September 5, 2002
25.4.136
The employee grieved the employer's decision to deny the benefits of FSD 47 – Leave for Post-Attributable Injury or Illness, for the period from October 1998 to August 1999. The grievor requested that the employer authorize leave for post-attributable injury and illness and to reinstate her annual and sick leave credits for the period from October 1998 to August 1999.
Following a three-year assignment in Africa, the grievor used approximately 200 days of annual and sick leave credits between October 1998 and August 1999 as a result of absence due to illness. The grievor contested the employer's decision not to grant her leave for post-attributable injury or illness in accordance with FSD 47. During her overseas assignment the grievor was subject to an Interchange agreement which incorporated the Foreign Service Directives.
The Bargaining Agent representative started his presentation by referring to one of the underlying principles of the Foreign Service Directives, as follows:
”The principle of comparability recognises that insofar as is possible and practicable employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada.”
It was the Bargaining Agent representative's position that the grievor has been penalised because of service overseas. The non-recognition of the grievor's status as an employee under the FSDs caused many problems, such as the denial of a special passport, the refusal of medical examinations for the grievor and the grievor's family prior to departure, and problems with benefits administration. Most important was the refusal of a medical examination upon return to Canada in July 1998, in accordance with FSD 38 - Preventive Medical Services Expenses, followed by the refusal to authorise FSD 47 - Leave for Post-Attributable Injury or Illness.
The Bargaining Agent representative noted that a medical examination could have identified immediately if the employee's absence was due to an illness which was not endemic to Canada. The grievor could have been covered under FSD 47, and, after 26 years of service, would not be in a situation with no sick and annual leave credits.
Unfortunately, it was only in September 1999, that the grievor found out about the existence of FSD 47. The Bargaining Agent representative stated that according to the employer and all medical opinions, it was recognised that the grievor had been exposed to tuberculosis (TB), an illness which is not endemic in Canada, and consequently would have been entitled to the provisions of FSD 47. The refusal originates from medical opinions of the employer's doctor on secondary effects of the anti-biotic treatment. The Bargaining Agent representative noted that other medical opinions from Canadian doctors who treated the grievor confirmed that the grievor suffered from negative secondary effects and prescribed an absence from work for the period in question.
The Departmental representative noted that FSD 47 - Leave for Post-Attributable Injury or Illness clearly describes the application of this directive. The employer's decision to grant or not grant leave is addressed based on Health Canada's medical evaluation. The employer submitted the grievor's file to Health Canada twice and both times Health Canada concluded that the grievor was not entitled to the provisions of FSD 47 - Leave for Post-Attributable Injury or Illness, while recognising that the grievor had been preventively treated for exposure to a infected person overseas. The Health Canada doctor concluded that the grievor's absence due to illness was not attributable to exposure to tuberculosis while serving outside Canada. The Departmental representative reminded the Committee that the CSST reached the same conclusion in September 1999.
The Departmental representative noted that the grievor's file was also forwarded to the Occupational Health and Safety Program Medical Advisory Committee. The conclusion of this Committee was clear and without ambiguity: the grievor, from a medical point of view, was not entitled to the provisions in FSD 47- Leave for Post-Attributable Injury or Illness.
The Executive Committee considered and agreed with the Foreign Service Directives Committee report that the grievor had been treated within the intent of the Directive. It had not been demonstrated that the absence due to illness was post-attributable as specified in FSD 47 - Leave for Post-Attributable Injury or Illness. Therefore, the grievance was denied.