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Home My WebLink About1986-1040.Durnin.88-07-04EMP‘OVES OE ‘A -“E DE L’ONTAIUO COMMISSION DE RkGLEMENT DES GRIEFS Between: Before: 1040/86 IN TIIE NATTBE OF AN AEBITNATION Under TIE CNOUN BNPLOTBES COLLECTIVE BARGAIMINGACT Before THE GRIEVANCE SETTWNT BOARD OPSEU (B. Durnin) and The Crown in Right of Ontario (Ministry of Health) Employer J. Forbes-Roberts Vice-Chairman I.J. Thomson Member I. cowan Member For the Grievor: M. Cornfsh Counsel Cornish & Associates Barristers and Soiicitors For the Employer: A.R. Rae Senior Staff Relations Officer Staff Relations Section Management Board of Cabinet llearing: November 20, 1987 From a factual point of view, this grievance le lncredlbly simple. Arriving at a concluelon on the basis of those facto Is incredibly difficult. The grievor was (and remains) devoted to the cause of having a child. As a result of a medical condition she is apparently unable to conceive by-the conventional method. She and her husband had been trying for six years of their married life to have a child. ‘She underwent an exhaustlve eerles of medical procedures designed to rectify the problem. None were .4 successful. Ultimately she and her husband participated in the & vitro fertillmation programme at University Hoepital. Through this procedure the ovaries are chemically stimulated for maximum egg production. The eggs are surgically retrieved. and fertjlized outslde the women’s body. Two to three days later the fertilized &urn are "placed" inside the womb. In the i optimum situation, within ten to fourteen days one(or more) of the fertilised ovum (embryos) implants in the womb wall thereby creating the stage of pregnancy. Needless to-say the procedure is extremely complex and requires virtually split second timing, not to speak of the exact monitoring of certain bodily cycles on behalf of the participants. In order to maxlmlze the chances of success, particfpants in the programme are advised to stay home and remain quiet for roughly ten to fourteen days, that being the period just proceeding and just follow embryo transplant. fn the grievor's case this represented July 22, 1966 to AUgU8t i, 1966. She was absent from work and claimed benefits under the Short Term Sickness Plan (Article 52). The Employer granted the time off but ultimately denied the claim for paid leave under section 62, and thus the matter c-before the Board. This is an extremely emotional matter and In arriving at Its decision the Board had to constantly remind itself that It could properly deal with only two things - the terms of the -3 collective agreement as negotlated between the partlee, and the available facts. We will deal firet with the appropriate clause of the agreement. The title states, "Article-S2 - Shart Term Sickness Plan" (emphasle added). The relevant portlon of the Article itself reads: 52.1 An employee who Is unable to attend to his duties due to sickness or injury... . . (emphasle added) It is apparent that this Article was intended to provide an income protection plan for an employee in the event of a short term debilitating illness or injury which directly caueee absence from work. Tradltlonally such plane have l hlel6ad an employee's income against UnORpeCted or unavoidable alckneee or injury. We turn now to the facts. Based on the unchallenged expert evidence of Dr. Brown we accept that the grievor suffered (and continues to suffer) from the SiCknee6 of infertility. However was It the sickness which prevented her attendance at work from July 22, to August 6, 19867 The grievor commenced employment with the Winlstry of Health in 1981. She Wa6~also apparently married sometime in 1981. According to her testimony ahe and her husband tried for .';7 a child right away. Indeed she achieved pregnancy which unfortunatefy ended in a miscarriage in January or February of 1982. She has not again become pregnfmt. Therefore, according to the medically accepted definition, the grievor has suffered from infertility since approximately February of 1983. There was no evidence to suggest that from February, 1983 to the date of the grievance That her attendance record was unacceptable,:-o the Employer. While suffering from infertfllty the grievor was able to . . perform her duties to the satisfaction of the EmployBr. Infertility does not prevent a woman from worklng. It prevent her from achieving the state of pregnancy. Nelther is lnfertillty a short term illness. It Is unfortunately incurable. According to Dr. Brown's evidence, - 4 - even if the In vitro treatment had worked the grievor would have remained Infertile. We recognize the