Canadian Employment Law Today

January 18, 2017

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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ALCOHOLISM and other addictions are considered disabilities under human rights legislation, which means employers must make efforts to accommodate them or face discrimination accusations. However, it's only discrimination if the addiction plays a role in the decision to terminate. An addiction can play a role in a termination if the employer knows about it and decides to dismiss the employee, or dismisses the employee due to misconduct that is causally linked to the addiction. However, if the employee is guilty of misconduct that isn't caused by the disability — such as willingly lying to the employer while sober — then breach of trust can be sufficient to warrant termination. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: ACCOMMODATION Alcohol problem no excuse for forged sick notes Employee wasn't intoxicated when she submitted 16 false doctor's notes and tried to shift the blame to others BY JEFFREY R. SMITH A federal agency had just cause to dismiss an employee who submit- ted false sick notes for absences due to the employee's drinking problem, the Canada Public Service Labour Relations and Employment Board has ruled. Mary Ann McNulty was a senior pro - grams officer with the Canada Revenue Agency (CRA). She was hired in 1989 as a clerk and moved up several levels to the position of senior programs officer in 2010. Over the years, she received several awards, including the CRA Award for Excellence in 2010. McNulty's performance appraisals indi - cated she regularly met expectations and sometimes exceeded them. In early 2013, McNulty's manager be- came concerned with the amount of work McNulty was missing due to absences. A couple of years earlier, McNulty had told her that she was dealing with "serious fam - ily issues," including a serious illness and a death. When McNulty returned to work after these events, she said she was "okay" and wanted to return to work. However, McNulty continued to have a large number of absences. e manager discussed the absences with McNulty, but each time McNulty said things were fine. Eventually, the manager offered McNulty leave with income averag - ing, but McNulty began missing work with- out calling in or letting the manager know. By Feb. 20, 2013, McNulty had missed 50 days with 10 of them unaccounted for. As a result, the manager sent McNulty an "ad - ministrative conditions letter" that remind- ed her to notify her immediate supervisor the same day of an absence during normal working hours. If she didn't do so, the ab- sence would be considered unauthorized and subject to discipline. e letter also indicated medical certificates supporting absences must be provided within seven calendar days of the start of the absence, or the first day back at work if the absence was less than five working days. McNulty was also reminded of the CRA's code of ethics and conduct, which stated that "you are expected to behave in a way that does not bring discredit to the CRA" and "your effectiveness (should never be) impaired to the extent that it could pose a hazard or embarrassment to you, to the CRA, to others or to property." After going over the letter, McNulty said she had no issues and she would be back at work. She declined an offer of assistance from the employee assistance program. However, McNulty continued to take numerous sick days, often calling in sick on the day of absence. Whenever the man - ager asked for a medical certificate upon McNulty's return, McNulty would either not be able to find it or say she had left it at home. She sometimes brought one in weeks later. McNulty continued to insist she had no problems, and only suggested an ergonom - ic assessment be done of her workspace, to which the CRA agreed. By June 2013, the CRA decided it needed a fitness-to-work evaluation from McNul - ty, so she consented to one. McNulty's doc- tor completed the assessment and McNulty provided it in late August. e report stat- ed that McNulty was fit to work full-time and the only note was that she be allowed to take breaks and lunches daily "without being made to feel guilty." Following the assessment, McNulty's absences continued unabated. Once again, when the manager requested a medical certificate supporting an absence, McNulty would say she couldn't find it or left it at home, then bring it sometime later. An - other fitness-to work assessment was re- quested, but McNulty refused, saying she was feeling fine. Fraudulent sick notes discovered In March 2014, the manager became sus- picious after receiving two notes from a physiotherapy clinic covering a five-day absence and a four-day absence. Copies of the notes were given to the CRA's labour relations department, which investigated and determined these notes were falsi- fied. e internal affairs and fraud control division launched an investigation. e investigation determined that 16 typewritten medical notes in total dating back to May 14, 2013, identifying 10 differ- ent doctors and the physiotherapy clinic, were fraudulent. e notes were used to claim 216 hours of paid sick leave — total- ing $9,300 in pay — and 218.5 hours of un- paid sick leave. After being informed of the investiga- tion, McNulty met with her manager and told her that she suffered from alcoholism and had forged the medical certificates be- cause she had been too drunk to go to the doctor. She then told management that "you would not want me to drive drunk." McNulty revealed that she had been treated in the past for alcohol abuse and had been sober for years, but started drinking again two years earlier when family mem - bers became ill. She also told this to the in- vestigators when they interviewed her and explained she was never sober enough to attend the doctor's office in order to obtain medical certificates legitimately. e CRA held a disciplinary hearing on May 14, at which McNulty was invited to add any new and relevant information or say anything about the investigation report. McNulty said that at the time she forged the notes, she didn't consider it to be fraud but understood her actions weren't consis -

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