What will arrive first; the employee with their doctor's
note or the employer with the discharge letter?
Most employers have come to view sick leave notes as a farce.
Yet, when I suggest an employer client provide an employee with a
warning letter, I am increasingly met with reluctance. Clients
express concern the employee will rush to the nearest clinic in an
attempt to save their job. Even union representatives seldom treat
doctors' notes seriously.
I sometimes joke, but only slightly, that, if given a few hours,
I could find a doctor to certify I am pregnant. There are enough
doctors sufficiently patient-friendly that they certify illness
with little examination or question. In the case of clinic doctors,
it may be the first time they have attended to the patient.
It is not that these doctors are necessarily lazy or dishonest;
most lack sufficient expertise to diagnose, a psychiatric
disability for example, and with a quick Internet search, employees
can easily ascertain what symptoms to lay claim to.
But is this all a legal illusion? Will a medical note salvage an
Crystal Parent was a good employee until she had a very ill son;
so ill he had to be taken to hospital as often as five times a
week. Spielo Manufacturing accommodated her, providing more
flexibility than any other employee received, while making it clear
she would still have to meet its performance standards.
Within a few months, Parent's performance was slipping and
she was placed on a performance improvement plan. When her
performance did not improve, she was warned in two successive
evaluations that she was at risk of dismissal. Before receiving her
last evaluation, she handed in a doctor's note, stating she had
to take six weeks off for surgery.
When Parent returned to work, she was handed her evaluation
and fired for poor performance and her inability to improve.
In court, she argued that her performance was not the real
reason for her discharge, but that Spielo wished to avoid the
burden of her and her son's health issues.
Justice Jean-Paul Ouellette of the New Brunswick Queens Bench
disagreed. "It was put in writing what was expected of her,
what [Spielo] required and the instructions to enable her to meet
the standards," he said, in finding that she was fired
It was irrelevant that she was fired on her return from sick
leave. In fact, the court found she had deliberately delayed
receiving her performance evaluation before going on sick
Firing an employee either when they announce they are ill or
pregnant or when they return from leave can be a legal quagmire.
However, if the evidence is clear the decision to dismiss preceded
the employee's announcement, employers will succeed. Although
the practical (and before a human rights commission, legal) onus is
much higher, employers with good cause cases should not be too
apprehensive of a sick leave claim, particularly one that appears
At the end of the day, judges are people too, and they can see
through false claims of victimization.
This article originally appeared in the Financial
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).