Supervisor viewed multiple videos of worker on YouTube
A sonographer at a Winnipeg health centre was dismissed after the employer saw her performing cultural dances on YouTube despite being off work due to a fractured wrist.
Roshni Tailor worked at the Health Sciences Centre in Winnipeg since September 2010, but on Jan. 14, 2017, she fractured her wrist while doing a dance routine. Tailor immediately went off work on a short-term disability basis and was scheduled to return to work on a graduated program in April.
Tailor’s restrictions included “no... pushing, pulling, gripping (or grasping) with right upper extremities,” said an email from occupational and environmental safety and health disability case management coordinator.
By the end of April, Tailor was “unable to do duties as an ultrasound sonographer, may return to sedentary work,” according to an update.
Tailor then moved to long-term disability status on June 1, while she continued to recover.
On Jan. 31, 2018, Tailor was eligible to return to work but only performing “light duties” for about eight to 10 weeks. On Feb. 13, she met with a physiotherapist to prepare for her return.
During the meeting, she told the physiotherapist that she was rehabbing via treadmill and also performing cultural dances.
In late February, Tailor emailed a health update to the manager of diagnostic imaging identified as “Zdanuk”: “The aggravation in my wrist didn’t subside overnight like it normally does and continued into the morning. I get random stabbing\shooting pain with certain movements.”
Tailor’s schedule was reduced to work two days a week.
But in April, Zdanuk heard rumours that Tailor was performing cultural dances outside of work and the movements she did were not consistent with the pain she reported. Zdanuk viewed three videos on YouTube that were recorded in March and April.
Tailor was advised by the insurer on May 7, that her LTD benefits were not being continued due to her no longer being disabled.
She was told not to attend work and await further instructions on when she could return. But on May 30, Tailor was terminated after the employer said she breached trust due to her dancing.
The union, the Manitoba Association of Health Care Professionals (MAHCP), grieved the firing.
Arbitrator Kristin Gibson upheld the grievance and ordered Tailor to be reinstated as of May 30 with full back pay.
“The difficulty for me arises in considering whether the pain-free dance performances are inconsistent with Tailor continuing to experience and report significant pain in doing her job as a sonographer which, by all accounts, involved sustained pressure for periods of 30 to 45 minutes at that time in her recovery, and which was physically demanding in most respects. While I agree that the dance performances present a much different picture to a non-medically trained individual than the reports of pain continuing after Tailor’s shifts at work, I do not feel able to conclude without medical evidence that there is the required degree of inconsistency to shift the onus to her,” said Gibson.
And throughout the rehabilitation process, Tailor did not hide anything, said the arbitrator.
“I do not think the fact that Tailor disclosed her dancing to her health-care providers proves that she was medically cleared to dance or that the dancing was consistent with her reports of pain and difficulty performing her job in February, March and April of 2018 but I have already determined that the onus has not shifted to her for explanation. I do think that her disclosures likely functioned in her view as clearance — she was not told to discontinue her dancing, she was encouraged to be active and stay fit — and I also do not think that she was dishonest when she characterized it as clearance to her employer,” said Gibson.
Reference: Winnipeg Regional Health Authority and Manitoba Association of Health Care Professionals. Kristin Gibson — arbitrator. Melissa Beaumont for the employer. Jake Giesbrecht for the employee. Oct. 28, 2018. 2018 CarswellMan 781
Roshni Tailor worked at the Health Sciences Centre in Winnipeg since September 2010, but on Jan. 14, 2017, she fractured her wrist while doing a dance routine. Tailor immediately went off work on a short-term disability basis and was scheduled to return to work on a graduated program in April.
Tailor’s restrictions included “no... pushing, pulling, gripping (or grasping) with right upper extremities,” said an email from occupational and environmental safety and health disability case management coordinator.
By the end of April, Tailor was “unable to do duties as an ultrasound sonographer, may return to sedentary work,” according to an update.
Tailor then moved to long-term disability status on June 1, while she continued to recover.
On Jan. 31, 2018, Tailor was eligible to return to work but only performing “light duties” for about eight to 10 weeks. On Feb. 13, she met with a physiotherapist to prepare for her return.
During the meeting, she told the physiotherapist that she was rehabbing via treadmill and also performing cultural dances.
In late February, Tailor emailed a health update to the manager of diagnostic imaging identified as “Zdanuk”: “The aggravation in my wrist didn’t subside overnight like it normally does and continued into the morning. I get random stabbing\shooting pain with certain movements.”
Tailor’s schedule was reduced to work two days a week.
But in April, Zdanuk heard rumours that Tailor was performing cultural dances outside of work and the movements she did were not consistent with the pain she reported. Zdanuk viewed three videos on YouTube that were recorded in March and April.
Tailor was advised by the insurer on May 7, that her LTD benefits were not being continued due to her no longer being disabled.
She was told not to attend work and await further instructions on when she could return. But on May 30, Tailor was terminated after the employer said she breached trust due to her dancing.
The union, the Manitoba Association of Health Care Professionals (MAHCP), grieved the firing.
Arbitrator Kristin Gibson upheld the grievance and ordered Tailor to be reinstated as of May 30 with full back pay.
“The difficulty for me arises in considering whether the pain-free dance performances are inconsistent with Tailor continuing to experience and report significant pain in doing her job as a sonographer which, by all accounts, involved sustained pressure for periods of 30 to 45 minutes at that time in her recovery, and which was physically demanding in most respects. While I agree that the dance performances present a much different picture to a non-medically trained individual than the reports of pain continuing after Tailor’s shifts at work, I do not feel able to conclude without medical evidence that there is the required degree of inconsistency to shift the onus to her,” said Gibson.
And throughout the rehabilitation process, Tailor did not hide anything, said the arbitrator.
“I do not think the fact that Tailor disclosed her dancing to her health-care providers proves that she was medically cleared to dance or that the dancing was consistent with her reports of pain and difficulty performing her job in February, March and April of 2018 but I have already determined that the onus has not shifted to her for explanation. I do think that her disclosures likely functioned in her view as clearance — she was not told to discontinue her dancing, she was encouraged to be active and stay fit — and I also do not think that she was dishonest when she characterized it as clearance to her employer,” said Gibson.
Reference: Winnipeg Regional Health Authority and Manitoba Association of Health Care Professionals. Kristin Gibson — arbitrator. Melissa Beaumont for the employer. Jake Giesbrecht for the employee. Oct. 28, 2018. 2018 CarswellMan 781
