January 07, 2014

Termination of Long-Term Employee Upheld When Employee Failed to Work When Able

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In MacBurnie v. Halterm Container Terminal Limited Partnership, 2013 NSSC 361 (November 8, 2013), just cause for termination was found by the Nova Scotia Supreme Court in a case involving an employee of 22 years.

The Plaintiff, Mr. MacBurnie, was entitled to take 12 days of sick leave with pay per year and never took more than was allotted to him. He was considered to be a good worker and was well-liked in the workplace. His repeated failure to notify his employer of his absences and his deceit in relation to why the absences were required, however, resulted in the loss of his job.

Between August 2002 and April 2003, Mr. MacBurnie did not notify his employer that he would be absent on three of five missed worked days, and for four additional partial days. The employer spoke to Mr. MacBurnie twice about his absences without notice, and followed up with a letter in April 2003 indicating that advising the employer that he would not be at work was a necessity so that alternative staff arrangements could be made. The letter warned: “Further evidence of lateness, failure to report to work as scheduled, lack of advance notice for time off and time off without permission will not be tolerated and will result in your immediate discharge from the employ of Halterm with just cause.”

Mr. MacBurnie took a morning off in October 2003 without providing notice or seeking permission. The employer rebuked him and followed up with a letter indicating they would give him one final chance, without prejudice.

There were no further instances of failure to notify of absences recorded until October 17, 2006, when Mr. MacBurnie again missed a day without notifying the employer. There were then no reported incidents of failure to notify for the next three years.

Although he had provided the employer with advance notice, the employer met with Mr. MacBurnie in October of 2009 after he had been off work due to sickness for two consecutive days. Mr. MacBurnie attributed his absences to chronic pain in his back and the employer requested a medical note. Mr. MacBurnie agreed to provide one, but such a note was never received by the employer.

In December 2009, Mr. MacBurnie was off due to sickness for three consecutive days. He provided advance notice of his absences, but he did not return at least two voicemail messages left for him by his employer during that absence requesting a return call and a medical note to support the absence. Upon returning to work, the employer met with him. At that meeting Mr. MacBurnie had no excuse for not returning the calls, but he apologized and said that he would provide a medical note. Mr. MacBurnie denied having any other problems other than chronic back pain. No medical note was ever provided.

After four days of absence in early 2010, the employer retained a private investigator to conduct surveillance on Mr. MacBurnie because of suspicion arising from a lack of complaints from Mr. MacBurnie and a lack of visual cues indicating back pain while he was at work. Mr. MacBurnie left his employer a message on February 19 to notify that he would be absent because of his back and in that phone call his voice was pained and he indicated that he even had to crawl to the bathroom. The employer called and left a message on his phone, but that call was not returned. On that day, surveillance showed Mr. MacBurnie briskly walking to the liquor store and then back home again with a brown bag large enough to hold a dozen cans of beer. On the next work day, which was a Monday, Mr. MacBurnie again left his employer a message indicating that he was having “brutal” pain. Surveillance showed him taking a twenty-minute walk and then taking the bus to the hospital with no evidence of any disability. When Mr. MacBurnie’s name was called at the hospital, however, he walked slowly with a hand on his lower back. He then took a four-hour bus ride home during which he showed no signs of disability. Mr. MacBurnie again called in sick the following day, but surveillance showed him walking vigorously to a shopping centre, grocery store, drugstore, and restaurant with no signs of pain. He did not attend work the following day and did not notify his employer that he would not be in attendance. Surveillance showed him at the grocery store and walking to and from the liquor store. Later that week, he failed to notify his employer of a one-day absence.

Mr. MacBurnie failed to notify his employer of his absences again on March 1 and 2, 2010. A meeting was called and Mr. MacBurnie was confronted with the surveillance evidence. A last chance agreement was given to Mr. MacBurnie. He was given time off work to consult a lawyer before signing, but by May 19, 2010, it had still not been signed. On that date, Mr. MacBurnie did not attend at work; he did not notify his employer of his absence; and he did not return a message left by his employer. He called the next day and left a message notifying his employer of his absence, but again did not return a call from his employer. On the third day, he was absent without notifying his employer and he failed to return his employer’s messages. In the employer’s last message to Mr. MacBurnie that day, he was informed that his employment was terminated.

Mr. MacBurnie commenced a claim against his former employer alleging wrongful dismissal. Justice Moir found that there was just cause for termination for two reasons: (1) Mr. MacBurnie deliberately breached a known condition of his employment to give notice of time off; and (2) he dishonestly misrepresented the reason for the absences, taking from the employer leave to which he was not entitled. Dishonesty has been deemed by Courts to constitute just cause when it gives rise to a breakdown of the employment relationship, and in the circumstances of this case, Justice Moir found that Mr. MacBurnie’s deceit went to the heart of the employment relationship.

The Court found that the employer did not waive its right to terminate because it had maintained that there was just cause, while it sought to mend the relationship. The action was dismissed.

For a PDF copy of the decision, click here.

For more information, please contact Terri Higdon at coxandpalmer.com.

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