Last week, the Ontario Court of Appeal released its decision on the appeal of the late Justice Echlin's decision in the Brito v. Canac Kitchens case. I discussed the original decision shortly after it was released in this post.
This was one of many wrongful dismissal cases against Canac, and included several plaintiffs. One of the plaintiffs, Mr. Olguin, became disabled during the notional notice period, battling cancer. Incidentally, he had found a new job fairly quickly after being fired, albeit at a lower rate of pay, and his new job didn't have benefits, so when he had to stop working, it was without any LTD coverage.
Justice Echlin found Canac Kitchens responsible for what the LTD policy would have paid out, but for the termination of benefits, to the tune of nearly $200,000. Justice Echlin was pretty displeased with the employer's approach to termination of the coverage and litigating the point, and awarded $15,000 in what he called "ancillary damages" for not unilaterally continuing disability coverage and paying out only the statutory minimum notice. There was some murmur in the employment law bar about this - it was novel, and condemned essentially what has become standard employer practice. I commented in a discussion on Professor David Doorey's blog at the time that I wondered if this would hold up on appeal, as the ancillary damages "[look] like punitive damages to me, to which the appellate Courts have applied an extremely high standard in employment cases."
However, while the $15,000 in ancillary damages was novel, and in some ways asked for an appeal, Justice Echlin's reasoning on the damages for loss of LTD benefits looked relatively solid. Both points were appealed, and the result is as expected.
The Court of Appeal upheld the award of damages in respect of LTD benefits, but found that the "ancillary damages" were in the nature of punitive damages...
...and that since punitive damages weren't pleaded in the statement of claim or sought at trial, the award could not stand.
My Thoughts
I'm a little disappointed with the Court of Appeal's dodge of the ancillary damages question. It's a novel question of law, and while the decision was no doubt correct that it can't be awarded if not pleaded, I would have liked to see some obiter as to whether or not the award might have been upheld if pleaded. As it stands, this does not endorse Justice Echlin's finding that Canac's conduct was blameworthy, but nor is it an outright rejection of the suggestion that paying only the statutory minimums might give rise to such damages. Given that this suggestion was made by a widely-respected judge and expert in the employment law arena, it's something that still might carry some sway.
Also note the costs award: Canac Kitchens defeated the $15,000 ancillary damages award, but lost on the $200,000 issue, and therefore was ordered to pay another $20,000 to offset Mr. Olguin's costs on the appeal. Just can't catch a break.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Showing posts with label disability benefits. Show all posts
Showing posts with label disability benefits. Show all posts
Monday, February 6, 2012
Monday, January 23, 2012
Olivares v. Canac Kitchens
Justice Lederman recently released his decision in what he calls "yet another in a long list of wrongful dismissal actions...arising from the cessation of Canac's manufacturing operations in 2008."
It's a pretty standard wrongful dismissal case in many respects. A 48-year-old shipping supervisor with 24 years of service sought pay in lieu of notice. Some other interesting factors: The plaintiff started working at Canac immediately after moving to Canada from Chile at age 24, and was able to function there speaking mainly Spanish. Result: Limited English skills, limited education, limited Canadian re-employability.
The Canac Kitchens cases seem to generally have fairly generous notice periods, by contrast to other jurisprudence. Still, at this stage of the game the Canac cases are becoming a jurisprudential force all their own: The plaintiff in this case was able to point to other generous awards Courts have made to his co-workers, in support of his own claim for significant pay in lieu of notice. Successfully so: He was awarded a notice period of 20 months.
There are a couple of curious features to this case, though.
Cancellation of Benefits
It's trite law that an employee is entitled to the full benefits to which they would have been entitled throughout the notice period. Accordingly, when an employee is terminated without notice, and their health benefits are cancelled, they should get some compensation.
Traditionally, there have been decent employer arguments that the employee should only be compensated for out-of-pocket expenses actually incurred, and that if the employee really wants insurance coverage for significant expenses they should pay for coverage (which then becomes a recoverable out-of-pocket expense). This argument does seem to ignore the reality that displaced employees are ill-positioned to invest in insurance, and will tend to just avoid health-related expenses they can't afford. That doesn't mean they haven't suffered any loss.
