Disability vs. Dishonesty
On the other hand, employees should be aware that if they are going to claim that their disability made them do it, it will not be an easy ride.
Margie had been working for her employer for over 20 years when her boss became concerned about the amount of work she was missing. She explained that a family member was ill and another had died.
Margie was off for a while and when the boss asked if she was okay to return to work Margie insisted she was. The problem was she kept missing work claiming to be ill.
She missed work without even calling in and eventually the boss gave her a warning letter. Margie was in a union and she was told that for absences for more than one day she had to comply with the policy of providing a doctor’s note.
The employer asked if there was anything it could do to help Margie or improve her attendance. She said she was fine and would be at work.
A fitness-to-work evaluation was paid for by the employer and it rated Margie able to work on a full-time basis without limitations.
Over a ten-month period Margie handed in 16 computer-generated medical notes from ten different doctors and a physiotherapy clinic justifying her absences.
They were all fake.
The day after Margie was contacted by an investigator from the human resources department and asked to attend a meeting about the fake notes, she requested a meeting with her own management. When Margie was confronted with her fake doctor’s notes she disclosed that she was an alcoholic and that was why she had been missing so many days at work. She could not get a doctor’s note for these absences so she faked them. She said she was enrolled in a treatment program. Margie showed no real remorse in her meeting with management and blamed her employer for requiring the notes in the first place. She noted that the employer would not have wanted her to come to work because she would have ended up driving drunk.
Margie collected approximately $9,300 in sick pay based upon those 16 fake notes. She was terminated. It turned out that she had problems with alcoholism in her past but had been sober for eight years until the illnesses in her family triggered a relapse.
The employer argued that Margie’s dishonest behaviour was repeated over a long period of time and that she had fundamentally destroyed the trust that must exist between employer and employee for the relationship to continue.
Margie argued that her behaviour was a direct result of her alcoholism which constitutes a disability and the employer should have taken that into account and refrained from terminating her and allowed her to be rehabilitated instead. She rendered many years of faithful service and the relationship and her employment were salvageable.
The problem was, there is no real link between being an alcoholic and forging notes. Margie was sober when she typed them. When she had been having problems with alcohol in her past and missing work, she did not forge notes.
Margie’s attempts at rehabilitation had been somewhat lackluster. She had enrolled in a program when the forged notes had been discovered but never finished it. Ultimately, her grievance failed. It was found that the termination without notice was justified. Human rights legislation does mean that the entire context of the misconduct should be considered including rehabilitation efforts, cooperation with the investigation, previous work performance, remorse, and the relationship between the misconduct and the disability.
Being addicted to gambling does not mean you get to embezzle money with impunity and mental health issues will not justify bad behaviour indefinitely at work.
Human rights legislation in Canada is liberally interpreted but there are limits.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at firstname.lastname@example.org