By Chad Sullivan and Kathleen Starke

Background

A recent decision, Vail v. Oromocto (Town), 2022 CanLII 129486, involved several grievances including an unjust dismissal claim by a firefighter as well as a grievance filed by the Town seeking repayment of sick leave benefits based on sick leave abuse.  The decision also deals with an employee’s obligation to participate in the accommodation process.

This decision arose out of several disputes between a firefighter, a member of the IAFF, Local 1576 (the “Grievor”), and his employer – the Town of Oromocto – (the “Town” or “Employer”) which resulted in a total of five grievances, four union grievances on behalf of the Grievor and one employer grievance.

One of the underlying disputes concerned the Grievor’s operation of a side business, offering personal training and coaching services while claiming he was unable to perform any duties – even light, sedentary duties – for the Employer.

The Employer was aware that the Grievor had been operating a side business and became increasingly suspicious of sick leave abuse.  In one particular instance, the Grievor called in sick to a shift and was found attending an event related to his side business that same day (a body building competition).

At the same time, the Employer was also attempting to work with the Grievor to create a return to work plan that would accommodate the Grievor’s alleged injury.

However, the Grievor put up road blocks every step of the way – he refused to provide detailed medical information to assist in developing a return to work plan and he refused to accept any accommodations proposed by the Employer.

Throughout this time, the Grievor was also posting on social media that he was ramping up his side business, including opening up a new gym, and was preparing to compete in fitness competitions himself.

The Employer filed its own grievance over the Grievor’s abuse of sick leave – seeking repayment of sick leave benefits.

The relationship further deteriorated to the point where the Employer also terminated the Grievor for just cause.

The Decision

As noted above, the arbitration between the Grievor and the Employer dealt with a total of five grievances. The majority of the Board (the “Board”) dealt with each grievance separately.  The Employer was successful in having all four union grievances dismissed (including the unjust dismissal grievance) and was successful with its own grievance.

1. Written reprimand for failing to provide medical documentation

The first grievance alleged the Employer breached the Collective Agreement when it imposed a written reprimand on the Grievor for failing to provide, by a certain deadline, a completed medical assessment from his physician to assist the Town in developing a return to work plan.  The Town was willing and able to have the Grievor perform modified light duties as an accommodation.

The Collective Agreement provided that the Employer was entitled to request a doctor’s certificate and its return to work policy provided that the Employee is responsible for assisting in the implementation of a return to work plan, including providing medical information.

The Employer asked the Grievor to have his physician fill out a medical form on a number of occasions to confirm the Grievor’s physical limitations.

The Grievor first refused citing privacy concerns and then indicated he could not find a physician to fill it out as his doctor retired during this time.

The Board dismissed the grievance, finding that the Grievor did not make reasonable attempts to have the medical form completed and found that the Grievor’s delay in communicating with the Town was “very obvious, as was his disinterest in working light duties.”

2. Denial of access to sick leave bank

The second grievance alleged the Employer breached the Collective Agreement when it denied the Grievor’s application for an allotment of leave from the sick leave bank. The Collective Agreement provided for a sick leave bank which could be accessed, with approval by the Union Executive and Town Council, by employees who suffered a major illness or injury and who had exhausted their annual and accrued sick leave allotment.

The Grievor had, by mid-fall 2021, exhausted his annual and accrued sick leave allotment and therefore applied to access the sick leave bank. Shortly before applying, the Grievor had been assessed by a physiotherapist who indicated the Grievor could work full-time hours doing sedentary work. Therefore, the Town set out to accommodate him based on this information.

However, the very next day, the Grievor went out and obtained a medical note from a nurse which indicated, without any explanation, that the Grievor could not work more than two hours per day and only on Monday, Wednesday, and Friday each week.

The Employer denied the Grievor’s application for access to the sick leave bank on the basis that the physiotherapist indicated the Grievor could work light duties and that the Grievor was operating his side business while claiming not to be able to perform light duties.

The Town also noted that it was concerned about the fact that the Grievor, meanwhile, was continuing to operate a side business and it would be in breach of the Collective Agreement to receive sick leave from the sick leave bank at the same time as operating that business.

The Board found the Employer acted reasonably in denying the Grievor’s application as it still had not received appropriate medical certificates to justify the Grievor’s contention he could not perform light duties at full-time hours.

