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HomeMy WebLinkAbout1988-1480.O'Blenes.92-05-11 ;-(, 1:t:,. ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GR,IEFS 180 DUNDAS STRECT WEST SUITE 2100, TORONTO ONTARIO. MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 T80 RUE DUNOAS OLlEST BUREALl2100 TORONTO (ONTARIO) MSG lZ8 FA CSIMJlE ITELECOPIE (416) 326-1396 1480/88 IN TBB IlATlfBR OJ' AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKEJI'T BOARD BETWEEN OPSEU (O'Blenes) Grievor - and - Tne Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE; J. McCamus Vice-Chairperson I. Thomson Member D. Montrose Member FOR TH' H. Gavin . GRIEVOR Grievance Officer Ontario Public Service Employees union FOR THE B. Labord EMPLOYER Counsel Hicks, Morley, Hamilton, stewart & storie Barristers & Solicitors HEARING June 14, 1989 October 20, 1989 . :J This grievance concerns an alleged abuse of the sick pay \ provisions of the Collective Agreement by the Grievor with respect I I to which the Employer imposed a two-day suspension. As well, the I Employer denied sick leave benefits for the six day period in ! I question during which, on the Employer's view of the matter, the i Grievor was sufficiently well as to be able to come in to work I I The Grievor denies that he abused the sick leave arrangements and ! , I that ill at the relevant point in time. i asserts he was I Accordingly, the relief sought on his behalf is that both the denial of sick leave and the two-day suspension be rescinded, that the Grievor's personnel records should be expunged of all disciplinary action relatinq to this incident and that he should I I \ , be compensated in full for lost pay and benefits. I i i I I The basic pr~vision of the Collective Agreement providing for I I Employee entitlement to sick leave is set out in Article 52.1 in ! I the following terms i . I I i 52.1 An employee who is unable to attend his duties I due to sickness or injury is entitled to leave- I of-absence with pay as follows: i I (i) with regular salary for the first six (6) I working days of absence. I I (ii) with seventy-five percent (75%) of regular I salary for an additional one hundred and i twenty-four (124) working days of absence. , In the present case, the principal issue in dispute is whether it has been successfully established, on the evidence before this ! , 1 I I I J1 i I I \ I r _ ..(: ~ ~ .. Board, that the Grievor was "unable to attend to his duties due to sickness" during the relevant period of time. The Employer relies principally upon evidence concerning the Grievor's activities during the disputed period which it claims to be inconsistent with I 1 a finding that the Grievor was unable to attend to his duties due to sickness. This evidence consists of direct observations made by the Grievor's supervisor and by the Grievor's own evidence of his activities during this periOd For its part, the Union relies on evidence proffered by the Grievor's physician, both in the form of medical certificates and in testimony provided by the physician in this proceeding. As well, the Union relies on the Grievor's testimony concerning the state of his health during this period. The Agreement requires an Employee to provide a medical certificate in circumstances such as those of the present case. Article 52.10 provides as follows: 52.10 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, certifying that the employee 1s 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. Although a nUl'l\l:::ler of medical certificates were provided to the Employer in the present case, it is the Employer's position that 2 I I r ,. -l~i ~.l' i ; I those certificates are not inconsistent with a finding that the I I Grievor was well enough to attend to his duties during the time I I I covered by the certificates. I I I , I I I Before turning to consider the evidence led by both parties, I I it is convenient to address a legal argument raised by the Union I which would have the effect of disposinq of the Employer's case in , It has been argued on behalf of the Union that i summary fashion. I ! the Employer's failure to invoke the mechanism set out in Article i I I I 52.9 of the Agreement precludes the Employer from making an \ ! effective allegation of abuse of sick leave. Article 52.9 provides i as follows: I I I ! I I 52.9 Where, for reasons of health, an employee is I frequently absent or unable to perform duties, the I i Employer may require him to submit a medical I examination at the expense of the Employer i I The Employer having failed to exercise its right to require an I I examination in the present case, the Union argues that it . I ~s effectively estopped from Challenging the bona fides of the Grievor's claim of illness. In other words, the Union argues that I resort to Article 52.9 is, in effect, a condition precedent to an I I I Employer's denial of siCk leave entitlement on grounds of lack of I I 1 bona fides. If the Employer has