Canadian Employment Law Today

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We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. gst #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CustomEr sErViCE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com thomson reuters Canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen Lorimer Publisher: John hobel (on leave) Managing Editor/Acting Publisher: todd humber Editor: Jeffrey r. smith E-mail: Jeffrey.r.smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com how would you handle this case? read the facts and see if the judge agrees YOu maKe tHe CaLL 8 Worker calls in sick too much for employer's taste This insTAlmEnT of You Make the Call features a worker with back pain who was fi red for excessive absenteeism. Timothy MacBurnie, 52, started working at the Halterm container terminal in Halifax as a gatehouse clerk in 1988, later a gatehouse supervisor. Over the years, MacBurnie's volume of work and responsibilities increased, causing him to feel more stress at his job as time went on. He received good performance reviews and didn't take any more sick days than his annual allotment. MacBernie started suff ering from chronic back pain in the early 2000s. Sometimes the pain prevented him from going to work, but he remained within his sick time limit. How- ever, sometimes he didn't call work or off er an explanation for his absences. e operations manager spoke with MacBernie in April 2003 about these ab- sences and followed up with a letter that emphasized the importance of calling in and advising when he was unable to come to work. e terminal only had two people manning the gate, so notice was important to ensure the gate would be staff ed. e letter further stated that MacBernie was expected "to report to work on time and stay at work until the end of the period being worked," contact the operations manager if he was going to be late, and give at least one hour advance notice if he was unable to work due to illness or injury. e letter indicated that failure to follow these guidelines "will not be tolerated and will result in your immediate discharge." MacBurnie took a Friday morning off in October 2003 without giving notice or ask- ing permission. e operations manager gave him a "fi nal last chance written warn- ing" that any further similar misconduct would result "in immediate discharge from the employ of Halterm with just cause." e manager began keeping track of Mac- Burnie's attendance. MacBurnie took fi ve sick days in February and April 2009. On Oct. 8, MacBurnie's second sick day in a row with a bad back, the manager tried calling him twice and left a message. MacBurnie didn't call back, so the manager met with him the next day to explain the diffi culty Halterm faced when he didn't come to work. MacBurnie agreed to provide a doctor's note for this latest absence, but he never did. On Dec. 9, MacBurnie's third straight day off with a bad back, the manager called him several times, leaving several messages say- ing a doctor's note was required. By January 2010, MacBurnie still hadn't provided a doctor's note. On Feb. 18, after MacBurnie called in with a bad back for the second straight day, Halterm hired a private investigator to conduct surveillance on him. MacBurnie called in sick again the next day. at day, the investigator observed and fi lmed MacBurnie walking briskly to a liquor store, carrying a bag big enough for 12 cans of beer, and walk briskly home. e following Monday, Feb. 22, MacBur- nie called in sick again, sounding in extreme pain, and said he was going to the hospital. However, he was fi lmed going for a brisk 20-minute walk without diffi culty before going to the hospital. When MacBurnie ar- rived at the hospital, he moved more slowly with one hand on his lower back. He didn't report back to the manager. e next day, MacBurnie called in to say "I won't be moving today, I know that," but was observed walking briskly to a shopping cen- tre and going to a grocery store, drugstore and restaurant. He then went to the liquor store and carried a large bag home again. MacBurnie didn't work the rest of the week but was observed walking and running er- rands without apparent diffi culty. He failed to call in on two days. e manager organized a meeting and confronted MacBurnie with the surveillance video. ey discussed potential alcohol abuse, but MacBurnie said he never drank before or at work, though he drank "eight to ten beers a night." He was given one more last chance agreement. On May 19, 2010, MacBurnie failed to report to work, call in, or return a message from the operations manager. He later called to say he was stressed out and "not in a good place." His absence stretched to three days in a row without calling in or returning messages and Halterm terminated his em- ployment. you makE thE Call Was termination too harsh for the employee? OR Was there just cause for dismissal? iF You sAiD there was just cause for dis- missal, you're right. e court noted that MacBurnie missed 16 days of work in the four months prior to his dismissal, and failed to call in on seven of them. He claimed back pain, but after he was observed acting fi ne, his excuse was being stressed out. Just about every time he was absent, he evaded Hal- term's attempts to communicate with him. e court found that since "at least Oc- tober 2003, it was a condition of Mr. Mac- Burnie's employment that he give 'advance notice for time off .'" He was given written warnings and more than one last chance, so he was aware his job was in jeopardy, said the court. e court also found the surveillance es- tablished MacBurnie's dishonesty about his back pain. "Mr. MacBurnie took sick leave by tell- ing his employer that back pain debilitated him so severely that he was confi ned to his apartment for days at a time. e surveil- lance shows that he was not debilitated or confi ned. is dishonesty goes to the heart of the employment relationship because it concerns taking from the employer what the employee was not entitled to take and be- cause of the need Halterm had for Mr. Mac- Burnie to perform when he was not sick," said the court. See MacBurnie v. Halterm Container Terminal Limited Partnership, 2013 CarswellNS 831 (N.S. S.C.).

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