Worker accused of receiving income from part-time job and real estate job while on leave for cancer treatment
This instalment of You Make the Call features a worker who was fired for working another job while on medical leave.
The worker was a service supervisor for VHA Home Health Care, a provider of nursing, rehabilitation, personal care and support to clients in their homes in the Toronto area. VHA was also a contracted service provider to community care access centres. The worker’s job involved overseeing personal support workers and establishing client care plans. She worked from home using equipment supplied by VHA.
In February 2010, the worker was diagnosed with colon cancer. She had to undergo a six-month chemotherapy program following surgery and went off work on an approved leave of absence in late March 2010. She initially received short-term disability (STD) benefits, then moved to long-term disability (LTD) benefits after providing updated medical information. Her eligibility for LTD benefits required total disability with no income from any source, as stipulated by Standard Life, VHA’s insurer.
In November 2010, VHA’s vice-president of HR heard that the worker was working as a real estate agent. She searched for the worker’s name on the Internet and found a photo and listing of her as an agent with property listings following her name. The vice-president of HR also learned the worker had been working part-time for a VHA subcontractor as an after-hours team leader, which involved carrying a cellphone and scheduling personal support workers who worked when the subcontractor’s offices were closed.
VHA contacted the subcontractor and discovered the worker had asked the subcontractor if her pay could be withheld for a period of time, which VHA interpreted as not wanting income from the subcontractor to affect her LTD benefits.
However, the worker said she didn’t make such a request, but had instead asked for a leave of absence from the subcontractor and was concerned about carrying a cellphone for the company while on sick leave. The worker claimed her manager from VHA said it would be fine to carry the subcontractor’s cellphone during her leave, so she retracted her inquiry about a leave from the subcontractor. The VHA manager denied having the discussion.
VHA contacted the real estate brokerage and verified the worker was employed there, but she wasn’t there. It contacted Standard Life, which called the worker and asked her if she had sold any homes or worked for the subcontractor. The worker said she had only sold her own home and hadn’t worked for the subcontractor since she started her leave of absence. The real estate listings by her name on the website were all the agency’s listings, she said. The worker later co-operated in giving consent for Standard Life to speak with the subcontractor and the real estate brokerage.
In January 2011, Standard Life determined the worker had received income from another source and stopped paying LTD benefits. It informed VHA that she had misrepresented her work activities and would be required to pay back more than $19,000 in benefits already paid to her.
After Standard Life finished its investigation, VHA met with the worker. The worker acknowledged her work with the subcontractor, but said it was very light work she could do at home and in bed. As for the real estate work, the worker said she had arranged two leases and the house sale of one VHA employee before she went on leave, but the closing of the latter was delayed until after she started the leave. The worker also claimed a colleague had done most of the work on any transactions after her leave began.
When VHA asked for consent to contact the real estate agency and access Standard Life’s file, the worker – through the union – said no. VHA indicated it would make a decision based on the information it had. It interviewed three VHA employees who said they used the worker as a real estate agent during her leave and were not aware of anyone else doing the work.
VHA determined the worker had lied about working for the subcontractor when applying for LTD benefits and minimized the real estate work she had done. It felt the evidence showed she wasn’t totally disabled and worked for other employers while on medical leave. Despite the worker’s 12 years of service, VHA found she had undermined the trust needed for her position and terminated her employment.
You Make the Call
Was there just cause for dismissal?
Was there insufficient cause?
If you said there was just cause for dismissal, you’re right. The arbitrator found the worker’s attempts to hide her subcontractor work and its earnings from Standard Life, her attempt to delay her payment from the subcontractor, and her minimizing her real estate work was “a serious act of misconduct that justified terminating her employment.”
In addition, the worker’s attempts to explain that she had asked for a leave from the subcontractor were false and showed she was trying to cloud the investigation and looking after her own interests, which showed she didn’t accept responsibility for her actions, said the arbitrator.
For more information see:• VHA Home Health Care and OPSEU (T.(M.)), Re, 2013 CarswellOnt 13842 (Ont. Arb.).