Active While on Medical Leave From Work

Employees owe their employer a duty of honesty. Dishonesty toward the employer has been described as a duty that is fundamentally incompatible with an employee’s continued employment, and it is on this basis that courts often find that employees who have breached their duty of honesty toward their employer can be terminated without notice or pay-in-lieu thereof. But proving dishonesty is not an easy task, and employers would be prudent not to allege dishonesty where the evidence is less than compelling.

The employer in Evans v. Sobeys Capital Inc. learned this lesson. In this case, the employee’s job involved heavy lifting. The employee injured his back, and, on the advice of his doctor, took time off from work. After noticing some improvement in his level of pain, the employee asked his doctor for permission to go to his cabin in the woods. His doctor approved his trip to the cabin. The employee also told his employer that he would be going to the cabin. Upon advising his employer of his trip, the employee was suspended from work.

The employer in Evans v. Sobeys Capital Inc. learned this lesson. In this case, the employee’s job involved heavy lifting. The employee injured his back, and, on the advice of his doctor, took time off from work. After noticing some improvement in his level of pain, the employee asked his doctor for permission to go to his cabin in the woods. His doctor approved his trip to the cabin. The employee also told his employer that he would be going to the cabin. Upon advising his employer of his trip, the employee was suspended from work.

The employer eventually terminated the employee’s employment. It refused to pay the employee any pay-in-lieu of notice, arguing that the employee fraudulently abused the company’s medical disability plan. The trial judge, and the Court of Appeal, disagreed with the employer’s conclusion. Of critical importance in both the trial judge’s and the Court of Appeal’s decision were the facts that the employee did not attempt to hide his activities, and that the trip to the cabin was not inconsistent with an inability to perform a job which involved heavy lifting.