A recent Ontario Labour Arbitration decision reinforces that honesty is always the best policy. Although employees should not be fearful to disclose a disability to an employer, employees should ensure that they are truthful in representing the extent of the disability.
In The Toronto Sun and Unifor, Local 87-M the Arbitrator found that The Toronto Sun was justified in dismissing the Grievor for cause because she misrepresented the nature of her disability and ability to perform her job duties. The Grievor’s dishonesty irreparably damaged the employment relationship.
The Grievor worked as a newspaper reporter for The Toronto Sun. On January 13, 2000, the Grievor suffered a severe ankle injury while she was skydiving, as part of a work assignment to write an article about extreme sports.
The Toronto Sun was very cooperative and helped accommodate the Grievor’s injury in various ways as recommended by the Grievor’s doctors. For example, the Grievor claimed that she had trouble walking and that she could not drive or take public transit. Accordingly, The Toronto Sun allowed her to rely on phone interviews as opposed to on-site information gathering, and she was not required to work weekends or nights like other general assignment reporters, because this would require driving or taking public transit. The Grievor used two canes to limp around the workplace and she appeared to be in significant pain.
The Toronto Sun became suspicious of the Grievor’s disability when it began receiving tips from other employees that the Grievor was more physically capable than she was representing to her employer. As a result, The Toronto Sun hired an investigator to conduct surveillance on the Grievor.
The surveillance documented the Grievor doing many tasks that she informed The Toronto Sun she was incapable of doing, such as:
- Driving to and from work on several occasions and walking to the office from a parking lot 400 metres away;
- Driving to run errands;
- Carrying and breaking down boxes;
- Walking without using both of her canes while appearing to not be in any pain;
- Driving for over 2 hours without any stops to Buffalo, New York, to go shopping.
After management obtained this surveillance, they met with the Grievor to ask whether she would be able to work nights and weekends in the upcoming year. Management did not reveal the existence of the surveillance to the Grievor at this point, but considered this an opportunity for the Grievor to be honest. The Grievor responded that she was still unable to drive.
Management met with the Grievor again a few weeks later, and this time they showed her the surveillance. The Grievor was silent throughout the meeting. After that meeting, the Grievor sent management an apology letter and shortly after, management terminated the Grievor’s employment.
The Toronto Sun argued that it had just cause to terminate the Grievor because she failed to be honest and forthright with respect to her ability to perform work as a news reporter and her needs for accommodation.
The union argued that The Toronto Sun did not have just cause for termination and that it took the opportunity to discharge her to avoid further accommodation.
The Arbitrator reviewed the surveillance and agreed with The Toronto Sun that the Grievor’s actions in the video surveillance are inconsistent with the abilities that she represented to her employer.
Furthermore, the Arbitrator confirmed that it is established law that every employee has an obligation to be truthful about their abilities and capacity to perform work. As a result, the Grievor’s conduct provided just cause to impose a serious disciplinary response. The Arbitrator stated that this conduct goes to the heart of the employment relationship and is detrimental to the accommodation process as a whole. The conduct was intentional and designed to deceive the employer. The Grievor was given an opportunity to be forthcoming and to explain her position and she did not do so. Accordingly, termination was the appropriate penalty.