Canadian Employment Law Today

June 12, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Tim Mitchell Ask an Expert MCLENNAN ROSS LLP, CALGARY 2 | June 12, 2019 Have a question for our experts? Email Canadian HR Reporter, 2019 Ask an Expert Threshold for dismissal after employee theft Question: If an employee is found to have committed theft of the employer's property, is there a standard as to the value of the stolen property or number of incidences that meet the threshold for dismissal without other discipline? DISCIPLINE on page 7 » Requesting an independent medical examination Question: Are there any legal considerations to not accepting the medical information from an employee's doctor and requesting an independent medical examination to support an employee's medical leave? Answer: eft is one of the most aggravat- ing forms of misconduct an employee can engage in. eft implies deliberate intention to wrongfully take something that belongs to another. It is often referred to as a cardinal sin which goes straight to the foundation of trust necessary to maintain an employer- employee relationship. Historically, theft was viewed by arbitrators and courts as a repudiation of the employment contract and establishing theft could justify immediate termination of employment for cause. Today, however, arbitrators and courts use a contextual approach to determine whether just cause for dismissal exists when employee theft is discovered. Similar to the analysis required when discipline is being considered for other types of misconduct, each employee theft case must be assessed on its own merits; and the nature and cir- cumstances of the employee's conduct must be weighed against possible sanctions: see McKinley v. BC Tel. Discipline must always be proportional to the employee's conduct. Consequently, theft is no longer an auto- matic ground to terminate the employment relationship. We generally recommend that in cases of alleged theft, employers conduct a thorough investigation into the employee's conduct. Of note, employers seeking to discipline an employee for theft must prove on clear and compelling evidence, that: (i) the person misappropriated property or money not be- longing to them; and (ii) that the employee did so with intent: see Brown & Beatty, `Ca- nadian Labour Arbitration.`` In one 2017 Alberta arbitration — Sobeys Capital Inc. and UFCW — for example, the employer failed to prove a grievor had the intent to commit theft when the grievor's explanation for their conduct was more probable than that presented by the employer. ere are ultimately multiple factors that employers should take into account when determining the appropriate discipline in situations involving employee theft: • e nature and seriousness of the theft (in- cluding the value of the goods involved) • Whether there was a single act of theft or a pattern of theft-related or other dishonest conduct • Whether there was any confusion on the part of the employee personally or result- Answer: Employers are entitled to request medical information to make decisions about accommodating an employee or po- tential employee or to confi rm an employee's absence for medical reasons. However, there may be situations in which the information provided by an employee's treating physi- cian appears to be inaccurate or inadequate. In such cases, an employer will often request further and better medical information from the treating physician, and in some circum- stances, may request an independent medi- cal examination (IME). An IME may or may not be appropriate depending on the circumstances: • When the employer has the contractual right to obtain an IME under an employ- ment agreement or collective agreement, an employer may request an IME. • Employers can obtain an IME where legis- lation specifi es the employer has the ability to do so, or when the employer requests an IME and the employee agrees. • Where an employer cannot reasonably expect to obtain the information it needs from the employee's medical expert to sat- isfy the employer's duty to accommodate. In this circumstance, the employer must have a reasonable and bona fi de reason to question the adequacy and reliability of in- formation provided by the employee's ex- pert to request an IME. • An IME cannot be requested to second- guess an employee's medical expert and is not an unrestricted right. Importantly, employees are expected to meaningfully engage in the accommoda- tion process and provide employers with a reasonable amount of information that will allow employers to assess accommodation options. A failure of an employee to provide accurate and necessary medical informa- tion may lead to an employer's request for an IME. In one recent Ontario decision — Botti- glia v. Ottawa Catholic School Board — the Divisional Court held that it was appropriate for an employer to request an IME after the employee's medical expert made a sudden change in recommendation and showed a lack of knowledge of the employee's work- place. In that case, the employee had been on an extended leave of absence and was seeking a signifi cant accommodation in his return to work. e court found that the em- ployer had experience returning employees to work and had reason to question whether the employee's return to work plan was ad- equate, appropriate, or premature given the signifi cant accommodation sought. Overall, an employer requesting an IME should consider each case individually and diligently. Before demanding an IME, em- ployers should carefully consider whether it would be suffi cient to ask for further infor- mation from an employee's treating physi- cian. ere are two predominant legal risks that may arise if an IME is inappropriate in the circumstances. First, if an IME is requested, the employee refuses to attend at the IME, and the employer does not provide appro- priate and reasonable accommodation on that basis, the employer may be found to have contravened its obligation to accom- modate the employee under human rights legislation. at scenario could give rise to potential damages for injury to dignity, feel- ings and self-respect, lost wages (if applica- ble), or other non-fi nancial remedies. Second, if an IME is requested and the employee co-operates, the employer may be found in contravention of provincial or federal privacy legislation. In one case, the Privacy Commissioner found that the employer's collection of employee health information was abusive inasmuch as the employer did not prove that it was neces- sary. e commissioner concluded that the employee's complaint of breach of privacy by her employer was well founded: see e Privacy Commissioner of Canada, Finding #233. For more information see: • Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517 • e Privacy Commissioner of Canada, Finding #233, 2003 CanLII 5181 (P.C.C.)

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