BETWEEN:

(the "Employer")

AND

(The "Union")

SOLE ARBITRATOR: Jack M. Chapman, Q.C.

There appeared on behalf of the Company:

J. J. Worrall

J. L. Andronikos

G. S. Sichello

W. S. Burns

And on behalf of the Union:

Brian McDonagh

Glen Michalchuk

Jake Taillefer

D. J. Martens

A hearing in this matter was held in Winnipeg, Manitoba on May 9, 1996.

The Arbitration hearing in this matter took place in Winnipeg, Manitoba on May 9, 1996. Jack M. Chapman, Q.C. had been appointed to act as sole Arbitrator. Mr. J.J. Worrall represented the Employer. Mr. Brian McDonagh represented the Union and the Grievor. In addition to Mr. Worrall, the following individuals attended at the Arbitration hearing on behalf of the Employer: Mr. J.L. Andronikos, Mr. G.S. Sichello and Mr. W.S. Burns. In addition to Mr. McDonagh the following individuals appeared on behalf of the Union: Glen Michalchuk and Jake Taillefer. The Grievor was present at the hearing.

[page 2]

At the commencement of the hearings the parties confirmed the jurisdiction of the Arbitrator to hear the matter. It was agreed that witnesses would not be excluded and that there was no other individual who required notice of the hearing. However, Mr. McDonagh, on behalf of the Union advised that he had a preliminary objection to the Employer introducing any videotape of the surveillance which it had conducted with respect to the Grievor. Both Mr. McDonagh and Mr. Worrall had prepared briefs with respect to the admissibility of such evidence and each presented their briefs. At the conclusion of these submissions the Arbitrator ruled that the evidence would be seen, subject to the objection of the Union and the Grievor to its introduction, and that the issue of its admissibility would be dealt with in this award.

The Employer had two videotapes and had made a copy of them on one videotape which it provided to the Union. There was some discussion as to whether the tape given to the Union contained the entire transcription of the surveillance evidence. Ultimately it was agreed that the video given to the Union would be the only one viewed.

The parties, over a period of time have evolved a procedure in arbitration cases whereby they strive to obtain agreed statements of the Facts and the Issue. In this case they were unable to do so. Accordingly each filed separate statements. Each Statement of Fact was identical and read that the Grievor was dismissed for:

[page 3]

However, as mentioned, the Statement of Issue were different. The Employer’s statement reads as follows:

The Union’s Statement of Issue reads as follows:

On September 15, 1995, the Grievor was dismissed from his employment. The notice of dismissal was on the Employer’s Form 104 and reads as follows:

[page 4]

A grievance was filed on behalf of the Grievor on October 3, 1995. The grievance itself is quite lengthy and sets out much of the background of the matter. In essence, the Union requested that the Grievor "be returned to service and made whole in all respects," and that the discipline be voided.

On October 24, 1995, the Employer responded to the grievance and denied it. The matter, obviously, proceeded to Arbitration.

The Grievor had been employed, at the time of his dismissal, for approximately 17-1/2 years. As stated by the Employer, "his discipline record while not unblemished stands at 10 demerit marks." The Employer made reference to the number of accident reports filed by the Grievor during his years with the Employer and that the Grievor had been absent from work other times for personal reasons or sickness. Objection was taken to the introduction of that evidence and the Arbitrator ruled that it would considered only for the purpose of view of determining the question of whether the Employer had reasonable grounds to conduct the surveillance. The Union stressed that the grounds for dismissal were clearly stated in Form 104 and could not be enlarged or expanded upon at this time. The Arbitrator agreed with that submission.

[page 5]

The facts relating to the Grievor’s injury are not substantially in dispute and accordingly they will only be recited in brief form. On Sunday, July 15 while at work, the Grievor sustained an injury to his back and right arm. He filed an accident report on the proper company document and returned to work and completed his shift. On the following day, July 16th, the Grievor returned to work. As his back and elbow were still sore he stayed in the lunchroom where he applied ice packs to his elbow and completed his shift. The Grievor visited his family physician the next day and was advised that he could not perform modified or regular duties. Notwithstanding that advice, and because he had not specifically been told to be absent from work, he reported for work and presented the physician’s report to his supervisor. He was assigned modified duties and performed those for the next 3 days. i.e., until July 19. July 20 and 21 were days off. On July 21 the Grievor visited his physician and obtained another report which stated that he could not perform his regular duties but was able to perform modified duties. It should be noted that the Employer has a policy that offers injured workers modified lighter duties. On July 22 the Grievor again returned to work and was assigned to modified duties. On July 23, after reporting to work, he subsequently complained to his supervisor that his arm was extremely sore and requested that he be taken into the hospital. The attending physician at Seven Oaks Hospital concluded that the Grievor could not work for 1 week and that he perform modified duties the following week. The Grievor returned to the Employer’s premises, turned in the latest physician’s report and then went home. He applied for Workers Compensation Benefits.

