Dismissal was reasonable response to being misled: Arbitrator
An Ontario newspaper had just cause to fire an injured reporter who was misleading about her ability to perform her regular duties, an arbitrator has ruled.
The employee, referred to as S.L., was a multimedia journalist for the Toronto Sun. The 43-year-old had worked for the Sun since 1991.
In January 2001, she severely injured her left ankle in a skydiving accident. She had surgery and was off work for about six weeks.
The Sun accommodated S.L. by providing her with a laptop so her assignments could be done at home. She wasn’t given assignments that required her going out of the office.
In March 2006, the Sun requested she return to the workplace, as it understood she was at maximum recovery. But S.L. continued to work from home and, on June 20, she was informed her position was no longer needed and she was being laid off. Three days later, the layoff was rescinded.
Return to work
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 her duties from a desk.
On June 28, S.L. provided a doctor’s note saying she required a “pain consult” before returning to work. However, the Sun felt she had been cleared to return to work by the Workplace Safety and Insurance Board (WSIB) with accommodations and there were no modified duties that could be done from home as a general assignment reporter. The Sun felt the WSIB had indicated there was no medical reason for her not to be working full-time.
In the fall of 2006, S.L. provided reports from two different doctors that indicated she had chronic pain and limited motion. Graduated 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 instructions and S.L. returned to work in December 2006.
In February 2007, she had a functional abilities evaluation, which demonstrated her need to walk with canes and have restrictions on carrying things, standing or climbing stairs. The accommodations meant S.L. was unable to go out into the field, so occasionally other reporters had to complete her work. She walked slowly with two canes while in the office.
Occasionally, S.L. provided WSIB functional ability forms, which listed walking and lifting restrictions as well as an inability to use public transit or drive a car.
But the Sun’s editor-in-chief sometimes heard from other employees that S.L. was seen walking more easily outside the office. When he asked her to attend a press conference at city hall because they were short staffed, she came into his office crying and saying she was in too much pain.
Rumours persisted of S.L.’s abilities outside of work — including that she drove to work, parked in a nearby lot and walked to the office. In December 2011, a decision was made to conduct surveillance.
A private investigator followed S.L. around for one week. She was observed driving her car regularly and performing activities such as scraping her windshield, carrying boxes and driving two hours to Buffalo, N.Y., to shop. 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.
The associate city editor and 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. S.L. said she was wiped out after one assignment out of the office. The editor asked her if she was able to drive and she said “no.”
On Jan. 10, 2012, S.L. was shown the video and asked to explain. However, S.L. simply took notes and said nothing. She 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” by defying her doctor’s recommendations. 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. From its perspective, the letter was an apology for being caught, not an indication of remorse. Her employment was terminated 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 were fewer physical demands. She said she could walk without difficulty for short periods of time, but needed canes at work because she was on heavy medication to get through the day.
The arbitrator found there was no doubt S.L. had a disability caused by her injury. However, the arbitrator agreed that her activities in the surveillance video were inconsistent with the abilities represented to her employer.
As an example, it would be expected S.L. would have more pain when not taking medication, but the surveillance showed she moved easily when driving her car, during which time she wouldn’t be on her medication, said the arbitrator. 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.
It was also unlikely S.L. was in shock when shown the video because she sat quietly and took notes, said the arbitrator.
The arbitrator determined S.L. had covered up the fact she had been driving for some time, as well as misleading the Sun on her other abilities. Though she had doctors’ reports, these relied on what she told her doctors and could be exaggerated, said the arbitrator.
The arbitrator found the investigation and dismissal were not motivated by discriminatory intent but rather were reasonable responses to being misled about S.L.’s disability. The termination was upheld.
For more information see:
• Toronto Sun and Unifor, Local 87-M (L. (S.)), Re, 2014 CarswellOnt 5945 (Ont. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, see www.employmentlawtoday.com.
