GSB#2017-0809

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (Connell)

Association

• and –

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 23, 2018

Decision

1The grievances before me raise a number of issues. One relates to a request by the Employer that the Grievor have her doctor complete an Employee Health Information Form. The Employer made this request while the Grievor was in receipt of benefits under the Short Term Sickness Plan (“STSP”) established by Article 37 of the collective agreement and after the Grievor had provided medical certificates. The Association takes the position Article 37 constitutes a “complete code” with respect to the medical information the Employer can request with respect to STSP benefits. In any event, the Association takes the position the reasons the Employer requested additional medical information lie within its knowledge and accordingly the Employer should proceed first with its evidence. The Employer disagrees with both positions. The parties agreed to address these disputes as preliminary issues.

2On December 3, 2018, at the request of the parties I issued a bottom line decision with reasons to follow. That decision stated:

1. Article 37 does not constitute a complete code with respect to the medical information the Employer can request with respect to STSP benefits.

2. The Employer is to proceed first with its evidence.

3These are my reasons.

Article 37

4I commence by noting the Employer argues that the issue raised by the Association was determined by the Grievance Settlement Board in Re Johnson, 1885/90, 2468/90 (Dissanayake). The Association disagrees. Re Johnson was a decision made under the OPSEU collective agreement in 1992. An employee claimed sick benefits, having submitted a medical certificate from a Dr. Dux. The employer took the position the medical certificate provided insufficient information in the circumstances and denied sick benefits. The union took the position that in what is now Article 44.10 of the OPSEU collective agreement¹,

the parties have negotiated what must be contained in a medical certificate for purposes of sick pay. All that the employer is entitled to is a certification that “the employee is unable to attend to his official duties duties[“]. This certification is contained in Dr. Dux’s note where he says that the grievor “requires time off work due to illness. Will advise in 4 weeks.” This according to counsel is certification that the grievor is unable to attend to his duties for at least 4 weeks due to illness.

The Board held that in appropriate circumstances, such as the one before it, the employer was entitled to “verify the contents of the medical certificate” by requesting further information.

5The Association argues Re Johnson determined only that the certificate which had been provided was not adequate. It notes the Board itself stated at p. 6: “The only issue is the adequacy of the medical certificate submitted.”

6Certainly Re Johnson can be read restrictively in the manner suggested by the Association. However, the decision as a whole appears to address the broader issue of whether what is now Article 44.10 precludes the employer from requesting additional information in the face of a medical certificate certifying the employee is unable to attend to his or her official duties. At pages 8 to 9, the Board stated as follows:

In Re OPSEU (Union Grievance), 167/83 (Swan), the union made an argument on the meaning of article 52.10 (then 51.10) which was similar to the argument of the union here. The Board sets out that argument at p.4:

The Union's argument is that clause 51.10 provides a complete code of when a medical certificate may be required, and what the contents of a required certificate may be. The Union argues that the use of the expression "certifying that the employee is unable to attend to his official duties” in clause 51.10 means that the Employer has no entitlement whatsoever to ask a physician to certify anything else except such inability.

The Board's response is set out at p.6:

…we observe in passing that it is an extremely restrictive view of clause 51.10 to say that the requirement that the medical certificate certify inability to attend at work of necessity prevents the Employer from requesting any other information whatsoever, even when that information is of a kind which virtually every other employer requires as a matter of course in the absence of any specific collective agreement provision, and which most employees are happy to provide.

Even though the above passage from vice-chair Swan’s decision is clearly obiter dicta, we find that reasoning to be persuasive. As cases such as Re Dorman [72/78 (Swinton)] and Re Ford Motor Company [(1975) 1975 CanLII 2127 (ON LA), 8 LAC (2d) 149 (Palmer)] indicate, an employer is not required to accept a medical certificate which provides no information to the employer to satisfy itself that the grievor was in fact prevented from working for the whole period of absence due to illness.

At the very least, Arbitrator Dissanayake’s comments are themselves obiter dicta which reject the argument advanced before me by the Association. While I am inclined to find Arbitrator Dissanayake’s statements persuasive in and of themselves, I will nonetheless consider in greater detail the arguments advanced by the Association.

