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HomeMy WebLinkAbout1992-2459.Phillips.94-01-06 ..~ -.,.. '.' "~l;;( ',~::-Z:l'~~1.~~( f~:,:~:'"" , "i~~r"Oo.~~ }l'~li''c,'''.l I ~"l'; UNTARIO EMPLOYFS DE LACOUFiONNE l't':" ;~;.r;~JiI';: :, '-'\..i ,~' CROWN EMPL OYEES DE L ONTA/?iO 'tl: 't", ~{~'f~.~"'i ~~'~.. : " ""';-"'; GRIEVANCE COMMISSION DE 1111 SETTLEMENT . REGLEMENT _ BOARD DES GRIEFS 80 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO, M5G IZ8 TELEPHONE ITELt:PHONE (416) 326- 388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIfAILE TELECOPJE (416) 326- 1396 2459/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE (Phillips) Grievor and - The Crown in Right of Ontario (Ministry of Housing) , Employer BEFORE: S. stewart Vice-Chairperson M. Lyons j Member D. Montrose I Member FOR THE R. Carnovale GRIEVOR National Representative PUPE Local 767 FOR THE K. Billings EMPLOYER Counsel Miller, Thompson Barristers & Solicitors HEARING: October 29, 1993 1 . i r DECISION The grievor, Mr E Phillips, is employed as a labourer in the maintenance department of the Metro Toronto Housing Authority. The union claims that Mr Phillips was improperly denied paid sick leave pursuant to Article 19 of the Collective Agreement for Monday, January 27, 1992 and requests that the Employer be directed to pay Mr. Phillips sick leave for that day. It is the position of the Employer that Mr. Phillips is not entitled to be paid sick leave for the day as his absence was due } to a "hangover" which was characterized as a pre-meditated, self- inflicted condition which does not properly entitle Mr Phillips to obtain paid sick leave. It was cott~on ground that the issue of Mr. Phillips' -- absence on January 27, 1992 was the subj~ct of a telephone conversation between him and Ms. P. Baird, a support clerk, on Friday, January 24, 1992. Ms.. Baird is not a member of management. She is a member of OPSEU and was subpoenaed to attend at the hearing. J Mr. Phillips testified that while he was at work on January 24 he felt ill. He was unsure as to the exact nature of the illness but believed that it was a headache that he was suffering from. However, he was able to complete his day of work. Mr Phillips stated that during that day he telephoned the Q - 2 office at which time he spoke to Ms Baird. Mr. Phillips' evidence was that he told Ms Baird that he was not feeling well and that if he was feeling that way on Monday, January 27, he would not be in. Mr. Phillips stated that he also told Ms. Baird that he would be attending a "function" on the weekend. Ms. Baird testified that Mr. Phillips made no reference to feeling ill on the date of their conversation Ms Baird's evidence was that Mr. Phillips told her that he was calling to report that he would not be in the following Monday due to iilness. Ms. Baird stated that she asked Mr. Phillips how he could know in advance that he would be ill and that he responded that he would be attending a wedding and that he wout-d have a "hangover" which would prevent him from being able to work on Monday. Ms. Baird suggested that he take a vacation day but Mr. Phillips maintained that he wished to take a sick day on Monday. Ms. Baird left a .. message about the call for Mr. Harrison, Mr Phillips' supervisor. It was also common ground that there was a further telephone conversation between Mr. Phillips and Ms. Baird on the morninq o~ Monday, January 27, 1992. Mr. Phillips testified that he told Ms. Baird that he would not be in to work that day because he had too much to drink over the weekend. Ms. Baird had a similar recollection of the conversation She stated that Mr. Phillips told her that he was reporting sick and that he was unable to work because he had a hangover. ~ 3 Mr. Phillips testified that he attended a wedding on Sunday, January 26, and that h~ had "a lot" to drink He was somewhat vague about his symptoms on Monday, but stated that he was "not feeling well" and that he was not capable of safely operating the equipment he is required to run as part of his duties as a labourer. Mr Phillips testified that he is not an alcoholic. Mr. Phillips was not paid sick leave for the day. The day was treated as an unpaid leave of absence. Although Mr. Phillips did not see a doctor on the day of his absence, he offered to provide a doctor's certificate to his supervisor. The offer was rejected. The relevant provisions of the Collective Agreement are the following: ARTICLE 19 - SICK LEAVE 19.01 sick leave credits are established for the purpose of providing for the employee during periods of absence due to illness, injury or properly certified quarantine, and are not available to an employee for absence caused by any other reason. 