Canada: Employee Dismissed For Incomplete Medical Disclosure Prior To Hiring

Although the employee acted in good faith and did not voluntarily try to mislead her future employer by not revealing certain aspects of her medical history, the arbitrator in Association des policières et policiers provinciaux du Québec et Sûreté du Québec (K.T.) confirmed the employee's dismissal on the grounds of vitiated of consent in the formation of the employment contract.

After an intervention in which she had to assist a colleague who was in a car accident, the patrol officer had to go on a disability leave for post-traumatic stress disorder. As her symptoms persisted long after the incident, preventing her from returning to her patrol position, the employer required a psychiatric examination.

According to the employer's expert, the employment injury was caused mainly by the psychological profile, the predisposition and the fragility of the grievor as a result of previous diagnosis. Indeed, access to her medical records revealed that as a teenager, she suffered a longer and more serious depression than what she had indicated in the pre-employment questionnaire, at the pre-employment medical examination and in an additional statement. Her records also mentioned signs of anxiety and showed that she was diagnosed with an adjustment disorder that the employer was unaware of. Moreover, the prognosis regarding the stability of her employment and resistance to stress was considered unfavorable by the medical expert, who evaluated her relapse risk at over 50 %.

The employer terminated the employment of the grievor on the grounds that, had she provided complete information on her medical history at the time of hiring, the employer would not have hired her. The arbitrator confirmed the dismissal since the employer was able to demonstrate that it would have considered that the employee did not have the qualifications to hold a police officer position if the health information requested prior to her hiring had been obtained.

Pursuant to section 1400 of the Civil Code of Québec, error vitiates the consent of a party where it relates to anything that was essential in determining that consent. In this case, the missing and incorrect information prevented the employer from evaluating the applicant's capacity to carry out the work. It thus prevented the employer from making an enlightened decision with respect to the hiring of the grievor.

According to the arbitrator, termination is the appropriate solution because the formation of the contractual relationship itself was affected. This relationship should have never existed and even a serious disciplinary sanction could not remedy the situation. In labour law, an administrative dismissal would be the equivalent of an annulment of a contract in civil law where the contract was never validly formed because of a vitiated consent.

It is worth mentioning that it is not relevant that the employee voluntarily lied or omitted important information. Even if an applicant declares in good faith that he does not suffer from a disease preventing him from holding a position, if he does in reality, the employer's consent may be vitiated. In the present case, the arbitrator did believe the grievor who testified that she was unaware of the adjustment disorder diagnosis, but this did not impact the outcome of the dispute.

However, if an employee is dishonest in any pre-employment statement, the employer may invoke, together with vitiated consent, a breach of the trust that is required to maintain the employment relationship.

In addition, the arbitrator promptly rejected the subsidiary arguments based on the employer's duty to accommodate, as the issue here concerns the existence of the employment relationship itself, rather than the possibility to accommodate an employee.

It is not the first time that a similar judgment has been rendered over the past few years. For instance, in  Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du CSur-du-Québec c. Bolduc in 2010, the Superior Court refused to review an arbitration judgment which maintained, on the grounds of vitiated of consent, the dismissal of a nurse who had denied his psychiatric medical history at the pre-employment stage. However, a motion to appeal was granted and the Court of Appeal will soon examine this case and either confirm or modify the applicable law to the present issue.

Employers must nonetheless keep in mind that in the context of the hiring process, they cannot require all types of information from the applicants. The Charter of Human Rights and Freedoms of Quebec prohibits employers from asking for information which are related to grounds of discrimination, such as handicap, pregnancy, age, religion, etc. It may however be asked in certain cases where the information relates to the aptitudes or qualifications required for the employment (see sections 10, 18.1, 18.2 and 20 of the Charter of Human Rights and Freedoms). For further information on this subject, please consult our article published on April 19, 2011 article " The Human Rights Tribunal sentences a company for a discussion of a work applicant's religion during an employment interview".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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