FPSLREB Decisions

I. Grievance referred to adjudication

1 On February 17, 2004, Bruece Machacynski (“the grievor”) filed a grievance against a decision of the Canada Border Services Agency (CBSA or “the employer”) to deny his request for other paid leave under clause 53.01(a) of the collective agreement between the Treasury Board and the Public Service Alliance of Canada that covers the Program and Administrative Services group and that expired on June 20, 2003 (“the collective agreement”). The period covered by the grievor’s request was between January 26, 2004 and February 4, 2004, for a total of 52.5 hours.

2 The employer denied the grievor’s leave request and instead granted sick leave under clause 35.02(a) of the collective agreement, which reads as follows:

35.02 An employee shall be granted sick leave with pay when he or she is unable to perform his or her duties because of illness or injury provided that:

(a) he or she satisfies the Employer of this condition in such manner and at such time as may be determined by the Employer…

3 The grievor alleges that clause 35.02(a) does not apply to his circumstances and that the employer’s decision violated clause 53.01(a) of the collective agreement, which reads as follows:

53.01 At its discretion, the Employer may grant:

(a) leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty; such leave shall not be unreasonably withheld…

4 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

II. Summary of the evidence

5 At the hearing, the grievor testified on his own behalf and called no witnesses. The employer called Dan Mallory, Chief of Customs Operations at the Port of Lansdowne, Ontario (“Lansdowne”), and Ross Mangan, a customs superintendent at the same port. Through those testimonies, a total of 22 documents were produced by the parties as evidence.

6 The grievor has been employed at the CBSA since 1997, first as a term customs inspector, and since January 15, 2001 as an indeterminate customs inspector, a position classified at the PM-02 group and level. The designated language proficiency for this position is bilingual non-imperative.

7 On April 11, 2001, the grievor received an amended letter of offer, which provided that the exemption period to meet the language requirement was two years from the date of his appointment and that a training program would be established by his employer within three months of the effective date of his appointment. According to the grievor, no one ever mentioned the length of the language training program and the fact that he would be expected to relocate for it. For a number of reasons that are not pertinent to the question at issue, the language training program was not established within the stipulated three months and only became relevant to the issue at hand in January 2004.

8 On January 6, 2004, the grievor was advised that he would be required to travel to Rigaud, Quebec, on January 11, 2004 and to report for language training at Rigaud College (“Rigaud”) for at least four months. Although he had been told earlier, during an informal meeting with Mr. Mallory and Darko Nikolic, his district director, that efforts would be made to move the language training closer to Lansdowne sometime around April 2004, no guarantees had been given.

9 On that same date, the grievor replied that he did not intend to attend the training program in Rigaud but that he would report to work on his next regularly scheduled shift. During his testimony, the grievor was asked to explain why he had refused to attend the language training. He indicated that he suffered from a medical condition called agoraphobia, which he described as a form of anxiety disorder that causes him to fear wide-open spaces, the unknown and uncontrollable social settings. He added that he was being treated for this condition by his family doctor, Dr. Jean‑Guy Roberge, and that he had never experienced symptoms at his designated workplace at Lansdowne because he had established a routine that was familiar to him and within which he felt safe. He also indicated that he knew that reporting to a different worksite, in a different city, for an extended period, would exacerbate his symptoms, which he described as tightening of the chest, dizziness, heart palpitations, sweaty palms and feeling pressured. He added that, although he had mentioned the need to attend medical appointments when discussing his unwillingness to attend language training in a prior conversation with Mr. Mallory, he had never disclosed the nature of his medical condition to his employer because he felt embarrassed about it and because it did not interfere with his regular duties as a customs inspector.

10 The grievor did not report to Rigaud on January 11, 2004 as requested and instead reported to Lansdowne on his next regularly scheduled shift, January 14, 2004. Upon his arrival, the grievor was summoned to a meeting with Mr. Nikolic and Mr. Mallory, at which he was handed a letter dated January 9, 2004, which notified him that his failure to report to the scheduled language training in Rigaud could result in the termination of his employment. Mr. Nikolic verbally repeated the same warning during that meeting.

