Can an employer impose discipline on an employee for unauthorized absence when the employee has produced a doctor’s note in connection with the absence? A recent award by an Ontario arbitrator in the Ontario Public Service Employees Union v. North Simcoe Hospital Alliance case (July 2, 2004) suggests that, in some circumstances, the answer is “yes”.
The case involved a grievor with 12 years of service and no previous disciplinary record who was terminated for failing to provide a satisfactory reason for an 11-week absence from work. The collective agreement provided that employees would be terminated if they were absent for three or more consecutive working days without notifying the employer and providing a “satisfactory reason” for the absence.
In this case, the grievor had applied for a nine-week leave of absence to go on vacation. The employer refused for operational reasons but did grant her six weeks of leave. Disappointed with the length of the leave granted, the grievor went to her family physician and complained about being stressed at work and unhappy about having been denied her requested leave. The physician, knowing that the grievor wanted to go on vacation, was concerned that he could not honestly write a note stating that she was disabled. Therefore, he wrote a note suggesting that she required a leave of absence for the period she had requested. This note was never delivered by the grievor to the employer and was not given in evidence at the arbitration.
Ten days later, the grievor returned to her physician, complaining of feeling anxious and stressed and indicating that she needed to take time off immediately. He gave her a note stating that “[the grievor] will be off work due to illness as of today”. The physician was unaware that the grievor had not submitted the previous note and that she had already been granted a six-week period of leave. The next day, the grievor did not report for work but arrived at the end of the day and dropped off the note without any further explanation. She did not return to work until 11 weeks later and provided no other medical information about her condition.
Several days after the grievor had dropped off the note, the employer wrote to her requesting that she fill out the employer’s standard “Physician’s Statement of Employee Disability” form and informing her that her absence had occurred in suspicious circumstances in light of her previous request for an extended period of leave. The grievor instructed the physician not to supply the information and advised the employer that she was under no legal obligation to do so.
One week later, the grievor left Canada on vacation and did not return for two months. She testified at arbitration that she had left on vacation because she felt much better than she had a few weeks earlier. She did not receive any medical attention during the period she was off work. After several fruitless attempts to contact the grievor, the employer terminated her employment while she was out of the country. The union grieved her termination.
DOCTOR’S NOTE “NOT SATISFACTORY”
The arbitrator dismissed the grievance, finding that the grievor had not really been sick but, rather, had feigned illness so that she could go on a planned vacation, and that the physician, in his zeal to accommodate the grievor’s wishes, had allowed himself to be manipulated into writing the note. The arbitrator expressed the view that a doctor’s note is not a complete defence to discipline in all cases:
“A physician’s statement is ordinarily entitled to considerable weight; and even if questioned, may well justify the employee being off work, while the opinion is explored or verified. However, I cannot conclude that a doctor’s note will always, and inevitably, supply a “satisfactory” reason for every absence, in every case. … [U]nless the employee notifies the [employer] as s/he is required to do, and has an “objectively satisfactory” reason for the absence, then s/he will be exposed to the negotiated consequence of this default. A doctor’s note … is not necessarily conclusive – particularly where, as here, the only medical document tendered to support the grievor’s time off work is the note [stating that the grievor] “will be off work due to illness as of today”; and the grievor intentionally frustrated all efforts to secure further information.”
What was striking about this case, the arbitrator stated, was not only the absence of any objective evidence to support the grievor’s prolonged absence but the extent to which the grievor went to prevent the employer from receiving more information about her condition. When the grievor took the position that she did not have to tell the employer anything at all, she brought herself within the ambit of the termination provision of the collective agreement and put her job on the line. Accordingly, the grievance was dismissed.
In Our View
The arbitrator also considered whether the termination clause contravened the Ontario Human Rights Code and determined that it did not. He noted, first, that the grievor found herself in her current predicament because she was not disabled but only claimed that she was. Moreover, he found that, even if the grievor really had been ill, her refusal to cooperate with the employer had thwarted its ability to accommodate her claimed disability.
It is also worth mentioning that the physician had acknowledged at the arbitration that he was not familiar with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the standard tool used by health professionals to diagnose and assess mental illness. When the employer’s counsel made him aware of the symptoms and indicators of depressive disease listed in the DSM-IV, he admitted that the grievor had shown none of them. If faced with similar circumstances, an employer may wish to consider securing an employee’s consent to a referral to a specialist in psychiatry.
For further information, please contact J.D. Sharp at (613) 940-2739.