Canadian Employment Law Today

8 | November 12, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Doctor's note should have priority over surveillance « from woRKeR's disHonestY on page 1 ism wasn't acceptable. Natrel cautioned him again in late April with the warning that his job was in jeopardy. Dolce didn't indicate he had any medical problems at the time. Shortly thereafter, Dolce was involved in an incident with the production scheduler and said he might have to go on stress leave if the scheduler's behaviour continued. He also made multiple requests for time off to deal with a personal family matter. His at- tendance didn't improve. On May 30, 2013, Dolce advised Natrel that he was going to be off sick for two weeks due to a recurrence of the knee injury. His doc- tor sent a note indicating Dolce's knee was "acutely inflamed" and Dolce couldn't do his "usual work." e letter also stated Dolce was awaiting an MRI and consulted a surgeon, concluding that Dolce could "sit at a desk but if such a position isn't available he will be off work for a period of up to two weeks." employer suspicious of extent of injury Dolce's manager observed Dolce limping but was suspicious of him because of his absen- teeism problems, his requests to be off work for family reasons and his threat to go on stress leave. As a result, Natrel hired an inves- tigator to conduct surveillance of Dolce. e investigator observed Dolce doing several activities Natrel felt to be inconsis- tent with the request for modified sedentary work. Dolce was seen driving long distances; carrying beer cases, groceries, trays of food and sheets of plywood; carrying a small child on his shoulders and in his arms; bending at the waist, walking normally, pushing a swing and loading a car; climbing stairs without us- ing the railing; and climbing onto a truck's tailgate, balancing on both legs and jump- ing down without difficulty. However, when Dolce came in to work to complete a workers' compensation report, he was limping visibly. e manager called Dolce to see if he would be returning on the date indicated in the doctor's note, but Dolce said he would not be back the next week as he had an MRI and an appointment with a specialist. Dolce claimed he was in terrible pain, his knee was swollen and he couldn't walk. He then sent another doctor's note stating his knee was still preventing him from doing his regular job and could only work if given a desk job. However, Natrel didn't provide temporary duties for employees not injured at its work- place because it had a short-term disability plan for them. After more surveillance of Dolce mov- ing about and performing tasks seemingly contrary to his condition, Natrel called him to a meeting on June 27 to discuss it. Natrel prepared a termination letter, but manage- ment wanted to wait and see how the meet- ing went before deciding on whether to ter- minate Dolce. At the meeting, Dolce said he only sat in his backyard and played with his dog because he was constantly in pain from a swollen knee. When told Natrel had sur- veillance of him indicating he was capable of performing his duties, Dolce responded by saying "what duties?" Dolce was shown the video and he became upset, saying it couldn't have been him and it was probably his son. However, the video was clear enough that Dolce was recognizable. Dolce was asked if he had anything to say and he said no. employee dismissed for dishonesty Natrel management determined Dolce wasn't being truthful about his injury and decided to terminate his employment immediately for purposely misleading Natrel about the nature of his absence and the level of his disability. Two weeks later, Dolce sent a letter of apology. In the letter, Dolce claimed he was always truthful and he "may have picked his words badly" because he was stressed and felt under attack at the meeting, which caused a misunderstanding. He insisted his pain was genuine and he needed surgery. Dolce also filed a grievance for unjust dismissal, insisting he had not been dishon- est and the activities he was observed do- ing weren't as demanding as his job and he sometimes took painkillers. e arbitrator found, through evidence and testimony, that Dolce's boxer position required repeated kneeling and bending, as well as carrying boxes and spending a signifi- cant amount of time on his feet. e medical evidence from Dolce's doctor was sufficient to indicate Dolce wasn't capable of perform- ing his regular duties, said the arbitrator. e arbitrator also found the video sur- veillance showed "short periods of activity by (Dolce) at a time when he was on pain medication," and didn't prove Dolce was ca- pable of "a full eight-hour shift as a boxer." erefore, the video surveillance should not be taken over the "specific and significant medical evidence," said the arbitrator. While it wasn't unreasonable for Natrel to be suspicious of Dolce given his absenteeism problem and threat of taking stress leave, it had two medical notes advising sedentary work or time off. ese notes triggered Na- trel's duty to investigate accommodation op- tions to the point of undue hardship, which it didn't follow. Dolce was capable of working with sedentary duties, but Natrel didn't in- vestigate whether this was possible. "Faced with (the doctor's) note, Natrel was legally obliged to take some action," said the arbitrator. "It could not, in these circumstances, totally ignore the doctor's note which, I determine was a quest for accommodation and was also a relevant factor in the exercise of its discretion to determine whether there was just cause to terminate (Dolce)." However, the arbitrator found Dolce wasn't truthful about his activities when confronted with the video and exaggerated his condition. It also turned out he was un- truthful about his education level when he applied to Natrel and about his reason for termination on his employment insurance application. is showed a tendency to "game every situation he is in either to seek some advantage or because he perceives he might be disadvantaged," said the arbitrator. Natrel was ordered to reinstate Dolce to his position. However, the arbitrator found Dolce's dishonesty "played a significant role in the company's response to his conduct," so a three-month suspension was placed on his record along with a warning that similar be- haviour in the future could lead to dismissal. For more information see: • Agropur, Division Natrel and Bread Driv- ers, Dairy Employees Caterers and Allied Employees, Local 647 (Dolce), Re, 2014 Car- swellOnt 12532 (Ont. Arb.). employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as discrimination, sick leave management, mobile technology and privacy, and the scope of workers' compensation. You can view the blog at www.employmentlawtoday.com.

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