ONTARIO LABOUR RELATIONS BOARD

ONTARIO LABOUR RELATIONS BOARD 2753-04-ES; 2754-04-ES FAG Bearings Limited, Applicant v. Richard Francis and Director of Employment Standards, Responding Parties. Employment Practices Branch File No. 60008640 BEFORE: Caroline Rowan, Vice-Chair. APPEARANCES: John Skinner, Al Beck, Mario Tiano and Jamie Nigro appeared for the applicant; Richard B. Francis, Susan Zimmerman-Francis, Rudy Korver and Heather Dietrich appeared for the responding party; no one appeared for the Director of Employment Standards. DECISION OF THE BOARD; September 27, 2005 1. Board File No. 2753-04-ES is an application under section 116 of the Employment Standards Act, 2000 (the Act ) for review of Order to Pay No. 14416 in the amount of $12,730.08 filed by FAG Bearings Limited, which is now called Schaeffler Canada Inc. ( the employer or the Company ). Board File No. 2754-04-ES is the Company s application for review under section 116 of the Act of an Order to Reinstate the responding party employee, Richard Francis ( Francis ). 2. The Orders in issue were made after the Employment Standards Officer found that Mr. Francis employment with the Company was terminated on or about August 3, 2004 at least in part due to his eligibility to take an emergency leave in April 2004, contrary to sections 50 and 74 of the Act. Factual Background 3. Mr. Francis commenced employment with the Company in 1999 and worked as a machine operator on a shift rotation at the Company s Stratford location. An employee association represents employees, including Mr. Francis, at that location. The Company has established a written disciplinary policy, which provides for a four step progression for any infraction of a company rule or policy and, more generally, provides that an employee s employment will be terminated in the event of a fourth disciplinary incident in a rolling twelve (12) month period. 4. Mr. Francis employment was terminated on or about August 3, 2004 following a fourth incident, which occurred on July 28, 2004. At that time, Mr. Francis was found taking an unscheduled break approximately fifteen minutes prior to the end of his shift. Mr. Francis acknowledges that he took an unscheduled break on that day and that he understood that he was not permitted to do so. He explained that he did it because he had a headache and wanted to get some air. Although Mr. Francis knew that the proper procedure in these circumstances is to report to the Company s first aid room, he states that he did not do so because it was close to the end of his shift. When Mr. Tiano, Mr. Francis leader, approached Mr. Francis about whether he was working a ten (10) hour shift (and would therefore be entitled to a further break), Mr. Francis

- 2 - advised him that he was not and explained only that he was resting. Later, at the termination meeting held on August 3, 2004, Mr. Francis provided the explanation that he had gone outside because he had a mild headache. Mr. Francis employment was terminated as a result of this fourth incident in a rolling twelve (12) month period in accordance with the Company s policies and procedures. 5. Mr. Francis had been subject to discipline on a number of earlier occasions since he commenced employment with the Company. However, as noted, under the Company s discipline policy, only discipline within the preceding twelve (12) month period is considered when assessing a disciplinary response. The first disciplinary notice issued in the twelve (12) month period preceding his termination occurred on November 11, 2003. That disciplinary notice was given because of Mr. Francis failure to report his absence from work on November 5 and 6, 2003. When that notice was issued, it was his third written warning in a rolling twelve (12) month period and therefore resulted in a two (2) day suspension and a warning that a further written warning before December 2, 2003 would result in termination. Mr. Francis did not appeal the decision, despite having been advised of his right to do so at the time. He does not take issue with the discipline imposed on that occasion. 6. Mr. Francis also does not take issue with the next disciplinary notice given to him on December 2, 2003 for an absence on November 28, 2003. On that date, Mr. Francis left a message that he was unable to report for work because his girlfriend had a job interview and he was unable to find childcare. At the time of Mr. Francis termination in August 2004, this disciplinary notice was his second written warning in the preceding twelve (12) month period, but was his third written warning in a rolling twelve (12) month period at the time it was imposed. As such, that incident also resulted in a two (2) day suspension being imposed in accordance with the Company s discipline policy. That disciplinary notice provides that another written warning before April 1, 2004 will lead to his termination. A member of the employee committee was present when the December 2, 2003 discipline was imposed for his absence. Mr. Francis again did not appeal that discipline despite having been advised of his right to do so. 7. In addition