GSB# 2014-1088; 2014-1089; 2014-1238
UNION# 2014-0405-0007; 2014-0405-0008; 2014-0405-0009
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Botosh)
Union
- and -
The Crown in Right of Ontario (Ministry of the Attorney General)
Employer
BEFORE
Randi H. Abramsky
Arbitrator
FOR THE UNION
Jane Letton Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel
HEARING DATES
March 19, 2018 and March 20, 2018
DECISION
1There are three grievances before the Board, all of which arise from a series of events that occurred following the decision of the Grievor, Michelle Botosh, to leave Toronto to attend an LL.B. program in Leeds, England.
2The first grievance, dated April 22, 2014, alleges as follows:
The employer has unreasonably and vexatiously denied my leave of absence contrary to my rights under Article 24 of the CA and the Employment Standards Act and any other Article, Statute or legislation that may apply. Furthermore, the employer’s egregious and discriminating decision contravenes Article 3 of the CA and the Ontario Human Rights Code and all other Articles in the CA, Statute or Legislation that may apply.
The “settlement desired” was “Th[at] I be granted the required leave of absence without delay, full redress, to be made whole or any other remedy appropriate by an arbitrator.”
3The second grievance, dated May 5, 2014, is similar. It states:
The employer has unreasonably denied my leave of absence without pay for medical reasons contrary to Article 24 and 44 of the Collective Agreement and the Employment Standards Act and any other Article, Statute or Legislation th[at] may apply. Furthermore, the employer’s egregious and discriminating decision contravenes Article 3 of the Collective Agreement and the Ontario Human Rights Code and all other articles of the CA, Statute or Legislation that may apply.
The settlement desired was: That I be granted the required leave of absence without delay, full redress, to be made whole or any other remedy deemed appropriate by an arbitrator.”
4The third grievance, dated June 3, 2014, alleges:
By unilaterally, unjustly, arbitrarily, and without cause declaring that I abandoned my position the employer has breached and/or denied my rights under Articles 2, 3, 20, 21, 24, 254, 70 and any other article that may apply. They have also breach[ed] and/or denied my rights under the Public Service Act of Ontario, the Ontario Human Rights Code and Ontario Employment Standards Act and any other legislation, statute and regulation that may apply.
The “settlement desired” was “[t]hat I be granted the required leave of absence without delay, full redress, to be made whole, and any other remedy deemed appropriate by an arbitrator.”
Facts
5The Grievor was first hired as a casual Courtroom Clerk Registrar in March 2007, at the courthouse in Ottawa. In January 2010, she was successful in posting into a Flexible Part-Time Clerk Registrar position, at 1500 hours per year. After her initial hire, she disclosed that she required some accommodation, which was provided, including eventually a four-day work-week and performing some office work instead of being in court. No grievances were ever filed concerning the Grievor’s accommodation.
6In February 2012, the Grievor went off work sick. In August 2012, she was approved by Manulife for Long Term Income Protection (LTIP), being determined to be totally disabled from performing the duties of her “own occupation.” The “own occupation” aspect of LTIP lasts for two years, but proof of continuing disability may be required. In the Grievor’s view, Manulife was always “threatening” to cut her off, yet she strongly felt that she could not return to work as a Clerk Registrar. She felt that she could not put herself into that situation again.
7In June 2013, the Grievor was accepted into the LL.B. program in Leeds, England, and made plans to attend there. She did not initially realize that her absence from work due to being on LTIP would not automatically be transferred to a leave of absence without pay, and it was not until September 11, 2013, that she wrote to her Supervisor, Danielle Dell’elce, requesting a leave of absence without pay. That email states:
Hi Danielle,
I am writing you as I am kindly asking for a leave without pay effective October 1st. I am sorry for the short notice. I was not informed properly and I thought that since I am on LTD if I would [be] attending my program I would be switched to LOWP. I was informed today that this is not the case. Therefore this is my formal request for leave without pay effective October 1, 2013.
If you could please respond to this e-mail to verify it has been received. Attached is my confirmation of acceptance to the program. I am requesting the maximum time for leave at this time.
Thank you in advance for your cooperation in this matter.
8The Grievor testified that, at this time, she was told by the Union that the leave to attend school was not automatic because she was on LTIP, which prompted her email to the Ministry. She confirmed, at the hearing, that the attachment to this email was her acceptance into the LL.B. program at the University of Leeds, in England. That program was a two-year program, which she expected to be completed by July or September 2015. After that, she would have to decide whether to take the bar examination and article in England, or return to Canada.
9On September 23, 2013, the Ministry responded that because she was on LTIP, “Management is not able to grant you a leave without pay for the period of October 1st, 2013, to July 1st, 2015 due to your current status as an LTIP recipient.”
10On September 30, 2013, the Grievor responded by providing the Ministry a copy of a letter she was sending to Manulife, and again requesting a leave for October 1st 2013. She stated: “I do believe my eligibility for LTD will be terminated effective immediately, due to my attendance at Leeds University. I sent you the documentation for the basis of my leave.” She again thanked them “in advance for your reconsideration in this matter.”
11The attached letter to Manulife, also dated September 30, 2013, states:
I am writing to inform Manulife that as of September 30th 2013 I have terminated my residence in Ottawa to study at the University of Leeds in the United Kingdom. My symptoms remain the same and my doctors have advised me to continue my current course of treatment while I am over in the United Kingdom. …
12The Grievor was correct in her prediction that Manulife would cease her LTIP payments because she left Canada to study at Leeds. She testified that she was hoping that would not be the case, as her symptoms were the same, but based on her experience with insurance providers, she thought she would be cut off. Through OPSEU, she appealed that decision by Manulife.
