Arbitrator denies teacher’s sick claim based on self-reported migraine headache
By Kevin MacNeill
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.
The collective agreement provided that leave taken “because of personal illness” was to be charged against a teacher’s sick leave credits.
Arbitrator Dana Randall dismissed the grievance for a number of reasons, first and foremost among which was that he was not satisfied that there was direct causality between the missed flight and the grievor’s migraine.
With the scanty facts I have, I am satisfied to find that the Grievor left her return from vacation too late. As a migraine sufferer, I would have thought that the last thing she would do would be to set out on her own, in a rented car in Rome, to make the last available flight. There are too many migraine inducing features to such a strategy. As a result, while the migraine contributed to her failure to make it to work on September 1, 2011, it was only one factor of many.
Among the other reasons invoked by the arbitrator was recognition of the difficulties facing school boards in adjudicating such sick claims, when a teacher’s extension of a vacation could regularly become credited sick time, entirely on the basis of a teacher’s self-report of illness. In the arbitrator’s words:
Finally, I am convinced that the Union’s broad interpretation of the words “because of personal illness” are mischief-inducing and therefore impractical. The Board is profoundly handicapped in assessing the bona fides of a teacher’s justification for overstaying a vacation and missing a work day. A teacher’s assertion that she had a headache or an upset stomach and therefore missed her flight cannot be rebutted by the Board. While I do not foreclose the Union’s argument in all circumstances – Mr. Wright’s example of a hospital admission that caused an employee to miss a flight is a good example – I am not able, on the particular facts before me, to conclude that the Grievor was absent on September 1, 2011 “because of personal illness” and I so find.
As can be seen, arbitrator Randall did not foreclose sick credit entitlement in other cases. However, he was able to conclude that incidents that were largely based on self-reporting and beyond objective scrutiny were not in the contemplation of the parties as requiring paid sick leave.