Surveillance effective in proving cause for dismissal

Employee called in saying back injury prevented him from working, but employer surveillance revealed employee’s dishonesty

The Nova Scotia Supreme Court has upheld a for-cause termination based on the employee’s breach of a condition of employment regarding providing notice of absences and dishonest misrepresentation of the reason for the absences.

Tim MacBurnie worked in gatehouse operations at the Halterm container terminal in Halifax. In four months he missed 16 days of work, of which seven of those days he did not provide notification of his impending absence. Debilitating back pain was provided as the reason for eight absences.

In the past, the employer had presented a “last chance agreement” to “give the employee an opportunity to continue his employment.” MacBurnie was requested to obtain a medical note for his absence and to provide advance notice. As no medical note was produced with no complaint of back pain at work, the employer retained a private investigator.

The court observed in MacBurnie's voice message in the early morning he “sounds like he is in pain to the point of debilitation. He said he is taking pills, he relaxed all weekend, but he only got an hour's sleep at a time. ‘It's brutal.’ The brutal pain radiates from his lower back all the way to his neck. His father is going to take him to the hospital. ‘I'll let you know how I make out.’ ‘It's not good.’”

Surveillance established that “at noon on that day, Mr. MacBurnie left the main entrance of his apartment and went on a 20-minute walk. The video surveillance shows a spry man without evidence of disability. He started out with a visit to the grocery store,” and thereafter “walked briskly. Mr. MacBurnie took the bus out to Dartmouth General Hospital. Never in any of the video captures do we see him slowdown or make any gesture suggesting pain. When he was called from waiting to see a doctor, Mr. MacBurnie walked slowly with one hand at his lower back.”

After a four-hour trip, the surveillance revealed “there were no signs of ‘brutal’ pain radiating from his lower back to his neck. Nor did he report to Mr. Baillie as promised.” Early the following morning, MacBurnie left a voice message indicating that “I won't be moving today. I know that.” Surveillance further determined that early in the afternoon “he left his apartment. He appeared vigorous as he walked to the shopping centre...and patronized a grocery store, a drug store, and a restaurant. With his usual vigor and without showing any pain, he walked to the liquor store…and carried the usual brown bag away towards his home. Mr. MacBurnie failed to call…he is seen in the early afternoon visiting the neighbourhood grocery store and at night making another trip by foot to the liquor store and back home.”

The court found MacBurnie breached his condition of employment that he give “advance notice for time off” and the “deliberate breach of an employer's rule or policy about notice of absence is just cause for terminating the employment contract.” In this case the requirement had become “an explicit condition of his employment as a result of past transgressions.” The court cited McKinley v. BC Tel: “Dishonesty is also another just cause when it gives rise to a breakdown of the employment relationship.” In this case the court determined that “the surveillance establishes the dishonesty.”

Lessons for employers

Employers should remember that courts will uphold terminations for cause without notice for deliberate breaches of their rules or policies especially where the requirements are explicit conditions of employment and where there is dishonesty that gives rise to a breakdown of the employment relationship.

Lessons for employees

Employees should exercise great caution to not breach an employer’s rules or policies as they may be conditions of employment justifying a termination for cause without any notice. As the courts view dishonesty that gives rise to a breakdown of the employment relationship very seriously, deceit even about health may justify a cause termination without notice.

For more information see:

· MacBurnie v. Halterm Container Terminal Limited Partnership, 2013 CarswellNS 831 (N.S. S.C.).

· McKinley v. BC Tel, 2001 CarswellBC 1335 (S.C.C).

Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique located in Markham, Ontario. He can be reached at Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article.

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