In a reminder to employers to be diligent about using their own disability management processes before terminating an employee, an Alberta arbitrator has ruled against a company that fired a worker suspected of being dishonest about his condition.

The case, Tolko Industries Ltd. v. United Steelworkers, Local 1-207, involved a lumber mill in High Level, Alta. that fired an employee on long-term disability leave for allegedly being dishonest about his abilities.

Leslie Chalifoux had been with the company for 30 years and first suffered a workplace injury in the 1990s, which resulted in surgery. More recently, he developed two other conditions, plantar fasciitis and rheumatoid arthritis, and by mid-2012, he was receiving medication for depression.

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The employer received a functional abilities form that described Chalifoux’s limitations in October 2011, and prior to leaving for a two-week vacation in June 2012, the employee was receiving workplace accommodation and training for modified duties. Records show, however, that when he returned from holiday, the employer discontinued Chalifoux’s modified duties, which prompted him to go on disability leave.

Months later, as rumours began to spread in the small town that Chalifoux was exaggerating his disability, the lumber mill’s senior general manager witnessed the employee operating an all-terrain vehicle.

“The griever claimed to be extremely disabled,” said Dwayne Chomyn, legal counsel to the employer and a lawyer at Neuman Thompson in Edmonton. “He indicated that he lived a very sedentary life, that he was unable to engage in daily activities. And living in a small community, he was seen up and about engaging in activities that were diametrically opposed to his description of his abilities. He claimed, for example, that he was unable to operate a Ski-Doo. He was seen in town operating a Ski-Doo. So obviously, that was a concern to the employer and it proceeded as it thought was appropriate in light of all the circumstances.”

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The employer reviewed its files and turned to the insurer’s records for information on Chalifoux’s disabilities. It then hired an investigator, who found evidence of the employee engaging in activities the employer thought he couldn’t engage in.

After receiving the surveillance report, the employer met with Chalifoux and asked him about his current conditions and restrictions, without disclosing its surveillance. It viewed his answers as contrary to what the report said and determined that Chalifoux had been deceitful about his disability. The employer then terminated Chalifoux on Feb. 18, 2014, and he lost his insurance coverage shortly thereafter.

In response, Chalifoux filed a grievance for unjust termination.

While arbitrator Andrew Sims found Chalifoux may have exaggerated his conditions, he decided against upholding the employer’s termination.

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“In summary, I find the employer had just cause for discipline, but the nature of the cause is qualified by additional circumstances,” wrote Sims in his decision.

Sims took issue with the employer’s failure to accommodate Chalifoux in 2012 and for not using its disability management process. “The fact that there was a disability management process in place is a significant fact in assessing the appropriateness of outright termination in this case. Had that process been properly used from the outset, at least when Mr. Chalifoux came back from his holiday, and more appropriately even before that, outcomes and understandings could have been quite different,” wrote Sims.

Sims also found the employer shouldn’t have relied on the insurer’s disability records and its own surveillance to build its case for termination but instead should have requested updated functional abilities forms from Chalifoux.

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In lieu of termination, Sims directed the employer to provide details of the accommodation it can provide and ordered Chalifoux to provide an updated medical opinion of his capacities and limitations and, if necessary, produce a functional capacity evaluation. Lastly, Sims instructed the employer, employee and the union to meet and determine whether the lumber mill can accommodate Chalifoux without undue hardship.

“It was a disappointing decision for the employer,” says Chomyn. “The employer never disputed that Mr. Chalifoux was disabled. What it disputed was his description of what he could or couldn’t do. They thought he was exaggerating, and there was some evidence of that. So it wasn’t a case about disability to the employer; it was a case about trustworthiness.”

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Still, the outcome provides several lessons for employers, says Chantel Goldsmith, a partner at Samfiru Tumarkin LLP in Toronto.

She says the employer should have been more diligent in collecting its own updated medical information about the employee’s condition. Had it done so, it would have learned Chalifoux also suffered from depression and cognitive impairment, says Goldsmith.

As well, Goldsmith notes it’s problematic for employers to rely on insurers’ information because both parties have different mandates. “Those are two separate matters because when [long-term disability] is paid by an insurer, then it’s up to the insurer to adjudicate upon. His employment is separate from his LTD, so what the employer needs to realize is they can’t rely upon the information that’s being provided to the insurer alone. They have a positive obligation to obtain their own information.”

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Goldsmith notes the employer could have asked Chalifoux to undergo third-party medical examinations, if it was suspicious of the employee’s claims about his disability.

The case also shows employers the many precautions they need to make before deciding to terminate an employee, says Goldman.

“Especially for a 30-year employee, they really need to make sure this is going to be the right decision and make sure they have taken all the necessary steps before jumping to that final step. Because just-cause termination is a very high threshold for an employer to meet. So if they don’t have all of their ducks in a row, then that termination is not going to stick and then there’s going to be reinstatement or some other award,” says Goldsmith.

Copyright © 2018 Transcontinental Media G.P. Originally published on benefitscanada.com

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