Employers beware: Build your file with care

June 1, 2010

The importance of being thorough before terminating an employee has once again been highlighted by the Commission des relations du travail (CRT) in a recent decision that upheld a employee's complaint under Article 124 of the Labor Standards Act and reinstated the employee.

In this case, an employee of Moroccan origin had planned a trip to Morocco from June 4 to July 12, 2008. Several months before the trip, however, the employee was placed on indefinite disability because of back pain.

Despite his disability, the employee left Quebec for his vacation, as planned, on June 4, 2008. Although his spouse returned to Quebec on schedule in order to resume her employment, the employee decided to extend his vacation with his children until August 15, 2008 and to undergo kinesitherapy treatments (treatment of disease by movements or exercise). He then advised his employer of the treatments that he was to undergo in Morocco. The employer authorized the extension of the employee's stay abroad but asked for a doctor's note to justify the absence. In the end, however, the employee passed on the doctor's note - stipulating that the employee must remain in a "warm and non-humid" environment - only three days after his treatments had ended.

After reading the doctor's note and being informed that the employee would not be able to return before September 22, 2008 because no flight was available earlier, the employer began to question the employee's truthfulness. Suspecting that the doctor's note had been provided as a mere accommodation, the employer sent the employee an email asking him to provide medical evidence before August 22, 2008 that would justify his absence. On the very day that the deadline was to expire, August 22, 2008, the employee finally responded by sending another doctor's note, this time asserting a diagnosis of depression and prescribing that the employee "avoid harassment situations with his employer". The employee's depression apparently had been caused by the employer's email.

The new diagnosis only served to reinforce the employer's doubts as to his employee's real intentions and, accordingly, the employee's employment was terminated on August 28, 2008.

Although the CRT decided clearly that an employee must justify absences, the tribunal also held that when the termination of the employee's employment is in issue, an employer must have proof to support any doubts it may have about the employee. The employer not only has the right to obtain medical evidence but also the obligation to do so if the employer wants to rely on such doubts to support a dismissal:

"In the absence of evidence of steps taken by the employer to confirm doubts, steps which arose not only from the employer's right but also from his obligations if he wanted to support his theory in the circumstances, the termination by the employer takes on the character of being purely arbitrary in nature, indeed biased, which does not constitute just and sufficient cause for termination."

This rather strict view of the CRT accordingly reminds us once again how important it is for the employer to conduct a rigorous investigation prior to proceeding with the termination of an employee for just and sufficient cause, even when the employer has very serious doubts.

In the circumstances, the employer should have accumulated a file of solid evidence to establish the facts behind the doubts the employer had about the employee's truthfulness. To this end, the CRT notes that the employer should have tried to allay or to confirm the doubts about the employee's true state of health, in particular by cooperating with the latter. The employer should have been in a position to demonstrate why the justifications provided by the employee were not consistent or credible. To do so, for example, the employer could have contested the documents the employee provided and asked that the employee undergo an independent medical examination.

The employer has since applied for judicial review of the decision. Accordingly, we should know soon what position the Quebec Superior Court takes on the conclusions reached by the CRT on this matter.

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