Worker made trip arrangements after using up his vacation time, then asked his doctor for note giving him time off for stress during trip dates
Employees are generally allowed a certain number of sick days they can take off work due to illness, whether these days are paid or unpaid. Though it may seem inconvenient, sick leave can benefit employers as well as employees, as an employee who comes to work sick can have ramifications for the workplace.
However, there is often a concern that some employees might be abusing their sick leave entitlement and are actuallyplaying “hookey” from work. Many employers have attendance management programs to monitor employees who may be taking too many sick days and are suspected of abusing this privilege – which can cost employer money and productivity, not to mention the effort involved in covering for absences. If an employee is found to be lying about being sick – especially to the extent of manipulating a doctor to get the right note – the dishonesty it entails and the trouble it causes for the employer could be sufficient enough to provide cause for dismissal.
The City of Toronto had just cause to dismiss an employee for misusing sick leave so he could leave the country for two weeks, an arbitrator has ruled.
Frank Covelli was a custodian at a recreation centre run by the City of Toronto. He was usually the only custodian on duty when he worked and had 21 years of service with no discipline on his record.
Covelli had a medical history of anxiety and stress, which manifested in insomnia and migraine headaches and for which he took medication. He also had a relationship with a woman who lived in the Dominican Republic, which ended when he travelled there in April 2010. At the same time, he began a relationship with another woman in that country who he began to call his fiancée a month later.
Covelli tried to help his fiancée come to Canada by sponsoring her visa application. He discussed his trip to the Dominican Republic with a co-worker in May 2010 and said he was planning to return there in the fall. When the co-worker asked Covelli if he had any vacation credits left, Covelli said he didn’t and shrugged his shoulders. His April trip had used the last of his vacation time for the year.
On July 24, a friend of Covelli who also worked for the city bought airline tickets for himself and Covelli to take a trip to the Dominican Republic, leaving on Sept. 10. A couple of weeks later, Covelli saw his family doctor for anxiety symptoms and said he may need time off work in September due to personal issues. Three weeks later, on Aug. 25, Covelli had another doctor’s appointment in which he told his doctor his personal issues were related to his fiancée in the Dominican and they were causing him stress. He asked the doctor for a medical note indicating he couldn’t work from Sept. 10 to Sept. 24 due to medical reasons. The doctor gave him the note, but indicated that he hoped Covelli would not have to go out of town.
On Sept. 10, Covelli was scheduled to work but called another employee to say he was booking off sick. Covelli then left a message on the maintenance line to be forwarded to the on-call supervisor saying he had a medical condition, his absence was on doctor’s orders and he would be off sick until Sept. 25. However, proper procedure was to call the supervisor directly.
Later that day, the supervisor tried to call Covelli but was unsuccessful. He also failed to reach him over the next few days, so on Sept. 14 he and the facilities supervisor went to Covelli’s home but there was no answer. A friend of Covelli’s later called to inquire how things were going without Covelli.
Employee left the country while off sick
As it turned out, Covelli travelled to the Dominican Republic on Sept. 10, the day he called in sick.
Covelli called the supervisor back on a cellphone and he was asked why he wasn’t home and why his friend had called. Covelli became upset and said he felt harassed, but agreed to have a friend drop off a doctor’s note at management's request. Covelli called back later and the supervisor told him he would send someone to pick up the doctor’s note at Covelli’s home, but Covelli becam upset again and suggested he was being harassed. Covelli became angry and swore at the supervisor before the conversation ended.
Later that day, the supervisor contacted Covelli on his cellphone and asked again where he was. Covelli still refused to answer and the supervisor told him the city had reason to believe he was in the Dominican Republic. Covelli asked why he would say that but didn’t confirm it. He then arranged for a doctor’s note to be dropped off.
Covelli returned to work on Sept. 25, but was 20 minutes late for his shift. He was suspended indefinitely and a meeting was called for two days later. At the meeting, Covelli agreed he had been out of the country but said he was off work due to a medical condition and he had been stressed out because of his fiancée. Covelli felt he had the right to leave the country while on sick leave because his symptoms were related to the issues he had to address in the Dominican Republic.
Covelli initially didn’t respond when asked if he had seen his doctor on Sept. 10 to obtain the sick note, but then said he had. He apologized for making a mistake and maintained it didn’t matter where he went while on sick leave. Covelli refused to answer when asked when he purchased his airline ticket.
A second meeting was held and management asked Covelli about the accuracy of his attendance log book. After Covelli was late on Sept. 25, the city looked into the records of when the alarm at the recreation centre was turned on and off and compared it to the log book, where Covelli was required to record any discrepancies between his scheduled shift and his actual arrival and departure. The investigation revealed discrepancies between June 1 and Sept. 7, 2010, that totaled almost 28 hours. Covelli said he made appropriate notes and everyone at the centre was late “once in a while.” When one particular day when he left six hours before the end of his shift was brought up, Covelli said he had been given permission by a supervisor.
On Oct. 5, a final investigation meeting was held and Covelli was given a “last chance” to answer any questions he had not yet answered and support his explanations. Covelli said he had followed procedures and felt he was being harassed. When asked about leaving a shift six hours early, Covelli said “I wouldn’t do that.”
The city terminated Covelli’s employment that day for fraudulent use of sick leave, false reporting of hours worked, and failure to co-operate in the investigation. Covelli, through the union, grieved the dismissal.
Misconduct warranted dismissal: Arbitrator
The arbitrator found there was no doubt Covelli travelled to the Dominican Republic while on sick leave. The fact he had his friend purchase tickets for the same date he requested sick leave and the co-worker’s report that he had said he planned to go in the fall even though he had no vacation time left led to the conclusion Covelli had planned in advance to use sick leave so he could make the trip.
The arbitrator noted Covelli had specifically requested those dates for time off work and the doctor initially hoped he wouldn’t go out of town but later said it was good for Covelli’s well-being to leave the country. The arbitrator characterized the doctor's notes as a “well-intended effort to help (Covelli) and be supportive of (Covelli’s) efforts to get his job back.” Though Covelli’s personal issues in the Dominican may have caused him stress, they weren’t serious enough that he wasn’t able to work, as he didn't miss any work leading up to the trip, said the arbitrator.
The arbitrator found Covelli went to the Dominican Republic for personal reasons and any stress that came from the issues in the Dominican Republic was not bad enough to cause a condition where he couldn’t work. His avoidance of the normal practice of calling in sick, management’s phone calls, and questions as to his whereabouts were all part of his intention to mislead his employer, said the arbitrator.
The arbitrator also found the log book and alarm records were sufficient evidence to show Covelli “repeatedly arrived for work late or left work early” without making appropriate notations so the city could adjust his actual hours of work. As a result, he was paid for time he wasn’t at work. Covelli himself acknowledged the importance of making such notes by saying he normally made them, though he didn't seem to have followed through, said the arbitrator.
The arbitrator noted the city’s investigation into the falsifying of hours could have been better with regards to the day Covelli left work six hours early, as the manager Covelli claimed had given him permission was not interviewed. It also didn’t investigate Covelli’s claims another custodian was often late or left early and wasn’t disciplined, which was in fact the case. However, this seeming “discriminatory penalty argument” didn’t detract from the seriousness of Covelli’s misconduct, said the arbitrator.
Though Covelli had a lengthy record of service with no previous discipline, this did not mitigate his “flagrant and rather brazen attempt to mislead the employer for his personal gain,” said the arbitrator in upholding the dismissal.
For more information see:• Toronto (City) and Toronto Civic Employees’ Union, Local 416 (Covelli), Re, 2014 CarswellOnt 16935 (Ont. Arb.).