CANADIAN PACIFIC RAILWAY
AUTOMOBILE, AEROSPACE, TRANSPORTATON AND GENERAL WORKERS UNION OF
(K. Nistico Dismissal)
ARBITRATOR: Vincent L. Ready
COUNSEL: John Bate for
commencement of the hearing, the parties agreed that I was properly constituted
as an arbitrator with jurisdiction to hear and determine the matters in
dispute. This grievance concerns the
Canadian Pacific Railway Mechanical Services’ dismissal of Mr. Keith Nistico,
the “grievor”, on
incompatible with your employment, as evidenced by your misrepresentation of a
physical condition following a knee injury which occurred on
At the time of the dismissal, the grievor was employed as
a Carman at the Ogden Car Shop facility in
commencement of the hearing, the Union raised, as a preliminary objection, the
issue of whether the Company was entitled to rely on information provided in a
letter dated May 26, 2000 from Joan Lantz, Case Manager of Alberta Workers’
Compensation Board (the “WCB”) as the basis for its decision to dismiss the
This letter will outline the status of your claim with the Workers’ Compensation Board.
Following a medical
discharged from the
An Independent Medical Exam was arranged by the WCB for you to see Dr. Hughes on May 8, 2000 however due to illness the appointment was cancelled by Dr. Hughes office. The next available date was May 16, 2000 which was the same day that you were scheduled to see Dr. Edwards which had been previously arranged by your family doctor, Dr. Hunter.
Dr. Edwards indicates that bilaterally your knees are stable as far as the cruciate and collateral ligaments are concerned and the menisci. There is some tenderness on patellar compression and some crepitation with flexion and extension. Essentially what this means is there is no damage to your knees. There is good function within the joints and he provided some quadriceps sitting exercises.
I have met with you at the WCB office on two separate occasions and observed you entering and exiting the building with a significant limp. However surveillance which was done after leaving our building shows you moving freely with no limp.
Your level of disability demonstrated while in treatment and during examinations is very different from that seen on surveillance. There are also no objective clinical findings (damage to the knees) to support your reported symptoms. As a result the Workers’ Compensation Board is unable to relate any ongoing problems or work restrictions to the injury sustained on June 30, 1999. Benefits being issued by the Workers’ Compensation Board will be discontinued effective today, May 26, 2000, and no further services will be offered.
The Workers’ Compensation Board of Alberta is committed to upholding the rights of workers and employers under the Workers’ Compensation Act. Consequently, if you are not in agreement with any decision you have the right to appeal. An appeal must be:
· Made within twelve (12) months of the decision under appeal (Section 40(1) of the Workers’ Compensation Act),
· Made in writing
· Specific about the decision you are appealing
· Clear about the reason you are appealing, and
· Clear about the result you expect from the appeal.
cc: CP Rail
Furthermore, the Union challenges the admissibility of an Occupational Rehabilitation Discharge Report (on the grievor) from the Columbia Rehabilitation Centre dated April 19, 2000 and the July 26, 2000 Claims Services Review Committee’s decision of the Company’s appeal of the original WCB decision to grant the grievor benefits.
The Union submits that under Rule 28.2 of the Collective Agreement, all evidence known to the Company must be furnished to the employee at the commencement of the investigation. Rule 28.2 provides in part:
All known existing evidence to be used in the investigation shall be furnished to the employee at the commencement of the statement.
Copies of statements, stenographic reports and all other evidence taken shall be furnished to the employee and, if present, to his/her authorized representative.
The Union contends that the Company has breached this provision and as a result the grievor has not received a fair and impartial hearing in accordance with Rule 28.1. That Rule provides in part:
No employee shall be disciplined or discharged until he/she has had a fair and impartial investigation and his/her responsibility established.
Further, it is the Union’s position that the Company had no right under law to request the use of information gathered by the WCB in relation to the grievor’s claim except to deal with a review or appeal of his WCB claim. Further, the Union argues that the WCB had absolutely no right to release such information to the Company for any use other than the aforementioned one. The Union submits that any information that the Company acquired from the WCB can only be used for the purpose for which it was produced under law and therefore cannot be allowed as evidence in this proceeding.
Specifically, the Union argues that the WCB, in supplying the information to the Company, was in breach of the Charter of Rights and Freedoms and federal and provincial privacy legislation. Therefore, the evidence must be seen as null and void.