developed concerns with respect I ! I to the ~ fides of an Employee assertion of illness, the Employer must, so the argument runs, exercise its rights under this , provision. I I 3 i I I I I I I I I - , ~, ~ ~ An attempt was made to draw support for this interpretation of the effect of Article 52.9 from the previous decision of this Board in OPSEU (Steffens ) and Ministry of Correctional services (322/84 and 323/84) Although there is in that decision, a passage which may appear to lend support to the view advanced by the Union, it is our view that the Steffens case deals with a very different question. In Steffens, the Employer challenged the adequacy of certain medical certificates pertaining to a rather lengthy illness. The Employer's arqument was that such certificates must meet the requirement of that article by explicitly "certifying that the Employee is unable to attend to his Official duties". As one or another of the certificates did not plainly make a statement of this kind, the Employer denied sick pay benefits for the period covered by the allegedly deficient certificates. At no time, however, did the Employer a11eqe that the qrievor in that case was not ill, nor did it challenge the bona ~ides of his claim that he was unable to work. It is in this context that Vice-Chairperson Brandt made the following statement at page 10 of his reasons, upon which the Union relies in the present case: "In view of the fact that the Employer does not challenge the bona fides of the Grievor's illness there can be no question that the Grievor has brought himself with the provision of Article 51.1 which is the basic provision entitling him to sick leave. Given this basic entitlement we are unable to 4 . I r ._, . agree that the failure of the Grievor to fully meet what might "I i be regarded as certain technical requirements set out in Article 51.10, that is, that the certificate formally certify that the employee is unable ~o attend to his official duties, I ; should deprive the Grievor of benefits to which he is, on the I I I I Employer's own admission, entitled." , I i I I It is our view that these comments are very much rooted in the I particular type of objection being taken by ~e Employer in the Steffens case. That is to say, ~e panel in steffens offered the I view that where an Employer challenges the adequacy of a particular I i certificate under the standard set out in 51.10, it will be I I ' I material to the Board's deliberation on that point whether the , I Employer has, in fact, challenged the h2nA fides of the claimed : I I I I illness. Where the Employer has made no such challenge, the ! 1 Board's view was that it should not be overly technical in making I I I a determination as to whether a particuiar certificate Deets the \ I I standards set out in Article 51.10. I ! I ) In the present case, of course, the Employer has indeed I challenged the bona fides of the Grievor' s claim that he was unable I to attend work during the period of time in question. In our view, I I steffens offers no .suPl;:lort for the proposition that where ~ona I fides is challenged, it must be challenged by means of the device , I set out in Article 52.9. Steffens is silent on this point. \ I Moreover, we do not view the interpretation offered by the Union I I ! I I 5 I 1 i I I i I I " ~ I 7 as is alleged in the present case, to be a sound one. If, ~e Employer gains direct evidence of what it considers to be malingering, it may be entitled to rely on that evidence in denyinq sick pay benefits without exercising its right to obtain a medical examination under Article 52.9. There would be many cases where a medical examination might not be helpful as, for example, where the physician would essentially be dependent upon the truthfulness of the Employee's description of his or her symptoms or where the alleged illness has now been cured. In cases where the Employer deems that it would be helpful to require such an examination, Article 52.9 obviously permits it to do so. The Employer is not, however, required to do so in every case on pain of being held to I have failed to meet a condition precedent for the making of an allegation of lack of bo~a fides. Accordingly, it is our view that the Employer's failure to exercise its rights under Article 52.9 in the present case is not, by itself, a basis for dismissing the Employer's allegation that the Grievor was a~le to return to work during the period in dispute. Before turning to consider the evidence led by the Employer in the present case, we note that submissions were made by both parties with respect to the burden of proof shouldered by each party in a case such as the present. We find helpful the discussion of this issue set out by the Board in OPSEU (Kunka) and Ministrv of correctional Services (146/83) in rather similar circumstances. Vice-Chairperson McLaren stated the following at page 8: 6 I i ~ I - "Much was made in argument by both Counsel as to who