7The Association’s argument commences with the language of Article 37. Article 37 gives eligible employees 130 working days of paid sick leave per calendar year. The Association notes the detailed nature of Article 37. Article 37.1.1 (a) and (b) and 37.1.2 (a) and (b) establish the monetary value of the sick leave. Articles 37.2, 37.3 and 37.4 are very specific provisions with respect to working sufficient days to qualify for sick leave. Article 37.5 addresses contributions to benefit plans while on sick leave. Article 37.6 gives employees a right to information with respect to their available sick days. Article 37.7 is a lengthy provision with respect to the use of sick credits.

8The Association relies on all of these provisions, and Articles 37.8, 37.9 and 37.10 discussed below, to argue that Article 37 reflects a complete code. It is, the Association argues, a bargain between sophisticated institutional parties with a long bargaining history which should not be disturbed. The Association argues that exceptions or additions to this bargain should not be made by an arbitrator, but rather by the parties in collective bargaining. This is particularly so with respect to the balance which the parties have struck, with respect to health information, between an employee’s privacy interests and the Employer’s legitimate management interests.

9I, of course, have no difficulty with the proposition that an arbitrator should respect a bargain struck in a collective agreement by the parties. The question, however, is whether this collective agreement contains a bargain in relation to health information and STSP benefits and, if so, what it provides.

10The Association’s argument with respect to the bargain made by the parties with respect to health information is based on certain prefatory words of Articles 37.1.2² and on Articles 37.8, 37.9 and 37.10. Those provisions read as follows:

37.1.2 Effective January 1, 2015, a full time employee who is unable to attend to his or her duties due to sickness or injury is entitled, in each calendar year, to leave of absence,

(a) with regular salary for the first six (6) working days; and

(b) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days.

37.8 After seven (7) consecutive calendar days absence caused by sickness or injury, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager or designee, certifying that the employee is unable to attend to official duties.

37.9 Despite Article 37.8, where the Employer has reason to suspect that there may be an abuse of sick leave, the Manager may require an employee to submit a medical certificate, at the Employer’s expense, for any period of absence.

37.10 Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties, the Employer may require him or her to submit to a medical examination at the expense of the Employer. The employee and Employer shall attempt to come to agreement on a qualified medical practitioner to perform the examination. When agreement is not reached, the employee may choose a qualified medical practitioner from the referral service of the College of Physicians and Surgeons. If the employee fails to make such a choice within one (1) week of receiving referrals, the Employer may choose a qualified medical practitioner from the same referrals.

11The Association argues the use of the words “is entitled” in Article 37.1.2 creates the entitlement to STSP. It refers to the words “unable to attend to his or her duties due to sickness or injury” as a “trigger” to entitlement. The Association describes Article 37.8 as another qualification on entitlement, which restricts entitlement in the same way that the trigger in Article 37.1 does: after seven calendar days an employee is not entitled to STSP unless they provide a certificate from a legally qualified medical practitioner. The Association notes the parties have specifically addressed what the certificate must do: it must certify “that the employee is unable to attend to official duties”. Article 37.9, the Association argues, is an exception to the entitlement to STSP benefits created by Article 37.8. That exception arises when there is “reason to suspect that there may be an abuse of sick leave”. The Association argues the express and limited nature of the exception to Article 37.8 set out in Article 37.9 means that the Employer cannot depart from the entitlement created by Article 37.8 in other circumstances. Article 37.10, the Association argues, addresses another situation in which the Employer is entitled to more information than the provision of a medical certificate pursuant to Article 37.8. “Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties”, the Employer may require him or her to submit to an independent medical examination. The Association notes the issue of independent medical examinations is frequently subject to dispute. In Article 37.10, it argues, the parties have specified when and how an independent medical examination may be required as part of the complete code they have adopted in relation to STSP benefits and medical information.

12I am not persuaded by the Association’s interpretation for a number of reasons.

