Apr 17

Faking It: Sick Leave

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BBQing

Faking “Sick”? What the Courts Have to Say in Regards to Employer Investigation

Last week’s Monkhouse Law blog post focused on employer rights in terms of electronic privacy. This week we are looking at a slightly less common but still prevalent issue: faking sick to get time off work, and in particular, whether an employer has the right to “call out” an employee for faking a reported illness.

Can Your Employer Investigate the Legitimacy of your Leave?

The general rule is that your employer can require proof of your illness in the form of a doctor’s note. But how far is too far? Many companies will use alternative measures (i.e private investigator) to survey the individual to ensure the leave is legitimate (typically used in longer leaves i.e disability)

Telus Communications Inc. v. Telecom Workers’ Union [2013] A.J. No.681

The problem with employer scrutiny of “sick” employees is that it effectively opens a can of worms in terms of what is considered proof that the reason for the time off is illegitimate. For example, if an employee does call in sick, can they be penalized for leaving their home should they feel better?

This question was answered in the case of Telus Communications, where Jarrod Underwood, a technician at Telus, wasn’t feeling well and called in sick. Several hours after calling in sick, Underwood headed to the local ballpark to play slo-pitch. His Supervisor at the time also happened to be at the ballpark and recognized Underwood. The Supervisor reported this incident to management. Telus conducted an investigation and subsequently terminated Underwood on the grounds that he had “irreparably destroyed Telus’ trust in him as an employee.” Telus cited Underwood’s lies in the investigation process as well as his previous suspension (Underwood had been suspended in 2008 for drinking beer in a company vehicle at the end of his shift) as what led to the destruction of this trust.

When the matter proceeded to arbitration, it was found that Telus did not have sufficient evidence. Underwood testified that he was indeed sick that morning however he decided to visit the ballpark as some of his teammates were playing and he was feeling better. Underwood had lied to the investigators about playing in the tournament, however the arbitrator did not find this deceit as cause for termination. The arbitrator supported the belief that Underwood, as a five year employee who had showed remorse for his lie, would not offend again and that termination was too harsh a punishment. They also found that the 2008 suspension was not proximate enough nor related enough to contribute to cause for termination. The arbitrator ordered that Underwood be reinstated.

Although this is in the Unionized setting, where employers are held to much higher standards it is representative of the level of protection employees sometimes receive.

Advice to Employers

If you have an employee whom you believe is faking an illness, the appropriate step is to contact the employee and request a doctor’s note. Even if you have proof that an employee has been faking an illness, it is not wise to jump to termination, unless the employee is a frequent offender in this regard.

It is certainly possible to have the employee agree (in writing) to provide higher and higher levels of proof as they take more and more leave.

The courts support the principle that progressive discipline should be considered prior to termination. If you are unsure how to deal with an employee who is faking an illness, or unsure of how to implement policies in this regard, contact an Employment Lawyer today. An Employment Lawyer can assist you in establishing workplace policies which are fair and comply with legal standards.

Advice to Employees

If you have been accused of faking an illness in order to gain time off work and terminated because of such accusations, it is important to know your rights. An employer does not typically have the right to terminate an employee they believe is faking an illness, nor do they have the right to invade an employee’s privacy to prove that illegitimacy.

But, it is a serious issue for which you need ongoing legal advice.

Contact Monkhouse Law for a free consultation today to see what legal remedies may be available to you.