- AND - - AWARD - IN THE MATTER OF AN ARBITRATION BETWEEN: METROPOLITAN TORONTO POLICE SERVICES BOARD. (Hereinafter called the "Employer")

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1 IN THE MATTER OF AN ARBITRATION BETWEEN: METROPOLITAN TORONTO POLICE SERVICES BOARD. (Hereinafter called the "Employer") - AND - METROPOLITAN TORONTO POLICE ASSOCIATION (Hereinaftkr called the "Association") [GRIEVANCE OF D. MERCURY] SOLE ARBITRATOR: E.E. PALMER, Q.C. APPEARING FOR THE BOARD: B. BROWN and others APPEARING FOR THE ASSOCIATION: R. AVELING and others - AWARD - The present arbitration arises out of a grievance filed by the Association with the Board on 20 April This document reads [see Exhibit 1.11 : The above noted individual [D. Mercury], who recently resigned from the Force, was denied pay for seven days of sick leave taken during the month of August, This denial is a clear violation of the Collective Agreement. Accordingly, the Association is filing a grievance. Given the nature of the case and the fact that Mr. Mercury is no longer a member of the Force, we do not believe it would be useful to discuss this matter at the unit level. Accordingly, we would propose meeting with you or your designate at the earliest possible

2 opportunity. We look forward to hearing from you in due course. This matter was not resolved during the grievance procedure and so forms the basis of the present arbitration, a hearing in relation to which was held in Toronto, Ontario, on 6 June At that time the parties agreed that the under-signed arbitrator had jurisdiction to hear this matter. Accordingly, they were afforded an opportunity to present evidence and argument. Initially, it should be noted that there was little dispute regarding the basic facts in this matter. Thus, it would appear that the Grievor in this case, Mr. D. Mercury, who has now resigned from the Force, had been employed by the Board on 23 June At the time of his effective resignation on 25 September 1992, he had some 10 years service with the Force. During this period of time, Mr. Mercury had obtained leaves of absences in 1990 and 1991 to attend law school at the University of Ottawa, from which he has now graduated with an LL.B. These leaves of absence did not.affect his total record of more than 10 years of service. There would appear to have been no problems regarding these leaves of absence during his first two years of law school. The issue in the present case began in the summer of 1992 prior to his resignation from the Force. Thus, it would seem that Mr. Mercury had some financial problems which had resulted from his attendance at law school. As well, Mr. Mercury had suffered since a child from problems of a bronchial nature. This had caused him to be absent on two occasions during that summer. Prior to that, his

3 record regarding illness was excellent. It might also be noted that on both of these occasions when he was absent he had carried out his obligations under Article 12 of the Collective Agreement with respect to notification of both the fact that he was unable to work and his ability to return after the illness had ceased. On neither of these occasions had he been asked to provide any medical certification with respect to his inability to work. Towards the end of the summer Mr. Mercury had made a further request for a leave of absence to complete his third and final year at the faculty of law of the University of Ottawa. This application was made on 19 August 1992 [see Exhibit 41 and it seems clear that such would have been granted. This leave of absence was to be from 26 September 1992 to 31 April Mr. Mercury, quite rightly, assumed that such would be granted by the Board. As law schools begin classes early in September, usually immediately after Labour Day, there was a gap which had to be filled in relation to his absence from work. That is when Mr. Mercury asked for permission to be off work by using both lieu days and vacation leave. It was his view that it was likely that these would be granted and thus he would be able,to attend school without failing to carry out his obligations to the Board. In this he was incorrect as he had insufficient days in his "bank" to cover this period. Accordingly, given this, his financial position and the fact that he had been informed that it was highly improbable if not impossible that he would obtain legal employment with the Force upon graduation, he considered resignation from the Force to take