11 Although the grievor again asserted his regular medical appointments, he chose to not disclose his medical condition at that time and reported to Rigaud at 14:00 that same day. Soon after registering, he began to experience severe symptoms of his medical condition, which were rapidly increasing in intensity. In a panic, he checked out of Rigaud shortly after 16:00 and returned to Lansdowne, where he advised his superintendent that he would be requesting uncertified sick leave for the following two days, January 15 and 16, 2004, and certified sick leave for the following week, starting January 19, 2004, with a medical note to follow.

12 On January 19, 2004, the grievor attended a medical appointment and obtained a medical note from Dr. Roberge, which confirmed that he suffered from agoraphobia and that he could not be in group settings. That evening, the grievor delivered the medical note and a handwritten note into Mr. Mallory’s inbox. In his handwritten note, the grievor attempted to explain his medical condition, described the effect it had on his ability to attend language training, requested a meeting on the upcoming Friday, January 23, 2004 and expressed a desire that his position be redesignated as English unilingual. When he testified, Mr. Mallory confirmed receiving those documents that evening or the next morning at the latest.

13 Although the medical note did not specify a date for his return to duty, the grievor explained that he had made it clear to his superintendent that the note applied to a five-day period commencing on January 19, 2004, as did his leave request form.

14 Mr. Mallory agreed to meet with the grievor on January 23, 2004. Mr. Mangan and a union representative also attended. During that meeting, Mr. Mallory informed the grievor that his medical certificate was insufficient and that more information was required. He also added that a “Physician’s Certificate of Disability for Duty” form, more commonly known by the parties as a “bluey” because of its colour, would have to be provided. It should be noted that the grievor’s request for uncertified sick days for January 15 and 16, 2004, as well as his request for certified sick days for January 19 to 23, 2004, were both approved by the employer and are not at issue in this grievance.

15 During the January 23, 2004 meeting, Mr. Mallory also informed the grievor that he would be required to undergo a fitness to work assessment at Health Canada and that he would not be allowed to attend the worksite until Health Canada deemed him fit for work. The grievor indicated that he attempted to explain to Mr. Mallory that he was no longer experiencing the symptoms he experienced at Rigaud, that he no longer felt ill, that he felt able to return to work and that there was no need for him to submit any further sick leave requests. He added that he also attempted to explain to Mr. Mallory that he had never experienced any symptoms while performing his regular duties at Lansdowne and that there was no reason to be concerned with his fitness for work at his designated worksite. During the meeting, the grievor also indicated to Mr. Mallory that, although he was willing to be assessed by Health Canada, he did not agree to use his sick leave to cover the days he would be on leave while awaiting the Health Canada assessment and testified that he specifically told Mr. Mallory “your time, your dime.” Nevertheless, the grievor was told not to report to work and to await a call from Health Canada, at which time he advised Mr. Mallory that communications with him would have to be by email, since he did not answer telephone calls at home. The grievor denied that he ever agreed to use sick leave while awaiting the Health Canada assessment or to call Mr. Mallory every morning at 09:00 as Mr. Mallory suggested during his testimony. Mr. Mangan, who was present at the January 23, 2004 meeting, did not confirm such an agreement when he testified.

16 Mr. Mallory indicated that his decision to keep the grievor off the worksite was motivated by the Canada Labour Code, R.S.C. 1985, c. L-2 (“the Code”), without specifying any part or provision of it during his testimony. I note that the Code is not mentioned in any of the documents that the employer introduced as evidence. It is not mentioned in Mr. Mallory’s letter of January 20, 2004 to a CBSA staff relations officer in which he raised his concerns about the grievor’s medical condition. It is not mentioned in his notes of the January 23, 2004 meeting, which he produced as evidence. And it is not mentioned in a letter he subsequently wrote to Dr. John Given of Health Canada, dated January 29, 2004, in which he requested the fitness to work assessment. When asked if he ever referred to the Code in his discussions with the grievor, he replied that he could not recall.

