GSB#2011-2370, 2011-3166

UNION#2011-0678-0019, 2011-0678-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hernden/Larkin)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Legal Services Branch Counsel

HEARING

September 3, 4, 2013 and May 28, 2014

Decision

1The Board is seized with a union grievance and nine individual grievances, all of which relate to employer requests for medical certificates for absences of less than five days due to sickness. The parties agreed to proceed with the individual grievances of Kevin Hernden and Jason Larkin, and requested that the Board remain seized with the remaining grievances.

2Mr. Hernden and Mr. Larkin were employed as correctional officer 2 at the Algoma Treatment & Remand Centre in Sault Ste Marie, Ontario. Their grievances allege that by requesting medical certificates for their absences of less than five days on the days in question, the employer contravened the collective agreement. The relevant provision, article 44.10 reads:

44.10 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 employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employees’ manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.

3The central issue in these grievances is whether the employer was entitled to require medical certificates for the absences in question on the basis of a suspicion that there may be an abuse of sick leave by the grievors. The employer’s position is that both grievors had “a pattern” of absences which gave rise to a reasonable suspicion of abuse. The union contends that in all of the circumstances, there was no reasonable basis to require medical certificates, and that in any event the employer did not properly exercise its discretion under article 44.10. In addition to the foregoing issue, the parties jointly requested that the Board rule upon certain other positions asserted by the union in relation to article 44.10.

4THE RIGHT TO REQUIRE A MEDICAL CERTIFICATE UNDER ARTICLE 44.10 FOR ABSENCES OF LESS THAN 5 DAYS

GRIEVOR KEVIN HERNDEN

At the relevant time Mr. Hernden was on day shift. He booked off sick on Monday July 11 and Tuesday July 12 of 2011. The attendance records establish that in the preceding week, the grievor did not work. On Monday and Tuesday of that week he had regular days off, followed by vacation days on Wednesday and Thursday, followed again by regular days off on Friday, Saturday and Sunday. His Monday and Tuesday sick days were followed by regular days off on the Wednesday and Thursday. Thus when he did his shift Friday July 15, 2011, he had not worked on the 11 previous days, as a result of a combination of his regular days off, two vacation days and the two sick days in question.

5Mr. Hernden testified that on July 25^th some of his co-workers told him that the employer was starting to require medical certificates for short absences. Although he had not had a request for his recent absences, he went to the shift in charge office and asked Scheduling Manager, Mr. Mark Mei whether he was “supposed to submit a sick note” for his sick days on July 11 and 12. When Mr. Mei replied “yes”, he asked why. Mr. Hernden testified that Mr. Mei’s response was, “for booking shifts off sick in conjunction with stat or vacation”. Mr. Hernden testified that Mr. Mei made no mention of a pattern, past absences, or about his wages for the sick days. He added that the last time he booked off a sick day was approximately 10 months earlier.

6Mr. Hernden then had a discussion with union steward Mr. Joe Wright about filing a grievance. They both approached Mr. Mei again. He