GSB# 2005-0680

Union# 05-21

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Richards)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Ian Thompson National Representative Canadian Union of Public Employees

FOR THE EMPLOYER

Gurjit Brar Counsel Workplace Safety and Insurance Board

HEARING

December 14, 2005.

Decision

1On January 11, 2005 the employer (“the WSIB”) terminated Kirsten Richards’ employment “in accordance with Article 13.05 of the Collective Agreement,” because in its view she had not provided a justifiable reason for her absence from work from and after December 13, 2004. Article 13.05 of the Collective agreement provides:

ARTICLE 13 DISCIPLINE AND DISCHARGE

13.05 When an employee is absent in excess of ten (10) consecutive working days, they may be discharged for not providing a justifiable reason or for not notifying the employer, unless giving such notice was not reasonably possible.

The pertinent facts are not substantially in dispute.

2In October 2004 the grievor formally requested that her remaining vacation entitlement be combined with unpaid leave to permit an absence from work for a six-week period ending December 10, 2005. She told her manager, Elizabeth Falby, that she would be going to England during that time. Ms. Falby granted her request. The combined vacation and leave commenced October 28, 2004.

3Ms. Falby had been due to retire, and in mid November 2004 Ms. Joanne Doiron replaced Ms. Falby as manager of the payment processing unit in which the grievor was employed. On December 13, 2005, Ms. Doiron received a telephone call from the grievor’s mother. She said that her daughter would not be in to work, was still in England, and wanted an extension of her leave. She also said that she would be sending Ms. Doiron a letter later that week. She gave Ms. Doiron her daughter’s cell phone number, and asked Ms. Doiron if she wished to speak with her daughter directly. Ms. Doiron said that she would.

4That afternoon Ms. Doiron received a telephone call from the grievor. The grievor told her that she wanted to extend her leave until early April because she was suffering from stress. Ms. Doiron asked about the letter that her mother had said would be sent later that week. The grievor said it was a letter from her family doctor concerning the stress. Ms. Doiron told the grievor that she would get back to her after she received the letter.

5The following letter arrived by fax in late afternoon on December 14th and came to Ms. Doiron’s attention the following morning:

December 13, 2004

To: Joanne Doiron

Re: Kirsten Richards

As you know, Kirsten has been experiencing anxiety and depression secondary to work related stress for the last two and a half years. She has been on an extended holiday for the last five weeks and still feels very anxious about a return to work because of the ongoing situation at work. She is requesting an extended leave of absence for medical reasons.

Sincerely,

Janet Krulewitz, M.D., C.C.F.P., F.C.F.P.

6Ms. Dorion had no knowledge of the things said in the first sentence of the doctor’s letter. At some point before or after receiving this letter she telephoned Ms. Falby and asked whether the grievor had ever complained about stress at work. Ms. Falby told her that the grievor had not used that word, that she had spoken of being depressed, waking up sad in the morning and not knowing what to do, but that she had seemed happy working in the payments department. Ms. Doiron spoke to her superior, who told her that if the grievor claimed to be suffering from work related stress they should get the information necessary to complete a Form 7. Form 7 is a report that the WSIB requires from employers (including itself) concerning an alleged workplace related injury or disease that results in an employee’s being absent from work and/or receiving health care.

7Ms. Doiron called the grievor’s cell phone number on December 16, 2004 and left a message. The grievor returned the call later that same day. Ms. Doiron told her that if her request for time off was due to work related stress, a Form 7 would have to be submitted. She asked the grievor to explain the situation. The grievor told her that her stress had originated a couple of years earlier in dealings with her manager in a previous position in another department, and that the details should all be in her file.

8In his opening statement, employer counsel stated that the conversation of December 16th had concluded with Ms. Doiron saying that they would have to complete the Form 7 and asking if they could contact the grievor at her cell phone number if they had any further questions. Ms. Doiron did not address that point in the testimony she gave during the employer’s case in chief. The grievor testified that Ms. Doiron had said she would take the form to Pat Johnson and would call her back to let her know if they needed any more information or anything else. That did not contradict anything in Ms. Doiron’s testimony. Ms. Doiron was not called in reply to contradict it.

