GSB# 2021-0373

UNION# 2021-0497-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Harrison)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Craig Morrison Morrison Watts Counsel

FOR THE EMPLOYER

Mackenzie Anderson Liquor Control Board of Ontario Counsel

HEARING

September 7, 2022, March 6, 2023, April 3 & 27, 2023, May 15, 2023, June 12, 2023

Decision

Introduction

1The Grievor, Mr. Harrison, claims that he was unable to return to work after his vacation (August 20 – September 11, 2020) because he suffered from anxiety due to being required to work during the Covid-19 pandemic. Accordingly, the Grievor requested sick leave. The Employer denied the Grievor’s request. The Grievor filed a grievance challenging the decision. The parties have agreed to consolidate the following eight grievances (“the other eight grievances”):

2At the time of the grievance, the Grievor worked as a permanent full-time store manager for Store # 96 in Desoranto, Ontario. The Grievor began his employment with the LCBO on December 17, 1982. He retired on September 16, 2021.

3The Union argued that the Grievor provided sufficient medical documentation to justify his leave and that the Employer’s denial of that leave constituted a violation of Articles 2 and 13 of the Collective Agreement, as well as the Ontario Human Rights Code.

4The Employer took the position that Mr. Harrison did not establish that he was entitled to sick leave. According to the Employer, the Grievor sought to improperly use sick leave to bridge himself to retirement. As will be set out in greater detail below, the Employer argued that the Grievor informed his manager that he did not intend to return to work after his vacation in August 2020 and that he intended to use his accumulated sick leave credits to remain off work until his retirement in September 2021.

5The Employer argued that the medical documentation provided by the Grievor was inadequate and, despite being provided with multiple opportunities to provide additional medical information, the Grievor was never able to provide evidence that established he was entitled to a sick leave.

6For the reasons set out below, I have concluded that the Grievor did not meet the requirements for claiming sick leave under the Collective Agreement. I have reached this conclusion based primarily on the basis of the medical evidence provided to the Employer at the relevant time. I am satisfied that the evidence did not establish, on a balance of probabilities, that the Grievor could not perform his duties as a store manager.

7Intertwined with the review of the Grievor’s medical evidence is an assessment of the Grievor’s credibility. The Grievor’s credibility is particularly germane when reviewing the issue of whether the Grievor’s request for sick leave was motivated by a bona fide illness or was motivated by his desire to use his sick leave to bridge himself to retirement.

8I am satisfied that the evidence (including the medical evidence) established, on a balance of probabilities, that the Grievor’s intention was to use his sick leave to get himself to his retirement. In summary form, I have reached that conclusion based on the following evidence. The Grievor’s manager, Ms. Eves, testified that during a meeting on August 6, 2020, (the “August 6 meeting”) the Grievor told her that he planned on using his sick leave to bridge to retirement. She had no reason to lie about the Grievor’s motivation (nor was one suggested by the Union). She produced contemporaneous (or near-contemporaneous) notes in support of her evidence. Most, if not all, of the medical practitioners the Grievor consulted with noted (in one way or another) that the Grievor was close to retirement and had sick days that he wanted to use to get there. The counsellor the Grievor spoke with as part of the Employee Assistance Program (the “EAP”) included similar notations in the Grievor’s EAP file. Notwithstanding all of the evidence indicating that the Grievor was consistently saying he planned to use his sick leave to bridge to retirement, the Grievor denied that was his intention. I found his denial lacked credibility.

9In addition, the medical evidence did not establish that the Grievor was unable carry out the duties of his position. As such, the Grievor did not establish that he was entitled to sick leave under the Collective Agreement. The grievance is therefore dismissed.

Sick Leave Eligibility

10The Employer argued that Article 13.4 of the Collective Agreement and the sick leave policy governed eligibility to sick leave in the circumstances of this case. Article 13.4 states as follows:

After five (5) 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 Employer certifying that the employee is unable to attend to his/her official duties due to sickness or injury and the anticipated date of return. Notwithstanding this provision, the Employer may require an employee to submit the certificate required hereunder in respect of a period of absence of less than five (5) days.

11The Employer argued the Collective Agreement must be read together with the Employer’s sick leave policy (the “sick leave policy”. Section 3A of the sick leave policy establishes the following four conditions an employee is required to meet for absences lasting longer than one week:

• Be completely unable to perform the essential duties of their job (with or without accommodations);
• Be under appropriate care and treatment from a legally qualified healthcare practitioner;
• Comply with all reasonable treatment recommendations; and
• Maintain regular contact with the LCBO and/or the TPA; including promptly responding to requests for information and advising the LCBO and/or the TPA (as applicable) of any changes to health that affect the employee’s ability to return to work (with or without accommodations).

12The Union argued that the Collective Agreement governed and that the sick leave policy included restrictions not found in the Collective Agreement.

13The Employer argued that the sick leave policy provided additional details and had to be read in conjunction with the Collective Agreement. However, in the alternative, and irrespective of whether the language of the Collective Agreement and the sick leave policy was read alone, or together, the Employer argued that in order to qualify for a sick leave an employee must, at a minimum, be able to establish that they were unable to perform their duties due to illness. According to the Employer, Mr. Harrison was being dishonest about the reason why he was requesting a sick leave and was able to perform the duties of a store manager. As such, he did not qualify for a sick leave.