might I , have the onus in this case The onus is upon the Employer to \ . I I The cases are leqion on that point and I justify discipline. i no authority need be cited to justify such a position. While I I I the primary onus is upon an Employer to satisfy a panel of I I this Board that there just for the discipline I was cause \ there can be a shiftinq onus once there has been a I imposed, I I satisfactory proof of the cause. In a case of illness, the I I I shifting of the onus would be to the employee to provide an \ explanation and substantiate and corroborate that explanation I i as to the leqitimacy of the illness." I I \ I I In ~unka the Board concluded that the Employer had not discharged \ the initial onus of establishing just cause for discipline. On ! I the day on which the Grievor claimed to be ill, a protest in the I form of a withdrawal of services by a number of employees had I , I occurred. On the previous day, the Grievor had been absent because I I I I of illness and the Employer did not challenge the bona fides Qf I 1 I that absence. The Employer was suspicious of the Grievor's absence on the next day when twenty of twenty-five correctional officers I 1 at the facility in question failed to attend work and claimed i I illness as their reason for absence. I On these facts, t.he Board I 1 concluded that the Employer's reasons for denial of sick pay I i benefits to the Grievor was "both circumstantial and conjectural". I I Vice-Chairperson McLaren went on to say on page 9, that, tteven if I I I i 7 ! I I I - the Employer had satisfactorily got over that [initial] hurdle by, for example, telephoning him at home and discovering that he was not there, and proving he was present at the demonstrations which took place that day, that would merely have shifted the onus to the Grievor to provide an explanation". In considering the evidence led on behalf of the Employer in the present case, then, it must be asked whether this threshold burden of establishing just cause has been met. The case for the Employer was put in through the testimony of Mr. E.C. Aldrige, the Evaluation Manager in the Ministry'S Whitby office where the Grievor was employed as a Property Assessor I~~. A1drige's recollections of the events leading up to this grievance were as follows. On Thursday the 24th of November, 1988, the Grievor did not attend work. He bad left a note on Aldrige's desk the night before indicating that he would be taking a lieu day as he had built up extra hours through overtime. The following day, Friday, November 25th, the Grievor came into the office and gave Aldrige a note from his doctor (Exhibit #3) which read as follows November 25, 1988 Mr. David O'Blenes has been ill and unable to work since November 24/88. He will be off work for another 7 - 14 days. Dr. G. A Jaciw. 8 i I I j - " I Aldrige recalls that the Grievor indicated that he was experiencing I stomach pain and that he then l~ft for the rest of the day. One i I I week later, on Friday, Dece~er 2, 1988, another Ministry employee advised Aldrige that th~ Grievor was working in a store in Cobourg, I helping to prepare it for an opening. The store in question was 1 I owned by Everett Kelly, a former Ministry employee, who was a good I I I ! friend of the Grievor. Aldrige was apparently aware of the fact I I I I that the Griever had previously assisted Kelly with renovations of I Kelly's home and had received paYment for the services rendered. I I I i Aldriqe was evidently suspicious that the Grievor was abusing his ! i sick leave by providinq similar services for remuneration at I II Kelly's new store. I I \ I I Aldrige discussed the situation with the Commissioner, Mr. R. parnell, it decided that Aldrige I and was should attempt to i I I , determine whether or not the information was correct. That I ( afternoon, Aldrige drove from Whitby to Cobourg and observed the I i Grievor for ten to fifteen minutes wi th Kelly in the store in I question. Aldrige di~ not have a particularly good view as he i remained in his car in the parking lot some distance from the I 1 , I store When challenged on cross-examination, Aldrige conceded that \ I I all he could tell was that the Grievor was moving around the store I doing things, the nature of which he could not discern. I j \ i I I I 9 I i I i i I . I ; - '. On Monday, December 5th a telephone message was left by the Grievor at the office indicatipg that he would not be in that week. The handwritten telephone message slip (Exhibit #7) stated, "still doinq tests so he will be off the rest of this week". The message was directed to Mr Aldrige. Aldrlge returned to the CObourg store in question on Wednesday, December 7, 1988 and, once again, observed the Grievor with Kelly in the store for ten to fifteen minutes. Again, Aldrige did not leave his car which was parked some distance from the store. This time, however, Aldrige cl~imed that he had a better I view and was able to see the Grievor lOOking