13On October 8, 2012, the Grievor’s supervisor sent an email, advising that the Grievor’s request for a leave without pay was granted until January 3, 2014. The email states, in relevant part:
At the present time, we as management and operationally, are able to grant a leave without pay from Oct 1st, 2013 to January 3rd, 2014. We would require you to be present at work on January 6th 2014. …
14On December 6, 2013, the Grievor sent an email to her supervisor, requesting an extension of her leave. The email states:
I am writing to you since I am close to my leave expiring to request an extension of my leave. The reason is my exam period here at Leeds starts in January and not December. Furthermore, my situation with LTD has not been resolved and is still being worked on by OPSEU. I am asking for the maximum in allowable leave time as I am studying here and my term does not end till July 2014.
15The Grievor testified that she thought the Ministry “would keep approving me.” She had not been in her job since February 2012, and she could not go back to clerking.
16A new supervisor, Lynn Dicaire, had taken over as Supervisor, Court Operations, and the Grievor’s email was forwarded to her. Ms. Dell’elce stated in her response to the Grievor that she would “brief her on your request and the history behind it.”
17On December 12, 2013, the Ministry approved the Grievor’s request for an extension, “one last time”, until April 6, 2014. Supervisor Dicaire testified that when a request for a leave of absence is made, management assesses it on a case-by-case basis – looking at the reason/purpose of the leave, its duration and the Court’s operational requirements. It was her understanding that the Grievor’s request was for an “educational purpose” – an LL.B. program in Leeds. Due to operational requirements at the Ottawa courthouse, however, they could not extend it beyond April 2014.
18Ms. Dicaire explained that there are 37 courtrooms, and between 53-56 Court Clerks and Registrars. Half were on contract and half were flexible part-time, like the Grievor. They were operating “very short” staffed, and were pulling in people from other departments to help cover the courts. There was constant turnover, especially among the contract court staff who often left for more secure positions, so they were constantly training staff, which required double coverage. She believed that there were 12 employees in training at the time, which left them very short of qualified staff. They considered how long they could sustain the Grievor’s position to be vacant and filled by a contract employee. They felt they could do it for the short-term, but not long-term. They were especially concerned about extending the Grievor’s leave through the summer, which is a difficult period due to staff vacations.
19On cross-examination, Ms. Dicaire testified that she was aware that the Grievor’s LTIP had been cancelled by Manulife, but was not aware of the Grievor’s appeal. In her view, the Grievor’s leave request was based solely on her LL.B. program at Leeds. While the Grievor’s email mentioned her LTD appeal, to her that was a “separate matter.” She did not consider the Grievor’s request to be a request for an unpaid medical leave of absence.
20In terms of filling employees on LTIP, Ms. Dicaire testified that they are backfilled, temporarily, for up to the two-year period, after which the positions can be permanently filled. Ms. Dicaire was not the Grievor’s manager while she was off on sick leave or her time on LTIP, and was not aware of the specifics concerning how her position had been backfilled.
21On December 13, 2013, after she received Ms. Dicaire’s extension until April 6, 2014, the Grievor wrote back:
I am writing to you as my leave from work is an academic leave. I did provide proof of study at the University of Leeds in England. My final exams are in June and if I have to re-sit any exams that takes place in August. I am therefore asking for a longer leave. …
22Also on December 13, 2013, Ms. Dicaire responded:
We have thoroughly discussed your request and based on our operational requirements, we are unable to approve it longer than 3 months.
23The Grievor testified that she thought the Ministry’s decision was “unreasonable.” They knew she was in England, at school in a two-year program. They knew she had been approved for LTIP and could not work as a Clerk/Registrar.
24The Grievor returned to Canada for Christmas, and on December 27, 2013, she went to the Ottawa courthouse to meet with Ms. Dicaire. During that meeting, she introduced herself, and explained her medical situation and why she was off work, and explained why she could not return to work. She stated that Ms. Dicaire’s response was that “we need clerks” to which the Grievor responded, “it’s nice that you need clerks but I can’t do it.” She testified that Ms. Dicaire told her that she would “have to make decisions.” The Grievor asked her to consider extending her leave of absence, thanked her for her time, and walked out. In her view, this was a “one-sided conversation – we need you to come back to clerking.” In her view, there was “no reasoning with the woman, so I walked out of the office.”
25Ms. Dicaire’s recollection was a bit different. She testified that the Grievor discussed her request for a leave of absence to study and obtain her law degree. She asked the Grievor about her intent to return to work, after her degree, and was advised that she would have to pass the bar and article, preferably in the United Kingdom. In her view, the Grievor expressed no real intent to return to work even after the Summer of 2015, when her program would be complete, as she would be taking the bar exam and then article. She advised the Grievor that her leave could not be further extended, and she was expected to return to work on April 9, 2014. On cross-examination, Ms. Dicaire agreed that she told the Grievor at this meeting that she would have to make “decisions” – either to continue her law studies or return to work at the end of her leave of absence.
26On March 15, 2014, the Grievor again emailed Ms. Dicaire, requesting a further extension of her leave of absence. She wrote:
Dear Ms. Dicaire
I am writing you to request an extension of my leave which expires April 6th. I am requesting an extension on the basis that my leave was granted on the basis if [sic] the documentation that
my leave was educational
the documentation I provided stated that my program was 2 years in Leeds UK.
It was granted on this basis and on the fact that I was trying to reinstate my ltd. I am requesting a further extension based on my circumstances.
27On March 28, 2014, Ms. Dicaire responded, requesting additional information, as follows:
Hi Michelle:
In order to review your request to extend your leave, additional information is being requested.
Please specify the start and end dates of the requested leave.
Please identify the benefits to both yourself and to the Employer if your leave is approved.
At the completion of the leave period, do you intend to return to your duties? If not, what are your plans? What would prevent you from returning to work?
Please identify any other factors that you believe should be considered as part of the review of your request.
Your request will be reviewed once this additional information has been provided. Please note that no leave is approved while this request is being reviewed and your timely response by April 3, 2014 will help to assist with the process. …
28Ms. Dicaire testified that she asked these questions in case the Grievor’s situation had changed, and so her request could be considered on the information provided.
29On April 3, 2014, the Grievor responded, by email:
Dear Ms. Dicaire,
I apologize for contacting you out of office hours as I unexpectedly had to go out of Leeds for the day and did not have access to my emails. I am still awaiting my appeal for LTD. So I am requesting at this time for leave to be granted for the duration of my degree. Therefore, in answering your questions the leave period requested is from April 6, 2013 till September 2015. This will cover me for my academic studies. If I am able to successfully complete my degree than the benefit to me would be that I have my LLB. I say if I am successful as this will depend on the state of my health, as I am still struggle [sic] with this. The benefits to the employer would be that I would become more knowledgeable of the law and the court system. To answer your question on the completion of the leave period do I intend to return to work? The answer to this is am sure of what I have to do next. If I am able to complete my LLB than [sic] I would have to either do the Law Practise Court here in England, or come back to Canada and complete the accreditation and take the Bar. However, I will not know what option I will be able to take until I know the results of my two years at Leeds. Again this is all contingent on my health.
I hope this answers your questions in coming to a decision, as you can see my health is still a big concern. …
30On April 7, 2013, the Ministry sent a letter to the Grievor, by email, dated April 4, 2014, which denied her request for a further extension. The letter, signed by Manager of Court Operations Josée Boulianne, states:
RE: REQUEST FOR EXTENSION OF LEAVE OF ABSENCE
On September 22, 2013, you requested a leave of absence as of October 1, 2013. On October 8, 2013, a leave of absence without pay was approved commencing on October 1, 2013 and ending on January 3, 2014.
On December 12, 2013, an extension of your leave of absence was approved until April 6, 2014. On December 13, 2013 and again on March 15, 2014, you requested an extension of your current leave, and on April 3, 2014, you identified that the period of your requested leave was until September 2015.
I must advise that the request for an extension is not approved. In making this decision, I have assessed the operational needs of the Ottawa Court, the reasons for your request and consideration of the arrangements that have already been approved. The leave that was provided was intended to afford you with an opportunity to pursue an educational opportunity but was limited due to the operational needs of the court. I also note that the previous leaves were approved based on an expectation that you would return to work after April 6, 2014.
Based on information received from Manulife Financial, I note that [you] have been determined to be fit to return to work. As I presently have no updated medical information to support your current absence, I am advising that a continuation of your absence from work due to medical reasons is not supported. As a result, please make the necessary arrangements to return to work commencing on Monday, April 14, 2014.
31After receiving this letter, on April 7, 2014, the Grievor sought advice from the Union, sending the following email:
Here is the letter from my employer. I have been off work since February 11, 2012. I obtained LTD on August 11, 2012. After my accident trial [an unrelated slip and fall case] completed in March 2013 and decision came down in late August 2013 I was given the opportunity to finally go to Law School, but it is at Leeds in England. Updated medical information was given to Manulife on July 30th 2013 my benefits were continued. I sent a letter dated September 30th to Manulife informing them I have moved for the purpose of attending school. I was cut off. I was concerned I would be terminated immediately and asked for a leave. My leave is up as of yesterday and I have been requested to return to work next week. My employer has the documentation that I am attending a University here. I do not know how to respond to this, as my LTD claim is under appeal. Please advise.
32The Union responded the same day, as follows:
If your LTD has been denied, your employer is under no obligation to keep you on paid leave unless the appeal is won in your favor. Similarly, if they have denied your LWOP request they have a right to expect you back to work on the expired date. If, on the other hand, you have medical restrictions that require accommodation in the workplace, they do have a legal obligation to accommodate you and the Union can certainly assist you with this process. That said, you have an obligation to provide medical information and cooperate with the process.
You have entitlements under the C.A., whereby you can apply for LWOP, but the employer may or may not deny the leave. If they unreasonably deny your leave, we can help you with a grievance.
33On April 9, 2014, the Grievor sent Ms. Dicaire a doctor’s note from England, which indicated that the doctor saw the Grievor on that date, listed her “condition(s)” as “Rt shoulder pain” and one other long-standing matter, and found her “not fit for work” between April 9, 2014 and April 23, 2014.
34Ms. Dicaire forwarded the note to Human Resources, asking what the next step should be. She further wrote to Human Resources, on April 10, 2014:
… Since she hasn’t resigned from her position upon our refusal to her request for a further LOA, she is now, in theory, returning to her position but going on sick leave. This being said, I will be submitting a WEAR form returning her to her position effective April 7th then entering a LWOP for Monday & Tuesday followed by sick leave up to April 23rd. However, I’m wondering if a classified staff member is entitled to sick leave benefits if they are temporarily residing and studying outside the country.
35It is not clear whether this information was not conveyed to the Grievor. On April 25, 2013, the Grievor, who was still in England, wrote to Ms. Dicaire, following up on the April 9th medical note she provided. In that email, she indicated that “I am in the process of obtaining more medical information and would request a medical leave without pay at this time.” When asked at the hearing, on examination-in-chief, whether she was aware that her absence was approved until April 23, she testified that she was, that she had called Ms. Dicaire who told her it would be sufficient for now, but they would need a proper report. She stated that she advised Ms. Dicaire that she was in the process of trying to get that.
36According to Ms. Dicaire, and Manager of Court Operations Josée Boulianne, this email was the first time that the Grievor had requested a medical leave of absence without pay.