In Brito v. Canac Kitchens, however, Justice Echlin rejected the argument that failing to purchase replacement benefits was a failure to mitigate, awarding the employee damages in respect of lost LTD coverage.
In this case, Justice Lederman took it a step further towards employee-friendly. Mr. Olivares had waived dental and medical coverage, instead taking the coverage available through his wife's employment. In other words, Canac wasn't paying for dental and medical coverage for him. Nonetheless, Justice Lederman concluded that there was value added in the peace of mind of having those benefits available to be opted into in the event that his wife lost her job, and therefore he awarded damages on the same scale as other employees had received who had relied on those benefits.
Mitigation and Estoppel
It is also trite law that mitigation earnings should be deducted from an award of damages in respect of pay in lieu of notice, at common law, but that the statutory minimum notice and severance payments are not subject to mitigation.
Thus, if I get a job with equal pay the day after being fired, I'm still entitled to my statutory minimum notice and severance if applicable. But likely nothing beyond that.
In this case, the plaintiff had a statutory notice period of 8 weeks, and statutory severance pay of another 24 weeks. During his first 32 weeks after being fired, he did some work as a drywaller earning $26,600. The question becomes whether that is mitigation income which should be deducted from his common law entitlements, or whether the common law analysis of mitigation doesn't even begin until after statutory minimum pay runs its course.
As it turns out, there's conflicting law on the subject...both in Canac Kitchens cases.
In Yanez v. Canac Kitchens in 2004, Justice Echlin deducted an employee's mitigation earnings from his common law entitlements, notwithstanding that part of those earnings were covered by the statutory notice period. By this logic, Canac should get credit for Olivares' $26,600 earned during the stat notice period.
In Moldovanyi v. Canac Kitchens, on the other hand, Justice Brown held otherwise, relying on a subsequent decision by the Divisional Court.
Quite frankly, I think that Justice Echlin's approach is much easier to reconcile with the first principles of employment law. Justice Brown's approach requires one to perceive the common law notice period as something that doesn't even begin until the statutory notice period runs out...particularly when we're dealing with statutory severance as well, which cannot be paid via pay continuance, that is a difficult concept to justify.
Nonetheless, Justice Lederman's approach is even more curious. In the Olivares case, Canac is arguing that Justice Brown was wrong. Justice Lederman's response: Why didn't you appeal, then? He finds that it would be an abuse of process to allow Canac to re-litigate the same issue again. So they're stuck with Justice Brown's approach.
This is akin to, but not quite, issue estoppel. In the ordinary course, if you and I have litigated an issue before and received a final decision, that decision is binding and immune to subsequent litigation as between us. However, as between you and a third party...not so much. Nothing usually stops you, strictly speaking, from litigating the same question against others, even though you may have lost against me.
Thus, where we're talking about a different employee with different mitigation income, it would be unusual and incorrect to apply the doctrine of issue estoppel, despite it being a similar question of statutory interpretation.
The consequences? Well, if an organization is stuck with any unfavourable legal conclusion that may be raised by others in subsequent proceedings, we would see much more value added in appeals, and significant difficulty in settling appeals. Every Court loss a company suffers will go from being an unfavourable persuasive case to a binding precedent. The same, of course, cannot be said of wins.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
It's a pretty standard wrongful dismissal case in many respects. A 48-year-old shipping supervisor with 24 years of service sought pay in lieu of notice. Some other interesting factors: The plaintiff started working at Canac immediately after moving to Canada from Chile at age 24, and was able to function there speaking mainly Spanish. Result: Limited English skills, limited education, limited Canadian re-employability.
The Canac Kitchens cases seem to generally have fairly generous notice periods, by contrast to other jurisprudence. Still, at this stage of the game the Canac cases are becoming a jurisprudential force all their own: The plaintiff in this case was able to point to other generous awards Courts have made to his co-workers, in support of his own claim for significant pay in lieu of notice. Successfully so: He was awarded a notice period of 20 months.
