CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 3322
Heard in Montreal, Thursday, 16 January 2003
CANADIAN NATIONAL RAILWAY COMPANY
UNITED TRANSPORTATION UNION
Dismissal of Mr. A. Weir for "Misrepresentation of an alleged injury".
UNION'S STATEMENT OF ISSUE:
On August 13, 2002, the grievor, Mr. A. Weir, was required to undergo a Company investigation in "connection with the circumstances surrounding misrepresentation of alleged personal injury sustained May 28th, 2002 while employed as Yard Operating Employee on the 00:01 Westbound Assignment in Sarnia, Ontario."
As a result of the investigation, Mr. Weir was discharged from the service of the Company effective August 14, 2002.
The Union appealed the dismissal as excessive and unwarranted and requested the reinstatement of Mr. Weir without loss of seniority and compensated loss wages and benefits.
The Company declined the Union's appeal.
FOR THE UNION:
FOR THE COMPANY:|
(SGD.) B. HOGAN
MANAGER, WORK FORCE STRATEGIES
There appeared on behalf of the Company:
- Counsel, Montreal
And on behalf of the Union:
- Counsel, Toronto
AWARD OF THE ARBITRATOR
The grievor, Mr. A. Weir, was discharged for what the Company considered to be a fraudulent claim of injury. It is common ground that the grievor worked as a Yard Operations Employee (YOE) at Sarnia, and that his claim of injury resulted from the sideswiping of his yard movement, the 0001 Westbound assignment. The grievor reported an injury to his left shoulder and lower back and was seen later that day at the emergency room of the Sarnia General Hospital. He was then diagnosed as being fit for modified duties May 28 until June 3, 2002, and directed to avoid climbing and lifting.
Almost immediately the Company decided to engage in surveillance of the grievor to verify his injury claim. On May 30, 2002 a private investigation company was hired to observe and videotape the activities of the grievor at his residence and elsewhere. The Company's representatives submit that the decision to conduct surveillance of the grievor was based on a number of factors, including the grievor's apparent ability to function during the shift after the sideswiping incident, certain inconsistencies in his description of his injuries made to separate supervisors, the plausibility of an injury to his left shoulder, as opposed to his right shoulder, given the direction of travel at the time of the collision, and the fact that the grievor had a record of thirteen prior on duty injuries over a period of twelve years, three of which occasioned compensable leaves of absence of some duration, in 1990, 1995 and 2001, respectively. The evidence further indicates that the grievor attended a Company investigation into the incident of May 28, 2002 at a hearing held on May 31, 2002. During the course of that investigation the Company emphasised the prior injuries incurred by the grievor and questioned whether the back and shoulder injury he experienced might not have been as a result of previous injuries to his left shoulder, lower back and neck. The grievor indicated that he was not qualified to make that assessment and responded affirmatively when asked whether he would be prepared to make himself available to the Company's medical provider, Medisys, for evaluation.
The evidence discloses that shortly thereafter the grievor provided the Company with further attending physician's reports which extended the period of his absence and, over time, appeared to expand the range of his physical limitations. Those reports were issued by his personal physician, as well as a chiropractor to whom he was referred by his physician. The reports would have kept him out of service from the day of the incident through August 22, 2002. It is common ground that during all of that period the grievor regularly attended physiotherapy sessions.
It appears that the grievor was placed under videotape surveillance for a substantial period of time in the period of May through July of 2002. The videotape evidence cannot be characterized as revealing Mr. Weir performing substantial activities comparable to the physical activity that would have been required of him working as a yard operations employee. Given the extensive period of time over which the surveillance was taken, spanning several weeks, the incidents of questionable activity are relatively limited. On one occasion the grievor is observed carrying a case of soft drinks from the front of his house to the back. That occurrence was apparently recorded on June 1, 2002. On the same day he was observed assisting his wife in carrying a folded table from his garage to the back yard of his residence, as well as a further load of what appears to be two cases of pop from his house to the back yard. Substantially later, on or about July 26, 2002 he is observed purchasing and carrying two bottles of chlorine, as well as two barbeque propane tanks, with an estimated weight of approximately thirty-five pounds each.
