SHP 548 - Discharge of L. Trozzo

AWARD

This arbitration concerns the discharge of Trades Helper L. Trozzo of Winnipeg for his alleged attempt to defraud the Company by falsifying a physical incapacity for which the grievor unsuccessfully sought Workers Compensation payments. The Union maintains that the grievor was in fact disabled as he claimed. It further seeks a determination by the Arbitrator to the effect that the Company did not have reasonable grounds to subject Mr. Trozzo to surreptitious surveillance video taping. The Union seeks the reinstatement of the grievor with full compensation. It also claims the payment of damages for invasion of the grievor’s privacy, although that claim was adjourned for separate hearing, on the agreement of the parties, should it proceed in any event.

The facts pertinent to the grievance are not in substantial dispute. The grievor is sixty years of age and has been employed by the Company for twenty-one years, and worked at the Weston Shops in Winnipeg, Manitoba. As a trades helper he was involved in performing tasks which involve the exertion of force and repeated heavy lifting.

It is common ground that the grievor has a history of back problems. These apparently date back to 1988. It is not disputed by the Company that Mr. Trozzo has had genuine problems with his back at times. According to the grievor’s account, on May 29th, while grinding coupler keys, Mr. Trozzo experienced what he describes as an aggravation to his back injury. He relates that he tried to work through the problem, and did not report it to management or seek outside medical assistance immediately. However, over the next few days the condition of his back became aggravated and on June 4, 2001 he advised his supervisor that he had hurt his back, by his estimate on the 29th of May. Supervisor K. Johnson then arranged for the grievor to perform duties of a lighter nature, albeit duties that were within the required tasks of his normal assignment. Mr. Trozzo continued thereafter to work at those assignments, which nevertheless did involve some motion and a degree of lifting, until June 18. He then advised his supervisor that his doctor had instructed him to stay off work entirely because of his back, as continuing to work would aggravate his condition.

It appears that the following day the Human Resources and Safety Coordinator for Progress Rail contacted Mr. Trozzo by telephone at his residence. The grievor then related to her that he had pain in his right leg, to the point where it was difficult for him to put weight on it. When Ms. McCullogh suggested that the grievor consider coming to work to perform light or modified duties Mr. Trozzo declined, advising that his doctor advised him to “do nothing”.

The Company developed concerns that the grievor’s claim of injury might not be genuine. The primary basis of its suspicion is the fact that on or about June 14 the grievor approached Supervisor Johnson with a request to change his scheduled annual vacation. His vacation had been set for an eight day period between July 9 and July 18. The grievor explained that his brother was coming to visit from Germany on or about June 20th, and that he would like to rearrange his holidays to coincide with his brother’s visit. When the grievor called in to work on June 18 to say that he was told by his doctor to stay home, apparently without any ultimate resolution of his earlier request to change his vacation, management became concerned as to the legitimacy of his absence. In that circumstance, on the second day of the grievor’s absence from work, June 19, management made the decision to obtain the services of investigators to conduct video surveillance of the grievor.

Although the Company states that part of its reason for suspecting Mr. Trozzo to the point of ordering his surveillance is that no medical documentation had been provided to the Company, it is difficult to understand that submission. It does not appear disputed that the grievor worked his last tour of duty on Friday, June 15, 2001. Following the weekend, Monday the 18th would have been his first work day off. That, it appears, is the day he called his supervisor to indicate that his doctor had told him to stay home and do nothing. The next day the Company decided to undertake surveillance. The grievor’s own evidence, which is unchallenged, is that he was first advised by his doctor that he should stay off work when he went to visit at the conclusion of his shift on the previous Friday, June 15. In the circumstances so described the Arbitrator has difficulty understanding how the Company views any failure to provide medical documentation as justification of its decision to institute surveillance of the grievor on the second day of his absence from work. That is still more questionable, given that the grievor had for some time indicated that he was experiencing back pain, as a result of which management had allowed him to perform the lightest duties of his assignment for a period of two weeks.