There are a couple of curious features to this case, though.
Cancellation of Benefits
It's trite law that an employee is entitled to the full benefits to which they would have been entitled throughout the notice period. Accordingly, when an employee is terminated without notice, and their health benefits are cancelled, they should get some compensation.
Traditionally, there have been decent employer arguments that the employee should only be compensated for out-of-pocket expenses actually incurred, and that if the employee really wants insurance coverage for significant expenses they should pay for coverage (which then becomes a recoverable out-of-pocket expense). This argument does seem to ignore the reality that displaced employees are ill-positioned to invest in insurance, and will tend to just avoid health-related expenses they can't afford. That doesn't mean they haven't suffered any loss.
In Brito v. Canac Kitchens, however, Justice Echlin rejected the argument that failing to purchase replacement benefits was a failure to mitigate, awarding the employee damages in respect of lost LTD coverage.
In this case, Justice Lederman took it a step further towards employee-friendly. Mr. Olivares had waived dental and medical coverage, instead taking the coverage available through his wife's employment. In other words, Canac wasn't paying for dental and medical coverage for him. Nonetheless, Justice Lederman concluded that there was value added in the peace of mind of having those benefits available to be opted into in the event that his wife lost her job, and therefore he awarded damages on the same scale as other employees had received who had relied on those benefits.
Mitigation and Estoppel
It is also trite law that mitigation earnings should be deducted from an award of damages in respect of pay in lieu of notice, at common law, but that the statutory minimum notice and severance payments are not subject to mitigation.
Thus, if I get a job with equal pay the day after being fired, I'm still entitled to my statutory minimum notice and severance if applicable. But likely nothing beyond that.
In this case, the plaintiff had a statutory notice period of 8 weeks, and statutory severance pay of another 24 weeks. During his first 32 weeks after being fired, he did some work as a drywaller earning $26,600. The question becomes whether that is mitigation income which should be deducted from his common law entitlements, or whether the common law analysis of mitigation doesn't even begin until after statutory minimum pay runs its course.
As it turns out, there's conflicting law on the subject...both in Canac Kitchens cases.
In Yanez v. Canac Kitchens in 2004, Justice Echlin deducted an employee's mitigation earnings from his common law entitlements, notwithstanding that part of those earnings were covered by the statutory notice period. By this logic, Canac should get credit for Olivares' $26,600 earned during the stat notice period.
In Moldovanyi v. Canac Kitchens, on the other hand, Justice Brown held otherwise, relying on a subsequent decision by the Divisional Court.
Quite frankly, I think that Justice Echlin's approach is much easier to reconcile with the first principles of employment law. Justice Brown's approach requires one to perceive the common law notice period as something that doesn't even begin until the statutory notice period runs out...particularly when we're dealing with statutory severance as well, which cannot be paid via pay continuance, that is a difficult concept to justify.
Nonetheless, Justice Lederman's approach is even more curious. In the Olivares case, Canac is arguing that Justice Brown was wrong. Justice Lederman's response: Why didn't you appeal, then? He finds that it would be an abuse of process to allow Canac to re-litigate the same issue again. So they're stuck with Justice Brown's approach.
This is akin to, but not quite, issue estoppel. In the ordinary course, if you and I have litigated an issue before and received a final decision, that decision is binding and immune to subsequent litigation as between us. However, as between you and a third party...not so much. Nothing usually stops you, strictly speaking, from litigating the same question against others, even though you may have lost against me.
Thus, where we're talking about a different employee with different mitigation income, it would be unusual and incorrect to apply the doctrine of issue estoppel, despite it being a similar question of statutory interpretation.
The consequences? Well, if an organization is stuck with any unfavourable legal conclusion that may be raised by others in subsequent proceedings, we would see much more value added in appeals, and significant difficulty in settling appeals. Every Court loss a company suffers will go from being an unfavourable persuasive case to a binding precedent. The same, of course, cannot be said of wins.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wednesday, September 28, 2011
Third Party Insurers can (sometimes) rely on Post-Employment Releases
An employee always has to be careful when signing a full and final release, for a few reasons. The recent decision in Zelsman v. Meridian Credit Union is an excellent example of this.
