Canadian HR Reporter

CANADIAN HR REPORTER March 6, 2017 EMPLOYMENT LAW 5 Dishonesty with employer provides nucleus of cause for dismissal Employee wasn't upfront with employer on security clearance form, lied about reasons An Ontario court has upheld the termina- tion of a worker who omitted information from a security clearance application and lied to his employer about it. Nuclear agency Atomic Energy of Canada (AECL) operates a facility in Ontario called the Port Hope Area Initiative, which imple- mented the federal government's projects relating to the cleanup and safe management of low-level radioactive waste. In April 2012, AECL offered Francis Aboagye a job as an in- dustrial safety specialist at the fa- cility. e offer was subject to him successfully achieving the security clearance necessary to work at the facility. Such clearance was re- quired for AECL to have a licence to operate nuclear facilities. At the time of the job offer, Aboagye was working at anoth- er employer that had hired him three weeks earlier. AECL had had trouble contacting him with the job offer, and Abaogye told the company he had been unreach- able because he had attended his father's funeral in Africa. AECL sent him a security ques- tionnaire for site access clearance and he filled it out and signed it. The 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 The questionnaire asked for Aboagye's employment his- tory over the past five years and warned there should be no gaps, and unemployment and school- ing should be included. ough Aboagye was still working at the other employer, he didn't include that employer as part of his em- ployment history, so his last listed employment ended in August 2011. He later said he didn't list his current employer 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 person- nel security officer contacted Aboagye by email and asked him if he was "presently in school, working or unemployed." Abo- agye replied that he was currently unemployed. AECL granted Aboagye site ac- cess on May 15 and, two days later, he was terminated from his other job because he had failed to meet performance expectations during his probationary period. Before long, AECL started re- ceiving complaints about Aboag- ye harassing other employees. e company launched an investiga- tion in October 2012 and placed Aboagye on paid leave pending the outcome. The investigation revealed a pattern of "misogynistic state- ments and intimidating conduct." The company also received an email suggesting it look into Abo- agye's past employers and the integrity of the information he provided upon hiring. In an Oct. 31 interview, man- agement asked Aboagye about his education and work experience and he made a brief reference to his employer at the time of the job offer. When asked why he didn't disclose this employment on the security questionnaire, Aboagye said he didn't think it was relevant to bring up after the job offer. He then admitted he didn't want AECL to know about his experi- ence with that employer. It also came out in the inter- view that Aboayge had lied about why it was so hard to contact him with the job offer in April. Rather than being at his father's funeral, Aboagye had not wanted AECL to know about his other job. Aboagye also claimed that while he was at his previous em- ployer, police had targeted 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 that his fear of police came from a traffic stop in 2006 when police pointed guns at him, and he had reported to police in April that people were following him. AECL terminated Aboagye's employment on Dec. 12 because of 12 allegations of harassment, his failure to disclose his most re- cent employment, and lying about attending his father's funeral in Africa. Aboagye sued for wrongful dis- missal, claiming he didn't harass anyone and it was AECL and the police who harassed him, leading to a conspiracy to dismiss him. Too many lies e Ontario Superior Court of Justice found that it was irrelevant whether Aboagye was fearful for his safety or not regarding the fact 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 evi- dence of police following him or harming Aboagye if he left town for his job with AECL, and this claim "defies all common sense and is without credibility," said the court. A police report showed Aboag- ye 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, Aboagye's lie about his father's funeral in Africa was "not only evidence of his care- lessness with the truth, but of his ease with conveying a lie," said the court. Aboagye was guilty of "a most serious form of dishonesty" that made it impossible to maintain an employment relationship with AECL, where security and trust were of utmost importance, said the court. As a result, the agency had just cause for dismissal. e termina- tion of Aboagye's employment was upheld. For more information see: •Aboagye v. Atomic Energy of Canada Ltd., 2016 CarswellOnt 20710 (Ont. S.C.J.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. Jeffrey Smith Legal View Atomic Energy of Canada requires security clearance for employees working at its Port Hope, Ont., facility. Credit: Google Street View Aboagye sued for wrongful dismissal, claiming he didn't harass anyone and it was AECL and the police who harassed him, leading to a conspiracy to dismiss him.

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