Stalked, spied on, videoed and then fired by her employer while she was recuperating from knee surgery, an airport worker was awarded restitution for lost wages and benefits as well as punitive damages and an award for mental distress.
Forty-seven at the time of her termination, C.B. was employed as a fleet co-ordinator responsible for keeping track of the airport’s fleet of more than 200 vehicles. A respected and well-liked 23-year employee with no record of discipline, C.B. began her career with the previous airport employer, as had both her parents.
Exiting a vehicle at work, C.B. twisted her knee. When the injury did not respond to conservative treatment, surgery was performed. Post surgery, C.B. was prescribed physiotherapy and told by her surgeon to take six weeks off to recover. However, C.B. told her surgeon that she did not want to be off work that long and he gave her a note prescribing four weeks’ leave instead.
Under employer surveillance
On February 27, 2004, eight days after her surgery, C.B. was observed by agents contracted to the employer as she was being dropped off by her partner at a physiotherapy clinic. Unbeknownst to either of them, T.T. (C.B.’s partner) — also an airport employee on sick leave — was under surveillance by the employer. T.T. had previously been terminated by the employer but was ultimately reinstated by an arbitration board and awarded about $100,000.
C.B.’s relationship with T.T. was a revelation to the employer who, despite the fact that C.B. was on a medically ordered leave, nevertheless decided to put her under surveillance.
Apparently flummoxed by video evidence documenting the unevenness of C.B.’s recovery — sometimes limping and sometimes not when performing ordinary tasks like shopping — the employer became convinced that C.B. was engaged in sick leave abuse and was committing a fraud.
C.B. complied with the employer’s request to return to work one earlier than prescribed by her surgeon. However, she could not immediately provide a doctor’s note as requested and instead brought a note from her physiotherapist who indicated that C.B. would benefit by having the full four weeks off.
That note was rejected and C.B. was sent home. She returned two days later with a letter from her surgeon outlining her restrictions. She worked that day and was told to attend a meeting two days later, purportedly to discuss modified work.
Modified work was not discussed. Instead, C.B. was interrogated about her surgery, her physical abilities and her activities. The details referenced in the questioning made it clear to C.B. that she had been stalked by her employer.
Alleged dishonesty
C.B. was suspended at the end of the meeting and then terminated by letter a few days later. The letter alleged that C.B. had been dishonest in reporting her absences during her recovery and that she had compounded that dishonesty by being untruthful in the meeting. The union grieved.
C.B. had not lied and was not untruthful, the Arbitrator said. Instead, the employer had condemned C.B. because of her association with T.T. and had terminated her based on that association. “In so doing, I find [the employer] was both unreasonable and acted in bad faith by not individually and independently assessing [C.B.’s] circumstances to which she was surely entitled after so many years of faithful and diligent service.”
The meeting was a setup. The Arbitrator said the employer had come to the meeting with a closed mind and conducted a “harsh” and “superficial” interrogation where everything C.B. said “was given a negative or wrong interpretation.” The employer was “motivated by an arrogant presumption about [C.B.’s] medical condition notwithstanding that none of the managers had any medical training.”
Acted in bad faith
Even without the linkage to T.T.’s situation, the employer’s conduct towards C.B. was “so egregious” that the Arbitrator found that the employer had acted in bad faith. The employer ignored C.B.’s lengthy service and seniority and the fact that she had injured herself at work and continued to work on a bad knee for as long as she could until surgery was deemed necessary. The employer dismissed the assessments of qualified medical professionals and was blind to the fact that C.B. had no record of absenteeism or malingering over her entire 23-year career.
“Employees are not like tissues to be used up and then thrown out at a whim into the bin of low level employment or unemployment. Employees, particularly those such as the [C.B.], who have been long-term local employees, are entitled to both a reasonable consideration of their seniority and work record and to a reasonable investigation of their conduct before being discharged and accused of dishonesty. There was no cause to discharge [C.B.], and since the [employer’s] conduct in both its investigation and also in its ultimate determination was not only unreasonable but also in bad faith, [C.B.] is entitled to an appropriate remedy including damages.”
High handed, arbitrary and capricious
In this case the employer’s bad faith conduct had irreparably broken the employment relationship. The Arbitrator said, “I find the conduct of the [employer] was so high handed, arbitrary, and capricious that it had such a destructive impact on [C.B.] that I would not be prepared to reinstate her to her employment.”
Instead, the employer was ordered to pay damages to compensate C.B. for her losses since the termination and for loss caused to her future employment prospects.
In addition, the Arbitrator ordered the employer to pay C.B. $50,000 damages for mental distress. The Arbitrator accepted C.B.’s testimony that the experience of being stalked and videoed by her employer triggered episodes of post traumatic stress disorder. C.B. had been stalked years earlier by her ex-husband following her exit from an abusive relationship. The employer was aware of this history.
Moreover, signifying a further condemnation of employer’s conduct, the Arbitrator said that punitive damages in the amount of $50,000 were due.
“Compensatory damages to [C.B.] are, in my view, insufficient to accomplish the objectives of retribution, deterrence and denunciation as to what has occurred … to treat an honest, diligent and sincere employee, who has given exemplary service, as [the employer did] and then to label her as dishonest and untrustworthy and consign her to the possibility of unemployment or low level employment is a marked departure from the ordinary standards of decent behaviour.”
