Shadowing can be justified when a physician repeatedly refuses to authorize a temporary assignment

Release date: April 1st, 2016

A food service attendant challenged his dismissal for having engaged in inconsistent activities during an absence due to a work-related accident. The union objected to the admissibility of evidence based on shadowing and on the investigation report. Following a study of case law, the arbitrator came to the conclusion that the employer had serious reasons to resort to shadowing. Indeed, inconsistent observations by three physicians led him to have doubts regarding the alleged pains experienced by the employee. In addition, the attendant physician’s repeated refusal to authorize a temporary assignment was a reasonable motive to resort to shadowing. Under the circumstances, the evidence resulting from shadowing was admissible since surveillance was initiated for reasons related to the proper running of the enterprise: the employer had rational motives for initiating surveillance and shadowing was conducted using reasonable means which did not affect the employee’s dignity. 

CSSS Jeanne-Mance v. Syndicat des travailleuses et travailleurs du CSSS Jeanne-Mance (CSN)
DTE 2015T-325, 2015 QCTA 229, Claude Martin Esq.


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