On occasion, there appears to be no way to reconcile two
seemingly opposite conclusions on similar fact scenarios. This
circumstance came up recently in Atlantic Canada in these similar
cases: Halifax Herald and Halifax Typographical Union,
Local 30130, and Newfoundland and Labrador Health Boards
Association and Newfoundland and Labrador Nurses'
Union. In both of these cases, the grievors – one a
photographer, the other a nurse – requested vacation leave
and both were denied. Both grievors then went off on sick leave
which coincided with their proposed vacation leave. Both presented
notes from medical professionals excusing their absence. Both
grievors then travelled to Florida during the period of their sick
leave, saying that the travel was a "last-minute"
decision.
The nurse's travel was discovered when her manager encountered
her at the check-in counter at the local airport, en route to
Florida. On her return to work, the employer held two investigative
meetings, asking how the nurse was well enough to travel to Florida
while on sick leave. The employer made it clear, however, that it
did not take any issue with her physician's declaration that
she was sick and required time away from work. The nurse first
explained that her trip, which had been planned with her family,
had been cancelled and that she made a last minute decision to go.
At the second meeting, she produced documentation which showed that
she had never actually cancelled her flight, but she still claimed
that she had cancelled the "trip". The employer, not
satisfied with the explanation she provided, declined her paid sick
leave and issued a further four week unpaid suspension for misuse
of sick leave. At the grievance hearing, the nurse's physician
testified that the travel would have been beneficial in light of
the nurse's condition, which was stress and anxiety-related.
The arbitrator upheld the grievance, overturning the discipline,
which outcome was confirmed on judicial review.
By contrast, in a series of correspondence between the employer
and the photographer, all of which was tabled at the grievance
hearing, the photographer refused to provide information regarding
the nature of her symptoms. This was a central factor in the denial
of her grievance. Moreover, the period of absence coincided
perfectly with the dates of the vacation she had initially
requested, which rightly aroused suspicion on the employer's
part. A letter from her physician in response to questions from the
employer was non-specific and did little to allay the
employer's concerns. The employer's inquiries focused on
how the photographer's symptoms prevented her from working,
specifically connected with the legitimacy of the medical leave.
When the photographer cited privacy concerns, the employer offered
to have an independent physician assess her symptoms, but she
declined. The arbitrator found that the employer had "bent
over backwards" to accommodate the photographer's concerns
and that it was therefore entitled to exercise discipline,
amounting to declining to pay for the claimed sick leave.
Obtaining sick leave without a valid medical excuse is grounds for
discipline. As an employee benefit, sick leave must be exercised
with some trust and honesty from both parties. The employee has a
duty not to misuse the leave and must be honest. The employer, for
its part, is entitled to reasonable information to justify the need
for sick leave particularly when absences are frequent or, as was
the case in both of these grievances, conveniently timed.
At first glance, it is difficult to reconcile how one employee on
sick leave is permitted to travel to Florida while another cannot,
but these two cases are not the same in all respects. The
nurse's physician recommended six weeks' absence from the
workplace. She shared medical information with her employer which
showed that her symptoms related to stress and anxiety and at the
hearing provided evidence of personal circumstances that
contributed to her symptoms. Her physician supported travel, with
her family, to a relaxing location in the context of those
symptoms. Viewed from this perspective, it is somewhat
understandable that the arbitrator accepted the physician's
assessment of the nurse's limitations while on sick leave,
though it does little to explain how the arbitrator overlooked her
lack of forthrightness at the investigative meetings.
On the other hand, the photographer refused to provide medical
information after a suspicion had been raised as to the timing of
her sick leave, though her employer made several attempts to
address her concerns. During the period of sick leave, she flew to
Florida and drove back to New Brunswick with her mother. The
employer was not in a position to assess whether the
photographer's symptoms could have been assisted by the Florida
trip, since she did not share the necessary medical information. In
the circumstances and given the lengths to which the employer had
gone, it was justified in denying her paid sick leave for the
duration of her absence.
What this means for you
Managing sick leave will always be a challenge for employers. Develop a clear policy surrounding the use of sick leave and follow it in every case. Be clear when you have suspicions that an employee is misusing sick leave and provide ample opportunity for him or her to address your concerns. Approach the issue with an open mind. Perhaps most importantly, put it in writing. Take clear meeting notes and follow up with written correspondence confirming what took place. The written record will help to refresh your memory if you are called upon to testify and it will be strong evidence at a grievance arbitration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.