Disabled employee who lied about ability to work was fired for cause

An employee who lied to and misled her employer about her ability to perform her work as a reporter, was fired for just cause, an 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 that:

“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 clearly disabled.

Toronto Sun v Unifor Local 87-M, 2014 CanLII 22359 (ON LA)


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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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