Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 7 conduct surveillance on him, starting in late February and continuing when he returned to work in mid-March. The investigator's fi rst few reports indicated nothing out of the ordinary, as Adamo was seen doing little physical activity other than grocery shopping. At one point, he was observed walking with a limp. The surveillance continued through April, when Adamo went on vacation to Montreal at the end of April to watch some NHL hockey — a trip he told some people at work about. On the fi rst few days of his vacation before he left for Montreal, Adamo was observed mowing his lawn and moving patio furniture into a truck. He was also seen walking to a park and picking up his infant daughter. When his trip be- gan, the investigator observed Adamo loading his car with luggage. The investigator followed Adamo to Montreal, noting Adamo drove the entire six-plus hour trip with only two short stops. He walked around downtown Montreal and at the hockey game rode a mechanical bull, danced on a stage, walked up and down stairs repeatedly and climbed a statue about four feet high. He then jumped down, climbed another raised section and laid down sideways to pose for a photograph. At the end of his stay, he drove back home — a seven-hour trip — with only one short stop. Adamo was called into a meeting with his supervisors on May 8, where he informed them he felt his condition was improving, though his functional abilities had not yet signifi cantly im- proved. He said he had "good days and bad days," but overall his treatment was working. The supervisors felt he could manage some stair climbing, but Adamo said he couldn't yet handle any stairs. He also felt that until his doctor changed his restrictions, he should continue to follow them and offered to see his doc- tor before his next scheduled appoint- ment so a new FAF could be prepared. Following the meeting, the supervi- sors considered how Adamo presented his limitations with what the surveil- lance reports had shown while he was on vacation. They determined Adamo was being dishonest about his condition and was misrepresenting his disability. The company decided to terminate his employment. On May 13, Adamo was informed of his termination and shown video clips the investigator had taken of him in Montreal. Adamo said it was "no big deal" and explained his behavior at the hockey game was the result of "stupid decisions" made while intoxicated, and his physical restrictions were for activi- ties in the workplace that he couldn't do for eight hours every day. That didn't mean he couldn't do certain things oc- casionally on a "good day," he said. Adamo told them he would be fi ling a harassment complaint. Different views of medical restrictions The arbitrator found Energex considered the restrictions described by the doctor on the FAF were Adamo's "overall abili- ties and restrictions" anywhere, not just at work. Therefore, as far as the com- pany was concerned, when Adamo was observed exceeding those restrictions on his vacation, it was evident he was capable of "going well beyond them without any apparent diffi culty or pain," said the arbitrator. However, for Adamo, the restrictions applied to his activities over an eight- hour workday, fi ve days a week, where he would be doing activities repeatedly. "(The restrictions) defi ned not so much what he was able to do, but rath- er what he should be expected to do on a continual basis, day in and day out," said the arbitrator. "Since the intensity of his pain varied from day to day, oc- casionally exceeding the restrictions did not signify any dishonesty on his part." The arbitrator noted Adamo consis- tently referred to the restrictions in the FAF as indicating what work he should be expected to perform and he would follow them at the meetings. However, Energex was focused on whether he was capable of exceeding his restrictions rather than if it was advisable for him to do so, said the arbitrator. At the May 8 meeting, Energex should have confronted Adamo with his ob- served activities on his vacation and given him an opportunity to explain himself. This might have made it clear the two sides had different views of the restrictions identifi ed by Adamo's doc- tor, said the arbitrator. The arbitrator found the evidence showed Adamo was working in good faith and wasn't attempting to be dis- honest with Energex. He pointed out Adamo exceed his restrictions occasion- ally when he felt he was able to do so, he didn't attempt to hide the fact he was going to Montreal to watch hockey, he offered to obtain a new FAF early and the surveillance before the trip showed nothing to indicate Adamo was exagger- ating his condition. The arbitrator determined Adamo was not being dishonest about his back in- jury and his dismissal was unwarrant- ed. However, he also found Adamo's behaviour in Montreal was "reckless" and would not have been cleared by his doctor. Adamo's vacation activities breached his duty to the employer to ensure he could recover and return to regular work duties as soon as possible, since he risked re-injury. Energex was ordered to reinstate Ad- amo with compensation for lost wages and benefi ts, but a four-week suspen- sion without pay was substituted as dis- cipline for his reckless behaviour. For more information see: • Energex Tube and Unifor, Local 523, Re, 2013 CarswellOnt 18465 (Ont. Arb.). Continued from page 1 Worker strictly followed restrictions at work "The restrictions defi ned not so much what he was able to do, but rather what he should be expected to do on a continual basis, day in and day out." WEBINARS WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as attendance management, changes to the foreign worker program, accommodating persons with disabilities, and social media in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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