at a role of paper I which appeared to be plans of some kind. The Grievor appeared to be working on the floor and then getting up and moving around. Aldriqe could not see exactly what he was doing with his hands. Aldrige next saw the Grievor on Friday, December 9th when the Grievor came into the office and reported to Aldriqe that he was feeling better and that he expected that if he continued to do so he would be in to work on Monday, Oecember 12th. Upon his return to work, the Grievor was invited to meet with Aldrige and Parnell. Aldrige made detailed notes of this meeting which were filed as Exhibit #8. Parnell advised the Grievor that he and Aldrige had come to the conclusion that he had abused siCk 10 , . leave and invited him to consider whether he wished to have a Union . I representative at the meeting. The Grievor declined that I I invitation. It is pnnecessary to recount the details of the I meeting. There was a lengthy discussion of the Grievor's illness i 1 , which would appear to be consistent with the evidence provided by I 1 I the Grievor in this proceeding. It would appear that the Grievor \ I was somewhat evasive in responding to questions relating to his i I I attendance at the store in Cobourg. It was Aldrige's evidence that \ when asked if he had been at Kelly's store during the past two I weeks, the Grievor indicated that he had been at the store on I I Friday, December 9th and on one other day. When challenged by 1 I Aldrige's assertion that ne had seen him there on December 2nd and I 1 December 7th, the Grievor agreed that he had been at the store on I I , those days. The Grievor's account of "this exchange was slightly ( ! 1 different He indicated that he initially indicated that he had I I I ! been a~ the store a couple of times and, flustered by what he I I \ viewed as false allegations of abuse of sick leave, he wa~ perhaps , I I not as forthcoming with information as he might have been. When f I I asked if he had helped Kelly, the Grievor conceded that he had done I so, stating that he was not the sort of friend who would stand ! around and do nothing. When asked if he had been paid by Kelly for I I this work, the Grievor denied this but indicated Kelly had given ! ! i him gas money. I I 1 I Later that day, the Grievor filed a request for a leave of I "I , 1 absence (Exhibit #9) for the period of December 2nd through I I 11 I : , i I ( I I ~ C'; The form requested that the leave be charged against December 9th. his averaging hours, that is, against his overtime bank. Thus, it appeared that the Grievor was perhaps conceding a difficulty and trying to resolve it by charging the days off in question against his overtime credits. Aldrige called the Grievor into his office and told him that would not approve that request as it was the sort of request that would have to be approved in advance of the leave. Further, he indicated that given the current workload of the office, he would not have approved the request even if it had been made in a timely fashion. A further meeting was requested by the Grievor for December 14th. On that occasion he met with Parnell and Aldrige and advised them that he was considering grievances of various kinds and, indeed, the pOSSibility of bringing a legal claim for defamation of character. Either at this meeting or at some other point in the day, the Grievor made available to Aldrige a further note from his doctor. The note (Exhibit #4) had been prepared by Dr. Jaciw on Tuesday, December l3th and read as follows: "Mr David 0 I Blenes has been ill and unable to work from November 24/88 till December 9/88 inclusive. He was under my care since October 31/88. Dr. G.A. Jaciw. 12 I , ~ I .. ] At approximately 11:00 a.m. on the same day the Grievor resubmitted ! his request for leave of absence revising it to a request for sick leave. A further meeting was held on December 16th with the Grievor, Aldriqe and Parnell all . attendance, together with a union In I representative, Mr. Wayne Shred Aldrige's note of that meeting I I indicates that on this occasion the Grievor indicated that he had 1 also visited the store on Thursday, December 8th and as well on the I I I I Saturday, December loth which was, of course, the Saturday before I ! his return to work on Monday, December 12th. As well, he indicated , that he had assisted by Kelly by laying some floor tiles. When I I I asked if he had told his doctor he had assisted a friend in opening I I i a s~ore, the Grievor allegedly replied that he had so advised his I I I doctor but had not told him that he was laying floor tiles. i I \ I In due course, on December 20th, Parnell wrote to the Grievor I (Exhibit #:2) and advised him that he had come to the conclusion I 1 I I that he had engaged in an abuse of siCk leave provisions , from I December 2nd to December 9th. As well, he indicated that it was \ I i h~s "opinion you were negligent in failing to inform your physician I I of the nature of