This article discusses questioning employees about essential functions when hiring in Canada.
Trust is a fundamental element in the relationship between an employer and an employee. That relationship of trust can be breached in various ways during the course of employment including during the hiring process when an employer questions candidates to determine if they are capable of performing the essential duties of the position they are seeking.
The courts have often been asked to rule about the consequences of misrepresentation by a candidate during the hiring process. In fact, in 2012 the Quebec Court of Appeal in Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Cœur du Québec (SIIIACQ) v. Centre hospitalier régional de Trois-Rivières, 2012 QCCA 1867 (in French only).confirmed that in certain circumstances, termination of employment was justified.
However, in a recent Quebec case, Commission des droits de la personne et des droits de la jeunesse (Paquette) v. 9208-8467 Québec inc. (Résidence Sainte-Anne), 2016 QCTDP 20 (in French only), the Quebec Human Rights Tribunal qualified the employer’s right in such a circumstance and addressed a candidate’s duty to disclose certain information in a pre-employment questionnaire.
The complainant applied for employment as a patient care attendant in a residential facility for the elderly.
For nearly 15 years, the complainant had suffered from multiple sclerosis. The acute episodes associated with that condition occurred from time to time unpredictably and for varying periods of time. The evidence was ambiguous on this point, but it appears that one of the questions the complainant was asked by the employer during the pre-employment interview was: “Do you have any medical and/or physical restrictions that would prevent you from performing certain duties associated with your employment?” The complainant failed to mention her medical condition and was hired the same day.
Less than two weeks after her employment commenced, the symptoms associated with her condition appeared and the complainant was absent from work. The employer was then made aware of the complainant’s condition and gave her several days’ leave while also asking her to provide a medical certificate confirming that she was able to perform the essential duties associated with her position. A few days later, when the employer had not received the required medical certificate, it dismissed the complainant.
At the hearing, the employer argued that the complainant had lied at the pre-employment interview and that this had destroyed the basis of the relationship of trust. Relying on the decision of the Court of Appeal cited above, the employer took the position that its consent was not informed and that the contract was void ab initio. It also stated that had it known about the complainant’s condition, it would have taken steps to satisfy itself that the complainant had the ability to perform her duties.
The complainant argued that nothing had been concealed, since at the time of the pre-employment interview she had no restrictions that would have prevented her from performing her work and at that time she was not experiencing any symptoms associated with multiple sclerosis.
When addressing the allegation that the complainant had lied during her pre-employment interview, the tribunal found that the complainant did not have to declare her condition because (1) she was not incapable at the time she answered the questionnaire and (2) the question asked was not sufficiently specific.
The tribunal also criticized the employer for continuing to employ the complainant after being informed that she had not disclosed the information concerning her condition. In the opinion of the tribunal, if the employer believed that the relationship of trust had been breached and that its consent to the hiring had been vitiated, it should have denounced the contract immediately, which it did not do until several days later. The employer therefore ratified the contract by agreeing to have the complainant continue to work and provide a medical certificate.
In these circumstances, the tribunal awarded the complainant an amount equivalent to one month’s salary and the sum of $7,500 as moral damages. In addition, the two people involved in handling this matter were personally ordered to pay the complainant the sum of $1,500 as punitive damages.
This case is a reminder to employers of the importance of being extremely careful in the course of the hiring process, particularly when it comes to questioning candidates about a medical condition. Many employers will not inquire until after a conditional offer has been extended. This decision out of Quebec highlights the importance of asking a clear question when asking about a candidate’s ability to perform the essential duties of the job.
Best practices include:
- Having a precise questionnaire designed to obtain information that is connected with a requirement rationally related to the performance of the essential duties for which the candidate is applying;
- Have the candidate complete the questionnaire in writing to avoid conflicting testimony;
- In the event that the employer learns that an employee has failed to disclose a medical condition, act immediately and make sure that the employee no longer performs work until a decision is made concerning the employment relationship;
- When a candidate gives honest answers to the questions asked, do an appropriate analysis to determine if reasonable accommodation is possible or would amount to undue hardship with respect to essential duties.
Obviously, each case will turn on its facts, and every situation should be assessed based on its own unique circumstances.
A partner with the firm, Simon Laberge focusses his practice in the Labour, Employment & Human Rights sectors. Simon is active in every area of labour and employment law in connection with collective agreements or individual employment contracts, which includes human rights, labour standards and occupational health and safety matters.