This was the question in issue in Syndicat canadien de la
fonction publique, SCFP local 2718 et CIUSSS de
l'Ouest-de-l'île-de-Montréal (Centre de la
jeunesse et de la famille Batshaw) (Marc Desjardins et grief
patronal), 2016 QCTA 307 which arose out of the factual
Marc Desjardins was employed as a social worker by a
governmental child and youth centre. In order to occupy this
position, he was required to have a valid driver's license. In
March of 2013, Desjardins was arrested by the police outside his
normal working hours for driving while impaired and his license was
immediately suspended as stipulated by provincial law. Soon
thereafter, Desjardins consulted his physician and was put on
medical sick leave for a period of 3 months because of a diagnosis
of major depression and excessive alcohol consumption. He did not
disclose to his employer that his permit had been suspended. He
started to receive sick leave benefits in accordance with the
employer's sick level benefits policy.
Following his leave of absence which lasted five months,
Desjardins returned to work on a part-time basis in July of 2013
but did not inform his employer that his permit had been suspended
in March. While he was absent, he had received more than 8,000$ in
sick leave benefits from the employer. In November 2013, Desjardins
took a one year leave of absence for non medical reasons. During
his leave of absence, Desjardins plead guilty to the charges
against him. In the meantime, he also pleaded guilty to an
additional charge of having driven a motor vehicle while his permit
was still suspended which lead to a further suspension of his
permit. It was only upon his return from his second leave of
absence that he finally advised his employer that his permit had
been suspended while he was on sick leave. In fact, the only reason
for which he advised the employer was that he was required to drive
a vehicle to perform his functions while his permit was still
The employer filed a grievance to recover the amount of the sick
leave benefits which had been paid while Desjardins' permit was
suspended. The Union contested the grievance on the basis that it
had not been filed within the delay for filing a grievance provided
in the collective agreement. It also argued that the employee was
disabled during the period in question and was therefore entitled
to the benefits.
The arbitrator held that the delays contained in the grievance
procedure did not apply but that the six month limitation period
provided by section 71 of the Quebec Labour Code applied to the
employer's claim. The arbitrator also ruled that the delay only
started on the day the employer found out that the driving permit
had been suspended while Desjardins was receiving sick leave
On the merits of the claim, the arbitrator held that Desjardins
was not entitled to receive disability benefits for the period
during which his permit had been suspended. According to the
arbitrator, the real reason behind Desjardins' inability to
work was the loss of his driver's license which is not a reason
allowing Desjardins to receive sick leave benefits. Desjardins was
only entitled to the benefits if he was otherwise fit and able to
work at the time the disability arose. Since his permit had been
suspended, he was not "able" to work at the time he
became disabled. Desjardins was therefore ordered to reimburse all
benefits received while his permit was suspended but was entitled
to keep the benefits received after his permit was
Obviously, in this case the suspension of the driver's
permit was directly attributable to the employee's reckless
behavior when driving under the influence of alcohol and also his
refusal to disclose the suspension was deliberate. It remains to be
seen whether a similar result would have ensued if the suspension
of the permit had occurred for an administrative reason (non
payment) while the employee was already disabled and receiving sick
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