13On the Association’s argument, provision of a medical certificate under Article 37.8 gives rise to entitlement to STSP benefits. The Employer is not entitled to look behind the certification that the “employee is unable to attend to official duties” and seek additional information. The only recourse if the Employer suspects abuse is Article 37.9. But Article 37.9 also only permits the Employer to require the employee to submit a “medical certificate”. While Article 37.9 does not specify the content of the medical certificate, in order to be consistent with the Association’s argument with respect to Article 37.8, the Employer would be not be able to look behind the medical certificate to request additional information. Further the Association’s interpretation appears to imply that even where it was clear an employee was abusing sick leave, the Employer would be required to continue to pay STSP benefits if the employee submitted a medical certificate in response to a request made under Article 37.9.

14A further implication of the Association’s interpretation is that there are no intermediate steps between the provision of medical certificates pursuant to Articles 37.8 and 37.9 and an independent medical examination under Article 37.10. As noted by the Employer, this is at odds with the well established principle that an employer should take the least intrusive approach reasonably possible to obtain necessary medical information in relation to an employee. Generally this would mean the next step after a medical certificate would be to ask for further information from the doctor, followed, if warranted and depending on the circumstances, by requests for information from a specialist of the employee’s choosing and ultimately culminating in limited, and often disputed, circumstances in an independent medical examination. An independent medical examination is the most intrusive invasion of an employee’s privacy rights. It is a last resort for additional medical information, not the first as contemplated by the Association’s argument. Further, if provision of a medical certificate under Article 37.8 gives rise to entitlement to STSP benefits as argued by the Association, there is nothing on the face of Article 37.10 which would affect that entitlement. A refusal to attend an independent medical examination might be a breach of Article 37.10, but it is not clear on the Association’s interpretation that it would result in the employee being disentitled to STSP benefits.

15The Association’s interpretation also leaves unaddressed the result in the case of conflicting medical certificates. What if one medical certificate states the employee is unable to attend to official duties but another, perhaps as a result of an Article 37.10 independent medical examination, states the employee is?

16It is also difficult to square the Association’s argument with an employee’s obligation to cooperate with the Employer in the process of accommodation of disability. On the Association’s argument, an employee who had submitted medical certificates of inability to attend official duties would be entitled to STSP benefits even if it was clear that with accommodation she or he could perform those duties. Given that STSP benefits may amount to 130 working days per calendar year, the cost to the Employer in terms of lost productivity could be substantial.

17In any event, in my view a more reasonable interpretation of Article 37 with respect to the medical information the Employer can request is as follows. Entitlement to STSP benefits is created by Article 37.1. The requirement in Article 37.1 that an employee is “unable to attend to his or her duties due to sickness or injury” is a pre-requisite to entitlement. The onus is on the employee to establish that she or he meets this requirement. The requirement to provide a medical certificate after seven calendar days created by Article 37.8 is a necessary but not sufficient condition to ongoing entitlement. Article 37.8 says that no STSP benefits will be paid “unless” such a certificate is provided. It does not say STSP benefits will be paid if such a certificate is provided. Rather, the employee must establish entitlement under Article 37.1. While provision of a medical certificate after seven calendar days will generally be sufficient, at least initially, to discharge the employee’s onus to establish that she or he is “unable to attend to his or her duties due to sickness or injury” and thus entitled to ongoing STSP benefits, it does not preclude the Employer from requesting additional information if circumstances warrant. The purpose of Article 37.9 is to permit the Employer to require an employee to submit a medical certificate where there is reason to suspect abuse, notwithstanding the fact the employee has been absent for less than seven days or is off during a period of time covered by a medical certificate already provided. Once again, additional information may be requested by the Employer if circumstances warrant. Article 37.10 reflects an agreement between the parties as to one set of circumstances in which resort may be had to an independent medical examination. Whether it obviates the need for the Employer to first attempt less intrusive steps is not a matter which needs to be decided in this award.

18A review of the Association’s cases shows they are not inconsistent with this interpretation.

19In OPSEU (Hernden/Larkin) v. Ministry of Community Safety and Correctional Services, 2014 CanLII 40176 (ON GSB), 2014 CanLII40176 (ON GSB) (Dissanayake), Arbitrator Dissanayake considered Article 44 of the collective agreement between OPSEU and the Crown. Article 44 of the OPSEU collective agreement is addressed to entitlement to short term sickness benefits and is similar to Article 37 of the AMAPCEO collective agreement. In particular, Article 44.10 is similar to the combined effect of Articles 37.8 and 37.9 of the AMAPCEO collective agreement. The Association argues that while the decision does not refer to Article 44.10 as a complete code, nonetheless the interpretation adopted is consistent with the idea that it is.