Moreover, the Union argues that the WCB has disregarded section 141 of the Alberta Workers’ Compensation Act (the “Act”) which deals with confidentiality of information. The Union submits that section 141 expressly limits the use or release of information to the purpose of pursuing the review or appeal of a WCB decision.
In support of its arguments the Union relies on Re Labatt Ontario Breweries (Toronto Brewery) and Brewery, General and Professional Workers Union, Local 304, (1994), 42 L.A.C. (4th) 151, Ontario (Brandt).
The Company submits that the letter of May 26, 2000 constitutes a decision of the WCB and is a public document. Following the Company’s receipt of the letter, it conducted its own investigation. The Company asserts that, on the basis of information contained in the letter and the findings of its investigation, it dismissed the grievor.
At the hearing, I reserved on the Union’s objection but with the agreement of the parties proceeded to hear the case. Having considered the submissions of the parties, I find that the May 26, 2000 letter is admissible as evidence but the Occupational Rehabilitation Discharge Report and Claims Services Review Committee’s decision is not for the reasons set out below.
I am satisfied following careful consideration of the Union’s arguments and the relevant provisions of the federal and provincial privacy legislation, as well as the Charter, that the WCB was not in violation of them when it released information to the Company for its use in this proceeding.
The relevant provisions of the Workers’ Compensation Act are as follows:
Notice of Decision
39 On the making of a determination as to the entitlement of a worker or his dependent to compensation under the Act, the employer and the worker or, in the case of his death, his dependent, shall, as soon as practicable, be advised in writing of the particulars of the determination, and shall, on request, be provided with a summary of the reasons, including medical reasons, for the determination.
Confidentiality of Information
141(1) No member, officer or employee of the Board and no person authorized to make an investigation under this Act shall, except in the performance of his duties or under authority of the Board, divulge or allow to be divulged any information obtained by him in making the investigation or that comes to his knowledge in connection with the investigation.
(2) No member or officer or employee of the Board shall divulge information respecting a worker or the business of an employer that is obtained by him in his capacity as a member, officer or employee unless it is divulged under the authority of the Board to the person directly concerned or to agencies or departments of the Government of Canada, the Government of Alberta or another province.
(3) Notwithstanding subsections (1) and (2) and section 29(3), where a matter is being reviewed or appealed under section 40 or 116,
(a) the worker, or the worker’s personal representative or dependant in the case of the death or incapacity of the worker, or the agent of any of them, and
(b) the employer or his agent
are entitled to examine all information in the Board’s files that is relevant to the issue under review or appeal, and those persons shall not use or release that information for any purpose except for the purpose of pursuing the review or appeal.
Board Records Privileged
142(1) The books, records, documents and files of the Board and all reports, statements and other documents filed with the Board or provided to it are privileged and are not admissible in evidence in any action or proceeding without the consent of the Board.
143 A certificate purporting to the signed by the secretary
(a) setting out the substance of any order, ruling or decision of the Board, or
(b) setting out information from any books, records, documents or files of the Board in the form of an extract or description
shall be admitted in evidence as prima facie proof of the facts stated in it without proof of the signature or official character of the person signing it.
The May 26, 2000 letter advises the grievor of the WCB’s decision to discontinue benefits and provides information on how to appeal the decision. As noted at the bottom of the letter, a copy was sent to the Company. I find that the letter constitutes a decision of the WCB. (hereinafter referred to as the “WCB Decision”).
Pursuant to section 39 of the Act, the Company was entitled to receive the particulars of the WCB Decision, and a summary of the reasons, including medical reasons. That provision does not limit the Company’s use of the WCB Decision.
Moreover, a reading of sections 142(1) and 143 together leads me to conclude that the WCB Decision is not privileged as alleged by the Union. Section 142(1) provides that the “books, records, documents and files of the Board” are privileged. The section does not refer to “decisions” of the WCB. However, in section 143, subsection (b) refers specifically to the “books, records, documents or files of the Board” (i.e., exactly the same language as in section 142(1)) and subsection (a) refers to “any order, ruling or decision of the Board.” In other words, in section 143, a distinction is made between a decision of the Board and information from any books, records, documents or files of the Board.
