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HomeMy WebLinkAbout1990-1885.Johnson.92-09-02 ONTA RIO EMPL OYeS DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE' SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G ~'Z8 TELEPHONE/TELEPHONE: (4 ;6) 326- T388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (~NTARIO). MSG 1ZE FAC$1,~,gI£E/T~/.~COPIE : [4'[6] 326-~396 [885/90, 2468/90 IN THE I~TTER OF ~ ~RBZTI~TION Under THE CRO~I~ EMPLOYEE8 COLLECTIVE BARGAINING ACT Be£ore THE GRIEVANCE SETTLEMENT BOARD BETWEEN 0PSEU (Johnson) Grievor - and- The Crown in Right of Ontario (Ministry of Transportation) E~ployer BEFORE: N. Dissanayake Vice-ChairDerson M. Vortser Member A. Stapleton Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE C. Peterson EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HE~RIN~ February 28, 1991 October 23, 31, 1991 2 DECISION These are two related grievances filed by the grievor, Mr. David Johnson, relating to his claim for short-term sickness benefits under article 52.10 of the collective agreement. The grievor commenced employment with the Ministry of Transportation on September 28, 1959. At the time of the grievances, he was employed as an Accommodations Analyst in the Office Services Section of the Ministry's Administrative Services Branch. At the relevant time his immediate supervisor was Mr. Vince Galloro. Mr. Galloro reported to Mr. Robert Gaunt, Office Services SectiOn Head, who in turn reported to Mr. Don Lafranbois, the Manager of the Administrative Services Branch. The grievor's job was essentially a clerical one. On October 16, 1990 he attended work and worked the full day. He gave no indication to anyone that day or the preceding days that he had any illness or discomfort. However, after work he went to his family physician, Dr. Peter Dux and obtained a medical note stating "David requires time off work due to illness. Will advise in 4 weeks". Onlhis way home from the doctor's office the grievor dropped in at Mr. Golloro's house and gave the note to Mr. Golloro. Mr. Golloro provided the note to Mr. Gaunt the next day. ~ 3 Mr. Gaunt testified that when he received .the note he found it to be strange because the grievor had worked the whole shift the previous day with no complaints and had looked very normal. Mr. Gaunt discussed the note with Mr. Lafranbois and also consulted a Human Resources advisor. They agreed that the note provided very little information and that since the grievor had worked normally to the end of his shift the Drevious day, more information was required before sick benefits can be authorized for the grievor. The Human Resources Advisor provided a draft letter. Mr. Gaunt signed the letter dated October 17, 1990 and sent it to the grievor with two attachments, the position specification for the grievor's job and a physical demands analysis form indicating the physical demands of the grievor's job. The letter reads: We are in receipt of your medical certificate dated October 16, 1990 from Dr. Dux. We have had an opportunity to review the certificate and regretfully, it does not provide us with sufficient information regarding your absence from.work. We require and request the following information in full: 1. The reason for your absence. 2. The prognosis for a full and complete recovery. 3. The date on which it is expected that you will be able to resume .the full duties of your position on a regular full time basis. 4. Any restrictions under'which you may return to work, in the event this is possible. Attached is a copy of your job specification and the Physical Demands Analysis. We require that this information be provided to me by October 26, 1990. We also must advise you that providing us with adequate information concerning your absences from work is essential to your continued employment with the Ministry. If you fail to respond to this direction, please understand that the status of your sick leave will be reviewed again. This review may result in the withdrawal of approval for sick leave with pay. The letter required the information to be provided by October 26, 1992. The grievor was paid sick benefits until October 29, 1992 eventhough no additional information was provided by the grievor in response to the employer's letter. On October 30, 1990 the employer sent the following letter to the grievor: On October 17th, you were requested to provide certain specific information concerning your unexpected absence from work, the .prognosis for recovery and return to work. This information was to be provided k~ October 26, 1990. To this date, I have received no communication from you. Lacking necessary information for a decision to the contrary, we must advise that your sick leave with pay benefits have been suspended effective Monday, October 29, 1990. The suspension is to remain in 5 effect until we receive a complete satisfactory medical report. The employer next heard from the grievor when he reported to work on November 13, 1990 without any prior notice. He was advised that he must present a medical note stating that he was fit to return. He saw Dr. Dux on November 14th and obtained a note which was presented to the employer. It states "Mr. Johnson is fit to return to work as of Nov. 13th. He was unable to work at all since Oct. 16th. He is fit for full duty". The grievor conceded that between October 16th and November 14th he had not visited or received medical advice from Dr. Dux or any other medical doctor. Upon his return, to work on November 13th, the employer wrote him a letter which, inter alia, again reminded him that the four items of information requested in the letter of October 17, 1990 were still outstanding. While one of the grievances alleged that the employer's letter of October 17, 1990 constituted "unfair labour practices" and "harassment", at the hearing both grievances were dealt with together, and' the gist of the claim was that the employer had contravened article 52.10 by failing to pay sick benefits for the period October 29 to November 13, 1990. The union takes the position that the medical note dated October 16, 1990 from Dr. Dux met the requirements of article 6 52.10 and that the employer was not entitled to any additional information Alternatively, the