IN THE MATTER OF AN ARBITRATION
BETWEEN:
VIA RAIL CANADA INC..
(hereinafter referred to as the “Railway”)
AND:
NATIONAL AUTOMOBILE, AEROSPACE TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA
(hereinafter referred to as the “Union”)
STATEMENT OF FACT & ISSUE
Issue
The Corporation and the Union dispute the dismissal of William Mah, a General Worker at the Vancouver Maintenance Centre.
Statement of Facts
Mr. Mah claimed to have suffered a workplace injury as a result of an incident on July 25, 2001. The Corporation subsequently conducted surveillance of Mr. Mah and after an investigation he was assessed sixty demerits for “falsifying a workplace injury”. He was dismissed as a result of accumulation of demerits. The Union maintains as a preliminary matter that they will object to any attempt by the Corporation to utilize information or introduce any new or additional evidence including but not limited to surveillance or videotape, which violates Mr. Mah’s right to privacy and/or his rights under the Charter of Rights and Freedoms. The Union submits that the Corporation did not establish any wrongdoing on Mr. Mah’s behalf sufficient to give them cause to dismiss him. The Union also maintains that Mr. Mah was treated in an arbitrary, discriminatory and an excessive manner in regard to his dismissal. The Union requires that Mr. Mah be returned to duty forthwith without loss of seniority, will full redress for all lost wages, benefits and any losses incurred as a result of his dismissal, including but not limited to interest on monies owning. The Corporation denies the allegations put forward by the Union and in particular maintains the appropriateness of the surveillance and the discipline assessed in the circumstances.
Arbitrator: H. Allan Hope, Q.C.
There appeared on behalf of the Railway:
Edward J. Houlihan Senior Manager, Labour Relations
Eero Kuitunen Director, Equipment Maintenance (West)
Sam Gareb Foreman, VMC – Via Rail
And on behalf of the Union:
Brian McDonagh CAW, National Representative
John Burns Vice-President, CAW, Local 100
William Mah Grievor
Trevor Blair Local Chairperson, Lodge 773
Richard Brosseau Vice-President, CAW, Local 100
Place of Hearing: Vancouver, B.C.
Date of Hearing: April 1, 2003
A W A R D
[1] The Grievor was dismissed on September 28, 2001 in response to circumstances arising out of an incident that occurred on July 25, 2001. On that day, the Grievor and two other employees were cleaning the interior of a car in the Railway’s Vancouver Maintenance Centre when they experienced a “joint” between their car and a locomotive that knocked the Grievor off his feet. All three employees reported having received injuries in the incident. In the case of Grievor, he reported an injury that led to an absence from work for a period of five weeks between July 25 and September 2, 2001.
[2] The Railway recorded the dismissal in a disciplinary memorandum dated September 28, 2001 in which the reason for it was recorded as; “For falsifying a workplace injury on July 25, 2001”. In these proceedings the Railway’s position was that the Grievor had either faked the alleged injury or had exaggerated its disabling effect. The Union objected to that characterization. It read the disciplinary memorandum as being limited to an assertion that the Grievor had faked the accident said to have given rise to his injury. On that basis, the Union said that the Railway was limited to proving that assertion as a basis for establishing just cause for the dismissal. On that basis the Union sought to confine the Railway to facts relating to an allegation that the Grievor had faked the accident that gave rise to his alleged injury and resulting disability.
[3] In making that submission the Union did not distinguish between falsifying an injury, which was the reason given by the Railway, and falsifying an accident, which was the reading the Union gave to the memorandum. That narrow reading was evident in para. 90 of its Submission. The Union wrote:
90. The Company simply has not presented any evidence that establishes their position that Mr. Mah “falsified a workplace accident on July 25, 2001” as stated on their Discipline Form dated September 9, 2001.
(emphasis added)
[4] A reading of the “Discipline Form” discloses the error. As stated, the misconduct alleged in the form is, “For falsifying a workplace injury”. The correct text of the form was recited by the Union in various other parts of its Submissions. Hence, the assumption is that the Union was not attempting to mislead when it substituted “accident” for “injury”. Rather, the error reflected the fact that the Union made no distinction between falsifying an accident and falsifying an injury in terms of the meaning to be given to the words used in the Discipline Form.
[5] The Union’s position, in effect, was that the Railway, in order to establish just cause for the dismissal, was required to prove on a balance of probabilities that the accident asserted by the Grievor did not occur and that it was prohibited from adducing any facts that did not meet that criteria. Coincidental with that submission, the Union sought specifically to exclude evidence relating to a surveillance of the Grievor, including “video taping”, which was initiated by the Railway, and to exclude two decisions issued by the Workers’ Compensation Board (WCB) with respect to a claim filed by the Grievor with respect to his injury.
[6] The first WCB decision was dated September 21, 2001 and was addressed to the Grievor with a copy to the Railway. In it the Grievor’s claim was rejected and a demand was made that he repay benefits that had been paid in response to his claim prior to its rejection. The second decision was made by the Workers’ Compensation Review Board on March 5, 2003 in response to an appeal of the original decision filed by the Grievor. The appeal was essentially dismissed. Both decisions came to the attention of the Railway routinely in the processing of the Grievor’s claim.
[7] The objection to the admissibility of the surveillance report and video tape and the WCB decisions was based on the broad assertion that they were not directed at proving that the accident relied on by the Grievor did not occur and on the additional ground that adducing the evidence would amount to an invasion of the Grievor’s right of privacy. Incorporated in the Union’s preliminary Submission was a further assertion that the Railway could not make reference to any fact or document which had not been produced and provided to the Union at the investigation into the Grievor’s behaviour.
