Employer was concerned with failure to follow procedure, not legitimacy of illness; denial of sick pay violated collective agreement
An Ontario school board employee should be paid for three days he was off sick, despite the fact the employee didn’t comply with the required protocol for advising his employer, an arbitrator has ruled.
Marc Paradis worked for the Toronto District School Board for 22 years. On June 7, 2010, Paradis fell ill and left a voice message for a school board official early in the morning indicating he was sick and wouldn’t be able to work that day. However, the board’s absence reporting protocol — which Paradis had acknowledged as having read — required that employees contact the board’s call centre to report absences. Also, the message on the official’s phone directed Paradis to call the call centre.
As a result of Paradis’ failure to follow the proper protocol, the board official didn’t receive the message and didn’t know of his absence until he called on June 10 to say he was able to return to work. When the official asked Paradis why he didn’t contact the call centre, Paradis replied he only had to make one call.
Paradis met with board officials and his union representative on June 15, where he acknowledged he didn’t follow protocol and ignored the message on the phone. The board gave him a written warning and indicated he would not be paid for the three days of work he missed — despite the fact Paradis had sick leave credits — because he was absent without permission and he didn’t provide any evidence to prove he was sick. The board also gave Paradis two copies of the absence reporting protocol and warned him that further incidents could result in further discipline.
The union filed a grievance, arguing the refusal to allow Paradis to use his sick leave credits and withholding his sick pay was a breach of the collective agreement and disproportionate punishment for failing to follow protocol.
The arbitrator noted the collective agreement allowed the school board to ask for proof of illness for any absence longer than three days in a row. Since Paradis was absent for exactly three days, he wasn’t required to provide medical documentation on his own accord. The arbitrator also found the school board never asked for any documentation, which showed it wasn’t really concerned with whether Paradis was sick or not.
The issue was Paradis didn’t follow protocol in reporting his absence, and since the board didn’t show it was concerned with the nature of his illness, the refusal to pay was discipline for that failure, said the arbitrator. This was supported by the fact Paradis was told the meeting was about concerns regarding his failure to follow absence reporting protocol and he was given a written warning for it.
