Disabled employee fired for misleading employer

Difference between the way worker carried herself at work and that observed outside of work was like ‘night and day’

Making an effort to accommodate an employee’s disability is required under employment law principles, and employers must do everything reasonable and within their ability to make arrangements — whether it means modified duties, modifications to the work environment, or flexible working hours — to the point of undue hardship. However, the accommodation process requires participation not just by the employer, but also the employee. If the employee doesn’t do her part or is dishonest about her requirements, it can free the employer of its duty to accommodate — and might seal the fate of the employee’s employment.

An Ontario employer had just cause to fire an injured employee who misled it on her ability to perform her regular job duties, an arbitrator has ruled.

The employee, who remained anonymous during the arbitration and was referred to only as S.L., was a multimedia journalist for the Toronto Sun newspaper. The 43-year-old had worked for the Sun since 1991.

In January 2001, S.L. severely injured her left ankle in a skydiving accident in Florida. She had surgery that involved placing screws in the ankle and her mobility was affected afterwards. The Ontario Workers’ Safety and Insurance Board (WSIB) gave her a non-economic loss award and she was off work for about six weeks.

The Sun accommodated S.L.’s disability by providing her with a laptop computer so her work assignments could be done at home. She wasn’t given assignments that required physically visiting locations, as she was unable to drive or use public transit, and she needed to use two canes to walk.

After a couple of years, S.L.’s condition didn’t improve, so she underwent a second surgery in September 2003 and a third in April 2006. However, she continued to experience pain that required strong medication.

In March 2006, shortly before S.L.’s third surgery, the Sun requested her to return to the workplace, as it understood that she was at maximum recovery and wasn’t going to improve any further. S.L. continued to work from home and on June 20, 2006, the Sun informed her that her position was no longer needed and she was being laid off, though she wasn’t the most junior reporter. Three days later, the layoff was rescinded and the Sun told her she would be returning to work full-time as a general assignment reporter.

Return to office with restrictions

S.L. returned to the workplace on June 26. She wasn’t required to do any work outside the office and was able to perform all her duties from a desk. However, she testified her desk wasn’t ergonomic and she was in significant pain by the end of each day.

S.L. saw her doctor on June 28 and he provided her with a note that said she required a “pain consult” before returning to work. S.L. gave this note to management, but the Sun felt she had been cleared to return to work by the WSIB with accommodations. S.L. tried to work from home again but was told there were no modified duties that could be done from home as a general assignment reporter, which had assignments different from the niche stories she had been assigned when working from home earlier.

On July 17, the Sun wrote to S.L. stating that the WSIB had indicated there was no medical reason for her not to be working full-time as a general assignment reporter. The union indicated it would send additional medical information to the WSIB and the Sun, so the Sun agreed to review the information and decide on the next course of action.

In the fall of 2006, S.L. provided two medical reports from different doctors that indicated she had chronic pain requiring medication and limited motion, resulting in a “permanent disability.” Graduated return to work hours were recommended along with “sedentary work to get her pain under control.” The reports also indicated she needed an ergonomic chair, headset, footrest and limits on walking and standing. The Sun complied with the accommodation instructions and S.L. returned to work in December 2006. However, she still had difficulties with the front door — which didn’t have an automatic opener and the washroom door, which led to a fall coming out of the washroom.

In February 2007, S.L. had a functional abilities evaluation, which described the need to walk with canes, no carrying or standing and little stair climbing. A few months later, the WSIB denied a claim for lost earnings benefits for the period she was off work between June and December 2006 because it determined she was capable of performing modified work within her restrictions that the employer provided.

The Sun’s accommodations meant that S.L. was unable to go out into the field, so occasionally other reporters had to complete her work if that was required. S.L. always walked slowly with two canes while in the office. However, her work was considered good and she won three awards between 2007 and 2010 for her articles.

S.L. occasionally provided WSIB functional ability forms, which listed walking and lifting restrictions as well as an inability to use public transit or drive a car. A form submitted in September 2010 omitted any mention of an inability to drive, but S.L. never indicated she had improved to the point where she could drive or take public transit.