The clear expression in subsection 142(1) that “books, records, documents and files of the Board” are privileged should therefore be interpreted as excluding decisions. In other words, it can be concluded that the drafters of the statute were intentionally silent in not including “decisions of the Board” in the list of privileged items set forth in section 142(1). If the Legislature intended decisions to be privileged, presumably the Legislature would have said so.
Thus, I am satisfied that the Company, at the time of its investigation, was not prohibited from using the WCB Decision for the purposes of its own investigation into the alleged misconduct of the grievor. Moreover, I note that a copy of the WCB Decision was provided to the grievor prior to the commencement of the investigative statement in accordance with Rule 28.2 of the Collective Agreement. This decision is not changed by the grievor’s allegation that he had not received previously a copy of the WCB Decision.
With respect to the Occupational Rehabilitation Discharge Report, the Company has not tendered any evidence which shows that it sought and received consent from the WCB to use this document in this proceeding. Therefore, I find that it is inadmissible in this proceeding pursuant to sections 141(3) and 142(1) of the Workers Compensation Act.
Further, I find that Claims Services Review Committee decision predates the Company’s investigation of the matter. If the Company intended to rely upon the findings of the Claims Services Review Committee, it should have provided a copy of the decision to the grievor prior to the commencement of his investigative statement in accordance with Rule 28.2. Because the Company did not provide a copy to the grievor, it cannot now seek to rely upon the findings in support of its dismissal of the grievor.
For these reasons I find that the WCB Decision is admissible in this proceeding but the Occupational Rehabilitation Report and the Claims Services Review Committee’s decision are not.
I now turn to the merits of the case.
On June 30, 1999, the grievor was injured while at work. The accident report that he submitted that day describes the incident as follows:
Nature of Injury: Bruise/contusion
Location of Injury: Lower Leg
Body Side: Right
Description of Incident:
I was working on a machinary flat car applying a new draft gear. I had the new draft gear on a scissor jack and was trying to pull it into position between the rails of the track from just outside the track. The wheels of the scissor jack became jammed in the space between the rail and the concrete floor. I tried to free it, when the draft gear on the gear holder slipped off the scissor jack and struck the scissor jack handle causing it then to strike my right knee and all the way down to my foot.
For the following week, the grievor continued to work. On July 7, 1999, the grievor started losing time from work and subsequently made an application for WCB benefits.
On July 19, 1999 the grievor received medical clearance, without restrictions, for a return to work. Prior to his actual return, he was placed on annual vacation from July 11 to August 10, 1999. During the period of the grievor’s annual vacation, the Company issued temporary lay-off notices to a number of people, including the grievor. The grievor commenced his lay-off from work on August 11, 1999 and received Job Security benefits from the Company as a wage loss supplement.
On January 5, 2000 the grievor was recalled to work from lay-off. On January 19, 2000 the grievor claimed that he was experiencing physical difficulties associated with both right and left knees, and removed himself from work. He applied for continuance of WCB Benefits as a result of his original injury of June 29, 1999. His application was granted and his benefits commenced in January, 2000.
By letter dated May 26, 2000, the WCB notified the grievor that a decision had been made to discontinue his benefits. The contents of the WCB Decision were set out above.
The grievor’s absence from work continued. According to the Employer, throughout the period of January, 2000 to August, 2000, the grievor’s personal physician provided medical reports that supported the fact that the grievor was disabled.
On August 10, 2000, based on medical documentation supplied by the grievor’s own physician, the grievor was deemed fit to return to modified work, but only with permanent restrictions of no kneeling, crouching, climbing ladders, repetitive climbing of stairs or lifting more than 20 lbs. However, it was noted that the grievor was not fit for any strenuous work.
The Company reviewed its ability to provide accommodation to the grievor and determined that due to the significant medical restrictions they would be unable to do so and advised him accordingly.
On August 31, 2000, the Company received a medical report from the grievor’s physician which stated that the grievor was in fact fit to return to work without any medical restrictions. On September 1, 2000, the grievor returned to work.
On October 2, 2000, the Company took an investigative statement from the grievor in connection with “Your absence from work from May 26, 2000 to September 1, 2000.” At the commencement of the investigation, the grievor confirmed that the Company had provided a copy of the WCB Decision to him and that he had sufficient time to review it. I note that the grievor did not state at this time that he had not received previously a copy of the WCB Decision. During the statement, the grievor was asked and answered, in part, the following questions:
Q: During any time of your absence from work, were you capable of returning on modified or light duties?
