An employee may be disciplined (including fired) for fraudulent sick leave, but does this include an employee working another job while on sick leave?  Possibly, though employers should exercise caution before pulling the trigger.

In United Food & Commercial Workers, Local 1518 (Sidhu Grievance) v. Sobeys West. Inc., [2016] B.C.C.A.A.A. No. 148 [“Sidhu”], the grievor, a full-time senior cashier in a grocery store, requested vacation leave so that she could operate her new restaurant business.  The employer denied her request.  The grievor  then took sick leave and submitted a medical note citing an inability to work “due to medical reasons”.  She later submitted a second note at the employer’s request stating that she “had symptoms of asthma which had been aggravated by anxiety”.  The employer terminated the grievor’s employment for just cause after it confirmed that the grievor had worked at her new restaurant while on sick leave for the employer.  At the time of her termination, the grievor was known to be a “good employee” with 20 years of service and no disciplinary record.

The grievor grieved the termination decision and maintained at arbitration that her work at the restaurant was very limited and that she was genuinely ill from working for her employer.

The employer maintained that the grievor was dishonest, including in its investigation into concerns that her sick leave was fraudulent, and relied upon the fact that the grievor had not produced medical information to explain why she was too sick to work for the employer but not too sick to work at her own restaurant.

The grievance was allowed in a 114-page award.

In allowing the grievance, the arbitrator noted the following:

  • The evidence did not establish that the grievor was “faking illness” or had participated in a premeditated course of dishonest conduct starting with a plan to take unjustified sick leave.
  • The evidence did establish, however, that the grievor had exercised poor judgment in working at her restaurant while being unfit for work for her employer. This was a breach of her duty of honesty and fidelity to her employer in several ways, including:  when she ignored her employer’s request for additional medical information to explain why she could work at her restaurant but not work with her employer; when she denied knowledge of this request; when she said a steward had advised her that she could ignore the employer’s request; and when she failed to provide her employer’s request to her doctor.

In spite of the breaches of duty by the employee, the Arbitrator concluded the employment relationship could be rehabilitated, particularly in light of the grievor’s long service and positive performance record.

The arbitrator then substituted the termination with a four-month disciplinary suspension.

In doing so, the arbitrator provided the following prescriptions for employers:

  • The presumptive rule is that dishonesty (including dishonesty in an investigation) invites termination for just cause, but arbitrators still have the discretion to impose a lesser form of discipline.
  • Employers are entitled to reasonably sufficient medical information from employees, and employers. When faced with situations such as in Sidhu, employers are specifically entitled to ask why an employee is able to perform work for others (or perform other activities) but not work for the employer.
  • If an employee provides medical information that substantiates a sick leave and also explains why other work or activities can still be performed during that leave, then an employer is unlikely to establish fraud on that point alone.
  • The employer’s investigation into potential employee misconduct (including reasonable requests for medical information) will continue to be critical to sick leave management.

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