Too sick to work but not too sick to play

All employees get sick occasionally but employers can take steps to deal with excessive or illegitimate absences

Everyone gets sick sometime and it’s inevitable employees will need to take sick days when they’re feeling under the weather. Sometimes disability leave is required if the illness is particularly serious.

It’s also inevitable sometimes an employee will take a sick day when they aren’t really that sick but either just don’t want to come to work or want to do something else. These sick days happen but when they become frequent, productivity can suffer. An employee who misses a lot of work is a problem for an employer and it’s especially frustrating if those absences aren’t legitimate.

The best way for an employer to protect itself from too many illegitimate sick days is to have a clear policy which outlines a procedure for calling in sick. Making it clear frequent and lengthly absences require proof will help the employer guard against absenteeism and give it clear grounds for dismissal if its policies aren’t followed. If policies are communicated clearly to employees, an employer should find itself in a safe position should the need for discipline or dismissal arise.

It happens all the time. Students claim they’re too sick to go to school when, in fact, they’re perfectly healthy and just want a day off. However, in most cases, it’s not a repetitive behaviour and habitual skippers are usually caught by teachers or parents, resulting in punishment for the dishonest behaviour.

Similar to schools, employers often need to address the issue of employees claiming to be too sick to work when, in reality, they are well enough to do all sorts of other things. The occasional isolated absence is generally not regarded as sufficiently serious misconduct to justify termination for cause.

In fact, absences based on illness in general are not considered grounds for termination for cause. When an employee has been absent from work as a result of illness, there may be a duty placed upon the employer to accommodate. If the employee requires it, then the Ontario Human Rights Code necessitates the employee be accommodated. It is particularly important for the employer to understand whether or not it has a duty to accommodate and communicate with the employee in order to do so. Likewise, an employee, if requested, must submit appropriate documentation advising the employer of a medical condition requiring time off. The employer is justified in requesting this, given it has the right to be able to run the business efficiently and cannot do so until it knows the situation. An employer may not request, however, to know what the condition is or the details surrounding it. The employer only has the right to know of any limitations which the employee may have and what needs to be done in order to accommodate. In certain cases, a permanent illness may render the employment contract frustrated. Frustration of contract means through neither the fault of the employer or the employee, the duties the employee was hired to perform have become impossible to fulfil and therefore the contract is frustrated. This should not be asserted lightly and should never be taken as cause for dismissal of the employee. Employers must consider not only the common law but human rights legislation and disability insurance. Any wrong step and courts will be quick to rescue the injured party.

But what happens in cases in where the employee has failed to follow known and reasonable employer policies? Can an employer terminate for just cause? The case of Deakin v. Northern Telecom Canada Ltd. sheds some light on this important matter.

In Deakin, Shelley Deakin had been warned on several occasions about absences from work. On the last occasion, the employee had been absent allegedly as a result of the flu. However, the employer had a clear written policy whereby if the employee was absent, she would have to notify the office. The employee failed to do so and, in fact, was absent for several weeks without anyone knowing where she was.

The employee later advised she had provided a medical note to her mother but it was never delivered or received by the employer. She had previously told her employer she would be home recuperating. However, several calls were made to the employee’s home but were never returned. Consequently, the employer terminated Deakin’s employment for wilful disobedience of the company policy amounting to just cause. The termination letter was delivered to her home but she never contacted the office.

The Alberta Court of Queen’s Bench found despite the fact the employee had an illness, her failure to follow known and reasonable employer policies provided the employer with just cause to dismiss her. It was known to the employee she had a duty to report in regarding any absenteeism, to provide medical documentation and to keep the employer informed.

In the case of Simoes v. Metaldyne Machining & Assembly Manufacturing Co. (Metaldyne), the Ontario Superior Court of Justice also found the employee had failed to follow the employer’s direction.

In Simoes, Al Simoes had taken short-term disability leave due to inner ear problems. He returned to work, but then went on disability leave again for the same problem. While on the second leave, unbeknownst to the employer, he travelled to Portugal to attend to his father, who was extremely ill. When the employer discovered this, Simoes was ordered to return home and attend to his medical treatments. The employee refused and was terminated for abandoning his employment.

The Ontario Court of Appeal agreed the employer had just cause for termination, as Simoes’ refusal to return to Canada immediately to resume ­medical treatment was considered unreasonable under the circumstances.

Employers are best advised to have written policies in place in order to ensure that the employees know and understand what the procedures are in case of illness. It’s especially important to advise the employee he will be required to supply sufficient medical documentation for review.

For more information see:

Deakin v. Northern Telecom Canada Ltd., 1992 CarswellAlta 633 (Alta. Q.B.).
Simoes v. Metaldyne Machining & Assembly Manufacturing Co. (Metaldyne), 2006 CarswellOnt 8163 (Ont. S.C.J.).
Newfoundland & Labrador v. Critch, 2007 CarswellNfld 84 (N.L. C.A.).

Natalie C. MacDonald is a partner with Grosman, Grosman and Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected]

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