St. John’s firefighter denied sick pay after not submitting certificate

IAFF, city differed over agreement’s definition of ‘instance’

After he booked off sick for two consecutive shift cycles, a firefighter was surprised to find out he had not been paid for the second shift he was off.
David Osmond began working for the St. John’s Regional Fire Department in 2008 and worked at the Paradise station. Osmond’s rotating-shift position included 24 hours on and 72 hours off. 
On Aug. 29, 2017, Osmond called fire captain Peter Fowler and informed him he would be off sick for his next two scheduled tours of duty, which were on Aug. 30 and Sept. 3. He told Fowler he would return to work on Sept. 7.
Fowler asked Osmond if he would be providing a medical note for the time off but Osmond said it wasn’t needed because he was taking off one time (which included two shift-rotations).
On Aug. 30, Osmond called platoon chief Brian Tucker to advise him that he would be off on Sept. 3 and that he didn’t need to produce a medical note for the absence. 
Osmond returned to work as promised on Sept. 7. He filled out a leave request form claiming one instance of sick leave. 
However, he received a letter in return asking for a medical certificate for the second leave or he would be deducted 48 hours’ pay.
Article 13.06 of the collective agreement spelled out the rules for whether or not a note was required: “Sick leave of at least two consecutive instances at any time or in excess of two instances in the aggregate in one calendar year shall not be awarded to an employee unless a valid medical certificate has been submitted to the fire chief/director or deputy fire chief. For the purposes of this clause, an instance shall be defined as eight hours or more of sick leave.”
On Sept. 26, Osmond and the union, the International Association of Firefighters (IAFF), Local 1075, grieved the denial and asked for a reimbursement of the 48 hours that were deducted from his paycheque.
Osmond claimed that his time off should have been one instance because it was consecutive.
Jim O’Toole, firefighter and union executive member, testified that in his view as a bargaining committee member, one instance is more than eight hours and has no end date. 
The former agreement changed the wording from days to instances, he said.
The union argued that because there was no definition in the collective agreement specifying the exact meaning of the word instance, there was no limit as to how long a single instance could be.
Arbitrator James Oakley (dissented by board member Larry Cook and agreed to by board member Geoff Williams) dismissed the grievance. 
“Having regard to the principles of interpretation, including consideration of the collective agreement as a whole, the board finds that an ‘instance’ in article 13.06 means eight hours or more of sick leave within one 24-hour shift for rotating shift employees. Two consecutive instances mean an absence for eight hours or more in two consecutive scheduled 24-hour shifts,” said Oakley.
“In order to administer consecutive instances of sick leave, there would need to be a point in time when one instance ends and then the next consecutive instance starts. If one instance is interpreted to mean a number of consecutive shifts, either an unlimited number of shifts, or with a maximum of four shifts by operation of the disability management policy, then the end of one instance and the start of the next consecutive instance would not be practical to administer.”
The blame for the missing pay should be focused on Osmond because “under article 13.06 as a result of his absence for two consecutive instances, he was not entitled to sick leave unless he submitted a medical certificate. (Osmond) did not submit a medical certificate, and the employer correctly denied payment of sick leave for the two shifts requested. The employer did not violate the collective agreement,” said Oakley.
Reference: St. John’s Regional Fire Department and International Association of Firefighters (IAFF), Local 1075. James Oakley — arbitrator. Cheryl Mullett for the employer. Ian Patey for the employee. July 12, 2018. 2018 CarswellNfld 404

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