Employee called in sick with different issue after surveillance
This instalment of You Make the Call features a worker with back pain who was fired 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 suffering 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. However, sometimes he didn’t call work or offer an explanation for his absences.
The operations manager spoke with MacBernie in April 2003 about these absences and followed up with a letter that emphasized the importance of calling in and advising when he was unable to come to work. The terminal only had two people manning the gate, so notice was important to ensure the gate would be staffed.
The 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. The 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 asking permission. The operations manager gave him a “final last chance written warning” that any further similar misconduct would result “in immediate discharge from the employ of Halterm with just cause.”
The manager began keeping track of MacBurnie’s attendance. MacBurnie took five 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 difficulty 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 saying 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. That day, the investigator observed and filmed MacBurnie walking briskly to a liquor store, carrying a bag big enough for 12 cans of beer, and walk briskly home.
The following Monday, Feb. 22, MacBurnie called in sick again, sounding in extreme pain, and said he was going to the hospital. However, he was filmed going for a brisk 20-minute walk without difficulty before going to the hospital. When MacBurnie arrived at the hospital, he moved more slowly with one hand on his lower back. He didn’t report back to the manager.
The next day, MacBurnie called in to say “I won’t be moving today, I know that,” but was observed walking briskly to a shopping centre 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 errands without apparent difficulty. He failed to call in on two days.
The manager organized a meeting and confronted MacBurnie with the surveillance video. They 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 employment.
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 dismissal, you’re right. The 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 fine, his excuse was being stressed out. Just about every time he was absent, he evaded Halterm’s attempts to communicate with him.
The court found that since “at least October 2003, it was a condition of Mr. MacBurnie’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.
The court also found the surveillance established MacBurnie’s dishonesty about his back pain.