Q: When were you able to return to modified duties?
A: Aug. 10th I guess. That is when I finally got the paper work from the doctor….
Q: When WCB cut your benefits on May 26th were you still totally disabled and unable to return to work?
A: Yes I was still injured and still needed work on my knees
Q: At what point between May 26th and September 1 did you fell (sic) you were cable (sic) of returning to work?
A: I have no idea on that one
Q: Your latest return to work assessment dated Aug. 31 states that you were able to return to work with no restriction. However a assessment dated Aug. 10 shows able to return but with a permanent restriction. Please explain how your medical position dramatically improved between that period of time?
A: I needed to get back to work. I was not able to return to work with restrictions. The only way (sic) was able to return to work was with the restrictions cleared.
Q: What treatment or rehabilitation program did you participate in during the period from Aug 10 to Aug 31, that would have facilitated this dramatic recovery?
A: I guess my own, I worked on my knees my self.
Q: You stated earlier that you stopped going to the rehab center in April and were performing your own rehabilitation. Yet you were not fit for duty until September. However in less than one month from Aug. 10 to Aug. 31 you made a fully recovery. Please explain what was different to facilitate this full recovery in such a sort (sic) period of time?
A: I had no income and nobody left me a choice but to somehow get back to work
Q: You stated earlier that you could not come to work until you received clearance. What convinced the doctor to give you the clearance you required?
A: I just told my doctor that I could not get back to work without restrictions and I need clearance to get back work.
Q: Were you in fact fully recovered when you asked the doctor for clearance?
Q: Was your doctor aware of the fact that you were not fully recovered at the time clearance without restrictions was granted?
During the interview, the grievor refused to answer questions that related to the WCB Decision on the grounds that the WCB was a different investigation altogether. He stated that the Company’s questions did not sound like an investigation for absence from work, but about fraud. He stated “I believe it is about fraud. I was told I was faking it and the accident never happened. It is all about WCB.”
The Company held a second investigation on October 5, 2000 in connection with “Your on the job injury that occurred on June 30, 1999, which resulted in your absence from work.” Again, the grievor was provided with a copy of the WCB Decision, and documents setting out his doctor’s recommendations as of August 10 and 31, 2000 on the grievor’s return to work. In addition, a copy of the October 2, 2000 investigative statement and the Employee Injury Report dated June 30, 1999 were provided to the grievor. During the statement, the grievor was asked and answered, in part, the following questions:
Q: You stated earlier that you injured your knees and had a problem with both knees. However the injury report dated June 30, 1999 states that you injured only your lower right leg. Please explain why you had problems with both knees?
A: The right leg was marked up and the left knee did not bother me at the time. Both knees were hit during the accident but only the right knee that showed the physical signs of bruising.
Q: When did you first experience problems with your left knee?
A: When I came back to work and it was actually both knees it was not just my left
Q: In the investigation dated October 2, 2000 you stated that were collecting WCB from January 20, 2000 until May 26, 2000 when WCB cut your benefits. Please explain why WCB ceased continuance of your benefits?
A: I do not know why they cut me off.
Q: A review of the board letter dated May 26, 2000 stated that you were removed from benefits as the evidence they have, video, clearly indicates you in fact were not disabled. Do you have any comments in reference to these facts outlined by the board?
Mr. Rohatensky objected to this question claiming there was no evidence presented by the investigating officer to support this allegation.
It was explained that the letter from WCB dated May 26, 2000 was given to both Mr. Nistico and Mr. Rohatensky for review prior to the investigation. The question was asking the employee only for his comments in reference to what is stated in the letter.
Q: Based on the explanation I have given you, do you now have any comment in reference to the board letter dated May 26, 2000?
A: Employee refused to answer the question on the advice of his union representative….
Q: You stated in the investigation dated October 2, 2000, that you understand that by refusing to answer any question during the investigation, it precludes the company from fully developing all the facts and is obstructive to the investigation. Based on this understanding, do you still refuse to answer the question?
At this time I explained that as the investigating officer I can expect an answer to the questions asked and that failure to answer could be considered insubordinate and dealt with as such.
Q: Do you understand this as was just explained to you?
Q: Based on this understanding do you still refuse to answer the question which asks for your comments referring to the board letter?