19.02 Each employee shall be entitled to sick leave allowance on the following basis: Sick leave credits shall accumulate at the rate of 1 1/2 days for each month worked after the date of hire. An employee shall receive no credit in respect of any month in which he is absent from duty for any reason other than: \ 4 (i) vacation leave, (ii) leave of absence with pay, (iii) lateness that has not resulted in suspension, or (iv) authorized leave of absence without pay for a period that does not exceed ten (10) working days in the month. 19.03 (a) (i) sickness must be substantiated by a doctor's certificate if the absence is for more than three (3) consecutive working days; or for each and every absence if so required by the employer The notice will specify the reason and the duration of the requirement and may be extended upon notification to the Employee. Medical certificates must be submitted to the employee's supervisor upon return to work or in accordance To the extent that there is a discrepancy in the evidence we prefer the evidence of Ms. Baird. Ms Baird has no real interest in this matter and her evidence accords with what we view as the preponderance of probabilities. There was no reason for Mr. Phillips to call the office to advise that he was not feeling well if he was able to continue with his work. Ther(3 was no reason to tell Ms. Baird about the "function" that he was attending on the weekend unless he intended to relate his anticipated inability to attend at work to that event. The conclusion that we reach on the evidence before us is that Mr. Phillips intended to drink alcohol on sunday January 26, to the extent that he would be suffering its effects on January 27 and thus would be unable to attend at work. The issue to be determined is whether he is entitled to sick leave pursuant to Article 19.01 of the Collective Agreement. - 5 Mr. Billings referred the Board to two arbitration awards, Re Government of Province of British Columbia and British Columbia Government Employees. union, (1990) , 18 L A.C. (4th) 187 (Ladner) and Re Great Atlantic & Pacific Co. of Canada Ltd. and United Food & Commercial Workers. Local 175 & 633, (1986) 25 L.A.C. (3d) 189 (Hinnegan) In Government of British Columbia the grievor sought sick leave for two days of absence from work The collective agreement in that instance provided for payment where an employee "is unable to work due to illness". The grievor had been delayed in returning home from a trip 'to Europe, returning three days later than originally scheduled and arriving the day before she was scheduled to return to work. The grievor was off work the following day to recover from jet lag. She attended at work the following day where she had what was described as an "unpleasant confrontation" with her supervisor, at which time sQe became severely upset and went home. The arbitrator rejected her claim that she was entitled to paid sick leave ~or these two days. At pp. 188-189 of the award the arbitrator states as follows: - Anyone who has suffered from any extreme form of jet lag has felt sick or out of health. It is necessary, however, to determine whether one is in fact sick and out of health rather than simply feeling that way. Distinguishing between a disease and the symptoms of a disease is not a judgment that can always be made by a layman; in some circumstances it may require an expert opinion. I 6 am not suggesting that it was necessary for the grievor to attend upon a doctor on March 5th or 6th, but rather that where there is a difference of opinion as to whether the symptoms described by a claimant are evidence of an illness, an expert opinion, such as from a doctor, may be required before a reasoned conclusion can be reached about the issue. Clearly, an employee who is tired because he or she did not aget to bed early the night before is not ill. On the other hand, the employee who feels exactly the same way because that person has mono- nucleosis is just as clearly ill. An observer of those two employees may notice no difference. But clearly one is ill and the other is not. The difference between them can only be perceived by an expert. In the absence of an expert opinion as to whether the symptoms the Grievor said she was suffering on March 5th amount to an illnesss, I cannot say that the uian has discharged the onus that is upon it. Similarly, I am unable to say that the symptoms described by the Grievor on March 6th amount to an illness. It is possible that jet lag can make one more vulnerable to illness, ~t I cannot say that what the Grievor described as her condition on March 6th amounted to an illness. It seems more likely to me that she was simply distraught. Emotional illness may in some circumstances amount to an illness, but in the absence of expert medical opinion to that effect, I cannot say that the union has discharged the burden upon it with respect to its claim for March 6, 1993. In Re Great Altlantic & Pacific Co. of Canada Ltd., the issue was whether the grievor was entitled to paid sick leave for an absence due to a sunburn. The arbitrator concluded that the grievor was entitled to paid sick leave, on the basis that the sunburn had come about as a result of the grievor