to imposing a two day suspension on December 2 nd, the Company requested that Mr. Francis sign a letter dated December 2, 2003, which advised him that he was required to follow the guidelines set out therein, failing which discipline would result. Mr. Francis signed that letter dated December 2 nd, 2003, which states: 1. When ever you are absent due to your medical condition (back) or any other medical absences you are required to call the FAG absenteeism line at extension 554 and also call the health and safety at extension 269 every day you are away from work. A doctor s note is required for each medical absences [sic] until further notice. Mr. Francis confirmed that he understood that he was required thereafter to provide a doctor s note for each medical absence. 8. The third disciplinary notice issued in April 2004 is at issue in this proceeding. That disciplinary notice gave rise to the Employment Standards Officer s finding that the Company violated the emergency leave provisions of the ESA when Mr. Francis was suspended for two (2) days on Monday, April 19, 2004 (the April 19 Discipline ). Mr. Francis served his two (2) day suspension on April 20 and 21, 2004. According to the Company, this disciplinary suspension was imposed as a consequence of Mr. Francis failure to provide a medical certificate by Monday, April 19, 2004, for an absence due to illness on the preceding Monday, April 12, 2004.

- 3-9. There is no dispute that Mr. Francis left work on Monday, April 12, 2004 prior to the end of his shift and that he advised his setter prior to doing so (which is the proper procedure in the absence of a leader or an assistant manager). Mr. Francis testified that he left early because he was experiencing severe low back pain. Mr. Francis noted that his back problems are well documented both by his family physician and by the Company s first aid unit. When he returned to work the following day on Tuesday, Mr. Tiano told him he was going to need a doctor s note for his absence on Monday. Mr. Francis agreed in cross-examination that he understood that he was required to provide a note upon his return to work in view of the Company s policies and the December 3, 2003 letter, which he had signed. Mr. Francis agreed and then added that yet I was allowed to continue on with my shift. 10. The evidence of Mr. Tiano and that of Mr. Nigro, an assistant manager of the Company to whom Mr. Tiano reports, concerning the events leading up to the April 19 Discipline differs in some respects from that of Mr. Francis. In assessing the conflicting evidence in this case and arriving at my findings of fact, I have considered all of the evidence and have taken into account the demeanour of the witnesses, the clarity of their evidence, the witnesses apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all the circumstances having regard to the evidence as a whole. 11. Mr. Tiano testified that Mr. Francis told him on Tuesday, April 13 th that he would have the required doctor s note by Friday of that week. Mr. Francis however testified that he had only indicated to Mr. Tiano that he would try to acquire a doctor s note by the end of the week. On Wednesday April 14 th, Mr. Tiano issued an investigation notice in accordance with the Company s discipline policy, which provides written notification that an ongoing investigation is being conducted to determine if possible discipline is warranted. In the present case, the investigation notice referred to Mr. Francis absence on Monday, April 12, 2004. Mr. Francis understood that that investigation notice meant that he had to get the doctor s note and that the consequences of not getting one would be further discipline. 12. On Friday, April 16, 2004, Mr. Nigro met with his manager and with Ms. Patricia Coulthard, a human resource leader employed by the Company, to discuss the possibility of imposing discipline. Discipline was being contemplated at that time because Mr. Francis had neither provided Mr. Tiano with a doctor s note that day, nor approached him with an explanation for why he needed more time to do so. At this meeting, they determined that they would impose discipline if Mr. Francis did not either produce a doctor s note by the following Monday or indicate that he had a doctor s appointment scheduled. Mr. Francis was not advised of this decision. 13. The following Monday morning, management did advise Mr. Rudy Korver, a member of the employee committee, that management was contemplating imposing discipline in relation to the investigation notice issued the week before. Mr. Korver promptly informed Mr. Francis of this that same morning at around 8:30 a.m. or 9 a.m. A discipline meeting was in fact held toward the end of Mr. Francis shift that day at or around 2:45 p.m. At that time, Mr. Francis was disciplined for failing to provide the required doctor s note. Mr. Korver confirmed that the reason provided by management for the imposition of discipline was because of Mr. Francis failure to provide the requisite doctor s note explaining his absence within a reasonable time - not because Mr. Francis took time off on April 12 th.

