An Ontario labour arbitrator upheld an employee’s termination for just cause after the employer learned that the employee faked the severity of her injury and ability to perform work for over five years. The arbitrator found that the employer was justified in terminating the employee for just cause because the actions of the employee went to the heart of the employment relationship.
The employee was a journalist working for the employer since 1991. She had no disciplinary record.
Unfortunately, the employee suffered a serious skydiving accident. Although in her prior life she was very active, things changed after the accident.
All agree that the employee suffered a major injury to her left ankle while skydiving and the injury left her on pain medication with some physical limitations. The employer attempted to accommodate these limitations for about five years.
More specifically, accommodations included dealing with contacts on the phone instead of going to them, working from home, limiting walking and standing, and receiving various ergonomic materials including chairs, headsets and foot rests.
But there was a problem-management was hearing rumours that co-workers had noticed the employee out and about with much better mobility and appearing to be in much less pain compared to when she was in the office hobbling around with two canes, appearing to be in severe pain.
Following a troubling comment made by the employee, an investigation was commenced and video was obtained by the employer. It became clear that there was a stark difference between what the employee could do in the office versus what the employee could do outside of the office. She was much more mobile outside of the workplace. What is more, she claimed she could not drive due to the pain medication and physical pain, but she was seen driving.
In a nutshell, the employee was lying about her ability to perform the work and her needs for accommodation.
The employer met with the employee and confronted her about what had been discovered. The employee responded by saying nothing initially, but then by providing an email apologizing for driving against doctors’ instructions and not being honest with the employer regarding her driving.
Needless to say, management was disappointed and, since they felt as though the employee had been extremely dishonest, ultimately decided to terminate her.
The employee’s union launched a grievance and asked her to be reinstated. At the hearing, the employee provided a new explanation regarding the use of canes and tried to explain the video surveillance findings-she claimed that she used one or two canes depending on the pain, and when she took her pain medication, she did not feel the pain but became slower and dizzier so she used the canes as a precaution against falling.
The employer argued that the employee had been dishonest about her ability to perform her work duties and her needs for accommodation, and this went to the core of the employment relationship. She lied about being able to drive and became a different person outside of work. The employee’s apology was strategic and insincere.
The arbitrator did not buy the employee’s arguments:
The employee was responsible for the misconduct alleged by the employer. There was no dispute that the employee had a disability, but she lied about her ability to perform her job and her needs for accommodation. It was clear from the medical evidence and the video surveillance that there was an inconsistency between what the employee could do and what she claimed she could do. The arbitrator stated, “watching the video, there is a stark difference between how the (employee) walks (more labored) when she is closer to the workplace versus how she walks when away from the workplace (more mobile). Even more startling is the fact that it appears that when (she) is not taking her pain medication she appears more mobile, driving her automobile to conduct errands for herself and her family, including shopping in Niagara Falls and Buffalo New York on one of the busiest shopping days of the year.” The apology was found to be strategic indeed. The arbitrator found that the employee’s conduct defied common sense and was not adequately explained.
The misconduct gave rise to just cause for discipline. Dishonesty is an extremely serious employment offense. The employee misrepresented her ability to perform work and was dishonest-this imposed a serious disciplinary response.
It was inappropriate to decide whether the employer violated the Human Rights Code as claimed by the employee. It was inappropriate to decide whether the employer was trying to get rid of a disabled employee so there would be no more requirements to accommodate her in the workplace. This was because this complaint launched by the employee did not even come up in a timely manner, the employer no longer employed some of the people involved and the circumstances regarding this matter had already been dealt with in a workers’ compensation file.
Termination for just cause was appropriate. There was no need for the employer to prove fraud with evidence to uphold the termination for just cause. Dishonesty in itself provided cause for discipline, and while fraud was an aggravating factor, it was not essential for upholding the discharge. In this case the dishonesty was planned, deliberate and ongoing-the employee was happy to do as little work as possible and this conduct went to the heart of the employment relationship. The employer accommodated the employee, but the employee did not do her part in the accommodation process. She had to participate in an honest and forthright manner, providing the employer with accurate information to fulfill the duty to accommodate. Employers have to trust their employees when they make these requests. When the employee was dishonest in this way, it undermined the essential trust relationship with the employer and also fellow employees. Even though the employee was a long-term employee with no discipline record, suffered significant economic hardship, had a disability and had trouble finding alternative work, these things did not mitigate against the damage the employee did to the relationship, given the intentional misconduct designed to deceive the employer.
As a result, the employee’s just cause termination was upheld.
What can employers take from this case?
As can be seen from this case, even long-term employees with good discipline records can be terminated for just cause in certain rare situations. This was one of those times-the employee was extremely dishonest throughout the time after her accident for five years of accommodation. The employee lied about her ability to perform work and the accommodations she required in order to be able to perform the work. She was involved with intentional deceptive misconduct designed to deceive her employer. The just cause termination in this case was upheld.
Employers who find themselves in this situation must remember that it is not easy to simply terminate for cause an employee who is being accommodated. Employers must be cautious; when they think they have evidence showing this type of dishonesty, they are recommended to seek legal advice before acting hastily.
One thing we learned is, while fraud is considered an aggravating factor in these types of cases, it is not essential for upholding a discharge for just cause. Dishonesty in itself can lead to a termination for just cause.