Employer who accused worker of lying about recovery from injury must pay $500,000
An Ontario airport administration company must pay a long-term employee $100,000 plus the equivalent of eight years of salary after firing her for sick leave fraud without properly investigating the circumstances, an arbitrator has ordered.
The employee, 53, was a fleet co-ordinator for the Greater Toronto Airports Authority (GTAA), looking after 200 of the GTAA’s vehicles. Her job involved delivery and pick-up of vehicles for maintenance and large amounts of walking and driving. She worked for the GTAA for 23 years without any disciplinary problems or concerns about her job performance.
On Oct. 31, 2003, she injured her knee while getting out of a utility vehicle. She took a couple of days off and returned to work while planning to have physiotherapy for six months. She didn’t need any significant modifications, but did some small ones on her own such as moving around when her knee became sore. However, the therapy didn’t help and she had arthroscopic surgery on her knee on Feb. 19, 2004. Following the surgery, her doctor gave her a medical note instructing her to take four weeks off work for recovery.
Unbeknownst to the GTAA, the employee lived with another GTAA worker who had been terminated, reinstated by an arbitrator and was on sick leave. The GTAA, which had a costly absentee problem, suspected the sick leave was unwarranted and put the worker under surveillance. It was through this surveillance that the employee recovering from her operation was observed out and about on several occasions and led the GTAA to begin observing her.
The employee was seen going to her physiotherapy clinic, driving to a Wal-Mart and reaching up to high shelves while standing on her toes, carrying parcels while shopping and driving someone to the airport. Some days she remained at home, but when she was out, she didn’t seem to be experiencing any discomfort.
The GTAA became suspicious her injury wasn’t as bad as she had made out, particularly since a manager had similar surgery and was only off work for a few days. It contacted the employee and asked for medical information as to why she needed four weeks off and whether she could return earlier with modified work. The employee was afraid her job was in danger since her partner, who had originally been the subject of surveillance had just been fired, so she obtained a note from her physiotherapist that said she could use one more week off. However, the GTAA rejected it. She followed up with a note from her surgeon that said she could return with restrictions, such as no lifting, driving or walking for more than 10 minutes. As a result, she returned to work with regular duties on March 17, 2004, during which further surveillance showed her limping at the end of the day because she hadn’t taken painkillers out of concern it would affect her work.
The GTAA met with the employee on March 19 to ask her about her limitations and what it saw on the surveillance videos. The employee explained she initially had a severe limp and needed a cane after the operation, but as time went by her knee improved. She also said she was often on painkillers that helped with discomfort and allowed her to drive.
The GTAA felt the employee was being dishonest about the severity of her injury and the surveillance videos proved she had improved enough to work. She had been observed doing things beyond the restrictions of the doctor’s note and the GTAA wanted her to “come clean.” The employee was told if she apologized she would be given another chance, but the employee refused to accept she did anything wrong. She said some days were good and on others her knee was sore. The GTAA suspended her while it decided what discipline to impose.
Over the next few days, the GTAA investigators concluded the employee was being dishonest and when she was seen limping after returning to work, she was aware of being watched and played up her injury. On March 24, 2004, the employee was terminated for violating its code of conduct, which listed dishonesty, falsifying attendance and leave reporting and making false statements as grounds for termination on a first offence.
The employee grieved her termination, claiming she was wrongfully dismissed and the GTAA’s “stalking” and subsequent dismissal triggered psychological trauma and affected her health because it brought up memories of past abusive relationships. She was diagnosed with post-traumatic stress disorder and “betrayal trauma” and continued to experience symptoms two years later.
The arbitrator found the GTAA was entitled to use the surveillance videos in its investigation of the employee’s sick leave, since they showed information relevant to her abilities. However, he said the GTAA made a serious mistake when it used the videos as the basis to form its opinion on her status over medical experts.
Even though the video surveillance showed the employee was going to physiotherapy and staying at home for long periods of time and the GTAA had notes from her surgeon and physiotherapist that she needed more time off, it chose to believe she was in better condition, said the arbitrator. He also found the employer ignored the fact she seemed to be worse off after a day working her regular duties without painkillers and the difference in conditions at work and at home.
“It is apparent that before terminating the (employee) the managers at the GTAA did not rely on any medical evidence, but simply relied on their own observations of the video surveillance and their meeting with (her). They were not doctors and they ought not to have arrogated themselves the medical knowledge which was necessary to assess the medical conditions of the (employee) based on the examination of the tapes,” said the arbitrator.
The arbitrator found the GTAA had a preconceived notion that the employee was being dishonest and didn’t properly investigate the situation by obtaining and following legitimate medical opinions. He found the employee was honest about the circumstances and there were no grounds for dismissal.
The arbitrator also found the GTAA acted in bad faith and such treatment of a 23-year employee with no previous problems was unacceptable. It was likely her association with the other troubled worker coloured the GTAA’s dealings with her and her situation was not assessed on its own merits, said the arbitrator.
The arbitrator ordered the GTAA to pay the employee $50,000 for the lasting mental distress it caused her because of its treatment of her, another $50,000 in punitive damages and compensation for six years of lost wages since her termination, equal to more than $300,000. In addition, the arbitrator felt it was likely she would have worked for the GTAA until her retirement at age 55 and ordered the GTAA to pay her compensation for an additional two years of future economic loss. Though the actual amount needed to be assessed, the difference in the employee’s GTAA salary and benefits and her current income was more than $30,000 per year.
For more information see:
•Greater Toronto Airports Authority v. Public Service Alliance Canada, Local 0004 (Feb. 12, 2010), O.B. Shime — Arb. (Ont. Arb. Bd.).