14Entitlement to sick leave under the sick leave policy includes additional restrictions, not found in the Collective Agreement. Put somewhat differently, it is possible for an employee to qualify for sick leave under the Collective Agreement but not qualify under the sick leave policy. The flip side of that is that an individual who does not meet the requirements for sick under the Collective Agreement will also not meet the requirements of the sick leave policy.

15In this case, as set out below, the Grievor failed to establish, on a balance of probabilities, that he met the requirements for sick leave under the Collective Agreement. As such, I need not determine what impact, if any, the sick leave policy would have had on this dispute as it is not relevant under the facts of this case.

August 6, 2020 Meeting

16The Union argued that Ms. Eves’ interpretation of the August 6 meeting was not credible and that the Grievor’s version of events should be preferred. The Employer argued that the Grievor’s evidence was not credible and that Ms. Eve’s interpretation should be preferred.

17On August 6, 2020, the Grievor met with his District Manager, Ms. Julie Eves. What happened during this meeting, and more specifically what was, or was not, said during the meeting is a key aspect of this dispute. The parties have fundamentally different recollections of this meeting.

18The Grievor testified that he called Ms. Eves to tell her that he was going to take sick leave after his vacation. He felt his anxiety from working during the Covid-19 pandemic was getting worse. He stated that he wanted to give Ms. Eves notice so that she could make whatever scheduling adjustments were necessary. According to the Union’s version of this meeting, the Grievor told Ms. Eves that he was concerned about the impact working in a public facing environment was having on his mental health. The Grievor testified that he asked Ms. Eves what he would need to provide for the purposes of his sick leave and that Ms. Eves told him he would need a letter from a doctor, and that he had to be honest and under that doctor’s care.

19The Employer’s version of this meeting is markedly different. According to the Employer, the Grievor contacted Ms. Eves and requested a meeting. Ms. Eves indicated that during that call, the Grievor told her that he wanted to talk to her about his vacation at the end of August and that he planned on not returning to work after his vacation. Following the call, Ms. Eves and the Grievor agreed to meet on August 6th at the Grievor's store.

20Ms. Eves testified that during the August 6 meeting, the Grievor asked her how he could use a year’s worth of sick leave credits starting in September 2020 because he did not intend to return to work after his vacation. The Grievor explained to Ms. Eves that he had enough sick days to lead into his retirement.

21Ms. Eves testified that she told the Grievor that he could only use his sick credits if he was actually sick. According to Ms. Eves, the Grievor responded by asking if he could claim to be suffering from anxiety as a result of Covid-19. Ms. Eves then asked the Grievor if he was actually stressed due to Covid-19. According to Ms. Eves, the Grievor said he was not. Ms. Eves testified that the Grievor had a “smirk on his face” when he answered her question in the negative.

22Ms. Eves indicated that following the meeting she was concerned that the Grievor intended to try to use sick credits, under the pretense of anxiety from Covid-19. Accordingly, she wrote down her recollection of the meeting when she returned to her car after talking with the Grievor. As will be discussed further below, Ms. Eves’ notes were entered into evidence. They were largely, although not entirely, consistent with her testimony. The Grievor did not take any notes of the August 6 meeting.

23The Union argued that Ms. Eves’ interpretation of the August 6 meeting was not credible and that the Grievor’s version of events should be preferred. The Union submitted that the Employer’s version of what took place during the August 6 meeting made no sense. According to the Union, Ms. Eves’ version of events posits that the Grievor asked her to meet so that he could tell her about his intent to make a fraudulent sick leave claim. During his examination in chief, the Grievor denied that he told Ms. Eves that he was not in fact stressed due to Covid-19 but that he intended to take sick leave anyway. The Grievor indicated that it would make no sense for him to tell Ms. Eves that that was his plan.

24The Union also argued that the fact that Ms. Eves took notes of the meeting was not determinative of whose version of events should be preferred. The Union noted that Ms. Eves did not take the notes in real time during the meeting. Rather they were more a summary than a verbatim recording of what was said. The Union also noted that there were some inconsistencies between Ms. Eves’ testimony and her notes. For example, in her notes, Ms. Eves did not mention that the Grievor was “smirking” during the meeting when he purportedly told her that he did not suffer from anxiety as a result of working during the pandemic.

25The Union noted that there was no evidence that the Grievor and Ms. Eves were particularly close and the Employer did not provide any explanation for why the Grievor would “admit” to her that he was trying to take a leave that he did not qualify for. In short, the Union asked what employee would invite their manager to a meeting so they could confess that they intended to manufacture a fraudulent claim for sick leave. The Union’s explanation for the meeting, that the Grievor advised Ms. Eves of his intent to take a sick leave so that she could make the necessary scheduling adjustments, is a far more likely explanation for the August 6th meeting.

26The Employer relied on the decision of Arbitrator Peltz in Insurance Corporation of British Columbia and Moveup (COPE, Local 378), 2020 CarswellBC 1079, where, drawing off the well-known decision in Faryna v. Chorny, [1952] D.L.R. 354 (B.C.C.A), the arbitrator proposed a three-step inquiry into the credibility of an employee seeking sick leave approval, to argue that the Grievor’s evidence was not credible. Arbitrator Peltz held as follows:

There is no precise formula for assessing credibility but the commentary in Bradshaw in helpful in the present case. Is the grievor’s testimony believable on a stand-alone basis? Next, is the testimony consistent with other witnesses or documents? Finally, which version of events is the most consistent with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

27Applying that framework to the current case, the Employer argued that the Grievor’s testimony was not believable on a stand-alone basis, it was not consistent with other witnesses or documents, and it was not consistent with the preponderance of probabilities.