Q: Based on the all the evidence detailed within the board letter, it would be concluded that you were in fact not disabled. That you were receiving benefits that you were not entitled to, and by way of your physical activities were capable of reporting to work and performing your duties without any physical limitations. Do you have any comments in reference to this suggestion?
Mr. Rohatensky objected to this question claiming that there has not been evidence presented by the investigating officer to support this allegation.
I again explained that this question is based on the letter dated May 26, 2000, which Mr. Nistico and Mr. Rohatensky were both given.
A: Employee refused to answer the question on advice from this union representative.
Q: You stated earlier that you did no know why WCB ceased to continue your benefits on May 26, 2000. However the board letter dated May 26 was addressed to you. Did you receive a copy of this letter prior to the investigation?
A: Not that I can remember.
Q: Based on the fact that you do not remember receiving this letter, when did you become aware that WCB ceased your benefits?
A: The 26th I guess.
Q: How did you become aware that WCB ceased your benefits?
A: I never received anything after that.
Q: Did you question the board as to why you were no longer receiving benefits?
A: Not yet.
Q: You stated earlier that you returned to work on September 1, 2000 and that WCB ceased your benefits on May 26, 2000. Were you receiving any compensation from either the board or the company during this period of time?
Q: Based on this please explain why you have not questioned the board’s decision to date?
Mr. Rohatensky object to this question on the grounds that it is not relevant to the investigation and is outside the subject matter of the investigation. Also this question was asked during the investigation dated October 2, 2000 and can be construed as badgering Mr. Nistico.
It was explained that because the notification for the investigation conducted on October 2, was worded only to cover the time from May 26th until September 1, the union objected that this question was outside the scope of the investigation. This investigation is in connection with all aspects the injury sustained on June 30, 1999 and therefore this question is now within the scope of the investigation.
Q: Based on what I just explained to you are you now willing to answer the above question?
Q: Do you have anything you would like to add to this investigation?
Q: Are you satisfied with the manner in which this investigation has been conducted?
Q: What part or parts of the investigation are you not satisfied with?
A: That may be subject to a grievance or appeal and will be explained at that time.
Q: Do you understand that the company has a right to investigate incidents or situations as it deems necessary in what ever depth required to establish facts?
Q: Were you afforded the opportunity of reviewing and discussing all evidential material?
A: Yes that was presented to us at this investigation.
Q: Were you afforded the opportunity of entering any evidential material you deemed applicable?
On October 19, 2000, the grievor was dismissed from his employment. At the time of dismissal, the grievor was 33 years of age and had approximately 14 years of Company service. He had been disciplined in the past for incidents of leaving work without authorization, being away from his work area, timekeeping and insubordination. However, in accordance with the Company’s discipline system, for all intents and purposes his discipline record was clear at the time of dismissal.
It is the Company’s position that the medical opinion and surveillance concerns as detailed within the WCB Decision, firmly establishes that the grievor was not experiencing any physical difficulties and was not injured as he would otherwise lead the WCB and the Company to believe. Moreover, the Company contends that the WCB decision establishes that the grievor should have been at work performing his normal duties and that his misrepresentation was only for the purpose of collecting WCB benefits, without accountability.
The Company submits that during the investigation, the grievor was provided with an opportunity to state any concerns he had with the WCB decision. The Company contends that the grievor could have refuted any of the information within the context of the letter, provided an explanation as to why he was denied continuance of WCB benefits beyond May 26, 2000 and explained based on the medical evidence why he was not at work. The Company submits that the grievor refused, at his own peril, to answer any questions related to his discontinuance of benefits and the context of the WCB decision.
Further, the Company contends that the grievor was not forthright with the Company in respect to the WCB letter. It notes that at no time prior to the investigation, did the grievor state he had never seen the letter or object to its use as evidence within the formal investigation. The Company submits that the grievor’s responses are misleading and his credibility is questionable.
The Company further submits that the grievor, by his own actions and initiative, was not forthcoming to it or his own physician as to his physical condition. Even though his benefits were discontinued by the WCB, he remained off work for an extended period of time, all the while suggesting that his physical condition prevented his return to work. The Company does not accept the grievor’s explanation for the significant change in medical opinion from August 10, to August 31, 2000.