[8] The investigation was conducted by the Railway on September 13 and 14, 2001 under Rule 27 of the collective agreement. The conduct of investigations is governed by the principles implicit in the preamble to Rule 27.1. It reads as follows:
27.1 Except as otherwise provided herein, no employee shall be disciplined or discharged until he or she has had a fair and impartial investigation and his or her responsibility established. When an employee is held out of service pending such investigation (maximum of three (3) working days), the investigation shall not be unduly delayed. (emphasis added)
[9] The Union position, in effect, was that the introduction of any document or assertion of fact that had not been presented at the investigation or that related to any issue other than whether the Grievor had experienced an accident in which he was injured would prejudice the Grievor’s right to a “fair and impartial investigation”. As indicated, included in that objection was the video tape and related surveillance evidence and, in addition, the decisions relating to the Grievor’s WCB claim.
Ruling on Preliminary Issues
[10] It is convenient to proceed seriatim in a consideration of the preliminary issues raised, commencing with the Union’s submissions with respect to the effect of Rule 27.1. Incorporated in the Union’s submission was the assertion that the Railway, having confined its reason for the dismissal of the Grievor to what the Union read as an assertion that he had falsified the accident said to have occurred on July 25, 2001, was limited to facts relating to that narrow allegation in these proceedings, and, in any event, that only facts and documents adduced in the investigation could be admitted and relied on.
[11] The investigation contemplated in Article 27.1 is not an independent adjudicative process. It is an investigative process in which the Railway is an interested party and is entitled to adopt the adversarial stance available to parties to disputes. The next observation is that the requirement is to conduct a “fair and impartial investigation”, not a fair and impartial hearing.
[12] The use of the term, “impartial”, in the provision does not imply a quasi-judicial process as opposed to a process in which a conclusion with respect to whether “responsibility” for alleged misconduct has been “established” is made by an official who is impartial in the sense of being aloof from the events under investigation. It does not contemplate a process in which “responsibility” implies an adjudicative standard that must be met as opposed to facts that identify conduct on the part of an employee in response to which the Railway elects to impose discipline. The question of whether the conduct can be proven or is deserving of discipline or dismissal, including the appropriate penalty, are matters to be addressed inter partes in the grievance procedure or adjudicatively in arbitration.
[13] A reading of the language of the collective agreement with respect to the conduct of investigations does not support the interpretation advanced by the Union. The commitment is for a fair and impartial investigation but the process cannot be confused with an adjudicative process in which the principles of a fair hearing and natural justice are imposed on the Railway. In my view, the language adopted by the parties amounts to a codification of the arbitral principles that have evolved with respect to the imposition of discipline. Those principles require that an employer be confined in the review of discipline to the reasons given for its imposition at the time it was imposed. The Railway is not a surrogate adjudicator.
[14] The investigative transcript makes it clear that the Railway was suspicious and thus concerned about the legitimacy of the Grievor’s alleged injury, including questions not only with respect to whether it had been faked, but also whether it had been exaggerated. In particular, he was closely examined with respect to the extent and severity of his injury and the extent to which he was disabled by it. In any event, the investigative process does not displace the grievance procedure in Rules 4 and 5 of the collective agreement and the access that procedure gives to the Union to clarify any concerns with respect to the issues involved. Those rights are spelled out in Rule 5.5(a) and (b) of the agreement and are inconsistent with the restrictions urged by the Union.
[15] The Union’s objection to the admissibility of evidence directed at any allegation other than a false claim of having been injured in an accident is dismissed. The investigative interview cannot be read as an allegation that “falsifying a workplace injury” is equivalent to an assertion that no injury occurred. That allegation, particularly when read in the context of the investigative interview and surveillance evidence upon which it was based, extends to falsifying the injury or to falsifying its nature and extent.
[16] Turning to the privacy question, the Union submitted that; “The Company is barred from introducing information which is statutorily protected under the Canadian Charter of Rights and Freedoms, the Federation Privacy Act, the British Columbia Privacy Act and the British Columbia Workers’ Compensation Act”. The Union’s objection extended to the video tape, the reports of the investigators who conducted the surveillance, and all facts generated in the Grievor’s WCB claim.
[17] The response of the Railway was that it was reasonable in the circumstances to pursue surveillance of the Grievor, including video taping, because of concerns which were reasonably held about the legitimacy of the Grievor’s claim to have been injured at work, or, coincidentally, the extent to which the injury affected his ability to attend at work and perform his duties, including modified duties. Its position on the two WCB decisions was that, while it did not rely on them as proof of the findings made, the very fact of the decisions themselves was relied on to place the surveillance initiative in context.
[18] The Union relied primarily on decisions made under the Personal Information Protection and Electronic Documents Act (PIPED) to support its position. The decisions included one made by the Information and Privacy Commissioner of the Northwest Territories and Nunavut, (indexed as PIPED Act Case Summary #1), with respect to the installation of video cameras in Yellowknife, NWT; and a decision of the Commissioner (cited as PIPED Act Case Summary #114), in a dispute that involved the installation of video cameras by an unidentified railway for the purpose of monitoring train movements. The cameras were not intended to monitor the movements of employees but they had that potential and there was no apparent reason which would meet the test of reasonableness in initiating the invasion of privacy implicit in that aspect of the video programs.
[19] The Union confirmed that it viewed the decisions as representing an emerging legal principle that privacy rights trump all other rights and thus constitute a bar against all forms of video surveillance of employees at or away from work. I am not able to agree with that reading of the two decisions. They involve public policy issues addressed by privacy officials who were charged with the administration of legislative programs. There was no indication that the legislation under which the decisions were made prohibits employers from initiating investigative processes in response to perceptions of employee misconduct.
