The grievor was terminated for abuse of sick leave. Her pattern of absenteeism had been red-flagged and the employer placed her under surveillance. The arbitrator found she suffered from depression (as her doctor confirmed), that her activities were consistent with the disease and that the employer had no reason to invoke surveillance.
A worker was fired for abuse of sick leave after her absences from work and covert surveillance persuaded the employer that the worker’s claimed illness was not bona fide.
M.A. worked as a Food Service Helper at a residential mental health services facility. She began part-time in 1992 and became full-time in 2006.
M.A.’s attendance over her career was not good. Her level of sick leave usage was high and the patterns of absence were observed to extend vacation times, rest days and holidays.
In June 2008, M.A. requested and was granted a modified work schedule to help her balance her work and parenting demands. The schedule was to be assessed after a three-month trial period that began in August 2008.
However, during that time, the employer engaged an attendance management consultant. A number of M.A.’s absences were red-flagged and on Oct. 9 she was called into a meeting scheduled for five days later to discuss her new schedule and the absences.
M.A. tried to have the meeting moved up. When that request was refused, she booked off sick for two weeks. She then extended the absence by two weeks.
In the middle of that period, while she was off sick, M.A. attended the workplace to claim a shoe allowance.
Put under surveillance
The employer hired a private investigator to conduct surveillance on M.A. who was observed and recorded while on sick leave going about the normal activities of daily living.
At a meeting on Nov. 14, M.A. was confronted with the results of the surveillance and questioned about the circumstances that enabled her to extend her sick leave by two weeks.
M.A. was fired on Jan. 19, 2009. The union grieved.
The employer said there was insufficient medical evidence to support her absence.
The employer alleged M.A. had improperly and fraudulently leveraged and misrepresented the opinion of her EAP counsellor to her treating physician in order to extend her leave by two weeks. The employer also said M.A.’s ability to participate in the daily activities of life — as observed and recorded — was inconsistent with the diagnosis of her treating physician. Moreover, the employer’s medical expert who reviewed M.A.’s file asserted there was insufficient evidence in her file to support a diagnosis of depression. Termination was warranted for abuse of sick leave, the employer said.
The Arbitrator disagreed.
Non-medical considerations and suspicions
M.A. was a credible witness. Her open and candid testimony betrayed no guile or obvious attempts to manipulate the story or the facts in her favour, the Arbitrator said.
The employer’s perceptions, on the other hand, were shaped by non-medical considerations and suspicions. “It was as a result of these non-medical considerations that the employer failed to give due weight and objective consideration to the medical evidence and that led ultimately to the grievor’s termination.”
The medical record showed M.A. had been suffering from depression for a number of years. She had been receiving treatment from the same physician since 1999.
The Arbitrator acknowledged that bouts of depression are not always completely debilitating. However, in a case such as this where an employee alleges he or she is totally disabled by reason of depression, “any conflict over such an assertion must be assessed on the basis of the medical evidence.”
In this case, the opinion of the treating physician was on record advocating that M.A. take some time away from the workplace.
By contrast, the file reviews of M.A.’s case performed by the employer’s doctors were of limited value.
M.A. may well have been physically capable of performing the duties of her job. However, the key question was whether or not she had the mental or emotional capacity to fulfill her employment obligations.
“This question is a medical question, and with all due respect to the grievor’s managers, only a medical professional would be in a position to give a meaningful opinion on the subject. Mental illness or emotional distress is not like a broken arm, and outward manifestations may be masked and unobservable,” the Arbitrator said.
Opposite of depression
Moreover, the Arbitrator said, there was nothing suspicious or untoward about M.A.’s ability to participate in pleasurable social activities while she was off work. She was counselled to do so both by her doctor and by her counsellor.
“One does not have to be a doctor to conclude that having the ability to find enjoyment in the events of daily life seems to provide a fairly good description of the opposite of depression, and is the state one would want to work towards in order to overcome depression,” the Arbitrator said.
The discrepancies between the notes of M.A.’s doctor and her counsellor concerning the additional two weeks did not support the grave charges levelled by the employer, the Arbitrator said.
M.A. made no secret of the fact she wanted additional time off and allowed she may have suggested it to the counsellor who may or may not have indicated some tacit support for such an idea. It didn’t matter.
The counsellor’s opinion, as relayed to the doctor by M.A., was not determinative. The doctor made his own decision when he evaluated whether or not M.A. needed more time.
The employer did not have just cause to terminate M.A. She was ordered reinstated.
The Arbitrator also awarded M.A. damages of $5,000. The employer’s decision to subject M.A. to surveillance was premature at best, the Arbitrator said.
“By somewhat rashly dismissing the only medical evidence available, the employer representatives substituted their own conclusions, and embarked on surveillance, denial of benefits and, ultimately, termination. In doing so, they risked being wrong and also risked inflicting the very psychological damage suffered by the grievor.”
