Employer successfully proves dismissal for cause of long-service employee for false sick leave

January 13, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, HRMS, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits

It can be very difficult to establish cause for dismissal, particularly when the employee has lengthy service with the employer. However, on the right facts, it is possible to do so. MacBurnie v. Halterm Container Terminal Limited Partnership, 2013 NSSC 361, is a recent example of an employer that successfully proved at trial that it had dismissed an employee for cause.

What happened?

MacBurnie was approximately 50 years of age and had 22 years of service with the employer when he was dismissed for cause for repeatedly missing work without advance notice to his employer.

MacBurnie claimed that his absences were caused by chronic back pain that prevented him from leaving his home, but he failed to provide a doctor’s note to justify his absences when requested to do so by his employer on multiple occasions over several months. Further, the employer conducted surveillance on the employee on days when he claimed he was absent from work due to back pain and he was recorded walking outdoors on several occasions without any indication of pain.

The Court found that in four months, MacBurnie missed 16 days of work. On 7 of those occasions, he did not call his employer to warn of his absence. On 8 of the occasions, he called and claimed that he had debilitating back pain. The Court found that MacBurnie repeatedly evaded his employer when it tried to communicate with him.

The Court found that since at least October, 2003, it was a condition of MacBurnie’s employment that he give advance notice of time off. This requirement was imposed due to similar transgressions by the employee at that time. The employee had been clearly warned about this requirement several times, both in writing and in meetings with his employer. The Court concluded that MacBurnie breached the condition multiple times and that this gave the employer cause to terminate his employment.

The Court further held that the employee’s dishonesty about his back pain as evidenced by the surveillance video, which showed that he was not debilitated or confined to his apartment as he claimed to his employer, was cause for dismissal. The Court found that this dishonesty went to the heart of the employment relationship because it related to the employee’s taking of sick leave in circumstances when he was not entitled to do so because he was not sick.

Lessons for employers

This case shows that, in the right circumstances, an employer can establish cause for dismissal. However, it also illustrates the importance of carefully warning the employee and giving them time to improve before taking the serious step of dismissal for cause. The employer in this case warned the employee many times that he had to provide advance notice of his absences and repeatedly requested a doctor’s note. It was only after the employee repeatedly failed to meet the requirements of his employment over a lengthy period of time that the employer dismissed him for cause. Employers would be well advised to be similarly cautious before summarily dismissing an employee.

Alison Bird
Lawyer
Cox & Palmer

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Alison J. Bird

Employment Lawyer at Cox & Palmer

Alison Bird is a lawyer practicing in Halifax with the Atlantic regional law firm, Cox & Palmer. Alison is growing her practice in the areas of labour & employment law and litigation. Alison is a frequent presenter on employment law topics and recently presented on the challenges being faced by employers dealing with changing demographics in the workplace. Read more