Staffer lied about knee injury
Tony Dolce claimed he was unfairly terminated after taking an injury-related absence.
Dolce was dismissed on June 27, 2013, after an investigation by Ontario-based business Agropur found Dolce was dishonest about time off related to a knee injury.
On May 30, 2013, Dolce presented the employer with a note from his doctor explaining the recent inflammation of an old knee injury prevented him from doing his usual work. The note requested Dolce be moved to light duties or be off work for a period of up to two weeks.
Light duties were not accommodated, and so Dolce took time off. Because of Dolce’s poor attendance record, the employer requested an investigative research group conduct surveillance.
Video evidence shows Dolce carrying sheets of plywood, climbing stairs without the aid of a handrail and jumping down from the tailgate of a pickup truck without any difficulty.
The employer also reported Dolce walked with a pronounced limp when he visited the workplace during his absence but that the limp disappeared when he was off company property.
Dolce was asked to attend a meeting on June 27, 2013. When confronted with the information that the employer had conducted surveillance, Dolce denied he was active during his absence.
He denied he was the person shown in the video surveillance and suggested the evidence might feature his son in a case of mistaken identity. He maintained that he was in constant pain and largely immobile. The meeting concluded with Dolce’s dismissal.
"You have been absent from work since May 31, 2013, and advised the company that this absence was related to knee problems you were experiencing. You informed us that you were entirely incapable of working," his letter of termination read.
"However, the company understands that you have been very active while away from work which is completely inconsistent and contradictory to your claim of total disability. Moreover, your absence from work is entirely culpable and fraudulent."
The Milk, Break Drivers, Dairy Employees, Caterers and Allied Employees Union Local 647 filed a grievance on Dolce’s behalf, submitting there was no just cause to terminate him and requesting he be reinstated with full back pay.
The union said Dolce’s dismissal proceeded on the basis Dolce claimed he was totally disabled, arguing he made no such claim. Rather, Dolce submitted a note from his doctor requesting light duties for a short period of time. The union further argued the short periods of activity shown in the video surveillance was not remotely comparable to Dolce’s job.
The company argued Dolce’s activities — as demonstrated in the video surveillance — indicate he had the functional ability to perform the job. The employer also referenced Dolce’s dishonesty during his meeting with management and his continued denial that he was the man pictured in the video evidence.
According to arbitrator O.B. Shime, the employer placed too much weight on its video surveillance.
"Surveillance evidence, as a general rule, should be weighed with caution. That type of evidence usually consists of brief snapshots or snippets of a person’s activities," Shime said. "It is my view that the medical evidence which demonstrates an actual medical condition… trumps the surveillance evidence."
Because of Dolce’s poor attendance, Shime said, the employer did not give due consideration to his doctor’s note and failed to take reasonable measures to accommodate him. And while Shime agreed Dolce was not a credible witness, his untruthful testimony cannot form the basis for denying him an appropriate remedy.
Shime ordered Dolce be reinstated to his position with full seniority but without compensation. Shime also ordered a three month suspension for dishonesty coupled with a warning Dolce may be discharged for similar behaviour in the future.
Reference: Agropur, Division Natrel and the Milk and Break Drivers, Dairy Employees, Caterers and Allied Employees Union Local 647, affiliated with the International Brotherhood of Teamsters. O.B. Shime — Arbitrator. John Mastoras for the employer, Micheil Russel for the union. Sept. 5, 2014.