- 4-14. It is also common ground that Mr. Korver indicated at the discipline meeting on April 19, 2004 that management should give Mr. Francis a couple of more days to get a doctor s note, to which Mr. Nigro responded that Mr. Francis had had lots of time to set an appointment over the prior week. Mr. Francis also did not dispute Mr. Nigro s evidence that Mr. Francis then got loud and was swearing. Mr. Francis was told if he continued to do so he would get a warning for insubordination. At the conclusion of the meeting, Mr. Francis signed the discipline notice and was advised of his right to appeal the decision. 15. The other evidence concerning precisely what transpired at the discipline meeting held on April 19, 2004 was conflicting. According to Mr. Tiano and Mr. Nigro (who were both present at this meeting), when they asked Mr. Francis why he had not called the doctor to set up an appointment, Mr. Francis explained that on Wednesday, the nurse is the only person in the office so there is no point calling the office because the doctor is not there and that he tried to call all day long on Thursday but the line was busy at his doctor s office. When Mr. Nigro asked Mr. Francis about what he had done to get the doctor s note on Friday, Mr. Francis responded that he did not call the doctor s office that day because he was busy doing other things. Mr. Francis did not explain at the meeting what those other things were. 16. While Mr. Francis generally accepts that this was the explanation he provided at the meeting and that Mr. Nigro s notes to this effect are accurate, he did not recall saying that only a nurse is in on Wednesdays. Instead, he suggested at the hearing that the reason he had not contacted his doctor s office on Wednesday was because his doctor s office is closed that day. Mr. Francis also explained to the Board at the hearing that the other things he was busy doing on Friday morning before his shift involved comforting his common-law spouse, who had received a telephone call that morning that her grandmother was gravely ill. According to Mr. Francis, the telephone at his home was tied up on and off all morning and although he could have used the phone to call his doctor in between, he did not do so because he was pre-occupied with comforting his spouse. Mr. Francis also explained that he had not provided this detail about his activities on Friday morning at the discipline meeting because the illness of his spouse s grandmother was a very personal issue. 17. The most significant conflict concerning what transpired at that discipline meeting involves Mr. Francis contention that he was denied access to a phone to call home to get the note. According to Mr. Francis, he said: if you let me call home it might be available. Mr. Tiano and Mr. Nigro both dispute that Mr. Francis ever said that. They agree only that Mr. Korver asked that Mr. Francis be given more time to acquire a note and that they indicated in response that Mr. Francis had already had ample time. 18. At the hearing, Mr. Francis explained that he believed that a note might be ready based on the fact that he had asked his common law spouse, Ms. Heather Dietrich, the night before (on Sunday) to contact his doctor s office about his absence the previous Monday, April 12 th.. Ms. Dietrich also testified and provided corroborating evidence to this effect. She indicated that she had called Dr. Flowers office the next morning at around 11 a.m. and had told the nurse that Mr. Francis needed to see the doctor or needed to acquire a doctor s note concerning his back problem. According to Ms. Dietrich, the nurse called back approximately an hour later to say that there was a note ready to be picked up. 19. According to both Mr. Francis and Ms. Dietrich, Mr. Francis had not yet informed Ms. Dietrich of the investigation notice issued the week earlier. Mr. Francis also did not inform Ms. Dietrich when he returned home from work shortly after 3 p.m. on Monday, April 19 th that he had just been suspended for two days because of his failure to obtain the doctor s note.