4 advantage of certain payments which would be made to him upon resignation after ten yearst service. After assuring himself that he would qualify for such payments, Mr. Mercury resigned effective 26 September 1992, his last day on the Force being the preceding day. Mr. Mercury's last scheduled days of work were 27 August 1992 to 2 September 1992, He did not work these days as he reported his inability to do so as a result of illness, thus meeting the procedural requirements of Article of the governing Collective Agreement between the parties. It was also not disputed that Mr. Mercury, at the time, had sufficient sick pay credits to cover this period of time. Nonetheless, the Employer refused such payment in these circumstances as they were not satisfied that this time was "lost by reason of illness or injury" as required by Article of the Collective Agreement. Mr. Mercury was not informed of the suspicions of the Employer during the period of time in question. Thus, he did not attend upon a physician as the problems he was having, he claimed, were the same as he had encountered earlier in the summer (and, indeed, was similar to the bronchial problems he had since childhood) and so he knew the required treatment. He had not required medical certification on these earlier occasions and so saw no need for it this time. Indeed, he was not aware that the Employer would require medical certification of his illness until he met with Mr. Len Hazel, Manager of Labour Relations for the Employer on 18 September At that time this matter was raised

5 while discussing details of the Griever's resignation and a document was signed which included the following [see Exhibit VIII] : I was sick from August 27 to September 4, 1992 for a total of 40 hours. If this illness cannot be substantiated a further 70 hours pay will have to be recovered [by the Board] for a total of 70 x per hour = $ I have agreed that any overpayment will be deducted from my accumulated sick pay grant. [signed] P.C. David Mercury (1921) It is the circumstances surrounding the signing of this document which give rise to the only significant difference in facts between the parties. Mr. Hazel testified that prior to this he had been informed of Mr. Mercury's absence and his change of mind regarding his leave of absence as well as certain statements he was told the Grievor made which reflected an incorrect view of his rights under the Collective Agreement. In result, Mr. Hazel was suspicious of the validity of Mr. Mercury's claim of illness. Accordingly, he informed the. Grievor he would not receive the pay for his absence unless he could substantiate this with medical evidence as Mr. Mercury told him he had seen a doctor regarding this. Under cross-examination, Mr. Hazel said the Grievor had led him to believe there would be no problem in obtaining a doctor's letter; it was his impression he had seen a doctor, Mr. Mercury, on the other hand, denied he said he had seen his doctor. In his opinion, all he needed was a letter from a doctor which supported his claim. He stated he would not have made the statement 5

6 attributed to him by Mr. Hazel as it was untrue and so he could not meet this requirement. In fact, Mr. Mercury did supply a medical note from a Dr. C. Iwasa dated 2 October 1992, which made the usual, brief statement: "The above pt. [Mr. Mercury] was unable to work for medical reasons, Aug. 24 to Sept. 4/92 inclusive. [see Exhibit 21" This was followed by a more expansive letter dated 17 December 1992, which read [Exhibit 1.91 : I have received your request for information on David Mercury. I saw this patient on October 2nd, He explained to me that he had a cold like illness from August 24th to September 4th) 1992 and was unable to work during this time. He told me that his employer did not request a note documenting his absence until 2 weeks after his illness and thus he had not presented himself before this time. We discussed his symptoms which had resolved. I felt that they 7. were likely allergic based. The patient did have a documented ragweed allergy dating back to 1980, This man has bee a patient of this practice since He has always been compliant with treatment and has never made any unreasonable request for time off work. I felt that I had reasonable knowledge of his illness during the period of question and thus granted the note on October 2nd, As you are aware the doctor/patient relationship is built on trust. I hope that this will satisfy your concerns. This evidence did not satisfy the Employer and so payment was denied Mr. Mercury. The present Grievance was subsequently filed. Before turning to the argument of the parties certain provisions of the Collective Agreement should be set out. These read [Exhibit 11: ARTICLE 12 - SICKNESS AND SICK PAY CREDITS