28The Employer argued that the Grievor’s claim to suffer from anxiety resulting from potential exposure to Covid-19 at the workplace was inconsistent with his prior statements and lacks credibility. In particular, the Grievor’s evidence was inconsistent with Ms. Eves’ notes. In the circumstances, Ms. Eves’ evidence should therefore be preferred.

29The Employer also noted that Ms. Eves not only indicated in her notes that she was concerned that the Grievor would not return to work, she also noted that the Grievor would claim an inability to do so because of anxiety from being required to work during the Covid-19 pandemic. The Employer argued that it was highly unlikely that Ms. Eves could have predicted the Grievor’s next steps unless he told her that this was his plan. As such, the meeting notes should be accepted as a credible account of what took place during that meeting.

30The Employer argued that the timing of the grievor’s claim to Ms. Eves that he would not be able to return to work after his vacation was suspicious. If approved, his leave would have started when he had still had enough sick days to bridge to his retirement. The Employer noted that the Grievor did not take any sick days during the period between the August 6 meeting and the beginning of his vacation. Rather he only wanted his sick leave to start at the end of his vacation.

31In cross-examination, the Employer questioned the Grievor about the timing of his request for vacation. His vacation was approved on July 25th. He worked another two weeks between having his vacation approved and the August 6 meeting with Ms. Eves and then another two weeks before starting his vacation on August 21st. The Grievor confirmed that during that period he did not take any steps to modify his working hours or decrease customer capacity in the store. The Employer noted that on his own evidence the Grievor worked an additional two weeks after he claims to have told Ms. Eves that he could no longer work because of his anxiety. The Grievor also acknowledged that he never raised anxiety about working during the pandemic prior to the August 6 meeting. The Employer also emphasized the Grievor’s failure to pursue any accommodations or any gradual return to work plans despite acknowledging that he knew he was able to do so.

Grievor’s evidence regarding August 6 meeting not credible

32In assessing what took place during the August 6 meeting, and what was said, I find that Ms. Eves’ version is the more credible account. I have reached this conclusion for the following reasons. First, and perhaps most importantly, Ms. Eves made notes immediately following the meeting while her memory was still fresh. Ms. Eves had no reason to manufacture her recollection of what the Grievor said or to falsify those notes. Nor was any such reason suggested. Compare that to the Grievor who obviously had a reason to deny Ms. Eves’ version of events.

33Secondly, while I agree it is somewhat surprising that the Grievor was so open with Ms. Eves about his desire to use sick leave to bridge to retirement, as will be discussed below, he was consistent in telling a wide variety of individuals that his goal was to use his sick leave until he was eligible to retire. In particular, all of the medical practitioners the Grievor spoke with made a note of the Grievor advising them that he had lots of sick days and that he wanted to use them to get to retirement (including the Employee Assistance Program (“EAP”) counsellor. In that context, telling his manager of his plan is less surprising.

34Finally, there was also evidence that the Grievor may have believed that another employee had been permitted to use his sick leave to bridge to retirement. Ms. Eves notes that the Grievor asked about an employee who he appeared to think had taken sick leave prior to retiring.

35Accordingly, in the circumstances of this case, I prefer Ms. Eves’ evidence with respect to what took place during the August 6 meeting. I find that the Grievor asked Ms. Eves if he could claim to be suffering from anxiety in order to use his sick leave. I also find that when asked by Ms. Eves if that was actually the case, the Grievor said no.

36My conclusion regarding the August 6 meeting is not the end of inquiry. I must also review the medical documents provided by the Grievor to determine if they satisfy the criteria for taking sick leave under the Collective Agreement.

Medical Evidence

37None of the medical practitioners the Grievor met during the period of time at issue testified. However the Grievor’s medical files from those practitioners were entered into evidence.

Medical Files

38The first document the Grievor provided in support of his request for sick leave was a note from his family doctor, Dr. French, dated August 31, 2020. The Employer was given this note on or around September 8, 2020. In that note, Dr. French wrote that he understood that the Grievor was due to retire in 2021, that he had multiple sick days, that he was concerned about contracting Covid-19 because of his work duties, that he had expressed some anxiety about his concerns, that he wanted to use his available sick days to avoid the risk of contracting Covid-19 and that he (Dr. French) thought it would be reasonable for the Grievor to use his remaining sick days to avoid exposure to Covid-19 at work.

39The Grievor acknowledged that he spoke to Dr. French about his impending retirement. However, he also indicated that he “discussed everything” with his doctor and was simply catching up with him. The Grievor also acknowledged that the August 31, 2020 note did not indicate that he was on a treatment plan for anxiety. The Grievor stated that at that time he was not receiving treatment for his anxiety and that he did not start receiving treatment until his appointment with Dr. Burley on November 17, 2020. The August 31 note from Dr. French also did not refer to any of the Grievor’s job duties.

40On or around September 10, 2020 the Employer filed a Non-Work Related Referral Form with the ReedGroup, the Employer’s third party sick leave plan administrator. On or around September 12, 2020, the Grievor was placed on sick leave pending the outcome of the ReedGroup evaluation.