Ms. Zelsman's employment was terminated, following which she applied for long-term disability benefits to the LTD insurer, Great West Life. This application was denied. Ms. Zelsman proceeded to litigate the termination of her employment via the Human Rights Tribunal, resulting in a settlement achieved at the mediation, involving a payment to Ms. Zelsman of $90,000, which appears largely to be compensation for the loss of her LTD insurance due to the denial of the LTD benefits.
Then, retaining a different lawyer, Ms. Zelsman appealed the denial of her LTD benefits, and was eventually successful...however, after granting her LTD application, resulting in a hefty lump sum of retroactive benefits in excess of $46,000, Great West Life found out about the full and final release, and - moreover - found out that it contained a term releasing Great West Life from any such liabilities, and reversed the payment.
Normally, if you're not a party to a contract, you don't get to benefit from it. In this context, however, because the release so expressly released Great West Life, the Court was prepared to conclude that Great West Life could rely on it; in other words, the LTD benefits were toast.
So how does this happen? The biggest question is this: How did Ms. Zelsman get to the point of litigating against Great West Life after signing such an express release? Indeed, after getting the LTD benefits, Ms. Zelsman would have been happy to resile from the minutes of settlement, but that's not usually possible to do - particularly without $90,000 cash in hand to refund the employer.
Every management-side lawyer appears to have a different way of dealing with Minutes of Settlement and Full and Final Releases, but the one consistent fact is that they are all quite comprehensive, releasing anything and everything. In fact, usually the releases go well beyond the subject-matter of the current dispute, which adds real value to them for employers, but the consequence is that employee-side counsel have to be careful to ensure that their clients understand that they can't proceed with other claims afterward.
Indeed, given the extremely final nature of these Full and Final Releases, I've occasionally had to go back to employer counsel to get exemptions inserted for such things as pensions - so we're dealing with pay in lieu of notice, but the employee still has a tidy sum tied up in an employer pension plan to be dealt with (which usually isn't in dispute, so my client doesn't need to pay me to help deal with it). The response I usually get is "Well, of course the intention isn't to waive these entitlements", whereupon I respond, "Then you won't mind expressly saying so."
Simply, these releases envision a completely cut cord, saying "We're done dealing with you, and we won't deal with you again." If there is an unforeseen dispute down the road, I don't want these releases getting in the way. But that isn't always the case. So the releases have to be tailored.
Most of the time, it's a matter of saying to the client, "If you sign this, you don't get to come back and sue for more, you don't get to make a Human Rights Application, you don't get to make a claim for any more wages due, etc." Every so often, this shocks the client, because they thought they'd hired a lawyer just to deal with one isolated aspect of their relationship with their employer, and thought very cleverly that they'd get money now then come back for more money later on a different aspect.
In this case, the first lawyer assisting with Ms. Zelsman knew that there had been an unsuccessful application for LTD benefits, and presumably opined that it was better to go after the employer for it than to take on the insurance company. The second lawyer didn't realize that a settlement had been reached, and agreed to take on the insurance company. (They both were pretty successful in their respective tasks, it seems, but it was really one or the other.)
This is the other thing that can happen when you change counsel too many times: Facts get lost. It takes time, effort, and often money for your new lawyer to achieve the same level of familiarity with the file that your previous lawyer had.
Was Ms. Zelsman not told that the Minutes of Settlement would prevent her from going after Great West Life? Perhaps she was told, but didn't fully appreciate it? Or did at the time, but forgot? Or thought that she'd pull a fast one and try to proceed with her claim anyways (she very nearly pulled it off, after all)? As outside observers, we can't know. What seems almost certain is that, had she gone back to her first lawyer afterwards and said, "Now I want to go after the insurer", the first lawyer would have said, "Sorry, with the release you signed, you really can't." (Maybe this happened, and the client didn't listen. Who knows.) But retaining a second lawyer means increased legal fees of her own appealing the denial, increased legal fees (with a third lawyer) in making the Court Application, plus there's now a good chance that she'll end up having to pay several thousand dollars toward the insurer's legal fees.