7 12:06 Every member, on the first of the month following completion of six months of service shall be eligible to receive sick pay, at full salary, for any time lost by reason of illness or injury to the full extent of sick pay credits available to him/her at the time of each absence, except where an award is made under the Worker's Compensation Act. 12:09 Every member who is unable to report for duty by reason of sickness shall immediately cause his/her Station or Division office to be so notified. 12:lO (a) The Director of Medical Servi.ces shall have medical charge of every member who, on account of illness, injury or other physical or mental disability, is unable to do his/her police duties, provided that any member who wishes to be attended by his/her family physician may do so at his/her own expense. The Director of Medical Services or a physician or nurse appointed to assist him/her, shall have the right to visit the sick member at least once a day and the Director of Medical Services or a physician appointed to assist him/her shall have the sole right to determine when the member shall resume duty. On the basis of the foregoing, the Association urged that the Employer was obligated to pay 70 hours for sick pay plus accrued interest to Mr. Mercury. In this regard, they noted that it was not disputed that Mr. Mercury had ample sick leave credits available to cover this absence: see Collective Agreement, Article Thus, the real question in issue is whether the Grievor had lost this time "by reason of i11nese4'. In the opinion of the Association, the evidence clearly indicates this was the case. 0n.this point, the Association first noted that Mr. Mercury had stated that he, in fact, was ill and unable to work. This, they claimed, was consistent with his past record: he had not used his sick leave credits to any great degree in the past and did not have an absentee record. In the opinion of the Association, the

8 testimony given by Mr. Mercury was clear and not susceptible to any of the normal factors that would discredit such. In opposition to this, the claim was made that there was no evidence that Mr. Mercury was not ill. All that existed, in the opinion of the Association, was a suspicion on the part of the Employer. They noted that Mr. Mercury had met with the requirements of the Collective Agreement with respect to notification of the Employer [see Article , as he had done in the past. More to the point, they urged that in the circumstahces it was reasonable for Mr. Mercury not to have seen a medical doctor at the time of his absences, for example, Mr. Mercury had not been requested to provide medical evidence and so it was reasonable for him, knowing the nature of his illness, not to attend upon his physician upon this occasion. The Association also noted that the present Collective Agreement does have a provision - Article 12.10(a) - which provides an opportunity for the Employer to determine the validity of the medical. reason for absence. They had not done so and so it was unreasonable for them to make an ex-post-facto request for information which Mr. Mercury obviously could not provide. On the same point, the Association indicated that such was not the case in the civilian collective agreement entered into by the Employer [see Article Finally, the Association noted that with respect to the conflict of evidence in this matter the appropriate way to deal with this was to conclude that Mr. Hazel was left with a mistaken

9 impression of what Mr. Mercury had said. In this regard, they noted that Mr. Hazel had essentially stated that he could not recall specific language; but rather indicated he had drawn this conclusion from implications of statements made by Mr. Mercury. The Association noted, however, that it would be highly unlikely that Mr. Mercury would have made the statement attributed to him because it was not true and it must have been clear to him that he could not have proven this, an issue of real significance at the time. Therefore, the Association requested that this be regarded as a mere misinterpretation by Mr. Hazel of what the Grievor had said. grievance succeed. Accordingly, the Association requested that this The position of the Employer was, initially, to state that there were reasonable grounds for them to doubt the bona fides of Mr. Mercury's illness. Accordingly, they were entitled to request appropriate medical proof of this which, in the circumstances of this case, Mr. Mercury did not provide. Thus, they were entitled to refuse payment to Mr. Mercury. In support of these general propositions, the 'Employer cited a number of arbitral awards: Re City of Toronto, 29 L.A.C. (3d) 97 (Davis, 1987); Re - Municipality of Metropolitan Toronto, 23 L.A.C. (3d) 276 (Burkett, 1986); Re Labatt's Ontario Breweries, 11 L.A.C. (4th) 89 (Brandt, 1990); and Re Salvation Army Grace Hos~ital,. 25 L.A.C. (2d) 241 (McLaren, 1980). I will return to a discussion of some of the principles therein enunciated at a later point in this award. Turning then, to the facts, the Employer stated that the

