Arbitrator denies teacher's sick claim based on self-reported migraine headache

Posted by Kevin MacNeill on May 16, 2012

Trillium Lakelands District School Board v Elementary Teachers’ Federation of Ontario is a labour arbitration award of interest for employers, notably those in the education sector, who face the “headache” of dubious sick leave claims. It is a decision that is not insensitive to the realities facing employees who suffer disabling conditions. But it is also a case that is steeped in common sense and reminds us of the need for personal responsibility in certain situations.

A teacher suffered a migraine headache on her last day of vacation (in Rome, Italy) and as a result missed her flight home, which in turn caused her to miss her first scheduled day of work following her vacation.

After investigation the Employer decided not to treat the absence as a disciplinary matter. However it denied the teacher a paid sick day. A grievance ensued, which went to arbitration.

 

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Privilege and Workplace Investigations

Posted by Sarah Graves on December 01, 2011

North Bay General Hospital v. Ontario Nurses Association (decided by Arbitrator Jasbir Parmar on October 13, 2011) provides important practical reminders for employers involved in workplace investigations.

In this case, North Bay General Hospital received a complaint that an employee had engaged in bullying and harassment against co-workers.  The Hospital retained an independent investigator who was a practicing lawyer to conduct an investigation.  Following the investigation, the employee was disciplined.  The Union, the Ontario Nurses' Association, filed a grievance alleging that the discipline was unjust and retaliatory.

This case dealt with a request for pre-hearing production of documents by the Union.  In particular, the Union sought production of all communications between the investigator and the Hospital, specifically HR personnel and a Vice President.  The Hospital objected on the grounds that the communications were protected by solicitor-client privilege.

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I spy with my little eye ... toward greater clarity in the law of video surveillance

Posted by Kevin MacNeill on November 29, 2011

For provincially regulated employers in Ontario, there are two competing lines of cases as to whether video surveillance of employees should be admitted into evidence at arbitration.

The first line of authority, typically relied on by unions, is that this kind of evidence is only admissible if the employer can show that it had reasonable grounds to undertake the surveillance before doing so.

The second line of authority, usually invoked by employers, is that any evidence relevant to the matter in dispute is admissible.

It is unfortunate and undesirable that uncertainty in this area of the law has endured for so long. However, there are signs that arbitrators are increasingly questioning the validity of the first line of cases as noted in the recent decision of arbitrator David R. Williamson in Windsor-Essex County Health Unit and C.U.P.E., Local 543.3 (Kavanaugh) (2011), 208 L.A.C. (4th) 392.

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