37The Grievor saw the situation differently. She testified that she had always, from September 2013 onward, been requesting a medical leave of absence without pay. She acknowledged that her email requests “flip flopped” between a medical leave and an academic leave, but insisted that was because the Employer did not accept her medical information. On cross-examination, she acknowledged that it was Manulife that did not accept her medical information when it cut her off LTIP. In her view, because she regularly mentioned that she was appealing Manulife’s decision concerning LTIP, she was, in fact, requesting a medical leave without pay. It was her view that management was aware, at all times, that she was unable to perform her job as Clerk/Registrar. Ms. Dicaire testified, when questioned about this on cross-examination, that she viewed the Grievor’s LTIP appeal as a “separate matter.”
38Ms. Dicaire responded to the Grievor’s follow-up email on April 30, 2014, as follows:
Hi Michelle:
With regard to your request for a medical leave without pay, this leave cannot be approved without supporting medical information. As indicated to you in Ms. Boulianne’s April 4, 2014 correspondence, the current medical information does not support a continued absence from the workplace. Although you indicate that you are “in the process of obtaining more medical information”, you have not provided information as to why this information is not yet available or when receipt of the information can be expected. In the absence of supporting medical information, I must advise you that your current absence is unauthorized and immediate attention to this situation is required.
Please advise me with regard to your intent to return to work.
39According to the Grievor, she had already told Ms. Dicaire, during their December meeting, that she was in the process of obtaining more medical. She testified that she explained that a January appointment she arranged had been cancelled by the doctor, due to a potential conflict, and she was in the process of finding a new doctor but that would take time to do.
40The Grievor further testified that she called Ms. Dicaire about the date she had a follow-up appointment, June 3, 2014. When this discussion took place is not clear in the record. She also stated that she told Ms. Dicaire to stop sending her emails because they were adding a lot of stress and she was in the middle of her exams. The Grievor testified that every time Ms. Dicaire would email her, she would call her. She testified that Ms. Dicaire was sending her emails “daily” and it “became a nuisance.” She further testified that Ms. Dicaire repeatedly asked her to resign.
41The emails contained in the record do not indicate that Ms. Dicaire wrote to her daily. On the contrary, her emails were usually in response to emails sent by the Grievor. The Grievor also stated that while in England she used a “pay as you go” cellphone system, and making calls was expensive and difficult.
42Ms. Dicaire testified that she had only one telephone conversation with the Grievor between their December 2013 meeting through April 2014. She “did not recall” that they discussed the Grievor providing further medical information, or that the Grievor advised that she had a follow-up appointment on June 3. She testified that had the Grievor done so, she would have followed-up on that date and documented it. She did not recall being asked by the Grievor not to send her any more emails due to the stress of her exams, or asking her to resign.
43On May 8, 2014, via email, Manager of Court Operations Josée Boulianne, sent the following letter to the Grievor:
Dear Michelle:
RE: Unauthorized Absence
As you are aware, your previous leave of absence was approved until April 6, 2014. The letter to you dated April 4, 2014 indicated that your request for an additional extension was not approved following an assessment of a number of factors. You were also notified that, in the absence of satisfactory medical information, “a continuation of your absence from work due to medical reasons is not supported”. Based on your current situation, I provided you with direction to “make the necessary arrangement to return to work after April 6, 2014.”
On April 30th, 2014, you were informed by Ms. Lynn Dicaire that sufficient medical information was required to support a medical leave of absence. This medical information has not been provided to management to date.
I am advising that your current absence from work is unauthorized and that immediate steps are required to return to regular attendance. The current situation calls into question your intention to maintain employment. As a result, I must advise you that if you fail to return to work, you will be considered to have abandoned your position in accordance with s. 42 of the Public Service of Ontario Act, which states:
If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or employment by the Crown is terminated.
Your immediate attention to this matter is required. If you feel that there are circumstances under which continued leave should be authorized, you are required to discuss this with me personally in a timely manner. I can be reached at (613)[phone number] from 0800h to 1600h from Monday to Friday, or [email].
44Ms. Boulianne testified that she did not receive a response to this letter from the Grievor, “unfortunately.” It is undisputed that the Ministry received no further medical documentation. The Grievor testified that she tried to call Ms. Boulianne twice, but got her voice mail, and she did not leave a message because “I didn’t think she’d call me back.” She “didn’t think to leave a message” as it was “hard to reach me, with the pay as you go cell.” She did not send an email indicating that she had a follow-up medical appointment on June 3, because she had already made Ms. Dicaire aware of that.
45On June 3, 2014, Norma Barker, Acting Director, Court Services Division, wrote a letter to the Grievor, which was sent by Registered Mail and email:
Dear Ms. Botosh:
RE: ABANDONMENT OF POSITION
In correspondence dated May 8, 2014, Ms. Josée Boulianne advised you that your current absence from work was unauthorized and brought your attention to the consequences for failing to return to work. To date, we have not received any response from you or any indication that a return to work is expected.
As a result, I am advising you that, in accordance with section 42 of the Public Service of Ontario Act, you have been declared to have abandoned your position and, effective this date, your employment by the Crown is terminated.
46On cross-examination, the Grievor acknowledged that she did not respond to the May 8, 2014 letter. Nor did she request accommodation from the Ministry, stating: “why would I? They never accommodated me before.” She was critical of the Employer for not offering her an alternative to the Clerk/Registrar position and insisting that she return to her home position. When asked if she requested a health reassignment, she stated that she “kind of did” to the Rehabilitation Specialist from Manulife in September 2013, who told her she that she had to try in her “own job first.” She did not make that request again in 2014.
47The Grievor did attend a medical appointment on June 3, 2014, and on June 6, 2014, received a medical report concerning her ability to attend work. She testified that she did not submit this report to the Employer because the Employer had already determined that she had abandoned her position. This document was not submitted during the grievance procedure, until this arbitration.
