Employers need not put up with exaggerated or false sick leave
claims and can ultimately fire such employees for cause as one
company found out when it took action.
When Tim MacBurnie, gatehouse supervisor for Halterm Container
Terminal in Halifax Harbour, called in sick, yet again, his
employer hired a detective to prove he was malingering. This
proactive approach paid off handsomely.
MacBurnie's job was to assure trucks and freight were
efficiently processed without costly delays for the company and its
customers. Only a handful of individuals at the company could
replace him, which meant any unscheduled absence cause considerable
MacBurnie was a conscientious and professional employee.
However, over time, he began missing days without alerting his
manager. The company was left scrambling for a replacement, often
Repeated warnings had no lasting effect: MacBurnie's
attendance improved for a short period and then deteriorated.
MacBurnie would call in, leave a message in a "pained sounding
voice" that his back was hurting, and then not show up to
Eventually, Kevin Bailie, the operations manager, became
suspicious and called MacBurnie back and left messages which were
not returned. When Bailie asked for medical evidence
that MacBurnie's back pain was so disabling he could not
even leave his home, MacBurnie became agitated. His promised
medical documentation never materialized.
Bailie then retained an investigator and placed MacBurnie under
surveillance. The video-recordings showed him walking briskly to
neighbourhood shops on the very days he complained of
Despite overwhelming evidence he was lying, Halterm gave
MacBurnie a final chance: call in the morning of any day he would
be missing because of disability. Any further violations would lead
It wasn't long before MacBurnie absented himself for three
consecutive days without calling in or returning Bailie's
messages. As promised, he was fired.
In court, Justice Gerald Moir of the Nova Scotia Supreme Court
dismissed MacBurnie's defence the videos were of someone else
and concluded his false claims of sickness and serial violations of
his conditions of employment provided ample cause for
A range of strategies should be deployed against malingerers.
Here are my recommendations:
Require evidence of sickness Refusing to
provide a medical certificate amounts to insubordination and can be
grounds to deny disability benefits and, eventually, for
Insist on genuine confirmation of disability
Reject oblique doctor's notes that only state the employee is
ill and should be off for a particular period. Staff can be
required to produce medical confirmation they are fully disabled
from performing their functions or any other that might be
available in the workplace. On some occasions, it can be worthwhile
engaging your own specialist to examine a suspected malingerer.
Offer accommodation Most illnesses are not
fully disabling. Inquire whether the employee can cope with shorter
hours or a lighter workload or tasks that are within their
limitations. Ask the doctor for specific medical confirmation and
rationale if the proposal is declined.
Demand accountability If an employee does not
call in or comply with the company sick policy, insist on a
complete explanation. Unreasonable excuses are as good as none and
should prompt immediate discipline. As well, if the employee is not
immobilized, meet with them in the office to discuss what modified
work they could do. Refusing to attend could be cause for
Act on suspicion If there is a reasonable basis
to suspect malingering and abuse of sick leave, engage a private
detective. Video recordings of activities incompatible with sick
claims will be persuasive evidence of malingering.
Respond swiftly Allowing a problem to fester
enables an employee to argue condonation. Halterm, although
successful, risked its case by not effectively responding to
MacBurnie's misconduct over many years.
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.
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