10 facts suggested that there were reaeonable grounds to doubt the validity of Mr. Mercury's claim. To this end, they stressed a number of facts. First, they indicated that the Grievor knew he was returning to Law School and that his absence from the Force would commence on September 26th. As Law School would open towards the beginning of September, it is clear he must have had some valid excuse for not being available to work during this period. Second, the Employer stressed that Mr. Mercury was thinking of resigning to obtain certain payments to enable him to continue on at Law School. This would require him to have a clear ten years service and hence, to ensure this, he had wished to extend his employment until at least September 26th. To this end, he had attempted to use certain benefits available to him so he would be covered from September 7th to September 26th. His last seven days of work would commence on August 27th. Accordingly, by being absent on sick leave, he would extend his period of pay from his last day of work on August 20th until September 26th. The circumstances would at least seem suspicious and the absence was a major one. Taking this into account plus what Mr. Hazel considered to be some improbable statements made by Mr. Mercury regarding his entitlement under the Collective Agreement, these facts would give rise to the Employer being able to challenge the validity of the absence and to require sufficient proof of the such before paying the requested benefits. On the latter point, the Employer stressed that the mere provision of a medical certificate arising from an examination well

11 after the time of absence is not satisfactory to fulfil the obligation imposed upon Mr. Mercury. In their view, such is reflected in arbitral jurisprudence. To further buttress this case, they urged that one should accept the evidence of Mr. Hazel and this would indicate that Mr. Mercury stated that he had seen a doctor during his a1 leged period of illness and so should have been able to provide such a document. The fact that he had not would lead one to believe that the absence was not justified in the terms required. Finally, they emphasize that there are other ways to satisfy the Employer that the absence was justified than medical certification. In result, then, the Employer requested that this grievance be dismissed. Having considered the foregoing, it is my view that this grievance should succeed. In reaching this conclusion I would first note that there can be little dispute that the Employer has the right to request appropriate medical certification of the absence of an employee when circumstances such as here prevail. Further, I accept the general proposition that a medical certificate from a doctor who did not examine the patient at the time of the illness need not satisfy the onus placed upon the person to validate their absence. In the present case, however, these general propositions do not appear to be applicable. The reason for this conclusion is essentially related to the timing of the request made to Mr. Mercury. It seems clear on the facts that in the past Mr. Mercury had not been required to

12 provide this type of documentation and, accordingly, it would seem reasonable that he should not have anticipated such a request in the present circumstances and sought to provide contemporary evidence of his absence. To offset that result, it is my opinion that the Employer was obliged to contact Mr. Mercury at the time of his absence and state their request then. By waiting until a considerable time after he claimed he was better, such precluded Mr. Mercury from actually obtaining the type of documentation requested. On this point, I would note that I accept the Association's explanation as to what had most likely occurred in the discussions between Mr. Mercury and Mr. Hazel. A review of my notes suggests that although Mr. Hazel in the end was absolutely convinced that the Grievor had told him that he had seen his doctor during the period of his illness, he stated he.was "led by [Mr. Mercury] to believe there would be no problem in obtaining a Doctor's letter." My notes also indicate that under crossexamination Mr. Hazel said that he could not recall Mr. Mercury saying it; he was "left with the impreeeionu that Mr. Mercury had seen his physician during the period of his illness. This leads me to the conclusion that Mr. Hazel may have misinterpreted what Mr. Mercury had said and, as noted by the Association, it seems unlikely that Mr. Mercury would have stated he was going to do something as a condition of payment when he knew that he could not fulfil that obligation. With respect to the Employer claim that Mr. Mercury could

13 have substantiated his illness on some other ground, I would note that the whole tenor of the discussion between the parties related to medical certification rather than a statement from some other source. In the circumstances, I am not prepared to accept that this other alternative is one which requires Mr. Mercury to respond in those terms. In conclusion, then, it is my award that this grievbme succeeds. Mr. Mercury, as stated by the Association, met all the valid requirements for the benefit in question and he is entitled to be appropriately paid for this period. Should the parties be unable to settle this matter without further intervention, I retain jurisdiction to deal with any questions arising out of this award. DATED at Lynden, Ontario, this Sole Arbitrator

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