41The Grievor had another telephone appointment with Dr. French on September 29, 2020. On or around October 5, 2020, Dr. French faxed an Attending Physician Report (the “Report”), to the ReedGroup. In the Report, Dr. French noted that the Grievor had “anxiety due to rise of Covid exposure”. Elsewhere on the form, Dr. French wrote that the risk of exposure to Covid-19 was “causing significant anxiety”. On the Report, Dr. French also noted that the Grievor had been referred to mental health counselling, that the Grievor would follow up with him in a month’s time and that he had access to the EAP program. The Grievor testified that he considered this plan to be his treatment plan.

42According to the Report, Dr. French also recommended that the Grievor be permitted to use his available sick days in response to the question of recommended treatment plan.

43On or around October 13, 2020 the ReedGroup emailed the Grievor. In the email, the ReedGroup case officer indicated that did not find sufficient medical to justify his absence and asked for additional documents.

44On or around October 19, 2020, Dr. French faxed the ReedGroup the following documents: (1) clinical notes from appointments on August 31, 2020, September 29, 2020 and October 5, 2020; lab results from September 9, 2020 and a referral to a psychiatrist dated October 5, 2020. The August 31 notes indicate that the Grievor told his doctor that he was planning to retire in September 2021, that he had over 200 sick days, that he was feeling stressed about Covid and that he wanted a note from his doctor. The notes also indicate that Dr. French was happy to write a note for the Grievor but that he needed to be truthful.

45In the October 5, 2020 notes, Dr. French wrote that the Grievor had been off work “as he is having a lot of anxiety regarding Covid”. Dr. French also noted that the Grievor “does not want to be exposed to the disease” and that “this is causing him some grief”. Finally the October 5 notes indicated that the Grievor had “quite a bit of sick leave”, access to the EAP at work, and was “requesting referral to counselling which I will do”.

46The October 5, 2020 referral to a psychiatrist noted that the reason for the referral was “underlying anxiety” that has been worse since Covid and that the Grievor was “having a hard time going to work due to anxiety”.

47By way of correspondence dated November 12, 2020, the ReedGroup concluded the medical information the Grievor had provided to date did not support a medical leave and that the evidence had to “substantiate total disability from performing the essential duties” of his position as store manager. The following day, the Grievor wrote to the ReedGroup advising that he wanted to appeal the decision. He also indicated that he had a telephone appointment with Dr. Burley on November 17, 2020.

48On November 19, 2020, the Grievor’s psychiatrist, Dr. Burley, faxed a mental health consultation report to the ReedGroup. In that report, Dr. Burley noted that the Grievor told him that he would retire in 2021, and that he had enough sick days and vacation days accumulated to use them up until his retirement.

49Dr. Burley also noted that the Grievor stated that he was getting anxious about going to work and that he saw between 300-500 people every day. The Grievor also complained that the spread of Covid-19 was increasingly affecting him and that he was becoming more and more anxious. The Grievor indicated that he noticed he was getting irritable with customers, his mood was down, he was more tired than usual, he did not feel like doing very much and he could not think about going back to work. He also told Dr. Burley that it was a big relief when he stopped working and that he was not as anxious.

50In the mental health consultation report, Dr. Burley also wrote that the Grievor had “an increase in symptoms of anxiety since the onset of Covid pandemic”, that he stopped working and has not been back since, that he has not received structured treatment since he went off work, that he was near retirement, and that he thought that the Grievor hoped that he would “be able to stay off work until next July when he retires”. Dr. Burley also concluded that he did not think the Grievor’s recovery would take that long. He indicated that he had referred the Grievor to counselling and hoped that there would be an improvement over several weeks once he started that program. Finally, Dr. Burley wrote that he would reassess the Grievor sometime in the new year.

51The Grievor explained that during this telephone appointment he spoke with Dr. Burley for an hour and a half and they spoke about everything, including the Grievor’s retirement plans.

52By way of correspondence dated December 3, 2020, the ReedGroup again advised the Grievor that the medical documentation provided did not substantiate his inability to perform his occupational duties. His request was once again found to be not supported. The following day the Grievor wrote to the ReedGroup again stating that he wanted to appeal a second time.

53On December 7, 2020, Dr. Burley faxed a copy of the Grievor’s anxiety and depression test results. Dr. Burley indicated that the Grievor scored “mild to moderately depressed” and moderate anxiety.

54On December 18, 2020, after having reviewed the test scores, the ReedGroup provided a second non-support decision with respect to the Grievor’s requested medical leave. The ReedGroup concluded that the medical evidence still did not substantiate the grievor’s inability to perform his duties at work. Shortly thereafter, the Grievor asked for a final level appeal of the ReedGroup’s decision. That appeal was made to the Employer’s Workplace Wellness and Safety Team and was denied on January 15, 2021.

55By way of correspondence dated January 15, 2021, the Employer issued a final decision denying the Grievor’s claim for sick leave. In that correspondence, the Employer acknowledged that the Grievor was “symptomatic and receiving treatment for his condition” but concluded there was “insufficient evidence to support that the symptoms were severe enough to prevent” the Grievor from working with “some form of accommodation”.

56On June 2, 2021, the Grievor had his second, and last, appointment with Dr. Burley. The notes from that appointment are largely consistent with the notes from the November 17, 2020 appointment. They indicate that the Grievor was still concerned about working during the pandemic, that he had built up a large number of sick days and that he wanted to use them to bridge to his retirement. Dr. Burley’s notes indicate that he did not arrange to see the Grievor again.