9In her cross-examination Ms. Doiron acknowledged that during the conversation of December 16th she did not tell the grievor that her doctor’s letter was insufficient or unacceptable or ask for additional medical information. She did not tell the grievor to return to work. There is no suggestion that she told the grievor that she was considered absent without leave and in jeopardy of termination.

10The parties agree that on or about December 20, 2004 the following letter was sent by “registered mail” addressed to the grievor at her home address in Scarborough, Ontario:

Dear Kirsten

You were to have returned to work on December 13, 2004 from your vacation and leave of absence which commenced on October 28, 2004. You have not returned to work as expected and are therefore absent from work without authorization.

As I understand it, in September 2004 you requested a one-year unpaid leave of absence from your Manager, WBS Elizabeth Falby. The reason you provided for your request was that you wanted time off to 'figure out what to do'. I understand that you at no time indicated to your manager that your request was related to work related stress. Your manager denied your request for the extended leave of absence and, in its place, approved 2 weeks of vacation followed by 4 weeks of unpaid leave of absence until December 13, 2004.

On December 13, 2004, a person believed to be your mother contacted Joanne Doiron, Manager, WBS to advise her that you would not be coming in to work as you were still in England and that she would be providing a letter to Joanne on Wednesday December 15, 2004. The letter that was faxed to Joanne on December 15, 2004 was from the Flemingdon Health Centre dated December 13, 2004 which stated that you had been experiencing anxiety and depression secondary to work related stress for the last two and a half years and that you were requesting an extended leave of absence for medical reasons.

Kirsten, this was the first time that management was made aware that you may be suffering from work related stress. For your information, we have completed and submitted an Employer's Report of Injury or Form 7 as we [sic] well as the December 13, 2004 note from the Flemingdon Health Centre for the purpose of reporting a possible claim for a work-related injury or disease. As an employer, the WSIB is required to report all accidents under the Workplace Safety and Insurance Act.

I have reviewed the note submitted from the Flemingdon Health Centre with representatives from the Human Resources Division and I have concluded that it does not provide sufficient objective medical evidence to support your continued absence from work. In order for the WSIB to authorize your absence from work, you are required to provide objective medical evidence supporting your inability to return to work by no later than December 31, 2004. This should include details about your medical condition, functional abilities and dates of visits/treatment. Once obtained, this information can be provided to the Corporate Health Center (15th floor, 200 Front Street West, Toronto, Ontario M5V 3J1). In the absence of such evidence, you are expected to return to work by December 31, 2004.

Should you fail to provide satisfactory medical evidence or return to work by December 31, 2004 you will be deemed to have abandoned your position with the WSIB and your employment will be terminated in Accordance with Article 13.05 of the Collective Agreement.

Yours truly,

Pat Johnson Assistant Director, Quality Improvement Branch

11The parties agree that the following letter was sent on or about January 4, 2005 by “registered mail” addressed to the grievor at her home address in Scarborough, Ontario:

Dear Kirsten:

You were sent a registered letter dated December 20, 2004 regarding your return to work. A copy of which is attached for your reference.

To date, we have not had any response from you. We are providing you with another opportunity to respond by January 11, 2005. Failure to do so, will result in the termination of you employment effective January 11, 2005.

Yours truly,

Pat Johnson Assistant Director, Quality Improvement Branch

12The parties agree that the following letter was sent on or about January 11, 2005 by regular mail addressed to the grievor at her home address in Scarborough, Ontario:

Dear Kirsten:

You were to have returned to work on December 13, 2004 from your vacation and leave of absence which commenced on October 28, 2004. As you did not return to work as expected, you have been absent from work without authorization since December 13, 2004.

On December 20, 2004, a registered letter was sent to your home address that provided you until December 31, 2004 to either provide sufficient objective medical evidence to support your continued absence from work or report to work by December 31, 2004. As we had not heard from you by December 31, 2004, you were sent a subsequent letter dated January 4, 2005 where you were provided another opportunity to respond by January 11, 2005. As indicated in our letter to you of December 20, 2004 and January 4, 2005, failure to respond would result in the termination of your employment.

This is to advise you that we still have not heard back from you and you have not provided any objective medical evidence to support your continued absence from work. As a result, the WSIB has decided to terminate your employment in accordance with Article 13.05 of the Collective Agreement, as you have not provided a justifiable reason for your absence from work.