[20] There is a well-established line of arbitral and civil law authority which recognizes a right in employers to invade the privacy of employees in appropriate circumstances. That right was addressed in terms of its application to cases involving a failure to return to work to perform modified duties, (being one of the allegations made by the Railway in this dispute), in Cuddy Food Products and U.F.C.W., Loc. 175/633 (Wec), (2003) 111 L.A.C. (3d) 289 (Crljenica). On p. 312 the Arbitrator completed a thorough review of the authorities, and concluded that the surveillance evidence was admissible. He then wrote as follows in a context which is apropos the facts in this dispute:
In conclusion, Mr. Wec’s efforts to mislead Cuddy in order to remain off work and collect WSIB benefits when he was able to return to work on modified duties is a breach of the element of trust which is fundamental to an employment relationship. The employer had just cause to discipline the grievor, and I find that termination was the appropriate disciplinary response.
[21] In a detailed review of the principles governing privacy and their application with respect to surveillance and video taping away from the workplace, Arbitrator Crljenica, commencing on p. 298, applied the reasoning in Canadian Pacific Ltd. and B.M.W.E. (Chahal), (1996) 59 L.A.C. (4th) 111 (M.G. Picher). In particular, he cited an extract from the decision of Arbitrator Picher which includes the following:
In my view, in a case such as this, in considering the admissibility of video-tape evidence acquired in the course of surreptitious surveillance, the appropriate test involves the two-part analysis.
1. Was it reasonable, in all of the circumstances, to undertake surveillance of the employee’s off-duty activity?
2. Was the surveillance conducted in a reasonable way, which is not unduly intrusive and which corresponds fairly with acquiring information pertinent to the employer’s legitimate interests?
This approach, diligently applied, should protect reasonably against the possible abuse of the right of an employer to resort to surveillance of its employees, in a manner consistent with the obligation which boards of arbitration have to safeguard integrity of their own procedures, and credibility of the arbitration process generally.
[22] That extract, and the reasoning of Arbitrator Crljenica that accompanied it, reflects the contemporary test applied by arbitrators in cases of this kind. His decision, which was published less than one year ago, incorporates an extensive review of the law and its evolution with respect to privacy rights versus employment obligations. The approach urged by the Union in this dispute was neither asserted nor acknowledged in his review.
[23] For its part, the Union relied on the decision in Labatt Ontario Breweries (Toronto Brewery) and Brewery, General and Professional Workers Union, (1995) 42 L.A.C. (4th) 151 (Brandt). In that decision, Arbitrator Brandt applied the balancing of interests test to determine whether surveillance and video taping of the grievor was reasonable in the circumstances before him. His conclusion was that, on the particular facts, the surveillance was unreasonable because there were other less intrusive methods of addressing the employer’s concerns.
[24] The Union also cited two decisions of Arbitrator Ready in CP Rail and the CAW, Local 101 (Nistico Dismissal and Jaffer Dismissal), February 15, 2002, unreported, in support of its position that facts developed by the WCB are privileged and cannot be introduced in arbitration proceedings. Both decisions involved employees who were dismissed following investigations into allegations that they had misrepresented the disabling effect of injuries they had received on the job. Both cases also involved preliminary objections with respect to the admissibility of WCB material, including letters which were viewed as equivalent to WCB decisions. In both cases the Union cited the decision of Arbitrator Brandt in Labatt Breweries.
[25] The surveillance and video taping in this dispute was conducted in areas to which the public had access. The principles that govern video taping in areas where there is no reasonable expectation of privacy are addressed in the decision of Arbitrator Piche in Canadian Pacific Ltd. and B.M.W.E. (Chahal), and in the following decisions; Wood Buffalo (Municipality) and C.U.P.E., Loc. 1505 (Roy), (2001) 98 L.A.C. (4th) 440 (Jones); and Transit Windsor and A.T.U., Loc. 616 (Orsi), (2002) 99 L.A.C. (4th) 295 (Brandt).
[26] The Union’s preliminary objection was dismissed on the basis that the better procedure where the admissibility of surveillance and video taping evidence is contested is to hear the evidence and determine its admissibility in the context of the particular facts. See Centenary Health Centre and C.U.O.E. (Ahluwalia), (1999) 77 L.A.C. (4th) 436 (Albertyn).
[27] I concluded on the facts and the applicable principles that the Union’s assertion of privacy with respect to the admissibility of the investigator’s report and the video tape incorporated in it should be dismissed. I reached a similar conclusion with respect to the Union’s objection to the two WCB decisions. That objection was based first on the position that the decisions did not relate to the assertion that the accident relied on by the Union had been faked. The Union position was that they were clearly directed towards whether the injury sustained in the accident had disabled the Grievor to the point where he could not perform light duties. The objection also incorporated the assertion the decisions were privileged and could not be used in evidence in any case.
[28] Turning to the facts relating to the WCB claim, it was initially allowed but was rejected in the decision sent to the Grievor by the WCB on September 21, 2001. A copy was forwarded to the Railway. As stated, the position of the Union was that facts relating to the claim were irrelevant and inadmissible because they did not address the central question of whether the Grievor was injured in an accident or whether he had faked the accident and/or his injury. Its further submission was that the provisions of the WCB Regulations imposed a blanket of confidentiality on all information developed by the WCB in its investigation and disposition of the Grievor’s claim.
