Claiming special leave provisions in the collective agreement entitled him take three days off to care for his ailing daughter, a postal worker grieved when the employer denied his leave request.
W.T., a full-time letter carrier and half-time single parent to a 12-year-old, was informed by his daughter’s choir master on the Friday of the Victoria Day long weekend that a member of his daughter’s choir had been diagnosed with H1N1 influenza.
The next day W.T. was called to pick his daughter up early from a birthday party because she was feeling ill and exhibiting flu-like symptoms.
After attending a clinic where his daughter was swabbed for H1N1, W.T. was told to treat her as though she had the virus pending the test results. W.T. was given instructions to keep her home for seven days and to limit her contacts to him if possible and, in particular, to prevent her from having contacts with persons under the age of two years and those over the age of 65. Given the Monday holiday and the large volume of tests being performed at the time, the test results, which were expected by Tuesday, did not become available until Thursday.
The following Tuesday would have been W.T.’s next day of work and, under normal circumstances, he would have gone to work, and his daughter would have gone to school. However, because his daughter was too ill to go to school and his ex-wife could not provide care because she was caring for a new-born in addition to her 80-year-old mother, W.T. called the letter carrier depot to say he could not attend work that day. With no other family members in town and unable to make alternate care arrangements on such short notice, W.T. also missed Wednesday and Thursday.
Negative test results arrived Thursday and W.T. attended work on Friday. Submitting a note from the clinic confirming that his daughter was a suspected H1N1 case and that he was the only family member able to look after her during her quarantine, W.T. applied for special leave. The application was denied and W.T. grieved.
W.T. had failed to exercise due diligence, the employer argued. W.T. knew that his daughter was ill on Saturday night and though he had until Tuesday to make alternate care arrangements, he failed to do so. As well, W.T. had not made proper inquiries as to how long his daughter would be infectious, assuming that she had H1N1. Moreover, given that H1N1 was widespread in the community and in the schools, W.T. should have anticipated the infection and been better prepared in terms of childcare arrangements, the employer said.
The arbitrator upheld the grievance and ruled that W.T. was entitled to the leave. There was no dispute that W.T. met the first two criteria for the special leave as spelled out in the collective agreement, namely that the situation involved an immediate family member and that the circumstances were not attributable to W.T. The only question was whether or not the circumstances prevented W.T. from attending work and, in this case, they did.
Indeed there was an onus on W.T. to make a reasonable effort to establish alternate arrangements and, depending on the circumstances, even to anticipate the need for a back-up plan. Special leave is a last resort, not a first choice, the arbitrator said.
W.T. did have a back-up childcare plan in the form of his ex-wife. Unfortunately, she was unable to provide care in the circumstances because of the risk H1N1 presented to both her newborn and her mother.
W.T. had little choice, the arbitrator said. “[G]iven government health directives in suspected H1N1 cases to avoid contact with anyone but the primary caregiver and a certain public hysteria over H1N1, finding someone else to stay with [W.T.’s] daughter would have been challenging to say the least and possibly contrary to public health advice.”
As well, given the potential for a sudden deterioration in his daughter’s condition, W.T.’s desire to monitor her closely at least until the test results were available was completely understandable, the arbitrator said. In fact, W.T.’s circumstances represented exactly the sort of contingency that special leave was intended to cover.
The employer was ordered to compensate W.T. for any lost wages and benefits resulting from the denial of his special leave application.