20I am not persuaded by this argument. Article 44.10 of the OPSEU collective agreement provided³:

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.

21The employer had requested a medical certificate for a period of absence of less than five days based on suspicion of abuse. Both parties agreed the Employer had the discretion to do so. At issue was the legal test for the exercise of that discretion. The union (at para. 34) argued for the application of the test set out in Re Kuyntjes, 513/84 (Verity):

In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations:

1. The decision must be made in good faith and without discrimination.

2. It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence.

3. Consideration must be given to the merits of the individual application under review.

4. All relevant facts must be considered and conversely irrelevant consideration must be rejected.

22The employer argued for a more attenuated review, limited to the question of whether or not it had reasonable grounds for concluding there was abuse of sick leave. Notably, the employer’s argument was based on the theory that Article 44.10 constituted a complete code:

37. Counsel for the employer submitted that article 44.10 is a complete code with respect to the requirements in relation to sick notes. He argued that article 44.10 does not include a requirement to provide to the employee the reasons for requiring a medical note or to permit the employee to explain the absences. Citing case law, he submitted that, regardless of the Board’s view of what is fair or what makes sense, it has no authority to add obligations which have not been negotiated by the parties.

23Without specifically commenting on the “complete code” argument, Arbitrator Dissanayake rejected the employer’s position of a more attenuated review of the exercise of its discretion and adopted instead the position of a fuller review. While this might be understood as an implicit rejection of the complete code argument, in my view Arbitrator Dissanayake’s analysis of the provisions of Article 44 is best understood as being directed to the appropriate test for the exercise of discretion. In any event, it is difficult to read the decision as an endorsement of the complete code theory given the party which advanced it was unsuccessful.

24In AMAPCEO (GAM) v. Ministry of Health and Long-Term Care, 2017 CanLII 65624 (ON GSB) (Herlich), the association had referenced Articles 37.8 and 37.9 of the collective agreement with respect to the provision of medical certificates to support claims for STSP benefits. At paragraph 142 the “information” in the medical certificates provided is described. At paragraph 143 the association asserted that “while the contents of these certificates is admittedly spare … they are adequate for the purposes of the collective agreement and the approval of STSP benefits.” At paragraph 145, Arbitrator Herlich accepted the association’s argument. Before me, the Association relies on GAM as supporting its position that entitlement to STSP benefits requires very little information, and Articles 37.8 and 37.9 are to be strictly construed.

25I am not persuaded by this argument. The relevant portion of Arbitrator Herlich’s decision is paragraphs 110 to 149. It includes a discussion of the fact that issues of accommodation and entitlement to STSP benefits often overlap. When return to duties with accommodation is a possibility, an employer may be entitled to seek additional information as to restrictions in order to attempt to fulfill its duty to accommodate. When, however, the medical information establishes total disability (with or without accommodation) for a period of time, the employee is entitled to receive STSP benefits for that period, assuming he or she has sufficient credits. In those circumstances, while the employer may be entitled to continue to request medical information relevant to potential future accommodation, it is improper to suggest to the employee that her or his entitlement to STSP benefits for the period of time are contingent on providing that information.

26The issue presently before me, however, is simply when can the medical information be said to establish total disability for the purposes of STSP benefits? More particularly, is a simple statement in a medical certificate that “the employee is unable to attend to official duties” sufficient? At paragraph 142, Arbitrator Herlich described the “medical certificates” in the case before him as “including” the “information” that the grievor was “unable to work for medical reasons”. While the full text of all the medical documents is not set out in the decision, two are: see paragraphs 117 and 128. They go far beyond simple certifications the grievor was “unable to work for medical reasons”. Further, Arbitrator Herlich did not consider each of these documents in isolation. Rather, Arbitrator Herlich stated the first two or three medical notes provided in relation to that period were equivocal and it was not unreasonable for the employer to request further medical information. In addition, in arriving at this conclusion, Arbitrator Herlich did not restrict himself to the information on those medical documents, but considered other information which the employer had in its possession (in particular, an earlier medical certificate): see paras 116 to 121. Thus, the statement at paragraph 142 that the medical certificates included information that the grievor was unable to work for medical reasons is actually a statement of a conclusion based on all the information available to the employer, including additional information requested by the employer following receipt of medical certificates. Thus, I do not read GAM as authority for the proposition that Articles 37.8 and 37.9 should be strictly construed with respect to the type of medical information the Employer can require.

