Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Dismissal for dishonesty not discrimination Employee claimed mental disability was a factor in his lying to employer but couldn't provide definitive medical evidence BY JEFFREY R. SMITH A BRITISH COLUMBIA employer has won an appeal supporting its claim that it dismissed an employee for dishonesty, not his mental illness. Joseph Francescutti worked in the sanita- tion department of the City of Vancouver and had a long tenure in his job, though it was not without problems — he had at least one suspension on his record and other in- stances of discipline. He also experienced issues with mental illness and the city had accommodated him when necessary. In 2012, Francescutti had a perfect atten- dance record, so he was eligible for an award. All employees with perfect attendance re- cords for the year were allowed to choose from a selection of clothing, gift cards, or other merchandise. Francescutti saw a jacket he liked, so he chose that as his prize. e jacket was ordered and arrived with the awards for other employees on March 22, 2013, when they were placed in the collec- tions superintendent's office to await distri- bution to the recipients. Francescutti saw his jacket — labelled with his name – in the office with the other merchandise and decided to take it then and there. However, he didn't tell anyone. When the jacket was discovered missing, the city conducted an investigation. During the investigation, Francescutti twice asked his supervisor what was going on with the jacket but didn't say that he had taken it. Ultimately, the city found a security video of Francescutti holding the jacket. It con- fronted him with the video on April 19 and he admitted to taking the jacket. Francescutti said the jacket was his and at the time he didn't think it was wrong to take it, though his memory wasn't clear. He said he was suffering from depression and anxiety and his medication wasn't working properly, causing mood swings and memory loss. He said he didn't know why he didn't tell the city he took the jacket, but "my mind just wasn't right." He acknowledged that he should have said something sooner and asked for help. Employee couldn't give reason for lying e city suspended Francescutti and met with him and a union representative on April 30. Francescutti acknowledged he had taken the jacket and attributed his behav- iour to mental illness. He provided a note from his doctor stating that he was taking medication for depression and anxiety. However, the city didn't accept his explana- tion — partly because he was only bringing it up "at the 11 th hour" — and terminated his employment for violating its trust through dishonesty and a lack of integrity. Francescutti grieved his termination and provided medical documentation from two psychiatrists diagnosing "significant de- pressive and anxiety symptoms." For a few months after his termination, Francescutti saw a doctor at a hospital who reported that he suffered from "major depressive disor- der" that was treated with medication. e doctor noted it was difficult to estimate how much it affected his behaviour, but depres- sion could lead to poor judgment and he should be further assessed by a psychiatrist. He also visited a neuropsychologist who said he had the symptoms of a major depressive disorder but scored within normal limits on most tests. e city had him evaluated by its own occupational health physician, who it asked if there was a causal link between Fran- cescutti's condition and his ability to discern right from wrong. e physician found that there was "no significant evidence of psy- chological impairment that would likely ac- count for (Francescutti's) behaviour." Francescutti filed a human rights com- plaint in October 2013, alleging the city dis- criminated against him in employment on the basis of a mental disability. e B.C. Human Rights Tribunal dis- missed Francescutti's complaint, finding that the city terminated him not because of his disability, but because he irreparably breached the city's trust by lying — some- thing he admitted to — and the city had a "reasonable, non-discriminatory explana- tion for the termination." e tribunal also said it was too convenient that Francescutti admitted taking the jacket and disclosed his mental disability only when he was faced with discipline and dismissal — he had not requested accommodation in at least a year and had perfect attendance in the past year, so the city had no reason to think mental ill- ness was an issue. In addition, the tribunal found the medical documentation didn't specifically link his mental disability with ly- ing to the city about taking the jacket. Francescutti appealed to the B.C. Su- preme Court, which found that while medi- cal documentation didn't link Francescutti's behaviour to his mental illness, it left the possibility open. In addition, the city's oc- cupational health physician didn't interview Francescutti or refer to his mental health history when determining the lack of evi- dence of a causal relationship. e court found the tribunal's decision was unreason- able because the tribunal made a finding of fact — that the city had a reasonably, non- discriminatory explanation for the termina- tion — without definitive evidence one way or the other. e court referred the matter back to the tribunal for reconsideration. e city appealed to the B.C. Court of Appeal. e Court of Appeal accepted that Fran- cescutti's diagnosis of depression and anxi- ety was a mental disability and his dismissal was adverse treatment. e issue to be de- cided was whether the mental disability was a factor in his termination. Termination not linked to employee's mental disability: Court of Appeal e appeal court found that the B.C. Su- preme Court erred when it determined the tribunal had made findings of fact without proper evidence and that was unreasonable. Instead of relying on evidence, the tribu- nal instead relied on "admitted facts, that Mr. Francescutti took the jacket, and then continued to lie about that fact for almost a month, admitting it only when faced with incontrovertible evidence that he took it," the tribunal said. e appeal court noted that the tribunal was clear that it found Francescutti was ter- minated because he lied to the city, not be- cause of his mental health, and there wasn't enough medical evidence to support the ar- gument that Francescutti's dishonesty was caused by his disability. Francescutti couldn't prove he had enough evidence to establish a link between his termination and his disabil- ity, so dismissing his complaint wasn't an un- reasonable decision for the tribunal to reach, said the appeal court. e appeal court set aside the B.C. Su- preme Court's decision and restored the tri- bunal's dismissal of Francescutti's discrimi- nation complaint. For more information see: • Francescutti v. Vancouver (City), 2017 Car- swellBC 1667 (B.C. C.A.).

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