Termination found to be OK due to failure to disclose medical history

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A dismissal decision has been upheld by a Québec arbitrator who found that an employer was justified in terminating an employee who had not fully disclosed her medical history at the pre-employment screening stage.

After suffering prolonged post-traumatic stress from assisting a colleague who was involved in a car accident, the former police officer was asked to undergo a psychiatric examination, which found she had a history of depression and a predisposition to fragility.

According to the employer’s medical expert, her resistance to stress was considered unfavourable for policing duties, and the risk of relapse was put at over 50%.

The employer terminated the employment contract on the grounds that, had she provided her comprehensive medical history at the time of hiring, as requested in the pre-employment screening stage, the employer would not have considered her fit to hold a police officer position.

In this case, and aligned with section 1400 of the Civil Code of Québec, the missing and incorrect information prevented the employer from evaluating the applicant’s capacity to carry out the work. It thus prevented the employer from making an enlightened decision with respect to the hiring of the former employee.

The arbitrator further found that the employment contract should never have existed, and wouldn’t have, if it had not been for the omission of vital information.

Because not even a serious disciplinary sanction could have remedied the situation, termination of the contract was the only appropriate option.

Under the relevant labour laws, an administrative dismissal is the equivalent of an annulment of a contract in civil law, where the contract was never validly formed because of a “vitiated consent”.

Indeed, if it is found that an employee is dishonest in any pre-employment statement, the employer may lawfully invoke, together with vitiated consent, a breach of the trust that is required to maintain the employment relationship.

Employers should nonetheless keep in mind that in the context of the hiring process, they cannot require all types of information from the applicants.

The Human Rights Charter of Quebec prohibits employers from asking for discriminatory information related to a handicap, pregnancy, age, religion, etc. However, applicants may be asked to provide such information in certain cases where the information relates to the aptitudes or qualifications required for the employment, according to law firm Stikeman Elliott.


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