click HERE to download the full decision (462kB pdf)
In a Regular Arbitration decision dated May 17, 2012, Arbitrator Joan Gordon sustained a grievance that was filed by the Union after Canada Post refused to grant a disabled employee sick leave on the recommendation of Manulife. In sustaining the grievance, Arbitrator Gordon also awarded damages to the Grievor in the amount of $8,000.00, as compensation for mental distress resulting from the callous manner in which she was treated by both Manulife and Canada Post.
In the facts of the case, the Grievor, a Fraser Valley Letter Carrier with 23 years of service, became ill and was unable to perform her duties during the period of June 22, 2008 – October 31, 2008. During that period, Canada Post refused to grant her sick leave in spite of the medical certification that was submitted in support of the period of her absence. To add salt to the wound, Canada Post also improperly proceeded to recover a sick leave “overpayment” in the amount of $11, 359.45 while the Grievor remained disabled.
Brother Stephen Gale, representing the Union, argued that the Grievor established her entitlement to sick leave and that both Canada Post and Manulife acted irresponsibly in denying it. He also argued that Canada Post must bear responsibility when employing a third party to administer sick leave claims. He further argued that an award for damages was appropriate in light of the effect of its reckless handling of the Grievor’s sick leave claim. In response, Canada Post argued that the Grievor was not “fully functionally disabled” as determined by Manulife, in the face of medical documentation to the contrary.
In reaching her decision, Arbitrator Gordon found that the Grievor had established her entitlement to sick leave:
In summary, the Grievor has proved her incapacity to carry out the duties as a Mobile Letter Carrier due to illness from June 22 – October 31, 2008.
I find the Corporation breached the Collective Agreement when its agent unreasonably rejected the Grievor’s medical certification, which provided consistent and ample support for her incapacity to carry out her job duties from illness from June 22 – October 31, 2008. In my view, Manulife’s conduct in relation to the administration of the Grievor’s sick leave claim must be characterized as high-handed and cavalier.
Arbitrator Gordon also found that an award for damages was appropriate in the facts of the case:
I find the paid sick leave provision in the parties’ Collective Agreement was intended to provide a psychological or “peace of mind” benefit to employees in the Grievor’s situation, which brings mental distress on breach within the parties obvious contemplation. On the evidence I find it was, or should have been, obvious to both Manulife and the Corporation that the Grievor was a vulnerable individual. Given the Corporation’s and Manulife’s knowledge of the Grievor’s mental state, I find it was also reasonably foreseeable that the rejection of her medical support and the denial of her entitlement to sick leave would inflict emotional suffering and likely exacerbate her medical condition. The Corporation’s and Manulife’s conduct may not have been deliberately calculated to produce mental distress, but I find Manulife’s course of conduct was high-handed, cavalier and reckless in this regard. Where, as here, a third party is retained to administer sick leave claims, the Corporation becomes liable for such conduct in damages.
In her ruling, Arbitrator Gordon ordered Canada Post to grant the sick leave which it wrongly denied, pay the Grievor damages for mental distress in the amount of $8,000.00, discontinue any overpayment recoveries and pay interest on all monies wrongfully recovered form her paycheques.
In Solidarity,
Ken Mooney
Regional Grievance Officer