The Grievor apparently did not want to lose any salary and requested that he be given modified work assignment. When he returned to work on or about July 24 he was told by his supervisor, Mr. McKelvey, that as he was already on Workers’ Compensation he should remain on it. This is confirmed by Paragraph 22 of the Employer’s brief which reads:

[page 6]

There is some question as to whether or not the Grievor specifically notified his physicians as to the possibility of his obtaining modified work assignments and the nature of such assignment. On July 28 the Grievor, as mentioned had been advised by his family physician not to do any type of work for one week and then to commence light duties on August 25. The Grievor did return to work on August 5 and continued on with modified work assignments until his dismissal.

It is perhaps worthwhile to note that no challenge was taken by either party to the validity of the medical reports. On July 17 the Grievor’s physician noted that the diagnosis was "strain of the right elbow and lower back." That medical report said that the Grievor should not perform either regular duties or modified duties. On July 21 his physician said the diagnosis was continued as a strain to the right elbow and midback and the Grievor was not permitted to perform regular duties but was advised to perform modified duties. On the medical report of July 23 the diagnosis was contusion/tendonitis right elbow and the physician recommended rest for one week then resumption of light duties for a further week. It stated that the Grievor was not capable of either regular duties or modified duties as at the date of the report. On July 28 the diagnosis was "contusion and strain of the right elbow. He should not work completely for one week and then perhaps could try light duties on August 5." The report specifically stated that the Grievor could not perform either regular duties or modified duties for the first week.

It may suffice to say that the Employer, in view of the Grievor’s previous accident record and absenteeism record was "concerned" with the legitimacy of the seriousness of the Grievor’s injuries. It then decided to have the Grievor placed under surveillance and hired a private investigator for that purpose. The surveillance was done on or about July 26th and 27th.

The videotape was shown and it clearly discloses that the Grievor was able to carry on certain normal activities with his right arm and hand. A partial list of the items the videotape shows is that the Grievor was able to drive, was able to comb his hair, was able to place his right arm over the rear of the front automobile seat, could open the trunk, carry what appeared to be bags of groceries and, on one occasion, it shows him kneeling on the ground apparently supporting himself on his right hand.

The essence of the Employer’s case is set forth in four (4) allegations in its brief. These read as follows:

[page 8]

The essence of the Union’s position is shown on Pages 10, 11 and 12 of its brief as follows:

[page 9]

The Employer referred to the following arbitral precedents:

The Union referred to the following arbitral precedents:

[page 10]

It must also be noted that the Employer, in accordance with its usual and proper procedures, carried out a very comprehensive investigation of this matter including an exhaustive review of the matter with the Grievor. I do not propose to recite all of that evidence as it is set out in the briefs of each of the parties. The only area of evidence which might be in dispute is whether the Grievor indicated to his various physicians whether or not modified work assignments were available to him and the nature of that modified work. However, I note that each of the doctors must have known about the availability of modified work as reference is made to that in the medical forms. However, it is true that they might not have known the nature of the work that constitutes modified duties.

I note comments of the Employer in Paragraph 23 of its brief that:

I will deal firstly with the admissibility of the surveillance evidence. I do not propose to write a treatise on that subject. There have been a number of decided cases and I have reviewed all of those cited by both Mr. Worrall and Mr. McDonagh. I note that in considering both the Doman Forest Products Ltd. and the Steels cases a number of Arbitrators in other jurisdictions have stated that those cases must be reviewed in light of the Privacy Act of British Columbia. I also note the comments of Arbitrator Vickers in the Doman Forest Products Ltd. case with respect to the Charter of Rights. I am a great respecter of the rights of privacy of an individual however the Employer has certain rights with respect to its employees. Whether or not the allegations of the Employer are proven in this case, they are serious as the Employer was of the view that the Grievor had "deliberately misrepresented the facts and participated in a deliberate, calculated and wilful attempt to mislead and defraud the company." These are serious allegations and must be proven.

[page 11]

An excellent summary of the jurisprudence is found in a decision of Arbitrator Picher in Canadian Railway Office of Arbitration Case No. 2707 involving the Canadian Pacific Limited and Brotherhood of Maintenance Subway Employees respecting the grievance of Mr. Chahal. I do not propose to quote from that decision at length but I refer the parties to the comments of the Arbitrator found at Pages 8 to 17 inclusive. I only propose to quote very briefly from Pages 16 and 17 with respect to the conclusions reached by that Arbitrator. I note the following:

[page 12]

Without in any way reviewing the specifics, it is clear that the Grievor had previously been absent from work on a number of occasions. It is also clear that the Employer has a direct financial interest in the decisions of the Workers Compensation Board. Accordingly I am applying the same test as Arbitrator Picher and am satisfied that each of questions 1 and 2 above should be answered in the affirmative.

