April 25, 2013
27.4.108
Background
The grievor's workplace is designated as an isolated post under the Directive. To access specialized medical or dental appointments, the grievors have to travel out of town.
To apply for leave and reimbursement of costs under the Directive, the employer requests to have a medical certificate completed by the physician or the dentist. Usually, the physicians charge $20 per form.
The grievors are grieving the decision of the employer to not reimburse the cost of the medical certificate and to continue to require it without reimbursing the associated costs.
Bargaining Agent Presentation
The Bargaining Agent representative asserted that the non-payment of the medical certificate is in direct contradiction of the intent of the IPGHD. The Bargaining Agent specified that the intent is to ensure that at no time are there any advantages attributed to those living on the outside of an isolated post versus those who reside within.
The Bargaining Agent representative argued that the requirement of a medical certificate should be covered under "travelling expenses", as allowed for under article 3.1.2. The Bargaining Agent representative's understanding is that the travelling expenses must be interpreted in reference with either the Travel Directive, or the Relocation Directive (as referred to in the definition of "travelling expenses"). The requirement of a medical certificate is linked to travel to an outside source for medical attention/intervention.
The Bargaining Agent representative indicated, that with respect to the principles of trust, flexibility, respect, valuing people, and with regard to modern-day travel practices, the Committee needs to review the application of these principles in this case and decide whether they have been taken into account or properly applied. He maintained that it was not reasonable to continue disallowing the payment of expenses related to medical certificates for travelling purposes, nor was the decision not to compensate employees for their out of pocket expenses in line with modern day practices. Furthermore, the Bargaining Agent representative referred to the PSLRB's Cyr decision, noting that the adjudicator ordered the Department to reimburse the grievor for the cost of her medical certificate.
The Bargaining Agent representative noted that unless there are reasons to believe that a medical certificate is fraudulent or for another purpose, the employer should pay for it, as it is at their request.
In conclusion, the Bargaining Agent representative noted that having to provide medical certificates for travel puts the grievors out of pocket, and there is no personal gain for the employees if the medical certificate were to be reimbursed. Therefore, it was requested that the Committee redress the wrong by allowing the grievance and by making the necessary systemic changes in the Directive as needed.
Departmental Presentation
The Departmental representative maintained that the IPGHD was applied correctly by management when it refused to reimburse the grievors for the physician's fees associated with the completion of the form, as Article 3.2.2 stipulates:
"when employees or their dependants obtain medical or dental treatment at the nearest location in Canada where adequate medical or dental treatment is available, as determined by the attending medical or dental practitioner, and they satisfy their deputy head by means of a certificate of the attending medical or dental practitioner that the treatment:
a. was not elective;
b. was not available at their headquarters; and
c. was required without delay;
the deputy head shall authorize reimbursement of the transportation and travelling expenses in respect of that treatment."
Further to this, a Communiqué was published, effective October 21, 2011, clarifying the Directive. It is outlined that all expenses incurred once at the location, except for commercial accommodation, meal expenses, and the daily incidental allowance, are the employee's responsibility. The Employer representative also presented several cases jurisprudence to support her case for non-payment, namely Trépanier, Brunelle, Haldimand-Norfolk Police Services Board, York Region Roman Catholic Separate School Board, and Cyr.
The Departmental representative concluded that the request for the production of the medical certificate and the refusal to pay for the production of the medical certificates were made within the intent of the Directive as well as in accordance with and in consideration of article 3.1. In co-developing the Directive, the parties specifically considered the issue of permitting the employer to request a medical certificate. Also, the parties have chosen not to include a provision that would compel the employer to pay for the production of such a certificate. In the employer's view, absent a provision in the Directive, or the relevant collective agreements, compelling the employer to pay for the production of the medical certificate, the employer is not liable for such payment. It was suggested that should the Bargaining Agent wish that the employer be liable for such payment, discussions should occur at the next cyclical review of the Directive.
Executive Committee Decision
The Executive Committee noted that the Isolated Post and Government Housing Committee could not come to an agreement on the intent of the IPGH Directive in this case. The Executive Committee considered the Committee's report and could not reach consensus either. As such, the Committee reached an impasse.