Surveillance prompts employer to confront worker over medical restrictions
This edition of You Make the Call features a worker who was accused of misrepresenting his medical restrictions following an injury.
Gerdau Ameristeel operates a mini steel mill in Whitby, Ont., where the worker was hired as a millman in 2003. In February 2013, the worker was moved into a mill finisher position, which involved physically demanding work. He had no discipline on his record.
A few months later, on May 23, 2013, the worker injured his right arm at work while lifting samples of steel onto a cart and moving them to a press where they would be cut into one-foot lengths. Each sample weighted between 15 and 20 pounds.
The worker saw his doctor, who diagnosed tennis elbow. Another doctor confirmed the diagnosis and filled out a functional abilities form (FAF) that recommended the worker not lift anything more than five kilograms, limit pushing with his right arm, no lifting above shoulder height, and no repetitive twisting or bending of his right elbow.
Gerdau developed a modified work plan that took into account his restrictions but enabled him to still do about 80 per cent of his job. Whenever the worker had a task that was beyond his restrictions, it would be assigned to someone else.
The worker continued to work under the modified work plan — supported by a June 24 FAF maintaining the same restrictions for another six weeks. On the last day before a vacation — July 9 — the worker told his supervisor that he was feeling better and was able to take on more demanding tasks.
Around the same time, Gerdau’s mill manager began to suspect the worker was feeling better than he let on, as other employees were complaining that they were being assigned heavy work that the worker couldn’t do under his modified work plan, but the worker was seen performing tasks beyond his restrictions outside of work.
The mill manager decided to hire a private investigating firm to conduct surveillance on the worker over the worker’s vacation. The firm observed the worker pulling a lawnmower cord several times, carrying a number of boxes and golf bags while moving into a new home, unloading boxes from his car, and returning items to a Walmart. In many cases, he was using his right arm to carry items and push dollies.
The mill manager reviewed video footage of the surveillance and the investigator’s report and concluded that several of the items the worker was seen carrying were heavier than five kilograms. He confronted the worker, but the worker denied doing any work outside his restrictions during his vacation. He also suggested Gerdau was assigning work beyond his restrictions.
The mill manager felt that this information, along with the worker’s insistence on scheduling physiotherapy appointments in the middle of the workday, showed the worker was “gaming the system” to avoid the physical demands of his job. He suspended the worker pending further investigation.
They day after the suspension, the worker’s doctor sent an FAF that indicated the worker was retroactively fit for full duties starting on July 5. This didn’t make sense to Gerdau since the June 24 FAF had indicated restrictions for six weeks. It was determined the worker was guilty of fraud by misrepresenting his medical restrictions and his employment was terminated on July 24.
You Make the Call
Was there just cause for dismissal?
OR
Was there no cause for dismissal?
If you said there was no cause for dismissal, you’re right. The arbitrator heard evidence from the worker’s doctor and physiotherapist confirmed that the worker was not fit for full duties up to July 2013. While he had improved, he still had problems and shouldn’t lift too much. The worker also explained that he tried to lift only lighter items during his move, though a few things may have weighed more the five kilograms.
The arbitrator found it was understandable why the mill manager found the timing of the worker’s disclosure that he was feeling better, right before his vacation, suspicious. However, the surveillance didn’t reveal definitive evidence that the worker was doing tasks beyond his restrictions — particularly since a couple of hours of intermittent work off-duty was different that several hours of constant and repetitive work. The arbitrator also found the timing of the new FAF just before the surveillance was coincidental.
However, while the worker wasn’t dishonest about his restrictions and inordinately prolonging his accommodation, he wasn’t straight with the employer about his vacation activities and he risked reinjuring himself when he was still officially on modified duties.
Since the worker had no prior discipline, dismissal wasn’t appropriate for the lesser misconduct of trying to hide his vacation activity — less serious than misrepresenting his restrictions. Gerdau was ordered to reinstate the worker once he obtained an updated FAF. Since the worker demonstrated some dishonesty in his dealings with the employer, his compensation for lost earnings was not to include the first six months out of the 32 months since his dismissal. See Gerdau Ameristeel – Whitby and USW, Local 6571 (Spulnick), Re, 2016 CarswellOnt 5021 (Ont. Arb.).
