Canadian Employment Law Today

November 12, 2014

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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We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. gSt #897176350 Published biweekly 22 times a year Subscription rate: $299 per year custoMeR seRVice Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: carswell.customerrelations Website: thomson Reuters canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen Lorimer Publisher: John hobel (on leave) Managing Editor/Acting Publisher: todd humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 12 Worker fi red for side jobs while on lTD This insTAlMenT of You Make the Call features a worker who was fi red for working another job while on medical leave. e worker was a service supervisor for VHA Home Health Care, a provider of nurs- ing, rehabilitation, personal care and sup- port to clients in their homes in the Toronto area. VHA was also a contracted service provider to community care access centres. e worker's job involved overseeing per- sonal support workers and establishing cli- ent care plans. She worked from home using equipment supplied by VHA. In February 2010, the worker was diagnosed with colon cancer. She had to undergo a six-month chemotherapy program following surgery and went off work on an approved leave of absence in late March 2010. She initially received short- term disability (STD) benefi ts, then moved to long-term disability (LTD) benefi ts after providing updated medical information. Her eligibility for LTD benefi ts required total disability with no income from any source, as stipulated by Standard Life, VHA's insurer. In November 2010, VHA's vice-president of HR heard that the worker was working as a real estate agent. She searched for the worker's name on the Internet and found a photo and listing of her as an agent with property listings following her name. e vice-president of HR also learned the work- er had been working part-time for a VHA subcontractor as an after-hours team lead- er, which involved carrying a cellphone and scheduling personal support workers who worked when the subcontractor's offi ces were closed. VHA contacted the subcontractor and discovered the worker had asked the sub- contractor if her pay could be withheld for a period of time, which VHA interpreted as not wanting income from the subcontractor to aff ect her LTD benefi ts. However, the worker said she didn't make such a request, but had instead asked for a leave of absence from the subcontractor and was concerned about carrying a cellphone for the company while on sick leave. e worker claimed her manager from VHA said it would be fi ne to carry the subcon- tractor's cellphone during her leave, so she retracted her inquiry about a leave from the subcontractor. e VHA manager denied having the discussion. VHA contacted the real estate brokerage and verifi ed the worker was employed there, but she wasn't there. It contacted Standard Life, which called the worker and asked her if she had sold any homes or worked for the subcontractor. e worker said she had only sold her own home and hadn't worked for the subcontractor since she started her leave of absence. e real estate listings by her name on the website were all the agen- cy's listings, she said. e worker later co- operated in giving consent for Standard Life to speak with the subcontractor and the real estate brokerage. In January 2011, Standard Life deter- mined the worker had received income from another source and stopped paying LTD benefi ts. It informed VHA that she had misrepresented her work activities and would be required to pay back more than $19,000 in benefi ts already paid to her. After Standard Life fi nished its investiga- tion, VHA met with the worker. e worker acknowledged her work with the subcontrac- tor, but said it was very light work she could do at home and in bed. As for the real estate work, the worker said she had arranged two leases and the house sale of one VHA employ- ee before she went on leave, but the closing of the latter was delayed until after she started the leave. e worker also claimed a colleague had done most of the work on any transac- tions after her leave began. When VHA asked for consent to contact the real estate agency and access Standard Life's fi le, the worker – through the union – said no. VHA indicated it would make a decision based on the information it had. It interviewed three VHA employees who said they used the worker as a real estate agent during her leave and were not aware of any- one else doing the work. VHA determined the worker had lied about working for the subcontractor when applying for LTD benefi ts and minimized the real estate work she had done. It felt the evidence showed she wasn't totally disabled and worked for other employers while on medical leave. Despite the worker's 12 years of service, VHA found she had undermined the trust needed for her position and termi- nated her employment. You MaKe tHe call Was there just cause for dismissal? OR Was there insuffi cient cause? iF YOu sAiD there was just cause for dis- missal, you're right. e arbitrator found the worker's attempts to hide her subcon- tractor work and its earnings from Stan- dard Life, her attempt to delay her payment from the subcontractor, and her minimiz- ing her real estate work was "a serious act of misconduct that justifi ed terminating her employment." In addition, the worker's attempts to ex- plain that she had asked for a leave from the subcontractor were false and showed she was trying to cloud the investigation and looking after her own interests, which showed she didn't accept responsibility for her actions, said the arbitrator. For more information see: • VHA Home Health Care and OPSEU (T.(M.)), Re, 2013 CarswellOnt 13842 (Ont. Arb.).

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