your activities while in Cobourg on the dates of I I i December 2nd, 7th, 8th, and 9th, 1988, thereby causing him to issue I I I , an inaccurate medical certificateu. Parnell also wrote that he \ I I considered that the Grievor was "negligent in failing to return to I I I I 13 l !" . initiative" . The letter indicated that the work on your own sanctions to be imposed were denial of sick leave for the period from December 2nd to December 9th and the imposition of a two day I ~ suspension without pay. On the basis of the foreqoinq evidence, we have no difficulty coming to the conclusion that the Employer has discharged its initial burden of establishing evidence of just cause. Accordingly, we come easily to the conclusion that the onus therefore shifts to the Union to establish, in the words of the Kunka decision, referred t.o above, "an explanat.ion and substant.iate and corroborate that explanation as to the legitimacy of the illness" In this case, the Onion has attempted to do so through the evidence of the Grievor himself and his physician, Or. Jaciw. As will be seen, the combined effect of t.he testimony of these two witnesses does, indeed, place the Grievor's behaviour in a somewhat different context than that perceived by the Employer. The Grievor indicated that he had been feeling ill for approximately one month prior to November 24th. Nonetheless, he had continuad to work. and, indeed, worked a good deal of overtime during that period. Eventually, he consulted Dr. Jaciw on october 31, 1988. Dr. Jaciw, in the course of his testimony, made frequent reference to his file. On october 31st, the Grievor had complained to him of chest pains, abdominal pains, diarrhea and nausea for about a week or so. In his testimony, the Grievor indicated that 14 ~. i he was worried about the possibility of a gall bladder problem as ! ; I his wife had had such a problem and had endured similar symptoms. ! I I On october 31st, Jaciw arranged for an ultrasound test to be held I I I on November 1st. Jaciw saw the Grievor again on November l5th I I because of the persisting symptoms together with loss of appetite I I I and lots of gas. The ultrasound had shown no gall stones. On I Novem1::ler 15th, Jaciw prescribed some antacid and arranged for an I I examination of stools. I ! I Jaciw saw the 'Grievor again on November 25th. At this point I I I the symptoms were still persisting. Jaciw considered the 1 I I possibility the Grievor could be suffering from peptic i that a I ! ulcer. On the 25th he prescribed medicine for a peptic ulcer and I I I arranged for stomach x-rays. Jaciw prepared Exhibit #3 indicating I I that the Grievor would be off work for seven to fourteen days. His I I I I I explanation for this was that because of the persistence of the j symptoms and the difficulty of diagnosis he did not think that the J I I Grievor would get better very quickly In conversation with the I ! I Grievor and in discussion of the possibility of an ulcer, the I ! Grievor indicated that he was under considerable stress at work I Jaciw testified that stress would play a big part in a peptic i I I ! ulcer. Jaciw further testified that as he was thinking of ulcer I I as a possibility, he felt that it might be helpful to have the I I ; I Grievor away from work for a period of time and that this thinking was part of the explanation for his suggestion that the Grievor I might be away from work for a period of seven to fourteen days. ! i i I 15 I ! I I \ . 'i On the 25th, Jaciw also arranged for Grievor to have what was referred to as an "Upper G.I." test The point of this test, he explained, was to look for ulcer cancer. Or. Jaciw next saw the Grievor on Monday, December 5th. During the period of time from November 25th to December 5th, the Grievor testified that he continued to feel very poorly. He had difficulty eating and keeping his food down. He continued to suffer from diarrhea and he felt weak. In addition, he had begun to be very worried about his medical condition. The Grievor explained that he has a young family that another younger assessor had died in similar circumstances and that he had begun to wonder if he was next. Cancer was something being investigated He explained that he was alone most of the week, that he visited his mother and on Friday, December 2nd, he decided to drive down to I Cobourg in the hope of seeing his friend Kelly at his store. The Grievor' s evidence was that they vis! t.ed together in the store from late morning, had lunch together and that he went home again mid- afternoon. It was on this occasion, it will be recalled, that Mr. Aldrige observed the Grievor and Mr. Kelly in the store from his vantaqe point in the parking lot. . On Monday, December 5th, the Grievor returned to see Dr. Jaciw. Jaciw provided a detailed account of this consultation. By this time, the good news that the Upper G.I. test which was negative, was available. As well, the stool test results were 16 ! available