Canadian Employment Law Today

August 20, 2014 | Canadian Employment Law Today Canadian HR Reporter, a Thomson Reuters business 2014 CRedit: JCJgphotogRaphy/ShutteRStoCk.Com vided a second note from his doctor stat- ing he was off work for "situational anxi- ety." Fonstad started taking medication and applied for short-term disability (STD) benefits. He also attended counseling on the instruction of the Mosaic occupational health nurse. employer suspicious about sick leave during time of denied vacation Mosaic continued to be suspicious about the timing of Fonstad's sick leave, so it hired an investigator to conduct surveil- lance on Fonstad. Over two days in early June, the investigator recorded more than four hours of video of Fonstad operating a Bobcat machine, shovelling gravel, and doing landscape work. Fonstad owned a landscaping business on the side, which he would normally work at before his shifts at Mosaic and on his days off. Mosaic was aware of the business, which Fonstad had never tried to hide — the business name was even on the side of the truck which he usually drove to work. On June 18, 2012, Fonstad contacted Mosaic's occupational health nurse and informed her he was cleared to return to work the next day. He faxed his doctor's documentation — which stated no opera- tion of heavy equipment for a week until the effect of his medications was assessed. When Fonstad returned to Mosaic the next day, he was called into a meeting in which Mosaic suspended him without pay pending an investigation. Mosaic de- manded all records of his business during his medical leave and medical documents supporting his absence by June 26, after which it would complete its investigation. Fonstad — believing he had nothing to hide and the landscape work for his busi- ness was nowhere near as stressful or tax- ing as his work in the mine — provided his personal medical information and details on the work he performed while on leave — which he listed as unpaid work. Mosaic determined that the medical documentation did not support the sick leave he took after his vacation request was denied, considering that he performed manual labour and operated heavy equip- ment for his landscaping business during that time. e company terminated Fons- tad's employment on Aug. 7 for being "dis- honest and duplicitous about being medi- cally unable to perform work at Mosaic, and sought a medical note simply because your vacation leave was denied." e union grieved the dismissal, argu- ing Fonstad was not dishonest: his medi- cal leave was not because he was unable to perform physical work, but rather he was mentally unable to perform his work at the mine, and he had never tried to hide his side business from Mosaic. Mosaic responded by pointing out the collective agreement stipulated that an employee's seniority would be lost if the employee worked for another employer while ab- sent from Mosaic, unless the company ap- proved the work or the employee was laid off for lack of work. e arbitrator noted that at the time of Fonstad's termination, the reasons Mo- saic gave were "dishonesty and duplic- ity." Working for another employer was not given as a reason for termination and could not be considered part of the com- pany's charge of dishonesty at the time of dismissal, as Fonstad never lied about do- ing the work, said the arbitrator. e arbitrator said it was understand- able for Mosaic to be suspicious when Fon- stad took sick leave after being denied va- cation leave for the same time period, and even more so when it learned he was doing landscape work while off work. Company only sought to support its suspicions However, Mosaic didn't seem to be inter- ested in hearing Fonstad's side of the sto- ry, said the arbitrator. After the company suspended him pending an investigation, there were no attempts to uncover any in- formation that might change its suspicion of dishonesty. Fonstad wasn't given an op- portunity to explain his side before being terminated, and the charges of dishonesty were based only on the observations of the investigator. ere was no attempt by Mo- saic to learn more about Fonstad's medical status before terminating him, which was particularly surprising since one of his su- pervisors had called him back out of con- cern after he called in sick and the initial medical note indicated Fonstad had situ- ational anxiety. e arbitrator found Fonstad co-operat- ed with Mosaic at every step, providing the information the company requested and followed protocol for calling in sick. Fon- stad also kept communication open with the company and provided additional in- formation when Mosaic demanded more. e onus was on Mosaic to prove Fons- tad wasn't sick and was dishonest about his sick leave, and the arbitrator found Mosaic failed to meet this onus. e evidence was that Fonstad was suffering from mental stress which prevented him from work- ing in the mine and he didn't try to hide anything about his landscape work. As a result, Mosaic did not have just cause to terminate Fonstad's employment, said the arbitrator. e arbitrator also pointed out that the reason for requesting the vacation leave in May was so he could attend his grand- mother's birthday, which he didn't do when he was off sick on the same dates. "(Fonstad) was unwilling and unable to work in the mine and operate danger- ous mine equipment and place the life of his co-workers at risk during this period where he suffered from situational anxi- ety requiring counselling and medication," said the arbitrator. Mosaic was ordered to reinstate Fonstad with full compensation for loss of pay and benefits. For more information see: • Mosaic Potash Colonsay ULC and USW, Local 7656, Re, 2014 CarswellSask 287 (Sask. Arb.).

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