17 On January 27, 2004, the grievor went to Dr. Roberge’s office. They filled out a bluey certifying that the grievor had been disabled for duty by reason of illness between January 20, 2004 and January 23, 2004. The grievor testified that he delivered the bluey into Mr. Mallory’s mailbox that same evening. Although Mr. Mallory stated that he did not receive the bluey until mid-February 2004, when he returned from vacation, and although Mr. Mangan, who acted for him during his absence, stated that he also did not receive the bluey, neither disputed the fact that the bluey had been placed in Mr. Mallory’s mailbox and could not assert with any degree of certainty that it had not been placed there on January 27, 2004. The grievor explained that he remembered delivering the bluey on the same day that it was filled out by his doctor because he forced himself to deliver it immediately, indicating that this self-imposed behavioural strategy was part of a coping mechanism that he used regularly. Otherwise, he reverted into a state of avoidance and nothing got accomplished. The fact that the employer possessed the bluey meant to the grievor that he had delivered it on the very day it was filled by his doctor, just as was the case for the January 19, 2004 delivery of the first medical note.

18 Although Mr. Mallory advised the grievor on January 23, 2004 that he could not report to work until the Health Canada assessment confirmed his fitness to work, he did not request such an assessment until January 29, 2004. In his letter to Health Canada, Mr. Mallory referred to his concerns about the grievor’s interactions with co‑workers and the travelling public, despite the grievor’s recent explanations and Mr. Mallory’s admission that no prior issues had ever been brought to his attention about the grievor’s performance or about any incidences of erratic or questionable behaviour in the grievor’s dealings with co-workers or the public.

19 Mr. Mallory indicated that he was on annual leave shortly after that, from January 31, 2004 to February 6, 2004, and that the grievor’s bluey was not brought to his attention until sometime after his return. In cross-examination, he conceded that that did not mean that the bluey had not been placed in his mailbox at a much earlier date.

20 The grievor was contacted by Health Canada, which assessed him on February 2, 2004. On the same day, Dr. Given wrote to the employer to confirm the grievor’s interim fitness to work as a PM-02 customs inspector, pending a further assessment by a consultant specialist, scheduled for February 19, 2004. Dr. Given also advised Mr. Mangan and a CBSA staff relations officer of the results of his assessment by telephone on that day. Although a copy of Dr. Given’s letter appears to have been mailed to the grievor’s home address, no evidence was placed before me as to when he received that letter, and he was not cross‑examined on this issue.

21 Mr. Mangan, who was acting for Mr. Mallory at that time, indicated that he attempted to contact the grievor on February 2, 2004 to discuss a return to work date, despite the grievor’s indication that communications were to be by email. Mr. Mangan stated that he followed up by email but that he could not produce it as evidence to support his statement. The grievor did not recall receiving any email from Mr. Mangan. One document produced as evidence shows that a CBSA staff relations consultant emailed Mr. Nikolic, Mr. Mallory and Mr. Mangan on February 2, 2004, at 17:13, to convey Dr. Given’s assessment and to seek instructions. In the morning of February 3, 2004, Mr. Nikolic responded in the following manner:

$#@@##!!&**^&%$^$!!^^@$%##)*(&@%%&!

Having said that, we should keep him on sick leave until a formal report is received…?

22 When questioned about that response, Mr. Mallory admitted that it was inappropriate. He also agreed that it would have been inappropriate to keep the grievor off work at that time, as suggested by Mr. Nikolic, in light of Dr. Given’s report.

23 On February 4, 2004, the grievor emailed Mr. Mangan to inquire about his return to work since he had not heard from his employer since his assessment. It was agreed shortly after that he would report to work on February 7, 2004.