- 5 - According to their version of events, Mr. Francis learned that a note was waiting for him at his doctor s office when he arrived home from work that Monday, at which time Ms. Dietrich told him about the nurse s telephone call. Mr. Francis states that he promptly called Mr. Tiano at work and told Mr. Tiano that he had acquired a note. According to Mr. Francis, Mr. Tiano responded that it was too late. Ms. Dietrich also testified that she had overheard Mr. Francis make that call to Mr. Tiano and in particular that she had heard Mr. Francis say Hi, Mario. When Mr. Francis got off the telephone with Mr. Tiano, he left the house and went to pick up the note that was waiting for him at his doctor s office. Mr. Francis did not however speak to Mr. Korver about the note until Mr. Francis returned to work two days later after serving his suspension. 20. Mr. Tiano disputes that Mr. Francis ever telephoned him at work after the discipline meeting that Monday. 21. Having carefully considered all of the evidence in this case, the Board prefers the evidence of Mr. Nigro and of Mr. Tiano to that of Mr. Francis and of Mr. Korver concerning what happened at the discipline meeting on Monday, April 19 th. The Board also accepts Mr. Tiano s evidence that Mr. Francis did not contact him by telephone that Monday evening. While Mr. Francis version of events was to some extent corroborated by the evidence of his common law spouse, their version of events is not, in my view, consistent with what is reasonable and probable in all the circumstances. 22. It firstly seems unlikely, in all the circumstances, that Mr. Francis would have waited until the discipline meeting held at 2:45 p.m. that day to attempt to call home to see if a note was available if he had, as he claimed, asked Ms. Dietrich the night before to contact his doctor s office the next day. This seems improbable given that Mr. Korver had alerted Mr. Francis early that morning to the fact that management was contemplating following through with discipline in connection with the investigation notice and that the imposition of discipline was therefore imminent. Mr. Francis could provide no explanation for why he had not attempted to contact Ms. Dietrich at his scheduled break or during his subsequent lunch break between 12:00 and 12:30 p.m. to see if she had obtained the note. According to Ms. Dietrich s and Mr. Francis version of events, if he had done so, he would have learned prior to the discipline meeting that a note was available for pick up that day. Mr. Francis could also offer no explanation for why he had said nothing prior to the discipline meeting to either Mr. Korver, or Mr. Tiano or anyone else in management about the possibility that he could obtain a doctor s note that day. Mr. Francis also did not explain why he did not attempt to contact his doctor s office personally that day during his scheduled breaks. 23. In addition, although Mr. Korver suggested in his evidence that Mr. Francis had been denied the opportunity to see if a note might be available, his evidence on this point was vague and also somewhat ambiguous. Mr. Korver testified that Richard alluded to the fact that if he was given a chance to contact home that there was the possibility that there was a doctor s note there. Mr. Korver also acknowledged that Mr. Francis did not suggest at the meeting that he had seen his doctor. 24. Further, the reliability of Mr. Korver s recollection about the precise details of discussions in that time frame, which was a year prior to his testimony, is in doubt given that the evidence does not suggest that Mr. Korver took any notes of those discussions. Mr. Korver in fact acknowledged at the hearing being unable to recall precisely what was said during his conversation with Ms. Coulthard (which conversation occurred two days after the discipline meeting and is referred to below) given the passage of a year and the fact that he had not taken

- 6 - any notes of that meeting. There is similarly no evidence to suggest that Mr. Korver took notes of the discipline meeting on April 19 th whereas Mr. Nigro did take notes, which were entered into evidence. In all the circumstances, I find that the recollections of Mr. Tiano and of Mr. Nigro of what occurred at the discipline meeting, which are consistent with Mr. Nigro s notes taken shortly after that meeting, to be more reliable concerning precisely what was said. As such, while I accept that Mr. Korver, and perhaps also Mr. Francis, asked at the meeting that Mr. Francis be given more time to produce a doctor s note, I find that Mr. Francis did not request an opportunity to call home to see if a note might already be available. 25. I also accept that Mr. Francis offered the explanation at the discipline meeting that he had not attempted to contact his doctor s office the prior Wednesday because only the nurse is in that day as Mr. Nigro s notes indicate. Those notes also indicate that Mr. Nigro then asked Mr. Francis why he did not call her to make an appointment. Mr. Francis offered this explanation at the discipline meeting before he learned that he would be able to obtain a doctor s note from the nurse without any requirement to see his doctor. 