A labour arbitrator has awarded a unionized employee more than $500,000 for loss of income, mental suffering, and punitive damages after her employer acted in bad faith when it terminated her employment on the basis that she was malingering when she stayed off work an extra week to recover from surgery.
In this case, the grievor returned to work following surgery earlier than recommended by her doctor after she was challenged by a manager for being captured on video surveillance driving to the store, carrying groceries, and picking up a friend from the airport. After the grievor returned to work, she was observed by her manager to be walking with a significant limp which she had not had in the prior video surveillance. The grievor was called in to a meeting with her manager, shown the video surveillance evidence and asked to explain. The grievor tried to explain that she had felt better when she was regularly attending physiotherapy and taking painkillers, neither of which she could do while at work. Her manager was dissatisfied with her explanation and the grievor’s employment was terminated later that week. The union filed a grievance.
The arbitrator found that there was no evidence of malingering or abuse of sick leave. He noted that the video evidence was wholly consistent with the grievor’s explanation that she felt better when she was participating in physiotherapy and taking pain killers. The arbitrator concluded that there was no evidence that the grievor was able to return to work any earlier and that the employer had acted unreasonably and in bad faith in terminating her employment. The arbitrator awarded her more than $500,000 for loss of income, mental suffering and punitive damages.
The employer has filed an application for judicial review.