Abuse of sick leave ill-informed, not fraudulent

The grievor was attending courses while on sick leave. The arbitrator found that her actions were naïve but not fraudulent. She could have been more honest but she was receiving benefits legitimately.

A worker was fired for fraudulent use of sick leave after the employer discovered that she had completed a training course while on sick leave and nominally completely disabled. The union grieved, arguing that there was no intent to deceive the employer.

A.O. had 13 years’ service as a Resident Assistant at a care facility when she was fired on August 28, 2009.

The job could be physically demanding. A.O. had a low back injury and she also suffered from a number of chronic medical conditions, including hypertension and depression. She had been advised to seek less physically demanding work and was exploring a number of retraining options. A.O.’s manager told her that educational leave was an option but that sufficient notice would be required.

While on holiday in February 2009, A.O. began a clerical/administrative training course on a trial basis.

Due back at work from vacation on March 9, A.O. called in sick. A.O. saw her doctor the next day. Her condition was recorded as exhibiting “increased stress,” “decreased concentration” and “mood down.” A.O. did not tell her doctor she was in a training program. The doctor certified A.O. as off work from March 11 to April 1.

On March 21 — while on sick leave — A.O. approached her supervisor and requested educational leave from April 1 to August 7. A.O. did not make it clear that she was enrolled and attending classes, though materials she supplied noted that the course ran from March 2 to August 7.

The leave was denied due to staffing shortages, however, the supervisor indicated she was willing to adjust A.O.’s work schedule to accommodate her needs as much as possible.

Completely disabled

On April 7, A.O. saw her doctor again. Her leave was extended to May 15. A.O.’s physical limitations were listed as no lifting, no bending, no standing and no walking. Her cognitive abilities were listed as poor. Seeking clarification about A.O.’s circumstances, the employer’s Employee Health Coordinator was assured by A.O.’s doctor that A.O. was completely disabled.

In May, A.O. approached the Health Coordinator to attempt to arrange a placement at her workplace in order to satisfy the practical component of her course requirements. The Health Coordinator was taken aback as she understood A.O. to be completely disabled.

A.O. was confused. The Health Coordinator explained that A.O.’s activities were not consistent with the medical evidence that she had given to the employer.

A.O.’s supervisor also began to make inquiries and discovered that A.O. had been attending classes while on sick leave.

At a meeting with the employer on August 5, A.O. made no secret of what she had been doing. A.O. said she was unaware that she was not allowed to attend school while on sick leave.

A.O. was fired.

The termination was justified, the employer said. A.O.’s dealings with her doctor and the employer amounted to fraud. A.O. had deliberately and falsely reported her health in order to get sick leave. Her actions constituted a fundamental breach of trust that went to the heart of the employment relationship.

Confused about obligations

The union said that A.O. was genuinely confused about what her obligations were while she was on sick leave. She had not been secretive about her intentions nor had she made any attempts to deceive.

The Arbitrator agreed that A.O. had not attempted to perpetrate a fraud.

It was true that aspects of A.O.’s conduct warranted suspicion. In particular, A.O.’s lack of transparency with her doctor and the timing of her medical leaves were troubling. On the other hand, the Arbitrator said, A.O. also did things that were completely incompatible with any scheme to defraud the employer.

“To my mind, it is simply not in harmony with the preponderance of probabilities of an intention to defraud that the grievor would contact the Health Centre to do her placement there. If the grievor’s intent was to deceive the Health Centre as to either the real state of her health, or her educational activities, it is not at all likely that she would have gone anywhere near the Health Centre while looking for her placement.”

The employer was right that A.O. had a duty to disclose while she was on sick leave, the Arbitrator said. However, what is required in order to satisfy that obligation is not well defined.

In this case, A.O. did supply the employer with information about the course, including its start date, and was negotiating for educational leave while she was on sick leave. “[I] find that it was reasonable for her to believe that the employer knew that course had started before her schedule was rearranged to facilitate her attendance at the course. To her mind, she had provided all the required information.”

A.O.’s behaviour was not fraudulent. Nevertheless, she was responsible for her lack of transparency with both her employer and her doctor.

“In sum, I am persuaded that the evidence does not establish on the balance of probabilities that the grievor was guilty of fraud. Rather, the evidence establishes that, in claiming an absence from work on the basis of illness, the grievor ought to have sought advice as to the effect of her training course on her ability to recuperate from her medical conditions, and been straightforward with the employer as to her continuing the course while on sick leave, especially after the rearrangement of her schedule in April. Her failure to do so warrants discipline.”

The termination was reduced to a one-month suspension. A.O. was compensated for interim losses to wages and benefits.

Reference: Perley and Rideau Veterans’ Health Centre and The Canadian Union of Public Employees, Local 870. Kathleen G. O’Neil — Sole Arbitrator. Susan Arab for the Union. Carol Piette for the Employer. April 27, 2011. 33 pp.

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