24 The grievor subsequently completed and submitted timesheets for the days on which he was on leave awaiting the Health Canada assessment. In total, he claimed 52.5 hours of other paid leave under clause 53.01 of the collective agreement through two separate request forms, both of which were modified to certified sick leave under clause 35.02 and approved as such. Mr. Mallory made those modifications on February 27, 2004.

25 Since he had been forewarned of the employer’s intention to modify his leave request on or about February 16, 2004, the grievor filed a grievance contesting the employer’s modification on February 17, 2004.

26 On March 15, 2004, Dr. Given submitted his final report and informed the employer that, following a review of the consultant specialist’s assessment, the grievor was deemed fit to work as a PM-02 designated customs inspector with a few limitations, none of which affected the duties of his substantive position.

27 In November 2004, the grievor moved to British Columbia for a year. Upon his return to Lansdowne in November 2005, Mr. Mallory immediately requested that he attend language training. The grievor informed Mr. Mallory that he considered that his actions constituted harassment and that he was considering initiating the appropriate proceeding. Shortly after, the grievor’s position was redesignated to unilingual English. This evidence was not contradicted by Mr. Mallory when he testified.

28 The grievor also indicated that the employer had since requested further fitness to work assessments from Health Canada, despite the lack of any incidences in the workplace and that, during the waiting time for those assessments, the employer had permitted him to continue to report to work and had placed him on desk duty.

III. Summary of the arguments

A. For the grievor

29 The grievor submitted that the employer unreasonably required him to use certified sick leave during his period of absence from the workplace between January 26 and February 4, 2004 because he was not ill or injured during that time.

30 Since the grievor had specified to his supervisor on January 14, 2004 that he would be providing a doctor’s note to certify his sick leave request only for the week of January 19, 2004, the note he provided on January 19, 2004 was and could only have been intended to certify his absence during that week. That, according to the grievor, was further explained in his handwritten note of January 19, 2004 and during the meeting of January 23, 2004. The evidence demonstrated that the grievor clearly indicated that his medical condition affected only his ability to attend language training and not his ability to perform his substantive duties.

31 The grievor also submitted that the evidence established that no illness or injury prevented him from returning to the workplace after January 23, 2004. Dr. Given’s medical report of February 2, 2004 confirmed that the grievor was fit for work. Therefore, it was unreasonable for the employer to require him to use his sick leave to cover the period in which he was prevented from reporting to work. The grievor suggested that claiming sick leave while fully aware that two physicians had deemed him physically fit to work was clearly a violation of article 35 of the collective agreement and was something he was not prepared to do.

32 The grievor submitted that the circumstances that prevented him from reporting to work between January 26, 2004 and February 4, 2004 were clearly attributable to the employer.

33 The grievor cited the following excerpts of Brown and Beatty, Canadian Labour Arbitration:

…As a general rule, arbitrators have said that an employer can only demand medical verification of an illness or incapacity of a kind, in a form and at a time that is consistent with the terms of the agreement, and where there is a reasonable basis for so requiring… [para 8:3320]

…Consistent with the normal rules of procedure and proof, the onus is on the employer to establish that whatever evidence the employee has provided is unsatisfactory.

Even when an employer has a legitimate basis to insist that employees provide satisfactory medical certification for their absences and/or their fitness to return to work, its right is not absolute or unfettered. Both the circumstances in which and the manner by which the right is exercised must conform to the terms of the collective agreement and a general standard of reasonableness…Whatever the deficiency, there is a consensus that it is improper for employers to reject a medical certificate without explaining to the employee the basis for its doubts and specifying exactly what information is missing. [para 7:6142]

…As well, there is a general consensus that while an employer has a legitimate basis on which to demand a medical certificate from the employee’s own physician when a claim for a health benefit is made, it cannot insist that the employee submit to an examination by its own doctor, or by one not of his or her own choosing…[para 8:3320]

