Canadian Employment Law Today

June 25, 2014 | Canadian Employment Law Today Canadian HR Reporter, a Thomson Reuters business 2014 CREDIT: MARCO ANTONIO/SHUTTERSTOCK.COM conduct surveillance on her to assess her condition. A private investigator followed S.L. around and observed her at her home and other locations over the next week. She was observed driving her car regularly to run errands and performing activities such as scraping her windshield, carrying boxes, reaching into her car's trunk, and a two- hour driving trip to Buff alo. Sometimes she walked with a cane and sometimes without, occasionally at a brisk pace and often for distances greater than 100 me- tres, her limit at work. When the investigator showed video footage of these activities to Sun manage- ment, they were surprised and felt the dif- ference between the way S.L. carried her- self in the offi ce and outside of work was like "night and day." e associate city editor and the director of HR met with S.L. and a union represen- tative on Dec. 23 to discuss if S.L. would be able to go into the staff rotation as they would be short staff ed in the coming year. S.L. didn't answer directly but said she was wiped out after the one assignment that re- quired her to go out for an interview. e editor asked her if she was able to drive and she said "no." Afterwards, the editor-in- chief reviewed the video and felt S.L. was a diff erent person outside of the workplace in terms of her physical activity. A meeting was held on Jan. 10, 2012, in which S.L. was shown the video and asked to explain the situation. However, S.L. sim- ply took notes and said nothing. S.L. 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 judgment on my part" by defying her doctor's recommendations and any hurt she caused. e short letter conclud- ed with the remark, "my greatest sorrow is that I was not honest with you." For the Sun, the letter confi rmed S.L. had been dishonest about her abilities and the "debilitating pain" she claimed to suf- fer most of the time at work, but not seem- ingly outside of work. From its perspective, the letter was an apology for being caught, not an indication of true remorse for her dishonesty. e Sun terminated S.L.'s em- ployment on Jan. 11, 2012. S.L. grieved the termination, claiming she had good days and bad days and some- times her injury felt better outside of work because there was less physical demand on her. She said she could walk without dif- fi culty for short periods of time, but she needed canes at work because she had to take medication to get through the day. e arbitrator found there was no doubt S.L. had a disability caused by her injury and her conduct in the workplace, along with her medical documentation on her restrictions, led the Sun to believe she was incapable of driving or working outside the offi ce. However, the arbitrator agreed with the Sun that her activities in the surveillance video were inconsistent with the abilities represented to the newspaper. e arbitrator pointed out, as an exam- ple, that it would be expected S.L. would have more pain when not taking medica- tion, but it seemed in the surveillance that she moved easily when driving her car, during which she wouldn't be taking the drugs. 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, said the arbitrator. e arbitrator also found it unlikely S.L. was in shock when shown the video be- cause she sat quietly and took notes. In addition, the apology letter was short and didn't ring true in context with the meet- ings. Ultimately, the arbitrator determined S.L. had covered up the fact she had been driving for some time, as well as her other abilities. is wasn't an isolated incident and took place over a long period of time. While she had doctor's reports on the pain and limitations, these relied on what she reported to her doctors and could be ex- aggerated, particularly since the reports didn't explain what was seen in the video, said the arbitrator. e arbitrator found S.L. suff ered from adverse treatment in her employment be- cause of her disability — she was subjected to surveillance because of her medical re- strictions and was terminated as a result of that surveillance — but the information the Sun had gave it reasonable and prob- able cause to suspect dishonesty. ough S.L. wasn't given a warning, she was given an opportunity to explain herself and she refused. She also continued to say she couldn't drive. e arbitrator found the investigation and dismissal of S.L. was were not moti- vated by discriminatory intent but rather were reasonable responses to being misled by her. e termination was upheld. For more information see: • Toronto Sun and Unifor, Local 87-M (L. (S.)), Re, 2014 CarswellOnt 5945 (Ont. Arb.). About the Author JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information.

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