Yours truly,

Pat Johnson Assistant Director, Quality Improvement Branch

13The parties agree that the grievor did not receive any of the employer’s letters until she returned to Toronto on January 31, 2005. She then found notices of the attempted delivery of two “registered” letters from unspecified senders, copies of those letters that had been sent by regular mail at some point, and the letter of January 11, 2005. The grievor testified that she was unaware prior to January 31, 2005 of these attempts by her employer to contact her by mail, and that her mother had not told her about them during telephone conversations prior to her return. That testimony was not challenged.

14Ms. Doiron testified that she did not attempt to contact the grievor by telephone after December 16th. She believed that she had told Ms. Johnson that the grievor was in England and could be reached by cell phone. She did not have a hand in drafting the letter of December 20th or the subsequent letters. There is no evidence that anyone on behalf of the employer tried to contact the grievor after December 16th at the cell phone number that it had for her.

15Ms. Doiron received a telephone call from the grievor on February 9, 2005. The grievor told her that the union had advised her to call and ask for her job back. Ms. Doiron replied that they would be discussing this with the union, from whom they had already heard. Ms. Doiron later advised the union that the decision to terminate had been made that they would not be reversing it.

16During her testimony-in-chief, Ms. Doiron was asked whether the grievor’s absence after December 13th had had an impact in her area. She testified that Christmas time was a busy time in her department, that there had been six workers in her department, including the grievor, and that four of the six had been allowed to take holidays between Christmas and New Year’s day based on the grievor’s being back during that time. She had had to seek the assistance of other payment units in the building and in regional offices to help cover the work during that period, and even then her unit had fallen short of their performance standard (91% instead of 95%) for the month of December. She also testified that as a result of the grievor’s termination a new trainee had been hired in March 2005 and that since it takes a year for a payment specialist to become fully trained, as the grievor had been, they were still feeling the impact.

17The grievor is in her late twenties. She began working for the WSIB in April 1999. She was employed in claims registration from January 2001 until September 2003, when she became a payment specialist in Ms. Falby’s payment processing department. The employer called Ms. Falby and Claudia Krywulsky, the grievor’s former manager in claims registration, to testify that the grievor had never told them that she was suffering from “work related stress.” Ms. Krywulsky was cross-examined about her counselling and discipline of the grievor and certain grievances in response, including one alleging harassment, but was unwilling to characterize her relationship with the grievor as fraught with conflict.

18Ms. Falby said that after the grievor first spoke to her in June 2004 about an extended vacation she had confided that she woke up unhappy. From the ensuing discussion Ms. Falby concluded that the grievor was confused about what she wanted to do. The grievor did not seem unhappy with Ms. Falby or her position in payments or the payments team. She spoke to Ms. Falby of being disillusioned with people, of feeling that people were not honest. She mentioned, without giving details, an occasion when she discovered that someone she considered a close friend was not a friend, that things were not as she expected them to be. She was sad. Ms. Falby suggested that she consider seeing a doctor or making use of the Employee Assistance Program. In that connection the grievor spoke of her mother’s concern that she might be labelled if she was prescribed antidepressants. In the context of these discussions the grievor had asked whether it would be possible to get a year’s leave without pay. No formal request was submitted. Ms. Falby enquired and was told that a one year leave would not be approved, but that she could approve combined vacation and leave of six weeks if she felt she could manage without the grievor for that length of time. She told the grievor that a one-year leave would likely not be approved, and they settled on the six-week absence.

19Ms. Johnson did not testify, nor did anyone else involved in the decisions to send the letters of December 20th and thereafter to the grievor’s Toronto address or the decision to terminate the grievor’s employment when they received no response to those letters.

20The grievor testified that she was shocked when she read the termination letter. Since December 16th she had assumed that her request for a “stress leave” was being processed and that someone would contact her if there was any difficulty. She called a shop steward she knew, who referred her to the shop steward for her work area, who referred her to a union representative. The union representative advised her to contact Ms. Doiron and ask for her job back. She did that on February 9, 2005.

