GSB# 2004-2878

Union# G-8504-SOE

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Pruski)

Union

• and -

The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit)

Employer

BEFORE

Belinda Kirkwood

Vice-Chair

FOR THE UNION

Simon Blackstone Green & Chercover Barristers and Solicitors

FOR THE EMPLOYER

Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors

HEARING

September 14, 2005; January 24 and April 18, 2006.

Decision

The Grievor suffered from Lymphatic Hodgson’s disease, cancer of the blood, and was off work for two years. After several rounds of chemotherapy and a stem cell transplant, he returned to modified duties in May 2004. He was advised by his doctor that he had to attend Princess Margaret Hospital for follow up care, assessment and treatment, if necessary. Initially, such visits took place at one week intervals, then two week intervals, then three month intervals and finally at six month intervals. These visits must take place on Fridays, the only time at which a team of doctors, and health care professionals, which include the transplant co-ordinator, nursing staff, stress management advisors, a psycho-social consultation, nutritionist, sociologist, and a radiation oncologist from the Princess Margaret Hospital, are available to carry out the tests and provide treatment as required.

Initially, when the Grievor was on a modified return to work which did not require him to work every day, the appointments fell on his days off. After the Grievor returned to work on a full time basis, the Friday appointments conflicted with his work. The Grievor asked the Employer if he could use his short-term sick benefits to cover his absences for these medical visits. The Employer did not deny the Grievor the time off to attend these appointments, but the Employer denied his request to be paid for those absences through the use of his short term sick benefits, and encouraged him to use his vacation bank or such other leave to cover his absences. The treatment of the Grievor’s absences to make these appointments has not been uniform. The Grievor has been given the day off without pay, he has been paid for the day off by Great West Life and he has taken floater days.

The Union claimed that the denial of the use of these sick leave benefits was a violation under Articles B6.0 and B6.02, which state:

ARTICLE B6.0 SHORT TERM SICKNESS PLAN (S.T.S.P)

B6.01 When a full time employee has completed at least ninety (90) consecutive calendar days of employment, he/she shall be entitled to sick leave of absence and, provided he/she meets the qualification criteria, shall be entitled to sick credits.

Employees hired after December 31, 2003…

B6.02 When an employee is unable to attend to his duties due to sickness or injury, he shall be entitled to leave of absence with pay subject to provisions outlined below:

• that the qualifying period of ninety (90) consecutive calendar days of full-time employment as outlined in B6.01 has been satisfied

• that the qualifying days excluded vacation and any approved leave of absence without pay

• that days worked before and after such leave shall be considered consecutive

• that if an employee is absent from work due to sickness or injury during the qualifying period, then the qualifying days begin again.

The Issue:

Article 6B.02 of the collective agreement states that in order to be entitled to a paid sick leave of absence the employee must be “unable to attend to his duties due to sickness or illness.” Therefore the Grievor’s situation must meet two criteria. He must be unable to attend to his duties, and, the inability to do so, is due to a sickness or illness. The Grievor’s absences have not been due to his inability to do his assigned tasks at work, but have been as a result of his necessary attendance at the Princess Margaret Hospital on specific days which conflict with his work. Therefore, the question is whether these attendances fall within the purview of Article 6B.02.

Relevant Arguments:

Union Counsel argued that the Grievor is entitled to use his sick leave as the Grievor meets the qualifications as set out in Article B6.02, that “he is unable to attend to his duties due to sickness and injury”. Union Counsel submitted that the Grievor is “unable to attend to his duties” as he is ordered by his doctor to have his “cancer in remission” treated on these specific days, and, his absence, is “due to sickness”, that is, due to his cancer, which is in remission.

Union Counsel submitted that the Employer granted the Grievor extensive sick leave while he was in remission and was not working, and to now deny him the right to use his short term benefits in the form of paid leaves of absence to cover these medical appointments as he has returned to work, is absurd.

