Laurentian University (Board of Governors) v. Laurentian University Faculty Assn (Sick Leave Grievance) [2010] OLAA No. 579

Can a University override the collective agreement in the name of fulfilling its human rights obligations?

Facts:

The Collective agreement at Laurentian University allows for faculty members to be absent from work due to sickness for up to six months.  Members on paid sick leave must provide the university with a doctor’s certificate stating that they cannot work and providing a return date. The employer has the right to request more detailed information, but only if members request accommodation for a disability or if they exceed the predicted return date.  The University also has the right to request an independent medical assessment by a physician of its choosing.

When the University received, from a number of members, medical certificates which provided very vague return dates (such as “time indefinite” or “until further notice”) it sent out letters requesting the following information:

• A detailed description of the sickness (short of a diagnosis);
• A detailed description of the professional tasks (teaching, research, administration) that the member could or could not do, due to the illness;
• An assessment of whether the member could return to work if certain undoable tasks were reduced and other doable tasks were increased; and
• A concrete proposal for accommodation measures that could facilitate the member’s accelerated return to work. 

A number of members filed grievances and the Union brought forward a policy grievance, which is the subject of this case.  The Union argued that the employer was essentially asking its members for a second medical certificate outside the circumstances prescribed by the collective agreement. The University argued that they were justified in asking for supplementary information because it was exercising rights and responsibilities that extended beyond the sick leave clauses into other clauses (such as management rights, discrimination and health and safety clauses).  

Issue

• Was the university acting in contravention of the Collective Agreement when it requested further a second medical certificate from the members in the name of human rights, health and safety and managerial rights?

Decision

• Yes

 Reasoning

“The collective agreement here contains a comprehensive process to deal with sick leave. This specific language cannot be sidestepped in the way the employer has attempted to do here. Nor is the employer assisted by the general provisions in other parts of the collective agreement, including the management rights clause, health and safety language, the non-discrimination clause or general provisions about absences, which cannot override the specific provisions related to sick leave” (28)