34 The employer required that the grievor undergo a Health Canada assessment evidently performed by a physician not of his choosing and prevented him from reporting to work until it confirmed his fitness for work. The grievor’s position is that the employer should first have requested specifics from his treating physician before even considering sending him to Health Canada. Without more detail, the employer was not in a position to challenge or question the physician’s findings and to make a reasonable decision about whether a Health Canada assessment was necessary. According to the grievor, the employer reacted to his medical diagnosis in an unreasonable and rash manner. Its decision to put him on forced leave for an indeterminate amount of time was made without considering the following relevant factors:

1) The employer did not inquire as to how long he had been under a physician’s care for his medical condition or how long he had been suffering from it. That information could have helped the employer assess whether the condition was new and determine whether a legitimate workplace safety hazard existed.

2) The employer had no knowledge or understanding of his diagnosis and did not ask his treating physician to explain how the performance of his regularly assigned duties might be affected. Had the employer requested information from or accepted a fitness to work evaluation from Dr. Roberge, he would have resumed duties earlier, because it would have been established that no safety risks were involved.

3) The employer did not consider his past performance or the fact that no incidences of suspicious, violent or questionable behaviour had occurred on his part. Despite the lack of evidence that his mental condition could pose a safety threat to himself, travellers at the border or co-workers, it appears as though the employer reacted to stereotypes about mental illness and imagined possible threats when none of the evidence supported such ideas.

35 The grievor also submitted that the employer acted unreasonably by not considering a less-onerous measure than removing him from the workplace. It could have offered to modify his duties during the period in which he waited for his Health Canada assessment, as it opted to do when later assessments were requested, instead of requiring him to take sick leave, a measure that would have been consistent with the general principles of an employer’s duty to accommodate. The grievor submitted that his absence from the workplace was clearly not attributable to him and that the employer’s decision to keep him from working was unreasonable.

36 The grievor also submitted that the employer unreasonably denied other paid leave for the dates during which it prevented him from reporting to work and that it failed to inquire into the material facts with sufficient care before making its decision.

37 According to the grievor, the employer’s unreasonable assessment of the risks associated with his medical condition ultimately led to the unreasonable denial of his leave request. He contended that the employer’s fear about his medical condition was based on stereotypes about mental health and was not based on the facts before the employer at the relevant time. The grievor submitted that he provided medical evidence to excuse him from language training and that he was forthright, honest and open with the employer about his condition and assured it that he was fit to work. Moreover, despite having been treated for his condition for some time before the January 2004 incident, the grievor had always performed well and without incident during seven years of employment. Therefore, the employer had no reasonable basis for presuming that he might cause injury to himself or others. Although it is true that an employer has the right to ensure that an employee is fit to work, the grievor contended that the context of the illness and its manifestations must be considered. The grievor’s anxiety was clearly linked to the language training rather than to his work at Lansdowne, a factor that the employer ignored.

38 The grievor sought a declaration that the employer had unreasonably denied other paid leave under article 53 of the collective agreement and an order restoring the 52.5 hours of sick leave that he was forced to use between January 26 and February 4, 2004.

B. For the employer

39 The essence of the employer’s argument is that it acted reasonably when it requested that the grievor complete a fitness to work evaluation in light of the limited medical information that he presented on January 19, 2004 and that the circumstances that prevented him from reporting to work were solely attributable to him. According to the employer, the initial note submitted by the grievor on January 19, 2004 lacked detail and indicated an incapacity to be in a group setting, information that ultimately led it to seek the Health Canada assessment.

40 The employer contended that the evidence established that the parties agreed to proceed with the Health Canada assessment and that the grievor would use his sick leave while he awaited the final outcome of that assessment.

41 The employer submitted that the grievor’s leave request was not unreasonably withheld in light of the circumstances. It relied specifically on the fact that the bluey that certified that the grievor was fit to work as of January 23, 2004 was only received by Mr. Mallory on his return from annual leave in mid-February 2004. The employer also relied on the fact that the grievor did not submit a request for other paid leave during the January 23, 2004 meeting or shortly after it.