On the basis of the evidence gathered through the videotape surveillance of the grievor the Company formed the view that he was carrying out activities inconsistent with his physical limitations and that he was in fact defrauding the Company on the basis of a falsely claimed injury. Its conclusion in that regard appears to have been prompted in part by the opinion of a Company physician. On August 6, 2002 Dr. Ron Lindzon forwarded to Supervisor Anthony Marquis the following letter in the form of an email:
The evidence of Mr. Marquis, which the Arbitrator accepts as truthful, is that he requested the opinion of Dr. Lindzon to assist him in deciding whether to conduct a second disciplinary investigation of Mr. Weir. He confirms that on the basis of the doctor's report he decided to do so. He also indicates, however, that a copy of Dr. Lindzon's opinion was provided to the investigating officer, Mr. Terry Lee, who conducted the investigation on August 13, 2002. It is not disputed that although Mr. Lee, who recommended the termination of Mr. Weir, and Mr. Marquis, who was ultimately responsible for the final decision in that regard, were both in possession of the letter of Dr. Lindzon at the time of the investigation, that letter was not provided to the grievor or to his union representative at any time prior to his discharge.
The evidence further indicates that on August 6, 2002 Company Risk Officer Paul Richings forwarded the letter of DR. Lindzon and copies of the two video surveillance tapes to the Workplace Safety and Insurance Board (WSIB), stating the Company's position that the Company considered his claim to be false and objecting to the allowance of any benefits under his claim. The letter further suggested that the Board might consider referring the case for prosecution.
The claims adjudicator of the WSIB, Mr. Shawn Spratt, was not impressed. In a decision dated October 31, 2002 he indicates that he closely considered the surveillance tapes taken between May 31, and July 28, 2002. His decision, which is obviously not binding on the Arbitrator for the purposes of this grievance, reflects, in part, the following findings:
The Arbitrator is advised that the Company has appealed the adjudicator's decision.
There are two issues to be addressed. The first concerns the procedure whereby the Company conducted the investigation leading to the grievor's discharge. The second relates to the merits of the Company's conclusion that the grievor was malingering.
I deal firstly with the procedural issue. Counsel for the Union submits that the Company violated the obligation to provide a fair and impartial investigation by withholding from the grievor and his Union the letter of Dr. Lindzon dated August 6, 2002, a letter which remained in the possession of the investigating officer as well as the Company officer who ultimately made the decision to discharge Mr. Weir. Article 82.2 of the collective agreement deals with disciplinary investigations and provides as follows:
It is not disputed that the foregoing provision establishes the basis for what has generally been characterized as a "fair and impartial" investigation, a precondition to the assessment of discipline against any employee. Central to the issue in the case at hand is the right of the employee "... to hear all of the evidence submitted and ... be given an opportunity through the presiding officer to asks questions of witnesses whose evidence may have a bearing on the employee's responsibility."
It is difficult for the Arbitrator to conclude other than that the professional opinion of Dr. Lindzon was evidence in the hands of the Company, indeed evidence having a substantial and prejudicial bearing on the employee's responsibility within the meaning of article 82.2 of the collective agreement. For reasons which the Company's officers best appreciate, however, that evidence was never shared with the grievor, nor with his Union representative, and prior to the employee's discharge no opportunity was provided for the grievor or his Union representative to question Dr. Lindzon on his opinion or to offer any rebuttal to it.
This Office has had a number of prior occasions to consider the principles which govern the application of provisions such as article 82.2 of the instant collective agreement. It is well settled that a violation of these provisions amounts to the denial of a substantive right, the consequence of which is to render any discipline void ab initio, regardless of the merits of the case. The reason for that firm rule is to safeguard the integrity of the expedited grievance and arbitration process established within the railway industry and the Canadian Railway Office of Arbitration. That reality is well reflected in the decision of this Office in CROA 1734, a case involving the instant Company and the Brotherhood of Maintenance of Way Employees. The following excerpt from that award reflects the governing principles:
There is nothing unduly burdensome in the Company's obligation to conduct a fair and impartial investigation. Very simply, it is incumbent upon the investigating officer to provide to the employee and his union representative all of the evidence relevant to the employees' responsibility which is in the officer's own hands. In a case such as the grievance at hand, where the only issue was a question of medical opinion as to the bona fides of the grievor's injury, and the only medical opinion in the hands of the Company was the letter of Dr. Lindzon essentially accusing the grievor of faking his injuries, it is difficult to understand on what basis the Company could properly withhold such an obviously prejudicial document from the employee and his Union. While it is true, as Counsel for the Union suggests, that even Dr. Lindzon's opinion may be somewhat qualified, as he indicates that he views the grievor as able to perform "a medium level workload", which might be something less than the heavy physical burden performed by a YOE, the fact remains that the letter constitutes a professional medical opinion to the effect that the grievor is apparently able to perform tasks inconsistent with his stated limitations. By any account it must be viewed as a document which the Company was under an obligation to provide to the Union, to the extent that it would have a bearing on his responsibility, and to allow the grievor and his union the opportunity to ask questions of Dr. Lindzon, if they should deem it necessary to do so.