21The grievor testified that she had found her job in claims registration stressful because she was “harassed” about her “stats.” She was constantly going to meetings at which she was told there were problems with her work and receiving letters that she would be suspended or terminated if she did not meet the standards. She said that although she got along well with Ms. Falby she had never really got over this stress from her previous position, that she daily felt stress, that she experienced emotions and did not know how to handle it, did not know what to do. She said she discussed this with Ms. Falby. In her testimony she described the one-year leave she had asked about as a “stress leave.” It is not clear whether she claims to have described it precisely that way to Ms. Falby.

22Regarding the request she made to Ms. Doiron on December 13th, the grievor testified that as her date of return to work approached she had felt increasingly anxious. By about December 9th she felt she needed more time, and called her doctor on December 9 and 10 to talk to her about extending her absence due to stress. Her doctor said she would write a letter for her and her mother could pick it up. She did not call Ms. Doiron until she was sure that there would be a letter from the doctor. She had her mother call Ms. Doiron initially because she was nervous, did not want a confrontation and thought it would be okay if her mother called. She gave that explanation when Ms. Doiron asked about it on December 13th. She said Ms. Doiron had seemed unsure why she was not back at work, unsure about the stress. At the end of that conversation Ms. Doiron said she would get back to her when she got the doctor’s letter.

23According to the grievor’s account of the telephone conversation of December 16th, Ms. Doiron told her that she had talked to Pat Johnson, that they had to put in a Form 7 because they realized that it was a stress related situation and they needed details of the stress to properly fill out the form. She told Ms. Doiron that she had been dealing with stress that started in claims registration and had not got over it and was requesting a stress leave. She said that she had told Ms. Falby about the stress and that Ms. Falby had suggested that she take the six-week vacation plus leave and then decide whether she could deal with the stress when she came back. She had decided that she could not deal with the stress and was requesting a further leave. Ms. Doiron said she would take the form to Pat and would call back to let her know if they needed any more information or anything else.

24The parties met to discuss this grievance on April 29, 2005. The senior employer representative at that meeting later wrote to the grievor on May 18, 2005. That letter recites

I asked you why the first contact with your manager occurred on the day that you were supposed to be back to work. You indicated that you were waiting for your doctor to provide the medical note. You also confirmed that you did not see your doctor for this note and that you just spoke to him.

I asked if you were working in England as a temporary help agency had called for a reference. You indicated that your funds ran low during your stay in England, however, you did not work there because you stayed with friends instead.

I note that the matter of working in England was addressed in evidence. The grievor testified that at one point she ran out of money and sought temporary employment but did not ever get a temporary position.

25The letter goes on to record the explanation given by the grievor:

You acknowledged that notices to pick up registered letters had been sent to your home address, but that your mother didn't pick them up. You also acknowledged that an envelope was sent regular mail, but your mother did not open it. On January 11, 2005, your employment was terminated and on January 31, 2005, you returned to the Country.

You indicated that the circumstances were regrettable and that you had understood from your conversation with your current manager, Joanne Doiron, that you would be waiting for a response from her. Any miscommunication was not intentional on your part and you apologized if things were misunderstood. You indicated that you were not clear on what you needed to do and didn't expect to be terminated. You indicated that you feel capable and ready to come back to work.

I should perhaps note that there is no evidence that the grievor’s mother could have picked up registered letters addressed to her daughter.

26After reciting the events of December 13 through 16, 2004, the letter of May 18, 2005 describes the employer’s reasons for denying the grievance:

The medical note was provided to Corporate Health and they confirmed that it was not sufficient to support an absence due to work related stress. As the medical evidence provided to management did not support your continued absence from work you were, therefore, on an unauthorized leave of absence.

Your manager notes that when you spoke with her on December 13 and December 16, 2004, the conversation was muddled and your responses were brief. As you did not, contact your manager after December 16, 2004, she sent you a registered letter dated December 20, 2004, where you were advised that you needed to provide details about your medical condition and in the absence of such evidence, you were expected to return to work by December 31, 2004. When you failed to provide the information and did not report to work, you were sent a second letter giving you an extension of one week to reply. When you did not respond, your employment was terminated on January 11, 2005.

