BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

A hearing in this matter was held in Toronto on March 11, 1996

This arbitration concerns the discharge of Carman R. Rowe for allegedly misappropriating Company funds relation to a Workers’ Compensation benefits claim.

The dispute and joint statement of issue filed at the hearing are as follows:

The facts relating to the grievance are not in substantial dispute. The grievor has been employed as a carman at Thornton Yard at Vancouver for some 18 years, having first been hired on July 11, 1978. During the course of his duties, on April 24, 1991, the grievor slipped on a wet brakeshoe and injured himself. He was diagnosed as suffering "acute insertional tendonitis at the right vastus medials at the cubus, with strain to the right greater torcbantor". He remained off work until June 20, 1991 when he returned to his regular duties. However, be continued to experience pain and was returned to light duties, on the recommendation of his physician, on January, 1992. He was scheduled to continue on light duties until February 6th. It appears that at about that time Mr. Rowe expressed anger to the Company when he was passed over for an opportunity of performing an overtime shift on or about the 4th of February, 1992. It appears that on coming to work on the 5th, he stated to shift supervisor, Bob Peters, "If I’m not good enough to come in on overtime, then I’m not good enough to come in on my regular shift, I’m going back on compensation".

In fact, having completed his third light-duty shift on February 5th, 1992, the grievor reported to the Company on February 6th that due to his injuries he would be unavailable for work for some two weeks. He then advised that his doctor counselled that he not perform light duties at that time. Further, upon inquiries being made by the Company on February 14, 1992, as to Mr. Rowe’s availability for modified or light duties, he again indicated that his physician advised against it and he could not be available for such work. The Company disagreed with the position taken by the grievor, and registered its protest with the Workers’ Compensation Board in respect of reopening Mr. Rowe’s claim. The grievor’s claim for Workers’ Compensation benefits was initially allowed, for the period between February 6th and his eventual return to work on June 23, 1992. That decision was initially reversed, however, by a claims adjudicator, based on the Company’s objection. Finally, however, the Review Board of the WCB restored the original decision, confirming the grievor’s entitlement to WCB payments. That determination was reversed in favour of the Company by the Appeal Division, on February 23, 1994, however, upon a subsequent appeal by Mr. Rowe, the Appeal Division reversed that conclusion and reinstated his entitlement to benefits in a decision dated June 23, 1995. The Board concluded, in part:

The evidence reveals that based on the grievor’s ill-advised comments to his supervisor about the denial of overtime, and his subsequent refusal to accept modified duties, the Employer developed suspicions that he was malingering, and eventually took steps to either confirm or disprove its suspicions. It did not do so, however, for a considerable period of time. The evidence discloses that only in late May and early June did the Employer engage the services of the CN police to conduct videotape surveillance of the grievor’s activities at his home and during the course of local errands.

The Union objected to the reliability and completeness of the videotape evidence which was sought to be entered as proof by the Company. Its representative expressed concerns that the videotape had been edited, that the material presented at the hearing was not all of the videotape taken by the two CN police officers, and also that verbal comments which they had made, which would have been negative to the Company’s case, were eliminated by the omission of the entire soundtrack. In the result, the Union requested that the arbitrator order the Company to produce the original of the tapes taken by the two CN officers, a request which was granted by the arbitrator, with an extension of time to allow both parties to make submissions on the fuller versions of the videotapes to be supplied. It should be stressed that the position of the Company, which the arbitrator has no basis to reject, is that the editing of the videotapes was merely to shorten the material by eliminating portions which did not involve any activity on the part of the grievor, or during which the camera may inadvertently have been left on by the investigators.

Following the hearing, the arbitrator received submissions from both parties with respect to the more complete versions of the original videotapes provided by the Company. The Union protests, in part, that there are still portions of the video which appear to be missing, based on its comparison of the videotape material and the written notes taken by the two investigators. The Company submits that it has, in fact, complied with the arbitrator’s request, and stresses that two separate video cameras were used during the course of taping, one of which did not have any audio function while recording. I can see no reason to reject the explanation provided by the Company, and I am satisfied that it did comply with the direction issued at the hearing. In any event, for reasons touched upon below, given the ultimate disposition of this case upon its merits, the issue of the reliability of the videotape is not controlling to the outcome of this grievance.

The videotape evidence was, by any fair estimate, taken at a relatively late period in the grievor’s absence from work. The tapes presented at the arbitration were taken over a period of days, between May 29, 1992 and June 11, 1992.

I do not consider it necessary to deal in great detail with the content of the tapes, the quality of which, it must be said, is not of a high calibre. Essentially what the tapes depict is Mr. Rowe performing what can fairly be described as light yard activities for relatively short periods of time around his home. He is seen handling instruments such as rakes and shovels, turning soil, kneeling while laying some interlocking stones over a small area, and carrying items such as a single board or, on one occasion, a set of wooden stairs from one location to another. He is also seen to be cutting his grass with a power lawn mower and carrying a bag of grass cuttings. There is, moreover, a concern about the correlation between the notes taken by the officers conducting the surveillance, and what appears on the video itself. For example, there is reference at some points to the grievor pushing a lawn roller. There is, however, no visible evidence of any such activity on the screen.