EAP File

57The Grievor also participated in four counselling sessions over the telephone through the Employee Assistance Program (the “EAP”). Those sessions took place on January 13, January 26, February 8, and February 22, 2021. A copy of his EAP file was entered into evidence. The Grievor testified that he accessed EAP counselling because of stress and anxiety associated with having to work during the Covid pandemic.

58The EAP file included a document entitled “Facesheet Assessment”. That document indicated that the “primary assessed issue” was anxiety and that the goal was “partially attained”. When asked whether he agreed with the conclusion that the goal of the counselling was “partially attained” the Grievor stated that his anxiety didn’t get any worse, that he stopped dwelling on his anxiety, and that it helped ease his anxiety a little.

59The Grievor’s EAP file also included a questionnaire. In response to the question “Describe the main reason for the client seeking help” the counsellor wrote the following: “The client is retiring this year. He is currently off work due to anxiety about contracting Covid-19”. Based on a number of questions the Grievor was asked, the EAP counsellor determined that the Grievor suffered from mild depression.

60Finally, the EAP file also included a document entitled “Workplace Outcome Suite”. This document included two interesting entries. First, the document noted that the Grievor declined a post-assessment follow-up because he discontinued his treatment. In his examination in chief the Grievor claimed that he was not asked to participate in a post assessment follow-up and that he did not discontinue his treatment. Rather, according to the Grievor he used the maximum number of sessions he was permitted to use.

61Second, the Workplace Outcome Suite included a chart that included four statements with the option to choose whether the individual strongly disagreed, somewhat disagreed, was neutral, somewhat agreed, or strongly agreed with the statements. In response to the statement “My personal problems kept me from concentrating on my work” the counsellor checked the box for “neutral”. The box for neutral was also checked for the following statements “I am often eager to get to the work site to start the day”; “So far, my life seems to be going very well”; and “I dread going into work”.

62The Grievor testified that he did not recall having these questions put to him and that the answers must have been the counsellor’s impression. The Grievor also testified that he did not agree with the answers marked in the form. Rather he would have “somewhat agreed” with the first statement (“My personal problems kept me from concentrating on my work”); strongly disagreed with the next statement (“I am often eager to get to the work site to start the day”) and would have “somewhat agreed” or “strongly agreed” with the last statement (“I dread going into work”).

63The EAP file also indicated that the Grievor declined receiving a two week follow-up call. When asked if he was ever asked if he wanted a two-week follow up, the Grievor indicated that every appointment was separated by two weeks. When he was asked directly if he agreed or disagreed that he had declined receiving a two week follow-up the Grievor repeated that appointments ran every two weeks.

64The EAP file included Progress Notes from the four sessions the Grievor participated in. Those notes consistently refer to the Grievor exhibiting anxiety regarding contracting Covid-19 at the workplace.

Position of the Union

65The Union argued that the Grievor provided sufficient medical documentation to qualify for sick leave under the Collective Agreement or the Employer’s Sick Leave policy.

66According to the Union, the evidence established that in the summer of 2020 the Grievor began to experience more severe symptoms of anxiety due to working during the pandemic. The Grievor testified that his anxiety increased throughout the summer. He noted that the August long weekend was particularly difficult because it was such a busy time. During his examination in chief, the Grievor described his anxiety as a general feeling of unease because he was putting himself in a precarious position by being exposed to so many people while working.

67According to the Union, both the Grievor’s family doctor, Dr. French, and the psychiatrist he saw, Dr. Burley, provided medical reports substantiating the Grievor’s claims. The Union argued that the Grievor was under consistent care throughout the relevant period of time and the individuals responsible for that care consistently indicated that the Grievor was suffering from anxiety due to being required to work during the Covid-19 pandemic.

68The Union also noted that the medical evidence did not support the Employer’s contention that the Grievor was trying to use sick leave to bridge to retirement. Nor did the Employer provide any medical documentation that contradicted (or even challenged) the medical reports provided by the Grievor. As such, the medical documents provided by the Grievor were uncontested and should be treated as such.

69The Union argued that the ReedGroup’s denial of the Grievor’s request for a leave should not be determinative of the issue of whether the Grievor had met the test under the Collective Agreement for sick leave. The Union noted that the ReedGroup is a third party administrator for sick leave requests. They are not doctors.

70The Union also argued that the Reed Group’s review of the medical provided by the Grievor was informed, to a very significant extent, by Ms. Eves’ conclusion that the Grievor’s claim was fraudulent. As an example, the Union pointed to the notes of Ms. Kathy Bisson, a caseworker with the ReedGroup who noted in an email dated September 21, 2020 that Ms. Eves had told her that the Grievor had “made it known that he plans to use all of his sick time up to his retirement in September, 2021”. As such, where the ReedGroup concluded that the Grievor was “of a mindset to utilize sick days until retirement for next year”, the Union argued that the source of that conclusion was Ms. Eves. Going further, the Union argued that Ms. Eves was predisposed to suspecting the Grievor was attempting to misuse his sick leave and that her predisposition coloured all of the subsequent decisions the Employer made with respect to the Grievor’s request for sick leave.

71The Union also argued that it did not lie with the Employer to question the validity of the Grievor’s claim to be suffering from anxiety now when it could have taken any number of steps to assess his claim at the time but chose not to. For example, the Employer could have had the Grievor examined by another doctor but did not do so.

