No supporting medical information; employer suspected he wanted to use up sick leave
A Nova Scotia organization had just cause to dismiss a worker who tried to go on sick leave when he was able to work and didn’t provide any medical information supporting his leave.
Northwoodcare is a not-for-profit continuing care organization based in Halifax. The 65-year-old worker was an employee of Northwood care for 40 years, starting in housekeeping, moving on to be a maintenance worker, and eventually becoming a painter.
The worker served as a painter for 15 years, but he developed pain in his neck, back, arms, and hands from painting ceilings where he had to lift his arms over his head. His pain led to attendance issues in 2014 where the worker dropped below Northwoodcare’s acceptable standard, but after he was assigned primarily to paint the lower part of walls and baseboards his pain resolved and his attendance returned to acceptable levels by early 2015.
Northwoodcare’s practice with sick leave notes was that a manager would ask for one if necessary and if any employee provided one, it would be sent to the occupational health nurse who oversaw medical issues and accommodation requests.
In April 2021, the worker refused to follow orders and directions from his supervisors and he also made sexist and gender-based remarks to a co-worker that included verbal and physical threats. Northwood care terminated his employment, but the union negotiated a reinstatement with a last-chance agreement following a two-month unpaid suspension.
The last-chance agreement outlined conditions that the worker had to follow for 36 months, including: conducting himself professionally and respectfully towards staff, management, and residents; following Northwoodcare’s Civility and Harassment Free Workplace Policy; and refraining from making any inappropriate comments, or actions with respect to any prohibited grounds under the Nova Scotia Human Rights Act.
If the worker failed to meet these guidelines, he could be terminated.
The worker returned from his suspension on June 22, 2021. On his third day back – June 24 – the worker had a conversation with his supervisor on a morning smoke break. The worker told the supervisor that he would be going off work to use up his sick leave until he retired. The supervisor was shocked and asked if he was telling him that as his manager. When the worker replied in the affirmative, the supervisor clarified that he would have to tell management.
The worker said he understood and repeated the statement. The supervisor did not ask for a medical note at the time, even though the worker had yet to provide one.
The supervisor was concerned because there were only three painters on the team including the worker. The worker had enough hours in his sick bank to last until mid-August.
The supervisor informed Northwoodcare’s manager, who was also concerned because she had no information that the worker was suffering from any disability, injury, or illness, and he had just returned to work under a last-chance agreement.
Northwoodcare management determined that the worker had not been acting in good faith and he had signed the last-chance agreement just so he could go off work and use up his sick time.
On June 28, the organization informed the worker that he was being terminated for breaching the terms of the last-chance agreement and he had intended to make “fraudulent use of sick pay available to him.” The worker said that his pre-existing work injuries required surgery, then said that he might need surgery. He acknowledged that he had not mentioned surgery to anyone.
Following his termination, the worker went on Canada Pension Plan benefits. He found part-time work as a painter in September 2022.
The union grieved the worker’s termination. The worker agreed that he told the supervisor that he would be going off on sick leave until October, but he denied that he said he would use up his sick leave until retirement. He claimed that he didn’t intend to retire until he was 67 years old.
The worker said that about one-and-a-half months prior, he had developed pain while helping a friend do some work and he had seen his family doctor the day before the conversation with his supervisor.
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According to the worker, his doctor told him “you can’t continue, you need rest, that if you don’t rest you won’t get better.” He maintained that he was “pretty sure” that he gave a note to the supervisor or the occupational health nurse, and that the supervisor had not asked for any medical information.
The union provided two medical notes in March 2022. The first was from the worker’s chiropractor and dated about two weeks after the worker’s termination that stated the worker had “acute left arm and neck pain” and recommended that he reduce activities that aggravated it. The second was from the worker’s family doctor, dated Sept. 26, 2021, and said that the worker had degenerative disc disease in his neck and back along with other conditions that contributed to an “inability to continue working.”
The arbitrator noted that in a termination of employment, the onus was on the employer to establish just cause.
The arbitrator also noted that it was agreed that the worker told his supervisor that he would be off on sick leave until October 2021. Although the worker denied saying that he would be retiring then, the main issue was whether he was physically unable to work when he said this and he had received medical advice that he would not be able to return until October, the arbitrator said.
“As a general rule employees are expected to show up for work when scheduled, unless they have a valid excuse – such as illness or disability or family emergency,” said the arbitrator, adding that there was no duty on an employer to investigate an employee’s statement that they can’t work due to illness or disability – the onus is on the employee to justify an absence.
The arbitrator found that the worker’s doctor told him that he needed rest to get better, which the worker may have interpreted as a statement that he had to go off work. However, being told to get rest is not the same as being told to stop working because of a physical disability, said the arbitrator.
The arbitrator also found that the chiropractor’s note recommended that the worker reduce his activities, but it did not indicate that this meant going off work. As for the doctor’s note, it was dated three months after the worker’s termination and said nothing about the visit in June 2021.
The arbitrator found that there was no medical evidence supporting the worker’s assertion that he had to go off work from late June to October 2021. This led to the conclusion that the worker decided to go on sick leave not because he was unable to work but because he wanted to use up his sick leave, to which is was only entitled to if he could not work, the arbitrator said.
The arbitrator found that the worker’s attempt to use sick leave when he was able to work was “a form of time theft that goes to the very heart of the employment relationship and the trust that an employer must have in its employees, particularly when it comes to sick leave.”
The arbitrator disagreed with Northwoodcare that that the worker breached the last-chance agreement as the conditions focused on conduct unrelated to sick leave misuse. However, the worker’s conduct still provided just cause for termination, the arbitrator said in dismissing the grievance. See Unifor Local 4606 v. Northwoodcare Incorporated, 2022 CanLII 117403.
