Employers often use a pre-employment questionnaire to obtain a variety of information about the health status of job applicants. When an applicant who is hired is found to have lied on such a questionnaire, can the employer discipline or even dismiss him?
In Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Cœur-du-Québec (SIIIACQ) c. Centre hospitalier de Trois-Rivières,1 the Quebec Court of Appeal upheld the decision of a grievance arbitrator who had maintained the dismissal of a nursing assistant for lying about his psychiatric history on a pre-employment medical questionnaire.
Overview of the facts
The grievant had applied for a position as a nursing assistant in a hospital. Following an initial interview, he was asked to complete a pre-employment questionnaire which included some sixty medical questions. His answers included a statement that he had never received treatment for depression, adjustment disorder, bipolar affective disorder or any other mental health problem.
His application was successful and the grievant began working for the employer. He completed his probationary period successfully and was absent from work only once for minor surgery. However, around a year and a half after his hiring date, the grievant was off work owing to illness, at which time the employer discovered that he had made a number of false statements in his answers to the pre-employment medical questionnaire.
A medical assessment carried out at the employer’s request confirmed that the grievant had a history of mental illness, had attempted suicide several times and had had to be hospitalized in a psychiatric unit on several occasions. A subsequent analysis of the grievant’s medical history revealed that he had been suffering from adjustment disorder with depressed mood requiring medication going back well before his hiring. The physician designated by the employer concluded that the grievant had not been “medically stable” when he was hired and that he would continue to present a high absenteeism risk.
In light of this information, the employer dismissed the grievant on the basis that he had made a false statement at the time of hiring and that he would not have been hired if a full and truthful answer had been given at the time. The union challenged the dismissal, arguing, among other things, that the pre-employment medical questionnaire was an infringement of the grievant’s fundamental rights.
The decisions below
The arbitrator found that the hospital had the right to put relevant questions to a candidate at the pre-employment stage and that the latter was required to give frank and truthful answers, as candidates were protected from discrimination by the Charter of human rights and freedoms (Charter). The arbitrator accepted the employer’s argument that the employee had made a false statement regarding pertinent facts that were directly related to his employment and its related responsibilities. As the employer had been misled with respect to an essential element of the employment contract, namely, the grievant’s ability to perform his duties, the arbitrator concluded that the employer’s consent had been vitiated by the false statement and that the employment contract could thus be annulled.
On judicial review, the judge of first instance maintained the dismissal on the basis that consent had been vitiated. He went on to affirm that the grievant had not been a victim of discrimination as the employer had not been aware that he was suffering from a handicap. The judge also found that there was a direct relationship between the questions asked on the pre-employment medical questionnaire and the grievant’s ability to work as a nursing assistant, as required by sections 18.1 and 20 of the Charter.
The union appealed the decision, submitting that the judge had erred in maintaining the dismissal and that the grievant’s fundamental rights, including the rights to equality and privacy, were infringed by allowing the employer to ask for personal information about health status on the questionnaire.
The Court of Appeal’s decision
After summarizing the positions of the union and the employer, the Court of Appeal began by outlining the rules applicable in matters of discrimination, but noted that the debate in this matter centred around a different question, namely, the legality of collecting information from individuals applying for a job. Two main issues needed to be considered.
First, the Court of Appeal examined the validity of a consent obtained as a result of an applicant failing to tell the truth. To begin with, the provisions of the Civil Code of Québec required the applicant to act in good faith. The Court went on to affirm that an employer was entitled, on hiring an employee, to collect information allowing it to verify that the person had the qualifications needed to safely perform the duties that would be assigned to him. In that context, if at the pre-employment stage, a job applicant made false statements which bore on his ability to work, the contract of employment subsequently entered into between the parties could be set aside on the grounds that the employer’s consent had been vitiated.
The Court then reiterated the principles emerging from the arbitral decisions on the question. Grievance arbitrators had often considered lies and omissions by an applicant on a pre-employment questionnaire to equate with a lack of transparency which sufficed to shatter the relationship of trust between the applicant and the future employer. They had further affirmed that a dismissal could be maintained where there was a relationship between the false statement and the employee’s duties; where the employer was able to establish that it would not have hired the employee had it known the truth or demonstrate that the false statement was deliberate. One of these criteria alone usually sufficed to justify the dismissal.
Going on with its analysis, the Court of Appeal stressed that the employer’s right to collect information from a job applicant should not infringe the applicant’s basic rights. Requiring someone, on an employment application form, to give information that related to a prohibited ground of discrimination, unless there was a relationship with the aptitudes and qualifications required for the job applied for, was explicitly prohibited by section 18.1 of the Charter. Likewise, privacy legislation and the Civil Code of Québec provided that only the information necessary or relevant for purposes of establishing a file could be collected. Therefore, where a questionnaire sought information that bore specifically on a prohibited ground of discrimination, the employer had to be able to show that the information collected was required for a purpose which was rationally connected to the performance of the work concerned and was reasonably necessary to achieve that legitimate work-related purpose.
In this case, the union had shown that there was a direct relationship between the questionnaire and a prohibited ground of discrimination, namely, handicap. Moreover, the questionnaire seemed to have been designed to obtain medical information that was not related exclusively to the aptitudes and qualifications needed to work as a nursing assistant. Be that as it may, the employer could nevertheless counter that the grievant had made false statements about certain information which it was entitled to know in order to make an enlightened hiring decision. It was not permissible for the grievant to conceal information which he feared might work against him on the grounds that decisions which the employer might go on to take could potentially be discriminatory.
In the end, a false statement would not have been determinative if it had related to something the employer was not entitled to consider, based on the Charter, or to something insignificant which did not have the potential to vitiate the employer’s consent. Holding that the arbitrator’s decision had been reasonable, the Court of Appeal dismissed the appeal.
This decision by the Court of Appeal is especially noteworthy in that it affirms the right of an employer to dismiss an employee who made false statements on a pre-employment medical questionnaire where the legality of the questionnaire might have been subject to question. It goes without saying that the Court of Appeal highlighted the fact that the false statements made when applying for the job pertained directly to information that was related to the job and the duties entrusted to the employee and was reasonably necessary to allow the employer to assess his job-related aptitudes and qualifications.