Employee claimed mental disability was a factor in his lying to employer but couldn’t provide definitive medical evidence
A British Columbia employer has won an appeal supporting its claim that it dismissed an employee for dishonesty, not his mental illness.
Joseph Francescutti worked in the sanitation department of the City of Vancouver and had a long tenure in his job, though it was not without problems — he had at least one suspension on his record and other instances of discipline. He also experienced issues with mental illness and the city had accommodated him when necessary.
In 2012, Francescutti had a perfect attendance record, so he was eligible for an award. All employees with perfect attendance records for the year were allowed to choose from a selection of clothing, gift cards, or other merchandise. Francescutti saw a jacket he liked, so he chose that as his prize. The jacket was ordered and arrived with the awards for other employees on March 22, 2013, when they were placed in the collections superintendent’s office to await distribution to the recipients.
Francescutti saw his jacket — labelled with his name – in the office with the other merchandise and decided to take it then and there. However, he didn’t tell anyone.
When the jacket was discovered missing, the city conducted an investigation. During the investigation, Francescutti twice asked his supervisor what was going on with the jacket but didn’t say that he had taken it. Ultimately, the city found a security video of Francescutti holding the jacket. It confronted him with the video on April 19 and he admitted to taking the jacket.
Francescutti said the jacket was his and at the time he didn’t think it was wrong to take it, though his memory wasn’t clear. He said he was suffering from depression and anxiety and his medication wasn’t working properly, causing mood swings and memory loss. He said he didn’t know why he didn’t tell the city he took the jacket, but “my mind just wasn’t right.” He acknowledged that he should have said something sooner and asked for help.
Employee couldn’t give reason for lying
The city suspended Francescutti and met with him and a union representative on April 30. Francescutti acknowledged he had taken the jacket and attributed his behaviour to mental illness. He provided a note from his doctor stating that he was taking medication for depression and anxiety. However, the city didn’t accept his explanation — partly because he was only bringing it up “at the 11th hour” — and terminated his employment for violating its trust through dishonesty and a lack of integrity.
Francescutti grieved his termination and provided medical documentation from two psychiatrists diagnosing “significant depressive and anxiety symptoms.” For a few months after his termination, Francescutti saw a doctor at a hospital who reported that he suffered from “major depressive disorder” that was treated with medication. The doctor noted it was difficult to estimate how much it affected his behaviour, but depression could lead to poor judgment and he should be further assessed by a psychiatrist. He also visited a neuropsychologist who said he had the symptoms of a major depressive disorder but scored within normal limits on most tests. The city had him evaluated by its own occupational health physician, who it asked if there was a causal link between Francescutti’s condition and his ability to discern right from wrong. The physician found that there was “no significant evidence of psychological impairment that would likely account for (Francescutti’s) behaviour.”
Francescutti filed a human rights complaint in October 2013, alleging the city discriminated against him in employment on the basis of a mental disability.
The B.C. Human Rights Tribunal dismissed Francescutti’s complaint, finding that the city terminated him not because of his disability, but because he irreparably breached the city’s trust by lying — something he admitted to — and the city had a “reasonable, non-discriminatory explanation for the termination.” The tribunal also said it was too convenient that Francescutti admitted taking the jacket and disclosed his mental disability only when he was faced with discipline and dismissal — he had not requested accommodation in at least a year and had perfect attendance in the past year, so the city had no reason to think mental illness was an issue. In addition, the tribunal found the medical documentation didn’t specifically link his mental disability with lying to the city about taking the jacket.
Francescutti appealed to the B.C. Supreme Court, which found that while medical documentation didn’t link Francescutti’s behaviour to his mental illness, it left the possibility open. In addition, the city’s occupational health physician didn’t interview Francescutti or refer to his mental health history when determining the lack of evidence of a causal relationship. The court found the tribunal’s decision was unreasonable because the tribunal made a finding of fact — that the city had a reasonably, non-discriminatory explanation for the termination — without definitive evidence one way or the other. The court referred the matter back to the tribunal for reconsideration. The city appealed to the B.C. Court of Appeal.
The Court of Appeal accepted that Francescutti’s diagnosis of depression and anxiety was a mental disability and his dismissal was adverse treatment. The issue to be decided was whether the mental disability was a factor in his termination.
Termination not linked to employee’s mental disability: Court of Appeal
The appeal court found that the B.C. Supreme Court erred when it determined the tribunal had made findings of fact without proper evidence and that was unreasonable. Instead of relying on evidence, the tribunal instead relied on “admitted facts, that Mr. Francescutti took the jacket, and then continued to lie about that fact for almost a month, admitting it only when faced with incontrovertible evidence that he took it,” the tribunal said.
The appeal court noted that the tribunal was clear that it found Francescutti was terminated because he lied to the city, not because of his mental health, and there wasn’t enough medical evidence to support the argument that Francescutti’s dishonesty was caused by his disability. Francescutti couldn’t prove he had enough evidence to establish a link between his termination and his disability, so dismissing his complaint wasn’t an unreasonable decision for the tribunal to reach, said the appeal court.
The appeal court set aside the B.C. Supreme Court’s decision and restored the tribunal’s dismissal of Francescutti’s discrimination complaint.
For more information see:
•Francescutti v. Vancouver (City), 2017 CarswellBC 1667 (B.C. C.A.).