and indicated the presence of giardia lamblia cysts ~ 1 This was, in Jaciw's view, the probable cause of the diarrhea. It I , I I is a parasite that responds to treatment within seven to ten days I i I and Jaciw prescribed the appropriate remedy. Although Jaciw at I I this point felt that the explanation for the diarrhea had been i I I found, he was concerned that he had not gotten to the bottom of the I , I Ulcer was still very much a possibility, in his I stomach problem. < I . I mind. His unease with his difficulty ~n making a confident I ! diagnosis led him to recommend a second opinion and to make an I ) I appointment for the Grievor on December 20th with a gastro- i I I , enterologist at the Oshawa General Hospital It was Jaciw's view I I I that the Grievor was not yet well enough to return to work although I I he did not recall discussing this point with the Grievor on that f occasion. i I \ The Grievor described his activities, apart from the visit to I I I Dr Jaciw, durinq the week of December 5th to 9th as follows. On i I I Tuesday, December 6th, the Grievor began to feel some better and I I he noted some improvement the next day, as well. On the Wednesday, 1 I I he indicated that he attended at the store in Cobourg for most of I ! the day and helped Mr. Kelly lay floor tiles. He indicated that I he was not feeling "great" on Wednesday but that he felt well I I enough to engage in this activity, mueh of which involved sitting I ! on the floor and pressing down floor tiles. Towards the end of the I i I I day the Grievor began to feel less well and indicated that he I I i regretted having been as active as he had been. This, it will be I I ! 17 I I I ! I ~ ~ ~, recalled, was the occasion for Mr. Aldrige's second visit to the adjacent parking lot. On the next day, Thursday the 8th, the Grievor had felt less well than he had at the beginning of Wednesday. He testified that he visited the store but stayed only for a few hours and went home again. By Thursday evening, however, the Grievor felt that he was, again beginning to improve. He testified that he ate the best meal he had eaten for quite some time Thursday evening. On Friday morning, the 9th, the Grievor indicated that he felt better than he had felt in a month. He therefore went into the office and told Mr Aldrige that he was feeling better and expected that he would be able to return on Monday, the 12th. Taking his young baby with him, he went to visit his mother for tea and visited his friend Kelly, again, with the baby, and advised him of the improved state of his health. On Monday, the 12th, according to the Grievor, he was feeling much better, especially psychologically, and went into work in a positive frame of mind. The Grievor's encounter with Aldrige and Parnell on the 12th has already been described in some detail. On the 13th, the Grievor attended the appointment with Jaciw which had been arranged on the 5th. Little evidence was offered concerning this meeting. It would appear that the Grievor outlined his difficulty at work to Jaciw. Dr. Jaciw prepared the further medical certificate concerning the Grlevor's illness (Exhibit #4) which read, it may be recalled, as follows: 18 - 1: '" J I Mr. David o'Blenes has been ill and unable to work from I November 24/88 till December 9/88 inclusive. I I He was under my care since Oct 31/88. I 1 I I A further certificate was issued by Dr. Jaciw subsequent to I the sending of Parnell's letter of discipline to the Grievor on December 20th (Exhibit #2). On Oecember 22nd, Dr. Jaciw provided I I the Grievor with the following certificate (Exhibit #13): , , \ I I "Dated December 22, 1988. I \ Mr. David O'Blenes has been seen by me Nov 25/88. He I presented himself with symtoms that could have been caused by I , stress at work. Consequently he was advised to be off his I present job for a period of approximately 2 weeks. Physical i activity in itself would not have Deen detrimental to his illness. Dr. G.A. Jaciw. I I I I Dr. Jaciw confirmed the point made in the certificate in his I i testimony in these proceedings. He had not prescribed bed rest for I , the Grievor and it was view that there would be no harm in the I I Gr ievor' having some physical activity during his period of ( I 1 I convalescence. There is no evidence to suggest, however, that the I I I I Grievor raised the possibility of activity of the kind he engaged ! I in at Kelly's store in his meeting with Jaciw on the 5th of 1 I December. The Grievorrs evidence was that the work in which he i ! I I 19 I i I i ! I I I i -. : ,.. The tiles laid on the 7th, the day on engaged was not heavy work. which he allegedly overextended himself were vinyl tiles. The laying of such tiles, not in themselves heavy, involves cleaning I I of the floor, covering the floor with an adhesive and sticking the tiles on top The Grievor indicated that he had not assisted in preparing the floor or affixing adhesive. He merely applied the tiles