Finally, the Company argues that the medical documentation provided by the grievor’s physician from January, 2000 to August, 2000 is not sufficient evidential material to find that the grievor was unable to perform his duties. The Company submits that the grievor’s physician relied solely on the grievor’s misrepresentation or concealment of his true abilities. The Company contends that the grievor’s physician based his diagnosis on the pain behaviours observed and symptoms described by the grievor.
The Company submits that the evidence clearly supports that the grievor was not disabled and that he deliberately attempted to misrepresent his medical condition thereby defrauding the Company, the WCB and his physician. For these reasons, the Company submits that it had just cause to dismiss the grievor from employment.
The Union’s position is that the Company based its dismissal of the grievor on an unsubstantiated statement contained in the WCB decision which suggests that, because of what the claims adjudicator allegedly viewed on surveillance tapes, the adjudicator felt he was not disabled. The Union contends that the Company did not establish any wrongdoing on the grievor’s behalf sufficient to give the Company cause to dismiss him.
The Union argues that the Notice of Dismissal limits the Company’s allegations to the period of time following the grievor’s knee injury on June 30, 1999 and the time period between January 19, 2000 and May 26, 2000. The Union contends that the grievor’s absence from May 26 to September 1, 2000 is not identified in the Notice of Dismissal as part of the Company’s reasoning for the grievor’s dismissal.
The Union submits that the Company has presented no evidence to show that the grievor was not injured. The Union points out that the Company never requested the grievor to attend an independent medical examination to assess his condition and verify the WCB conclusions. It argues that it is apparent by the two investigative statements that the only evidence the Company has relied on is the WCB Decision. The Union submits that the WCB Decision makes no allegation with respect to fraud but merely advises the grievor that his benefits will be discontinued.
As evidence of the grievor’s medical condition, the Union relies on the opening statement in the WCB Decision which reads:
Following a medical exam on February 16, 2000 the Workers’ Compensation Board accepted that your ongoing bilateral knee pain was a result of the injury which occurred on June 30, 1999.
The Union argues that the mere mention of the surveillance video in the WCB Decision cannot be construed as evidence. It points out that there is no information in the WCB Decision on how, where, or when the video surveillance was done. The Union submits that a video tape cannot show whether a person is in pain or the extent of their pain when they are performing functions of everyday life. Moreover, the Union argues that even when a person is declared totally disabled and cannot perform the functions of their regular duties, it does not mean they are invalid. The Union argues that the grievor was on a “recovery curve” and that there should be some latitude for some degree of activity. The Union suggests that the grievor’s doctor played an advocate’s roll in trying to ensure that the grievor healed or recovered to such an extent so as not to return to work and re-injure himself.
The Union takes issue with the manner in which the second investigation was conducted. It contends that the Company’s statement to the grievor that “failure to answer the question could be considered insubordination and dealt with as such” was an attempt to intimidate the grievor and constituted a threat.
It is the Union’s position that the grievor was under no obligation to answer a question put to him during his statement. The Union argues that, taken to the extreme, the Company could charge an employee with insubordination if the employee did not answer the question to its liking.
The Union submits that the grievor’s representative rightfully objected to the Company’s question by stating “there has been no evidence presented by the investigating officer to support this allegation.” The Union argues that the Company’s questions became accusatory statements based on nothing more than the Company’s interpretation of the WCB letter. The Union submits that it is clear that the investigating officer’s questions and statements to the grievor reflect that he had already made up his mind that the grievor was guilty. The Union submits the investigation of October 5, 2000 must be viewed as void because it did not meet the requirement of Rule 28.1 of being fair and impartial.
It is the Union’s position that the grievor be returned to duty forthwith with full redress.
Having carefully considered the evidence and submissions of the parties, and for the reasons that follow, I find that the grievor’s conduct did give cause for discipline. In discharge cases, there are three questions for an arbitrator to answer:
1. Has the employee given just and reasonable cause for some form of discipline by the employer?
2. If so, was the employer’s decision to dismiss the employee an excessive response in all the circumstances of the case?
3. Finally, if the discharge is considered excessive, what alternative measure should be substituted as just and equitable?
(Wm. Scott and Co. Ltd. and Canadian Food & Allied Workers Union, Local P-162,  1 Can.L.R.B.R. 1)
It is well established in the jurisprudence that an employer must present cogent evidence to support discipline on the ground of fraud. In the circumstances of this case, the Company has adduced evidence which I find meets the standard necessary to establish on the balance of probabilities that the grievor was not injured as he held himself out to be with respect to his left knee and that he claimed and received WCB benefits inappropriately. I do, however, accept that the grievor did suffer an injury to his right knee on June 30, 1999.