[29] In support of its submission with respect to confidentiality, the Union relied on the two Ready decisions, and Fording Coal Ltd. and U.S.W.A., Loc. 7884, May 29, 1996, unreported (Dorsey). The issue of confidentiality under the WCB legislation, including the decision of Arbitrator Dorsey, was reviewed recently in Crown Packaging and C.E.P., Local 951 (Lutz), (2003) 111 L.A.C. (4th) 270 (Moore). In reviewing those authorities, and in reading s. 95(1), being the provision of the Regulations relied on by the Union, I conclude that the WCB decisions in question do not fall within the statutory proscription. In particular, the Ready Awards concluded the WCB decisions do not fall within the WCB statutory exclusions. In both awards, Arbitrator Ready wrote as follows:
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.
[30] The equivalent provision in this dispute, being s. 95(1), applies in specific terms to “information obtained by [officers of the board] or which has come to their knowledge in making or in connection with an examination or inquiry under this Part”. See p. 280 of Crown Packaging. That restriction does not extend to or contemplate decisions made by the Board with respect to a claimant. In this dispute the Railway conceded that it did not rely on the decisions as proof of the facts contained in them. Rather, they were relied on as support, albeit retrospective, for its assertion that the decision to initiate surveillance on the Grievor was reasonable and, in any event, because the decisions left the Grievor unable to rely on WCB leave as an explanation for his continued absence.
[31] In substance, the Union’s preliminary objections contemplated that the Grievor should be reinstated with no hearing on the merits of the dispute. In its preliminary submission the Union wrote:
It is the position of the Union that, as the evidence used by the Company to support its right to dismiss [the Grievor] for “cause” is tainted and cannot be considered in this matter, the Union’s preliminary objection must succeed. Therefore, based on the foregoing, [the Grievor] should be returned to duty forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any monies owing.
[32] I concluded on the facts that the Union’s objection must be dismissed. In particular, the investigation transcript and the disciplinary memorandum filed in these proceedings do not support the conclusion that the Railway confined its reason for the Grievor’s dismissal to an assertion that he had faked the accident alleged to have occurred on July 25, 2001. Rather, the Railway raised a question with respect to the legitimacy of the Grievor’s claim that he had been injured in the accident to the extent that he was unable to perform any work for the entire five week period of his absence.
[33] In addition, the Union failed to establish that the Grievor had a right of privacy which prohibited the Railway from relying on its surveillance report and the WCB decisions issued with respect to the Grievor’s claim. In that same vein, it is clear in the decisions relied on by the Union that the statutory privilege extending to facts generated in a WCB claim does not extend to the decisions it made.
The Merits
[34] I turn now to the merits of the dispute and, accepting that the surveillance evidence cannot be excluded on the basis of privacy, whether the evidence was admissible in an application of general principles to the particular facts. The approach arbitrators have adopted in assessing particular surveillance cases was addressed on p. 296 in Cuddy Food Products as follows:
Both parties made extensive submissions on the appropriate test to be applied in determining the admissibility of such evidence. The parties agreed that the two-part test which has been enunciated in numerous decisions is the test to be applied: 1) Was it reasonable in all the circumstances, for the employer to initiate a surveillance? and 2) Was the surveillance conducted in a reasonable manner?
[35] In the context of that test, the Union, as stated, urged that initiating surveillance was not reasonable because the Railway had other alternatives which would be less intrusive. Its submission was that it was available to the Railway to simply pursue the extent of the Grievor’s injury with his physician or pursue an independent evaluation of his condition.
[36] The Union further submitted that the surveillance was not conducted in a reasonable manner in the context of the video taping because there were days when surveillance was conducted but no video tape was recorded. The Union urged that the conclusion invited by that fact was that the Grievor would have been seen on those occasions in postures consistent with his assertion that he was disabled by his injury. Its position was that restricting video taping to the Grievor’s activity on August 4, 2001 was unreasonable in the circumstances.
[37] Turning first to the question of whether it was reasonable to initiate surveillance, there were a number of factors present to support the Railway’s initiative. They include:
(a) The Grievor had a discipline history which stood at 10 demerits at the time of dismissal;
(b) He had a lengthy history of poor attendance, including prior WCB claims that included his obligation to return to work on light duties;
(c) He denied receiving a light duty form for delivery to his physician, but, on the facts, his denial was not believable;
(d) He was familiar with his obligations with respect to light duties, but failed to comply with those obligations;
(e) A review of all of the medical information available indicates that the Grievor’s injury was subjective and, in terms of the limited medical information provided by his physicians, the implication is that his symptoms were largely self-diagnosed.
[38] The Grievor’s pattern of absenteeism, leaving aside the question of culpability, fell squarely within the pattern identified in the arbitral authorities as inviting dismissal for non-culpable absenteeism, see Brown & Beatty, Canadian Labour Arbitration, (2002) para. 7:6100, pp. 7-288 to 296, citing the decision of Arbitrator Weiler in Massey-Ferguson Ltd., (1969) 20 L.A.C. 370 @ p. 371 in which Arbitrator Weiler acknowledged a right in employers to dismiss employees who demonstrate a pattern of absenteeism which he described and addressed on pp. 371-2. Following are extracts from his analysis:
The difficult situation … is that of continuous, recurring, intermittent absenteeism. Here we do not just have a large number of days absent compiled in one or two accidents or illnesses (with perhaps 220 days lost in each). Rather, the employee is constantly missing work a few days at a time, scattered throughout the year, and eventually the totals amount up … It is in this last kind of situation that the company interests become apparent. It has a right to expect consistent attendance on the job …
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
There is another reason for the necessary power of termination in this kind of case – the extreme difficulties of proof by the company that the absenteeism is not bona fide and innocent. If an employee is constantly missing a few days work, it will be because of minor ailments and pains whose existence is very subjective. If an employee says he had a headache or sore back, and that he is not able to come to work, it is impossible to verify either the existence of any trouble or, certainly, its degree of severity. There is really no alternative to believing what the employee says. It is this arbitrator’s experience that doctor’s certificates, especially the large majority which follow a mere telephone diagnosis, are equally useless as verification.