27In Canadian Broadcasting Corporation v. C.E.P., (2002) 2002 CanLII 78908 (CA LA), 112 LAC (4th) 353 (Knopf), the collective agreement contained a detailed article with respect to the accrual and application of annual leave. The article included the following provision: “Upon separation from staff, an employee will receive a cash payment equivalent to salary for unused annual leave credits.” Another article of the collective agreement similarly entitled employees leaving for military service to receive payment for unused annual leave. The employer unilaterally introduced a policy which permitted employees to have unused annual leave paid out other than in these two circumstances. The union argued the policy violated the collective agreement. Arbitrator Knopf agreed. She defined the issue before her as being whether the annual leave article constituted “a complete code dealing with entitlement to annual leave and whether the cash out for the entitlement falls within management’s residual rights.”: see para. 33. In answering this question, she noted the article was a “very detailed, scheme”: see para. 34. She referred to the fact there were two specific instances in which the collective agreement permitted the cash out of annual leave. In her view this meant the question was whether the collective agreement had “occupied the field” with respect to the buy back of annual leave credits or whether the collective agreement was silent on the matter so that, arguably, the new policy could be seen as an exercise of management rights: see para. 35. She made reference to the fact the parties to the collective agreement were sophisticated with a long history of collective bargaining. She held (at para. 37): “Where there are specific and detailed articles in the collective agreement that deal specifically with the concept of cash-out of annual leave already, it must be concluded that the field has been occupied.”

28The Association urges me to adopt a similar approach here. It argues these are sophisticated parties with a long history of collective bargaining. Article 37 is a detailed provision, which specifically addresses the issue of medical information. I should conclude, it argues, that Article 37 has occupied the field on that issue.

29In my view, this is an overly broad reading of Canadian Broadcasting Corporation v. C.E.P.. In that case, Arbitrator Knopf concluded the annual leave article read as a whole was “consistent with the concept that vacation is a leave credit rather than a monetary matter”: see para 34. The question before her was whether two provisions which specifically allowed for the monetization of leave credits occupied the field with respect to the circumstances in which this could be done. There was no question that the two provisions of the collective agreement gave employees specific rights to monetize their leave credits. Put differently, fulfillment of either of those provisions was a sufficient condition for monetization of leave credits. Arbitrator Knopf concluded they constituted a complete code of the circumstances in which this could be done.

30I see no parallel to this case. For the reasons stated, in my opinion entitlement to STSP benefits requires an employee to establish she or he is “unable to attend to his or her duties due to sickness or injury”, pursuant to Article 37.1. Provision of a medical certificate pursuant to Article 37.8 (or 37.9) is a necessary condition for entitlement to STSP benefits, not a sufficient condition. Assuming, without deciding, both that Article 37 is a “detailed” provision (which the Employer disputes) and its detailed nature and the fact the parties are sophisticated and have a long history of collective bargaining are relevant to the interpretation of Article 37, in my view they do not have the effect of turning a necessary condition into a sufficient condition, let alone a complete code of sufficient conditions.

31In London v. CUPE, Local 101, (1983) 1983 CanLII 4815 (ON LA), 9 LAC (3d) 262 (Langille), the employer unilaterally decided to implement a program of home visits by a nurse when an employee claimed to be off work due to sickness. The union alleged the home visits violated certain provisions of the collective agreement which it argued constituted a complete code regarding the validation of sick leave claims. Arbitrator Langille concluded the purpose of the home visits was to validate sick leave claims and allowed the grievance. The Association points to the discussion at paragraph 15 about the delicate balance between an employee’s integrity and interests in privacy and an employer’s interest in preventing abuse. It notes Arbitrator Langille concluded the parties had reached a reasonable accommodation of these respective interests in the terms of their collective agreement. The Association notes at paragraph 16, Arbitrator Langille concluded the home visit program was an attempt to remake this balance and at paragraph 19 Arbitrator Langille stated that if the employer wished to do so the appropriate forum was the negotiating table. The Association urges me to adopt a similar approach.

