This was the question in issue in Syndicat canadien de la fonction publique, SCFP local 2718 et CIUSSS de l’Ouest-de-l’île-de-Montréal (Centre de la jeunesse et de la famille Batshaw) (Marc Desjardins et grief patronal), 2016 QCTA 307 which arose out of the factual situation.

Marc Desjardins was employed as a social worker by a governmental child and youth centre. In order to occupy this position, he was required to have a valid driver's license. In March of 2013, Desjardins was arrested by the police outside his normal working hours for driving while impaired and his license was immediately suspended as stipulated by provincial law. Soon thereafter, Desjardins consulted his physician and was put on medical sick leave for a period of 3 months because of a diagnosis of major depression and excessive alcohol consumption. He did not disclose to his employer that his permit had been suspended. He started to receive sick leave benefits in accordance with the employer's sick level benefits policy.

Following his leave of absence which lasted five months, Desjardins returned to work on a part-time basis in July of 2013 but did not inform his employer that his permit had been suspended in March. While he was absent, he had received more than 8,000$ in sick leave benefits from the employer. In November 2013, Desjardins took a one year leave of absence for non medical reasons. During his leave of absence, Desjardins plead guilty to the charges against him. In the meantime, he also pleaded guilty to an additional charge of having driven a motor vehicle while his permit was still suspended which lead to a further suspension of his permit. It was only upon his return from his second leave of absence that he finally advised his employer that his permit had been suspended while he was on sick leave. In fact, the only reason for which he advised the employer was that he was required to drive a vehicle to perform his functions while his permit was still suspended.

The employer filed a grievance to recover the amount of the sick leave benefits which had been paid while Desjardins' permit was suspended. The Union contested the grievance on the basis that it had not been filed within the delay for filing a grievance provided in the collective agreement. It also argued that the employee was disabled during the period in question and was therefore entitled to the benefits.

The arbitrator held that the delays contained in the grievance procedure did not apply but that the six month limitation period provided by section 71 of the Quebec Labour Code applied to the employer's claim. The arbitrator also ruled that the delay only started on the day the employer found out that the driving permit had been suspended while Desjardins was receiving sick leave benefits.

On the merits of the claim, the arbitrator held that Desjardins was not entitled to receive disability benefits for the period during which his permit had been suspended. According to the arbitrator, the real reason behind Desjardins’ inability to work was the loss of his driver’s license which is not a reason allowing Desjardins to receive sick leave benefits. Desjardins was only entitled to the benefits if he was otherwise fit and able to work at the time the disability arose. Since his permit had been suspended, he was not "able" to work at the time he became disabled. Desjardins was therefore ordered to reimburse all benefits received while his permit was suspended but was entitled to keep the benefits received after his permit was reinstated.

Obviously, in this case the suspension of the driver's permit was directly attributable to the employee's reckless behavior when driving under the influence of alcohol and also his refusal to disclose the suspension was deliberate. It remains to be seen whether a similar result would have ensued if the suspension of the permit had occurred for an administrative reason (non payment) while the employee was already disabled and receiving sick leave benefits.