[39] The Grievor was first employed on September 1, 1987 and his pattern of absences due to illness or injury began within a year of his employment. He was absent for 10 days due to illness in June of 1988 and continued in a pattern of intermittent absences for illness or injury for periods ranging between a few days and several months. The pattern, which could be viewed as a classic Massey-Ferguson pattern, continued throughout the Grievor’s work history of approximately 14 years (September 1, 1987 to September 28, 2001). The pattern included a variety of absences on WCB leave which included returns to work on light duties.
[40] When all of the facts are taken into consideration, I conclude that initiating surveillance of the Grievor was reasonable and was responsive to a justifiable concern about the legitimacy of his injury and its disabling effect on his ability to attend work in terms of the performance of his regular duties or light duties. On the question of whether it was reasonable in the circumstances to simply require the Grievor to account for the legitimacy of his injury and its disabling effect through his physician, I conclude that the fact pattern met the one contemplated by Arbitrator Picher in Canadian Pacific where he wrote on p. 125 as follows:
Further, regard being had to a number of facts, it would have been naively unrealistic, and indeed counterproductive to determining the truth, for the Company to have communicated its suspicions or concerns to Mr. Chahal, in the circumstances of this case.
[41] Those comments were made in response to a fact pattern not dissimilar from the facts present in this dispute. That reasoning was also applied by Arbitrator Crljenica in Cuddy Food Products on p. 301 where he encountered a fact pattern which, once again, was not dissimilar from that present in this dispute.
[42] On the question of the reasonableness of the manner in which the surveillance and video taping was conducted, the facts do not invite a conclusion that video taping on other occasions would reinforce his assertion that he had been disabled. The surveillance report filed by the investigators disclosed all of the dates and times when surveillance was maintained. It was neutral except for the events recorded on video tape. There were no observations indicating restricted movement on his part. Nothing in the report indicates activity on his part which would tend to support the Grievor’s assertion that he was disabled.
[43] I conclude on the facts that the manner in which the surveillance was conducted was not inconsistent with its purpose. That is, the activity of the Grievor relating to any restriction on his physical activity or movement was recorded and supported the Railway’s conclusion that, as of August 4, 2001, he was not demonstrating any sign of a disability which would prevent him from at least performing light duties.
[44] In seeking to refute the inferences invited by the surveillance evidence, the Union relied extensively on a series of “12 Doctor’s Notes”, seven of which were abbreviated “Physician’s Reports” recorded on one-page WCB forms. The remaining five medical notes included a copy of the Railway’s light duty form filled in on August 30, 2001 by the Grievor’s physician, Dr. J.H. Bell; three brief notes to the Employer from Dr. Bell on September 17, September 21 and October 31, 2001 and a note dated September 17, 2001 indicating that the Grievor had attended that day on Shoemate Orthotics.
[45] In addition to the “12 Doctor’s Notes, the Union filed a copy of a letter it had prepared for Dr. Bell dated November 6, 2001 in which he answered three questions relating to the video tape. The preamble to the questions recorded that Dr. Bell had viewed the video tape and that the Grievor had said that the stereo speakers seen on the tape involved objectives that weighed approximately 10 to 15 pounds.
[46] The first question posed in the letter invited Dr. Bell to express an opinion as to whether a weight of 10 to 15 pounds would have been “beyond [the Grievor’s] capability on August 04, 2001”. The written answer of Dr. Bell was, “No”. The second question related to whether “the bending and operation of the minivan” shown in the video would have “been beyond [the Grievor’s] capabilities”, to which Dr. Bell wrote “No”. The final question invited Dr. Bell to indicate whether anything in the video was “out of the ordinary or that [the Grievor] was performing [movements] that would have obstructed his back to work process”, to which Dr. Bell again wrote, “No”.
[47] Finally, the Union filed a copy of a report dated September 18, 2002 prepared in the Spine Clinic at Vancouver General Hospital in the form of an “Outpatient Clinic Report” that the Union saw as corroboration that the Grievor “suffered a back injury while at work and that back injury was and is more significant than first thought”.
[48] The report related to an examination conducted on September 9, 2002, more than one year after the incident giving rise to the grievance. It recorded symptoms apparently asserted by the Grievor and observations relating to the fact that he was in poor physical condition. The report recorded that, “he is able to continue on working”, presumably at replacement employment. He is described as “deconditioned” with “poor core stability” and “postural dysfunction”. with a recommendation that he embark on a “home exercise program”. The report does not relate his condition to a prior injury or disability.
[49] Returning to the WCB forms, they commenced with a record of a visit by the Grievor to a physician on the day of the injury. The notes continued through to September 2, 2001. Thereafter, the Grievor continued to perform light duties pursuant to the “light duty form” endorsed by his physician on August 30, 2001. He continued on light duties until his dismissal on September 28, 2001. The submission of the Union, in effect, was that the series of medical reports were conclusive with respect to the issue of whether the Grievor was disabled by the injury he sustained on July 25, 2001. The inferences invited by the medical notes had not been refuted by the Railway, said the Union.