Most importantly, in the arbitrator’s view, when the activities of Mr. Rowe are viewed as a whole, as they appear in the video surveillance evidence, they are less than compelling to establish a course of outright fraud on the grievor’s part. Firstly, Mr. Rose was observed at a relatively late portion of his rehabilitation period, not long before he in fact returned to work. It is, in my view, important to appreciate that the activities which he might perform around his home in late May or early June of 1992 could be more burdensome than those at the outset of his period of rehabilitation, in early February of the same year. Considering that the grievor returned to work little more than 10 days after the final day he was videotaped by the CN police, it is not unreasonable to expect that he might have been capable of some light degree of physical activity at the time he was observed. It is common ground that, in fact, Mr. Rowe had been advised by his physician, Dr. Yorke, to engage in relatively normal day-to-day activities as a form of work hardening, in addition to his therapy, which included activities such as swimming.

This arbitrator has had occasion to consider a number of cases where videotape evidence has disclosed strenuous or heavy activity being engaged in by an employee who contemporaneously claimed an inability to perform his or her regular duties (see e.g. SHP 280, CROA 2184, 2414, 2302 and 2707). This case, and the activities which the videotape evidence discloses with respect to Mr. Rowe, is not comparable to those clear cases of fraud. Moreover, as was noted in CROA 2414, "… the arbitrator appreciates there should be some latitude for a degree of light activity in the latter stages of convalescence from an injury". In my view, upon a careful review of the videotape evidence, I am satisfied that the activities engaged in by Mr. Rowe at the late stages of rehabilitation, when he was observed by the CN police officers, would fall well within that category. That, moreover, appears to be reasonably consistent with the ultimate conclusion drawn by the Workers’ Compensation Board authorities.

The foregoing conclusion does not, however, fully dispose of this case on its merits. While I am satisfied that the activities engaged in by the grievor in late May and early June of 1992 did not constitute a violation of a duty to his employer, there is nevertheless evidence which would suggest that his refusal of modified duties, of a nature such as performing digital operations on computerized equipment, is questionable. While it appears that Mr. Rose could technically assert to the employer, as he did, that his doctor counselled against light duties, it is far from clear on the evidence before the arbitrator that the doctor’s advice was given on a considered basis, with a full understanding of the nature of the duties which were being offered to Mr. Rowe. For example, during the course of the Company’s disciplinary investigation, Mr. Rose responded that he could not perform modified light duties such as K.D.T. inputting and A.A.R. billing "on advice from my physician". In fact, however, the record as to the opinion of Dr. A.J. Yorke is somewhat less compelling. In fact, a letter from Dr. A.J. Yorke dated February 24, 1992 addresses the grievor’s fitness to perform light duties. That letter reads, in part, as follows:

In fact, the record if devoid of any affirmative opinion by Dr. Yorke, or any other physician, which would support the conclusion that the grievor was directed to stay away from the lands of light office duties which were being offered to him by the Company. In the result, while the arbitrator is satisfied that the grievor did suffer an injury, was under care for his injury between early February and late June of 1992, and was not malingering or performing physical activities at his home which were inconsistent with his claim for Workers’ Compensation benefits, the evidence raises substantial concern about the grievor’s failure to accept the light duties being offered by the Company. I am satisfied, on the balance of probabilities, that Mr. Rowe could have performed the light office duties offered to him, and that his invoking of his doctor’s opinion to the contrary was doubtful, at best. For that lack of candour, and refusal to perform light duties, he was, in my opinion, deserving of discipline.

The issue then becomes the appropriate measure of discipline in the circumstances. In determining that question, a number of factors must be considered, including the length and quality of the grievor prior service. Mr. Rowe can fairly be described as a long-service employee having been with the Company since 1978. Prior to the events giving rise to his discharge, be had a relatively positive discipline record, having been disciplined only twice in the past, receiving a written reprimand in 1981 for a motor vehicle accident and 10 demerits in 1991 for lateness and absenteeism. He is, by any account, an employee of relatively long service with a positive disciplinary record. Moreover, as indicated above, the arbitrator is satisfied that the Company erred in the conclusions which it chose to draw from the videotape surveillance of Mr. Rowe performing relatively light activities around his home, given the late stage of rehabilitation at the time he was observed. The arbitrator must, nevertheless, take into account the aggravating factor of the grievor’s failure to accept light duties offered by the Company without valid excuse or any evidence of a clear medical opinion in support of his refusal. In all of the circumstances, I am satisfied that a reinstatement of the grievor into employment, without compensation, given the length of time which has elapsed since his discharge, represents a reasonable penalty to bring home to the grievor the importance of candour in this area, for the purposes of his continued employment.

The grievance is, therefore, allowed, in part. The arbitrator directs that Mr. Rowe be reinstated into his employment, without compensation and without loss of seniority. I remain seized of this matter in the event of any dispute between the parties respecting the interpretation or implementation of this award.

DATED at Toronto this 15th day of April, 1996

ARBITRATOR