3. Town’s grievance – repayment of sick leave benefits

The third grievance was filed by the Employer alleging the Grievor breached the Collective Agreement by operating a side business while on sick leave and receiving sick leave benefits from the Employer.  The Employer sought repayment of the portion of the sick leave benefits paid to the Grievor during this time.

Significantly, the Collective Agreement provided that:

“At no time shall an employee be allowed to work for another employer whether self-employed or otherwise while being paid sick benefits from the Town of Oromocto.”

The Employer had collected evidence from the Grievor’s social media and business website which demonstrated that, while on sick leave, the Grievor: had attended a fitness competition; opened a new gym for his business; was training for a fitness competition himself; was providing coaching services to clients; and was selling nutritional supplements.  The Board found that “the evidence was very clear he was running a business and that it obviously was taking a substantial amount of effort and time for him to do this.”

The Grievor’s defence was that his business venture was not making a profit and that other employees operated a side business.  He provided no examples, however, that showed the Employer had provided any intention of allowing employees to operate a business while on sick leave.

The Board found that the Grievor was clearly in violation of the Collective Agreement and ordered the Grievor to repay 50% of the sick leave pay he received during the period of time addressed in the grievance.

4. Denial of access to annual sick leave

The fourth grievance alleged the Employer breached the Collective Agreement by denying the Grievor access to his annual sick leave entitlement for 2022. At the time the grievance was filed, the Grievor had not worked in 2022. The Board therefore held that it was reasonable for the Employer to deny the Grievor’s application as he had not accumulated any sick leave.

5. Unjust Dismissal

The fifth and final grievance alleged the Employer breached the Collective Agreement by terminating the Grievor’s employment without just cause.

The Employer argued that the relationship was broken and beyond repair alleging the Grievor refused to be managed, undertook a pattern of conduct designed to undermine the Employer’s authority; was dishonest and he frustrated the accommodation process.

More specifically, in the letter of termination, the Employer cited the following incidents in support of termination for cause:

• Over the preceding year, the Grievor had been subject to two written reprimands – one over a social media post (where he had taken a picture of a house where there was a fire and a fatality and posted it on social media) and another for refusing to provide medical information on request.
• The Grievor had been operating and growing his side business, all while claiming he could not perform any duties for the Employer. During a portion of this time the Grievor received sick leave benefits in violation of the Collective Agreement and continued to insist he was entitled to payment of vacation and sick leave while he operated his side business. The Employer alleged that the Grievor’s actions were akin to fraud and the Employer refused to finance his current business venture.
• The Grievor had resisted the Employer’s attempts to accommodate him at every step, including by refusing to provide medical documentation and refusing to work modified duties and thereby frustrated the accommodation process.
• The Grievor had provided a report from a medical professional which alleged the Grievor needed to be absent from work due to perceived workplace bullying and harassment by his manager relating to the development of the return to work plan. The medical professional suggested that the Grievor could return to work in a different location separate from his manager. However, the Grievor then refused to return to work at a separate location when this option was offered to him by the Employer. An investigation into the allegations of harassment and abuse of authority by an external investigator found the allegations to be unsubstantiated.  The Employer therefore concluded that the Grievor’s sole intention during this process was to obtain pay in the form of vacation or sick leave from the Town, with no intention of returning to work for the Town or participating in the accommodation process.

The Employer cited several arbitration decisions that support the notion that abuse of sick leave is very serious misconduct by an employee including due to the fact that it is very difficult for the employer to monitor.  Mutual trust and voluntary compliance is necessary for the administration of sick leave benefits.

The Board found that the Employer had just cause to terminate the Grievor – holding:

“[…] the Grievor, over a long period of time, was in breach of the Collective Agreement in his use of sick leave and in his failure to meet the obligations placed on employees to cooperate with the Employer under the RTW Policy.”

The Board held that while the Grievor testified his business was not profitable, he acknowledged that his business had 20 or more clients that paid monthly membership fees and was actively involved in running that business.  There were many social media posts showing he was actively involved in his business.  Further, there were many social media posts showing he was very involved in his own exercise and training regime and was physically able to undertake modified light duties under the Town’s return to work program.

The Board noted this was not a momentary lapse in judgment – but rather persisted over several months.

Key Takeaways

This case is useful for employers experiencing instances of abuse of sick leave and/or dealing with employees who are not meaningfully participating in an accommodation process.

If, as an employer, you find yourself questioning whether an employee is abusing their sick leave, or are confronted with an employee that is not participating in accommodation efforts, we encourage you to seek legal advice.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour & Employment group.

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