You make the call
This edition of You Make the Call features a worker who was fired for dishonesty while off work on medical leave for an injury he sustained at work.
CKF is a manufacturer of food service and packaging products in Etobicoke, Ont. In June 2017, CKF hired a machine operator on a probationary basis. The position of machine operator involved a lot of physical activity such as heavy lifting, bending and standing for long periods of time, so CKF required the worker to attend a medical screening. However, the company allowed him to start working before he completed the screening because the health provider cancelled the appointment.
Just under one month later on July 3, the worker injured his ankle at work. According to the worker, he “rolled” his ankle and he provided a short note from his doctor stating he would be off work for medical reasons. His doctor also completed four return-to-work forms outlining his medical limitations and the worker filed a claim for workers’ compensation.
CKF assigned the worker to sedentary duties as accommodation. Eventually, those duties ran out and, since the worker still wasn’t able to return to his regular duties, the company placed him on unpaid leave. In August 2017, the worker’s doctor completed a form that indicated the worker wasn’t able to work in any capacity for a period of two weeks.
CKF reviewed the doctor’s form and some documentation from the worker’s compensation claim with WorkSafeBC. It became evident that the worker had told WorkSafeBC that he had aggravated his ankle when he tripped at home — something he hadn’t mentiond to CKF — and he had reported a much higher income than he actually earned.
In addition, some CKF employees informed the company that they had seen the worker outside of work engaging in physical activity and performing tasks that weren’t consistent with medical reports regarding the severity of his ankle injury. CKF decided to hire a surveillance company to monitor the worker.
Based on the surveillance reports, CKF determined that the worker was able to bear weight on his injured ankle. The company’s health and safety officer scheduled a meeting with him to discuss a return to work, while the HR manager decided to attend to discuss concerns about his honesty and requested the worker’s supervisor and a union representative also attend. The meeting took place on Aug. 24.
The worker was asked why he misrepresented his income, but the worker denied doing so. He was also asked why his recovery seemed slow, to which the worker replied that he had a pre-existing condition in his ankle due to an electrocution — something he hadn’t disclosed on his medical form when he was hired, although he received workers’ compensation benefits after the electrocution.
CKF management felt the worker was disrespectful, arrogant and rude during the meeting. Afterwards, the HR manager confirmed with the health provider that it had been the worker who had rescheduled the medical screening appointment. CKF felt the worker wasn’t suitable for the machine operator position because he was dishonest and disrespectful, so it terminated his probationary employment.
The worker filed a human rights complaint, claiming CKF discriminated against him based on his disability when it terminated him while on leave due to a work-related injury.
You Make the Call
Was there just cause for dismissal? OR Was the termination discriminatory?
IF YOU SAID the employer had just cause for dismissal, you’re right. The B.C. Human Rights Tribunal found that the worker was dishonest about multiple things. He lied in the meeting when he said the health provider had cancelled his medical screening appointment, he apparently provided false information to WorkSafeBC about his income and he withheld medical information on the medical form required as part of his hiring. In addition, the company had concerns about the extent of his injury that the worker didn’t fully address, instead acting in a hostile manner in the meeting.
The worker claimed CKF fired him because they believed he was exaggerating his injury, which could be a connection between the dismissal and the injury. However, the tribunal found that CKF had other, non-discriminatory reasons to dismiss him and the injury itself wasn’t a factor in the decision to terminate his probationary employment. In addition, it was likely the worker’s injury would have resulted in ongoing accommodation costs for CKF as it would heal before too long, said the tribunal.
“While [the worker’s] disability and the [employer’s] suspicions about his disability existed when these events occurred, I am persuaded that his disability was not a factor in his termination,” the tribunal said in dismissing the worker’s claim. “The weight of the evidence shows [the worker] was fired because [the employer] genuinely perceived he was dishonest when he completed the form, reported his income to [WorkSafeBC], and in his answer about his medical screening appointment, and that he behaved poorly in the meeting.”
For more information see:
• Starrett v. CKF and others, 2019 BCHRT 173 (B.C. Human Rights Trib.).
