GSB# 2016-2483

UNION# 2017-0368-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kolmann)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

September 18, 2018

Decision

1On January 9, 2017, the Grievor alleged that the Employer breached the collective agreement by “discrimination and harassment and abuse of authority regarding medical information, etc.” The basis of that claim is that when the Grievor’s request for short term sickness benefits spanned into a new calendar year, the Employer requested that she revise her request to reflect 2016 and early 2017 separately.

Facts

2The parties proceeded through documents and argument. No viva voce evidence was called.

3In November 2016, the Grievor broke her ankle outside of work. Her initial request for short term sickness benefits was submitted on December 9, 2017. It covered the period November 7, 2016 to January 5, 2017. The Employer responded that her requests for 2016 and 2017 should be separated. This required the Grievor to submit two new requests, signed by her doctor. She did so on January 4, 2017 – for both 2016 and 2017. The request for 2016 covered the dates of November 7 to December 30, 2016. The 2017 request that she submitted on January 4, 2017 actually extended her absence beyond the original request, until January 23, 2017 (from Jan. 5 previously). She subsequently submitted an additional request for short-term sick benefits on February 6, 2017, for the period January 23, 2017 until February 13, 2017.

4In addition, in order to qualify for sickness benefits at 75% (as set out under Article 44.1.2(c)), she submitted a form supplied by the doctor, dated December 9, 2016, that she was unable to work and that her absences “from 01 Nov. 2016 to 12 Dec 2016 were disability related.” This form also indicates that the Grievor was “to be reassessed.” On January 4, the same form was submitted for the dates “09 Jan. 2017 to 20 Jan. 2017”. A final form was submitted on February 6, 2017, for “20 Jan. 2017 to 13 Feb. 2017” and noted that she “may return to accommodated work area/post on Monday 13 Feb. 2017.”

Reasons for Decision

5The Union acknowledges that the Employer is entitled to medical documentation for absences greater than five days, and that to qualify for sick benefits at the 75% level, further documentation is required. It submits, however, that there was no reasonable basis to require the Grievor to submit separate sickness request forms for 2016 and 2017. It submits that this request created additional stress and constitutes harassment of an injured employee. It submits that the calendar year separation is not justified by the collective agreement, and is an unreasonable intrusion on the employee/doctor relationship.

6The Employer asserts that the calendar year request was likely due to audit concerns and because sickness benefits are based on the calendar year. It submits that the Employer’s request that the calendar years be separate caused no hardship to either the Grievor or her doctor, especially as the January dates were extended on the new January 2017 form. It submits that there is no evidence that the Grievor had to make a special visit to her doctor to obtain the required forms, or that is caused any issue between her and her doctor. It submits that there was no evidence that this request constitutes harassment.

7Having considered the facts, the submissions and the collective agreement, I am not persuaded that the Employer violated the collective agreement. Even assuming (without deciding) that the Employer was wrong to request that the Grievor separate out her sick leave request between 2016 and 2017, it does not amount to “discrimination, harassment and abuse of authority” as alleged in the grievance. There can be times when an employer can repeatedly demand so much medical information and documentation that it becomes harassment, but this is not such a case. Quite frankly, it is not even close. The documents submitted do not show that even one “extra” visit to her doctor was required. The December form indicates that the Grievor was to be “reassessed” in January. That reassessment took place on January 4, and the doctor extended her absence to January 23. Consequently, a second January 2017 form would have been required anyway. At most, the doctor was required to sign his name to one extra form – the one for the November to December 2016 period. There is no evidence that this additional signature caused any issue between the Grievor and her doctor. There is no evidence that it created additional stress for the Grievor. It does not constitute discrimination or harassment of the Grievor.

8The grievance is, accordingly, dismissed.