Multiple operations led to sick leave deficit for correctional officer
The Correctional Service of Canada (CSC) unfairly placed an employee who missed time due to surgery on an attendance management program, an adjudicator has ruled.
Russell Kirby was a correctional officer at Springhill Institution, a federal penitentiary in Springhill, N.S. Kirby was first hired in October 2006 and joined Springhill two years later.
Kirby was a bobsledder and had sustained multiple injuries to one of his legs while competing. Before he began working at Springhill in late 2008, he had surgery that required significant recovery and rehabilitation. As a result, he had to take more than 300 hours of sick leave, which CSC granted. The amount of sick leave was more than he had banked, so he followed a CSC policy under the collective agreement that allowed him to borrow sick leave hours yet to be earned. The collective agreement allowed employees to borrow up to 200 sick leave hours in advance.
By the time Kirby joined Springhill he had a negative sick leave balance of more than 160 hours. Nearly all of these hours had been used for his surgery and subsequent recovery.
In April 2009, CSC implemented an attendance awareness and management program (AAMP) designed to improve employee attendance and create “a healthy, safe and secure environment.” CSC was concerned with the amount of sick leave requests and the resulting overtime costs, so it felt the program was necessary to help manage such costs. Managers had to review unscheduled sick leave and patterns of usage that could indicate abuse by employees. Patterns considered worth investigating included employees with a negative balance of sick leave.
In October, managers were told employees with a negative sick leave balance of 100 hours or more or continued to use sick leave with a negative balance would have to provide medical certification for all future sick leave absences.
Kirby’s manager met with him and told him that since he had a negative sick leave balance, he would be subject to the AAMP and he would have to certify all future sick leaves. The manager didn’t inquire into Kirby’s circumstances or the reason for his sick leaves.
Kirby was unable to raise his sick leave balance to a positive one because he had three more surgeries for which sick leave was granted. He grieved the decision to place him in the AAMP, saying he should not be required to certify every sick leave because of his negative balance. Kirby argued he was being treated unfairly because of his medical history and to have to provide a note for every sick day was too much for him.
The adjudicator found Kirby’s manager did not review his medical history and only put Kirby into the AAMP because of his negative sick leave balance. Other than that balance, there was no evidence of a pattern of suspicious sick leave use, said the adjudicator.
The adjudicator noted the collective agreement specified the observation of a pattern of sick leave use was necessary before requiring an employee to provide medical certificates. Since CSC didn’t observe a pattern to Kirby’s sick leave — and didn’t even check his medical history before he joined Springhill — there was no basis to put him in the AAMP.