The lesson to clients is: Tell your lawyer everything, and make sure you listen to what they say. The lesson to lawyers is not to take anything for granted. Maybe you think that the client has accepted your advice not to go after the insurer, but you never know if in the back of their own minds they're thinking that they'll be clever and try for both.
*****
This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Ms. Zelsman's employment was terminated, following which she applied for long-term disability benefits to the LTD insurer, Great West Life. This application was denied. Ms. Zelsman proceeded to litigate the termination of her employment via the Human Rights Tribunal, resulting in a settlement achieved at the mediation, involving a payment to Ms. Zelsman of $90,000, which appears largely to be compensation for the loss of her LTD insurance due to the denial of the LTD benefits.
Then, retaining a different lawyer, Ms. Zelsman appealed the denial of her LTD benefits, and was eventually successful...however, after granting her LTD application, resulting in a hefty lump sum of retroactive benefits in excess of $46,000, Great West Life found out about the full and final release, and - moreover - found out that it contained a term releasing Great West Life from any such liabilities, and reversed the payment.
Normally, if you're not a party to a contract, you don't get to benefit from it. In this context, however, because the release so expressly released Great West Life, the Court was prepared to conclude that Great West Life could rely on it; in other words, the LTD benefits were toast.
So how does this happen? The biggest question is this: How did Ms. Zelsman get to the point of litigating against Great West Life after signing such an express release? Indeed, after getting the LTD benefits, Ms. Zelsman would have been happy to resile from the minutes of settlement, but that's not usually possible to do - particularly without $90,000 cash in hand to refund the employer.
Every management-side lawyer appears to have a different way of dealing with Minutes of Settlement and Full and Final Releases, but the one consistent fact is that they are all quite comprehensive, releasing anything and everything. In fact, usually the releases go well beyond the subject-matter of the current dispute, which adds real value to them for employers, but the consequence is that employee-side counsel have to be careful to ensure that their clients understand that they can't proceed with other claims afterward.
Indeed, given the extremely final nature of these Full and Final Releases, I've occasionally had to go back to employer counsel to get exemptions inserted for such things as pensions - so we're dealing with pay in lieu of notice, but the employee still has a tidy sum tied up in an employer pension plan to be dealt with (which usually isn't in dispute, so my client doesn't need to pay me to help deal with it). The response I usually get is "Well, of course the intention isn't to waive these entitlements", whereupon I respond, "Then you won't mind expressly saying so."
Simply, these releases envision a completely cut cord, saying "We're done dealing with you, and we won't deal with you again." If there is an unforeseen dispute down the road, I don't want these releases getting in the way. But that isn't always the case. So the releases have to be tailored.
Most of the time, it's a matter of saying to the client, "If you sign this, you don't get to come back and sue for more, you don't get to make a Human Rights Application, you don't get to make a claim for any more wages due, etc." Every so often, this shocks the client, because they thought they'd hired a lawyer just to deal with one isolated aspect of their relationship with their employer, and thought very cleverly that they'd get money now then come back for more money later on a different aspect.
In this case, the first lawyer assisting with Ms. Zelsman knew that there had been an unsuccessful application for LTD benefits, and presumably opined that it was better to go after the employer for it than to take on the insurance company. The second lawyer didn't realize that a settlement had been reached, and agreed to take on the insurance company. (They both were pretty successful in their respective tasks, it seems, but it was really one or the other.)
This is the other thing that can happen when you change counsel too many times: Facts get lost. It takes time, effort, and often money for your new lawyer to achieve the same level of familiarity with the file that your previous lawyer had.
Was Ms. Zelsman not told that the Minutes of Settlement would prevent her from going after Great West Life? Perhaps she was told, but didn't fully appreciate it? Or did at the time, but forgot? Or thought that she'd pull a fast one and try to proceed with her claim anyways (she very nearly pulled it off, after all)? As outside observers, we can't know. What seems almost certain is that, had she gone back to her first lawyer afterwards and said, "Now I want to go after the insurer", the first lawyer would have said, "Sorry, with the release you signed, you really can't." (Maybe this happened, and the client didn't listen. Who knows.) But retaining a second lawyer means increased legal fees of her own appealing the denial, increased legal fees (with a third lawyer) in making the Court Application, plus there's now a good chance that she'll end up having to pay several thousand dollars toward the insurer's legal fees.
