At the time of her discharge the member was a 23-year employee of the GTAA with no prior record of discipline or absenteeism. She suffered a work-related injury in the Fall of 2003, took two days off work and was referred to a physiotherapist. However, as it turned out, she required arthroscopic surgery. She has the surgery 24 February 2004 and was given a note indicating that she would be off work for 4 weeks thereafter.
The grievor cohabited with a fellow GTAA employee who was also off sick at the time. This employee was under covert surveillance by the Employer. The Employer decided to also place the grievor under covert surveillance. On March 9 and 10, 2004 the grievor was observed running a few errands and seeming not to suffer any discomfort. The Employer felt that these tasks were inconsistent with the grievor’s medical restrictions. She was asked for further medical information and was requested to return to work sooner. Fearing being terminated (as her partner had been suspended on March 10 and fired on March 16), she obtained a note from her physiotherapist (which was rejected by the GTAA) and doctor and returned to work on March 17, one week earlier than her doctor had originally requested. Surveillance conducted on the grievor that day indicated that she was walking with a limp after work. That same day she was advised that there would be a meeting on March 19 with her union rep. The Employer concluded the grievor was dishonest in her claim for sick leave and therefore she was suspended. On 24 March 2004 she was terminated.
The manager’s testimony made it very clear that the manager simply disbelieved the grievor’s doctor. Her opinion was that “the GTAA sees doctors’ notes all the time...doctors write what the employees want.” Instead , the manager relied on her amateur assessment of the video surveillance. However, the grievor’s physiotherapist – who had never been contacted by the Employer in this process—had informed the Employer in April 2004 that: “Although a patient has been referred to treatment and recommended to stay off work, this does not in turn limit them from continuing with functional activities at home or in the community.” Both her surgeon and her physiotherapist testified that the video evidence was consistent with her injuries and her limitations.
Because of the surveillance and the refusal of the GTAA to believe her and her doctor and physiotherapist, the grievor was referred to a psychiatrist who diagnosed her with Post Traumatic Stress Disorder and with betrayal trauma. Here was a 23-year employee with a perfect record, surreptitiously “stalked” by her employer and then fired while legitimately off sick. It is no wonder she felt betrayed. Her PTSD originated from previous sexual and physical assaults. However, the re-emergence of her PTSD symptoms was entirely a result of her firing and the manner in which it had been done.
She was still suffering PTSD as of March 2007, meaning that her employer had caused her three years of psychological pain and suffering.
Normally grievors ask for their jobs back. One of the unique features of grievance arbitration is that arbitrators can order reinstatement. In this case, the grievor’s testimony was:
that the GTAA took away her independence and dignity and that she has no respect for management of the GTAA. She admitted that she could not go back to a place where she had been happy and confident because of what had been done to her. Given her feelings, she does not want to return to the horrible place at the GTAA.
The Arbitrator found that the grievor’s testimony and that of her doctor and physiotherapist were compelling. He noted that on none of the video evidence does the grievor demonstrate activity inconsistent with her medical restrictions. He contrasted this sharply with the stereotypical case of the worker on sick leave found to be playing golf or engaged in other “frivolous” activity. He was particularly critical of the fact that GTAA management saw fit to judge for themselves the grievor’s medical condition solely on the basis of the video evidence.
They were not doctors and they ought not to have arrogated to themselves the medical knowledge which was necessary to assess the medical condition of the Grievor based on an examination of the tapes. They ought, at least, to have consulted a person with the relevant expertise such as a medical doctor and to have had that person assess the videotapes.
The Arbitrator was concerned about the Employer’s rejection of the physiotherapist’s note (which allowed the grievor to return to work but also indicated that she would benefit from more time off). “Given the Grievor's exemplary attendance record and her known surgery, the GTAA's rejection of the physiotherapist's note was not warranted nor was it credible.”
Arbitrator Shime was scathing in his criticism of the GTAA’s failure to attempt to verify the grievor’s medical condition: “The Grievor has given the GTAA twenty three years of service; certainly the GT AA, in return, could have found a few minutes for a phone call. I am unable to accept the GTAA's evidence that it took too long. There was not a modicum of effort to obtain another opinion.”
All in all, I conclude that the investigative meeting was superficial, that unwarranted conclusions were drawn, that the GTAA entered into the meeting with preconceived notions, and that the meeting, as Ms. Newman stated, was an interrogation and not a genuine or reasonable attempt to discover the truth about the Grievor's condition. I find that the GTAA’s inferences or conclusions about the meeting were not reasonable or credible.
Turning to the process of discipline itself, the Arbitrator correctly states the law:
There was a positive duty on the GTAA to consider her seniority and work record including her work performance. There was also a positive duty on the GTAA to consider why corrective discipline such as a warning or a lengthy suspension might not be salutary in these circumstances.
The Arbitrator’s bottom line conclusion is worth reading:
Employees are not like tissues to be used up and then thrown out at a whim into the bin of low level employment or unemployment. Employees, particularly those such as the Grievor, who have been long term local employees, are entitled to both a reasonable consideration of their seniority and work record and to a reasonable investigation of their conduct before being discharged and accused of dishonesty. There was not cause to discharge the Grievor, and since the GTAA's conduct in both its investigation and also in its ultimate determination was not only unreasonable but also in bad faith, the Grievor is entitled to an appropriate remedy including damages.
One of the most important findings of Arbitrator Shime was that there is an “obligation on the employer not to conduct itself, without reasonable and proper cause, in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee."
As a result, Arbitrator Shime awarded the following: 1) the expunging of the grievor’s employment record of any reference to the suspension and discharge, (2) a letter of reference referring to her exemplary service in a form acceptable to the Union, (3) damages for mental distress and pain and suffering of $50,000, (4) damages for loss of wages from termination to the issuance of the award, (5) damages for loss of earnings from the award to the date at which she could retire, (6) credit in the company pension plan for service from time of termination until retirement, (7) punitive damages in the amount of $50,000. In all, this amounted to an award in excess of $500,000.
I think the Arbitrator got it right - it is not only employees who are held to standards of good faith and trust when dealing with employers. This is a two-way street. What do you think? Did he get it right? Or, has this opened the floodgates?
No comments:
Post a Comment