[50] As stated, the medical notes relied on by the Union begin with a WCB “physician’s first report” dated August 25, being the day of the injury. It was on the one-page WCB form and was filled in by Dr. J.N. Warren. He indicated that he was not the Grievor’s regular physician. In a section on the form titled, “Return-To-Work Planning”, Dr. Warren described the Grievor’s “current physical and/or psychological restrictions” as, “neck pain”, with an estimate that the length of time before he would be able to return to work was “7-13 days”. Dr. Warren also wrote that the Grievor was not ready for a “rehabilitation program” but did not indicate the basis upon which he had formed his opinions with respect to the projected return to work time or why the Grievor could not commence “rehabilitation”.
[51] Dr. Warren’s form was filled out in a manner that can be described as perfunctory and, in any event, is difficult to reconcile with the facts. In particular, the form is divided to include a, “physician’s first report (F8)” or a form reflecting continuing treatment in response to a finding that “the worker’s condition or treatment has changed (F11)”. Dr. Warren selected the F11 alternative to be used when an employee’s “condition or treatment has changed”. In a section titled “clinical information”, he recorded in part that the Grievor still had pain. In fact, it was a first report and there had been no prior treatment and no prior diagnosis of pain. In short, the doctor was in fundamental error in filling in the form with respect to the history of the Grievor’s injury and its treatment.
[52] The second medical note relied on by the Union was also a WCB form. It was filed by the Grievor’s regular physician, Dr. Bell, the following day. He selected F8 indicating that it was the “physician’s first report” when in fact it was a follow-up to Dr. Warren’s report. In the “return-to-work planning” section, he made no mention of neck pain. In fact, he made no reference to Dr. Warren’s diagnosis or the fact that the Grievor had been seen first by another doctor. The form was limited to a recitation of what appeared to be subjective symptoms and an assertion of disability.
[53] The Union position is to be assessed in light of the fact that the Grievor absented himself from work on the basis that he had sustained a workplace injury and was disabled to the point where he would not be able to perform his regular duties or light duties. It is acknowledged in the arbitral authorities that, in those circumstances, it is the employee who bears the onus of establishing that absences from work are authorized. See Canadian Labour Arbitration, (2002), para. 7:3112. The Grievor sought to justify his absence on the basis of his disability resulting from his workplace injury. He took the first step in meeting that obligation when he filed his initial report with his foreman, Sam Gareb, on July 25, 2001, the day the injury was said to have occurred.
[54] The Grievor’s second step was to apply for WCB benefits. The application received initial acceptance, thus placing the Grievor on WCB leave. However, that justification for his absence ceased when his claim was disallowed retroactively on September 12, 2001. The disallowance was confirmed in the September 21, 2001 decision of the WCB in which it was recorded that the Grievor had received wage loss benefits from July 26 to August 12, 2001 and that the WCB was seeking repayment of all of those benefits based on its finding that “during the period … you misrepresented your abilities and obstructed the return to work process”.
[55] As recorded, the majority of the medical notes relied on by the Union were filed with the WCB, not the Employer. In ordinary circumstances those filings would be deemed sufficient to support the assertion that the Grievor was absent on WCB leave. Here that presumption was defeated when the WCB rejected the claim. Based on the surveillance report and its own medical review, the WCB concluded as follows in its September 21 decision:
As confirmed with you on September 12, 2001, your employer conducted video surveillance of your activities while you were in receipt of Workers’ Compensation Board benefits and off from work. As early as August 2, 2001, you demonstrated your ability to move very fluidly. On August 4, 2001 you demonstrated your ability to carry a load and place this onto the ground with a full motion of your back. You were also seen lifting a load from the ground, by bending over at your back. Eighteen days after video surveillance conducted on August 4, 2001, which confirmed your ability to lift and bend, you indicated during discussion with me that lifting and bending were two of three restrictions that you felt you had and that you doubted your ability to lift more than 5-10 lbs. This information was not consistent with your demonstrated abilities nearly three weeks prior to our discussion.
A Workers’ Compensation Board Medical Advisor reviewed both the medical information provided to you claim and the video surveillance. The Medical Advisor had indicated that the video surveillance demonstrates your ability to lift and bend without any noticeable discomfort and full flexion of your back. The Medical Advisor’s opinion is that you sustained a strain/contusion of your neck and back on July 25, 2001, and this would be expected to heal within 2-4 weeks while performing light duties. Light duties would not be expected to compromise your healing in any way. (emphasis added)
[56] The Railway took the position in these proceedings that the Grievor bore the onus of proving that he had been disabled in an accident that left him unable to perform even light duties. The Grievor failed to meet that requirement, said the Railway. In addressing that issue, the Railway relied in part on the September 21, 2001 decision of the WCB. However, as stated, it did not rely on that decision for the findings recorded in it. Rather, it relied on the decision as ex post facto support for its investigation of the Grievor’s claim, including its prior instigation of surveillance and video taping.
[57] That initiative was reasonable, said the Employer, and could be seen as refuting the assertion by the Grievor that the medical reports filed with the WCB supported the legitimacy and severity of the injury he relied on to excuse his absence. In that context, the Railway urged that the facts supported the conclusion that the Grievor, at the least, had failed in his obligation to pursue a return to work on a light duty basis.
[58] There was a dispute between the parties with respect to the facts related to the light duty issue. The Railway position was that the Grievor was familiar with the light duty obligation of employees. It asserted in that context that the Grievor had been given a “Temporary Assignment Prescription Form”, being the light duty form developed by the Railway to be completed by physicians of employees who are absent due to injury. The practice of the Railway is to fill in an “Incident Checklist” when an employee reports an injury. The checklist includes five steps, the third of which provides checklist boxes for the following steps relating to light duty obligations:
3. Temporary Assignment Prescription Form
· Form given to injured person
· Instructed employee to take form to Doctor/Hospital.
· Instructed employee to request Doctor/Hospital to fill out the form.
· Instructed employee to advise their status and return form as soon as possible to Supervisor.