42 The employer contended that it exercised due diligence based on the limited medical information that was available at the relevant time, which raised serious concerns about the grievor’s ability to resume the full scope of his regular duties and the potential risk to himself and to the travelling public in general.

43 The employer added that it did not act in an arbitrary fashion and that it went to great lengths to reach the grievor once it received Dr. Given’s report, to return him to the workplace as soon as possible, despite the fact that the grievor had made no attempts to contact the employer about his return to work.

44 The employer contended that Mr. Nikolic’s email of February 3, 2004, which was clearly unfavourable to returning the grievor to work even after the receipt of Dr. Given’s report, had no bearing on the actions of either Mr. Mallory or Mr. Mangan. I note that both reported to Mr. Nikolic at that time.

45 The employer submitted that the fact that it requested subsequent fitness to work assessments of the grievor and that it chose to place him on desk duty on those occasions is irrelevant to this matter because the events in question occurred five years after this grievance was filed and because the reasons that led the employer to require further assessments are unknown.

46 The employer did not deny that the grievor expressed a desire and a capacity to return to work during the January 23, 2004 meeting, but it suggested that the grievor’s failure to present a medical note certifying his fitness for work as of that date, during that meeting, justified its actions and its ultimate decision.

47 The employer submitted that it acted in good faith and that its actions were based on the information it had at the relevant time.

48 In support of its position, the employer referred me to the following two decisions of the former Public Service Staff Relations Board: Skibicki v. Treasury Board (Environment Canada), PSSRB File No. 166-02-20723 (19910116), and Creamer v. Treasury Board (Health Canada), PSSRB File No. 166-02-27300 (19970716). I have not reproduced any of the quotes cited by the employer, as I found these cases to be of little, if any, guidance.

49 No arguments were made about the Code and its application to this case.

50 In conclusion, the employer’s position is that it did not act in an arbitrary, discriminatory or bad faith manner and that its decision to deny the grievor’s leave request was reasonable.

IV. Reasons

51 In this case, the grievor bears the onus of demonstrating that the manner in which the employer exercised its discretion under article 53 of the collective agreement was unreasonable, specifically when it denied the grievor’s request for other paid leave. For the reasons that follow, I have concluded that the grievor met his onus.

52 I cannot accept the employer’s contention that the evidence established that the parties agreed during the January 23, 2004 meeting that the grievor would use his sick leave while he awaited the final outcome of the Health Canada assessment. Although it appears that he agreed to undergo the assessment, the grievor contradicted Mr. Mallory’s evidence about the alleged agreement. No document established the grievor’s acknowledgement of such an agreement. Mr. Mangan, who was present at that meeting, did not confirm either version. I did not attach much weight to the notes of the meeting that were produced by Mr. Mallory since they were not initialed or signed by the grievor, and no independent witness confirmed when the notes were prepared and more importantly the veracity of their content, something that Mr. Mangan could have easily done but was not asked to. An agreement of this nature, which can be detrimental to an employee, should only be relied upon by the employer if acknowledged by the employee. After carefully considering and weighing the testimonies of both Mr. Mallory and the grievor, I prefer the grievor’s version of the facts on this issue. Even if the parties had agreed to use the grievor’s sick leave for the period in question, such an agreement would not absolve the employer of responsibility for all subsequent actions. Nor would it be sufficient to deprive the grievor, in these circumstances, of his right to react to an unreasonable exercise of discretion on the employer’s part. The information available on February 27, 2004, clearly established that the grievor was not sick during that period of time. This does not, despite the employer’s argument, create a circumstance solely attributable to the grievor.