26. As noted, I find that Mr. Francis did not attempt to contact Mr. Tiano by telephone on April 19 th as he claims. Mr. Francis provided no reasonable explanation for not having attempted to contact Mr. Korver on Monday after that alleged telephone call. He explained that he [Mr. Francis] obviously did not think it was that important and that he believed that he would have to serve his two (2) day suspension in any event. There is further no evidence to suggest that Mr. Francis ever told Mr. Korver about that alleged telephone call to Mr. Tiano on April 19 th, even though one might reasonably expect him to have done so when he provided Mr. Korver with the note dated April 19 th upon his return to work on April 22 nd. 27. That same day, Mr. Korver took the note to Ms. Coulthard, a human resource leader, in an effort to have the discipline rescinded. Mr. Korver stated that he did not give Ms. Coulthard a copy of the note, because she did not want to see it. Ms. Coulthard testified that Mr. Korver never showed her a note at that time. He merely alluded to the existence of one. Ms. Coulthard responded that the note was not the issue anymore and that the issue was that it had taken too long to get the note. Ms. Coulthard also testified that she has no authority to grant appeals from suspensions. Mr. Beck, the Company s Manager of Human Resources to whom Ms. Coulthard reports, has that authority. 28. Mr. Beck, Mr. Tiano and Mr. Nigro all testified that they had never seen nor heard of the existence of the note dated April 19, 2004 with Mr. Francis doctor s signature stamped on it until after this application for review was filed. They also testified that they were unaware of any steps taken by Mr. Francis or any representative of the employee committee to appeal this suspension. It therefore appears that Ms. Coulthard did not inform Mr. Beck, Mr. Tiano or Mr. Nigro about her conversation with Mr. Korver, which she did not consider to be an appeal of the suspension. Whether or not Mr. Korver s conversation with Ms. Coulthard can be construed as a formal appeal under the Company s discipline policy, there appears to be no dispute that that discussion took place and that Mr. Korver did not thereafter take up the issue with Mr. Beck, whom he understood to have more authority than Ms. Coulthard in respect of such matters. Decision 29. The issue to be determined in this case is whether Mr. Francis dismissal from employment in August 2004 was, in any part, because Mr. Francis sought compliance with, or exercised a right under, the Act contrary to section 74 thereof when he sought to take an emergency leave day on April 12, 2004, which led to the third disciplinary notice.

- 7-30. In the present case, there can be no doubt that the Company s decision to terminate Mr. Francis was related in part to the discipline imposed on April 19, 2004 (the April 19 th discipline ), since his dismissal was the result of his having had four disciplinary incidents in the prior twelve month period, of which the April 19 th discipline was one. It therefore remains to be considered whether or not the April 19 th discipline represents a penalty for Mr. Francis having exercise[d] a right under this Act. The right in issue in this case is Mr. Francis claimed right to take an emergency leave (provided for under Part XIV of the Act) for personal illness or injury on April 12, 2004. 31. In the circumstances, in order for the April 19 th discipline to represent a penalty because the employee exercised a right under Part XIV of the Act, the Board must find both that (1) Mr. Francis had the right to take an emergency leave day on April 12, 2004; and that (2) the April 19 th discipline was imposed at least in part because Mr. Francis exercised that right or took that leave. 32. In the present case, the Company acknowledged that Mr. Francis was entitled as at April 12, 2004 to take an emergency leave day under the terms of section 50 of the Act for any of the reasons enumerated therein, since he had not yet taken all ten (10) such days that year contemplated under the Act. The Company however took no position on whether Mr. Francis claim to having been ill on April 12, 2004 was legitimate such that he had the right to take an emergency leave day on April 12, 2004 as he claimed. The Company notes that that was not the issue that had led to the imposition of discipline. 33. Instead, the focus of the Company s submissions was directed to the reason discipline was imposed on April 19 th, which, according to the Company, was in no way related to the fact that Mr. Francis had taken or purported to take an emergency leave day on April 12, 2004. The Company argues that the April 19 th discipline was imposed solely because of Mr. Francis failure to provide a medical certificate contemplated under subsection 50(7) of the ESA in a timely fashion. The Company points out that under the terms of subsection 50(7) of the Act it is entitled to require an employee who takes an emergency leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave and that it was reasonable to require Mr. Francis to produce a doctor s note by the Monday following his absence a week earlier or to have at least made a doctor s appointment by that date. The Company therefore suggests that it did not breach the Act when it disciplined Mr. Francis for failing either to obtain a doctor s note by Monday, April 19 th (when he had undertaken to provide it by the end of the preceding week) or to set a doctor s appointment. 34. Mr. Francis counters that he should have been given more time to produce the note. He contends that the timeframe within which he obtained the note dated April 19, 2004 from his doctor s office was reasonable, given that he obtained it within a week of his absence on April 12, 2004. 35. The relevant provisions of the Act read as follows: Emergency Leave 50. (1) Emergency leave 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:

- 8-1. A personal illness, injury or medical emergency. 2. The death, illness, injury or medical emergency of an individual described in subsection (2). 3. An urgent matter that concerns an individual described in subsection (2). (2) Same Paragraphs 2 and 3 of subsection (1) apply with respect to the following individuals: 1. The employee s spouse or same-sex partner. 2. A parent, step-parent or foster parent of the employee, the employee s spouse or the employee s same-sex partner. 3. A child, step-child or foster child of the employee, the employee s spouse or the employee s same-sex partner. 4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee s spouse or same-sex partner. 5. The spouse or same-sex partner of a child of the employee. 6. The employee s brother or sister. 7. A relative of the employee who is dependent on the employee for care or assistance. (3) Advising employer An employee who wishes to take leave under this section shall advise his or her employer that he or she will be doing so. (4) Same If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it. (5) Limit An employee is entitled to take a total of 10 days leave under this section each year. (6) Leave deemed to be taken in entire days If an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken one day s leave on that day for the purposes of subsection (5). (7) Evidence An employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave. PART XVIII REPRISAL 74. (1) Prohibition No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so, (a) because the employee, (i) asks the employer to comply with this Act and the regulations, (ii) makes inquiries about his or her rights under this Act, (iii) files a complaint with the Ministry under this Act, (iv) exercises or attempts to exercise a right under this Act, (v) gives information to an employment standards officer, (vi) testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,

- 9 - (vii) participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act, (viii) is or will become eligible to take a leave, intentds to take a leave or takes a leave under Part XIV; or (b) because the employer is or may be required, because of a court order or garnishment, to pay to a third party an amount owing by the employer to the employee. (2) Onus of proof Subject to subsection 122(4), in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer. 36. In Casino Rama Services Inc., [2004] O.E.S.A.D. No. 1385, the Board reviewed the purposes and the policy underlying the introduction of the emergency leave provisions in section 50 of the Act, as follows: 13. Section 50 is designed to permit employees who work for an employer of a certain size (50 or more employees) to take leaves of absence for urgent and personal/family reasons or needs. The provision creates an employee entitlement and an employer obligation which arises from the fact of the employment relationship. In this respect, it is no different from any of the other long standing entitlements or obligations created by the ESA, whether they be entitlements to severance pay, vacation pay, pregnancy and parental leave or notice of termination. 17. There would appear to be little dispute about the general government policy underlying the introduction of section 50. The government clearly intended to amend the ESA to provide individual employees with a certain quantity of days to use for personal and family emergencies. The employee right to take a leave and employer obligation to provide a leave contemplated under section 50 is limited firstly to those personal/family reasons or needs enumerated under subsection 50(1) 1., 2.,and 3., and as further defined in subsection 50(2). The entitlement to take a leave for those specified reasons is also restricted under subsection 50(5) of the Act to a total of 10 days each year. 37. The employee right to emergency leave days and the employer obligation to provide them created by section 50(1) is counterbalanced by the employer right and employee obligation set out under subsection 50(7) of the Act. Under that latter subsection, the employer right is to require an employee who takes a leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave. The employee obligation is, in turn, to provide such evidence. This provision enables an employer, if it so chooses, to verify that the employee is, in fact, entitled to the leave. Discipline imposed only as a consequence of an employee s failure to provide the required evidence would not, in the Board s view, be a breach of section 74 of the Act, since such discipline is not related to the exercise of an employee right. Rather, it is related to the failure to comply with an employee obligation. 38. However, the employee obligation to provide, evidence reasonable in the circumstances that the employee is entitled to the leave provided for under subsection 50(7) of the Act contemplates both that the evidence required itself be reasonable in the circumstances and that the timelines for providing it also be reasonable in the circumstances. It would otherwise