Having concluded that the evidence was admissible, I must now consider what it revealed. In my view the tape does not disclose that the Grievor was in any way malingering or faking his injuries. The medical evidence is unchallenged. I parenthetically note that the Employer could have to sent the Grievor for an independent medical examination. It did not do so. As mentioned, the surveillance tape showed that the Grievor, on or about July 26 and 27 was engaged in normal activities that any one might do on a day off from work. None of those activities, in any way whatsoever, in my view establish that the Grievor was physically able to return to work. It must be remembered that the injury was sustained by him on July 15. The evidence is undisputed that for a number of days subsequent to the injury the Grievor did do modified duties. He was not completely disabled and did perform modified duties subsequent to the date of his injury.

On July 24, approximately nine (9) days after the injury he attempted to continue performing modified duties but a representative of the Employer, Mr. McKelvey, did in fact instruct Mr. Martens to remain on compensation.

I have reviewed all of the cases cited and a number of them relate to such activity as injured employees performing yard work, construction work, carrying large or heavy items, etc. Those are not representative of the activities of the Grievor. As stated by Arbitrator Picher in the Canadian National Railway Company and Canadian Auto Workers Union, Local 100 case relating to the grievance of Mr. Rowe "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."

[page 13]

Arbitrator Picher referred to the decision in Canadian Railway Office Arbitration Case No. 2414 wherein he quoted "the Arbitrator appreciates that there should be some latitude for a degree of light activity in the latter stages of convalescent from an injury."

I am satisfied that the activities carried on by the Grievor as shown in the surveillance tape fall within that classification of light activities. Arbitrator McKee in the Mill and Timber Products Limited case made reference to what he describes as a "recovery curve" . At Page 20 I note the following:

It is undisputed that the onus is on the Employer to prove the allegations made in the letter of dismissal and the Employer cannot change the grounds. Admittedly, an Employer must only prove those allegations to a reasonable standard and not to the criminal degree of proof i.e. beyond a reasonable doubt. However, the allegations as stated in Form 104 are serious and, if established, would undermine completely the basic relationship of trust which is paramount to the Employer/Employee relationship.

I am not satisfied from the evidence that the Employer has established or shown any cogent proof of the allegations it has made and/or the reasons it chose for dismissing the Grievor. The primary evidence adduced by the Employer, i.e. the surveillance tape, shows that while the Grievor was absent from work he engaged in the normal activities previously mentioned, i.e., driving a car, combing his hair etc. I do not find that evidence, in the circumstances of this case, to be a significant factor in support of the actions of the Employer.

[page 14]

There is no evidence, in my opinion, which shows that the Grievor engaged in any activity which would support the Employer’s conclusion. The simple fact that he could carry on some simple non-working activities, does not, especially in view of the undisputed medical evidence, prove that he would be able to carry on even the modified duties of his position during his very brief absence from performing any work i.e. approximately one week.

I have also noted the comments of Arbitrator Picher in the Canadian Pacific Express and Transportation Communication Union involving the grievance of Victor Godler. In that case, he concluded that fraud had not been established, and the Grievor should be reinstated in his employment. However, as that Grievor had been less than candid with his Employer there should be no compensation. The evidence in that case indicated that the Grievor, during the earlier days of his leave of absence, was able to perform many kinds of substantial work and the Arbitrator concluded that the Grievor’s behaviour was a departure from the expected obligation of candour to his Employer. However that case is distinguishable from the instant case in that, as mentioned, the Grievor did seek to have modified work duties assigned and was refused.

Additionally, as stated, Mr. Martens, at the time of the surveillance was only carrying on normal activities. An examination of the transcript of his examination by the Employer shows that he was only using his hand. He had never claimed any injury to his hand and he was not using his arm or his elbow to any significant degree. It is, obviously, difficult to separate a hand from an arm or an elbow. However such activities as opening a door or a trunk hood with his hand, or driving an automobile, do not establish that his arm and elbow were not still sore. The videotape only shows him performing normal day-to-day activities and not any which, in any reasonable manner, could be construed as representative of the duties of the workplace.

[page 15]

I have also noted the comments the Grievor allegedly made to Mr. Andronikos at the time of his injury on August 4 to the effect that he "had to carry his arm across his belt to relieve the pressure." Whether or not that is correct, it is essential to note that on August 5 the Grievor did return to work on modified duties. In view of this I do not conclude a fraudulent intent on the part of the Grievor. His arm may have been sore and, possibly, there may have been some exaggeration. However the fact remains, as stated, that he did return to work on August 5, the following day.

After reviewing all of the evidence and the authorities cited I am satisfied that the Employer has failed to establish the reasons stated in the dismissal. Accordingly I direct that the Grievor be reinstated in his employment as and from the date of the termination. He shall not suffer any loss of seniority or other benefits under the Collective Agreement. The parties have agreed that the case would be "split" as to compensation and other similar matters. Accordingly, if the parties cannot agree upon the terms of the reinstatement or the compensation due the Grievor, then the matter is to be referred back to me for my decision. I retain jurisdiction for that purpose.

I wish to thank Mr. Worrall and Mr. McDonagh for their very complete and thorough presentation of the issues in this case.

In accordance with the terms of the Collective Agreement each party will be responsible for one-half (1/2) of my costs.

DATED at Winnipeg, Manitoba this 23rd day of May, 1996.