City claimed employee didn’t meet sick leave requirement of note from approved physician but court disagreed
A Saskatchewan firefighter deserves to get paid for three days of absence after varicose vein surgery, the Saskatchewan Court of Queen’s Bench has ruled.
Earl Braun was a firefighter in Swift Current, Sask. In 2007, he experienced problems in his legs which led to varicose vein surgery on Sept. 6. The doctor who performed the surgery prepared a medical note for Braun’s employer, the city, stating Braun would need four weeks off work following the surgery. The note explained that if Braun was too active during those four weeks, he could develop blood clogs in his leg that could eventually move to his lungs and kill him.
One week after Braun’s surgery, the city sent him a medical restrictions form for his “family physician” to complete, which would be used to develop a return to work program for him. The form consisted of a request for the physician to list medical restrictions for the worker when he returned to work along with immediate accommodations if the worker could return immediately. It also said if it didn’t receive the completed form by Sept. 21, he would be placed on unpaid leave until the completed form was received.
Surgeon filled out medical form instead of family physician
Braun told the city he would have his surgeon fill out the form rather than his family physician, whom he would be seeing on Sept. 26. The city agreed and said it would expect the form on Sept. 26.
When the surgeon received the form, he opted not to fill it out and instead prepared a letter describing the surgery and stating Braun would need more than 21 days off to recover. He didn’t address the form’s request for medical restrictions for the return to work. Braun then passed the letter on to the city.
Braun returned to work on Oct. 1. Between the city’s original deadline for the form of Sept. 21 and his return, he missed three scheduled days of work. However, the city refused to pay him sick leave pay for those days, saying by not submitting a form filled out by his family physician, he hadn’t followed the collective agreement requirement for paid sick leave by providing “a certificate signed by a duly qualified medical practitioner” designated by the city. The collective agreement stipulated such a refusal would result in the employee being considered absent without pay.
Braun filed a grievance, claiming the city wasn’t living up to its obligation to provide paid sick leave under the collective agreement.
The Saskatchewan Arbitration Board found Braun’s absence was a “relatively short period of illness” during which his surgeon indicated he could not return to work for four weeks. There was no reason to think otherwise based on the medical information Braun provided to the city, said the board.
The board also found the request for Braun to see his family physician in order to fill out the medical restrictions form was unnecessary since he had a scheduled follow-up appointment with his surgeon. In fact, the city agreed to the surgeon providing the information when Braun informed it of the appointment. If it had any problems with the information provided by the surgeon, said the board, the city had the option under the collective agreement to request an independent medical examination. However, it did not make such a request. As a result, the board found no evidence Braun failed to follow his obligations under the collective agreement.
The board ordered the city to pay Braun sick leave pay for the three days and the city appealed to the Saskatchewan Court of Queen’s Bench.
However, the court found no reason to overturn the board’s findings. Though the city argued the absence wasn’t short-term based on a Saskatchewan Medical Association policy defining a “brief worker absence” as several days, the court found it was reasonable for the board to find Braun’s absence was short-term considering the circumstances and the fact he co-operated with the employer’s request for medical information.
The court also found the board was reasonable in determining the information provided by the surgeon was appropriate and without a request for an independent examination, Braun did everything he was required to do under the collective agreement.
The court quashed the city’s appeal and upheld the board’s order to the city to pay Braun for the three days of sick leave.
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