union submits that the grievor was singled out for a stricter application of article 52.10. It is alleged that other employees were paid sick benefits on the basis of medical notes containing no more information than the information in Dr. Dux's note and that the decision not to pay the grievor was discriminatory and motivated by bad faith. In order to determine these grievances it is important to get a proper understanding of the nature of the dispute here. These are not discipline grievances against issuance of disciplinary letters. Rather, the dispute is as to whether the grievor had been denied sick benefits in violation of article 52.10. This is important: because unlike in a discipline case, here the onus is on the grievor to establish that he has met the conditions in article 52.10 to be entitled to sick benefits. If he has, the employer would be in violation of the collective agreement by its failure to pay. This is not a case where the employer has imposed a penalty for the grievor's absence. Thus the BOard is not called upon to decide whether the grievor was in fact sick or whether the employer had "just cause" for withholding :sick benefits. The only issue is the adequacy of the medical certificate submitted. The union's submission is'simple. It relies on the wording of article 52.10 which reads: 7 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 forwarded to the Deputy Minister of the ministry, certif¥in~ 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 Minister. or his designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days. (emphasis added) According to counsel the parties have negotiated what must be contained in a medical certificate for purposes of sick pay. All that the employer is entitled to is a certification that "the employee is unable to attend to his official duties. This certification is contained in Dr. Dux's note where he says that the grievor "requires time off work due to illness. Will advise in 4 weeks". This according to counsel is a certification that the grievor is unable to attend to his duties for at least 4 weeks due to illness. In Re Dorman, 72/78 (Swinton) at pp. 5-6 the Board made the following observation on the issue of sufficiency of medical certificates: More relevant here are cases which discuss the sufficiency of medical certificates, such as R~ Steel Co. of Canada ltd. (1975), 8 L.A.C. (2d) 298 (Beatty); Re Gilbarco Canada Ltd. (1974), 5 L.A.C. (2d) 205 (O'Shea); Molson's Brewery (Ontario) Ltd. (i961), 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 Re Ford Motor Co. of Canada Ltd., 111975) 8 L.A.C. (2d) 149 (Palmer) at p. 152, the learned arbitrator observed: I cannot accept the bare position of the union that certification by a doctor is sufficient reason for an employee to absent himself from work. Clearly, such decisions can be in error, either as a result of error on the part of the doctor, the patient or both. Without dilating on the matter, it seems abundantly clear that were an employee to intentionally mislead a doctor concerning the state of his health to the end that that doctor would be willing to state that the employee involved was unable to work, such certification would not provide a suitable reason to explain an absence. In Re OPSEU (Union Grievance), 167/83 (Swan), the union made an argument on the meaning of article 52.10 (then 51.10) which was similar to the argument of the union here. The Board sets out that argument at p.4: The Union's argument is that clause 51.10 provides a complete code of when a medical certificate may be required, and what the contents of a required certificate may be. ' The Union argues that the use of the expression "certifying that the employee is unable to attend to his official duties" in clause 51.10 means that the Employer has no entitlement whatsoever to ask a physician to certify anything else except such inability. 9 The Board's response is set out at p.6: ...we observe in passing that it is an extremely restrictive view of clause--51.10 to say that the requirement that the medical certificate certify inability to attend at work of necessity prevents the Employer from requesting any other information whatsoever, even when that information is of a kind which virtually every other employer requires as a matter of course in the absence of any specific collective agreement provision, and which most employees are happy to provide. Eventhough the above passage from vice-chair Swan's decision is clearly obiter dicta, we find that reasoning to be persuasive. As cases such as Re Dorma~ and Re Ford Motor Company indicate, an employer is not required to accept a medical certificate which provides no information to the employer to satisfy itself that the grievor was in fact prevented from working for the whole period of absence due to illness. Union counsel appeared to concede that the employer may have been justified in seeking more information if there were grounds for suspicion that the grievor was abusing sick leave. His point is that there was no reason for suspicion here, because of the grievor's good attendance record and the absence of any history of concerns relating to attendance. Mr. Gaunt under cross- examination was asked whether he was saying that the grievor was abusing sick leave and whether he was questioning the doctor's opinion. In each case Mr. Gaunt replied in the negative. Despite these answers, it is l clear from the totality of Mr. Gaunt's evidence that he was surprised by the fact that the grievor, who had worked all day on October 16.with no complaint .or sign of illness, suddenly presented a medical certificate for 4 weeks absence that same night. Thus he repeatedly testified that he found the medical note to be "strange" because the grievor had completed his work day with no complaint or signs of any discomfort. It is true, as the union argues, that Mr. Gaunt is not qualified to detect illness thorough observation and that some illnesses cannot be detected by observation. Thus Mr. Gaunt was not prepared, even at the hearing,~ to make an allegation that the grievor was not sick. However, the grievor had worked the. whole day with no visible signs of illness. He made no complaint to anyone about any. illness. In our view in