48In April 2015, the Grievor was successful in her appeal of Manulife’s decision in regard to her LTIP. She was paid LTIP benefits to October 2013, when the “own occupation” period ended. She supplied Manulife two “expensive” medical reports to support her appeal. Those reports were not provided to the Employer.
49The evidence also shows that on August 30, 2013, a few weeks before the Grievor requested the first leave of absence, she submitted a “Transition Exit Initiative Application Form”, under which employees could seek to leave their position and receive a lump sum payment of six months’ pay plus one week of pay per year of continuous service. On November 23, 2013, this request was not approved as the “Court Services Division has completed its operational planning cycle and there are continued and significant initiatives for our organization moving forward, which required continued resource support.” According to Ms. Boulianne, the TEI program involved significant costs to the Ministry because the employee’s salary would continue to be paid for the six months, and they were “not able to do that.”
Reasons for Decision
- Did the Ministry improperly deny the Grievor’s academic leave of absence request?
50The evidence, on the balance of probabilities, establishes that the Grievor initially made a request for an academic or educational leave of absence to attend the LL.B. program in Leeds, England. I am not persuaded that she did so because the Employer would not accept her medical documentation. Once she had been accepted into LTIP, it was Manulife that determined whether she continued to be totally disabled from her own occupation, not the Ministry. There is no evidence that the Ministry ever rejected any medical evidence supplied by the Grievor.
51Nor am I persuaded that she was really asking for a medical leave of absence when she initially requested the leave of absence on September 11, 2013, attaching her acceptance into the LL.B. program. All of the emails she sent to the Employer concerning that request for a leave of absence, and the requests to extend it, refer to her academic program. While some of the emails mention her LTIP appeal, and her concerns about her health, I agree with the Employer that the LTIP appeal was a “separate matter.” At all times, until April 2014, the Ministry viewed her leave of absence request as one based on her attending the LL.B. program in Leeds, and it reasonably did so based on the content of the Grievor’s requests.
52It is noteworthy that the Grievor’s first grievance, April 22, 2014, alleges that the employer unreasonably denied “my leave of absence contrary to my rights under Article 24”, Leave Without Pay, while her second grievance, dated May 5, 2014, alleges that the employer “unreasonably denied my leave of absence without pay for medical reasons contrary to Article 24 and 44 of the Collective Agreement…” That time frame corresponds to the events: the Grievor first requested an educational leave of absence, and later, when her requests for a second extension were denied in April 2014, she requested a medical leave of absence without pay.
53As noted, the emails sent by the Grievor based her request for a leave of absence on her attending the LL.B. program in Leeds. The fact that she also mentioned her LTIP appeal does not transform her request into a request for a medical leave of absence. As stated by Vice Chair Harris in Re OPSEU (Grant) and Ministry of Community Safety & Correctional Services, GSB No. 2010-2130, at par. 49, “the employer was not required to ‘synthesize’ the grievor’s various emails and telephone conversations… [or] required to guess at what the family circumstances were.”
54The case law is clear in terms of what a Ministry must do to assess a request for a leave of absence under Article 24, and the GSB’s role in reviewing such a decision. Article 24 states:
ARTICLE 24 – LEAVE WITHOUT PAY
24.1 An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall not unreasonably deny such requests.
55As set out in Re OPSEU (Mayers) and Ministry of Correctional Services, GSB No. 1030/90 (Kirkwood), at pps.8-9:
These [GSB] standards have been summarized in OPSEU (Culkeen) and The Crown in Right of Ontario Ministry of Correctional Services, GSB 890/89 (M.R.Wright), as follows:
The decision must be made in good faith and without discrimination.
It must be a genuine exercise of discretionary power as opposed to rigid policy adherence.
Consideration must be given to the merits of the individual application under review.
All relevant facts must be considered and conversely all irrelevant considerations must be rejected.
Therefore our role is not to decide whether the employer’s decision was correct, nor whether we would have made the same decision. Our role is to determine whether the request was considered in a fair and honest manner and whether the employer’s decision was reasonable in the circumstances. When considering these objectives and the standards above, we must consider both the process that was followed and the facts surrounding the request.
56Applying those standards to the facts in this case, I am persuaded that the Ministry’s determination not to extend the Grievor’s leave of absence request was reasonable in all the circumstances.
57I can understand the Grievor’s frustration that she had advised the Ministry, from the outset, that the LL.B. program in Leeds was a two-year program. It appears that the Grievor thought that her leave of absence should coincide with the full length of her program, and that to allow it only for a shorter time was unreasonable. The Ministry, however, from the outset, did not agree to allow her a leave of absence for the duration of her program, or anything even close. Its original acceptance of the request was from October 1, 2013 to January 3, 2014 - a period of three months. It then extended it “one more time”, until April 6, 2014. In my view, this was not unreasonable. The leave provided the Grievor with an opportunity to see if the LL.B. program suited her, or not. She could then decide whether to continue with the academic program or return to work. The Grievor assumed that the Ministry would just continue to extend her leave, but that assumption was in error. At all times, her request was subject to the operational needs of the Ottawa court.
58The evidence from Ms. Dicaire and Ms. Boulianne concerning the very challenging staffing issues in regard to Clerks/Registrars at the Ottawa courthouse was not refuted. There were 37 active courtrooms, and only 53 to 57 courtroom Clerks/Registrars. In April 2014, there were 12 trainees, and a number of vacancies, which created a very difficult situation for management to fill the needs of the courts. Employees from other areas were being pulled in to assist in the courtroom. There were also significant costs involved in training new staff, who required months of training.
59The Employer also considered that the educational program that the Grievor was pursuing did not benefit the Employer. As Ms. Dicaire testified, the Ministry provides the required training for Clerks/Registrars. There was no benefit to the Ministry from the Grievor’s obtaining an LL.B. degree. The LL.B. was solely for the Grievor’s benefit.