Union Counsel submitted that these appointments were a necessary and integral part of the aftercare for the illness, and his treatment should be viewed as a whole and not in segments. In a similar fashion, Union Counsel submitted that it was held by Arbitrator Rayner in Abitibi-Consolidated Inc. v. International Assn. of Machinists, Local 771 (Pattison Grievance) [2001] O.L.A.A. No 908, File No. MPA/Y102641 (Rayner) that the requirement to attend the hospital the day prior to surgery to complete the paperwork, for “pre-documentation”, was considered an integral and necessary part of the operation and was covered by sick leave, even though the appointment was brief, and travelling time to the appointment was lengthy.

Union Counsel submitted that similarly, as in the Board in Peel Board of Education and O.S.S.T.F. (Lambert) 1998 CanLII 30105 (ON LA), [1998] 73, L.A.C. (4^th) 183 (Albertyn) held, “sickness” covers a chronic illness. “Sickness” in the Grievor’s case includes ongoing remission which requires vital, but relatively minor and frequent monitoring.

On this issue, Employer Counsel submitted that the scope of compensation must be determined by the language of the collective agreement. The Employer and the Union agreed in the collective agreement, that in order to receive sick pay, the employee must be unable to work due to sickness. Employer’s Counsel argued that in Article B6.15 of a prior collective agreement, the collective agreement of Go Transit and Amalgamated Transit Union, Local 1587 that applied from December 30, 1995 to March 31, 1996, the parties had agreed to allow employees up to three and a half days absences of up to four hours for doctor and dentist appointments. However, this benefit was removed in the following collective agreement, Go Transit and Amalgamated Transit Union, Local 1587 which applied from April 1, 1996 to April 2, 1999, Article B6, and has not been included in subsequent collective agreements. Therefore, Employer Counsel submitted that there is no longer any entitlement to payment for absences to attend a doctors or dentists appointments.

Employer Counsel submitted that Article 6B.02 requires the employee to have the disease at the time the claim for sick pay is being made. Under this provision of the collective agreement the benefit is to provide compensation to a person who is ill or injured and is incapable of working. Employer Counsel submitted that this article does not provide compensation to attend a medical appointment to an employee who had a disease which may or may not arise in the future.

Employer Counsel submitted that the Grievor has been “disease-free” from October 2003. Employer Counsel submitted that “cancer in remission”, as referred to by Union Counsel, is not a disease, and there was no evidence to support the Union’s position. At most, the Grievor has a higher statistical probability for developing cancer again.

Employer Counsel submitted that as of May 2004, the Grievor had returned to work and was able to perform his duties. Employer Counsel submitted that the Grievor does not suffer from any sickness or injury that prevents him from coming to work. Although there was evidence that the Grievor had a testosterone deficiency, there was no evidence that his testosterone deficiency resulted in impairment at work. Employer Counsel submitted that although the Grievor had developed sweats after the transplant, they have now been resolved.

Employer Counsel submitted that for a long period, the Grievor had a condition that prevented him from working, and he received treatment for that condition and received the appropriate benefits, but he is now well, and is in the same position as any other employee, such that he has to use floater days, personal leave, vacation leave and unpaid leave to cover doctors appointments.

Employer Counsel submitted that as in the Bell Canada and Communications Workers of Canada (unreported) October 23, 1979 (Burkett) case, as the Grievor is well enough to work, medical appointments for the purposes of monitoring do not of itself give rise to sick leave entitlement.

Furthermore, in the Grievor’s case, it is not an illness that prevents him from coming to work, but the schedule set up by the doctors and as such is not entitled to sick leave benefits under the collective agreement (Re General Bakeries Ltd. and Milk and Bread Drivers Union, Local 6472 L.A.C. (3d) 444 (Rayner)).

Decision:

In the Grievor’s case, as part of the treatment of his cancer, the Grievor was required to follow a prescribed protocol set both by Dr. Keating, the Grievor’s attending physician, and Head of the Medical Department of Oncology and Haematology at the Princess Margaret Hospital, and the Princess Margaret Hospital, for patients who have had cancer and who have undergone chemotherapy and stem cell transplants. This prescribed protocol requires the patient to be subjected to a battery of tests on regular occasions for the first five years after the stem cell transplant, even when the patient is in remission. Dr. Keating testified that it is also important that the assessment set out by the Princess Margaret Hospital be followed at the Princess Margaret Hospital, and not through the family doctor, as the Princess Margaret Hospital is better equipped and more knowledgeable in discerning symptoms that suggest a reoccurrence of the cancer or the development of a new cancer. Initially such visits are weekly, then every three months, then every six months, and ultimately annually. The present protocol continues for five years while the patient is at a much higher risk of relapse and is more susceptible to developing other forms of cancer, which may be a result of the initial cancer or its treatment. The risk of relapse diminishes significantly after five years.