spending a number of hours playing volleyball in a pool rather than, for example, lying in the sun intending to acquire a suntan but instead, getting a sunburn. The Employer had a policy and ~ ~ ~ ~ 7 practice of not paying benefits for conditions that were self- inflicted and the issue as defined by the parties in that case was whether the sunburn was a self-inflicted condition. The issue to be determined in this case is whether Mr. Phillips' condition on January 27, 1992 constituted "illness" within the meaning of Article 19.01 of the Collective Agreement, and, accordingly, whether he is entitled to paid sick leave for that day. While, as Mr. Billings emphasized, Mr. Phillips was somewhat vague about his symptoms, his evidence was clear that he had consumed a good deal of alcohol the day previously and that { he was in no condition to operate the power equipment that he was required to run as part of his duties. It is our conclusion that on an objective basis, Mr. Phillips was physically incapacitated from performing his work on January 27, 1992 While it is clear that Mr. Phillips intentionally put himself in a position where he would be incapacitated he was nevertheless incapacitated. In our view, it is the existence of this objective physical incapacity that determines illness and hence entitlement to sickness benefits under the Collective Agreement. We are unable to accept Mr. Billings' sUbmission that we should follow the approach taken in Re Government of British Columbia, supra, and requi~e expert medical evidence to determine this matter in this case. While there may be some instances in which there is a real factual issue as to an employee'S incapacity and therefore expert medical opinion is required to establish incapacity, the case ..... "!" . 8 before us is not one of those The uncontradicted evide~ce established incapacity in this instance In our view, the I distinction that is made in Re Government of British Columbia at p. 188 between "whether one is in fact sick and out of health rather than simply feeling that way" is not only a difficult distinction but one that is inappropriate In our view, under , if the the language of the Collective Agreement before us, employee establishes physical incapacity to perfom his work, as in this case, he has established illness and thus entitlement to sick leave. In our view, the situation before the arbitrator in Re Great Atlantic & Pacific Co. of Canada Ltd., supra, is distinguishable from the case before us In that case, the issue that was defined and decided was whether ~he grievor's condition was properly characterized as self-inflicted and thus, in accordance with the employer's longstanding pOlicy, disqualified him from receipt of sick leave benefits. The arbitrator in that case was no~ called upon to determine the more fundamental issue of whether the fact that a condition may be characterized as self-inflicted excludes it from the definition of illness. To determine whether an incapacity constitutes an illness on the basis of whether it is self-inflicted creates real difficulties in application. For example, is lung cancer excluded from the definition of illness for smokers? Are medical conditions associated with obesity excluded? In a situation where a woman knows that a pregnancy will be incapacitating, does , ~ ~ 9 her incapacity not constitute an illness where she has chosen to become pregnant? Would a different result follow if her I pregnancy were accidental? In our view, these examples point out I the flaws associated with employing the concept of self- infliction as a basis for determining whether a condition constitues an illness. The more appropriate test, and the one that we adopt, is that illness and hence entitlement to sick leave is established where the objective evidence establishes a physical (or possibly emotional) inability to perfom work. On this test, Mr. Phillips is clearly entitled to siCk leave for January 27, 1992. Our conclusion in this case should not be construed as an endorsement or condonation of Mr. Phillips' actions. Mr. P~illips made a conscious decision to drink alcohol to the extent that he would be incapacitated and thus unable to attend at work on January 27, 1992. He was in breach of a fundamental obligation of an employee. His actions were inappropriate and might well attract a disciplinary response by an employer. However, no issue of discipline in connection with this matter was in issue before us. The only issue for us to decide is whether Mr. Phillips was ill on the day in question. For the foregoing reasons it is our conclusion that Mr. Phillips was ill. Accordingly, he was entitled to sick leave for the day and we so order We retain jurisdiction in the event that the parties ~ r ,..~~ . 10 \ experience any difficulties in the implementation of this decision. Dated at Toronto, this 6 day of January, 1994 ~~1' s. L stewart - Vice-Chair ,..,--_4>-- , Lyons ;::~ ~ ~-- ---- 0 Montrose - Member