Can one be a contestant on La voix, Quebec’s version of a popular vocal talent competition TV show featuring amateurs coached by established artists, while being on disability leave and receiving salary insurance indemnities? Such was the question recently raised before a labour arbitrator.
A leave with incompatible activities
A disability leave with compensation is an exceptional benefit open to an employee only if certain strict conditions are met. An employee of CHSLD Bourget, in the eastern part of Montréal, recently learned this lesson the hard way.
The employee, a dietary assistant, goes on leave August 18, 2012, to receive a fertility treatment. Shortly after, on September 6, she is given an invalidity leave “having received a diagnosis of adjustment disorder with depression, personal stress factors, loss of interest and concentration” [par 223; our translation].
On February 3, 2013, the employer’s manager of disability matters happens to see the employee taking part in the TV show La voix.
The very next day, the employer’s representatives meet with the employee to inquire about her disability. They learn that on September 15, 2012, soon after the beginning of her disability leave, she had auditioned to be selected for the show. In October, she had gone through a one-hour telephone interview. At the end of November, she had attended two consecutive days of rehearsals and recorded audition. In January, 2013, she had taken part in two more days of rehearsals, preparation, coaching and recorded auditions.
She never mentioned her participation in La voix to the employer’s representatives nor to the medical experts retained to examine her. The employer only learned about it when it was aired on February 3. The employer put an end to her disability leave on February 18; however, at that moment, she was put on maternity leave with a preventive withdrawal.
Considering that her alleged disability was incompatible with her participation in the television programme, the employer asks for the refund disability benefits she received.
A decision based on a complex analysis
The union filed a grievance in response to the employer’s claim for an amount of $12,155.05: this grievance was dismissed, for the most part. The arbitrator held the employee liable for $10,038, the amount of salary insurance benefits that she received between September 15, 2012 and January 26, 2013, being the period of her participation in La voix.
Certain aspects of this case, in which the author represented the employer, should be noted:
- The key role of expert witnesses: the major part of this substantial, 122-page decision, consists of a painstaking analysis of the testimonies of four physicians who examined the employee. They had mixed opinions. For instance, her own physician testified that taking part in the TV show could be a positive factor towards her recovery; since singing was a passion of hers. However, his notes made no mention of her participation, nor did they reflect his conclusion on its positive impact. Accordingly, the arbitrator ruled that this part of his evidence had virtually no credibility.
- The impact of bad faith: the evidence revealed that the employee had concealed her participation in La voix to her employer and its medical experts, when this was a key factor in the evaluation of her condition and the decision to maintain her disability leave. Had she been more straightforward with the doctors and her employer, the harsh outcome of this whole case could perhaps have been avoided.
- The arbitrator’s fees and expenditures: considering the facts, the arbitrator condemned the union to pay 95% of his fees.
- The employer’s grievance claiming that the union’s grievances be declared abusive: the arbitrator dismissed this claim, ruling that the union had discharged its duty of representation.
What are the takeaways of this case?
Invalidity leaves and salary insurance indemnities are ruled by clear and precise rules: both parties must abide by them, and act in good faith. When in doubt, one should seek the advice of a competent legal advisor to define the proper conduct and avoid escalating costs.
CHSLD Bourget c Syndicat national des employés de l’hôpital Bourget (CSN – Catégorie bureau), 2016 CanLII 36511 (QC SAT), https://canlii.ca/t/gs4r8
A commentary by Jacques A. Laurin, from our Labour and Employment Law Group.