The surveillance of the grievor was conducted from June 25 through June 29, 2001. The Arbitrator has viewed the video tapes. I can see nothing in them which supports the position of the Company, which is that the grievor engaged in activities inconsistent with his inability to come to work and perform light duties. The video shows the grievor walking about his property, both at the front and back of his house, as well as driving his car and walking either on the streets or within a shopping mall. There is virtually no evidence of Mr. Trozzo performing any physically demanding activity. At home, on one occasion, he is observed watering his garden and lawn briefly with a light garden hose. He is also observed lightly pruning a few branches of what appears to be grape arbour vine.

If anything, the videotaped evidence tends to confirm the grievor’s account of being in some pain by reason of his back condition. As he is seen walking on the street or in the parking lot of a shopping mall Mr. Trozzo moves slowly, stiffly and with a pronounced limp. He walks in the same manner whether he is in the company of others or alone. On one occasion, outside a supermarket, he is seen engaged in conversation with an acquaintance, and making clear gestures to describe to his friend the pain in his back and leg. The unchallenged evidence is that prior to the events of June of 2001 Mr. Trozzo walked without a limp.

This Arbitrator has had occasion to observe many examples of video taped evidence of employees attempting to defraud their employer by false claims of injury, to claim either sick leave indemnity or Workers Compensation benefits. Such evidence can sometimes be conclusive of fraud. In the instant case the video tape evidence is entirely to the contrary, and the Arbitrator must confess to some difficulty in understanding the Company’s interpretation of it. There is nothing in the record to suggest that the grievor’s back ailment was such as to prevent him from engaging in normal non-stressful activities such as walking about his property, going shopping or driving his car. The suggestion that his activities were inconsistent with what he described as his doctor’s orders to “do nothing” seem unrealistic as there is no evidence to suggest that Mr. Trozzo was ordered by his physician to remain entirely immobile. He was obviously expected to leave home to attend physiotherapy sessions, as he did.

Nor can the Arbitrator agree with the Company’s argument that the denial of Workers Compensation to the grievor should be taken as a factor weighing against him. There is nothing in the Workers Compensation report which would challenge the fact that the grievor legitimately suffered from back pain that required him to be off work. Rather, the WCB rulings were to the effect that there was no evidence of a causal link between his back condition and his employment. At the level of the review office the following decision was rendered:

That the claim is not acceptable, as the evidence has not established that the claimant has sustained personal injury by accident arising out of and in the course of his employment.

It appears, however, that portions of the WCB ruling did take the view that the employee could not be said to have stayed home “and do nothing”, a factor which the review office did consider as raising questions of credibility.

The Arbitrator agrees that credibility is a large part of the substance of this dispute. There is no evidence to establish on what basis the WCB review office judged credibility, although it appears that it would have been on the bare evidence of the video tape evidence and the grievor’s own assertions. The Arbitrator has a considerably broader basis upon which to judge credibility in the case at hand. Firstly, the grievor is an employee of relatively long service. He initially worked for the Company for a temporary period in 1977, and became a full time blacksmith helper on April 14, 1980. In his twenty years of service Mr. Trozzo was never once the subject of a disciplinary investigative statement, and never once received any discipline. His disciplinary record is exemplary. Additionally, the evidence placed before the Arbitrator reveals the history in injuries, illness and lost time incurred by the grievor over that twenty year period. The record discloses that on a number of documented occasions Mr. Trozzo suffered injuries of various kinds at work, many of which required immediate medical attention, and for which he did not take any time off. Conversely, occasions when he did take time off often included serious medical problems. For example, he was hospitalized for a seven day period in November of 1987 for a disc protrusion problem in his back. In June of 1995 he was hospitalized for thyroid surgery and again in 1997 for an acute duodenal ulcer. The record indicates that at various times he suffered such injuries as back pain, a contusion to his hands and a burn to his arm without incurring any lost working time. He is, as evidenced both by his documented work record and the testimony of other employees a responsible employee who, if anything, tends to work through pain and injuries, who has not been a malingerer over his twenty years of service.

It appears to the Arbitrator that the view of management in this matter was entirely coloured by the coincidence in time of the aggravation to the grievor’s back condition and the visit of his brother from Europe, during the time for which he had previously discussed rescheduling his vacation period. It would appear that it was that, and little else, which prompted the Company to undertake surreptitious surveillance of the grievor’s activities as early as the second day of his absence from work. In the Arbitrator’s view it was then too early for the Company to assert the failure to provide adequate medical documentation to justify his surveillance. Given the grievor’s positive record of employment and the information available to the Company, the employer could not establish reasonable grounds to subject an employee of long and good service to the extraordinary measure of surreptitious surveillance of his personal life, based on little more than a manager’s sceptical view of Mr. Trozzo’s motives.

