'The employee needs to meet their contractual and legal obligations, just as employers are expected to do'
An employer had just cause to dismiss a worker who was caught working another job while receiving short-term disability benefits, an Ontario arbitrator has ruled.
The worker was a fare inspector for the Toronto Transit Commission (TTC), starting in May 2019. She had no discipline on her record.
The TTC’s conditions of employment prohibited employees from moonlighting at another job during their normal working hours. Secondary employment was allowed, but employees were required to advise their immediate supervisor of any potential conflicts. However, secondary employment wasn’t allowed at any time if an employee was off duty because of sickness or injury.
There was also a formal process for disclosure of secondary employment and approval involving a specific form, but at the time the worker was hired there was no form for fare inspectors. When such a form was introduced in May 2021, the worker wasn’t made aware of it.
On June 9, 2021, the worker was injured at work, causing significant injuries to her right arm, right shoulder, and right leg. The TTC accommodated the worker with restrictions on certain physical activities once she returned to work at the end of June.
Position with modified duties
On Dec. 10, the TTC determined that meaningful work was no longer available at the worker’s work location, so it assigned her to COVID-19 screening work, which involved her driving a TTC car to various locations.
On April 7, 2022, the TTC’s occupational health and employee welfare department (OHEW) advised the worker that her pain medication could cause drowsiness, so it should only be taken 12 hours before her shift. The worker asserted that she had no side effects that affected her ability to drive.
One week later, the worker booked off work for medical reasons, returning on April 19. She also told her supervisor she wanted to discuss her pain medication use with OHEW. The supervisor directed her not to take it until she cleared it with OHEW, but the worker was already taking it.
The worker had to book off work again because of pain and the TTC determined that she couldn’t remain in the screening job because her medication compromised her safety-sensitive role that involved driving. The worker was approved for short-term disability (STD) benefits until June 4.
“One of the things that the TTC did well was working with the worker to make sure it provided her with suitable accommodation - in this case placing her in a position that was more appropriate for what she was able to do given her limitations,” says Nhi Huynh, an employment lawyer at Williams HR Law in the Greater Toronto Area. “And when it found out about the medication, it took the proper steps to ensure it was looking after not just the health and safety of the worker, but of other people because it might have affected her ability to drive safely.”
“Accommodations can change, so you want to make sure that you're communicating consistently, rather than just at the initial stage,” she adds.
However, the worker’s STD payments were irregular, causing hardship for her as she was a single mother. The union had to intervene on her behalf to fix the problem.
Secondary employment
Given the uncertainty of the STD payments, the worker applied for a job as a by-law officer with another municipality. In June, her STD payments were paid up and she started receiving regular payments.
On July 14, the worker was hired by the other municipality as a permanent part-time by-law enforcement officer. The same day, the worker was advised that her STD benefits had been extended to Aug. 13 and could be extended again if she submitted a specialist’s report by Aug. 9.
On the worker’s second day as a by-law officer, July 26, a TTC assistant manager who lived in the other municipality saw the worker in the other municipality’s uniform. He called the municipality, which confirmed that the worker was an employee and hadn’t mentioned any disabilities or restrictions. The assistant manager reported this to TTC management and OHEW.
On July 28, the worker was interviewed about her other job, but she declined to comment. She said she had told a member of management about it but declined to say who.
“I think a lot of employers tend to think that they have enough information from the get-go and want to make a big decision such as dismissing an employee for just cause based on that initial conclusion,” says Huynh. “The TTC took proper steps in trying to investigate, assessing how they could best gather evidence to resolve any discrepancies, and then doing its due diligence by speaking with the new employer to gather the relevant information - making sure it had all the proper information before making that decision.”
Termination for cause
In the same meeting, the TTC terminated the worker’s employment for misleading management “by deliberately and fraudulently claiming and receiving sick benefits for which you are not entitled.” The termination letter stated that she had violated TTC rules and breached its trust.
The union grieved, arguing that the worker was placed in a difficult financial situation when her STD benefits were irregular. The worker maintained that she could have continued in the screening position and her main restriction as a fare inspector was wearing a bulletproof vest that aggravated her shoulder injury. She didn’t have to wear such a vest in her by-law officer job, so she could perform those duties while on sick leave from the TTC, she said.
The union also pointed out that the secondary employment form for fare inspectors didn’t exist when the worker was hired. In addition, one of the worker’s supervisors provided her with a reference, so she had no reason to believe she couldn’t seek supplemental employment, said the union.
“When the worker asked the supervisor for a reference letter, it seems like the supervisor didn't escalate that request to the employer's attention,” says Huynh. “So employers should ensure that supervisors and managers are brought up to speed and understand their role in implementing the employer’s policies, just so everyone's not acting in a silo by not communicating with others who need to know.”
The arbitrator noted that while the TTC's secondary employment rules had evolved over time and may not have been clearly communicated, one of its longstanding rules prohibited engaging in secondary employment while off duty due to sickness or injury. In addition, any employee should know that sick benefits fraud isn’t appropriate, the arbitrator said.
Accommodation inconsistency
The arbitrator also noted that accommodations from the TTC included modified duties, but the worker began a new job with similar physical activities. The worker’s argument that the bulletproof vest was the only thing preventing her from working as a fare inspector didn’t make sense when she was already working in an accommodated position with the TTC, said the arbitrator.
With regards to the irregular STD payments, by the time the worker started the new job the problem had been rectified, the arbitrator said.
While the arbitrator acknowledged the worker’s difficult personal circumstances, they didn’t outweigh the seriousness of the policy breach. The arbitrator also found no unreasonable privacy violation when the TTC contacted the other municipality during its investigation, finding the inquiry to be reasonable and necessary.
“There were certain actions by the worker that were so serious that all the mitigating factors the union was trying to put forward weren’t sufficient,” says Huynh. “If an employee is engaging in sick pay fraud, they should know better - not disclosing properly that she was taking on this new employment, the fact that that new employment involved similar things for which she needed accommodation with the TTC but didn't ask for with the new employer, there was inconsistency there.”
Abuse of sick benefits
The arbitrator determined that the worker’s conduct amounted to an abuse of sick benefits that strained the TTC’s trust “to the breaking point” and justified termination.
However, the arbitrator found that the worker didn’t receive STD benefits in the week before she started the new job, as the TTC declined to pay them after it discovered the worker’s misconduct. The TTC was ordered to compensate the worker for STD benefits for the period of July 18 to July 24, 2022, noting that they should have continued until the commencement of the new employment.
The termination grievance was dismissed.
“This was a very sympathetic employee - she's a single mother on disability leave and there was the delay in STD payments, so you can sympathize with the desperation she must have been feeling,” says Huynh. “But it doesn't give an employee carte blanche to violate the employer’s policy and engage in what is effectively sick pay fraud, because at the end of the day the employee needs to meet their contractual and legal obligations, just as employers are expected to do.”