[59] The Incident Checklist was filled in by Mr. Gareb, the Grievor’s foreman. A copy was filed in the hearing. In a memorandum dated October 1, 2002, Mr. Gareb confirmed what is recorded on the checklist. In particular, he confirmed that he had given the form to the Grievor, that he had instructed him to take the form to his doctor and to request that the doctor fill out the form. Finally, he wrote that he had instructed the Grievor to advise the Railway of his status and return the form as soon as possible.
[60] In a conversation on August 24, 2001 with Carole Imhoff, an administrative clerk assigned by the Railway to review his return to work status, the Grievor denied having received a form. She recorded that the Grievor had contacted her by telephone to advise her that he would return to work on August 31, 2001 and that, in response to questioning, he had advised her that he had not yet been examined by his physician for a return to work and that he did not have a light duty form. She advised him that he could not return to work without having the form filled in by his doctor.
[61] The Grievor did return on September 2, 2001 and presented the light duties form that had been completed by his physician on August 30, 2001. In it he was cleared to work for five hours per day on light duties. To accept the Grievor’s belated assertion that he had not received a light duty form, it would be necessary to conclude that Mr. Gareb, for no apparent reason, had failed to implement a well-established procedure with respect to light duty obligations even though he had completed the appropriate form indicating that he had performed that routine requirement. In any event, the Grievor failed to explain where he obtained the form that his physician filled in on August 30, 2001, thus inviting the speculation that he had received the form from Mr. Gareb and had simply failed to give it to Dr. Bell until August 30.
[62] I concluded on the facts developed in the hearing that the Grievor was given a light duty form and was instructed to present it to his physician to have it completed. I further conclude that he failed to meet that requirement until the issue was raised by Ms. Imhoff. The result was that the form was filled in by Dr. Bell on August 30, 2001.
[63] Two of the WCB forms filed by Dr. Bell were dated September 6 and September 17, 2001. At the time, the Grievor was working a schedule of five hours per day, five days per week for a total of 25 hours per week in response to the August 30, 2001 return-to-work form completed by Dr. Bell. In the form he had written, “He [the Grievor] will be able to start light duty for 5 hours per day as of Sept. 2/01”. Dr. Bell’s September 6, and 17, 2001 notes, when read with the return-to-work form he prepared on August 30, 2001, made no sense.
[64] In both forms, Dr. Bell included notations in a section titled “Clinical Information” that respectively read, “working light duty 5 hours per week” and “continues to work five hours per week”. In short, Dr. Bell mistakenly characterized the Grievor as working five hours per week rather than five hours per day and then provided for an increase to 10 hours per week. In a letter to Dr. Bell dated September 18, 2001, the Railway sought clarification of the proposed increase to 10 hours per week. It did not receive a reply.
[65] The Grievor’s failure to give Dr. Bell a light duty form was raised by the WCB in its September 21, 2001 decision. The WCB recorded the dismissal of the Grievor’s claim in the following terms:
Due to your lack of credibility, I do not feel the evidence on file is evenly balanced, and as such I cannot conclude you were not provided a Light Duty form, as you have indicated. Further, it appears you were well aware of light duties that were available. While performing your same position at work, with the same employer, with a very similar injury, and even dealing with employer’s same staff, you performed light duties under your last claim. It appears you are well aware your employer can and will provide light duties. As you did not provide a light duty form to your physician, in order to give both your physician and your employer an opportunity to address the possibility of light duties, you obstructed the possibility of, a continuance of, or an early return to, your employment after your injury. (emphasis added)
[66] In order for the medical notes filed with the WCB to carry weight in terms of excusing the Grievor’s absence, it would be necessary to ignore the fact that the WCB rejected the claim and, by necessary implication, had challenged the efficacy of the reports in terms of justifying the failure of the Grievor to seek light duties. Included in the WCB’s March 5, 2003 Review Board decision was the following:
I have also examined the medical reports. The first two reports by Dr. Bell and Dr. Warren, and written on July 25 and 26 described symptoms in the thoracic spine, the low back, both shoulders, both elbows and neck. However, there are no objective findings after July 25. On that day Dr. Warren recorded that there was reduced extension and a lateral flexion in the neck. All other comments are subjective and are comprised of the worker’s complaints of pain and tenderness. I do not accept that the … worker’s fall caused soft tissue injuries to both shoulders, both elbows, the worker’s neck, mid and low back. The complaints are too extensive. In order to suffer this much injury, the impact and event would have been much more significant than it was. The video, while not showing anything particularly inculpatory, does confirm my impression that the worker was less disabled than he now maintains he was. I find that there was a personal injury arising out of and in the course of employment, however, also conclude that the incident which was minor did not cause any disability beyond minor symptoms on the day of injury. The worker did not present his doctor with a light duty assignment form although he did have it. I am satisfied that he decided to evade light duty. There is no persuasive medical evidence that the worker was disabled in this interval and I am not prepared to rely on his evidence that he was. I find that an overpayment on the basis of misrepresentation was properly declared. (emphasis added)
[67] The submission of the Union, in effect, was that the medical notes must be given face value as proof that the Grievor was disabled. But, it is acknowledged in the arbitral authorities that medical notes vary widely in terms of their content and consequential reliability in establishing justification for absences. That general subject was addressed by Arbitrator Greyell in Rosewood Manor and Hospital Employees’ Union, Local 180, (1990) 15 L.A.C. (4th) 395. On p. 400-11 he wrote as follows:
In Victoria Times Colonist and Victoria Newspaper Guild, Loc. 223 (unreported, February 12, 1986), arbitrator Hope reviewed a series of arbitral authorities standing for the proposition that an employee is under a continuing obligation to account for all absences from work. He then concluded at p. 15:
That obligation clearly extends to absences attributed to sickness. In Re St. Jean De Brefeuf Hospital and C.U.P.E., Loc. 1101, (1977) 16 L.A.C. (2d) 199 (Swan), Professor Swan said as follows on p. 203: [page411]
“There is no doubt that, in a case such as this, an obligation rests on the grievor to make out a case to support her statement that she was ill and thus entitled to the sick pay benefits under the collective agreement. This is so not only because of the general rule that a party alleging a fact may be put to the proof of it, but also because the medical state of an individual is a matter clearly within the sole knowledge of that individual except in the rare case where external signs of illness identifiable even to the lay person may be observed.”