As noted above, the video tape evidence is, if anything, consistent with the grievor suffering a degree of back pain so serious as to limit his ability to move normally. The evidence confirms that eventually, on August 3, 2001 the grievor’s physician did provide a full medical report to the Company, confirming that he was not fit to work. The submission in the Company’s brief to the effect that the first medical certificate from the grievor’s physician was received only on August 17 would not appear to be correct. It is true that a second certificate was provided on that date, indicating that the grievor would be fit for light duty starting August 20, 2001.

There is no doubt on the evidence before me that the grievor was under the care of his physician for all of the period in question. It is equally manifest from the evidence that he regularly attended at physiotherapy sessions, as directed by his physician. Unfortunately, none of that evidence seems to have made any impression upon the Company.

It has made an impression on the Arbitrator. I am satisfied, on the balance of probabilities, that Mr. Trozzo did experience an aggravation of his back condition in late May or early June of 2001, that his condition became debilitating and that he did, on the advice of his physician, “do nothing” in the sense of not performing any work, including light duties which, in the shop where he was employed, could nevertheless involve work as strenuous as regularly lifting weights as great as fifty pounds. I am satisfied that the Company did not, on the evidence available to it, have reasonable grounds to institute surreptitious surveillance of the grievor in his personal and family activities, and that if it were necessary to so rule the rule video tape evidence would not be admissible. In passing, it should also be noted that the professionalism of the investigators hired by the Company is open to question. Remarkably, one of the video cassettes provided to the Arbitrator also contains apparently unrelated and unexplained video tape surveillance of other persons in what appears to be an apartment or condominium hallway during late night hours. The seemingly unintended disclosure of that information by the private investigators concerning another investigation does not inspire great confidence. If anything, it confirms the wisdom of the arbitral jurisprudence demanding a high degree of care in the gathering and admission into evidence of such material.

The cases confirm that for videotape evidence of the private life of an employee to be admissible in evidence a two-fold test must be satisfied: the employer must demonstrate that it was reasonable, in the circumstances, to undertake surveillance and must conduct the surveillance in a reasonable manner. (See Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996) 59 L.A.C. (4th) 111 (M.G. Picher); Re Doman Forest Products Ltd., New Westminster Division and International Woodworkers, Local 1-357 (1990), 13 L.A.C. (4th) 275 (Vickers); Re Steels Industrial Products and Teamsters Union, Local 213 (1991), 24 L.A.C. (4th) 259 (Blasina); Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, Local 87 (1992), 30 L.A.C. (4th) 306 (Springate); Re Labatt Ontario Breweries (Toronto Brewery) and Brewery, General & Professional Workers Union, Local 304 (1994), 42 L.A.C. (4th) 151 (Brandt); Re Alberta Wheat Pool and Grain Workers’ Union, Local 333 (1995), 48 L.A.C. (4th) 332 (Williams) CROA 1850, reported as Re Canadian National Railway Co. and B.M.W.E. (1988), 2 L.A.C. (4th) 92 (M.G. Picher), CROA 2302 and see, generally M.G. Picher, “Truth, Lies and Videotape: Employee Surveillance at Arbitration” (1998) 6 Canadian Labour & Employment Law Journal, 341.) The Arbitrator appreciates that there are situations in which an employer can and must resort to the surveillance of an employee, where compelling evidence would justify such extraordinary measures. However, it must first have reasonable grounds, and should proceed in a careful and professional manner. This is not such a case.

I am satisfied, beyond the balance of probabilities, that the grievor was disabled and was, at all material times, properly following his doctor’s orders to perform no work. There was no basis to assess any discipline against him. The grievance is therefore allowed. The Arbitrator directs that Mr. Trozzo be reinstated into his employment forthwith, with full compensation, including interest, for all wages and benefit lost, and without loss of seniority. The Arbitrator retains jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this award.

Dated at Toronto, February 22, 2002

_________________________________________

MICHEL G. PICHER

ARBITRATOR

SHP548