Professor takes sick leave with 2 weeks left in job

Applied for 6-month sick leave benefit two weeks before end of contract

This instalment of You Make the Call features a university professor who went on sick leave two weeks before the end of his contract.

Samuel Bottomley was a professor at Carleton University in Ottawa. He joined the university in 2004 on a one-year appointment that was renewed each year until November 2007, when he was informed his current contract which ran to June 30, 2008, would not be renewed.

On June 14, 2008, two weeks before his contract ended, Bottomley informed Carleton he had a serious illness and applied for sick leave and long-term disability (LTD). Two days later he supplied medical information supporting his claim.

Under the collective agreement, employees who were “legitimately absent from their duties because of illness” were entitled to full salary and benefits for either 180 days or until LTD kicked in, whichever was shorter. The university’s academic staff handbook also stipulated Carleton must pay sick leave benefits for 180 days.

Bottomley began receiving sick leave benefits, but they stopped when his contract ended on June 30, 2008, and didn’t get anything until he was approved for LTD benefits on Dec. 13, 2008. Carleton told him since there was no longer an employment relationship, he wasn’t eligible for employee sick leave benefits and LTD would be between himself and the insurance company.

The union filed a grievance claiming Bottomley should have received his full salary and benefits for the entire 180-day period outlined in the sick leave provision of the collective agreement because he was legitimately absent from his duties when he went on sick leave and the collective agreement didn’t specifically terminate the benefit when employment ended.

Carleton argued Bottomley’s status changed and after his contract ended, he no longer had duties from which he was legitimately absent, as required by the collective agreement. Since he was no longer an employee with duties, it didn’t apply to him. Also, it noted since it was a leave provision, it was different from other benefits, such as life insurance, which were extended for a period of time after termination of employment.

You Make the Call

Was the professor entitled to the full period of sick leave benefits past the termination of his contract?
Did his sick leave entitlement end with his employment?

If you said Bottomley was entitled to the full six months of sick leave benefits, you’re right. The arbitrator found the collective agreement wasn’t clear because it said employees were entitled to full salary and benefits for either 180 days or until LTD kicked in, but there was no reference to what happens if the employment ended during that period. There was no wording indicating this entitlement ended when employment did, said the arbitrator.

The arbitrator found that despite the fact there was no continuing contractual relationship between Bottomley and Carleton after June 30, 2008, Bottomley had accrued his right to sick leave and this right had vested before his employment ended. As a result, Carleton was ordered to pay Bottomley’s full salary and benefits for the balance of the full sick leave entitlement in the collective agreement, from June 30 to Dec. 13, 2008.

“(Bottomley) was an employee who was legitimately absent from his duties, within the meaning of the collective agreement, prior to his termination and, accordingly, he became entitled to benefits for a period of 180 days or until his benefits under the group LTD plan came into effect,” said the arbitrator. “His right to sick leave had crystallized and therefore vested and, while the contractual or collective agreement relationship had expired, it did not render his vested entitlement right a nullity beyond the date of retirement.”

For more information see:

Carleton University Students’ Assn. Inc. v. Carleton University, 2010 CarswellOnt 7242 (Ont. Arb. Bd.).

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