I find that the Notice of Dismissal does not limit the allegations of misrepresentation to only the period of January 19 to May 26, 2000. Those dates are in reference to the period during which the grievor received WCB benefits. The allegation of misrepresentation is in relation to the period following the grievor’s knee injury which occurred on June 30, 1999.
As stated earlier, I am satisfied that the grievor did receive an injury to his right knee on June 30, 1999. However, the evidence presented by the Company satisfies me that beginning in January, 2000, that injury would not have caused the grievor to experience the physical difficulties which he claimed to suffer until September, 2000.
Prior to conducting its investigation, the Company had before it evidence which would, on the balance of probabilities, lead to an inference of wrongdoing. First, there was the grievor asserting in a WCB claim that he had injured both knees where all accounts of the accident indicate that it was the grievor’s right knee only that was injured on June 30, 1999. Second, the WCB Decision advised of a May 16, 2000 medical opinion that there was no damage to the grievor’s knees. As well, the WCB Decision indicates that the grievor had exaggerated his disability as video surveillance showed that the grievor did not walk with a limp as he had during visits to the WCB office and the rehabilitation facility. Lastly, within a matter of weeks the Company had received from the grievor’s personal physician two very different medical opinions on the grievor’s ability to return to regular duties. On this evidence, the Company has met its prima facie case.
Faced with this evidence, the Company had every right to question the grievor about his physical condition and absence from work. The investigative statement was an opportunity for the grievor to provide a full and compelling explanation for the apparent inconsistencies in his claim of injury. While I agree with the Union that the grievor’s failure to explain the misconduct cannot amount to an independent cause for discipline, I note that it is well established that the failure to explain does give rise to evidentiary consequences. It cannot be contended that the grievor did not receive a fair and impartial investigation.
In the circumstances of this case, I find that an adverse inference can be drawn from the grievor’s failure to provide an explanation for his apparent exaggeration of physical injury. It is no excuse for the grievor to say that his refusal to answer the Company’s questions was simply in accordance with the advice of his Union representative. In my view, the grievor was aware of the Company’s concerns because of the questions posed to him during the first investigative statement. The stated purpose of the second investigative statement encompassed the period in question. The grievor knew that the second investigative statement was to address these concerns. He chose, at his own peril, not to provide an explanation. I find that such behaviour was indicative of his refusal to admit responsibility.
Unfortunately, the circumstances surrounding the change in medical opinion on the grievor’s ability to return to regular duties calls into question the objectivity and reliability of the grievor’s personal physician. This is not to say that it was the fault of the physician. I can only infer that the medical opinion was based on information provided by the grievor. Thus I find that the medical opinion given by the grievor’s personal physician throughout his claim of injury must be given very little weight and does not detract from my conclusion that the grievor did misrepresent his physical condition.
In the result, I find the grievor did give cause for discipline.
The next question is whether the discipline imposed was excessive in the circumstances. In answering this question an arbitrator must conduct a searching review of all of the circumstances surrounding the discipline.
As stated earlier, the grievor is a 14 year employee who, as a result of the internal Company discipline policy, had a discipline-free record at the time of dismissal. While I have found his conduct to be dishonest with respect to his continued claim of injury past January, 2000, especially in respect to his left knee, he did, however, suffer a workplace injury on his right knee on June 30, 1999. I do not find that the Company’s relationship of trust with the grievor has been broken beyond repair. In the circumstances of this case, the discharge imposed upon the grievor was excessive. I find that the employment relationship is capable of being restored. I am satisfied that a lengthy suspension will act as a sufficient deterrent to the grievor repeating such conduct in the future.
Therefore, in the circumstances, I am exercising my remedial authority under the Canada Labour Code and substituting the dismissal with an order of reinstatement upon receipt of this Award, without back pay. Also, this Award should serve as clear and unequivocal notice to the grievor that dishonest conduct centering around his medical/WCB claims will not be tolerated.
I shall retain jurisdiction to resolve any dispute arising out of the implementation of this Award.
It is so awarded.
Dated at the City of Vancouver in the Province of British Columbia this 15th day of February, 2002.
Vincent L. Ready