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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tent with the code of ethics and conduct. She also said she wasn't intoxicated when she forged the notes and gave them to her manager, but sometimes was hungover. After the disciplinary hearing, McNulty came back to say that "fraud occurred every day at the CRA, with employees taking long breaks," and noted that she had endured ill - nesses and death in her family, the medical notes weren't typical of her long career with the CRA, and she didn't want to lose her job. e CRA terminated McNulty's employ - ment on June 3. At her termination meet- ing, McNulty blamed her manager, whom she said was a poor manager and often didn't respond to her emails regarding her leave. She said the CRA was supposed to support employees with mental health and addiction problems and she had been try - ing to make things right. However, accord- ing to management's notes of the meeting, McNulty didn't apologize for her actions or accept responsibility. e arbitrator agreed that the 16 forged medical notes and the amount of paid sick leave McNulty received because of them amounted to serious misconduct warranting some sort of discipline. e arbitrator also agreed that the evidence indicated McNulty suffered from alcoholism, which is a disability under human rights legislation. e question was whether the disability factored into the decision to terminate her employment, which would constitute discrimination. However, the arbitrator found that while McNulty knew of her disability for several years — seeking treatment and having a lengthy sober period before relapsing — it never intersected with her work environ - ment and she never told the CRA of it. In fact, whenever her manager inquired if her absences were due to any issues, McNulty said she was fine. It was only when she was being investigated for her misconduct of fraudulent sick notes did she bring up her alcoholism, said the arbitrator. "(McNulty) was not truthful or forth - coming with her supervisor or employer as, based on the evidence, everything was not fine, and she did not necessarily show up for work," the arbitrator said. "(e manager) tried to determine the issue that was causing (McNulty) to miss work and whether (she) required some form of accommodation." In addition, the fitness-for-work assess - ment completed by the doctor reported that there was no reason McNulty couldn't work. e CRA had no information that McNul- ty suffered from a disability that required accommodation and any such disability couldn't have played a role in the disciplin- ary investigation, the arbitrator added. e arbitrator also noted that McNulty admitted she wasn't under the influence of alcohol when she forged the medical notes and submitted them. As a result, she hadn't established that her misconduct was caus - ally related to her alcohol dependency or she was a victim of discrimination in the discipline to which she was subjected. e arbitrator also found McNulty's misconduct was a breach of trust, serious for someone in the CRA. She also tried to transfer blame onto the employer, first say - ing "you would not want me to drive drunk" and then blaming her manager. is, along with her lack of remorse, made it unlikely the CRA could trust her again, said the arbi - trator in upholding the termination. For more information see: • McNulty v. Canada Revenue Agency, 2016 CarswellNat 5924 (Can. Pub. Service Lab. Rel. & Emp. Bd.). Canadian HR Reporter, a Thomson Reuters business 2017 January 18, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at, or visit www. for more information. CREDIT: OLIVIER LE MOAL/SHUTTERSTOCK

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