60Nor was it at all clear that the Grievor ever intended to return to the Ministry. The Grievor never indicated that she planned to return to work. In her discussion with Ms. Dicaire in December 2013, the Grievor testified that she told her that she could not return to work. In her emails, she was not sure about her next steps, after the program, but whether in England or Canada, it did not include a return to the Ministry.
61The duration of the leave was also considered. The Grievor requested a leave until September 2015, the completion of her academic program. As Ms. Dicaire testified, that would include the busy summer months when scheduling, because of staff vacations, became even more difficult. It was also not workable for the Ministry to hold a desirable 1500 Flexible Part-Time position open in the long-term. According to Ms. Boulianne, she also considered that, under the collective agreement, if a contract employee filled the Grievor’s the position for over 18 months, they would “roll over” into a permanent FPT position, while the Grievor’s position still was open for her to return to.
62All of these considerations were legitimate factors for the Ministry to consider. There is no evidence that the Ministry adhered to a “rigid” policy concerning educational leaves. Management considered the merits of the Grievor’s request, and the fact that it had already approved two requests, its operational needs and the specific circumstances of the Grievor’s request.
63The situation here is similar to the situation in Re OPSEU (Tratnyek) and Ministry of Community & Social Services, GSB No. 1891/95 et al. (Kaplan). In that case, the Grievor requested one day a week off, usually a Monday, for about three years, to pursue his education. The Ministry offered a continuous six-month leave, but that was not feasible to the Grievor. When it denied the Grievor’s request, he grieved the matter. The Board determined, at p. 3, as follows:
In making this decision, the employer considered the operational needs of the project on which the grievor worked, including the fact that it involved teamwork and customer service delivery. The employer also looked at the length and nature of the leave requested, the difficulty in backfilling a position where the incumbent was away approximately one day per week for several years…, the high number of vacancies in the division which it was, at the time, having difficulty filling, the difficulties the division was having in completing its work requirements, and the operational difficulties previously occasioned by the grievor’s earlier leave arrangements. Ultimately, when management assessed its needs, and those of the grievor, it concluded that it could not grant the grievor’s specific request.
In the Board’s view, at p. 6, “management’s decision was completely proper” and dismissed the grievance. The same conclusion applies here.
64Likewise, in Re OPSEU (Figliano) and Ministry of Transportation and Communication, GSB No. 19/80 (Weatherill), the Board determined that the Employer properly considered the fact that the grievor was unlikely to return to work and the course of study was not one that the Employer “attached any importance” in rejecting the grievor’s request for an educational leave of absence without pay.
65To the same effect is Re OPSEU (Mayers), supra, in dismissing a grievance concerning the denial of an educational leave of absence without pay request. The grievor, a correctional officer, wanted to pursue an education degree. The Board concluded, at p. 13:
In summary, the issue is not whether [the Manager] was right. It is whether he gave a fair and honest assessment to the grievor’s application. We find that he did. There was no apparent benefit to the Centre as the Centre did not employ teachers. Nor was there apparent benefit to the grievor’s advancement within the centre. He was asking leave from the Centre solely for his own personal benefit. Therefore we cannot find that the employer acted unreasonably in denying the leave, which created costs for the employer to train and pay for a replacement employee, while providing the tools for the grievor to leave the institution permanently. …
Here, too, the Grievor was seeking her LL.B. solely for her own personal benefit, as a means to leave the Ottawa courthouse permanently.
66The Union asserts, however, that the Employer improperly failed to consider the Grievor’s LTIP appeal, which, in its view, was a claim that the Grievor was unable to return to work. It submits that the Employer erred by failing to consider this appeal in its decision to deny the Grievor’s leave of absence extension request, and therefore did not consider all of the relevant facts.
67The Employer contends that the Ministry properly did not consider the Grievor’s LTIP appeal, over which it had no control and which could – and did – take years to decide. It submits that it would be absurd to require the Employer to keep a job open and an employee on a leave of absence without pay until the LTIP appeal decision is made. The Employer also points out that the Grievor left Canada in September 2013, for a two-year LL.B. program in Leeds, which directly resulted in her removal from LTIP by Manulife.
68In my view, in terms of the Grievor’s request for an academic leave of absence, the Employer legitimately did not consider the Grievor’s LTIP appeal. It was simply not relevant to the Ministry’s decision whether to extend her leave beyond April 6, 2014 to enable her to continue her academic studies.
69The Union also suggests that the Employer improperly considered the fact that if any contract employee backfilled a position for more than 18 months, they would be “rolled over” into a permanent position. Ms. Boulianne’s testimony did mention this as a factor, but I do not consider that to be an improper consideration. The Employer may legitimately consider its complement of employees, and whether an extension of a discretionary leave may result in an extra permanent position due to operation of the collective agreement.
70The Union also relies on the fact that in the December 2013 meeting, Ms. Dicaire told the Grievor that she would have to make “some decisions.” I find nothing inappropriate about Ms. Dicaire’s comment. The Grievor had made the request to extend her leave of absence in mid-December and an extension was granted until April 6. The Grievor wanted a further extension which had been denied. They discussed that request during the December meeting. Ms. Dicaire explained that the Ministry needed her back at work, and that, in April, the Grievor would have to make a decision about continuing her studies or returning to work. In the Grievor’s view, there was “no reasoning with that woman” and she left. The reality is that the Grievor, in fact, would have to make that decision in April 2014.
71I also do not find the fact that the Grievor had been backfilled by the Ministry while on LTIP, and the fact that LTIP could have lasted two years, to be material. The Grievor had already been on LTIP for over a year when she left Canada in September 2013. She was potentially entitled to remain on LTIP until August 2014. The LTIP period, therefore, did not coincide completely with her LL.B. program which continued until July or September 2015. There was no evidence that the Grievor’s position had been temporarily filled until August 2014. Further, the Grievor was removed from LTIP effective October 2013. Thereafter, her status changed, as did the Employer’s legal obligations to hold the Grievor’s position open for her and backfill her job.