72The Union argued that the Grievor’s anxiety had to be understood in the context of the Covid-19 pandemic and, in particular, the repeated messaging from the Provincial Government and Public Health. At the time, the message was that Covid-19 was extremely serious and that all individuals should limit contact with others. This messaging was, from the Grievor’s perspective, inconsistent with what he was being asked to do in his workplace. In his examination in chief, the Grievor stated that the Government was saying one thing to the public and then asking him to do something quite different. The Grievor claimed that this inconsistency made him feel sufficiently anxious that he could not return to work. According to the Union that meets the definition of sickness in the Collective Agreement and entitles the Grievor to be paid out for his sick leave and whatever Long Term Income Protection payment he was entitled to.

73The Union relied on the decision of Arbitrator Ponak in Saskatchewan Public Service Commission and SGEU, 2018 CanLII 111635 (SK LA). One of the issues at play in that decision was the denial of sick leave by the Employer. In Saskatchewan Public Service Commission, the Employer took the position, like the Employer in this matter, that the employee’s claim for sick leave was not medically supported and the sick leave was denied.

74Arbitrator Ponak concluded that the Grievor had met the criteria to establish his entitlement to sick leave. He provided seven “sick slips”. In addition, the Grievor’s doctor in Saskatchewan Public Service Commission completed three forms. Those forms indicated that the Grievor was not fit to return to work, that he was not medically fit to perform his duties, that his anxiety would be aggravated by a return to work, linked the Grievor’s ability to return to work to changes in the “workplace environment”, and concluded that the Grievor was too anxious to return to work. Arbitrator Ponak concluded that the medical evidence provided by the Grievor was uncontradicted and should have resulted in the Grievor being paid sick leave. The Union argued that the same conclusion should apply in this case.

75Arbitrator Ponak also reviewed a number of factors that lead to the Employer’s suspicion regarding the Grievor’s sick leave before concluding that none of them justified the conclusion that he did not qualify for sick leave. In addition, the Arbitrator noted that if the employer in his case was not satisfied with the medical provided it had the right, under the collective agreement, to have the grievor examined by a doctor of its choosing. The Union in this case argued that the Employer had the same right under this Collective Agreement and should have exercised that right if it was concerned about the quality of the medical documents provided by the Grievor.

Position of the Employer

76The Employer argued that the medical documentation provided by the Grievor did not establish that the Grievor’s qualified for sick leave under the Collective Agreement. The Employer also argued that the medical evidence supported the conclusion that the Grievor’s claim for sick leave was not bona fide. Rather, the Grievor was mainly motivated by a desire to use sick leave accumulated over the course of his career at the LCBO to bridge himself to retirement.

77The Employer argued that the onus rests with the Grievor to establish an entitlement to sick leave benefits. The Employer relied on the following decisions in support of that position: Ottawa Hospital and ONA (Cameron), 2023 CarswellOnt 4255; Ontario Energy Board and Society of United Professionals (Lesychyn), 2020 CarswellOnt 14898; TRW Linkage & Suspension Division and Thompson Products Employees’ Association, (2005) 2005 CanLII 94258 (ON LA), 144 L.A.C. (4th) 215; and BA International Inc. and C.E.P., Local 588G, (2010) 193 L.A.C. (4th) 301. In Ottawa Hospital and ONA (Cameron), Arbitrator Johnston quoted from the decision of Arbitrator Surdykowski in Hamilton Health Sciences Corp v. O.N.A., 2007 CanLII 73923 (ON LA), 2007 CarswellOnt 9197 where the Arbitrator held as follows:

The onus is on the employee to establish entitlement to collective agreement paid sick leave benefits. This generally means that the onus is on the employee to establish that an absence is legitimate in the sense that she is genuinely unable to report for work due to illness or injury. As a general matter, the employer is entitled to sufficient “proof” of the employee’s assertion that she is unable to attend work due to illness or injury and entitled to benefits.

78Beginning with the first note provided by the Grievor, the note from his family doctor dated August 31, 2020, the Employer argued that no restrictions were identified. Nor were any disabilities identified by the doctor. At most the note appears to repeat what the Grievor told him, that he has some anxiety, and says it would be reasonable to allow the Grievor to use his sick days.

79According to the Employer, the October 2020 Attending Physician’s Report was also inadequate. The LCBO noted that Dr. French did not indicate any specific restrictions. Rather, according to the Employer, Dr. French simply noted that the Grievor had been referred to mental health counselling.

80The next medical documentation provided by the Grievor included a copy of Dr. French’s notes from August 2020. The Employer emphasized that there was nothing in these notes that indicated that the Grievor could not work. Rather, the notes simply indicated that the Grievor was feeling “stressed”, that he did not want to be exposed to Covid-19 and that he is experiencing some “grief” as a result.

81According to the Employer, Dr. Burley’s notes also failed to establish that the Grievor qualified for sick leave. While noting that the Grievor had an increase in anxiety since the onset of the pandemic, the Employer also noted that the documents provided by Dr. Burley did not indicate that the Grievor could not work. Rather they only indicated that Grievor had stopped working, that he had not received structured treatment since he had stopped working, that he was near retirement and hoped to stay off work until he retired, and that Dr. Burley did not think his recovery would take that long.

