Memo: Don’t lie to boss: Medical condition is no excuse for dishonesty with employer

As a team leader for the Bank of Montreal, Julie Conlon was distinctly unenthusiastic about C.T. joining her group as an information technologist.

Her previous dealings with him were not satisfactory.

Conlon’s apprehensions were soon realized. After he started, C.T. was seen playing computer games during work hours and missing production meetings and deadlines. Colleagues complained that he was inaccessible and excessively on the phone. Conlon had enough.

Just when she was to meet with C.T. to discuss his performance, he informed her that his grandmother was seriously ill in Guyana. He requested an immediate leave of absence. Expressing her condolences, Conlon agreed.

Following his return to Canada, Conlon held the performance meeting with C.T., who then broke down crying. He was terminally ill, he said, which was why he was often late and on his computer, seeking medical advice. C.T. was then referred to bank resources to canvass the kind of accommodation that he required. Although various types of support were available, C.T. sought, and was granted, only one personal care day and a later start time to his working day.

C.T.’s performance continued to decline. An e-mail to a colleague with pictures of naked women prompted an investigation. Telephone records disclosed that C.T. was making numerous personal long-distance calls. C.T.’s e-mail account and hard drive revealed numerous pornographic photographs. It also showed that C.T. did not travel to Guyana, but had vacationed in the Dominican Republic with a friend.

When asked to account for his conduct, C.T. broke down and confessed that he had fabricated the trip to Guyana; he had gone on vacation to get away from his illness. The bank fired C.T.

Claiming that his medical condition and state of mind justified his behaviour, C.T. filed a claim under the Canada Labour Code for unjust dismissal, seeking reinstatement.

Siding with the bank and dismissing C.T.’s claim, adjudicator Margot Newman found no connection between C.T.’s illness and his dishonest conduct. C.T. had engaged in deliberate deception, having lied about where he was going and why.

This case is instructive to employers on properly managing and dealing with evidence of impropriety:

1. An employer should give an employee an opportunity to respond to allegations of misconduct.

2. It is not entrapment for an employer to ask an employee questions about his or her conduct, even if it knows the answers.

3. Dishonest answers in an investigation constitute cause for dismissal.

4. An employee is not entitled to warnings and coaching in cases of serious wrongdoing, which permanently destroy the bond of trust.

5. An employer may review an employee’s work e-mails and Internet usage to prevent and investigate abuse of its assets.

Howard A. Levitt is counsel to Lang Michener LLP. He is author of The Law of Dismissal in Canada and The Quick Reference to Employment Law; and editor-in-chief of The Dismissal and Employment Law Digest.

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If you, or someone you care about, is dealing with employment law issues in the Toronto, Ontario Region, contact Lang Michener LLP.

 

This article is taken from an interview with Howard A. Levitt, Employment Lawyer at Lang Michener LLP , a Toronto, Ontario Employment Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.