Kirsten, you had a responsibility to provide a satisfactory reason for your absence from work. You did not provide objective evidence to support your prolonged absence. You were not forthcoming with any information when you spoke with your manager on December 13th and 16th other than to indicate that you had requested more time off due to work related stress and that our records would provide all the information management required.

The collective agreement indicates that when an employee is absent in excess of 10 consecutive working days, they may be discharged for not providing a justifiable reason. You had an obligation to provide that justification and when you failed to do that, your employment was terminated.

In conclusion, your request for reinstatement is denied.

The author of this letter did not testify. It and the earlier letters are the only evidence before me of the employer’s reasons for terminating the grievor’s employment and denying her grievance.

27For completeness I should note one other matter that arose during the hearing.

28During his opening statement the union’s representative stated that the grievor lost her airplane ticket while she was in England and had had to borrow money to get a ticket home. Asked during her examination in chief why January 31st was the date she returned home, the grievor said that “by the time I got a ticket the date was for January 31st.” During cross-examination about her reason for not returning to work December 13th, she replied in the affirmative when employer counsel asked “it’s not because you cannot get on a plane and return to work, it’s because you feel stress?” He followed with “you could have got on a plane but you were stressed about going back to work?” She replied “okay.” Later, during argument about an objection to questions he had asked about the grievor’s harassment grievance in 2003, employer counsel conceded that he was not challenging that the grievor had subjectively felt as she claimed she did on December 13th and 16th.

29In answer to a question that I asked for clarification at the end of her cross-examination, the grievor said that she had lost her airplane ticket around the beginning of December, that she did not have the money to replace it until mid-January and that by then the earliest “cheap” ticket available was for January 31, 2005. Employer counsel was given the opportunity to cross-examine on these answers. After having her confirm that the ticket loss had been before her call to Ms. Doiron, he put it to her that she did not tell Ms. Doiron that she had lost her ticket. She agreed that she had not. Employer counsel did not challenge the veracity of her claim that she had lost her ticket. He did not suggest to her that this had been the real reason for her decision not to return to work as scheduled, nor did he otherwise resile from his earlier concession that he was not challenging that the grievor had subjectively felt as she claimed she did on December 13th and 16th.

30In argument, employer counsel took the position that the employer had taken in its letter of May 18, 2005. The grievor was only authorized to be absent until December 10th. No one ever authorized an extension of her leave. The “work related stress” claim was not a justifiable reason for her absence thereafter. It did not matter whether the letters were received: once the grievor had been absent for ten business days, the employer was entitled to terminate her employment pursuant to Article 13.05.

31The union’s representative argued that it was critical that the grievor did not receive the letters, particularly when the employer knew that it could reach her by cell phone and that she was not at the address to which the letters had been sent. He submitted, in effect, that once the grievor had made a sick claim as he argued she had on December 13th, article 13.05 no longer applied. As the employer had not made an effective request for better support for the grievor’s sick claim it had been obliged to treat it as genuine. He submitted that she should be reinstated without loss of seniority or benefits and with compensation for lost sick pay or wages from December 13, 2004 or, alternately, February 9, 2005. He acknowledged employer counsel’s argument that it was open to me to substitute a lesser penalty if I found that discharge was excessive.

32During argument the following awards were cited: Kawneer Co. Canada v. International Assn. of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 835 (Foli Grievance), [2001] O.L.A.A. No. 212 (Harris), City of Toronto v. Canadian Union of Public Employees, Local 79 (Tachie Grievance) [1999] O.L.A.A. No. 550 (Bendel), Re Nelsons Laundries Ltd. and Retail Wholesale Union, Local 580 (1997), 1997 CanLII 25084 (BC LA), 64 L.A.C. (4th) 120 (Somjen), Re National Grocers Co. Ltd. and Teamsters Union, Local 419 (1983) 1983 CanLII 4871 (ON LA), 11 L.A.C. (3d) 193 (Langille), Cara Operations and Airport Services v. Teamsters, Local 647 (Fisher Grievance) [2001] O.L.A.A. No. 673 (Abramsky), James Bay General Hospital v. Public Service Alliance of Canada (Loone Grievance) LAX/2005-184 (Devlin), Canadian Union of Public Employees, Local 1860 v. Newfoundland and Labrador Housing Corp. (White Grievance) LAX/2005-375 (Browne) and Algoma Steel Inc. v. United Steelworkers of America, Local 2251 (Bovington Grievance) LAX/2005-602 (Rose). These cases are factually distinguishable, and apart from observations later about the City of Toronto case, I do not find it necessary to review them in this award.