82The Employer noted that despite choosing to submit a final level appeal of the ReedGroup’s denial of his application for sick leave, the Grievor did not provide any new medical documentation in support of his appeal. In fact, according to the Employer, the Grievor failed to provide any additional medical information after November 17, 2020. Not only that, but the Grievor also failed to see any other doctors during this period and was not under any active treatment plan.

83The Grievor did not see Dr. Burley again until June 2, 2021. The Employer argued that Dr. Burley’s notes from that session are informative. In particular, the Employer noted that in his notes, Dr. Burley wrote that it was “tough to tell” about the Grievor’s ability to work, that he has been “relatively symptom free” when off work, that “his belief is that since he paid into sick days for 25 years he should be able to collect on them”, and that “it is hard to say he is incapable of working”. The Employer also noted that at the end of his notes Dr. Burley indicated that he did not arrange to see the Grievor again and that the Grievor would be followed by his family doctor. The Employer relied on this note in support of its position that as of June 2021 the Grievor had still not established an entitlement to benefits under the policy.

84The Employer noted that the Grievor did not try to contact the EAP until January 2021 and only after he had received the final decision, denying his leave request, from the LCBO Workplace Wellness and Safety Team.

85The Employer also noted that despite having access to an unlimited number of EAP sessions, the Grievor chose to only attend four sessions. Based on the notes from the Grievor’s last EAP session it appears that he had two additional EAP sessions scheduled for March 1 and March 12, 2021 but that he was absent for both of those sessions. The Employer also indicated that notes from the EAP sessions indicated that the Grievor declined a two-week follow up call without providing any explanation as to why.

86With respect to the probative value of the medical notes provided, the Employer emphasized that the Grievor’s claims for anxiety and depression were self-reported. The Employer argued that in cases where a diagnosis is primarily dependent on information provided by the individual self-reporting, arbitrators have to be careful in approaching that evidence. In Ineos Nova Ltd. and C.E.P., Local 914, (2010) 193 L.A.C. (4th) 241, Arbitrator Sheehan wrote the following:

Where the physician’s diagnosis is exclusively or primarily dependent on information provided by the employee, an arbitrator must be careful in assessing the value of the diagnosis. Such care would seem particularly important where reporting the symptoms serves the employee’s self-interest.

87In this case, the Employer argued that the Grievor’s self-interest was clearly evident. He wanted to use to retire early by using his sick leave credits to bridge to retirement.

88In addition, the Employer argued that the medical documentation provided by the Grievor’s family doctor, amounted to little more than cursory “notepad medical notes” and as such were insufficient. While the Grievor may have had some anxiety stemming from Covid-19, there was nothing that established that he was unable to perform the duties of his job.

89The Employer also argued that stress is not normally a total disability. It relied on the decision in TRW Linkage & Suspension Division and Thompson Products Employees’ Association, (2005) 2005 CanLII 94258 (ON LA), 144 L.A.C. (4th) 215, in support of that argument.

90Turning to the evidence surrounding the EAP, Employer argued that the Grievor’s evidence was inconsistent with other witnesses and documents. For example, the Employer highlighted how the Grievor’s evidence with respect to the EAP sessions he participated in was contradicted by the documentary evidence. The Grievor claimed to have participated in six sessions while the documentary evidence indicated he only attended four sessions and was absent for two additional appointments. The Grievor also claimed that he only stopped attending EAP sessions because he had reached the maximum number of appointments permitted under the EAP despite the fact that notes from Dr. Burley indicated that the Grievor told him that he was entitled to unlimited EAP sessions.

91Finally, in cross-examination the Grievor acknowledged that EAP counselling was available to him at any point but that he waited until January 2021 to do take advantage of the counselling. The Grievor did not offer an explanation for this delay.

92The Employer also emphasized that the Grievor was not totally forthcoming with the medical practitioners he saw. According to the Employer, the Grievor failed to tell Dr. French, Dr. Burley, or the ReedGroup, of any of the safety measures the LCBO put in place to try to protect its employees from the spread of Covid-19 (such as the installation of plexiglass barriers at the cash, the ability to limit the number of customers in the store at any given time, and even the ability to close the store for periods of time). Had the Grievor been more transparent with his doctors, their responses, and more specifically their diagnoses, might have been different. The Employer relied on the decisions in OSSTF and Toronto District School Board (13-50), 2020 CarswellOnt 247 and Johnson Matthey Ltd. and U.S.W.A., Local 9046, (2004) 2004 CanLII 55276 (ON LA), 131 L.A.C. (4th) 249 in support of the position that the Grievor’s lack of candidness with the medical practitioners he saw is a factor to be considered in assessing the weight to be given the medical evidence provided.

93The Employer argued that the Grievor also exaggerated the risks of exposure to Covid-19 that he faced at the workplace. The Employer noted that according to Dr. Burley’s notes the Grievor claimed he could be exposed to between 300-500 people a day. The Grievor repeated this claim during his examination in chief. The Employer argued that this claim was inconsistent with the store transaction records that suggested closer to 200 transactions per day, and failed to take account of the fact that the Grievor did not work the full-day and worked during the quieter part of the day. As such his claim that he could be exposed to up to 500 people a day represents a significant exaggeration from the Employer’s perspective. The evidence also established that the Grievor told all of the medical practitioners of his desire to bridge to retirement.

