”Do I have to advise my employer of the nature of my illness?”

“Can the employer force me to provide a doctor’s certificate or demand that I undergo a medical examination?”

The following document provides you with some well established principles in these and other related areas. From a current examination of the case law on sick leave, medical certificates and medical examinations, the following principles will serve as a guide.

We should begin with the basic premise that the employer has the right to insist on a medical certificate as a condition of granting sick leave. In the case of most collective agreements, the employer’s right to impose such a requirement is explicit. Where a collective agreement is silent on this point, the employer could successfully argue that its residual management rights (i.e., all rights not modified by collective agreement language) permit it to require proof of sickness. If a collective agreement specifies (as some do), that the employer could only require a medical certificate after so many days of absence in a given year, then the employer’s right would be restricted.

Continue reading in the Sick Leave, Medical Certificates, Medical Exams and Related Issues - Some Principles handout (pdf), prepared by the PSAC Education Section.

Do you have any rights when your employer tells you that you are to be present at some type of disciplinary meeting? Read the following resource document and see what the established principles are regarding this issue.

Collective agreement language describing rights to union representation in matters of discipline varies in its strength and scope. Most collective agreements covering PSAC members contain a provision providing an employee with the right to union representation at the time s/he is interviewed regarding allegations of misconduct, or alternatively, at the time discipline is imposed. Some agreements oblige the employer to remind the employee of his/her rights to representation. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. Other language refers to time limits for placing items of a disciplinary nature on an employee’s file, and notifying the employee of whether or not the file will be used at the meeting.

The scope of representational rights is found in the precise wording of the collective agreement.

Read more in the Discipline - Rights to Union Representation (pdf) document, prepared by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more in the Steward’s Network section of the site.

Operational Requirements

1. Operational requirements must be based on the work itself to be performed, not on administrative or economic criteria.
2. Consideration of overtime costs are not proper concerns in determining whether or not operational requirements exist.
3. Operational requirements are a question of fact to be determined in each case.
4. The initial onus rests with the grievor to demonstrate that operational requirements were not a valid reason on the part of the employer to deny a benefit of the collective agreement (e.g., leave). Once that burden is discharged, the onus of demonstrating that operational requirements were valid reasons for denying the benefit will then rest with the employer. Of the two burdens, the employer’s burden is more onerous. The reasons are twofold:
   • Knowledge of operating requirements is in the hands of the employer. More importantly, the employer has undertaken an obligation, the release from which is contemplated only in special circumstances. To not impose the onus on the employer to establish the exceptions to the right granted under the relevant provision in the collective agreement could undermine its intent.
5. It has been held that the employer must consider the real alternatives available regarding the use of other staff. That said, the employer’s refusal to consider the use of other staff does not necessarily mean that denial of leave is unreasonable.
6. The employer must organize its operations and the service so that employees can exercise their rights under the collective agreement. The employer cannot hide behind staff shortages and operational demands such as training. These are not acceptable excuses to relieve the employer of its obligations.
7. There may be unusual operational requirements of a temporary nature when an employer may block out periods of time in which leave will not be granted because of anticipated needs (e.g. new plants, increase in cross-border traffic).
   When the employer plans the operations and clearly knows its operational requirements, it has been held that the employer can rightly refuse a request for, for example, compensatory leave.

Download the “Operational Requirements: Some Principles” handout (pdf), developed by the PSAC education section.

Acting Pay: Some Principles

With the elimination of positions and staff cuts, employees may find themselves assigned additional duties. With financial constraints, managers may be under increased pressure to stay within existing budgets or cut costs. As employers meet their employment equity obligations, employees may receive a variety of developmental opportunities. In these kinds of circumstances, employees may be entitled to acting pay.

The conditions under which entitlement to acting pay exists are determined by collective bargaining. The following is from the collective agreement between PSAC and Treasury Board for the Program and Administrative Services Group (expiry date of 20 June 2007):

64.07

(a) When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least three (3) consecutive working days or shifts, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.

(b) When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for purposes of the qualifying period. When interpreting collective agreement language, it is important to break down the provision by conditions and obligations. Then, it is easier to separate what the provision does say, from what it does not say.

For the entitlement to acting pay to take effect, there are 3 conditions to be satisfied ….

Continue reading in the “Acting Pay: Some Principles” handout (pdf), developed by the PSAC education section.

PSAC members covered under the National Joint Council directives (TB, CFIA and CRA) will find the following adjudication decision of some importance. The PIPSC decision interprets the expression sole caregiver as defined in the NJC Travel Directive.

TRAVEL ALLOWANCE - EXPENSE ALLOWANCE

Travel Directive – Reimbursement of dependant-care expenses – Whether the grievor was the “sole caregiver” at the time of travel

The grievor incurred expenses for the care of his two sons while he was on business travel – at that time, his wife was also on business travel – his wife was not employed in the public service – the employer denied the grievor’s claim for reimbursement of dependant-care expenses – the adjudicator found that, in the circumstances, the grievor was the sole caregiver of his sons at the time of travel and that he was entitled to be reimbursed for the dependant-care expenses that he incurred as a result of travelling on business.

Grievance allowed.

Read the full decision at the PSLRB website.

Special Leave With Pay - Snowstorms/Inclement Weather
Most collective agreements covering PSAC members contain a provision similar, if not identical, to the following:

At its discretion, the employer may grant:

(a) leave with pay when circumstances not directly attributable to the
employee prevent his or her reporting for duty; such leave shall
not be unreasonably withheld;

The following principles outline what we have learned from arbitrators’ decisions on the many grievances on denial of “special leave”. While the above provision can also apply to a variety of other circumstances that prevent an employee’s reporting for work, the following references apply to snow storms and other weather-related conditions. The references represent a sample of arbitrators’ decisions.

1. The main thrust of the provision is to provide for the exceptional treatment of particular employees under certain kinds of circumstances. This is why one speaks of “special leave”. Ultimately, each case must turn on its own particular facts.

2. The first issue to be decided is whether the circumstances preventing the employee from reporting for duty were or were not directly attributable to the employee. The conclusion must be arrived at reasonably on the basis of the information obtained after a due and diligent enquiry by the employer.

Read more, in the ‘Special Leave With Pay - Snowstorms/Inclement weather’ handout (pdf), prepared by the PSAC Education Section. Visit the Steward’s Network pages at the Regional Website.