Canadian Employment Law Today

February 15, 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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Dishonesty with employer provides nucleus of cause for dismissal Employee wasn't upfront with employer on security clearance form and lied about reasons BY JEFFREY R. SMITH AN ONTARIO court has upheld the termi- nation of a worker who omitted information from a security clearance application and lied to his employer about it. Atomic Energy of Canada (AECL) is Can- ada's leading nuclear agency. It operates a facility near Port Hope, Ont., called the Port Hope Area Initiative, which implements the federal government's projects relating to the cleanup and safe management of low-level radioactive waste. In April 2012, AECL offered employment as an industrial safety specialist at the Port Hope facility to Francis Aboagye. e offer was subject to Aboagye successfully obtaining the security clearance necessary to work at the facility. Such clearance was required for AECL to have a licence to operate nuclear facilities. At the time of AECL's job offer, Aboagye was working with another employer that had hired him three weeks earlier. AECL had had trouble contacting Aboayge with the job offer, and Abaoyge told the company he had been unreachable because he had attended his fa- ther's funeral in Africa, which wasn't true. AECL sent him a security questionnaire for site access clearance and he filled it out and signed it. e questionnaire stated that refusal to provide information would lead to a review on whether the person was eligible to work in the position related to it. Employment history left incomplete e questionnaire asked for Aboagye's em- ployment history over the past five years and warned there should be no gaps and unemployment and schooling should be in- cluded. ough Aboagye was still working with the other employer, he didn't include that employer as part of his employment history and his last listed employment end- ed in August 2011. He later said he didn't list his current employer at the time because he had only been there for three weeks and hadn't been there when he had applied for the AECL position. On May 10, an AECL personnel secu- rity officer contacted Aboagye by email and asked him if he was "presently in school, working or unemployed." Aboagye replied that he was currently unemployed. AECL granted Aboayge site access on May 15 and two days later he was terminated from his existing job because he had failed to meet performance expectations during his probationary period. Before long, AECL started receiving com- plaints about Aboayge harassing other em- ployees. e company launched an investi- gation in October 2012 and placed Aboayge on paid leave pending the outcome. e investigation revealed a pattern of "misogynistic statements and intimidating conduct." e company also received an email suggesting it look into Aboagye's past employers and the integrity of the informa- tion he provided upon hiring. In an Oct. 31 interview, management asked Aboayge about his education and work experience and he made a brief reference to his employ- er at the time of the job offer. When asked why he didn't disclose this employment on the security questionnaire, Aboayge said he didn't think it was relevant to bring up af- ter the job offer. He then admitted he didn't want AECL to know about his experience with that employer. It also came out in the interview that Aboayge had lied about why it was so hard to contact him with the job offer in April. Rath- er than being at his father's funeral, Aboayge had not wanted AECL to know about his job with the other employer. Aboayge also claimed that while he was with his previous employer, police had tar- geted him because he was black. He said he didn't disclose his employment because if the police learned he was looking for work and trying to leave town, his safety would be at risk. He explained his fear of police came from a traffic stop in 2006 when police point- ed guns at him and he had reported to police in April that people were following him. AECL terminated Aboayge's employment on Dec. 12 because of 12 allegations of ha- rassment, his failure to disclose his most re- cent employment, and lying about attending his father's funeral in Africa. Aboayge sued for wrongful dismissal, claiming his didn't harass anyone and it was AECL and the police who harassed him, as part of a conspiracy to dismiss him. Secretive about previous employment e Ontario Superior Court of Justice found that it was irrelevant whether Aboayge was fearful for his safety or not regarding the fact that he lied to and misled AECL on his employment at the time of the job offer, and this was conduct that "went to the core of the employer/employee relationship." Either way, there was no evidence of po- lice following or harming Aboagye if he left town, and this claim "defies all common sense and is without credibility," said the court. A police report showed Aboayge went to police to report he was being followed, but he was told it was a small town and it wasn't uncommon to run into people multiple times. His explanation about his fear for his safety was "a fabrication designed to explain a serious lie that he has been caught in." In addition, Aboayge's lie about his father's funeral in Africa was "not only evidence of his carelessness with the truth, but of his ease with conveying a lie," the court said. e court determined that Aboayge was guilty of "a most serious form of dishonesty" that made it impossible to maintain an em- ployment relationship with AECL, where security and trust were of utmost impor- tance. As a result, AECL had just cause for dismissal. e termination of Aboayge's em- ployment was upheld. For more information see: • Aboagye v. Atomic Energy of Canada Ltd., 2016 CarswellOnt 20710 (Ont. S.C.J.). Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 3 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as handling risky terminations, drugs and alcohol in the workplace, employee off-duty conduct, and workplace investigations. To view the webinar catalogue, visit Cases and Trends Security clearance form required list of employment for past five years

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