32As stated earlier, I have no difficulty with the proposition that an arbitrator should respect a bargain struck in a collective agreement by the parties. The question is what is the bargain which they have struck. In London v. CUPE, Local 101, the collective agreement stated: “Proof of illness shall be established by submission of a “Certificate of Sick Leave With Pay”.” That is, submission of such a Certificate was a sufficient condition for sick leave with pay. In the case before me by contrast, Article 37.8 makes submission of a medical certificate after seven days a necessary condition for entitlement to STSP benefits: it does not make submission a sufficient condition. That is the bargain which these parties have struck.

33In Metropolitan Toronto v. CUPE, Local 79, (1986) 1986 CanLII 6752 (ON LA), 23 LAC (3d) 271 (Burkett), an article of the collective agreement provided for sick pay for absences due to illness, “provided that the Department Head may refuse to authorize the sick pay if he has reasonable grounds to believe that the absence was not due to illness or injury”. The article also required employees to provide a medical certificate if absent for more than three consecutive working days, with a further medical certificate required following absence of twenty-four working days and every twenty-four working days thereafter. The employer introduced an attendance management program which required employees at “Stage 2” to provide a medical certificate for each absence. The union grieved on the basis the attendance management programme constituted an unreasonable and arbitrary exercise of management discretion since it required provision of a certificate regardless of duration of the absence and regardless of whether or not the employer had reasonable grounds to suspect the bona fides of the absence. Arbitrator Burkett upheld the grievance.

34The Association argues Metropolitan Toronto and the cases cited therein stand for the proposition that provisions which address when a medical certificate is automatically required should be read as reflecting the intention of the parties to fetter the ability of the employer to request medical certificates or other information in other circumstances. In my view, this is too broad a reading of Metropolitan Toronto. Rather, Metropolitan Toronto adopts and applies the following principle (at para 6):

[W]here the parties have expressly stipulated the conditions under which the production of a medical certificate may be automatically required, such a stipulation fetters the employer’s right to automatically require the production of medical certificates on the basis of criteria different than those set down in the collective agreement.

[Emphasis supplied.]

35It may be true that Article 37.8 and Article 37.9, constitute a complete code with respect to when the Employer may automatically require provision of a medical certificate for STSP benefits. However, as noted by the Employer, that is not the issue raised by the Association before me. Rather, the Association argues Article 37 constitutes a complete code with respect to when the Employer can request medical information from an employee in receipt of STSP benefits. For the reasons stated, I do not agree.

36While the Employer referred to a number of cases in its submissions with respect to the balancing of the interests of an employer and an employee and the circumstances in which more information is warranted, I do not find it necessary to review them for the purposes of the preliminary issue before me. It suffices to say that for the reasons given I do not accept the Association’s argument that Article 37 constitutes a complete code as to the information the Employer may request for STSP benefits.

Order of Proceedings

37I turn now to the question of which party should proceed first in leading its evidence. The submissions of the parties on this point were brief and so will be my reasons. In this case, there is no question as to what medical information the Complainant has submitted or that the Employer requested additional information. The principal issue is whether the Employer’s requests were for proper reasons. The reasons why the Employer requested more information lie

Footnotes

1. 1Where Article 44.10 refers to “the employee’s manager”, what was then Article 52.10 of the OPSEU collective agreement referred to “the Deputy Minister of the ministry” and “the Deputy Minister or his designate”. The provisions are otherwise identical.
2. 2Article 37.1.1(b) provides for leave with pay based on two thirds regular salary until December 31, 2014. Article 37.1.2(b) provides for leave with pay based on seventy-five percent salary after January 1, 2015. The provisions are otherwise identical.
3. 3Article 44.10 remains unaltered in the current OPSEU collective agreement.