Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2014 News | November 2014 | CSR Credit: Brian A. Jackson/Shutterstock Worker's dishonesty muddles duty to accommodate injury Employer had evidence that should have quelled suspicions about worker's injury, but employee didn't help his case by exaggerating By JeFFrey r. sMith aN ONTarIO company should have relied on medical informa- tion rather than surveillance of an employee off work with an injury, despite the employee be- ing less than forthright with his status, an arbitrator has ruled. tony Dolce was employed as a boxer in the ontario division of natrel, a producer of milk based in Markham, ont., owned by a co-operative of dairy farm- ers. Dolce's job involved moving boxes on skids and wrapping them, which involved bending, kneeling and constantly being on his feet. Dolce injured his knee before joining natrel in 1989, for which he received workers' compen- sation benefits. over time, the knee continued to bother him. Absenteeism became a prob- lem for Dolce and natrel was prompted to give him cautions about it. in 1995, Dolce was sus- pended for 10 days for failure to report to work when he was fit to do so, though he had no other discipline other than the cau- tions. in May 2012 Dolce's doc- tor provided assurance Dolce was fit to perform the essential duties of his position without limitations and there shouldn't be future attendance issues. Dolce's attendance didn't im- prove and he was told in Febru- ary 2013 his absenteeism wasn't acceptable. natrel cautioned him again in late April with the warn- ing that his job was in jeopardy. Dolce didn't indicate he had any medical problems at the time. shortly thereafter, Dolce was involved in an incident with the production scheduler and said he might have to go on stress leave if the scheduler's behaviour continued. he also made multi- ple requests for time off to deal with a personal family matter. his attendance didn't improve. on May 30, 2013, Dolce ad- vised natrel that he was going to be off sick for two weeks due to a recurrence of the knee injury. his doctor sent a note indicat- ing Dolce's knee was "acutely inflamed" and Dolce couldn't do his "usual work." the letter also stated Dolce was awaiting an Mri and had consulted a sur- geon, concluding Dolce could "sit at a desk but if such a position isn't available he will be off work for a period of up to two weeks." Employer suspicious of extent of injury Dolce's manager observed Dol- ce limping but was suspicious of him because of his absenteeism problems as well as his requests to be off work for family reasons and his threat to go on stress leave. As a result, natrel hired an investigator to conduct surveil- lance of Dolce. the investigator observed Dolce doing several activities natrel felt to be inconsistent with the request for modified sedentary work. Dolce was seen driving long distances; carrying beer cases, groceries, trays of food and sheets of plywood; car- rying a small child on his shoul- ders and in his arms; bending at the waist, walking normally, pushing a swing and loading a car; climbing stairs without us- ing the railing; and climbing onto a truck's tailgate, balancing on both legs and jumping down without difficulty. When Dolce came in to work to complete a workers' compensation report, he was limping visibly. the manager called Dolce to see if he would be returning on the date indicated in the doctor's note, but Dolce see he would not be back the next week as he had an Mri and an appointment with a specialist. Dolce claimed he was in terrible pain, his knee was swollen and he couldn't walk. he then sent another doctor's note stating his knee was still prevent- ing him from doing his regular job and he could only work if given a desk job. however, natrel didn't provide temporary duties for employees not injured at na- trel because it had a short-term disability plan for them. After more surveillance of Dolce moving about and per- forming tasks seemingly con- trary to his condition, natrel called him to a meeting on June 27 to discuss it. natrel prepared a termination letter, but man- agement wanted to wait and see how the meeting went before deciding on whether to termi- nate Dolce or not. At the meet- ing, Dolce said he only sat in his backyard and played with his dog because he was constantly in pain from a swollen knee. When told natrel had surveillance of him indicating he was capable of performing his duties, Dolce responded by asking, "What du- ties?" Dolce was shown the video and he became upset, saying it couldn't have been him and it was probably his son. however, the video was clear enough that Dolce was recognizable. Dolce was asked if he had anything to say and he said no. Employee dismissed for dishonesty natrel management determined Dolce wasn't being truthful about his injury and decided to termi- nate his employment immedi- ately for purposely misleading natrel about the nature of his absence and the level of his dis- ability. two weeks later, Dolce sent a letter of apology. in the letter, Dolce claimed he was always truthful and he "may have picked his words badly" because he was stressed and felt under attack at the meeting, which caused a misunderstanding. he insisted his pain was genuine and he needed surgery. Dolce also filed a grievance for unjust dismissal, insisting he had not been dishonest and the activities he was observed doing weren't as demanding as his job and he sometimes took painkill- ers. the arbitrator found, through evidence and testimony, that Dolce's boxer position required repeated kneeling and bending, as well as carrying boxes and spending a significant amount of time on his feet. the medical evidence from Dolce's doctor was sufficient to indicate Dolce wasn't capable of performing his regular duties, said the arbitra- tor. the arbitrator also found the video surveillance showed "short periods of activity by (Dolce) at a time when he was on pain medi- cation," it didn't prove Dolce was capable of "a full eight-hour shift DOCTOR > pg. 4 Dolce told his employer a surveillance video of him was probably his son.

• Cover