Rumours raised suspicions about employee’s abilities

The Sun’s editor-in-chief sometimes heard from people that S.L. was seen walking more easily outside the office. He initially dismissed these reports, though he once asked S.L. to attend a press conference at Toronto city hall because they were short staffed. However, S.L. came into his office crying and saying she was in too much pain. Another reporter was assigned.

The editor-in-chief heard more accounts of S.L.’s abilities outside of work — including that she drove to work, parked in a nearby lot and walked to the office — so in December 2011 it was decided to conduct surveillance on her to assess her condition.

A private investigator followed S.L. around and observed her at her home and other locations over the next week. She was observed driving her car regularly to run errands and performing activities such as scraping her windshield, carrying boxes, reaching into her car’s trunk, and a two-hour driving trip to Buffalo. Sometimes she walked with a cane and sometimes without, occasionally at a brisk pace and often for distances greater than 100 metres, her limit at work.

When the investigator showed video footage of these activities to Sun management, they were surprised and felt the difference between the way S.L. carried herself in the office and outside of work was like “night and day.”

The associate city editor and the director of HR met with S.L. and a union representative on Dec. 23 to discuss if S.L. would be able to go into the staff rotation as they would be short staffed in the coming year. S.L. didn’t answer directly but said she was wiped out after the one assignment that required her to go out for an interview. The editor asked her if she was able to drive and she said “no.” Afterwards, the editor-in-chief reviewed the video and felt S.L. was a different person outside of the workplace in terms of her physical activity.

A meeting was held on Jan. 10, 2012, in which S.L. was shown the video and asked to explain the situation. However, S.L. simply took notes and said nothing. S.L. later testified she was in shock and had been told by the union not to say anything. Later that day, she sent a letter apologizing for “poor judgment on my part” by defying her doctor’s recommendations and any hurt she caused. The short letter concluded with the remark, “my greatest sorrow is that I was not honest with you.”

For the Sun, the letter confirmed S.L. had been dishonest about her abilities and the “debilitating pain” she claimed to suffer most of the time at work, but not seemingly outside of work. From its perspective, the letter was an apology for being caught, not an indication of true remorse for her dishonesty. The Sun terminated S.L.’s employment on Jan. 11, 2012.

S.L. grieved the termination, claiming she had good days and bad days and sometimes her injury felt better outside of work because there was less physical demand on her. She said she could walk without difficulty for short periods of time, but she needed canes at work because she had to take medication to get through the day.

The arbitrator found there was no doubt S.L. had a disability caused by her injury and her conduct in the workplace, along with her medical documentation on her restrictions, led the Sun to believe she was incapable of driving or working outside the office.

However, the arbitrator agreed with the Sun that her activities in the surveillance video were inconsistent with the abilities represented to the newspaper.

The arbitrator pointed out, as an example, that it would be expected S.L. would have more pain when not taking medication, but it seemed in the surveillance that she moved easily when driving her car, during which she wouldn’t be taking the drugs. This also didn’t explain how she could make a two-hour drive if her pain was too bad to make short drives for work, said the arbitrator.

The arbitrator also found it unlikely S.L. was in shock when shown the video because she sat quietly and took notes. In addition, the apology letter was short and didn’t ring true in context with the meetings.

Ultimately, the arbitrator determined S.L. had covered up the fact she had been driving for some time, as well as her other abilities. This wasn’t an isolated incident and took place over a long period of time. While she had doctor’s reports on the pain and limitations, these relied on what she reported to her doctors and could be exaggerated, particularly since the reports didn’t explain what was seen in the video, said the arbitrator.

The arbitrator found S.L. suffered from adverse treatment in her employment because of her disability — she was subjected to surveillance because of her medical restrictions and was terminated as a result of that surveillance — but the information the Sun had gave it reasonable and probable cause to suspect dishonesty. Though S.L. wasn’t given a warning, she was given an opportunity to explain herself and she refused. She also continued to say she couldn’t drive.

The arbitrator found the investigation and dismissal of S.L. was were not motivated by discriminatory intent but rather were reasonable responses to being misled by her. The termination was upheld.

For more information see:

Toronto Sun and Unifor, Local 87-M (L. (S.)), Re, 2014 CarswellOnt 5945 (Ont. Arb.).

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