to the floor, normally from a sitting position. He could, of course, proceed at his own pace and stop whenever he wished to do so. On the basis of the foregoing evidence, it is submitted on t.he Grievor's behalf that he has provided ample evidence of illness which justified his absence from work during the period from December 2nd to December 9th. That evidence was supported and corroborated by the evidence of Dr. Jaciw. Moreover, the story provided by the Grievor is not in any significant respect inconsistent with the account provided by Mr. Aldrige. Although, he believed that the Grievor was at work when he observed him in Kelly'S store on December 2nd, Aldriqe himself concedes that he himself could not really see what the Grievor was doing. Aldrige's observations on the 7th are consistent with the Grievor's account I , of his activities on that day. Further, although the Grievbr and Mr. Aldrige disagree with respect to the extent of the Grievor's evasiveness on December 12th, it is common ground that the Grievor, before realizing that he had been observed, did concede that he had visited the store on a couple of occasions. Thus, provided that 20 I - -, ~ .tI -'l the Grievor's evidence is found by the panel to be credible, the I I Union argues that it has discharged the burden cast upon it in this I I , case. I \ I I With respect to the question of credibility, we find the I evidence of both the Grievor and Dr. Jaciw to be credible. I I I Although Dr. Jaciw was plainly supportive of the Grievor's I I position, he did not exaggerate the strength of that support. He I I I was quick to concede that only the Grievor could have known when I I I I he was actually well enough to return to work. Further, although , I I he was unwillinq to completely rule out the possibility of an I \ did concede that the fact the Grievor's symptoms I ulcer, he I I I disappeared would suggest that the viral infection was the sole i I cause of the Grievor's problems. Nonetheless, he was convincing I I in statinq his view that as of December 5th, the Grievor had a I I I I significant medical problem of an indeterminate nature and that he I I I was SUfficientlY ill as to be unable to return to work. The I I Grievorts actual recovery time is well within that projected by Dr. I I I far as the Grievor's testimony is concerned, I Jaciw. As we have I I I considered whether his credibility should be considered to be I I , significantly undermined by his alleged evasiveness on December f \ i loth. Certainly, to the extent that he was evasive on that I I occasion, such conduct is not impressive. On the other hand, we I 1 are not persuaded that his behaviour on that occasion should lead i I us to suppress the impression created by his testimony, that being I I that he was forthright and straight-forward in giving his testimony i I I I I 21 I \ I I I I j i I I '"" . ~ in these proceedings. Thus, we are quite satisfied that the Grievor was genuinely ill and that he did not feign illness in I order to assist his friend Kelly in preparing his store either on I ! a remunerated or a non-remunerated basi~. Even if one accepts the Grievor's evidence at more or ~ess face value, however, difficult questions remain. It has been urged on behalf of the Employer that the Grievor's conduct on December 7th, was, in any event, unacceptable. Surely the Employer is entitled to have an ill employee devote his attention to recovery rather than to engage in conduct, such as that engaged in on the 7th, which led to a relapse or prolongment, perhaps, of the recovery period. Further, if the Grievor felt well enough to drive some distance to Cobourg and engage in the sort of activity he engaged in at the store, the Employer arques, surely he must have felt well enough to come in to work. certainly there is no question but that there may e~ist a state of health in which one is not so ill as to require bed-rest but not healthy enough to require a return to work Common sense supports this view and so do a number of previous cases. As was noted in re st. Jean de Brebeuf Hos~ital v. CUPE (1977), 16 LAC (2d) 199 (Swan) at page 205, "an employee does not have to demonstrate total physical incapacity to work. It is enough to show that, because of illness-produced discomfort, weakness or pain, it would be unreasonable to expect the employee to perform 22 \ - ~ ~ tl, the work of the jOb". See also Re De Havilland Aircraft v. UAW. 1 I I Local 112 (1981) 2 LAC (3d) 402 (Brown) ; Re Trustees of Ottawa I civic Hospital and CUPE . Local 576 (1975), 8 LAC (2d) 140 I i As might expected, the Union I (Weatheri1l) . be contrasted the I stressful and burdensome nature of the Grievor's work I responsibilities with the leisurely nature of the activities I I conducted at the store. It was suggested that the Employer's \ i scepticism with respect to this activity arises from its initial I theory that the Grievor was engaged . remunerated work while ~n pretending illness. I