33My analysis begins with the observation that employees sometimes use the terms “stress” and “stress leave” rather loosely. Most jobs involve stress; some more than others. Stress sometimes leads to illness. Illness sometimes prevents performance of work. Treatment of illness sometimes requires that the patient be separated from certain sources of stress. Some people speak of wanting a “stress leave” even though they are not seriously ill or unable to perform their job, when separation from the ordinary stressors of their employment is just a preference rather than a medical requirement. The difference between the context in which the grievor conversed with Ms. Falby about an extended leave and the context in which Ms. Falby was later asked about those conversations may explain why the grievor thought she had spoken to Ms. Falby in terms of a “stress leave” and Ms. Falby thought she had not.

34It is clear that as her extended vacation was coming to an end the grievor had a strong preference not to return to work. This preference was based, as employer counsel conceded, on her feelings of anxiety and subjective perceptions of the impact on her of returning to the workplace. It is not apparent whether she regarded leave as a medical necessity or a preference, nor even that she considered the matter in those terms. She seems not to have thought it would be a particular problem for the employer to extend her leave if that was what she wanted. This was, as the union argued, “naïve.”

35On December 13, 2005, the grievor told Ms. Doiron that she wanted to extend her leave by reason of workplace stress, and that a doctor’s letter was on its way in support of this request. At that point the employer quite properly deferred a response to her absence without leave until it saw the doctor’s letter and could consider the possibility that this was an expression of real medical need, not just a renewed expression of the grievor’s preference for a longer leave.

36The doctor’s note of December 13th described the grievor as suffering from ongoing anxiety and depression. This was not inconsistent with Ms. Falby’s observations. The note said nothing, however, about the severity of the anxiety and depression. It expressed no opinion that the grievor was unable to perform the duties of her job or that a return to work would be injurious to her health. It did not say that there were objective medical reasons why further leave was necessary. It only recorded and repeated what the grievor was asking for.

37The immediate reaction of Ms. Doiron and her manager was that the doctor’s note would have to be assessed by others at the WSIB, but in the meantime they should get the details on a Form 7 if the grievor was alleging workplace stress. This was entirely reasonable. Its result, however, was that the telephone conversation of December 16 was only focused on that task, a focus that led the grievor to think her request was being taken seriously. One thing is clear. At the end of that conversation Ms. Doiron told the grievor that they would be getting back to the grievor, either in any event or if they had questions. It was reasonable for the grievor to conclude that they would get back to her by cell phone, and that they would do so if there was any difficulty with her request for extended leave.

38The employer was entitled to take the position that it would only extend the grievor’s leave if that was medically necessary. It was entirely reasonable for it to conclude that the doctor’s note did not allege medical necessity. It was entirely reasonable, then, for it to advise the grievor that if she could not provide better medical justification she would have to return to work, and to give her a new deadline for doing so. The employer’s difficulty here is that it did not actually communicate that to her. It wrote letters addressed to her. It sent them by “registered mail.” When the parties agreed that the letters had been sent by “registered mail,” they seem to have used that phrase in a generic rather than a technical sense, since the second letter was sent by Purolator courier and it is not clear whether the first was sent by Registered Mail or ExpressPost. In any event, the characteristic that distinguishes regular mail from “registered mail” is that the latter process results in proof of delivery, when delivery is successful. The use of “registered mail” underscores the importance of ensuring that the message be received. Here, it was not. This is not, as the employer argues, a neutral fact.

39No further or better medical evidence was put before me. I must conclude that there was no objective medical justification for the grievor’s absence.

40In the grievance meeting of April 29, 2005, the justification that the grievor gave for her failure to respond to the letters and her absence beyond the December 16th was that she had not received the letters and had been waiting Ms. Doiron to get back to her. On the evidence before me about how the telephone conversation of December 16th ended, I find that that was reasonable for the grievor to expect that the employer would get back to her after December 16th concerning when she should return to work. This is underscored by the fact that the employer did address that issue in its letters of December 20th and January 4th and it decided to send them by means that would generate proof of receipt. In all the circumstances, I am satisfied that her expectation that the employer would be getting back to her about her request for leave was a “justifiable reason” for her absence after December 16th. It remained so until January 31, 2005, when she actually received the employer’s letters. Accordingly, Article 13.05 did not justify termination of her employment on January 11, 2005.