53 I also cannot accept the employer’s contention that the fact that the bluey, which certified that the grievor was fit to work as of January 23, 2004, was allegedly only received by Mr. Mallory on his return from annual leave in mid-February 2004, somehow justified its denial of the grievor’s request for other paid leave. First, I see no reason to not accept the grievor’s testimony that he delivered that form on January 27, 2004, as he contended. His evidence was credible and was not seriously challenged by the employer’s evidence. Second, in any event, the bluey was received before Mr. Mallory modified the grievor’s other paid leave request to certified sick leave, despite the fact that the bluey confirmed the grievor’s fitness for work as of January 23, 2004 and the fact that Dr. Given’s report of February 2, 2004 also confirmed his fitness for work. Third, the evidence clearly established that the grievor’s return to work was not conditional on the delivery of a bluey but rather on a positive Health Canada assessment, which only came to fruition sometime after February 2, 2004.

54 The employer’s suggestion that the grievor should somehow be held accountable for not submitting a request for other paid leave during the January 23, 2004 meeting or shortly after is simply untenable. It completely fails to consider that the grievor felt that he had little choice but to agree to undergo the Health Canada assessment, that the employer waited six days before writing to Health Canada, that the grievor was prevented from reporting to work until his fitness for work was confirmed, and then was further prevented from returning promptly to work due to the employer’s inadequate attempts to reach him, and that he had no knowledge of when the assessment would occur or when the employer would allow him to return to his duties.

55 The employer suggested that it had gone to great lengths to reach the grievor once it received Dr. Given’s report, to return him to the workplace as soon as possible. That is not what the evidence established. The evidence demonstrated that Dr. Given’s report was dated February 2, 2004, that a copy of it was apparently sent by regular mail to the grievor’s home address and that Mr. Mangan attempted to reach the grievor by phone on two occasions, despite the grievor’s direction to communicate with him only by email. I do not accept Mr. Mangan’s testimony that he also attempted to contact the grievor by email. First, the grievor refuted that claim. Second, Mr. Mangan could not produce the email. Third, in the email exchange that took place on February 3 and 4, 2004 between Mr. Mangan and a CBSA staff relations officer, Mr. Mangan referred only to attempts at reaching the grievor by phone, not by email.

56 As for the employer’s suggestion that that the grievor made no attempt to contact it about his return to work, the facts revealed that Dr. Given’s report was mailed to the grievor no earlier than February 2, 2004 and that he emailed Mr. Mangan in the morning of February 4, 2004 for a status update about his return to work. In any event, the grievor’s claim is for January 26 to February 4, 2004, and Dr. Given’s report was written on February 2, 2004. The first email from the employer that discussed that report was sent at 17:13 on February 2 and was not addressed to the grievor. Even if the employer had reached him on the following day, I doubt that he could have reported to work earlier than February 4, 2004.

57 The employer suggested that the grievor’s failure to present a medical note confirming his fitness for work as of that date during the January 23, 2004 meeting justified its decision to request an assessment by Health Canada, to remove the grievor from the workplace and to subsequently deny his request for other paid leave, once his fitness for work was confirmed. That suggestion fails to consider the context within which the relevant circumstances arose. For example, the grievor had submitted a certified sick leave request for five days (the week of January 19, 2004) with an indication that a doctor’s note would follow. This was made clear to the grievor’s superintendent on January 14, 2004. The note was provided for the five-day leave request, not for an indefinite leave of absence. Although I recognize that Dr. Roberge’s note of January 19, 2004 referred to the grievor’s inability to be in a group setting, it did not indicate or even imply that the grievor was incapable of performing his regular duties as a customs inspector. Nothing prevented the employer from seeking clarification from Dr. Roberge, with the grievor’s consent, if it was unclear about the meaning of the note or if it required clarification as to the applicable return-to-work date. The grievor secured a medical certificate that confirmed his fitness for work as of January 23, 2004 and that was delivered on January 27, 2004. In addition, the grievor attempted to explain the circumstances of the exacerbation of his symptoms, how his condition had not disabled him in the past from performing his work and how it would not prevent him from continuing to perform his regular duties. Further, no evidence was placed before me to suggest that the grievor had not been absent from work for medical reasons for an extended period before submitting Dr. Roberge’s note of January 19, 2004, or that his leave record was plagued with repeated illness-related absences. Hence, the actual context within which the circumstances arose and the manifestation of the illness simply did not justify the measures taken by the employer on January 23, 2004, when it removed the grievor from the workplace, and later, on February 27, 2004, when it denied his request for other paid leave.

