Canadian HR Reporter

November 2021 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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Page 56 of 59 57 C O L U M N S E M P L O Y M E N T L AW WORKER FIRED FOR FAKE INJURY BEFORE VACATION Saskatchewan court has upheld the firing of a worker who faked an injury so he could extend his vacation. Mark Abdon, 39, was a welder for Brandt Industries, a manufacturer and retailer of agri- cultural equipment. Brandt hired Abdon in 2012 at its Regina facility. He received three weeks of vacation per year, which accrued as he worked. The Regina facility had production quotas and a streamlined manufacturing process. Absences had to be managed carefully to avoid slowing down production and falling behind on the quota. Abdon had some unauthorized absences in 2014 and 2015, which led to verbal warnings and a written warning. The written warning emphasized that a failure to improve his atten- dance would lead to further discipline and possibly termination. In March 2019, Abdon booked flights to his native Philippines, leaving on Jan. 15, 2020, and returning on Feb. 6, although Brandt had sent a memo to employees clarifying that employees should get their leave approved before making definite plans, as business requirements meant vacation requests could be denied. Later in 2019, Brandt allowed him to use some 2020 vacation time in advance for a different trip. In the fall of 2019, Abdon asked for more 2020 vacation time in advance for his January trip, but he was denied twice. His vacation balance wasn't enough to include the dates of his departure and return flights. In December, Abdon filled out a holiday request form asking if he could use six 2020 vacation days in advance so he could take the flights he had already booked. The facility supervisor said he couldn't accommodate the request. Abdon tried to get approval from a senior manager, but he was unsuccessful, and Abdon was told to show up as scheduled on Jan. 15 or resign. Abdon reported for his shift on Jan. 14, but late in the shift he went home because of back pain. He left a medical certificate from his doctor saying that he wasn't fit for work from Jan. 15 to Jan. 20, although he hadn't mentioned anything at the tool-box meeting at the start of the shift. As it turned out, his exam- ination was normal, but the doctor wrote the note at Abdon's request based on his complaint of back pain. The supervisor was suspicious, particularly after another employee showed him Facebook pictures of Abdon at the airport with a back- pack over his shoulder. Brandt tried to reach Abdon by phone and sent him an email on Jan. 16 with short-term disability forms attached. The email said that based on the information Abdon had provided, the company expected him to return on Jan. 22. Abdon didn't reply until Feb. 4, when he emailed a doctor's report from the Philippines diagnosing him with sciatica. During the three- week absence, the supervisor saw other Facebook photographs depicting Abdon in the Philippines carrying his wife and horseback riding. Brandt terminated Abdon's employment when he returned to work on Feb. 6. The termi- nation letter stated that he had been "missing from work without applying for our medical short-term disability program as instructed to do so many times" and that he had breached company policy. The court found that the evidence showed Abdon feigned an injury in an attempt to get Brandt to excuse his absences on the days of his flights. The timing of the injury was suspi- cious, Abdon tried several times to get the extra time off, his regular doctor didn't detect any injury, and he didn't mention the injury at the tool-box meeting on the day he went home — the day before his departure flight. In addi- tion, Facebook photos showed Abdon doing activities that a sciatica injury should prevent him from doing. The court also found that Abdon didn't fill out the disability forms because he knew he would be coming back to work in good health after his trip. The court noted that Abdon had previ- ously received verbal warnings and a written warning about his attendance, and it was clear that a further instance could result in termina- tion. Despite this, Abdon "challenged Brandt's direction to work on the days in question, took unauthorized leave and, rather than just rolling the dice and hoping for some form of progres- sive discipline, he methodically and deceitfully attempted to utilize the medical profession to further his decision to depart from Brandt's lawful direction," the court said in upholding the termination. See Abdon v. Brandt Industries Canada Ltd., 2021 SKPC 37. CHRR When a Saskatchewan worker was unsuccessful in getting extra time off, he claimed that he was injured. Despite two doctor's notes, the employer had just cause to fire the worker for breaching its attendance policy, writes Jeffrey R. Smith PAID VACATION DAYS IN OECD NATIONS Jeffrey Smith Editor of Canadian Employment Law Today Source: Centre for Economic and Policy Research The worker went home early with a back injury the day before his departure flight and the supervisor saw a photo of him at the airport the next day. A 30 France 28 United Kingdom 20 Australia 10 Canada 0 United States

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