72Finally, the Union asserts that the Ministry improperly considered the Grievor’s Transition Exit Initiative application. With respect, there is no evidence that the Ministry considered this in its decision to deny the Grievor’s request to extend her academic leave of absence.
73Consequently, based on the evidence presented at the hearing, I conclude that the Employer established that it reasonably denied the Grievor’s request for a further extension of her educational leave, and the grievance should be dismissed.
- Did the Ministry unreasonably deny the Grievor’s request for a medical leave of absence without pay?
74The evidence establishes that when the Employer denied the Grievor’s request to extend her leave of absence based on her educational program, and required that she return to work, the Grievor asserted that she was medically unfit to return to work. On April 9, 2014, she provided a medical note to that affect, for the period April 9, 2014 to April 23, 2014. The Employer accepted that medical note. Thereafter, on April 25, 2014, the Grievor advised: “I am in the process of obtaining more medical information and would request a medical leave without pay at this time.” The Employer responded on April 30 that such a request required “supporting medical information”; it noted that “[a]lthough you indicate that you are ‘in the process of obtaining more medical information’, you have not provided information as to why this information is not yet available or when receipt of the information can be expected.” In the absence of such medical information, her “absence was unauthorized.”
75There is a dispute in the evidence concerning whether or not the Grievor verbally advised Ms. Dicaire that she would be seeing a doctor for further medical documentation on June 3. The Grievor asserts that she told Ms. Dicaire in a telephone call about the June 3 appointment, but the record is decidedly unclear as to when this occurred. It certainly did not occur prior to April 25, when the Grievor advised the Employer that she was “in the process of obtaining more medical information.” It also did not occur before April 30, 2014, when Ms. Dicaire advised the Grievor that “[a]lthough you indicate that you are ‘in the process of obtaining more medical information’, you have not provided information as to why this information is not yet available or when receipt of the information can be expected.” (emphasis added). Had the Grievor told Ms. Dicaire that she had already advised her about the June 3 appointment, one would have expected the Grievor to have responded to this incorrect statement. She did not do so. Ms. Dicaire testified that she received only one phone call from the Grievor after their December 2013 meeting. She did not recall the Grievor advising her about the June 3 appointment, saying that she would have documented it had the Grievor done so and also would have followed up with her about it.
76On the balance of probabilities, I am persuaded to credit the testimony of Ms. Dicaire. It makes sense that she would have noted the June 3 date and followed up on it. It is very significant that there are no emails from the Grievor, at any time, advising the employer about the June 3 doctor’s appointment. There was no written follow-up by the Grievor either to Ms. Dicaire’s April 30, 2014 email, or to Ms. Boulianne’s May 8, 2014 letter concerning her “unauthorized absence”, even though May 8th letter states that her “immediate attention” was required. That letter also stated: “If you feel that there are circumstances under which continued leave should be authorized, you are required to discuss this with me personally in a timely manner” and then sets out her phone number and email address. The Grievor testified that she tried to call Ms. Boulianne twice, got her voicemail, but did not leave a message because she assumed that Ms. Boulianne would not call her back. Nor did she email her, even though she emailed the employer frequently. The Grievor testified that she did not do so because she had already told Ms. Dicaire about the June 3 appointment. The May 8 letter, however, required the Grievor to contact Ms. Boulianne personally. It would have been a very simple thing for the Grievor to have sent an email to Ms. Boulianne that she would be providing more medical documentation after her assessment on June 3, and to please wait for that. That did not happen. Instead, the Grievor failed to respond to this very important letter. It was clear from Ms. Boulianne’s letter that she was not aware of any forthcoming medical assessment, and the Grievor made no effort (beside two unsuccessful attempts at calling) to advise her, when she easily could have done so.
77It is significant that on April 4, 2014, the Grievor was advised by Ms. Boulianne that “[b]ased on information received from Manulife Financial, I note that [you] have been determined to be fit to return to work” and as there was no “updated medical information to support your current absence, I am advising that a continuation of your absence from work due to medical reasons is not supported.” The limited April 9, 2014 medical note followed, which the Employer accepted as supporting her absence through April 23, 2014. But after that date, the Grievor did not provide any supporting medical documentation for her leave of absence. Without medical substantiation, the Employer properly denied her request for an unpaid medical leave of absence.
78In this regard, the Union asserts that the Employer improperly ignored the fact that the Grievor had appealed her removal from LTIP, which was an assertion that she was unfit to work, and her repeated claims of ill health. It is true that the Employer did not consider this appeal, which was directed to Manulife and over which the Employer had no control or involvement. Instead, the Employer sought medical information to be provided to it to support the Grievor’s claim of being unfit to work.
79In my view, the Employer acted properly in requesting this information and basing its decision on the Grievor’s existing status and the information it had at the time and not rely on the Grievor’s appeal of her LTIP situation. At the time she sought the medical leave of absence, Manulife had determined that she was fit to return to work. Consequently, to be absent from work, she had to establish that she was medically unfit to work, yet she provided no medical substantiation for the time after April 23, 2014. In early April when she sought advice from the Union about whether the Employer had the right to do this in light of her LTIP appeal, the Union advised her that “[i]f your LTD has been denied your employer is under no obligation to keep you on paid leave”; if she required accommodation, “they do have a legal obligation to accommodate you” and that “you have an obligation to provide medical information and cooperate with the process.” Yet the Grievor did not do so, after April 23, despite repeated warnings from her Employer that her absence was unauthorized.
