Canadian HR Reporter

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Stay Current Stay Compliant payroll.ca Disabled reporter fi red Disabled reporter fi red for misleading employer for misleading employer AN ONTARIO newspaper had just cause to fi re an injured reporter who was mis- leading about her ability to perform her regular duties, an arbitrator has ruled. e employee, referred to as S.L., was a multimedia journalist for the Toronto Sun. The 43-year- old had worked for the Sun since 1991. In January 2001, she severely in- jured her left ankle in a skydiving accident. She had surgery and was off work for about six weeks. e Sun accommodated S.L. by providing her with a laptop so her assignments could be done at home. She wasn't given assign- ments that required her going out of the offi ce. In March 2006, the Sun re- quested she return to the work- place, as it understood she was at maximum recovery. But S.L. con- tinued to work from home and, on June 20, she was informed her po- sition was no longer needed and she was being laid off . ree days later, the layoff was rescinded. Return to work S.L. returned to the workplace on June 26. She wasn't required to do any work outside the offi ce and was able to perform her duties from a desk. On June 28, S.L. provided a doctor's note saying she required a "pain consult" before returning to work. However, the Sun felt she had been cleared to return to work by the Workplace Safety and Insurance Board (WSIB) with accommodations and there were no modifi ed duties that could be done from home as a general as- signment reporter. e Sun felt the WSIB had indicated there was no medical reason for her not to be working full-time. In the fall of 2006, S.L. provided reports from two diff erent doctors that indicated she had chronic pain and limited motion. Gradu- ated hours were recommended, along with "sedentary work to get her pain under control." e reports also indicated she needed an ergonomic chair, head- set, footrest and limits on walking and standing. e Sun complied with the instructions and S.L. re- turned to work in December 2006. In February 2007, she had a functional abilities evaluation, which demonstrated her need to walk with canes and have restric- tions on carrying things, standing or climbing stairs. e accommo- dations meant S.L. was unable to go out into the fi eld, so occasion- ally other reporters had to com- plete her work. She walked slowly with two canes while in the offi ce. Occasionally, S.L. provided WSIB functional ability forms, which listed walking and lifting restrictions as well as an inability to use public transit or drive a car. But the Sun's editor-in-chief sometimes heard from other em- ployees that S.L. was seen walk- ing more easily outside the offi ce. When he asked her to attend a press conference at city hall be- cause they were short staff ed, she came into his offi ce crying and saying she was in too much pain. Rumours persisted of S.L.'s abil- ities outside of work — including that she drove to work, parked in a nearby lot and walked to the of- fi ce. In December 2011, a decision was made to conduct surveillance. A private investigator followed S.L. around for one week. She was observed driving her car regularly and performing activities such as scraping her windshield, carrying boxes and driving two hours to Buff alo, N.Y., to shop. Sometimes she walked with a cane and some- times without, occasionally at a brisk pace and often for distances greater than 100 metres — her limit at work. e associate city editor and director of HR met with S.L. and a union representative on Dec. 23 to discuss if S.L. would be able to go into the staff rotation. S.L. said she was wiped out after one assignment out of the offi ce. e editor asked her if she was able to drive and she said "no." On Jan. 10, 2012, S.L. was shown the video and asked to ex- plain. However, S.L. simply took notes and said nothing. She later testifi ed she was in shock and had been told by the union not to say anything. Later that day, she sent a letter apologizing for "poor judg- ment" by defying her doctor's rec- ommendations. e short letter concluded with the remark "my greatest sorrow is that I was not honest with you." For the Sun, the letter con- fi rmed S.L. had been dishonest about her abilities. From its per- spective, the letter was an apology for being caught, not an indication of remorse. Her employment was terminated on Jan. 11, 2012. S.L. grieved the termination, claiming she had good days and bad days and sometimes her in- jury felt better outside of work because there were fewer physi- cal demands. She said she could walk without diffi culty for short periods of time, but needed canes at work because she was on heavy medication to get through the day. e arbitrator found there was no doubt S.L. had a disability caused by her injury. However, the arbitrator agreed that her activi- ties in the surveillance video were inconsistent with the abilities rep- resented to her employer. As an example, it would be expected S.L. would have more pain when not taking medication, but the surveillance showed she moved easily when driving her car, during which time she wouldn't be on her medication, said the arbi- trator. is also didn't explain how she could make a two-hour drive if her pain was too bad to make short drives for work. It was also unlikely S.L. was in shock when shown the video because she sat quietly and took notes, said the arbitrator. e arbitrator determined S.L. had covered up the fact she had been driving for some time, as well as misleading the Sun on her other abilities. ough she had doctors' reports, these relied on what she told her doctors and could be ex- aggerated, said the arbitrator. The arbitrator found the in- vestigation and dismissal were not motivated by discriminatory intent but rather were reasonable responses to being misled about S.L.'s disability. e termination was upheld. For more information see: • Toronto Sun and Unifor, Local 87-M (L. (S.)), Re, 2014 Carswel- lOnt 5945 (Ont. Arb.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, see www.employ- mentlawtoday.com. Jeff rey Smith Legal View

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