Employees who engage in medical dishonesty may find themselves disentitled to ESA termination and severance pay.
The ESA provides that employees who are guilty of “willful misconduct” or “willful neglect of duty” are not entitled to statutory notice of termination or severance pay. These are typically treated as very high standards. The key is that the conduct must be serious, and it must be willful. In other words, failing to meet production standards will not usually be sufficient to disentitle an employee from statutory notice and severance pay, unless the employee was failing intentionally.
In Gray v. Springfield Hotels Airport Inc. (Hampton Inn & Suites Toronto Airport) (July 31, 2009), an employee provided her employer with a doctor’s note indicating that she would be off work for three weeks “due to medical reasons.” In fact, during that three-week period she continued to work for another inn providing essentially the same services. When her employer learned of her dishonesty she was fired without notice. (She was not entitled to ESA severance pay because she had been employed for less than five years).
The Ontario Labour Relations Board held that the employee’s conduct constituted willful neglect of duty. As such, she was not entitled to notice of termination under the ESA. Notably, the Board rejected the employee’s argument that a problem she alleged was occurring at work excused her misconduct.
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Jeremy D. Schwartz – [email protected]