94The Employer also contrasted the Grievor’s claim that he began to experience anxiety related to Covid-19 when Covid first started to spread with the Grievor’s failure to avail himself of any of health and safety options available to him before going on leave. For example, the Employer called evidence that store managers could stop employees at the door and take their order for them. Store managers could also limit the number of customers in the store at any given time. They could also periodically close the store. The Employer noted that the Grievor confirmed he was aware of these safety measures but did not take advantage of any of them.

95The Employer also emphasized the Grievor’s failure to request any modifications to his own schedule while working during the pandemic despite such modifications being made available to all employees of the LCBO. In cross-examination, the Grievor acknowledged that he knew a gradual return to work was an option but did not pursue it with the Employer.

96Going further, the Employer pointed to a number of incidents where the Grievor was found to have failed to properly ensure compliance with the Employer’s Covid-19 safety protocols in his store. Ms. Eves testified that she had to instruct the Grievor, on two separate occasions, to follow the Employer’s Covid safety measures. The first incident occurred when Ms. Eves noticed a staff member not wearing a face mask. The second incident occurred when Ms. Eves noticed that a plastic partition had removed from the cash register area. According to the Employer, the Grievor’s failure ensure compliance these safety measures is inconsistent with his claim of anxiety related to working during the Covid-19 pandemic.

Evidence did not establish Grievor entitled to sick leave under the Collective Agreement

97As noted above, Article 13.4 of the Collective Agreement states that “no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the Employer certifying that the employee is unable to attend to his/her official duties due to sickness or injury”.

98There is no dispute that in a case such as this, the onus is on the Grievor to establish that he was entitled the medical leave requested. Based on my review of the medical evidence, I conclude that the Grievor failed to establish that he could not perform his duties due to anxiety from working during the pandemic. As such I am also satisfied that the Grievor did not establish that he was entitled to a sick leave under this Collective Agreement.

99I have reached this conclusion for the following reasons. First there are a number of issues within the medical documentation itself. Most importantly, none of the medical documents indicate that the Grievor could not perform the duties of a store manager due his anxiety. At best, the medical evidence establishes that the Grievor stated that he was suffering from anxiety, that he found it difficult to work and that he did not want to continue working during the pandemic. It is not clear, based on the information provided, that the Grievor ever discussed the duties of his position and how his anxiety interfered with his ability to carry out those duties, with any of the medical practitioners he spoke with.

100Some of the medical documentation supports the conclusion that the Grievor’s anxiety was not as severe as he claimed. The Grievor’s EAP file indicated that that the “primary assessed issue” was the Grievor’s anxiety and that the goal was “partially attained”. The EAP file also indicated that the Grievor was neutral (and therefore neither agreed nor disagreed with the following statements: “My personal problems kept me from concentrating on my work” “I am often eager to get to the work site to start the day”; “So far, my life seems to be going very well”; and “I dread going into work”. Had the Grievor’s anxiety been as severe as he claimed one would expect these statements (or at least those related to work) to have elicited stronger responses. I did not find the Grievor’s response to this evidence, that he did not recall having these questions put to him and that he disagreed with the responses, credible.

101Dr. Burley’s notes also cast some doubt on the extent of the Grievor’s anxiety. In the notes from the Grievor’s November 17, 2020 visit, Dr. Burley indicated that he thought the Grievor’s recovery would not require the Grievor to use all his sick days. Dr. Burley wrote that he thought the Grievor could expect to improve within a couple of weeks of starting a counselling program.

102It is striking that all of the medical practitioners and counsellors the Grievor consulted with (Dr. French, Dr. Burley and the EAP) noted that the Grievor’s goal was to use his sick leave until he was eligible for retirement. In light of my conclusion with respect to the August 6 meeting with Ms. Eves, I did not find the Grievor’s claim that the references to his desire to use his sick leave until he could retire were simply part of a general conversation or “catching up” as the Grievor put it, to be credible. Rather, I am satisfied that much as he did with Ms. Eves, the Grievor told those individuals that his intention was to use his sick leave to get to retirement.

103The lack of an active treatment plan further undermines the Grievor’s claims about his anxiety and whether it stopped him from being able to carry out his duties as a store manager. While the Grievor disputed that he was not under an active treatment plan, Dr. Burley drew that conclusion during his consultation with the Grievor on November 17, 2020. And while Dr. Burley was silent on that question following the Grievor’s second visit in June 2021, it is significant that nothing had changed in the Grievor’s treatment plan since November 2020, and Dr. Burley indicated that he did not intend to continue with the Grievor after that visit.

104Finally, the evidence with respect to the EAP also undermines the Grievor’s claim that he was unable to work due to his anxiety. The Grievor claimed that he participated in four counselling sessions under the EAP and that he only stopped because he had used up his permitted allotment of sessions. This claim was contradicted by the evidence. The Grievor’s EAP file indicated that the Grievor was scheduled for two additional counselling sessions after his fourth session and that he was absent for both of them. The evidence also established that the Grievor was entitled to an unlimited number of EAP counselling sessions despite his testimony to the contrary. Finally, the EAP file indicated that the Grievor turned down the option of participating in a two-week follow up session.

105In addition, other than test results showing the Grievor was suffering from mild to moderate anxiety and depression, all of the medical reports rely on the Grievor’s self-reporting of his symptoms. Given my findings on the Grievor’s credibility this is a factor that must be acknowledged and considered in determining the probative value of the medical evidence.

106In light of all of the reasons set out above, I am satisfied that the Grievor has not satisfied the onus in this case that he was entitled to sick leave under the Collective Agreement. The grievance is denied.