Employee’s mother had stroke years earlier
An Ontario hospital worker had her vacation request denied while on medical leave, and then applied for unpaid leave under false pretenses.
The worker was a cleaner at St. Joseph’s Hospital in Toronto for many years. Starting in 2002, the hospital began accommodating her due to physical limitations, eventually placing her in a cleaning position with the lightest duties.
However, in 2013, the worker arranged to be transferred to a cleaning position in a patient unit, without notifying HR or the occupational health departments. The hospital then invited the worker to return to the accommodated position but the worker declined, saying she believed she could perform the regular duties of her new job.
It soon became evident that the worker’s limitations were impacting her ability to work in the new position, so the hospital moved her to a less difficult unit with some modifications to her job duties.
The worker continued to have performance issues and in late fall 2014, she went on sick leave, claiming she couldn’t perform the duties of her position. The worker returned briefly in the spring of 2015 but this arrangement didn’t last. The Ontario Workplace Safety and Insurance Board (WSIB) eventually became involved, helping develop a return-to-work plan for March 2016. The plan was to put the worker back in the accommodated light cleaning position she had occupied before her transfer.
The worker — while still on sick leave — requested four weeks of vacation so she and her husband could visit her sick parents in the Philippines. However, her request was denied because the return-to-work plan was to begin on March 17, 2016 and the hospital normally didn’t approve vacation requests for employees on leave.
The worker said that her mother had had a stroke and her medical condition was “extremely dire.” Hospital policy provided for unpaid leave for employees to provide care or support to individuals “with the most serious and life-threatening medical conditions” if a worker provided written confirmation from a medical practitioner, so the worker applied for and received this leave. Her return-to-work plan was postponed to April 6.
When the worker returned to work, she provided a certificate from her mother’s doctor, who had checked “no” for the question on whether the worker’s mother had a serious medical condition.
The hospital held a fact-finding meeting where the worker said her mother had been in the hospital when she arrived in the Philippines due to a stroke. However, the worker admitted that the stroke had happened years earlier.
A followup with the mother’s doctor confirmed that she had a serious medical condition in 2013 but at the time of the worker’s visit, the mother was “stable with no complaints.”
Hospital management decided that the worker had misled them about her mother’s medical condition and falsely applied for the leave. Her dishonesty, lack of acknowledgment and two previous suspensions on her record — one day for time theft and dishonesty and three days for insubordinate behaviour and dishonesty — was enough for the hospital to terminate her employment for cause.
The arbitrator agreed that the worker demonstrated “repeated dishonesty” by applying for the leave when her mother’s condition didn’t meet the criteria and trying to mislead the hospital when asked about it when she returned. This extended attempt to mislead the hospital was serious misconduct, particularly since she should have been aware after her two suspensions that her job would be in jeopardy with further misconduct.
This dishonesty and the lack of any remorse or acknowledgement did not “auger well for the successful return of an employee, even one with long service,” said the arbitrator.
Reference: St. Joseph’s Health Centre and CUPE. William Kaplan — arbitrator. Stephanie Young for the employer. Faiz Ahmed for the employee. Sept. 23, 2019. 2019 CarswellOnt 15004
