Employee wasn't intoxicated when she submitted 16 false doctor's notes and tried to shift the blame to others
Alcoholism and other addictions are considered disabilities under human rights legislation, which means employers must make efforts to accommodate them or face discrimination accusations. However, it’s only discrimination if the addiction plays a role in the decision to terminate.
An addiction can play a role in a termination if the employer knows about it and decides to dismiss the employee, or dismisses the employee due to misconduct that is causally linked to the addiction. However, if the employee is guilty of misconduct that isn’t caused by the disability – such as willingly lying to the employer while sober – then breach of trust can be sufficient to warrant termination.
A federal agency had just cause to dismiss an employee who submitted false sick notes for absences due to the employee’s drinking problem, the Canada Public Service Labour Relations and Employment Board has ruled.
Mary Ann McNulty was a senior programs officer with the Canada Revenue Agency (CRA). She was hired in 1989 as a clerk and moved up several levels to the position of senior programs officer in 2010. Over the years, she received several awards, including the CRA Award for Excellence in 2010.
McNulty’s performance appraisals indicated she regularly met expectations and sometimes exceeded them.
In early 2013, McNulty’s manager became concerned with the amount of work McNulty was missing due to absences. A couple of years earlier, McNulty had told her that she was dealing with “serious family issues,” including a serious illness and a death. When McNulty returned to work after these events, she said she was “okay” and wanted to return to work. However, McNulty continued to have a large number of absences.
The manager discussed the absences with McNulty, but each time McNulty said things were fine. Eventually, the manager offered McNulty leave with income averaging, but McNulty began missing work without calling in or letting the manager know. By Feb. 20, 2013, McNulty had missed 50 days with 10 of them unaccounted for. As a result, the manager sent McNulty an “administrative conditions letter” that reminded her to notify her immediate supervisor the same day of an absence during normal working hours. If she didn’t do so, the absence would be considered unauthorized and subject to discipline. The letter also indicated medical certificates supporting absences must be provided within seven calendar days of the start of the absence, or the first day back at work if the absence was less than five working days.
McNulty was also reminded of the CRA’s code of ethics and conduct, which stated that “you are expected to behave in a way that does not bring discredit to the CRA” and “your effectiveness (should never be) impaired to the extent that it could pose a hazard or embarrassment to you, to the CRA, to others or to property.”
After going over the letter, McNulty said she had no issues and she would be back at work. She declined an offer of assistance from the employee assistance program.
However, McNulty continued to take numerous sick days, often calling in sick on the day of absence. Whenever the manager asked for a medical certificate upon McNulty’s return, McNulty would either not be able to find it or say she had left it at home. She sometimes brought one in weeks later.
McNulty continued to insist she had no problems, and only suggested an ergonomic assessment be done of her workspace, to which the CRA agreed.
By June 2013, the CRA decided it needed a fitness-to-work evaluation from McNulty, so she consented to one. McNulty’s doctor completed the assessment and McNulty provided it in late August. The report stated that McNulty was fit to work full-time and the only note was that she be allowed to take breaks and lunches daily “without being made to feel guilty.”
Following the assessment, McNulty’s absences continued unabated. Once again, when the manager requested a medical certificate supporting an absence, McNulty would say she couldn’t find it or left it at home, then bring it sometime later. Another fitness-to work assessment was requested, but McNulty refused, saying she was feeling fine.
Fraudulent sick notes discovered
In March 2014, the manager became suspicious after receiving two notes from a physiotherapy clinic covering a five-day absence and a four-day absence. Copies of the notes were given to the CRA’s labour relations department, which investigated and determined these notes were falsified. The internal affairs and fraud control division launched an investigation.
The investigation determined that 16 typewritten medical notes in total dating back to May 14, 2013, identifying 10 different doctors and the physiotherapy clinic, were fraudulent. The notes were used to claim 216 hours of paid sick leave — totaling $9,300 in pay — and 218.5 hours of unpaid sick leave.
After being informed of the investigation, McNulty met with her manager and told her that she suffered from alcoholism and had forged the medical certificates because she had been too drunk to go to the doctor. She then told management that “you would not want me to drive drunk.”
McNulty revealed that she had been treated in the past for alcohol abuse and had been sober for years, but started drinking again two years earlier when family members became ill. She also told this to the investigators when they interviewed her and explained she was never sober enough to attend the doctor’s office in order to obtain medical certificates legitimately.
The CRA held a disciplinary hearing on May 14, at which McNulty was invited to add any new and relevant information or say anything about the investigation report. McNulty said that at the time she forged the notes, she didn’t consider it to be fraud but understood her actions weren’t consistent with the code of ethics and conduct. She also said she wasn’t intoxicated when she forged the notes and gave them to her manager, but sometimes was hungover.
After the disciplinary hearing, McNulty came back to say that “fraud occurred every day at the CRA, with employees taking long breaks,” and noted that she had endured illnesses and death in her family, the medical notes weren’t typical of her long career with the CRA, and she didn’t want to lose her job.
The CRA terminated McNulty’s employment on June 3. At her termination meeting, McNulty blamed her manager, whom she said was a poor manager and often didn’t respond to her emails regarding her leave. She said the CRA was supposed to support employees with mental health and addiction problems and she had been trying to make things right. However, according to management’s notes of the meeting, McNulty didn’t apologize for her actions or accept responsibility.
The arbitrator agreed that the 16 forged medical notes and the amount of paid sick leave McNulty received because of them amounted to serious misconduct warranting some sort of discipline. The arbitrator also agreed that the evidence indicated McNulty suffered from alcoholism, which is a disability under human rights legislation. The question was whether the disability factored into the decision to terminate her employment, which would constitute discrimination.
However, the arbitrator found that while McNulty knew of her disability for several years — seeking treatment and having a lengthy sober period before relapsing — it never intersected with her work environment and she never told the CRA of it. In fact, whenever her manager inquired if her absences were due to any issues, McNulty said she was fine. It was only when she was being investigated for her misconduct of fraudulent sick notes did she bring up her alcoholism, said the arbitrator.
“(McNulty) was not truthful or forthcoming with her supervisor or employer as, based on the evidence, everything was not fine, and she did not necessarily show up for work,” the arbitrator said. “(The manager) tried to determine the issue that was causing (McNulty) to miss work and whether (she) required some form of accommodation.”
In addition, the fitness-for-work assessment completed by the doctor reported that there was no reason McNulty couldn’t work. The CRA had no information that McNulty suffered from a disability that required accommodation and any such disability couldn’t have played a role in the disciplinary investigation, the arbitrator added.
The arbitrator also noted that McNulty admitted she wasn’t under the influence of alcohol when she forged the medical notes and submitted them. As a result, she hadn’t established that her misconduct was causally related to her alcohol dependency or she was a victim of discrimination in the discipline to which she was subjected.
The arbitrator also found McNulty’s misconduct was a breach of trust, serious for someone in the CRA. She also tried to transfer blame onto the employer, first saying “you would not want me to drive drunk” and then blaming her manager. This, along with her lack of remorse, made it unlikely the CRA could trust her again, said the arbitrator in upholding the termination.
For more information see:
