2:000 Introduction

2:100 Overview - Page 15

Summary of Principles - Page 15

2:200 Definition of Illness Page - 17

2:300 Arbitral Treatment of Specific Conditions - Page 19

2:400 Conduct Inconsistent with an Illness - Page 29



This chapter considers the approach that arbitrators have taken when determining whether an illness or other medical condition justified an employee’s absence from work.



Not all medical conditions or illnesses justify an employee’s absence from work. In order to establish a justifiable illness, the employee must advance objective evidence that establishes a physical or emotional inability to perform work. The employee does not have to demonstrate total incapacity; it is enough to show that, because of illness-produced discomfort, weakness, or pain, it would be unreasonable to expect the employee to perform the available work.

Several types of conditions have merited specific consideration by arbitrators.

Jet lag and fatigue or tiredness by themselves do not amount to an illness. A hangover has been considered by some, but not others, to constitute an illness. While stress may amount to an illness, it may be difficult to measure or gauge. Continuing physical pain may, at a certain point, cease to qualify as an illness justifying absence from work. A condition that might amount to an illness can cease to qualify as an illness where the employee engages in conduct inconsistent with a continuing illness.

Arbitrators have, at times, drawn a distinction between illness (as, for instance, debilitating stress) and underlying workplace issues that were considered to be the real or primary cause for the employee’s absence.

Normally, an arbitrator will not arrive at a medical determination in the absence of supportive medical evidence. Where an employer considers that a medical certificate is inadequate, it falls upon the employer to seek additional information. A simple rejection of the certificate will not be sufficient. It is only where additional information had been reasonably requested, and the employee had then failed to provide that information, that the employee’s failure would weigh against the employee in the ultimate disposition of the matter.




2:100 Overview




2:201 In order to justify an absence from work on the basis of a particular illness, the employee normally must establish that the discomfort, weakness, or pain attributable to the illness were such that it would be unreasonable to expect the employee to perform the available work.

2:301 An employee’s obligation to establish an illness sufficient to render the employee unable to work normally is met by the introduction of expert medical evidence.

2:401 An employee who engages in conduct inconsistent with an alleged illness or a subsequently prescribed convalescence, particularly if the conduct is not disclosed to her doctor, may be subject to discipline. The employee also may also be disentitled from having her condition qualify as an illness within the context of the collective agreement provisions dealing with paid benefits.




2:200 Definition of Illness



2:201 In order to justify an absence from work on the basis of a particular illness, the employee normally must establish that the discomfort, weakness, or pain attributable to the illness were such that it would be unreasonable to expect the employee to perform the available work.




An illness that would justify an absence was defined by one arbitrator in relatively narrow terms:


The only legitimate reason for an absence under the sick leave plan is an illness of such severity that the employee is simply unable to perform the work he or she is required to do.15


In that case, the arbitrator was addressing a fairly trivial medical complaint, where the employee was seeking sick benefits for a one-month absence due to a series of nosebleeds.

A better and more workable definition of an illness constituting a justifiable absence was set forth in

St. Jean de Brebeuf Hospital [1977]:16


Quite clearly, an employee does not have to demonstrate total physical incapacity to work, it is enough to show that, because of illness produced discomfort, weakness or pain, it would be unreasonable to expect the employee to perform the work of the job.


The question of whether a condition will constitute an illness is to be determined on the facts of each case.

In Queen Elizabeth II Hospital [1998],17 arbitrator Moreau stated:


Given the nature of the claim for illness leave, one cannot say categorically which circumstances will give rise to a claim and which will not. In that regard, we agree with the following comments [of arbitrator Stewart] from the Ontario (Ministry of Housing)18] decision at p. 6:

“The more appropriate test, and the one we adopt, is that illness and hence entitlement to sick leave is established where the objective evidence establishes a physical (or possibly emotional) inability to perform work.”


Putting aside the issue of a self-induced illness,19 melding the comments of arbitrators Swan and Stewart provides the basis for a definition of illness that is fair and reasonable, and makes eminent good sense:


Illness is established where the objective evidence demonstrates a physical or emotional inability to perform work. The employee does not have to suffer total incapacity; it is enough to show that, because of illness-produced discomfort, weakness or pain, it would be unreasonable to expect the employee to perform the available work.



15 University of Windsor, unreported, October 15, 1976 (Stewart), as set forth in St. Jean de Brebeuf Hospital (1977), 16

L.A.C. (2d) 199 (Swan)

16 St. Jean de Brebeuf Hospital (1977), 16 L.A.C. (2d) 199 (Swan)

17 Queen Elizabeth II Hospital (1998), 77 L.A.C. (4th) 170 (Moreau)

18 Ontario (Ministry of Housing) (1994), 39 L.A.C. (4th) 1 (Stewart)

19 Arbitrator Stewart found that a self-induced hangover constituted an illness for the purposes of paid sick leave. Others

have disagreed. That question should be dealt with by adopting a purposive approach to interpreting a sick-leave clause rather than attempting to adopt a definition of illness that addresses the circumstances in a particular case. Note that a purposive approach was adopted in Kenroc Tools Corp. (1990), 17 L.A.C. (4th) 416 (Picher) (see p. 31 of this manual).




2:200 Definition of Illness



The foregoing definition of illness may, however, be modified by the terms of the collective agreement. Such a modification usually would be found within the clause that identifies the type of absence that would qualify for payment of sick leave. For instance, a sick-leave provision could either modify the definition of illness (for example, excluding self-induced illness or establishing a higher threshold for qualifying an absence as being compensable), or could exclude payment for enumerated circumstances such as where the employee was not under a doctor’s continuous care and/or was not following a prescribed treatment regime.




2:300 Arbitral Treatment of Specific Conditions



2:301 An employee’s obligation to establish an illness sufficient to render the employee unable to work normally is met by the introduction of expert medical evidence.





An employee who asserts that his absence was justified due to illness bears the onus of adducing sufficient evidence to support that contention. That obligation, however, must be understood within the context of the overriding arbitral principle that requires an employer to provide the employee with timely notice of its concerns regarding the sufficiency of the employee’s medical evidence. An employer’s failure to provide this notice likely will result in the arbitrator’s concluding that the employee’s medical evidence, although limited or cursory, must, in the circumstances, be found to justify the employee’s absence. These matters are considered further in Chapter 6.


Arbitral Treatment of Various Conditions

Several types of conditions have merited specific consideration by arbitrators.

In rejecting the contention that a case of jet lag constituted an illness, arbitrator Ladner, in British Columbia [1990],20 addressed the need for expert medical opinion to establish that certain types of symptoms constitute an illness:


Anyone who has suffered from any extreme form of jet lag has felt sick and out of health. It is necessary, however, to determine whether one is in fact sick and out of health rather than simply feeling that way. Distinguishing between a disease and the symptoms of a disease is not a judgment that can always be made by a layman; in some circumstances it may require an expert opinion. I am not suggesting that it was necessary for the Grievor to attend upon a doctor on March 5th or 6th, but rather that where there is a difference of opinion as to whether the symptoms described by a claimant are evidence of an illness, an expert opinion, such as from a doctor, may be required before a reasoned conclusion can be reached about the issue. Clearly, an employee who is tired because he or she did not get to bed early enough the night before is not ill. On the other hand, the employee who feels exactly the same way because that person has mononucleosis is just as clearly ill. An observer of those two employees may notice no difference whatever between them; indeed the employee himself or herself may notice no difference. But clearly one is ill and the other is not. The difference between them can only be perceived by an expert.


Arbitrator Ladner concluded that in the absence of an expert’s opinion that the employee’s symptoms amounted to an illness, the union had failed to discharge the necessary onus.

Similarly, in TRW [2005],21 the arbitrator rejected the employee’s claim of illness (debilitating stress) on the basis that the evidence fell “far short of explaining the nature and extent of the employee’s mental or emotional impairment and the reason it rendered him unable to work.”

The “notes” that had been provided by both the Employee Assistance Program (EAP) counsellor and the employee’s physician in that case were found to be insufficient to establish the employee’s claim of illness. The notes of the EAP counsellor were discounted by arbitrator Hinnegan:




20 British Columbia (1990), 18 L.A.C. (4th) 187 (Ladner)

21 TRW Linkage & Suspension Division (2005), 144 L.A.C. (4th) 215 (Hinnegan)




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The counselor in question is not a medical practitioner so that her observations as to the grievor’s demeanor and emotional condition during her visits with him are only that and do not in any way constitute a medical diagnosis of a mental disability preventing the grievor from working during the period in question. It is not my function to make a medical diagnosis based on the EAP counselor’s, or any one else’s, observations of the grievor’s demeanor or behaviour. Any medical diagnosis of a totally disabling mental impairment preventing the grievor from working must be solely that of a qualified medical practitioner. There was no indication at the hearing that the EAP counselor’s notes were provided to the grievor’s personal physician to assist him in making a diagnosis.


In considering the medical information that had been tendered, arbitrator Hinnegan stated:


The only medical information provided on which to make a determination as to whether the grievor has established by probative and cogent medical evidence that he was absent from work due to a total disability as a result of a mental condition caused by stress in his workplace situation were the written notes and comments provided by the grievor’s family physician … [He] was not called at the hearing to explain his notes so that I am left with his handwritten notes in the various certificates and forms in order to make any determination of the issue before me.


Arbitrator Hinnegan concluded he was dealing with a workplace issue rather than a case of debilitating stress.22

An arbitrator normally will not arrive at a medical determination in the absence of supportive medical evidence. For instance, in Greater Toronto Airports Authority [2007],23 the arbitrator found it was beyond an arbitrator’s expertise to draw medical conclusions based on a surveillance videotape that the employer had introduced. In Canada (Attorney General) [2008],24 the employee had refused to comply with a new uniform code that had been sanctioned by the union. The employee became tearful and was diagnosed as suffering from an “adjustment crisis.” His health then declined to the point that he was diagnosed as suffering from “severe major depression.” In addressing the facts underlying her decision, the arbitrator opined that the employee was suffering, on one or two occasions, from a state of psychological distress. There was no direct medical evidence to support that finding. In setting aside the arbitrator’s decision in favour of the employee, the Federal Court stated:


The adjudicator’s field of expertise is in labour relations and, unless she refers to the opinion of either a physician or a psychologist in determining that a certain event caused psychological distress to [the grievor], she is clearly exceeding her powers.


The court also commented that the arbitrator’s decision was unreasonable, and it noted that the employee was responsible for his own predicament.

Arbitrator Stewart rejected the necessity of a medical diagnosis in Ontario (Ministry of Housing) [1994].25 In what surely must be the high-water mark in attempting to define the concept of illness, she found that an employee’s premeditated and self-inflicted hangover constituted an illness that entitled him to paid sick leave. She made that determination despite the fact that the employee had telephoned the employer’s support clerk on Friday to report he would be ill on the following Monday. When asked how he could predict he would be ill, the employee replied that he was attending a wedding (on the Sunday) and would have a hangover the following day. The arbitrator rejected the



22 This case is discussed further at p. 25 of this manual.

23 Greater Toronto Airports Authority (2007), 167 L.A.C. (4th) 81 (Bendel)

24 Canada (Attorney General) (2008), 180 L.A.C. (4th) 97 (F.C.)

25 Ontario (Ministry of Housing) (1994), 39 L.A.C. (4th) 1 (Stewart)




2:300 Arbitral Treatment of Specific Conditions



need for medical evidence, stating that all that was required was that the employee have established his physical incapacity to perform his work in order to qualify for sick pay. She also found it was irrelevant that the “illness” had been self-inflicted. She stated that to reject the claim on that basis would be potentially to require rejection of a sick-leave claim from a smoker who was suffering from lung cancer, or from an obese employee who was suffering from an illness associated with obesity. In her view, the appropriate response would have been for the employer to have paid the sick-leave claim and to have considered whether the employee’s conduct should be met with a disciplinary response.

In North Bay General Hospital [2009],26 the employee had been denied sick pay on the basis that the cosmetic surgery she had undergone for removal of excess skin had fallen within the “willfully self- inflicted” exclusion set forth in the collective agreement. Arbitrator Stephens concluded that the exclusionary provision did not extend to the circumstances of this case:


The employer argues that the exclusion of “willfully self-inflicted injury” operates to deny coverage to the grievor. The employer submits that “willfully” means making a decision of one’s own free will. That may well be one aspect, but it does not adequately convey the sense of word. In my view, the word “willfully” goes beyond free will, and describes an action that is in some manner contrary to good sense or good advice, where the individual is being deliberately obstinate for example, such as the willfulness of a misbehaving child.

The employer also says the grievor’s injury, in order to constitute a “self-inflicted injury”, need not be at her own hand, and the phrase is broad enough to capture injury by another person at the invitation of an employee. While this is arguably true, I also find that the phrase “self-inflicted injury” conveys the sense of an action that is illegitimate and harmful. One speaks of an individual “inflicting” pain or injury on another in a violent confrontation, but not of the surgeon “inflicting” an injury on a patient during surgery, unless the surgery goes wrong. Similarly, a “self-inflicted” injury, in the typical use of the term, is an injury that is caused either by reckless, destructive behaviour or by a suicide attempt.


In arriving at his decision, arbitrator Stephens referenced a 1986 award of arbitrator Hinnegan in A & P [1986],27 in which arbitrator Hinnegan found that an accidental sunburn did not constitute a “self- inflicted” injury; and an earlier award of arbitrator Burkett, again in A & P [1984],28 where arbitrator Burkett found that injuries suffered in self-defence did not fall into an “engaging in fisticuffs” benefit exclusion. He stated:


The finding [in the sunburn instance] tends to support a narrower application of the concept of self-inflicted injury, in that the arbitrator held that the manner in which the injury was sustained was understandable, and that this barred the application of the exclusion, even in the face of an established employer practice. In my view, this approach is even clearer in the 1984 Re A. & P. decision by arbitrator Burkett. The collective agreement contained an exclusion for injury caused as a result of “engaging in fisticuffs.” This is as neutral a phrase as one could use to describe a fight, and the phrase “engaging in” would appear to capture any participant in the “fisticuffs”, regardless of how the fighting came about. Yet Arbitrator Burkett held that the exclusion did not apply where the employee was defending himself. Thus, arbitrators have found that “self-inflicted” exclusions do not apply where the employee’s actions could be seen as reasonable or understandable.



26 North Bay General Hospital (2009), 181 L.A.C. (4th) 179 (Stephens)

27 Great Atlantic & Pacific Co. of Canada Ltd. (1986), 25 L.A.C. (3d) 189 (Hinnegan)

28 Great Atlantic & Pacific Co. of Canada Ltd. (1984), 18 L.A.C. (3d) 44 (Burkett)




2:300 Arbitral Treatment of Specific Conditions


Arbitrator Ladner’s decision in British Columbia [1990]29 (regarding the need for an expert’s opinion), was followed in Alcan Smelters [1997].30 In that latter case, arbitrator Hope rejected the employee’s claim to have been unable to work following a short period of heavy drinking that ultimately resulted in the employee’s being maced by police. The stated reason for the employee’s inability to work was that he had a bad headache. He denied he was suffering from a hangover. Arbitrator Hope stated that “In any event, a hangover would not be an acceptable reason for being absent.” He summarized the employee’s position as one where “… he was unable to account for the headache he experienced or to establish that it prevented him from attending at work.” He stated:


Accepting the fact that being “maced” would not disable the grievor for any significant period of time, the grievor’s self-diagnosis of his condition would require the support of an opinion from a qualified expert, such as a medical doctor, that the circumstances would be likely to disable him from performing his duties.


In Metropolitan Authority (Metro Transit Division) [1989],31 the employee had been suspended for having failed to call in prior to both her scheduled shift and a second shift that had been scheduled for her later that day. She claimed to have overslept and missed both shifts for medical reasons. She had been seen in the vicinity of a tavern earlier that day but claimed she had not gone into the tavern. She provided no information regarding her underlying medical condition. At the arbitration hearing, the employee’s treating physician testified that the employee was being treated for premenstrual syndrome (PMS). It was the physician’s evidence that a woman suffering from PMS might experience, among other signs, depression, insomnia, and stress-related symptoms. When the physician examined the employee approximately two weeks after the missed shifts, the employee reported to her that she had suffered from a night of insomnia, and that she was disoriented on that particular day. The employee’s physician testified that the employee could have been suffering from PMS on that date. After hearing evidence from the employee and her boyfriend, the arbitrator concluded that the employee was suffering from PMS symptoms on the day in question. He described her failure to advise the employer of her condition as understandable, if erroneous:


One can surely take judicial notice of a number of uncouth expressions and vulgar metaphors used in common parlance to describe women suffering from symptoms of P.M.S. It is unfortunate, but perhaps not surprising, that the grievor might not wish to be fully forthright with the employer’s management personnel, even under the best of circumstances, about her medical condition.


Despite the employee’s failure to disclose the nature of her “medical excuse”, the arbitrator set aside the suspension, and directed she be compensated for the four and one-half days of lost wages.

Although the employee’s claim was rejected, based on insufficient medical evidence, arbitrator Swan commented on influenza or flu as an illness in St. Jean de Brebeuf Hospital [1977]:32


Here the grievor says she had “flu”, a word which I did not consider to be an exhaustive medical diagnosis, but a common lay person’s expression to describe a set of symptoms which all but the heartiest individuals know only too well. In this case, the grievor specifically mentioned sore muscles and a sore throat.

The fact that a disease is a common one, that its symptoms are difficult to verify, that it cannot be effectively treated except by rest and a degree of self-indulgence, and that it is quite



29 British Columbia (1990), 18 L.A.C. (4th) 187 (Ladner)

30 Alcan Smelters and Chemicals Ltd. (1997), 62 L.A.C. (4th) 371 (Hope)

31 Metropolitan Authority (Metro Transit Division) (1989), 6 L.A.C. (4th) 371 (Archibald)

32 St. Jean de Brebeuf Hospital (1977), 16 L.A.C. (2d) 199 (Swan)




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properly of little professional interest to the medical profession does not mean that it cannot qualify as an illness.


Although arbitrator Swan recognized that flu-like symptoms can qualify as an illness, it is generally an illness of very short duration, so that symptoms that are said by the employee to persist beyond a reasonable period of time may dictate a closer examination to determine whether the employee met the onus of establishing such illness. He stated:


The grievor’s failure to seek further medical advice when a minor, if unpleasant illness failed to subside after five days of rest casts doubt upon her entire story, and weakens considerably the value of her own evidence.

… The physician’s certificate fell outside the bounds of reasonableness as well. It might well have been useful, after a two day illness, to certify that he had seen the grievor, was satisfied as to her symptoms, and was prepared to lend his support to her complaint of illness. After a much longer period, his certificate is of much less value.


Arbitrator Moreau, in Queen Elizabeth II Hospital [1998],33 dismissed a grievance from two nurses who claimed sick pay on the basis that they were suffering from fatigue, and consequently, unable to work their operating room shift. The grievance was rejected. The doctor who had provided the employees with medical notes stating they were sick, acknowledged at the hearing that he had based his opinion on what they had told him rather than on any observed or diagnosed signs of illness. In rejecting the grievances, arbitrator Moreau stated:


I agree with the employer and the awards which distinguish between being tired and being sick. The Alcan Smelters award, for example, refers at p. 377 to the Demiris Arbitration “…where the conclusion was that an employee who suffered fatigue as a result of family problems could not rely on that fact to excuse a failure to attend at work.” The Hydro Electric Commission of the City of North York award dealt with circumstances like those in this case where illness leave was claimed on the basis of a lack of sleep. The arbitration board had the following comments to make on the difference between being tired and being ill at p. 6:

“We are not dealing here with a situation where an employee by reason of experiencing a prolonged problem becomes so exhausted that he was verging on a physical and/or mental breakdown. We are, rather, dealing with a person who was legitimately tired because he had perhaps only three hours’ sleep between Sunday

a.m. and Monday noon. He may well have been too tired to report for work on Monday noon but that does not mean that that the reason for the absence falls within any reasonable definition of illness; to so find would be to say that any employee who was legitimately too tired to work would be eligible for sick pay. It is clear that if the parties had intended to have a provision as part of the negotiated working conditions, clear language would have been included in the collective agreement.”


In Sault Area Hospitals [2001],34 arbitrator Whitaker considered a grievance where the employee had been denied sick leave on the basis of the insufficiency of a medical note advising that she would not be able to work due to family stress. The employee’s spouse, who had been injured in a snowmobile accident, had been transferred to a major medical centre some distance from their community. The employee, who claimed (and subsequently testified) that the circumstances caused her to suffer from depression, anxiety, and intestinal disorders, had made it known to the employer that she had left their




33 Queen Elizabeth II Hospital (1998), 77 L.A.C. (4th) 170 (Moreau)

34 Sault Area Hospitals (2001), 94 L.A.C. (4th) 230 (Whitaker)




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community to be at her husband’s bedside. Arbitrator Whitaker commented that the first and a second similar certification of illness (“The above patient will be unable to work due to personal stress until further notice”) would not, in his view, have been sufficient to substantiate the claim. The employee, however had presented additional medical information following the filing of the grievance, that being a six-paragraph letter stating she was suffering from a “situational depression and anxiety state,” and explaining in some detail the doctor’s opinion as to why she could not have worked during the period of her absence. In upholding the grievance, the arbitrator stated:


In our view, it was entirely reasonable for the employer to conclude, based on their observations of the grievor and a review [of the first two letters], that the information provided [at that point] did not establish that the grievor was disabled by stress and that further information was required in order to prove the claim.

The circumstances of this type of claim are particularly difficult for a number of reasons. Firstly, it is understandable that the grievor would want to be off of work to deal with the terrible tragedy being faced by her family. This means that there was already in existence to the employer’s knowledge, a significant causal factor (other than disability) which would prevent her from working. The second point is that “stress” as a disability is difficult to measure or gauge. There is no doubt stress can be disabling. On the other hand, most people live with some degree of stress and so it can be reasonably assumed that stress is not in the normal course, a disabling condition. Finally, as union counsel suggests, this grievance is not intended to open the “floodgates” so that any type [of] stress becomes grounds for absence from work.


The employee, in St. Joseph’s Hospital [1987],35 had been absent due to stress she suffered as a result of her mother’s serious illness. She testified she was “emotionally depressed, unable to sleep, [and] unable to cope.” It was her evidence that she could not cope with simple household tasks, and she was concerned she would not be able to function properly in her nursing position. She attended with her physician. After having spoken with her for 20 to 30 minutes, her physician completed a “Return to School or Work Certificate.” It stated that the employee had been under his care, commencing that date, and that she should be able to return to school/work two weeks later. The form did not provide any other information. The employee, however, testified that when the form had been completed, she noticed that the doctor had written “acute anxiety state” on her out-patient chart. Her physician was not called to testify.

The employer refused to pay sick pay for the entire two-week period, claiming that the employee was upset or distressed rather than actually ill, and further that she had been authorized by her physician to take two weeks off when, according to the employer’s belief, the employee had asked the doctor only to be relieved of two shifts. The employee was immediately advised that she would be paid only two days’ sick leave and that any other time required would be without pay.

The arbitrator concluded that the employee was suffering from an illness:


It is a truism that people respond differently to different situations. Faced with a crisis, some individuals soldier on and indeed find in their work a certain relief from the ongoing crisis itself. Others react as did the Grievor, with great anxiety and “an inability to cope”. In the Board’s view, this in no way diminishes the fact that the Grievor may have suffered an illness. One can not base illness on causes rather than symptoms. The Grievor’s reaction to the illness of her mother was to become emotionally depressed and in her own words she “totally fell apart”. In the Board’s opinion, such a situation could fall within the definition of “illness”.



35 St. Joseph’s Hospital (1987), 28 L.A.C. (3d) 185 (Ponak)




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In dealing with the employer’s contention that the medical certificate was inadequate to establish that the employee had been ill, the arbitrator commented that it would have been reasonable in the circumstances for the employer to have sought a more informative certificate or to have required that the employee see another physician. A simple rejection of the certificate, however, was not appropriate. If the employer wanted additional information, it should have “requested such proof in clear and unequivocal terms.” The arbitrator also commented that if such information had been requested, and the employee then had failed to provide that information, her failure “would have weighed heavily against her in the ultimate disposition of [the] matter.”

In Strathcona County [2000],36 the employee’s physician authorized a two-week absence from the workplace, for medical reasons, for the same period that the employee had been denied vacation leave. The employee was terminated following the employer’s discovery that he had used this period to undertake the very same travel he had intended to undertake on his vacation. A subsequent medical report from the employee’s physician advised that the underlying reason for the leave was the workplace stress the employee had been experiencing, with the major stressor being that his vacation had been denied. The decision set aside the employee’s termination for cause, but did not discuss whether stress of this nature properly could be considered to amount to an illness.

A diagnosis of stress can be made by a general practitioner.37 However, it is a disabling condition that can be difficult to assess.

In TRW [2005],38 arbitrator Hinnegan discounted the notes made by both the employee’s physician and his EAP counsellor.39 Although the physician’s notes stated that the employee was suffering from “acute work-related situational stress,” arbitrator Hinnegan found they fell “far short of explaining the nature and extent of the grievor’s mental or emotional impairment and the reason it rendered him unable to work.”

In arriving at his decision, arbitrator Hinnegan commented on the difficulty in assessing stress as a debilitating condition:


“Stress” as a disability is difficult to measure or gauge. Undoubtedly, stress can be disabling, but, it is perhaps trite to say that most people live with some degree of stress on a daily basis so that the reasonable assumption is that stress is not, in the normal course, a totally disabling condition. See Re Sault Area Hospitals and S.E.I.U., Loc. 268 (“X”) (2001), 94 L.A.C. (4th) 230 (Whitaker). Following on from that, it seems an equally reasonable assumption that establishing that stress resulting in mental impairment to the point of total disability surely requires probative, persuasive medical information provided by a medical professional qualified to make such an assessment.

Also, in the Sault Area Hospitals case, arbitrator Whitaker observed that the typical “notepad” notes of a family physician are generally deemed by arbitrators to be inadequate as a medical diagnosis of mental impairment due to stress to the point of total disability preventing an employee from working at his job for a period of time. See also Re St. Jean de Brebeuf Hospital and C.U.P.E., Loc. 1101 (1977), 16 L.A.C. (2d) 199 (Swan). In the latter case, the arbitrator noted that the obligation of establishing total disability from working due to stress entitling an employee to sick pay benefits under the collective agreement is on the employee. He also noted that cursory medical notes are of negligible probative value in meeting that onus, particularly in the case of a claimed serious illness.



36 Strathcona County (2000), 92 L.A.C. (4th) 1 (Sims). See also p. 31 of this manual

37 Refer to Brinks Canada Ltd. (1994), 41 L.A.C. (4th) 422 (Stewart) discussed at p. 56 of this manual.

38 TRW Linkage & Suspension Division (2005), 144 L.A.C. (4th) 215 (Hinnegan)

39 This aspect of the case is considered at p. 19 of this manual.




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In Sault Area Hospitals, the grievor’s family physician satisfied that onus by following up his “notepad” certificates with a typewritten six-paragraph letter explaining his diagnosis of a “situational depression and anxiety state” and, further, attended the hearing as a witness to fully explain his diagnosis of the grievor’s illness and his opinion that the grievor could not have worked during the period of her absence.

[In this case, a] review of the “diagnostic” comments offered by [the grievor’s physician] in his various medical notes shows them to be at the opposite end of the spectrum. His comments are as cursory as cursory gets. His diagnosis of the grievor’s illness was “acute work-related situational stress”, or some variation of that general phrase. That rather nebulous observation of the grievor’s situation falls far short of explaining the nature and extent of the grievor’s mental or emotional impairment and the reason it rendered him unable to work.


Arbitrator Hinnegan concluded that he was dealing with a workplace issue rather than a case of debilitating stress:


If any further confirmation is required that this was a workplace issue, albeit a stressful one for the grievor, and not a medically supported total disability, it lies in the simple fact that this whole matter was resolved through a meeting between the grievor and the Plant Manager to clear the air about what had been going on on the floor with respect to the grievor for some period of time. This was a standard labour relations approach to a workplace problem and was in no way a medical intervention or medical treatment of a mental or emotional condition.

Here, the grievor was simply an employee who was having an issue with his supervisor and rightly or wrongly, saw himself as being picked on and harassed and was upset and angry about being disciplined. The situation was no more complicated than that and was a typical workplace situation encountered regularly in any number of workplaces. As [the grievor’s doctor] quite accurately described it, the grievor was alleging harassment and was experiencing work-related situational stress or anxiety as a result, which is a far cry from mental impairment due to illness totally disabling him from performing his regular occupation.

There being no medical diagnosis by any qualified medical professional approaching that here, that ends this matter.


The case of Consumer Glass [1998]40 illustrates the significant difficulties an employer can encounter when dealing with psychiatric-related conditions. The employee, who was found to be suffering from a psychiatric condition, was obsessed and delusional. He believed that his foreman had denied him a promotion, that the foreman was following and spying on him, and that the foreman wanted to have sex with him. He was described as continually confronting the foreman and blaming him for all that was wrong in his life.

Despite several ongoing incidents of a psychiatric nature, the psychiatrist who was jointly chosen to examine the employee recommended, after a relatively short examination also attended by the employee’s wife, that the employee return to work. He opined that “although the [employee] was somewhat delusional, he was in control of his behaviour … [and] had undertaken that he would go through proper procedures in handling any difficulties he might have with [his foreman].” The employer rejected that recommendation, and the matter proceeded to arbitration.




40 Consumer Glass (1998), 70 L.A.C. (4th) 140 (Albertyn)




2:300 Arbitral Treatment of Specific Conditions



While it had been apparent to those associated with the employee that he had been experiencing episodes of a psychotic nature, it was not until well into the arbitration that the psychiatrist reconsidered his diagnosis and recommendation.

In his testimony, the psychiatrist, who had been present from the outset of the hearing, testified that he now had revised his earlier opinion. He stated that after having observed the employee at the outset of the hearing and after considering the additional incident that resulted in the termination, it was now his conclusion “that the grievor has been showing symptoms of a delusional disorder (which he explained used to be referred to as a paranoid disorder) associated specifically with his job and extended to all persons associated with the workplace … [The psychiatrist] explained that his considered conclusions were that the grievor was not psychiatrically well enough to return to his job; and the grievor could pose a danger to himself and others.”

In Brampton (City) [2008],41 the employee claimed he was suffering from a psychological disability that prevented him from driving an employer-provided “Smart Car”. In dismissing the grievance, arbitrator MacDowell stated:


This board of arbitration has no problem concluding that an “anxiety disorder”, if properly established, would constitute a “disability”; and that if such condition interferes with the … employee’s ability to do his/her job, then an Employer may be obliged to engage in a process of accommodation. And if accommodation is required, then there may have to be adjustments on both sides: modification of the employee’s duties or equipment on the one hand, and (perhaps) efforts to ameliorate the underlying medical condition on the other. Because disabilities may be transient or permanent, total or partial, treatable or not; and as WSIB practice demonstrates: “work hardening” and steps to promote adjustment or recovery may also be part of the equation. Accommodation is a tripartite, cooperative problem solving exercise, that was aptly described by Sopinka J. in Board of School Trustees District No. 23 (Central Okanagan) et al v. Renaud et al (1992), 95 D.L.R. (4th) 577 (S.C.C.).

However the pivotal first step, which triggers these legal obligations, is the presentation of reliable evidence (not just an assertion), that the employee actually suffers from a disability – and if he does, that it prevents him from performing his normal tasks. And it is here that the evidentiary foundation is lacking in this case.


The arbitrator commented that the doctor’s ultimate conclusion, as recorded in his notes, “was

“normal” anxiety – which is not a mental illness.”

The arbitrator found that “to the extent that the grievor experienced any anxiety with the Smart Car, it was more probable than not that it was related to normal anxiety. “It [normal anxiety] is not a mental illness or disability, let alone a permanent or immutable one. Moreover, even if there were some component of irrational fear, there should at least have been some consideration of whether that could be addressed, therapeutically, and at least some consideration of what that ‘treatment’ might entail.”

Stress may exacerbate an employee’s fibromyalgia. In Ottawa (City) [2009],42 the employer failed to carry out its duty to accommodate the employee where it failed to implement a medical recommendation to transfer her to a less stressful position.

In Treasury Board (Department of Human Resources and Skills Development) [2011],43 the employee suffered from environmental hypersensitivity. Her request to telework was granted, first on a part- time, and then, on a full-time, basis. However, the employer’s attitude changed with the appointment




41 Brampton (City) (2008), 174 L.A.C. (4th) 140 (MacDowell)

42 Ottawa (City) (2009), 185 L.A.C. (4th) 227 (Picher)

43 Treasury Board (Department of Human Resources and Skills Development) (2011), 207 L.A.C. (4th) 31 (PSLRB:Paquet)




2:300 Arbitral Treatment of Specific Conditions



of a new supervisor who “questioned the eisting accommodations simply because of her own organizational preferences, without attempting to understand [the employee’s] limitations.” The employee’s tasks were changed and her telework arrangement was terminated without consultation with the employee. Damages were awarded for the employer’s “reckless conduct.”

Continuing pain associated with an illness may cease to qualify, at least at a certain point, as an illness justifying an absence from work. In DuPont Canada Inc [1994],44 the employee had injured her back. That injury caused pain and suffering, and resulted in a restriction of movement. The employee was immediately assigned light clerical duties, and performed such work, for two to six hours per shift, for a period of two and one-half months. The employee continued to experience pain, with little apparent improvement in her condition. Her doctor then recommended she stay off work for 30 days. The employer took issue with that recommendation. It was of the view that the employee was not serious in returning to her regular duties; that her doctor’s recommendation was made without full knowledge of the light duties she was offered; and, further, that the doctor’s recommendation was inappropriate and medically unsupportable. Arbitrator Starkman agreed. He found that despite suffering continuing pain, the employee was not disabled to the point where she could not present herself at work. He also found that it was unreasonable for the employee to have followed her doctor’s advice, given that the employer had made light work available to facilitate her condition.




44 DuPont Canada Inc. (1994), 42 L.A.C. (4th) 22 (Starkman)




2:400 Conduct Inconsistent with an Illness



2:401 An employee who engages in conduct inconsistent with an alleged illness or a subsequently prescribed convalescence, particularly if the conduct is not disclosed to her doctor, may be subject to discipline. The employee also may also be disentitled from having her condition qualify as an illness within the context of the collective agreement provisions dealing with paid benefits.




Conduct that is inconsistent with an illness has been considered both here and in section 17:202. This type of conduct is generally considered to be less culpable than conduct which involves flagrant dishonesty on the part of the employee.

In Hussman Store Equipment Ltd. [1990],45 the employee had suffered a pulled thigh muscle while playing baseball. He had been off work on weekly indemnity benefits for almost eight weeks when he was observed playing baseball. He was terminated on the basis that he was off work on false pretences.

The arbitrator stated there was no dispute that the employee had suffered a valid injury and had the right to claim and receive weekly indemnity benefits under the collective agreement. The issue was not whether the employee had been injured, but rather whether he was in receipt of benefits during a period when he could reasonably have been expected to be at work.

Arbitrator Brown commented that it was essential that benefit plans not be abused:


There can be no doubt that an employer, whether administering a self-insured benefit plan or a fully insured plan, is vitally concerned in the proper application of the benefits for its employees. It is a costly benefit to an employer and one of the most significant benefits for the protection of employees who become ill or injured other than for compensable injuries. It is therefore to the benefit of both parties to ensure that such a plan which must for the most part be maintained on an honour system, not be abused. Where an employee takes improper advantage of that type of benefit there is cause for disciplinary action under the collective agreement by which the benefit is obtained.


In characterizing the employee’s behaviour, the arbitrator stated:


The grievor was in receipt of weekly indemnity benefits and he knew or ought to have known that it was his responsibility to return to work as soon as possible upon recovery from his disability. What he did wrong was not to contact his employer to advise him of his status during June in light of his decision to play baseball. It must be obvious to anyone … that if he could undertake that activity, he could perform his work as an assembler where he was not involved in running or the other movements required of the body including his leg as he did while playing baseball. The grievor claimed, however, that he had his doctor’s permission as a matter of therapy to play baseball. However that may be, the incongruity of that situation with his absence from work and receiving benefits should have triggered his report to the company who could then have had a further examination by [the doctor] and a specific medical report as to the grievor’s ability to return to work either for full or modified duties. The grievor did not consider his employer in that regard or his responsibilities as a receiver of its benefits.

On the face of these facts it must be concluded that the grievor was careless in the performance of his obligations as an employee to return to work as soon as he could



45 Hussman Store Equipment Ltd. (1990), 16 L.A.C. (4th) 19 (Brown)




2:400 Conduct Inconsistent with an Illness



reasonably have done and to keep his employer informed as to his ability to return to work. The grievor did not do so in circumstances where his injury was recovered to the extent at least that he could take on activities which were patently inconsistent with his remaining off work without further explanation. While therefore the grievor did have a valid claim initially for weekly indemnity benefits, I find that he remained off work while in receipt of those benefits in circumstances when it is clear that he should have made efforts to advise the company of his physical condition and to have arranged a definite time to return to work. The doctor’s certificate of an indefinite return to work which had originally been given is not consistent with the grievor’s physical activities in the last week of June and the requirements of his job. In contemplation therefore of playing baseball, it would have been reasonable for him to provide the company with an explanation that he had permission from his doctor to engage in that activity and to advise the company of his intended return to work date. Either the grievor did not think clearly about his employment status or he was uncaring whether anyone might learn of his baseball activities and in either event must be considered to have intentionally abused his benefit privileges by failing to return to work at his earliest possible time which was his responsibility to assume. The company must rely on an employee’s honesty in making a determination of when he is fit to return to work as the employer cannot be expected to know on a daily basis, what the employee’s medical condition and suitability for a return to work may be.


The arbitrator also commented on the employee’s failure to be truthful when first confronted with the fact that he had been playing baseball. By not advising that he had his doctor’s permission to play baseball (which might have been valid), “it discloses a guilty mind concerning his physical condition and his fitness to work at his regular job at that time.”

Arbitrator Brown referenced an unreported award in Re Canadian National Railway Co. and International Brotherhood of Boilermakers, unreported, September 20, 1989 (Picher). In that case, arbitrator Picher upheld the termination after considering a similar factual situation.


With the greatest respect to counsel for the union, the issue in the instant case is not whether the grievor's sporting activities aggravated his condition or hindered his convalescence. It is whether he has deliberately sought to mislead his employer in matters pertinent to its interests, including his availability to resume working. In the arbitrator’s view the conclusion is inescapable that he had, and that he has done so knowingly and without colourable excuse


Arbitrator Brown in Hussman also commented that while it was inadvisable, it was at least somewhat understandable that the employee would have lied when informed he had been terminated. The employee said that he did so because he was scared and nervous. “That conduct though unacceptable did not establish that he falsely asserted his claim for benefits but is a factor to be taken into account in the relief claimed in the grievance.”

In reinstating the employee without any retroactive compensation, arbitrator Brown stated:


Had the grievor maintained his initial position which he knew to be false through to the hearing and had not given the company the correct information, then there would be little, if any, basis for consideration of the mitigation of the penalty in his favour. In these circumstances where there was not a fraudulent claim for benefits but negligence in the exercise of the grievor’s responsibility to return to work at the earliest possible time and untruthfulness with his employer, while cause for discipline, the penalty of discharge is, in my opinion, too severe and is not consistent with the ratio of the cases referred to above in




2:400 Conduct Inconsistent with an Illness



which fraudulent claims for benefits have been found and terminations of employment have been upheld.

One of the important factors in the consideration of disciplinary penalties is not only to correct the employee’s future behaviour but deterrence of similar misconduct. As I have stated, the administration of a benefit plan is successful when employees are forthright with their employer and where abuses of such a plan have occurred, it must be brought forcibly to the attention of the defaulter as well as others who may obtain benefits under the plan that such conduct is not acceptable and that penalties up to discharge will be applied. It is my view that the grievor did not reach the point in the particular circumstances of this case, where the company was justified in imposing the maximum penalty. I find, however, that the company would have been justified in imposing a substantial suspension from work without pay.


