'You can't work for someone else while you're on sick leave with your employer': lawyer
An Ontario arbitrator has upheld the firing of a worker who was caught working a part-time job while claiming to be totally disabled from work.
Working for another employer while on sick leave is often just cause for dismissal, with some exceptions, according to Madeleine Loewenberg, an employment lawyer at Loewenberg Psarris in Toronto.
“If the [other job] is within the worker’s restrictions and those restrictions prevent the employee from working for the home employer, that may be an exception,” says Loewenberg. “But if [a worker] is saying, ‘I'm completely unable to work and there's no accommodation you can provide me that will get me back to the workplace,’ then they must be very certain that the duties of the second job can’t be done for the home employer.”
The worker was an educational assistant with the Francophone Catholic school board in Sudbury, Ont., from 1998 to 2012. In December 2012, she was elected president of her union local, so she was released from her duties.
In February 2016, the union local was put into trusteeship and the worker was removed as president. She went on sick leave as due to what she claimed was a toxic work environment, providing medical information indicating that she was totally disabled.
Second job at local college
In August, the worker’s doctor authorized a gradual return to work, but the school board asked for further information due to concerns about the worker’s ability to deal with special-needs children. The worker provided additional information from her doctor saying that she hadn’t improved as anticipated and she wasn’t ready to return to work.
The worker applied for a part-time teaching position at a local college for the summer with the expectation that she would be back with the school board in the fall. However, when her doctor said that she wasn’t ready to return to her educational assistant role, she continued to work at the college on a part-time basis.
In May 2017, the school board learned of the worker’s job at the college. The worker was also serving on union committees and was involved in processes at the Ontario Labour Relations Board and the Human Rights Tribunal.
The school board felt the worker’s activities were inconsistent with the medical information stating that she was totally disabled from work. The board investigated and asked to meet with the worker.
Clarification of worker’s status
On Sept. 4, the worker’s doctor indicated that the worker couldn’t work. On Sept. 14, the worker said she needed to know the nature of the meeting, who would be there, and if she could participate by telephone in order to manage her medical needs.
The school board explained that it wanted to discuss her restrictions in light of the information it had, and that her participation was required. On Sept. 27, it received a medical note saying the worker couldn’t participate in a face-to-face meeting.
In January 2018, the worker provided a medical note indicating that she was to be off for medical reasons indefinitely and there should be no face-to-face meeting.
The school board asked for answers to its questions in writing without success. The board gave the worker until Feb. 26 to answer, with the warning that failing to participate could lead to termination. A couple of days later, the worker was placed on unauthorized leave.
Final warning
On April 30, the board sent the worker a final warning giving her until May 10 to answer its questions. The worker responded that the pressure was worsening her health.
On May 9, the worker asked to meet that day. However, she didn’t join the call, saying she was waiting for the union to get back to her. She also said she wanted more time and she had “massive anxiety.”
The school board told the worker that if she didn’t answer by the next day, she would be dismissed. After no response, the board terminated her employment on May 11 for abusing her sick leave by teaching for another employer while claiming to be totally disabled from work.
The school board acted smartly by not immediately terminating the worker when it learned of her other job and trying to accommodate her with the meeting, says Loewenberg.
“[The school board] really took their time to try and find out what the other work was and how she was able to do that work but not work for them,” she says. “It put them in good stead with the arbitrator, because she could see that they didn’t act precipitously and they tried to accommodate whatever the worker requested, even in the absence of medical evidence.”
“They went slow and steady – it probably took longer than they wanted to get to the point of termination, but ultimately they did the right thing,” adds Loewenberg.
Termination grievance
The union grieved, arguing that the school board didn’t have just cause for discipline or discharge.
The arbitrator agreed that the worker had a medical condition with symptoms that could increase from stress. In addition, the worker’s participation in union activities wasn’t proof that she could return to work, the arbitrator said.
The arbitrator acknowledged that the worker didn’t hide her activities, but noted there was no evidence that she specifically informed the board that she was working elsewhere. As for assessing the worker’s ability to return to work, the school board acted appropriately in seeking her version of the facts, said the arbitrator.
The arbitrator also found that the school board clearly advised the worker that if she didn’t provide her own answers, it would have to draw its own conclusions about her status.
The arbitrator noted that the jurisprudence established that misrepresenting one’s status to their employer while receiving medical leave benefits was equivalent to fraud, which was generally found to be “inconsistent with the employment relationship.” The ability to work elsewhere is taken to indicate that the worker is capable of at least modified work rather than being completely off work while receiving sickness benefits, the arbitrator said.
“There are several cases that say that you can’t work for someone else while you're on sick leave with your employer, even if you're not being paid by the employer,” says Loewenberg. “Daily activities of life that appear to be inconsistent with the sick leave will not necessarily permit the employer to terminate for cause, but the distinction here is she actually went to work for someone else.”
Similar to regular job
In addition, the work that the worker was doing for the college used the same cognitive skills as her regular job, says Loewenberg, who adds that the worker’s reluctance to meet with the school board exacerbated the situation.
“The fact that she wouldn't communicate with her employer put it at a disadvantage in terms of the ability to accommodate her, but she also put herself at a disadvantage,” she says. “Failing to communicate in and of itself warrants discipline - if you won't participate in your own accommodation, it’s near impossible to say that you weren't accommodated.”
While the worker claimed that the few hours per week at the college was her limit, there was no medical evidence that explained why she could do that while being totally disabled from work with the school board, said the arbitrator, adding that the only explanation was that she was off due to a toxic work environment.
In addition, although the worker felt ready to return to work on a graduated basis in August 2016, her doctor’s reports didn’t support it and didn’t address accommodation, said the arbitrator.
Lack of accurate information
The lack of solid medical information and the worker’s reluctance to communicate left the school board in a difficult situation given the worker’s issues were mental-health related, according to Loewenberg.
“[Mental health issues] are generally diagnosed by self-reporting - you can't take someone's temperature and see if they have anxiety,” she says. “So we have to be suspicious of the quality of the medical information because the background information isn't accurate – the worker should have communicated accurate information and, most certainly, she shouldn't have gone to work somewhere else.”
The arbitrator determined that the worker was guilty of misconduct in representing to the school board that she was totally disabled for work while working elsewhere for pay. This was serious misconduct that required an explanation, but the worker didn’t provide one despite the school board’s repeated efforts to get more information, said the arbitrator.
The worker’s failure to justify her serious misconduct removed any confidence that the employment relationship could be salvaged, said the arbitrator in upholding the worker’s dismissal.
“There isn’t a legal obligation to notify the employer that they're working somewhere else,” says Loewenberg. “But being practical about it, if your employer sees that you're working somewhere else [during a sick leave] and you didn't tell them, questions are going to be raised.”