On what other basis can the securing of the letter of opinion from Dr. Lindzon be understood? I accept the evidence of Mr. Marquis that his intention was to verify with the Company's physician the conclusions to be drawn from the videotape evidence, as a matter preliminary to his own decision to conduct a formal investigation. The fact remains, however, that if the Company's officer believed that the videotape was itself sufficient evidence to conclude that the grievor was malingering, there would presumably be no need to consult Dr. Lindzon. The inescapable conclusion, on the balance of probabilities, is that the physician's opinion was central to the Company officers' own judgement leading to the grievor's discharge.
These observations are not to suggest that Company officers conducting a disciplinary investigation need be legally trained and adhere to trial-like rules of evidence. The standard to be met is basic fairness. By any reckoning, withholding from an accused employee a piece of documentary evidence which effectively condemns him or her, and is arguably central to the Company's decision to terminate, is beyond the most basic standard of a fair and impartial proceeding, and beyond the express requirements of article 82.2. of the instant collective agreement. In this regard, the general principles governing investigative procedures were commented upon in the following terms in CROA 2643:
Bearing the foregoing jurisprudence in mind, and in light of the clear requirements of article 82.2 of the collective agreement, I am satisfied that in the instant case the Company did violate article 82.2 of the collective agreement in failing to give the grievor and his Union representative a copy of the letter of professional opinion provided to the employer by Dr. Lindzon, a document which, it is admitted, was in the possession of both the investigating officer and the superintendent who ultimately made the decision to discharge the grievor. On that basis alone it is well settled that the grievance must be allowed, with the discipline in question being voided, ab initio (see CROA 1475, 1734 and 3061).
In the alternative, regardless of the merits of the issue relating to article 82.2 of the collective agreement, the Arbitrator would also have difficulty sustaining the grievor's discharge on the basis of the evidence relied upon by the Company. In essence, the videotape material showing Mr. Weir engaged in activities inconsistent with his limitations is extremely thin. While the surveillance took place over a period of a number of weeks, the total time in which he is seen to be doing questionable activities, such as handling barbeque propane tanks and carrying cases of pop, involved only minutes and, in the case of the propane tanks, occurred relatively late in his period of physical rehabilitation. The evidence, some of which was apparently not available to the Company, also indicates that at the time Mr. Weir was taking powerful prescription painkillers, including percocet. On the whole, therefore, the activity of only a few minutes over the period of several weeks falls short, in the Arbitrator's opinion, of establishing that the grievor was engaged in making a false claim, and thereby defrauding his employer. In my view the case at hand is strongly to be distinguished from the kind of extensive and sustained physical activities inconsistent with an injury reflected in other awards of this Office (see, e.g., CROA 2707).
Among the materials provided to the Arbitrator is a letter dated September 13, 2002 signed by the grievor's chiropractor, Dr. Robert Waybrandt. He offers an opinion categorically opposed to that of Dr. Lindzon. He relates that he viewed the video surveillance and consulted with the grievor's personal physician, concluding: "... we were both in agreement that the tasks that Mr. Weir performed were possible with his condition although he would be unable to do same activities on a repetitive basis. The activities performed may have caused discomfort later in the day or the following day. The medication he was taking possibly aided his ability to perform these tasks."
Bearing in mind that the Company has the onus of proof in this matter, and that an allegation as serious as fraud requires a high standard of clear and cogent evidence, what the case at hand presents is evidence which is equivocal at best. While the Arbitrator can appreciate the suspicions of the Company, particularly in light of the fact that the grievor's stated limitations appeared, at least for a time, to increase as he was under the care of his chiropractor, the employer is nevertheless under an obligation to present evidence which compellingly establishes, on the balance of probabilities, that the grievor falsified his injury. That is not confirmed on the evidence before the Arbitrator.
Given the disposition of this grievance on its merits it is unnecessary for the Arbitrator to deal with the Union's objection as to the Company being justified in its resort to video surveillance in the circumstances. For all of the foregoing reasons the grievance must be allowed. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and with compensation for all wages and benefits lost.
|January 20, 2003||(signed) MICHEL G. PICHER ARBITRATOR|