An Employee Calls in Sick, and you Suspect it’s a Lie: What can you do about it?
Imagine the following scenario:
You are team leader and it’s the first day of a long weekend. Your team is scheduled to cover all the shifts over the next three days. The sun is shining. The weather is warm. You’re about to have a wonderful holiday with your family - but then, your phone rings.
“Sorry boss, I can’t come in to work today, I’m sick,” says one of your employees who has a history of calling in sick on weekends or holidays.
When employees are calling in sick, and you suspect they’re faking, but can’t prove it
This is an all-too-familiar experience for business owners, managers, and supervisors everywhere.
Many business owners share the experience of allocating time, resources, energy, and funds to move ahead with a big project, but, on the day the project is to begin, a key team member not only calls in sick, but they send you a doctor’s note advising that they are recommended to be off work for the next 6 weeks. Instead of focusing on the new project, valuable resources are instead exhausted contacting your Short Term Disability (STD) insurer, consulting with counsel, and looking for a replacement for the sick staff member.
What can you legally do about employees abusing sick leave?
Employees rights are well protected against abuse by employers, but what about employers’ rights? How can you protect your own interests, and the collective interests of the organization when employees are abusing sick days, STD, and LTD? How can you discipline an employee who is off work while sick or on disability?
The answer is simple - you need proof of a fraudulent sick/disability claim or you need excess funds for a severance payout with a future potential for litigation by the employee - and we know you prefer the former to the latter!
The Employment Standards Act of Ontario is very clear about grounds for termination of employment. Even when reasonable grounds exist, case law has indicated there is still a significant onus on the employer to take all reasonable precautions to treat the employee in a manner proportionate to the employee’s “error in judgement.”
In other words, you can’t always simply terminate an employee with cause because the employee lied about being sick.
What does Ontario Case Law say about employees faking being sick?
In Sinnathamby v. The Chesterfield Shop Limited, 2016 ONSC 6966, the plaintiff, Suchethea Sinnathamby, was an employee of the defendant, The Chesterfield Shop Limited.
Then, one day, she called in sick.
She had been with the company for 14 years. The company had issues in the past with a poor record of attendance, but only had one written warning on her file. When she called in sick, the manager reminded her of company policy to provide a medical note as a record of illness. Sinnathamby did not provide one, and this breach of policy was followed by the company terminating her employment for just cause.
However, she sued, claiming wrongful dismissal. She did not even attempt to seek out another job in the approximately 15 months that it took to resolve her claim and complete the legal process. The court found that there was lack of medical evidence to show that she was medically unable to seek employment elsewhere.
Unfortunately for the employer, the court found that in Sinnathamby’s case, skipping work and lying about being sick for a few days wasn’t sufficient to justify termination of her employment, especially considering she had been with the company for 14 years and only 1 written record was on file. The Court stated, “Depending upon the circumstances, alternatives to summary dismissal without notice (such as demotion or docking pay) must be considered by the employer before terminating an employee for cause.”
The court then awarded her 6 months worth of termination pay.
So what is an employer to do about fake sick calls?
Keep excellent written records. Discipline employees empathetically and fairly with gently yet professionally-written letters and emails. Show kindness and effort to accommodate, yet remain firm with enforcing company policy. Create records showing the care taken to consider each employee’s unique circumstances, yet make sure not to treat some employees harshly while treating some with plenty of wiggle room - this can come back as favouritism.
If you do take action to terminate, or even discipline an employee, you will need the ability to demonstrate that the employee’s misconduct is so egregious, that the fundamental terms of the employment relationship have been severely violated beyond the point of repair. An excellent case to learn from is McKinley v. BC Tel, 2001, SCC 38.
In addition, employers must strike a fair balance between the employee’s misconduct and the employer’s imposed consequences. As a result of the ruling in Dowling v. Ontario Workplace Safety and Insurance Board, 2004, the Ontario Court of Appeal held that employers must use a three step analysis. First, employers must determine the nature and extent of the employee misconduct. Then, the circumstances surrounding the misconduct must be considered. Lastly, employers must decide whether dismissal is warranted.
“Hah! I lied to my boss about being sick! Oops, I forgot to hang up! ***click***”
In another gem of Ontario case law, Ineos Nova Ltd. terminated the employment of Tony Vandescheur (Re Ineos Nova Ltd. v. CEP, Local 914 (Vandescheur) (2010) 193 L.A.C. (4th) 241 (Sheehan). Tony called his employer and left a message that he was sick and wouldn’t be attending work. Unbeknownst to Tony, he forgot to hang up! His cellphone continued as he talked with his neighbour, in which he openly said he was lying about being sick. Although Mr. Vandescheur had a good record of service, and the overall cost to the employer was relatively low, the Arbiter found that the loss of trust was significant enough for termination with just cause.
But what if the employer wasn’t lucky enough to catch that slip up on audio? The employer would need to “eat it” and suck up the damages, working hard to fill shifts, demotivating other employees, and lowering morale, not to mention increasing the chances that other employees would say “if he can do it, then I can too,” creating a whole culture of “calling in sick.”
Private investigators conducting covert workplace surveillance can observe employees, on high resolution video, during the times they are supposed to be sick or on disability. Their actions, compared with their words, can be that very “significant loss of trust” employers require to terminate.
“I lied about being sick - and went to Vegas!”
What happens in Vegas doesn’t always stay there!
In the case of Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2014, Mr. Pranav Bedi was a bus driver for the TTC (Toronto Transit Commission). For whatever reason, he decided to “call in sick” three days in a row - but someone at the TTC happened to check Pranav’s Facebook account! Again, for whatever reason, he had decided to post a number of pictures of himself in Las Vegas during his brother’s bachelor party! In one post, he wrote “Vegas tonight! Can’t wait! Brother’s bachelor party is gonna be fun!”
The Arbitrator found Bedi planned his vacation in advance, leading to a decision that his misconduct was not trivial, and in fact was so damaging to employee/employer relationship that a termination of employment was warranted.
But what if you don’t have access to your employee’s social media accounts? What if those Facebook posts never surfaced?
When the stakes are high - consider a professional private investigator for 3rd party, impartial evidence and reporting
Why go through all this extra trouble to walk on eggshells and play the game with dishonest employees? Why allocate so much time and energy to such matters when your time is better used growing your business?
If you think you have a dishonest employee on your hands, get the evidence you need to resolve the matter face-to-face, respectfully, and professionally, confronting the employee with the truth. Leadership has a responsibility to swiftly, fairly, and seriously impose consequences on dishonesty and unethical behaviour in the workplace. If they do not, it will only get worse.
If you are facing regular “sick leave” calls, or extended medical leaves due to what you think are fraudulent circumstances, see our additional resources and our corporate private investigation services.