It was suggested that if the Grievor had done. ! I some gardening in his own backyard on the 7th, and had overextended I I : I himself, it is not likely that the Employer would have considered I I i this to be a problem. I I I i I I We think that there is considerable force in the Union's \ position on this point. The real question in determining whether the Grievor legitimately engaged in physical activity and I I legitimately refrained from returning to work until Monday the lOth i I rests on an assessment of the degree of good faith with which he made the decisions involved. If the Grievor in good faith thought I that he was well e~ough to visit his friend in Cobourg but not well enough to go to work, his conduct is in our view defensible, even if it resulted in a prolongment of the recovery period. Although I 1 the Employer is entitled to expect good faith in the making of such I jUdgments, it is not entitled to perfection in the making of such I I I decisions. People do occasionally overextend themselves during \ I J I 23 I I I I i 1 , I _. , ~ convalescence with the possible result that recovery is delayed Further, the Employer was entitled to have the Grievor make a judgment in good faith on Friday, the 9th as to whether he_ was sUfficiently recovered to come in to work We have come to the conclusion that the evidence supports the view that the Grievor did act in good faith in these respects. The point is not, however, one which is free from difficulty and we find the Employer'S scepticism on these points perfectly understandable. Nonetheless, on balance, we think it more likely than not, that the Grievor was acting in good faith. The Grievdr had had a somewhat harrowing experience. He was justifiably worried that he might De seriously ill Neither his doctor nor the Grievor himself could know that the problem had been properly diagnosed on the 5th. The Grievor himself could not be confident that his problem had been properly diagnosed and treated until he did, in fact, recover. It is understandable that the Grievor would feel the need of the company of a friend in such circumstances. If he behaved unwisely on the 7th in overextending himself, this is not, in itself, sufficient evidence to establish bad faith. Accepting, as we do, the Grievor's evidence that he felt unwell again on Thursday, the 8th, we find it credible that he could make a good faith decision on the 9th - even though feeling better - to take another day off work in order to ensure that he was truly on the road to recovery. In short, though we think the Grievor behaved quite unwisely in the sense that he gave rise to reasonable 24 - I , ..... i 'C' ! grounds for the Employer to suspect his honesty, we are satisfied 1 that he probably acted in good faith in circumstances of genuine i illness. , ~ I I, I I For the foregoing reasons, then, we find that the Grievor was I I unable to attend to his duties during the period from December 2nd \ i to December 9th because of illness. It necessarily follows that I \ I he should not have been subjected to discipline for his failure to I I attend work during that period. I I I I Accordingly, it is hereby ordered that the Employer's denial I I of sick leave and imposition of a two day suspension be rescinded and that all reference to the alleged abuse of sick and discipline I I I arising therefrom be removed from the Employer I s records concerning I I the Griever. As well, it is ordered that all wages, benefits and I i credits lost by the Griever as a result of this discipline be I I I restored to him. The Board remains seized of its juriSdiction in I I I order to provide any assistance the parties may find necessary in I I the implementation of this award. 1 I ! 1 I I I I I i I I I I i ) 2S I I i I I , ., . Dated at Toronto this 11th day of MaYt 1992. ~~~ I.J. Thomson Member "I Dissentn (dissent attached D. Montrose Member 26 'i ..- I . I 't I I ! RE 1480/88 - OPSEU (O'8LENES) I I AND THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF REVENUE) I I I I I I I I have had the opportunity of reviewing the majority award and with respect I I must dissent ! I do, however, agree with the award up to the point that some physical activity during convalescence, e g work or play, is beneficial and in moderation should be encouraged I rapidly depart from the majority concerning the nature of the physical activity in this case conducted by the Grievor ~ ~ The laying of floor tiles in a commercial establishment in Cobourg, in my estimation, is well beyond the physical activity normally associated with convalescence Although visits to the store in Cobourg were recorded, which entailed driving from Oshawa, the Grievor's residence, no further physical I activities were observed or recorded However, the activities do lead to the conclusion that the Grievor was able to return to his duties between December 2nd and 9th, 1988 I I would dismiss the grievance ~ ' ~^~t ~ Douglas C Montrose "