41A prudent employee would not have waited six weeks to follow up when she did not hear from the employer. A prudent employer would not have relied solely on mail sent to an address at which it knew the grievor was not then residing, when it had a cell phone number at which it had every reason to expect it could contact her promptly, particularly after having failed to secure proof of delivery of its letters through the “registered mail” process that it chose to adopt instead. There were failures of communication on both sides. The grievor’s were not cause for discharge.

42It follows that the grievor should be reinstated without loss of seniority or benefits.

43As for compensation for lost wages, I do not accept the union’s argument that the grievor should receive sick pay for any part of the period in issue. There is no objective evidence before me that she was ever so ill as to be unable to work.

44I cannot ignore the fact that until early April 2005 the grievor’s absence from work coincided with a period for which she had sought an extension of her unpaid leave. That request was never expressly withdrawn. It is not apparent from her evidence that her desire to remain on leave was undiminished on February 9th, when she called Ms. Doiron to say that she was asking for her job back because the union had advised her to do so. While the employer was under no obligation to grant the request for leave until early April, I am not prepared on these facts to grant compensation with respect to this period. I am just not persuaded that this unpaid absence from work was any loss for the grievor. Her record may reflect that she was on unpaid leave until April 4, 2005.

45The employer argued that if I decided that termination was not justified I should follow the example of Arbitrator Bendel in the City of Toronto v. Canadian Union of Public Employees, Local 79 (Tachie Grievance), supra, and deny the grievor compensation altogether. While there are some similarities between that case and this one, there are also significant differences. Perhaps the most significant difference is that the grievor there had not provided the employer with any means of contacting her directly, and the decision to terminate there was ultimately based on the fact that she did simply not keep in touch. Arbitrator Bendel explained his denial of compensation this way:

¶51 … The grievor was, to a large extent, responsible for the termination and, while discharge was not, in my view, fully warranted, it would be wrong to impose on the employer, which did not act unreasonably in this matter, the financial burden of compensating her for any lost wages.

I am not satisfied that responsibility for the outcome is as one-sided in this case.

46All of the information on which I have concluded that the grievor should be reinstated was known to the employer no later than the grievance meeting of April 28, 2005. The employer knew that the grievor had not received its letters before it decided to terminate her for her failure to respond to them. It had heard the grievor’s explanation that she had been waiting to hear back from Ms. Doiron. There was not then and is not now any reasonable justification for her having waited from December 9 to December 13 to contact the employer, nor was there any medical justification for the failure to return to work on December 13th. Those were serious breaches by the grievor of her obligations to her employer. Although article 13.05 did not apply, it would not been unreasonable of the employer to impose a substantial suspension for those reasons. Given the low value that the grievor seemed to place on her job, it would not have been unreasonable for the employer to add a one month suspension to the unpaid period of leave she had requested in December, and return her to work on May 2, 2005.

47I am not persuaded that there is any principled reason to deny the grievor compensation for any loss of wages she may have suffered in the period since May 2, 2005. Although I am sure this will be explained to her by the union, it is important for the grievor to understand that she will not recover any wage loss for any period between May 2nd and her reinstatement if she failed to take steps to mitigate that loss by taking active and reasonable steps to secure other employment during that period.

48For these reasons I direct that the grievor be reinstated forthwith without loss of seniority or benefits, but without compensation for the period up to May 1, 2005. Her record is to be amended to remove reference to the termination of her employment on January 11, 2005. The employer may substitute a disciplinary suspension without pay for one month ending May 1, 2005, for the grievor’s failure in December 2004 to advise the employer in advance that she would be absent from work and for being absent from work without leave. The employer is to pay the grievor compensation for any loss of wages that she may be able to prove she suffered in the period from May 2, 2005 to the date on which the employer returns her (or offers to return her) to work. I remain seised with any issue that the parties are unable to settle concerning the implementation of this award.