As part of this protocol, the Grievor is required to go to the Princess Margaret Hospital in order that the medical team can monitor his physical condition and perform medical tests to detect any reoccurrence of this type of cancer, and for other malignancies, for cat scans to assess the lymphatic system and to monitor the side effects created by the stem cell procedure.

This protocol is not a doctor’s visit where the patient visits the doctor to consult with the doctor about his condition, but requires attendance at the Hospital to be subjected to a series of tests, with the tests being analyzed and treatments given as necessary. For example, as seen in the Grievor’s situation, such tests have revealed testosterone deficiencies, a by-product of the cancer and its treatment, and as such he is being treated for those deficiencies as well as for excessive sweating, another by-product of the cancer and its treatment. Although the Grievor’s condition is monitored during these visits, it would be artificial to differentiate these attendances from the Grievor’s original postoperative assessments and treatments when they are part of the original and ongoing assessment and treatment. There can be no differentiation between these attendances and the actual treatment for cancer until the five-year mark set out by the protocol has been reached.

Employer Counsel’s argument was based upon the premise that no one has perfect health and if the individual is capable of working, but needs to visit a doctor to be followed or to be monitored, that individual does not fulfill the criteria set by the collective agreement that he is “unable to perform his duties”, “due to illness.” This argument was based upon the analysis made by Arbitrator Burkett in the Bell (supra) decision, of the purpose of doctors’ visits, and when such visits can be considered to be due to illness.

The issue before Arbitrator Burkett was whether the grievor had been hospitalized for the treatment of Crohn’s disease, and who, after his return to work, had arranged for a follow up appointment at his doctor’s clinic was “absent on account of illness”.

In paragraph 9, Arbitrator Burkett considered whether visits to the doctor can be considered as being absent on account of illness. He characterized the types of doctor’s appointments as follows:

It is necessary to distinguish three types of doctor’s appointments. Employees may visit the doctor because of the onset of health problems which are making it difficult or impossible for them to carry out their daily functions…Employees may also visit the doctor after having been confined because of sickness in order to be advised as to whether or not they are fit to return to their normal routine. Employees may also visit the doctor when they are well enough to work but suffer from some ongoing health problem which requires periodic monitoring.

Arbitrator Burkett then held at paragraph 10, that “sickness” referred to a state of health which rendered a person unable to attend at work and accordingly, the entitlement to payment under the collective agreement, occurred when the employee is unable to work because of the state of his health. Accordingly, Arbitrator Burkett held that sick pay applied to the first two categories, but not to the third. Finally Arbitrator Burkett concluded that the grievor missed work not because of his health was such that he could not work, but because he scheduled a doctor’s appointment during his scheduled working hours and he was not prepared to work at a different time in order to make up for the lost work time.

I do not disagree with Arbitrator Burkett’s analysis, and it does provide a useful tool when considering whether a doctor’s visit is due to illness. However, the analysis cannot be applied blindly without looking at the facts in issue. I find that the facts and the findings in the Bell (supra) decision of Arbitrator Burkett are distinguishable from the case at hand. Although the Grievor was undertaking a series of tests which were required to determine the status of his cancer, and was in that sense being “monitored”, the Grievor was following a prescribed protocol for a period of five years that originated from his original illness and these tests were an integral part of his treatment. This is not a doctor’s visit in the sense of monitoring as put forward by Arbitrator Burkett. However, after the completion of the five year period, the analysis of Arbitrator Burkett would be applicable as the initial protocol would have been completed, and the Grievor’s situation would fall into the third category, whereby the Grievor, as other employees may require annual visits to a doctor, but the focus of such annual visits is tailored to the individual and may in his case include monitoring his condition. As such, under the current collective agreement, after the completion of the five-year period, the Grievor would not be entitled to paid sick leave to attend these medical appointments.

