Video surveillance does not prove that he was lying about his injury. The activities were within the range of his capabilities, but he should have been more forthright.
A nurse was fired after off-hours video surveillance of him persuaded the employer that he was not being forthright about his medical condition.
Certified as a Registered Nurse in 1999, M.S. began part-time at a Regional Health Centre in 2002. He became full-time in 2004, specializing in dialysis. M.S. was also active in the union, sitting on the Human Rights committee and acting as a union representative.
In 2005, M.S. sustained a work-related injury resulting in a diagnosis of a bulging disc in his spine at L4-5. About one year later, M.S. was off work for about one month following a knee injury. Arthroscopic surgery was performed on the knee.
Subsequently, M.S. returned to work with restrictions. However, M.S.’s ability to occasionally work beyond the restrictions identified on his Functional Abilities Form became a source of frustration for management.
In 2007, the employer’s staff compensation specialist challenged the legitimacy of M.S.’s claim, calling into question the alleged work-relatedness of the injury to his knee and his resulting work restrictions.
When this first employer attempt to challenge M.S.’s compensation claim failed, the employer gathered additional evidence and tried again. This attempt also failed.
Two months later, the employer again attempted to persuade the compensation board that M.S.’s claim lacked merit. This time, the employer supplied a photograph of M.S. holding a union flag at a demonstration. These actions exceeded his identified restrictions, the employer suggested to the board. However, it was established that the photograph was taken years earlier. Once again the employer’s claims were rejected.
Video surveillance
The employer then hired a private security firm to conduct off-hours video surveillance of M.S. with a view to substantiating its position that M.S. was engaging in activities that exceeded his restrictions.
Video footage was taken of M.S. attending medical appointments, shopping and engaging in normal parenting activities including, in one instance, picking up one of his children. Video also showed M.S. clearing snow and opening and closing his garage door.
With the opinion of a doctor who viewed the videos testifying that M.S. was engaging in actions that exceeded his restrictions, the employer again approached the compensation board.
The video did not meet the board’s required standards for evidence. Moreover, the employer’s disclosure of the contents of M.S.’s Functional Abilities Form to the doctor for the purposes of comparison was a violation of confidentiality requirements contained in the Workplace Safety and Insurance Act. The Act states that “neither an Employer nor an Employer’s representative shall disclose the information contained in the functional abilities form except to a person assisting the Employer to return the worker to work …”
Once again, the employer’s efforts to overturn M.S.’s compensation claim were rejected.
On April 14, 2008, M.S. was called into a meeting with the employer and questioned about his activities. He denied shoveling snow on his own, claiming that it was too painful even to pick up his small children.
M.S. was fired on May 8, 2008. The employer alleged cause. M.S.’s observed actions were inconsistent with his medical restrictions. The employer said that M.S. was not being forthright about his medical condition and that his dishonesty constituted an irreparable breach of trust.
The union grieved. The employer had been out to get M.S. from the word go because of his union activities, the union said. The employer’s actions were an attack on M.S.’s career and his reputation. No just cause had been established and the employer’s conduct constituted harassment, the union said.
Harassment claim rejected
The Arbitrator rejected the claim of harassment. M.S.’s union activities did not factor into the employer’s treatment of him. However, the employer had not established just cause for termination.
“[T]he grievor’s role or activities on behalf of the union played no part in the Employer’s actions. Rather, the Employer fastened on the impression of dishonesty by [M.S.] about his condition and abilities. This was not without some foundation. However, that impression does not disprove [M.S.’s] evidence that at times he would feel somewhat better which enabled him to do more. The video surveillance does not sufficiently support a conclusion of ongoing dishonesty or misrepresentation so as to warrant immediate dismissal. Hence I do not uphold the terminating and [M.S.] is reinstated without loss of seniority.”
However, M.S. was also responsible, in part, the Arbitrator said.
“[M.S.] was not forthright at times. [M.S.] seemed to think that he could simply decide when he felt better enough to undertake certain physical tasks or movements. That is insufficient and wrong on his part. He has an ongoing duty of candid and complete communication with his Employer about his condition and its fluctuations … In light of this failure or omission on his part and his lack of complete candour, there is no award of lost compensation for the period of time from his discharge to the date of his reinstatement.”
Reference: Humber River Regional Hospital and Ontario Nurses Association, Local 068. Frank M. Reilly — Sole Arbitrator. Daryn Jeffries for the Employer and Kate Hughes for the Union. January 7, 2011. 11 pp.