In substituting a suspension for the termination, the arbitrator considered the employee’s 15 years of service; the absence of any similar offences in his past employment history; the difficult economic circumstances in the province; the fact that the employee had not intended to take undue advantage of the company but had done so by his negligent conduct; the fact that the employee had not entered into a deliberate scheme to defraud the company, but failed to meet his responsibilities in his employment relationship, which caused the company to take the action it did against him; and the fact that the employee was now sincere in his remorse, and that corrective discipline would be effective in his future employment with the company.

In Kenroc Tools Corp. [1990],46 arbitrator Picher accepted for the purpose of his decision that the employee was suffering from a physical ailment for which he had sought treatment. The doctor had prescribed pain medication and antibiotics, and had advised the employee to stay off work for two weeks to rest. During that period, the employee, unbeknownst to his doctor, spent five days at a hunting camp. Upon discovery of that information, the employer’s insurer denied the sick-leave benefit claim, and the employer imposed a five-week suspension. Arbitrator Picher upheld the suspension, and denied the claim to be indemnified for lost benefits:


In the arbitrator’s view the parties to the collective agreement did not intend that an employee who receives the benefits of the medical indemnity plan could, at least without some authorization from his physician and his employer, engage in an away-from-home vacation trip during the course of a medical leave. As a person receiving indemnity benefits at the company’s expense, the grievor was under a minimal obligation to follow a faithful programme of treatment and convalescence, and to clear in advance both with his physician and his employer any contemplated activities which might be unusual in the circumstances. This [the grievor] failed to do, and in so doing, departed from the intention of the sick leave indemnity plan and the related duty of care and disclosure which he owes to the company.


The foregoing cases can be contrasted with the decision of arbitrator Sims in Strathcona County [2000].47 There, the employee, after having been denied an earlier vacation request, sought and received a medical leave for that same two-week period. He left a medical note at the workplace immediately prior to leaving. It simply stated that he would be absent for the two-week period on medical grounds. The employee was evasive when he was questioned on his return. In response to questions prepared by the employer, the employee subsequently provided a letter from his doctor that stated in part:




46 Kenroc Tools Corp. (1990), 17 L.A.C. (4th) 416 (Picher)

47 Strathcona County (2000), 92 L.A.C. (4th) 1 (Sims)




2:400 Conduct Inconsistent with an Illness



He requested from me a medical leave of absence from work regarding the stress he was experiencing. This would have the dual purpose of facilitating absence from work to help him gather his composure and he would also be able to avail of some summertime vacation during this period of disability. In this regard he was given a medical leave of absence from me [for the two-week period].


The doctor was not called to testify. The employee, however, testified that his doctor did not suggest he see either a psychologist or a psychiatrist for his stress, nor did he prescribe any medication or other treatment.

As previously planned, the employee and his companions hiked the West Coast Trail during this period. Although the employee testified he mentioned the hike to his doctor, his doctor had not suggested the trip. He summarized his doctor’s advice as being to “get away from the place.”

The employee, who had been terminated for cause, was reinstated without penalty. In upholding the grievance, the arbitrator appeared to ignore the fact that no disclosure had been made to the employer. He minimized the fact that the employee had requested that his doctor authorize him to be off work for the same period that he had been denied vacation leave, and he accepted without question the doctor’s letter of explanation that the employee later provided to the employer. He did so despite the employer’s objection that the letter was “hearsay” in nature, and should not be accepted into evidence without the doctor having been called and made available for cross-examination.

The Strathcona County decision [2000]48 and the earlier reasoning of arbitrator Stewart in the premeditated and self-inflicted hangover case of Ontario (Ministry of Housing) [1994],49 are in stark contrast to arbitrator Picher’s well-reasoned decision in the Kenroc Tools [1990]50 case.

Greater Toronto Airports Authority [2007]51 stands as a reminder that an employer who is alleging inconsistent conduct generally will be expected to call medical evidence to satisfy the arbitrator that employee conduct as captured on video surveillance was medically inconsistent with the employee’s stated medical condition.

With the exception of Strathcona County, the cases reviewed in this section generally replicate the approach taken in the culpable absenteeism decisions that are set forth in Chapter 17, and in particular, those addressed in section 17:203, commencing at page 828 of this manual.




48The arbitrator’s decision in Strathcona County (Strathcona County (2000), 92 L.A.C. (4th) 1 (Sims)) can be said to have been predicated on the view that the parties, in the collective agreement, had “addressed themselves specifically to what happens “where it can be shown that reasonable doubt exists in respect to the purpose of an absence claimed to be due to illness.” The agreement stated that:


“an employee may be required to provide proof of illness upon return to work, where it can be shown that reasonable doubt exists in respect to the purpose of an absence claimed to be due to illness. Such proof may take the form of a medical certificate or a sworn statutory declaration. The employer may also require the employee to submit proof of attendance at a medical, dental or optical appointment when time off from work is granted to attend such appointments.”


The arbitrator acknowledged that the facts of the case “clearly raised what would be a reasonable doubt in the mind of any Employer about the bona fides of [the grievor’s] illness.” While acknowledging that a medical certificate is not “irrefutable proof,” the arbitrator characterized this as a matter to be determined based on the specifics of the contractual terms. He stated, “This contractual stipulation for the form of proof to be used in the specific event of a doubt over the purpose of an absence makes it impossible for us to accept the proposition that the resulting medical certificate is of no weight in deciding the validity of the absence.” The arbitrator also noted that the facts in this case were distinguishable from some other cases in that the doctor here was not misled, and, consequently, there was no clear evidence refuting the certificate or undermining the basis on which it was given.

49Ontario (Ministry of Housing) (1994), 39 L.A.C. (4th) 1 (Stewart); see also the discussion at p. 20 of this manual.

50 Kenroc Tools Corp. (1990), 17 L.A.C. (4th) 416 (Picher)

51 Greater Toronto Airports Authority (2007), 167 L.A.C. (4th) 81 (Bendel)