Williams HR Law LLP

INVESTIGATING SUSPICIOUS ABSENCES

April 3, 2011

[vc_row][vc_column width=”1/3″][vc_single_image image=”2354″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]Karen has used up all her vacation entitlement very early on in the year.  She has requested a two week advance of vacation from her future entitlement to attend a wedding in the Caribbean in the fall.  You deny the request for two weeks but begrudgingly allow her to take one week on an unpaid basis.  She is unhappy with the compromise.   The Sunday evening before she is due back at work from her week off, she leaves you a message very late in the evening stating that she is too sick to fly back.  She advises that she needs another week off to recover and that she will return to work the following Monday.


Suspicious circumstances around an employee’s reasons for not attending work are not uncommon.  However, many employers believe that they cannot request that employees provide proof that an explanation provided to justify an absence from work is legitimate.   Alternatively, employers may react inappropriately to suspicious absences, which could lead to exposures to liability, such as in cases where the absence is related to illness and the employee alleges that the employer’s reaction is in violation of the Human Rights Code.

Part two of the Effective Attendance Management Strategies series focuses on why employers should enquire into employee absences, that appear suspicious or illegitimate, and will suggest a best practice approach to ensure that requests for proof of absence are conducted properly.

Employers are well within their rights to request employees to justify absences from work, and it is best practice to request proof in support of the reason given for the absence in all circumstances.  The request for proof communicates the importance of attendance and the employer’s right to make the request should be set out in workplace policies.   Further, where employers regularly employ more than 50 employees, and employees take unpaid time off as Emergency Leave, section 50(7) of the  Employment Standards Act, 2000 (“ESA”) gives employers the right to request “evidence reasonable in the circumstances that the employee is entitled to the leave”.

The following is a best practice approach to investigating circumstances surrounding an employee’s absence:

  • provide the employee with a written request for proof justifying the need for time taken off work.  In our scenario above, an employer could request that the employee provide proof that Karen sought medical treatment when away and/or a copy of the airline ticket to verify whether the trip was originally booked for a two week return.
  • if applicable, refer to the workplace policy or legislation provision (e.g. section 50(7) of the ESA) as the basis for the request.
  • review the submitted proof with the employee during a meeting and ensure that the employee is provided with an opportunity to explain the circumstances.
  • after the initial meeting with the employee, consider whether further information is required or whether there is enough information to make a decision.
  • once all information has been considered, meet with the employee to communicate the findings based on the information provided along with any decisions made in response to the circumstances (e.g. whether there will be discipline imposed).

The pitfalls of condoning attendance issues, particularly where employees are being untruthful about the reasons for absence, are many. An employer’s policies can be undermined, workplace morale and productivity may decline, other employees may believe they can get away with similar misconduct, and an employer can lose an opportunity to correct an otherwise high performing employee.  Attending work regularly and on-time is a fundamental condition of work. Employers should ensure that:

  1. They have policies that clearly communicate attendance expectations;
  2. Employees are aware of polices and sign off on their commitment to comply; and
  3. Policies are consistently applied in the workplace and discipline for non-compliance is imposed as appropriate.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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