Nor is there any doubt that an employer is not required to accept an explanation as adequate. An employer has the right to compel sufficient information to permit it to determine if the absence is bona fide. The employer can, in appropriate circumstances, reject a medical certificate as inadequate. In Ford Motor Co. of Canada Ltd. and U.A.W., Loc. 1520 (1975) 8 L.A.C. (2d) 149 (Palmer), the arbitrator said as follows on p. 152:
“Having considered the above arguments it is my view that this grievance must be dismissed. In coming to this conclusion, I would first note that I cannot accept the bare position of the union that certification by a doctor is sufficient reason for an employee to absent himself from work. Clearly, such decisions can be in error, either as a result of error on the part of the doctor, the patient or both.” (emphasis added)
[68] The medical forms filed with the WCB, when read in the context of the facts developed in this dispute, were contradictory and, in any event, were rejected by the WCB in its decisions in terms of an explanation for a failure of the Grievor to seek light duties. In any event, the reliability of the medical opinions expressed by Dr. Bell was placed in serious question by the fact that, having concluded that the Grievor was capable of working five hours per day, he ostensibly did a further evaluation and concluded he could only work 10 hours per week. He then elected not to explain the discrepancy. I concluded that little weight could be given to his opinions.
[69] The Railway did not rely on the WCB decisions as proof that the Grievor sought to avoid light duties. It relied on them for the fact that the Grievor’s claim was rejected. Its determination that the Grievor had failed to meet his obligation to report for light duties was based on the facts the Railway developed in its own investigation.
Decision
[70] In support of the assertion that faking a disability is conduct deserving of dismissal, the Railway cited, Steels Industrial Products and Teamsters Union, Local 213, (1991) 24 L.A.C. (4th) 259 (Blasina); CP Express and TCU, November 13, 1992, CROA No. 2302, (Picher); and CP Rail and TCU, July 14, 1995, CROA No. 2651, (Picher). Dismissal was upheld in CROA No. 2302.
[71] The Railway took the position that the Grievor’s conduct supported his dismissal and that there was an absence of factors that mitigated in favour of his reinstatement. It relied on the following decisions to support that position, Canadian Lukens Ltd. and United Steel Workers of America, (1976) 12 L.A.C. (2nd) 439 (Schiff); Alcan Smelters and Chemicals Ltd. and C.A.W., Local 2301 (Pegley), (1998) 77 L.A.C. (4th) 303 (Hope); Hiram Walker & Sons Ltd. and Distillery Workers Local 61, (1973) 4 L.A.C. (2nd) 291 (Adams); and Weyerhaeuser Canada Ltd. and I.W.A.-Canada, Local 1-207, (1996) 55 L.A.C. (4th) 398 (Power).
[72] The Railway reached its conclusion on a review of the facts, including the video tape and surveillance facts, that as of August 4, 2001 the Grievor was not disabled to the point where he could not perform light duties. Its conclusion, in effect, was that he had falsified his injury, either in the sense that he had not been injured or in the sense that he exaggerated it in terms of its disabling effect. In the hearing, the Railway position was that the Grievor, by falsifying his injury, had breached his duty to account for his absence from work and, in any event, had breached his obligation to pursue a return to work on light duties.
[73] A review of the authorities supports the conclusion that falsifying claims of disabling injuries is extremely serious misconduct which, in the absence of strong mitigating factors, is deserving of dismissal. In that context, Arbitrator Picher noted in CROA No. 2302, that “to the present the grievor appears not to understand the seriousness of his actions and inconsistencies”. That factor is present in this dispute and is exacerbated by the fact that the Grievor was untruthful about receiving a light duties form.
[74] In CROA No. 2651, Arbitrator Picher confirmed prior decisions to the effect that:
[W]here the evidence establishes, on the balance of probabilities, that an employee has knowingly engaged in an attempt to defraud the employer of sick leave, insurance benefits or Workers’ Compensation benefits, the seriousness of such action has been sustained by the Arbitrator, with discharge generally being found to be appropriate in light of the breach of the relationship of trust fundamental to the employment contract.
[75] The Arbitrator found in that case that the grievor did not engage in an attempt to defraud the employer. The evidence included video surveillance and he found that the activity recorded was of a nature, which he did not view as being “incompatible with the condition which [the grievor] claimed to suffer”. That observation cannot be made in this dispute. Here the Grievor’s activities, despite the move to diminish their significance, were inconsistent with the Grievor’s assertion that he could not perform even light duties.
[76] I conclude on the facts that the Grievor failed to account for his absence from work and that his conduct, when weighed in light of his absentee record, constituted just cause for his dismissal. Further, there were no facts which would mitigate his conduct. In the result, the grievance is dismissed.
DATED at the City of Prince George, in the Province of British Columbia, this 8th day of July, 2003.
“H. Allan Hope, Q.C.”
H. ALLAN HOPE, Q.C. – Arbitrator