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
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A recent decision from the Supreme Court of British Columbia, Ly v. British Columbia (Interior Health Authority) 2017 BCSC 42, provides helpful clarification of the law on termination of probationary employees on the basis of "suitability" and sends a cautionary note about the importance of fair and objective assessments during probationary periods.
The Ontario Court of Appeal recently gave employees and employers a valuable reminder: a breach of an employment contract does not, in and of itself, constitute a constructive dismissal. Even if the breach translates into hundreds of thousands of dollars not being paid.
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