Regina chartered accountant terminated from government job over sick leave

Doctor provided multiple notes justifying absence

After receiving a poor performance report in November 2016 and being placed on a performance improvement plan (PIP), an employee went on extended sick leave. 
The employee, who was only identified as “BF,” worked as a chartered public accountant and a business systems analyst at the Human Resources Service Centre (HRSC) for the Saskatchewan government, when on April 18, 2017, and after 18 years of experience with the employer, he was fired.
“You have been absent from the workplace since Dec. 14, 2016; without sufficient medical information since Jan. 10, 2017; and absent without approved leave since April 10, 2017. You have been advised on numerous occasions that we have not received sufficient medical to substantiate your extended absence from the workplace,” said the letter signed by Karen Aulie, chair of the Public Service Commission.
In December 2014, BF began work on a project to update the payroll system to a computerized process. Colleen Parker was his supervisor and another colleague was also on the team.
During the change, BF received a new classification of level 10-technical, but he believed that he would have been better placed into the level 10-market supplement position, which came with a higher pay grade.
His request to change was denied and during the review process, BF was downgraded to a level nine position, although he was red-circled and didn’t achieve a pay downgrade.
BF then filed a grievance but withdrew it. “I didn’t have the mental energy to pursue it,” he testified.
In May and June 2016, Parker noticed that BF’s work performance began to suffer. 
“Unfortunately, at this time, there are some gaps between his level of knowledge and the results he is achieving,” wrote Parker in a November performance review document. 
BF asked for an unscheduled week off and he went on a vacation. Parker was transferred to another department during this time and she contacted BF while he was on vacation about the change, but BF said he was frustrated to be contacted while on vacation.
In December, he was placed on the PIP. 
On Dec. 12, BF went to see his doctor, who provided a note saying BF would be taking sick leave to Jan. 9, 2017, for “medical reasons.” After another note arrived from the doctor extending the leave for a further three weeks, the employer denied sick pay and place BF on unpaid leave. 
On Feb. 2, 2017, the Saskatchewan Government Employees Union (SGEU) filed a grievance. On April 24, a second grievance was filed after BF was terminated. 
Between the first leave and May 13, BF’s doctors continued to provide sick notes extending the absence. 
On the final one, he wrote: “Medical reason — work-induced medical problem,” while the other six notes all said simply “medical reasons.”
BF’s doctor testified that he advised HRSC that the main reason for his sick leave was stress due to work conditions and unless they changed, BF could not return to work. 
BF’s counsellor also testified that he had been seeing her since October 2016 about continued stress due to his job. 
Arbitrator Allen Ponak upheld both grievances and found BF should be given his sick leave pay.
“It is my finding that the doctor was uncontradicted in his opinion that (BF) was not fit to work at his job in the HRSC between Dec. 13, 2016, and at least May 13, 2017. He said so repeatedly on the sick slips, he said so in more detail on the three forms that he completed, and he reiterated his opinion in his oral testimony.”
As well, said Ponak, “efforts must be made forthwith to enable (BF) to return to work in his previous position in the HRSC or, if that position no longer exists, to find a position at the same (level 10) classification that is commensurate with his skills and experience.”
“Alternatively, the employer, union, and (BF) may mutually agree on an alternative acceptable placement. Because of the length of time that has passed, and to protect the interests of both (BF) and the employer, prior to his return to work (BF) must be declared fit for duty by a medical professional mutually agreed to by the union and employer,” said Ponak.
Reference: Human Resources Service Centre and Saskatchewan Government Employees Union. Allen Ponak — arbitrator. Robert Winter for the employer. Larry Buchinski for the employees. Nov. 14, 2018. 2018 CarswellSask 538

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