Employee Terminated for Cause After Misrepresenting Level of Disability
In the recent decision of Hotel-Dieu Grace Health Care v. CUPE Local 1132, the Grievor took a medical leave of absence alleging that she was totally disabled from performing her nursing duties due to plantar fasciitis.
The Employer hired a private investigator to video surveil the Grievor over seven days. The video surveillance revealed that, despite the Grievor's subjective opinion that she was totally disabled from performing her work duties, she displayed no signs of disability in her daily life. Based on the video surveillance, the Employer determined that the Grievor had misrepresented her level of disability and accessed sick benefits in a fraudulent manner. The Grievor's employment was terminated as a result.
Under cross-examination, the Grievor and her doctor both admitted that the Grievor displayed no symptoms of a disability whatsoever in the video surveillance footage. The Grievor's doctor also admitted that his assessment of the Grievor was based entirely and solely on what she had told him about her medical duties and her job duties. As such, Arbitrator Hinnegan found that there was a complete absence of "evidence with some degree of objectivity in support of the Grievor's claim of total disability" and that he was left only with the "Grievor's personal assertion as to the extent of her disability".
In dismissing the grievance, Arbitrator Hinnegan found that there were three major areas of concern with the Grievor's version of events:
Given the intermittent nature of the Grievor's disability, it was unexplained how the Grievor or the doctor could possibly predict that the Grievor would be unable to perform her duties for four full weeks;
The Grievor's doctor placed no restrictions on any of the Grievor's normal day-to-day activities and never raised or discussed such day-to-day activities in any of their consultations; and
The Grievor's explanations and justifications of total disability stood "virtually alone without any objective supporting evidence of any kind. On the other hand, I am looking at a video taken over several days showing no sign of any physical impairment, let alone total disability".
For all of these reasons, Arbitrator Hinnegan dismissed the grievance in its entirety and upheld the termination of the Grievor as being with just cause.
This case was argued successfully by Leonard Kavanaugh, Q.C. over 21 hearing days, beginning October 2015 - April 2019.