- 10 - entirely defeat the purposes of both the employee right created under subsection 50(1) of the Act and the employer right created under subsection 50(7) of the Act if the requirement of reasonableness did not attach to the timelines required by an employer for providing the evidence as well as the content and nature of the evidence provided. 39. On the one hand, the right to the leave would be defeated if an employee who is legitimately entitled to an emergency leave day could be disciplined for failing to comply with an unreasonable time frame set by his/her employer. On the other hand, an employer s right to verify entitlement to a leave would also be defeated if it could not require that the requested evidence be provided within a reasonable period of time. As such, where an employee fails to provide the requested information within a reasonable period of time, an employer can legitimately discipline the employee for that failure without such discipline being construed as a penalty for taking the emergency leave day itself (i.e. for exercising a right under the Act). What constitutes a reasonable period of time will further depend on the individual circumstances. 40. In the present case, the first issue to be determined is whether the April 19 th discipline was, in any way, related to Mr. Francis having taken an emergency leave day on April 12 th or whether it was, as the Company alleges, solely because of Mr. Francis failure to comply with the Company s request contemplated under subsection 50(7) of the Act that he provide evidence reasonable in the circumstances that he was entitled to the leave. If the Board finds that the April 19 th discipline was at least in part related to the fact that Mr. Francis took an emergency leave day on April 12 th, the Board would then have to consider whether Mr. Francis was in fact entitled to an emergency leave for personal illness on April 12 th. Was the April 19 th Discipline in any way related to the fact that Mr. Francis took an emergency leave day on April 12, 2004? 41. In the present case, the evidence before the Board makes clear that the April 19 th discipline was imposed solely because of Mr. Francis failure to make any apparent effort either to obtain a doctor s note or to set a doctor s appointment by the time of the discipline meeting one week later. The evidence indicates that it was not imposed because of Mr. Francis absence on April 12 th per se (despite the fact that the Discipline Investigation Notice and the Discipline Notice refer to his absence on that day). The Company s witnesses were both consistent and credible in this regard. As noted above, Mr. Korver also confirmed in evidence that the reason given for the April 19 th discipline at the discipline meeting was because of Mr. Francis failure to comply with management s request that he provide evidence to substantiate his absence, and not because Mr. Francis had been absent on April 12 th. 42. As noted, a penalty imposed for failing to substantiate an emergency leave absence in a timely way will not amount to a penalty for exercising the right to an emergency leave, if the time afforded the employee to provide the requested evidence is reasonable in the circumstances. In Elkay Canada Ltd., [2004] O.E.S.A.D No. 1271, the Board noted that, in assessing the reasonableness of the employer s disciplinary response, what is relevant is the information that the employer has before it at the time it makes its determination and not information brought to its attention after the fact. In that case, the Board considered whether the employee in question was terminated for having taken an emergency leave to which he was entitled. The Board found, based on the evidence before it, that the employee was not in fact entitled to an emergency leave day on the day in question and therefore that the termination of his employment was not a violation of the Act. In reaching that conclusion, the Board commented at paragraph 31:

- 11-31. It is the information that an employer has before it at the time that the employer makes it s [sic] determination as to whether an employee is entitled to an emergency leave day that is relevant. Information that is brought to the employer s attention after the fact does not render the initial decision of the employer incorrect. Accordingly, it is incumbent upon an employee to inform the employer of all of the reasons why the employee needs to be or was absent. Based upon this, an employer can make an informed decision. Although the Board s comments are made in the context of determining whether it was reasonable for the employer to consider that the employee was not entitled to an emergency leave day, it is similarly true that what is relevant in determining whether it was reasonable for the employer to consider that the employee had had sufficient time to provide the evidence requested is the information that the employer had at the time it made its decision to discipline. 