Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 7 More Cases While a fraudulent drug claim is a seri- ous act of misconduct, it won't always jus- tify termination for cause. ere is a range of mitigating factors which, taken together or independently, can call into question the suitability of termination. ese include: • Clean disciplinary record. • Admission of misconduct and sincere re- morse. • Addiction is a recognized disability in Can- ada and employers have a duty to accom- modate it to the point of "undue hardship" (significant difficulty on the employer), including the symptoms of addiction such as theft or dishonesty. Accommodation may include rehabilitation treatment and a return-to-work plan. • Failure by the employer to consistently discipline other employees for the same misconduct. Consider the case of Sunnybrook Health Sciences Centre and ONA (SB13-04), Re. A nurse was terminated after a workplace in- vestigation determined that, over a two-year period, she had stolen narcotics for personal use. e nurse also altered patient medical records to obtain the narcotics, worked un- der the influence of narcotics, and exposed patients to increased risk. Following termi- nation, the nurse notified her employer she suffered from addiction for which she was receiving treatment. She filed a grievance alleging her termination was discriminatory because the misconduct for which she was punished was caused by a disability. e arbitrator found the termination was discriminatory. He directed the employer to reinstate the nurse and explore whether she could successfully work under modified du- ties or in a new position. e arbitrator relied extensively on the evidence of addiction ex- perts who described how addiction can im- pair the ability to control cravings, causing ad- dicts to steal in pursuit of drugs. e experts also testified addicts suffer from a heightened sense of shame, resulting in reluctance to dis- close addiction and seek treatment. If there is a criminal proceeding In addition to termination, an employee discovered to have committed fraud may be exposed to criminal sanction. is was sug- gested by Romeo-Beehler, who said a crimi- nal investigation may be launched to iden- tify offending city employees. Where there is a criminal proceeding, an employer may choose to suspend the employee with pay pending the results. If charges are laid and upheld, the employer will generally have a stronger case for termination. Lessons for employers While fraud is the type of misconduct which often justifies termination, this is not always so. e City of Toronto will have to evaluate the circumstances of each case to determine whether the fraudulent activity justifies ter- mination or a lesser sanction (if any). Ac- cordingly, while Mayor Tory's outrage may be justified, his enthusiasm for termination may be premature — at least for now. See Sunnybrook Health Sciences Centre and ONA (SB13-04), Re, 2016 CarswellOnt 14836 (Ont. Arb.). Andrew Brown is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Andrew can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www.sher- rardkuzz.com. « from TORONTO on page 1 Mitigating factors must be considered Worker fired for safety violation, not disability BY JEFFREY R. SMITH AN ARBITRATOR has upheld the termi- nation of a Canadian National Railway (CN) worker who was fired for using his cell- phone while working but claimed he needed to have it with him for medical reasons. e worker was an intermodal equipment operator for CN at the railway's Brampton, Ont., intermodal terminal. His job involved loading heavy containers on and off trains and trucks, as well as moving such contain- ers to storage areas. e Brampton terminal had a policy on personal communication devices that pro- hibited employees from taking cellphones into work areas. is was because the work- place was a safety sensitive area and em- ployees needed to be focused on the task at hand, without the potential distraction of cellphones. By September 2015, the worker had ac- cumulated 50 demerit points from vari- ous instances of misconduct, including 30 from violating the personal communica- tion devices policy. On Sept. 7, managers at the terminal observed the worker looking down at something while operating a truck, followed by what they believed to be him putting a cellphone into his back pocket. When they confronted the worker as he ex- ited the truck, he denied having a cellphone with him. However, one manager found a cellphone on the ground nearby and when they called the worker's cellphone number, the phone vibrated. e worker initially denied it was his cell- phone, but he later admitted it was. CN conducted an investigation into the incident and the worker provided a doctor's note dated Sept. 8 — the day after the inci- dent — that stated he carried "his cellphone on him partly for medical reasons." e worker explained that he had used his cell- phone at work to text his brother in relation to a medical issue. Another doctor's note two days later in- dicated the worker was fit to return to work with no restrictions. On Sept. 18, CN gave the worker 40 de- merit points, which put his active total at 90. CN policy stipulated dismissal for em- ployees who surpassed 60 demerit points, so CN terminated his employment. About one month later, the union provided additional medical information on his behalf and filed a grievance, arguing CN didn't have just cause for dismissal and it should have ac- commodated the worker's medical issue. e arbitrator noted that the worker's job involved many safety issues since the con- tainers he lifted were very large and there were many other employees around. e distraction caused by cellphones, whether operating equipment or not, raised signifi- cant safety concerns, the arbitrator said. e arbitrator also considered the work- er's attempts to hide what he did by denying using the cellphone and trying to hide it, as well as the fact he had past misconduct that had put his demerit point total at a high lev- el already. Given these factors, the arbitra- tor found no reason to reduce the penalty. e arbitrator also found the second doc- tor's note issued two days after the first one — that tied the worker's cellphone use to a medical issue — stated the worker had no restrictions. is seemed to indicate there wasn't any disability at that point, said the arbitrator. e worker had provided other medical information to CN's occupational health department, but this wasn't shared with CN management. As a result, management only saw the brief notes provided during the in- vestigation that didn't provide any details about a disability. ere was nothing indi- cating that a disability was a factor in the worker's termination and instead it was for exactly what CN indicated — a breach of policy that was a culminating incident fol- lowing past breaches. See Canadian Na- tional Railway Company and Unifor, Coun- cil 4000 (Hearns), Re, 2016 CarswellNat 6266 (Can. Railway Office of Arb. & Dispute Res.).

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