Employer didn't believe sickness was 'serious'
A nurse working at a hospital in Vancouver was denied pay when she left work to care for her sick child.
Elina Barsky had worked at St. Paul’s Hospital since 2004 as a registered nurse when she received a frantic Friday morning call around 8 a.m. on Nov. 4, 2016. Her husband advised her that their 10-year-old daughter was feverish, had flu-like symptoms and was vomiting.
Since Barsky was a nurse, she asked the charge nurse if she could go home and care for her daughter. As there was another nurse working who could take over Barsky’s duties, she was given permission to go home.
Before she did, she made sure her patients were stable and waited for the other nurse to take over. Barsky filled out a special-leave request form and faxed it to the appropriate number. She left the hospital around 9 a.m.
Forty minutes later, she arrived home to find her daughter sluggish and feverish.
Barsky began administering care, but at 11 a.m., her daughter vomited.
Barsky provided water and Tylenol, she testified, as her daughter continued to feel unwell. She vomited three times that day but by 6 p.m., she was feeling better. Barsky continued her care over Saturday and Sunday, as she was not scheduled to work that weekend.
On Nov. 7, Barsky was told by the employer, Providence Health Care, that her claim for special leave of 5.5 hours was denied, despite her caring for her child and having a special-leave bank balance of 150 hours.
According to the collective agreement, special leave was intended “to provide care to an immediate family member who has a serious illness up to two days at one time.”
The employer turned down the claim, it testified, because Barsky advised them after the weekend that her daughter had only suffered from a cold.
Providence Health Care said this does not constitute “serious illness” as per the collective agreement definition.
On Aug. 2, the union, Health Employers Association of British Columbia (HEABC), grieved the decision and argued: “Small children that have acute vomiting and diarrhea can develop significant dehydration within a relatively short period of time that could lead to hypovolemic shock, cardiovascular collapse, renal failure and eventual death.”
The employer countered and said the plain language in the collective agreement is clear and Barsky’s daughter did not eventually suffer anything more than a mild illness, despite its potential to become much worse.
And because Barsky applied for special leave while at work, she wasn’t able, at that point, to properly diagnose her daughter’s condition, said the employer.
Arbitrator Vincent Ready disagreed with the hospital and ordered Barsky be paid the 5.5 hours for special leave.
“First, the employer argues that (Barsky) had pre-supposed that the illness was ‘serious’ as she had filled out the special-leave form prior to assessing her daughter. While I note that this fact is one to certainly consider in these circumstances, I am not prepared to deny the special-leave entitlement on that basis, because I find that once (Barsky) was at home, the daughter’s illness had progressed to more than just a fever. As such, the resulting illness was indeed ‘serious’ even it if may not have been ‘serious’ at the time that she filled out the form,” said Ready.
When it denied the travel time to be paid, the employer was clearly in the wrong, said the arbitrator.
“Finally, the employer argues that the 40 minutes (Barsky) spent in travel from work to her home should not be included because at the relevant time her husband was ‘providing care to’ her daughter. However, (Barsky) would clearly have to travel to be with her daughter in order ‘to provide care to’ her,” said Ready.
Reference: Providence Health Care and Health Employers Association of British Columbia. Vincent Ready — arbitrator. Jo-Anne Johannesen for the employer. Laurel Kathlow for the employee. Oct. 31, 2017.