43. In view of my findings of fact set out above, the information which the Company had at the time that it imposed discipline was that Mr. Francis had been advised in December 2003 that he was required to produce a doctor s note for each subsequent absence. Although it was the Company s expectation, and Mr. Francis understanding, that he was required to provide that note upon his return to work on Tuesday April 13 th, he was allowed to continue with his shift that day. Upon his return to work on Tuesday, his supervisor verbally reminded him that he had to provide a doctor s note to support his absence and Mr. Francis undertook to produce the requested note by the end of the week. On Wednesday, Mr. Francis was issued an investigation notice, which Mr. Francis understood meant that discipline would result if he did not provide the note. Mr. Francis also acknowledged understanding that the investigation notice meant that the consequences of not having the note would be discipline. Notwithstanding this, Mr. Francis failed to produce a note by the end of that week and failed to offer any explanation for not having one. 44. The Company s representatives remained open, even at the discipline meeting on April 19 th, to providing an extension of time if Mr. Francis explanation for not producing the note up to that date warranted it. The Company s representatives would have been prepared to give him more time if he had at least scheduled a doctor s appointment, in which case they would have had a definite date. Unfortunately for Mr. Francis, his explanation at the discipline meeting made it clear that he had had ample time to try to obtain a note and had made little effort to do so despite the issuance of the investigation notice the preceding week. 45. In the Board s view, Mr. Francis explanation at the discipline meeting for not having the note did not warrant an extension of time. As noted above, Mr. Francis provided no explanation for not having tried to contact his doctor on the Tuesday after his absence. He also explained that on Wednesday the nurse is the only person in the office so there is no point calling the office because the doctor is not there. This does not, however, explain why he did not attempt to call to make an appointment. Mr. Francis offered the explanation that on Thursday he attempted to call but the line was busy. (Even if it were appropriate to consider his further elaboration provided at the hearing for not contacting his doctor s office on Thursday, Mr. Francis indicated at the hearing that he tried calling only on four occasions that day prior to leaving home for work at around 2 p.m.) The only explanation offered at the discipline meeting for not having made any effort to contact his doctor on Friday was that he was doing other unspecified things. 46. The explanation Mr. Francis offered for the first time at the hearing - that Mr. Francis was pre-occupied with comforting his common law spouse - does not render unreasonable the Company s assessment that Mr. Francis had had ample time to obtain a note or set a doctor s

- 12 - appointment. That assessment was by necessity made based on the information provided by Mr. Francis at that time and is one with which the Board agrees. 47. In considering the effect if any of Mr. Korver s conversation with Ms. Coulthard on April 21 st upon Mr. Francis return from serving his suspension, the Board firstly notes that the evidence does not make clear that Ms. Coulthard as a human resource leader had any management authority and therefore that anyone in management was actually aware of the existence of the April 19 th doctor s note until well after Mr. Francis termination of employment in August 2004. Mr. Beck, Mr. Tiano and Mr. Nigro were all unaware of the existence of that note until the Employment Standards Officer brought its existence to their attention after Mr. Francis filed his employment standards claim. However, even if the existence of that note was brought to the attention of management on April 21 st, at best it shows that Mr. Francis promptly took action to obtain a doctor s note only after having been disciplined for making no reasonable efforts to do so for a week, and despite the warning provided by the investigation notice issued to him the previous week. 48. In all the circumstances of this case, the Board is satisfied that the Company afforded Mr. Francis a reasonable amount of time to comply with its request contemplated under subsection 50(7) of the Act to provide a doctor s note to substantiate his absence on April 12 th and that the discipline imposed on April 19 th cannot be construed as a penalty for exercising his claimed right to take an emergency leave on April 12 th. Instead, the evidence establishes that the April 19 th discipline was imposed because of Mr. Francis failure to make any reasonable effort to obtain the requested doctor s note in the week after his absence and not because of his absence per se. 49. Having regard to all the evidence before it, the Board finds that the Company did not violate sections 50 and 74 of the Act, as alleged. No other grounds were raised to suggest that the Company had violated the Act in any other way. Disposition 50. These applications for review are allowed. The Order to Pay and the Order to Reinstate are hereby rescinded. The Board directs that monies held in trust by the Director of Employment Standards in respect of this matter be returned to the applicant. Caroline Rowan for the Board