Arbitrator Burkett’s analysis on the reasons for attending doctors has also been applied in Re General Bakeries (supra); Re Simcoe District School Board and Ontario Public Service Employees Union, Local and in 330 Re Municipality of Metropolitan Toronto (supra), cases put forward by Employer Counsel, but, again, in each case the facts are very different from the Grievor’s situation.

In Re General Bakeries (supra), Arbitrator Rayner found that the grievor who had chronic migraine headaches, was not absent from work due to his chronic migraines, but as a result of a conflict between his work schedule and the schedule of the specialist, and therefore was not entitled to paid leave for a “verified illness”, as required under the collective agreement. At first glance, this case appears similar to the case before me, in that the only day available for the specialist to see the grievor in Re General Bakeries was on the grievor’s work day, and in the case before me, the Grievor had no flexibility in determining when he could be treated. The only possible time at which he could undergo the tests and be assessed was when the team of health care specialists were assembled on Fridays. However, the two cases are different. In the Re General Bakeries (supra) case, the grievor had chronic migraine headaches and saw his family doctor. He made a decision to see a specialist after he had spent two days in hospital and his supervisor at work suggested that he should see another doctor. They are two separate instances. One is the hospitalization for chronic headaches, and the other is a separate decision to see a specialist. In Re General Bakeries (supra) case, the grievor was not assessed and did not receive treatment as part of the treatment he received at the hospital for his migraine headaches, as was the Grievor’s case.

In Re Municipality of Metropolitan Toronto (supra) there was also a difference between the original cause of paid leave given, and subsequent dentist appointments, which were not included under the sick leave provisions. The grievor had broken a molar. She left work and the next day the dentist treated the problem on a temporary basis. Subsequently, she suffered pain and swelling, and ultimately the tooth was extracted, and the dentist then decided to replace the tooth with a bridge prosthesis. Arbitrator Davis held that the requirement for the bridge was only discovered because of a subsequent infection and was not part of the original treatment. Again, her situation is unlike the Grievor’s whose treatment and appointments directly flowed from the original diagnosis and treatment of his cancer.

Again, Re Simcoe District School Board and Ontario Public Service Employees Union, Local 330 (supra) is not of assistance as the facts and the collective agreement are very different from the case before me. In that case, the grievor unsuccessfully attempted to use sick leave benefits for her own personal reasons, and not to cover absences arising from her own illness. In that case, the grievor’s work schedule was changed with the result that it prevented the grievor from being able to take her son to karate, which was necessary therapy for the child’s development.

In summary, on the facts before me, the Grievor meets the criteria set out in Article 6B.02, that he is “unable to attend to his duties due to sickness or injury” as he is required to attend the Princess Margaret Hospital and follow the protocol set by his doctor and the Hospital for a period of five years, up to October 2008. The Grievor’s inability to attend to his duties is directly due to his cancer and his treatment arising from the chemotherapy and the stem cell transfer. Furthermore, the fact that the tests and treatment do not impact the Grievor’s ability to work has no effect on the issue before me, as the testing and treatment, which continues for five years, is an integral part of the Grievor’s initial treatment for cancer. Similarly, as it was found by Arbitrator Rayner in Abitibi-Consolidated (supra) that the “predocumentation” was a necessary part of the operation that the grievor was to undertake, and was integral to the operation, the after-care for the five years after the stem cell transplant as set by the Princess Margaret Hospital was integral with the Grievor’s treatment.

Accordingly, within the five-year period from the stem cell transplant, if the appointments to attend the hospital, arising from the protocol, fall on days that the Grievor is supposed to be working, he is “unable to attend to his duties due to an illness” and is therefore entitled to sick leave with pay.

The Union put forward alternative arguments that the Grievor suffered a handicap and a disability and was discriminated against when he was denied the right to use his sick leave benefits to cover his absences to see the doctor. In light of my decision, it is not necessary to make any finding on the issues flowing from these arguments.

As a result, therefore this grievance is upheld. I will remain seised with the implementation of this grievance.

Dated at Toronto, this 13^th day of July, 2006