Employer used video surveillance of worker performing activities without restrictions
An Ontario employer had just cause to fire an employee who was videotaped performing actions contrary to medical restrictions while on medical leave, the Ontario Arbitration Board has ruled.
Sherry-Ann Curling, a packaging operator with Ready Bake Foods in Mississauga, Ont., experienced problems with her shoulder in February 2008. She gave Ready Bake a doctor’s certificate in May 2008 that said she was “unable to perform repetitive above shoulder activities” and she was on medication that made her dizzy, drowsy and susceptible to headaches. Ready Bake tried to accommodate her disability, but the nature of packaging operator work required substantial lifting and arm movement and it couldn’t find appropriate work for her.
Ready Bake asked Curling for confirmation from her doctor whether she could safely do her job while taking the medication, as the certificate didn’t specify that fact. It also asked for details on the treatment she was receiving to help it find suitable work for her.
Curling responded by saying her doctor was not able to tell the company whether she could do the job safely and she needed a functional ability specialist to determine that. She also said she was not receiving treatment because her workers’ compensation claim had been denied.
Ready Bake didn’t hear anything further from Curling and felt it didn’t have sufficient information to continue with accommodation efforts. It investigated further by using videotaped surveillance of Curling. The videotape captured Curling performing tasks that showed no apparent physical restrictions, including driving in reverse, carrying and loading groceries into her car, picking up and carrying a child and carrying a child’s car seat.
Ready Bake felt Curling’s activities were inconsistent with her absence from work. It also took into consideration that Curling had been suspended three times in the past year — one day for “unacceptable behaviour,” three days for unsafe operation of a forklift, and five days for psychologically harassing a co-worker. Ready Bake terminated Curling’s employment for serious misconduct in conjunction with her previous disciplinary record.
The arbitrator first determined the videotape evidence was admissible because it was relevant to the employer’s need to know Curling’s medical status. He then found Curling’s observed activities were “in direct and stark contrast to her stated restrictions.” This left little doubt to him she engaged in serious and premeditated misconduct, which warranted significant discipline. It also found Ready Bake had made extensive attempts to accommodate Curling’s restrictions and get her back to work, but Curling did little to participate in the efforts.
The arbitrator also found Curling showed little remorse or understanding of the seriousness of her misconduct. As a result, the employment relationship was damaged with no chance of rehabilitation. The arbitrator upheld her firing.
“By staying off work and, to put it charitably, grossly exaggerating her medical restrictions, (Curling) not only demonstrated a lack of reliability and trust but she failed to recognize that she had done anything improper at all,” said the arbitrator. See Ready Bake Foods Inc. v. U.F.C.W., Locals 175 & 633, 2009 CarswellOnt 7263 (Ont. Arb. Bd.).
