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Expanded Case Details

Kruger Inc. (2012), 214 L.A.C. (4th) 357 (Herlich)

In Kruger Inc. (2012), 214 L.A.C. (4th) 357 (Herlich), the employee, who had been denied a one day leave to attend an appointment with a medical specialist, was then terminated. The employer contended that the employee had never advised of the reason for the requested leave. The arbitrator dismissed the employer’s contention and ultimately reinstated the employee on the basis that the employee was statutorily entitled to such leave.

Section 50 (1) of the Ontario Employment Standards Act addresses personal emergency leave. It provides, in part, that

An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of any of the following:

  1. A personal illness, injury or medical emergency …

 The legislation, which contains a notification requirement, limits such leave to a total of 10 days in each calendar year. It also provides that an employee may be required to provide reasonable evidence of entitlement to such leave.

In concluding that a specialist’s appointment fell within the category of “a personal illness, injury, or medical emergency,” the arbitrator distinguished the situation from that of a routine medical appointment:

This is not a case where the grievor was attending his family physician to, for example, renew a medical prescription. Rather, the appointment was with a specialist to inquire into a medical concern the grievor had regarding his ankle. It is common knowledge that appointments with medical specialists can be difficult to obtain … and are not simply arranged directly between patients and specialists. The mere fact of the involvement of a specialist itself suggests some further objective verification (beyond the grievor’s own evidence) of the possible existence of a medical pathology warranting inquiry. An appointment with a medical specialist to inquire into such a pathology is one that addresses personal illness or injury.

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