trauma associated with repeated frustrated attempts to become pregnant, and do not trivlalize It. However the decision to reproduce is a personal choice, not a medically necessary procedure. The grievor's sickness frustrated a strong and natural desire, and she chose the employ the extraordinpry measures now available in an attempt to allevlate the inevitable and permanent side effect of her sickness. The sickness itself Was demoralizing, but not debilitating vi6 a vie her employment duties. One must draw an inevitable comparison. Assume a woman 16 :, diagnosed as being Infertile. However prior to embarking on a painful course of surgical proceduresher Doctor recommends that she remove herself from a stressful work environment for some period of time, and then attempt conception. The purpose of the medlcally reccmmended absence would be, as in the grievor's case, to achieve the state of pregnancy. Would such an absenge be covered by the Short Term Sickness Plan? Logic suggests not. Union counsel submitted a comprehensive set of documents from various health organizations and the Ontario Law Reform Commission. They all adopt the proposition found in the 1948 Declaration of Human Rights proclaimed by the United Nations recognizing the 'I.. . the right of everyone to have children." - 5 - This case Is not about who has the right to reproduce. It is about access to beneflta under a Short Term Sick Leave Plan. The Employer did not attempt to limit the grievor's right to have children, and granted her the time off to exhaust every possible method of achieving her personal goal. We find that the grievor was not absent due to her Sickne6S. but rather was absent due to a desire to fulfil1 an understandable personal goal. Had she not wished to have children she apparently would not have been off work at all. All evidence, submlseions and authorities put before thle Board were carefully and repeatedly considered. Particular ? attentlon was commanded by the decielons of Arbitrators Saltman and Brown in respectively Re: Hamilton Civic Hosnitals and O.W.A. and Re: Uetrovolitan general Rosoital and O.N.A. Both these decisions eprang from facts very similar to the instant case. With all due respect, we disagree with them. The grievance is hereby dismissed. Dated at Tor%nto this 4til day of July , 1980, I. % "5 dissent" (Dissent attached) I.J. Thompson, Member 1040/06 DISSENT i I cannot agree with the majority award. It seams to me that this Award places new interpretations on the right of an Employee for benefits under the Short Term Sickness Plan. I do not know the reasc~n for the emphasis placed by the majority on the word “Short” in reference to Short Term Sickness Plan. This plan covers a person for a total of 130 working days and then goes over ;,:, to a Long Term Income Protection Plan after that so there is, in effect, continuous coverage under certain conditions. The majority states that traditionally plans are to shield employees from unexpected or unavoidable sickness or injury. Surely this is not now to be two additional conditions that an Employee has to satisfy the Trustees of the Plan to qualify. I’m sure if this was so the Col- lective Agreement would so state. Plans are not there to protect people from unexpected or unavoidable 2 sickness or injury. It is there to cover 52.1 an employee who is unable to attend to his duties due to a sickness or injury. In most instances an Employee accepts a lower rate of pay in return for the Employer providing coverage under some type of Income Protection Plan or whatever it is called to protect the Employee’s income whenever they suffer an illness, injury or sickness. Dr. Brown in his testimony before the Board trstiiicd that infertility is an illness. He recommended a proccdurp th;it hr felt would be helpful t* the Cricvor’s illness. - 2 - The Grievor was unable to attend to her regular duties on the advice of her Doctor. Therefore she suffers from an illness land if she is ill she qualifies for benefits under the Plan. In the last paragraph of the Award on Page 5 the majority state that all submissions, evidence and authority were carefully and repeatedly considered. Two decisions are cited in the Award Hamilton Civic Hospital and the O.N.A. (Saltman) and Metropolitan General Hospital and O.N.A. (Brown) .I and stated that both these decisions sprang from facts very similar to the instant case. With all due respect to the majority on this Board, if they disagreed with such experienced and eminent Arbitrators as Saltman and Brown, I feel they should have set out their reasons for disagreement. I would have allowed the grievance. I.J. Thomson