An employee who lied to and misled her employer about her
ability to perform her work as a reporter, was fired for
just cause, and arbitrator has held.
The employee severely injured her ankle while skydiving "on
assignment for a travel piece involving extreme sports". The
arbitrator found that there was no doubt that the ankle injury
resulted in a disability.
The employee told the employer that she could not drive and that
going out on assignment by taxi "wiped her out".
She also presented herself as unable to get around the workplace
without the use of two canes. Further, she presented medical
evidence stating that she could not take public transit or drive to
work due to the pain control medication she had been
prescribed. The employer obtained video footage of the
employee in which her actions were inconsistent with the abilities
that she represented to the employer. The arbitrator stated
"Watching the video, there is a stark difference between
how the Grievor walks (more labored) when she is closer to the
workplace versus how she walks when away from the workplace (more
mobile). Even more startling is the fact that it appears that
when the Grievor is not taking her pain medication she appears more
mobile, driving her automobile to conduct errands for herself and
her family, including shopping in Niagara Falls and Buffalo, New
York on one of the busiest shopping days of the year.
"One would expect that the Grievor would experience more
pain, which would be visible, when not taking her pain medication.
The Grievor said as much in her own evidence. However, the video
shows her as having more mobility and less apparent pain when not
taking her medications so she can drive. This was never explained
to my satisfaction. The best the Grievor could state was that she
has learned to cope with the pain."
In particular, the arbitrator stated that the employee had tried
to "cover up" her ability to drive for work. She
had been deceptive: she did not want the employer to know that she
was able to drive.
The arbitrator held that the employee had an obligation to
provide the employer with accurate information to assist the
employer to fulfill its duty to accommodate. The employee was
not honest or forthright. Instead, her dishonesty undermined the
duty to accommodate as well as the employment relationship. She was
dismissed for just cause – despite the fact that she was
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
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. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
Businesses and employers face exposure to a variety of claims for mismanagement or misuse of personal information by employees. Damages may depend on how sensitive the information is and how it is misused.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).