Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Employee admitted surveillance 'looked bad' « from EMPLOYEE'S on page 1 rays couldn't identify or rule out such a frac- ture and, since the employee was still in pain, the doctor said she should be off work until she reassessed the employee on Aug. 11. Due to the similarity in circumstances the previous year when the employee took sick days on dates for which she had requested off, the hospital was suspicious and decided to conduct surveillance on the employee over six days from July 23 to 28, when the employee was off work with a sore back. Over the course of the six days, the em- ployee was observed carrying a backpack while walking – the employee later said the backpack was empty – driving around, play- ing bingo, going to her daughter's swimming lesson, shopping – which included bending, twisting, pushing, reaching, and carrying packages –squatting, stretching, and lift- ing objects. A medical assessment indicated many of these activities were inconsistent with how the employee presented her injury to the hospital. e hospital's occupational health nurse contacted the employee to plan a return-to- work program, but the employee said she was unable to do modified work. e em- ployee claimed she couldn't bend, turn, or lift without pain and she had to take naps dur- ing the day. She said she was "walking a little" and "doing nothing at home." e employee spoke to other members of management and said she her doctor told her to limit her walk- ing and do no lifting. Hospital management called the employ- ee into a meeting where she was asked about the extent of her disability and her absences. e employee said her doctor told her not to work and her abilities depended on how long she could stand or sit and her level of medication. When she was told of the video surveillance, the employee said she could do some things while on medication but admit- ted "it did not look good." Hospital management determined the employee had misrepresented the level of her back injury in order to get the time off she wanted. As a result, a short-term disabil- ity claim she had filed was also considered to be false. is was considered a fundamental breach of the employment relationship, so the hospital terminated the employee's em- ployment. e arbitrator found the video surveil- lance showed the employee was capable of certain modified activities and, since the hospital was willing to offer modified duties, could have been able to work during part of the time she was off. She was able to get doc- tor's notes saying she couldn't work at all be- cause she likely exaggerated her symptoms to her doctor as well as her employer. is exaggeration was dishonest and warranted discipline, sad the arbitrator. However, the arbitrator noted that the employee had a clean record over a decade of service and the fact she worked six 12- hour shifts in a row showed she didn't shy away from work. In addition, the employee was under the impression she might have had a fracture in her spine, which hadn't been ruled out at the time of her dismissal. "is is not a case where the injury was feigned but rather the symptoms were exag- gerated. e concern over a possible frac- ture may have led in part to the exaggera- tion," said the arbitrator. e arbitrator found the employee didn't tell the truth regarding her symptoms and finally admitted at the meeting her activ- ity level may have been higher than she let on. Also, despite the vacation days request, there were "no compelling personal reasons to be off work in that time period and that (the employee) would not have risked los- ing her job for no apparent reason," said the arbitrator. e arbitrator found the employment re- lationship was not irreparably damaged by the employee's exaggeration of her symp- toms. e hospital was ordered to reinstate the employee and discipline would be the denial of any back pay since her dismissal. See Leamington District Memorial Hospital and ONA (Mercer), Re, 2015 CarswellOnt 11067 (Ont. Arb.). Contracts often silent on bonus Despite concluding the KMB was an in- tegral component of Keilb's compensation, and a key negotiating point prior to his ac- cepting the position, the Ontario Superior Court of Justice upheld the limiting language and did not award Kielb any damages for the KMB. To this end, the court considered the following factors to be significant: • e limiting language in Kielb was far more clear than the language from cases such as Schumacher. • Kielb's contractual termination entitle- ment still would not have taken him to the end of the fiscal period or the qualifying date. • Kielb was a lawyer and the employment contract had been negotiated back and forth on several items. • Kielb knew the impact of the limiting lan- guage and nevertheless signed the con- tract. • ere was no public policy reason to dis- regard the clear wording of the limitation language. e decision can be seen as a positive de- cision for employers. e court upheld clear language requiring active employment on the relevant payment date as a valid require- ment to receive a bonus. Kielb fell short of the relevant date, thus the necessary condi- tion was not achieved. However, the signifi- cance of Kielb's status as a lawyer and the fact the contract was bilaterally negotiated are key factors that cannot be ignored. Lessons for employers Kielb affirms the principle that an employer can limit bonus entitlement on termination by using clear, unambiguous contractual lan- guage (perhaps with examples), even when the amount is a significant component of compensation. However, when read with Lin, the caution is clear – the language must be contractual, not aspirational. For more information see: • Lin v. Ontario Teachers' Pension Plan Board 2015 CarswellOnt 7878 (Ont. S.C.J.). • Kielb v. National Money Mart Company, 2015 CarswellOnt 9377 (Ont. S.C.J.). • Schumacher v. Toronto Dominion Bank, 1997 CarswellOnt 1779 (Ont Gen Div). • Duynstee v Sobeys Inc. 2013 CarswellOnt 4458 (Ont. S.C.J.). • Love v Acuity Investment Management Inc., 2011 CarswellOnt 1060 (Ont. C.A.). • Kieran v Ingram Micro Inc., 2001 Carswell Ont 3906 (Ont. S.C.J.). « from BONUS on page 3 ABOUT THE AUTHOR BRIAN WASYLIW Brian Wasyliw is a lawyer with Sherrard Kuzz LLP, a management-side labour and employment law firm in Toronto. Brian can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www.sherrardkuzz.com.

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