Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS samples of steel, lifting them with tongs onto a cart, and moving them to a press where they would be cut into one-foot lengths. He then placed them in water to cool and measured them. Each sam- ple weighted between 15 and 20 pounds. The worker saw his doctor, who diagnosed tennis elbow. Another doctor confirmed the diagnosis and filled out a functional abilities form (FAF) that recommended the worker not lift anything more than five kilograms, limit pushing with his right arm, gripping or pinch- ing, no lifting above shoulder height, and no repetitive twisting or bending of his right elbow. Gerdau's joint modified work committee developed a modified work plan for the worker that took into account his restrictions but enabled him to still do about 80 per cent of his job. Whenever the worker had a task that was beyond his restric- tions, he had someone else do it, or it would be assigned to some- one else. The worker continued to work under the modified work plan — supported by a June 24 FAF main- taining the same restrictions for another six weeks — until he went on vacation in July. On the last day before his vaca- tion — July 9 — the worker told his supervisor that he was feeling bet- ter and was able to take on more demanding tasks. Around the same time, Gerdau's mill manager began to suspect the worker was feeling better more than he let on, as he was receiving complaints from other employees that they were being assigned heavy work that the worker couldn't do under his mod- ified work plan but the worker was seen performing tasks beyond his restrictions outside of work. The mill manager decided to hire a private investigating firm to conduct surveillance on the work- er for 10 days over the worker's va- cation. The firm observed the worker pulling a lawnmower cord several times to start it, moving a number of boxes and closed golf bags while moving into a new home, carrying two wicker chairs out of a store, unloading boxes from his car, and returning items to a Walmart. In many cases, he was using his right arm to carry items and push dollies. The mill manager reviewed video footage of the surveillance and the investigator's report and concluded that several of the items the worker was seen car- rying were heavier than five kilo- grams. He confronted the worker with this information, but the worker denied doing any work outside his restrictions during his vacation. He also suggested Gerdau was assigning work be- yond his restrictions. The mill manager felt that this information, along with the worker's insistence on schedul- ing physiotherapy appointments in the middle of the workday, showed the worker was "gaming the system" to avoid the physical demands of his job. He suspended the worker pending further investigation. They day after the suspension, the worker's doctor sent an FAF that retroactively indicated the worker was fit for full duties start- ing on July 5. This didn't make sense to Gerdau since the June 24 FAF had indicated restrictions for six weeks. It was determined the worker was guilty of fraud by misrepre- senting his medical restrictions and his employment was termi- nated on July 24. The United Steelworkers union challenged the dismissal, arguing the worker's misconduct didn't warrant termination. Arbitrator Norm Jesin heard evidence from the worker's doctor and a physiotherapist who con- firmed that the worker was not fit for full duties up to July 2013. While he had improved, he still had problems and shouldn't lift too much. The worker also explained that he tried to lift only lighter items during his move, though a few things may have weighed more five kilograms. Jesin found it was understand- able why the mill manager found the timing of the worker's disclo- sure that he was feeling better — right before his vacation — suspi- cious. However, the surveillance didn't reveal definitive evidence that the worker was doing tasks beyond his restrictions — particularly since a couple of hours of intermittent work off-duty was different than several hours of constant and re- petitive work, and the new FAF indicated improvement. Jesin also found the timing of the new FAF just before the vaca- tion and surveillance was coinci- dental. However, while the worker wasn't dishonest about his re- strictions and inordinately pro- longing his accommodation, he wasn't straight with the employer about his vacation activities and he risked reinjuring himself when he was still officially on modified duties. "The (worker) should not have exceeded his restrictions in his move to the extent that he appears to have done without seeking an FAF from (his doctor)," Jesin said. "Perhaps in recognizing that fact, the (worker) was indeed dis- honest in what I have described as a clumsy attempt to justify his activity during his move. He dou- bled down on this dishonesty by obtaining his amended FAF." Since the worker had no prior discipline, dismissal wasn't appro- priate for the lesser misconduct of trying to hide his vacation activity — less serious than misrepresent- ing his restrictions. Gerdau was ordered to rein- state the worker once he obtained an updated FAF. Since the worker demon- strated some dishonesty in his dealings with the employer, his compensation for lost earnings was not to be paid for the first six months out of the 32 total months since his dismissal. For more information see: • Gerdau Ameristeel – Whitby and USW, Local 6571 (Spul- nick), Re, 2016 CarswellOnt 5021 (Ont. Arb.). < Worker gets better pg. 1 Employee seen doing heavy work at home by investigator Photo: Photographee.eu (Shutterstock)

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