The lesson to clients is: Tell your lawyer everything, and make sure you listen to what they say. The lesson to lawyers is not to take anything for granted. Maybe you think that the client has accepted your advice not to go after the insurer, but you never know if in the back of their own minds they're thinking that they'll be clever and try for both.
*****
This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Monday, September 12, 2011
Web 2.0 in the Workplace: Caught Red-Handed
Sometimes, people seem to think that a post on Facebook is like a secret whisper to a confidante.
It isn't.
Not only is it visible, potentially to countless people, but it's in writing, and is essentially indestructible. It's like carving something in stone and then prominently displaying it on the town square. I once saw somebody convicted criminally for an offence, where the Crown relied heavily on the fact that the person admitted to the crime on Facebook. Also, in personal injury suits, there is increasing jurisprudence requiring plaintiffs to produce their Facebook records, and if those records don't mesh with your tearful tale of how lonely and inactive you've been since the accident, guess what happens?
In the employment context, the main lie that Facebook could give up relates to "abuse of sick leave". You've called in sick, faked your best cough, told your boss that you're just going to lie in bed for the day...then your best friend posts and tags a cell phone photo he takes of you when you catch a foul ball at the Jays game, inconveniently incorporating a datestamp into the corner of the image. Or worse, you're on a paid or unpaid leave from work, saying that you can't perform the essential functions of your job because of a disability, and you start posting statuses about how much you're enjoying playing hockey, or golfing, or white water rafting. It's bound to raise eyebrows if anyone at work catches wind of it.
I've seen fact patterns involving a fellow off work with back pain, who ended up in the local paper when he won a golf tournament. Oops. Or another individual who was off work because of a knee injury, but a local paper ran a community interest story about people skating at the local community centre, and he happened to be caught in the photograph they ran. These are fundamentally similar. And the conclusion is usually that the employee is in deep trouble when this happens. Or how about the teacher who, while off on disability leave, took another teaching position with a different school board?
As always, whether or not this sort of thing constitutes just cause for termination is deeply contextual. The fact that somebody is alive when not at work is not, in and of itself, misconduct, and even where there is misconduct, its severity will vary significantly. An employer, getting word that an employee seems to be doing something incongruous with their claimed illness, needs to investigate, but should not immediately jump to conclusions. As I recall, the fellow with the knee trouble ended up getting reinstated because it was concluded that his failure to return to work when he was able was not bad faith - when his doctor gave him a note saying that he needed x days off, he figured he'd go back to work after x days, and didn't realize that he should have returned to work immediately upon becoming able. Another relevant factor is whether the leave is paid or unpaid. Where an employee is on an unpaid disability leave and working for another employer, it's usually just dishonesty. Where the employee is on a paid disability leave and working for another employer, it is usually fraud - the employee is, for all intents and purposes, stealing from the employer (or the disability insurer), which is much more severe.
The two main challenges for an employer are, firstly, that the employer will not always know the nature of the medical condition, and in fact is not entitled to know the nature of the medical condition, and secondly that the employer will occasionally have difficulty establishing that the employee understood their obligations in respect of their sick leave. I've seen arguments made that "The employer didn't contact me to return to work, so I thought I was okay."
So an employer, faced with prima facie evidence that the employee is abusing sick leave, must move cautiously. Surveillance evidence, under these circumstances, has usually been found in Canadian jurisprudence to be admissible, so talk to a lawyer about getting a PI on the case to flesh out the case beyond the strict contents of the facebook status, photo, or other report. Remind the employee of his obligation to report for work if he is able to do so. Conduct an interview with the employee to establish/confirm the specific medical limitations which prevented him from attending work, and ask him what extra-curriculars he engaged in while off work (give him the opportunity to be truthful...or not), and consider getting an independent medical expert to determine whether or not the activities he engaged in were consistent with the medical limitations he described. (The golfer argued that his doctor had suggested golf as a treatment for his back problems. The argument didn't fly in that context, but the underlying principle is sound: Perhaps I have a physical job that a disability prevents me from doing...well, just maybe the kinetics of sport x are not the same, and therefore my limitations on working may not apply in the same way to my sport.)
