When an employee claims they cannot return to work despite evidence suggesting they may be capable of performing modified duties, employers need to tread carefully before moving from accommodation to discipline. A recent Human Rights Tribunal of Ontario (“HRTO”) decision provides useful guidance for employers navigating these situations, including how to assess potential inconsistencies in an employee’s reported limitations while continuing to meet their accommodation obligations.

In D’Arienzo v. Toronto Transit Commission [D’Arienzo], the HRTO dismissed a disability discrimination application brought by an employee whose employment was terminated after his employer concluded that he had misrepresented his inability to perform available modified work while continuing to receive sick benefits. The HRTO found that the employer reasonably reached that conclusion based on the evidence available to it, and that the employee’s disability was not a factor in his dismissal.

The decision highlights the importance of documenting the accommodation process, obtaining sufficient information about an employee’s functional abilities, and giving the employee a fair opportunity to respond to identified inconsistencies before imposing discipline.

Background

The employee worked for the Toronto Transit Commission (“TTC”) as an Assistant Foreperson, supervising maintenance work involving subway infrastructure.  

In May 2018, the employee went on sick leave due to lower back pain and received sick benefits on the basis that he was unable to work. Throughout his absence, the TTC sought medical information regarding his restrictions and functional abilities and explored options for modified work.

The medical information regarding the employee’s ability to return to work evolved over the course of his leave. In August 2018, a functional assessment concluded that he could return to work on modified hours and duties. Among other things, the assessment contemplated half-day shifts, restrictions on lifting and repetitive bending or twisting, and the ability to change positions as required. The TTC confirmed that it could accommodate these restrictions.

The employee’s physician subsequently agreed that he could return on modified hours and duties. After the employee later reported a relapse, further medical documentation identified additional restrictions, but did not explain why he could not perform the modified work that had been offered by the TTC.

Given the inconsistencies between the employee’s reported inability to work and the medical information available to the TTC, the TTC retained private investigators to conduct surveillance over several days. The surveillance depicted the employee engaging in various activities, including walking, driving, shopping, bending, carrying items, and attending his son’s hockey games.

The TTC also obtained input from an occupational medicine consultant, who reviewed the employee’s medical information, functional assessment and surveillance. The consultant concluded that the employee was not totally disabled and could have performed work with the accommodations offered by the TTC.

The TTC subsequently met with the employee, presented its concerns and surveillance evidence, and provided him with an opportunity to respond. Following the meeting, the TTC terminated his employment for cause on the basis that he had falsely claimed to be totally disabled from performing any work while remaining absent and collecting sick benefits.

The employee then filed an application with the HRTO alleging that his dismissal amounted to discrimination based on disability under the Human Rights Code (the “Code”).

Decision

The Employee Failed to Establish Disability Discrimination

The HRTO dismissed the application.

To establish prima facie discrimination, an applicant must demonstrate that they have a protected characteristic under the Code, experienced adverse treatment, and that the protected characteristic was a factor in that treatment.

The Tribunal accepted, without deciding, that the employee had a disability within the meaning of the Code and that the termination of his employment constituted adverse treatment. However, it found that the employee’s disability was not a factor in his dismissal.

The Tribunal identified significant inconsistencies between the employee’s claim that he could not perform any work, the medical evidence supporting a return to modified work, and the activities captured through surveillance.

Importantly, the HRTO did not treat the surveillance evidence, on its own, as determinative. The Tribunal acknowledged that some of the activities captured through surveillance may have fallen within the employee’s stated restrictions. However, the TTC had offered modified work that accommodated those restrictions.

Accordingly, the relevant question was not simply whether the employee could perform the everyday activities captured on surveillance. Rather, it was whether his disability prevented him from performing the modified work actually available to him. The Tribunal found that the evidence did not support the employee’s position that he was totally incapable of performing that work.

The Accommodation Process Required the Employee’s Participation

The HRTO emphasized that the duty to accommodate is a co-operative and collaborative process.

The TTC repeatedly sought information about the employee’s restrictions, arranged a functional assessment, and identified modified duties that could accommodate those restrictions, including sedentary, non-safety-sensitive work and modified hours.

Despite being offered modified work within his identified restrictions, the employee continued to maintain that he could not return to work in any capacity. The medical documentation he provided did not establish why he was unable to perform the modified work offered, and he continued to receive sick benefits while remaining off work. The Tribunal concluded that the employee had failed to cooperate in the accommodation process.

The TTC’s Conclusion Was Reasonable and Unrelated to Disability

The HRTO found that the TTC reasonably concluded, based on the medical information and surveillance evidence, that the employee had falsely represented himself as totally disabled from performing available work.

The Tribunal also considered the process followed before termination. The TTC reviewed the available medical information regarding the employee’s functional abilities and restrictions, obtained further input from its medical consultant, investigated the inconsistencies, and gave the employee an opportunity to respond to its concerns.

Ultimately, the HRTO was satisfied that the TTC terminated the employee’s employment due to its belief that he had falsely claimed to be unable to perform available work while continuing to receive sick benefits, and not because of his disability.

Key Takeaways for Employers

• Document the Accommodation Process and Focus on Functional Abilities: Accommodation requires participation from both parties. Employers should seek sufficient information regarding an employee’s restrictions, limitations, and functional abilities, clearly communicate available accommodations, and document their efforts to identify suitable modified work. Where the medical information is unclear or inconsistent, employers should seek clarification before determining next steps.
• Investigate Inconsistencies Before Taking Disciplinary Action: Employers should avoid reaching conclusions about dishonesty or misuse of disability benefits based on suspicion alone. Where inconsistencies arise, employers should review the available medical information, gather other appropriate evidence, and provide the employee with a meaningful opportunity to respond before deciding whether discipline is warranted.
• Surveillance Evidence Should Be Considered in Context: Surveillance showing an employee participating in everyday activities does not necessarily establish that the employee is dishonest or capable of performing available work. Employers should assess surveillance evidence against the employee’s documented restrictions and the regular or modified work actually available. Where appropriate, input from a medical professional can assist in that assessment, rather than relying on surveillance footage in isolation.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.