced against those of the employees’. Any further erosion of negotiated rights is not to be easily inferred. Whatever might be the broader dictionary meaning of the word %uspected”, as found in the last sentence of (Clause 51.10) it is subject to being affected by the context in which it is found. My intepretation of (Clause 51.10) is consistant with furnishing the Ministry with meaningful rights when it suspects an employee is malingering. It also preserves a meaningful application of the first sentence of (Clause 51.10) to the extent that it creates rights in favour of employees.” What Vice-Chairman Corsky was suggesting, as seen elsewhere in the decision, is that it is not sufficient for the Employer to have a good faith suspicion that there is an abuse of sick leave; the suspicion must also be reasonable in all of the circutnstances. The present Vice-Chairman, in Re St. lean de Drebeuf ----_ Hospital and Canadian Ilnion of Public hnployees ..-.---.-..- n i I’ -6- : (1977), 16 L.A.C. (2d) 199 (Swan) made~a similar plea for reasonableness in the administration of sick leave plans generally, pointing out that in the absence of reasonableness employers; employees and the medical profession would be engaged in a never-ending waste of scarce resources in providing medical certificates for minor illnesses. The present parties, in our view, have crystallized that general concern in clause 51.10, by providing that absences of less than five days may result in a requirement far a medical certificate only in specidl circumstances. We agree with the panel of the Board chaired by Vice-Chairman Gorsky that, in order to invoke ‘the second sentence of the dause 51.10, the Employer must demonstrate a suspicion which is not only held honestly, but is also held reasonably. ,. While it is clear to us that the griever’s past record does not give rise to any general suspicion about her absences, we think that the coincidence of her absence for three days in respect of which she had requested and had been refused vacation.leave can constitute a reasonable specific ground for suspicion. While the language used by members of the panel of this Board in the Ralph case, quoted above, would appear to require a very stringent test, it must be born in mind that the other panel was dealing with a requirement by the Employer that a particular employee provide a medical certificate for every single inci,dence of absence for an indeterminate time into the future; The present case is quife different from that, since the suspicion is not generalized but is related to a is, particular set of circumstances, in respect of which o,nly a special requireinent is imposed; In the present case, the suspicious circumstances arise directly from the coincidence of absence ‘on days for which vacation leave hdd already been refused; if the Ftnployer wcrc twt pertnitted to -7- Employer would be deprived of virtually any ability to control the presence or absence of employees at the work place. In the result, therefore, we accept that Dr. Mendis had a suspicion sufficiently reasonable to permit him to invoke the second sentence of clause 51.10. The usual result of such a finding would be that the grievor would not be entitled to be paid under the sick leave plan for the particular days. She did, however, produce at the hearing a medical certificate dated January 3, 1983, and a pharmacy account for prescription medicine on the same day. To some extent, the nature of these documents indicates the difficulty of a case like the present. The medical certificate, for example, says that the griever was “advised to stay off work” on December 29, 30 and 31, 1982, while it was the griever’s own evidence that she was unable to read-r a doctor until January 3, 1983 the day of the certificate. Unless one takes a broad view of the word “advised”, it therefore appears that the medical certificate includes an inaccuracy on its face. On the other hand, given that the griever was asked for a medical certificate in the middle of her absence rather than well prior to it, it is difficult to know what better certificate would be available to her. It was her evidence that she had been under treatment by the same physician for the same chronic condition for some time, and so a certificate issued after a telephone call is not an unreasonable response to this extraordinary demand upon the time of the medical profession. In short, had the grievor presented the medical certificate to the Employer which was exhibited before us, we would have required the Employer to accept it as ample proof that she was absent for valid medical reasons on these days. We point this out specifically for the purpose of indicating that a request for a medical certificate, at a time I -a- when an employee has already been absent from work for a minor illness, may not always produce the best possible medical evidence. In the present circumstances, the grievor was specifically advised by the Union not to provide a medical certificate on the principled basis that the Collective Agreement did not require her to do so. The principle could equally well have been tested by producing the medical certificate and subsequently filing a grievance contesting the right of the Employer to demand it. This grievance could have been filed,’ having regard to the provisions of the Collective Agreement, either as an individual or as a policy grievance, either of which would have adequately tested the .propriety of the request. Similarly, had the Employer not accepted the medical certificate provided, that could have been tested through the grievance procedure. In the result, therefore, we do’ not think it would be appropriate to give a remedy to the griever ..in the present circumstances. Having elected to let her rights stand or fall on the present grievance, she must take the consequences of the failure of that grievance. On the other hand, we think it is necessary to say something about the suggestion in a memorandum to the griever by Dr. Mendis, and reiterated in argument by counsel for the Ministry, that the griever may somehow be subject to discipline, presumably for insubordination, by refusing to bring in a medical certificate. While we recognize that the suggestion is given some support in Re Hendrickson Manufacturing (Canada) Ltd. and United Steelworkers, Local 8773 (19811, I L.A.C. (3d):-. 377 @runner), we have some considerable doubt that the “obey now, grieve later” rule can be made to apply to an order of this sort. As the Hendrickson case indicates, there is a serious issue as to -9- whether an drder to have a third party do something ii possible to perform. Moreover, there may be circumstances where an employee may, for a perfectly valid reason, simply not want to produce a medical certificate for a particular absence. There are important issues of privacy involved in some, if not all, such cases. In dur view, the usual result of a refusal to provide adequate medical documentation when that is required, either by a collective agreement CC by a valid request from an employer, is the loss of any entitlement to pay for the days in question. While there may be circumstances when absence for a reported illness also constitutes absence without leave in a disciplinary sense, the onus of proving such an offense is on the Employer. While the failure to provide a medical certificate when requested may be an element of that proof, it is not of itself sufficient, at least in most cases, to discharge the onus. In the present case, therefore, we think that any effort to discipline should be removed from the griever’s file in respect of the present case. The sanction which she has suffered, the loss of sick pay for the days in question, is the only penalty to which she may be subjected. . . - 10 - DATED at Toronto the 6th day of November, 1984. K. Swan - Vice Chairman ---_ ,Aeci&A $l/&k&A W. Lobraico - Member