the circumstances, while Mr. Gaunt was not in a position to make a conclusion that the grievor was abusing sick leave, he was entitled to verification of the situation by seeking further information. There was much debate as to whether' the employer was entitled to all of the information requested in its letter. Indeed, in our view some of the information it sought relating to return to work is not relevant to the verification of the fact of the grievor's illness. If the grievor had provided sufficient information to verify the fact of illness, and the 11 employer had insisted on irrelevant information, the grievor would succeed in a grievance under article 52.10. However, that is not what occurred here. When he received the employer's demand, the grievor totally ignored it. He did not inform his doctor that the employer was not satisfied with the medical note. He did not contact the employer. His position was that the employer was not entitled to anything more than'the note he had provided. During his testimony, the grievor testified that his illness was stress related. His position was that the nature of the illness was personal information and not the employer's business to know. We disagree that the employer's entitlement under article 52.10 is as restrictive as claimed by the union. In appropriate circumstances the employer is entitled to verify the contents of a medical certificate. In this case the employer was suddenly presented with a medical certificate containing very little information, just a few hours after he had completed his work day without any mention or signs of discomfort. When the employer indicated that the medical certificate presented was inadequate, the grievor had an obligation to provide some additional information from the doctor, even if it was to the effect~that patient does not wish the nature of the illness disclosed. It was simple matter for the grievor to inform the doctor of the employer's position that more information had been required for the 12 payment of sick benefits. Then the doctor could have provided further information, or at least confirmed the fact of illness while indicating that the patient is sensitive about disclosing the nature of the illness. Instead, the grievor elected to ignore the request altoghter. As observed in Re Ford Motor Co. (supra) medical certificates may ~e issued by physicians based on wrong information. It appears that the grievor ~as taken exception to the fact that the employer was not willing to accept his medical note at face value and chose to verify it by seeking further information. In a perfect world, employers will be able to rely on their employees' word and conduct without any need for verification. There would even be no need for doctor's certificates. However, the fact is, we do not live in a perfect world. There are some employees, albeit a small minority, who are dishonest. In these circumstances, as long as the employer acts in good faith, it is entitled to verify the reliability of a medical certificate such as the one presented by the grievor by requiring additional information. As we noted above, if the grievor had concerns about some of the information requested, he had an obligation to provide at least some information which, (to use the words of this Board in Re OPSEU (Union Grievance), (supra) "virtually every other employer requires as a matter of course in the absence of any specific collective agreement provision,, and which most 13 employees are happy to provide". Thus for example he could have had the doctor certify that 'he was suffering from a stress related illness without further details. Or he could have and should have had the doctor certify that he was suffering from an illness, the nature of which he did not wish disclosed. Had the grievor approached the doctor with the employer's concern about the lack of information in the medical note this whole dispute could have been avoided. Instead, he chose to ignore the employer's letter altogether. He did not contact either the employer or the doctor in response. He refused to provide any further information. It is our conclusion that the medical note proceeded by the grievor in the particular circumstances of his absence did not provide sufficient information to enable the employer to verify the fact that he was unable to do the particular duties of his job. In that he refused to provide any further information and chose to ignore the employer's request the employer was not in violation of article 52.10 by refusing sick pay. We further find that the evidence does not support the union's assertion that the employer's request for additional information from the grievor constituted discrimination and bad faith. In light of the other evidence, we are not persuaded to. infer discrimination and/or bad faith merely from the evidence that Mr. Gaunt had a strained relationship with the grievor. The union led evide:nce to show that a number of other employees received sick pay on the basis of medical notes containing no more information than the one submitted by the grievor. However, in each of. those cases the notes specified that the employee was hospitalized or it was common knowledge that the employee was sick. Thus it is not surprising that the employer saw no necessity for verification of those medical notes. Indeed the grievor testified that previously he had three absences because of surgery. On each occasion he submitted very brief medical certificates like the one he presented this time. The employer accepted those without any questioning or request for further information. The evidence again is that on each of those occasions, the employer was fully aware that the grievor was in hospital for surgery. Therefore there was no need for any further information or verification. In contrast, in the present case the employer had no indication whatsoever that the grievor was ill. All it had was the brief doctor's certificate. Therefore the different treatment on this occasion is explained by factors other than bad faith or a desire to discriminate. For all of the foregoing reasons these grievances are hereby dismissed. Dated this 2nd day of Sept~ 1992 at Hamilton, Ontario N. Dissanayake Vice-Chairperson M. Vorster Member