80The Grievor’s appeal is, as the Union claims, an assertion that the Grievor was unfit to work in her home position. But the appeal itself does not establish that fact. Nor is the Employer required to maintain the Grievor’s leave of absence status, pending the conclusion of that appeal which could take years. It could properly base its determination on the Grievor’s current LTIP status – which was that she was fit to return to work. The fact that the Grievor’s LTIP appeal was successful in 2015 does not change this result. The Employer properly based its determination concerning the Grievor’s request for a medical leave of absence on the information that the Grievor provided to it.
81In Re OPSEU (Baldeo) and Management Board Secretariat, GSB No. 1270/93 (Finley), at p. 20, the Board rejected the Union’s argument that it was unreasonable for the employer not to grant the grievor official leave prior to the outcome of her LTIP grievance. In that case, the Grievor’s application for LTIP had been denied, she appealed, but the Ministry had made arrangements to accommodate her. The Grievor’s return to work date was extended by the Employer, but she did not attend at work or contact the Employer for two weeks. There was no evidence to suggest that the Grievor was unable to contact the Employer during that time. In the Board’s view, based on the facts, the request for official leave was “not withheld ‘unreasonably, discriminatorily or arbitrarily.” The Board also rejected the Union’s justification, at p. 19, that the Grievor “had an honestly held belief to the point of being ‘scared’ that returning to work to a modified cleaner position would be harmful to her health.”
82In this case, the Grievor’s LTIP appeal was long-standing. When her educational leave ended, she was directed to return to work. She did not contact the Employer in response to either Ms. Dicaire’s April 30, 2014 email or Ms. Boulianne’s May 8, 2014 letter, warning her that her absence was unauthorized, that the situation “calls into question your intention to maintain employment” and that if she failed to return to work “you will be considered to have abandoned your position in accordance with s.42 of the Public Service of Ontario Act”. There was no evidence to suggest that the Grievor was unable to contact the Employer during this time. The conclusion reached in Re OPSEU (Baldeo), supra, applies here as well.
83The Union argues that the Employer based its decision, in part, on a concern that the Grievor would eventually return to work and require accommodation and therefore discriminated against her on the basis of her disability. There is no evidence to support that assertion. As Ms. Boulianne testified, the Grievor had been accommodated by the Ministry over the years she worked there. No grievances concerning the Ministry’s accommodation efforts were filed. There is no basis to conclude that the Ministry decided not to approve the Grievor’s request for a medical leave of absence over concerns that it may eventually have had to accommodate her. The Ministry, at the time, was actively trying to get the Grievor to return to work. It was the Grievor who resisted and did not want to return.
84What occurred here is most unfortunate. The Grievor, however, made a number of choices that had very significant consequences. She chose to pursue an LL.B. in England, which is certainly commendable, but it resulted in her being removed from LTIP. That change in status had very significant employment consequences. She successfully sought and obtained an educational leave of absence, but it was subject to the Employer’s operational needs. After one additional extension, the Employer declined to extend it further. From its view, per Manulife, the Grievor was no longer totally disabled and yet was claiming she was unable to work. She then did not provide medical substantiation to support that claim. She ignored the letters sent to her, warning her that her absence was unauthorized and she risked abandonment of her position. In her view, she continued to be totally disabled from her job. Eventually, in April 2015 – a year later - after the submission of further medical evidence, Manulife agreed. Consequently, it is doubly unfortunate that the Grievor ignored the April and May 2014 letters from her Supervisor and Manager. Nor did she submit the medical documentation she obtained in early June, or ask the Employer to reconsider based on that new medical information. The June 2014 medical report was not provided to the Employer until this arbitration.
85Consequently, I am not persuaded that the Grievor’s request for a medical leave of absence was unreasonably, discriminatorily or arbitrarily withheld.
- The Abandonment Determination
86The GSB case law is very clear that if the requisites for abandonment under Section 42 of the Public Service Act of Ontario, 2006, are established, the Board has no further jurisdiction to review the matter. Re OPSEU (Baldeo) and Management Board Secretariat, GSB No. 1270/93 (Finley) (applying the predecessor language); Re Edwards and Ministry of Correctional Services, PSGB No. P/0049/01(Leighton) (applying the predecessor language); Re OPSEU (Grant) and Ministry of Community Safety and Correctional Services, supra (applying Section 42). Section 42 of the Public Service Act of Ontario states:
If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated.
87The requisites of Section 42 were established in this case. The Grievor was a public servant appointed by the Public Service Commission. She was absent from work without approved leave for more than two weeks – seven weeks to be exact. The person who signed the abandonment letter, Acting Director, Court Services Division Norma Baker, who had the proper delegated authority, declared in writing that the grievor had abandoned her position and that her employment with the Crown was terminated. Under these circumstances, the Board has no authority to interfere with the termination of the Grievor’s employment.
88In Re OPSEU (Baldeo), supra at p. 20, the Union argued that it was unreasonable for the Employer to issue the notice of abandonment prior to the outcome of her LTIP grievance. The Board stated, however, that “there is no requirement for reasonableness in invoking Section 20 [the predecessor provision regarding abandonment].” The Board continued:
The question is not whether the Employer should have invoked Section 20, nor is it whether the Employer was reasonable in invoking section 20, or whether its decision to do so was timely. The question is…whether or not the Employer was entitled to invoke section 20. In other words had it met the four prerequisites set out in the section. The Board finds that in the case of the Grievor, Ms. Baldeo, it met the prerequisites and was therefore entitled to apply Section 20 of The Public Service Act. The result of this is that the Board is without jurisdiction to consider the matter further and the grievance is dismissed.
89Here, as noted, the criteria set out in Section 42 have been met. The grievance is dismissed.
Conclusion:
90For all of the reasons set out above, the grievances are dismissed.
Dated at Toronto, Ontario this 9th day of April 2018.