Can an employer dismiss an employee who lied in a pre-employment medical questionnaire about not having a psychiatric medical history? Yes, provided that the questions the employer asked, though discriminatory in appearance, are directly related to the job the employee was applying for. This is what the Court of Appeal of Québec recently confirmed in Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec v. Centre hospitalier regional de Trois-Rivières (PDF - available in French only).

Facts

In February 2005, an employee applied for a nursing position at the Trois-Rivières regional hospital centre. At the time, he was asked to fill out a pre-employment medical questionnaire in which he confirmed having no psychiatric medical history. He was subsequently hired in March 2005. In October 2006, the employee went off on medical leave. Eventually, the employer discovered that the employee had made several misrepresentations on his pre-employment questionnaire, more specifically about his prior psychiatric issues (suicidal tendencies, alcoholism, gambling addiction, depressed and unstable moods, personality disorder, etc.).

Based on this information that had only recently been brought to its attention, the employer decided to dismiss the employee in December 2006, claiming, among other things, that the employee had made a false declaration during the pre-employment process, that the questions on which the employee had lied were relevant to ensure the efficient and economic performance of the nursing function (a work dysfunction could have a direct impact on the quality of patient care and safety) and that if it had received an accurate and complete response during the pre-employment period, it would have had grounds not to hire the employee.

The union representing the employee filed a grievance to contest the dismissal. The grievance was dismissed by the arbitrator seized of the matter and the decision upheld by the Superior Court of Québec in judicial review. The matter made its way up to the Court of Appeal of Québec.

Decision

The Court of Appeal first noted that the legal principles applicable here are essentially found in sections 18.1 and 20 of the Québec Charter of Human Rights and Freedoms (R.S.Q., C. 12) (the “Charter”). These provide that no one may, in an employment application form or employment interview, require a person to give information regarding any ground of discrimination recognized by the Charter, unless that information can be justified based on the aptitudes or qualifications required for an employment.

The Court of Appeal emphasized that a request for information that is discriminatory in appearance can be justified if it is made for a rational purpose related to the performance of the work in question and is reasonably necessary to achieve this legitimate work-related goal.

Applying these principles to the case at hand, the Court of Appeal confirmed that the information hidden by the employee was reasonably related to the performance of his work as a nurse and therefore, could be asked. In so doing, the Court of Appeal dismissed the union’s argument that as of the moment certain questions are based on discriminatory grounds (such as disability as the union alleged in this particular case), an employee can no longer be accused of misrepresentation in respect of that information. In other words, according to the Court, candidates cannot, when in doubt, hide information that might be prejudicial to them to later turn around and invoke, if that subterfuge is eventually revealed, the potentially discriminatory nature of some of the questions asked.

As for the employer’s duty to accommodate, the court specified that such a duty was never triggered given the employee’s misrepresentation.

Lessons for employers

The Court of Appeal of Québec has just reiterated the employers’ right to ask questions in pre-employment interviews designed to obtain information on any of the discriminatory grounds recognized by the Charter if that information is rationally connected to the nature of the position. Still, employers should remain cautious. Instances of misrepresentation must be dealt with on a case by case basis, and employers will have to demonstrate that this information was reasonably necessary and justified in light of the aptitudes and qualifications required by the employment.

This right to obtain truthful responses to questions asked does not, however, absolve employers from their duty to accommodate. If employees respond honestly to the questions asked, employers must conduct the appropriate analysis to determine whether a reasonable accommodation is possible or raises undue hardship.