The grievor had given the company sifficient notice that he needed time off for a medical appointment, but the supervisor had denied the request. The arbitrator found that the request was emergency leave under the Employment Standards Act. The grievor was reinstated.
When his request for leave to attend a medical appointment was denied, a worker was fired for insubordination after he skipped work and attended the appointment anyway. The union grieved.
On Monday, May 16, 2011, factory worker A.P. approached his supervisor and requested two leaves to attend appointments. One was for the afternoon of that very day, the other was for the coming Thursday, May 19.
A.P. was granted the afternoon off but his request for the Thursday was denied.
A.P. was a no-show at work on Thursday, nor did he call in.
When he reported for work the next day, A.P. was directed to attend a meeting accompanied by union representation. A.P. was fired.
The employer said that A.P. was insubordinate. He had requested a leave and his request was denied. Nevertheless, he took the day off anyway. Termination was warranted.
The union said A.P. had advised his employer of his intention to take a leave — as he was entitled to under the Employment Standards Act and, hence, under the collective agreement. Any discipline in the circumstances was unwarranted and contrary to the Act.
Contradictory testimony
A.P. and the supervisor had very different views about what was understood concerning A.P.’s requests.
A.P. testified he first requested the leaves on May 12. A.P. said the leaves were requested for medical appointments: the first to see his family doctor; the second, which had been booked months in advance, to see a specialist. A.P. was told by his supervisor to bring it up again on May 16. A.P. did. A.P. also suggested perhaps he could credit the pay for an upcoming statutory holiday towards the Thursday so he would not lose a day’s pay. In his mind, A.P. was signaling he was taking the day off, whether he got paid or not.
The supervisor did not recall events that way. He said A.P. approached him on May 16 and asked for the leaves in question so he could attend “appointments.” The supervisor said that he did not request any details about the nature of the appointments and, according to his testimony, A.P. never offered any.
This was improbable, the Arbitrator said. It seemed implausible that a worker seeking approval for a leave from work to see a doctor would not disclose or even volunteer that he or she had a medical appointment. It was similarly unlikely that an employer in the circumstances would not ask for a reason for the requested leave.
The Arbitrator preferred A.P.’s testimony: that he had provided his employer with one week’s notice that he would be absent to attend an appointment with a specialist.
Statutory entitlement
The union argued Personal Emergency Leave provisions under section 50 of the Employment Standards Act entitled A.P. to a leave without pay with — or without — the employer’s explicit approval.
The Arbitrator agreed.
The employer argued A.P. was not entitled to the leave because he had not properly notified the employer, as required.
That was not the case, the Arbitrator said. The evidence showed A.P. had given one week’s notice.
The employer also challenged A.P.’s entitlement to the leave based on questions about whether or not A.P. qualified as having a “personal illness, injury or medical emergency” as required by the Act.
A.P. was qualified, the Arbitrator said.
“I am satisfied that the uncontradicted evidence of the grievor regarding his personal physical concern coupled with the independent and uncontradicted evidence of the specialist’s involvement in the process is sufficient to meet the union’s evidentiary onus to establish that the leave was taken because of personal illness or injury.”
It wasn’t of particular concern to the Arbitrator that A.P.’s condition did not necessarily prevent him from working.
“Rather, it was the appointment with a specialist, many months in the making, directed at responding to and inquiring into his medical concerns which, if it was to be kept, made attendance at work on the day in question impossible. In my view, this is precisely the type of circumstance contemplated by the statute — it guarantees, within a limited number of occasions, an employee’s ability to take [an] unpaid leave of absence for purposes that would include seeking and obtaining medical treatment.”
Appointments with specialists cannot always be scheduled according to the needs of either the employee or the employer, the Arbitrator said.
“The Legislature has proclaimed that, in certain circumstances, the operational needs of employers may have to be subordinated to the needs of employees to tend to health concerns.”
The grievance was allowed. A.P. was ordered reinstated.
Reference: Kruger Inc. and Communication, Energy and Paperworkers Union, Local 1646. Bram Herlich — Sole Arbitrator. Michael Torrance for the Employer. Joe Herbert for the Union. Jan. 3, 2011. 16 pp.