58 I believe that the employer could have imposed a less-onerous measure in the circumstances. Even were I to accept that it was reasonable for the employer to request an assessment by Health Canada in the circumstances, which I am not suggesting, none of the circumstances warranted removing the grievor from the workplace and the subsequent denial and modification of his request, once his fitness for work was confirmed. The employer could have allowed the grievor to continue to report to work and to perform the duties he had been performing for the previous seven years without incident, it could have assigned different duties during that time, or it could have insisted on some form of supervision during that time if it felt that strongly about Mr. Mallory’s concerns. Although I agree with the employer that the reasons that led it to require further fitness to work assessments of the grievor were not disclosed during the hearing, I note that the employer did not challenge the fact that it had requested further assessment, that, according to the grievor, did not reveal an incapacity on his part to perform his duties. I also find that the grievor’s testimony that he was placed on desk duty pending the results of the assessments was not challenged by the employer. In reaching this conclusion, I considered many elements, including the fact that, when he prevented the grievor from attending the workplace, Mr. Mallory did so without even asking when the grievor’s condition had started, the fact that he was unaware of any prior incident or concerns expressed by co-workers or travellers, the fact that he acted without any indicators that the grievor could pose a legitimate safety concern, and the fact that he expected the grievor to use his sick bank illegitimately and to his detriment to cover the period during which he awaited his assessment and the confirmation of his fitness for work. None of those actions translates into what I could possibly qualify as reasonable conduct on Mr. Mallory’s part. I would add that Mr. Nikolic’s response on February 3, 2004 did nothing to improve the employer’s position.

59 When Mr. Mallory modified the grievor’s other paid leave request to certified sick leave on February 27, 2004, he was aware that the grievor’s family doctor had deemed him fit for work as of January 23, 2004, he had been advised by the grievor on several occasions that he was not ill or requesting sick leave, and he had been told by Dr. Given that the grievor could resume his duties with no indication that he suffered or had suffered from an illness that prevented him at any time from performing his duties. Nevertheless, he proceeded to modify the grievor’s leave request to certified sick leave, without the grievor’s consent, despite the unambiguous wording of clause 35.02 of the collective agreement, which requires an inability to perform duties because of illness or injury and proceeded to deny his request for other paid leave. Again, those actions display unreasonable behaviour on the part of Mr. Mallory, not to mention the illegitimate application of clause 35.02.

60 I agree with the grievor’s submission that the employer reacted to his medical diagnosis in an unreasonable and rash manner and without due consideration to a number of relevant factors, which were outlined by the grievor’s representative and reproduced at paragraph 34 of this decision.

61 In exercising its discretion, the employer must examine each request and the individual circumstances of each case. After reviewing and considering those circumstances, I find that the employer’s modification of the grievor’s leave request covering January 26 to February 4, 2004 was unreasonable and illegitimate and that it violated article 35 of the collective agreement.

62 I find that the circumstances of the grievor’s absence from the workplace between January 26 and February 4, 2004 were not directly attributable to him. They were directly attributable to the employer.

63 I find that the employer’s denial of the grievor’s request for other paid leave for his absence from the workplace between January 26 and February 4, 2004 was arbitrary and unreasonable and that it violated article 53 of the collective agreement.

64 For all of the above reasons, I make the following order:

V.Order

65 The grievance is allowed. The employer must credit the grievor’s sick leave balance by 52.5 hours.

March 27, 2012.

Stephan J. Bertrand,
adjudicator