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
It isn't.
Not only is it visible, potentially to countless people, but it's in writing, and is essentially indestructible. It's like carving something in stone and then prominently displaying it on the town square. I once saw somebody convicted criminally for an offence, where the Crown relied heavily on the fact that the person admitted to the crime on Facebook. Also, in personal injury suits, there is increasing jurisprudence requiring plaintiffs to produce their Facebook records, and if those records don't mesh with your tearful tale of how lonely and inactive you've been since the accident, guess what happens?
In the employment context, the main lie that Facebook could give up relates to "abuse of sick leave". You've called in sick, faked your best cough, told your boss that you're just going to lie in bed for the day...then your best friend posts and tags a cell phone photo he takes of you when you catch a foul ball at the Jays game, inconveniently incorporating a datestamp into the corner of the image. Or worse, you're on a paid or unpaid leave from work, saying that you can't perform the essential functions of your job because of a disability, and you start posting statuses about how much you're enjoying playing hockey, or golfing, or white water rafting. It's bound to raise eyebrows if anyone at work catches wind of it.
I've seen fact patterns involving a fellow off work with back pain, who ended up in the local paper when he won a golf tournament. Oops. Or another individual who was off work because of a knee injury, but a local paper ran a community interest story about people skating at the local community centre, and he happened to be caught in the photograph they ran. These are fundamentally similar. And the conclusion is usually that the employee is in deep trouble when this happens. Or how about the teacher who, while off on disability leave, took another teaching position with a different school board?
As always, whether or not this sort of thing constitutes just cause for termination is deeply contextual. The fact that somebody is alive when not at work is not, in and of itself, misconduct, and even where there is misconduct, its severity will vary significantly. An employer, getting word that an employee seems to be doing something incongruous with their claimed illness, needs to investigate, but should not immediately jump to conclusions. As I recall, the fellow with the knee trouble ended up getting reinstated because it was concluded that his failure to return to work when he was able was not bad faith - when his doctor gave him a note saying that he needed x days off, he figured he'd go back to work after x days, and didn't realize that he should have returned to work immediately upon becoming able. Another relevant factor is whether the leave is paid or unpaid. Where an employee is on an unpaid disability leave and working for another employer, it's usually just dishonesty. Where the employee is on a paid disability leave and working for another employer, it is usually fraud - the employee is, for all intents and purposes, stealing from the employer (or the disability insurer), which is much more severe.
The two main challenges for an employer are, firstly, that the employer will not always know the nature of the medical condition, and in fact is not entitled to know the nature of the medical condition, and secondly that the employer will occasionally have difficulty establishing that the employee understood their obligations in respect of their sick leave. I've seen arguments made that "The employer didn't contact me to return to work, so I thought I was okay."
So an employer, faced with prima facie evidence that the employee is abusing sick leave, must move cautiously. Surveillance evidence, under these circumstances, has usually been found in Canadian jurisprudence to be admissible, so talk to a lawyer about getting a PI on the case to flesh out the case beyond the strict contents of the facebook status, photo, or other report. Remind the employee of his obligation to report for work if he is able to do so. Conduct an interview with the employee to establish/confirm the specific medical limitations which prevented him from attending work, and ask him what extra-curriculars he engaged in while off work (give him the opportunity to be truthful...or not), and consider getting an independent medical expert to determine whether or not the activities he engaged in were consistent with the medical limitations he described. (The golfer argued that his doctor had suggested golf as a treatment for his back problems. The argument didn't fly in that context, but the underlying principle is sound: Perhaps I have a physical job that a disability prevents me from doing...well, just maybe the kinetics of sport x are not the same, and therefore my limitations on working may not apply in the same way to my sport.)
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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