Companies across all industries are confronted with the phenomenon of unpredictable absenteeism. The consequences are significant, both financial and operational. It should be noted that not all absences are included in absenteeism. Indeed, some absences (training, paid leave, maternity, etc.) are foreseeable and are based on social rights. Non-predictable" absences are those that define the notion of absenteeism. The latter is characterized by work-related accidents, sick leave, occupational illnesses, accidents that occur outside the workplace, and unjustified absences. It is important to monitor these absences, which disrupt the proper functioning of the company.  

Before we get into the subject of abusive absences, we would like to share with you an excerpt from the Committee on Standards, Equity, Health and Safety at Work (CNESST), regarding employees' rights in terms of absenteeism: "Workers must sometimes be absent from work due to certain life events. Workers are entitled to these leaves and their employment relationship is protected during their absence. Such leave may be with or without pay.” 
However, any unjustified or abusive absence of an employee may be punished by the employer.    

 

In response to the challenge of absenteeism, we have leveraged the expertise of Yves Lefebvre, Director of Consulting, and Investigations, at GardaWorld. 
 
*The content of this text is provided for information purposes only and does not constitute legal advice or an opinion of any kind. 

Yves, thank you for taking the time today to share your expertise on workplace investigations for wrongful disability. In a few words, can you tell us the main reasons why an employer would want to verify the veracity of an employee's disability?  

First, thank you for inviting me to share my experience on this topic. As a general rule, an employer should always give an employee the benefit of the doubt when they are off work. However, when the employee's absence is prolonged, the employer may want to verify the legitimacy of this absence. It is good to recall the two cases generally faced by companies and for which they have reason to suspect the veracity of the absent employee's condition. 

The first case is when an employee's absence is motivated by an event that occurred in the workplace or as a result of an occupational illness. In the context of the length of this work stoppage, the employer may be justified in questioning the veracity of the employee's condition, provided there is a practical reason. Let's use the example of a work-related injury that turns out to be "fictitious". This means that the absent employee claims to have had an accident at work when in fact it never happened. Sometimes, the work accident did occur and was the subject of a medical diagnosis justifying the employee's absence from work, but it was unjustifiably extended over time. Thus, if the employer has reasonable cause to question the absence of the employee, he can request to open an investigation by surveillance. 

The second situation is when the employee is absent due to an illness or accident which occurred off the job. If the employer has a valid reason, it can investigate whether the extension is unwarranted, or whether the event occurred.

In both cases, the investigation is conducted to verify if the employee is engaged in activities contrary to the claim of disability. Let's look at the example of an employee who claims that they require the use of a cane to get around and is unable to climb stairs or lift loads. In this case, an investigation by surveillance is utilized to verify the employee's condition and demonstrate that the employee performs actions contrary to their declarations.

 

Before carrying out an investigation by surveillance, what tools does the employer have at their disposal to verify the veracity of the employee's absence?

The employer has a series of tools at their disposal to manage payroll absences. These tools help identify reasonable cause to believe that the employee is evading a return to work or faking their illness. To learn more about these tools, the employee can contact the legal department, if there is one, or the human resources department, or an organization with expertise in this area. 

Throughout the investigation, the employee's fundamental right to privacy must be respected. Hence the importance for the employer to have reasonable grounds to call upon the services of investigation and surveillance. If this condition is not met, the individual cannot be followed. 

 

What prerogatives does the employer have to carry out an investigation by surveillance? 

 

First of all, an employer cannot conduct an investigation by surveillance on the basis of mere suspicion. As mentioned above, the employer must first provide reasonable grounds in order to proceed with any employee surveillance. Without these elements, the evidence could be rejected by any court.

It should be noted that labour law is a law of facts. Thus, each decision rendered is specific to the facts reported. Here are some possible avenues that could lead to reasonable doubt: 

- The employee does not show up for various medical appointments.  

- Discrepancy between the pain and pathologies reported by the employee and his activities.  

- The denunciation of a colleague, a neighbor, or any other person. 

Surveillance must be seen as a necessary means of verifying the employee's actions. In itself, it is an invasion of privacy. That is why it is important to remember that it must be used in exceptional circumstances and in the least intrusive way possible. As such, the evidence must be collected in public places or in proximity to the employee's residence, and visible to the general public. 

 

When a surveillance investigation reveals an abusive nature of the employee's absence, what recourse does the employer have against the employee?

When surveillance reveals deception on the part of the employee when it comes to their condition, the final decision is the employer’s. The employer may refer the matter to the appropriate agencies to assert their rights. Examples of recourses available to the employer are: 

- Contest the facts with the CNESST in order to reduce the costs associated with the employee's work stoppage.  

- Dismiss the employee.  

Remember that the employment relationship is based on trust. When this relationship is broken, the dismissal of the employee is plausible. 
 

In conclusion, the employer has tools to verify the legitimacy of repeated employee absences. When the employer requests surveillance of an employee, it is important that the criteria defined by law and the legislation are respected so that the evidence resulting from the tailing is admissible. 

 

Yves, thank you for sharing your expertise about workplace investigations for wrongful absence. Hopefully, this article will help companies understand and leverage best practices when faced with an employee's questionable absence.  

I am pleased to have been able to contribute to this discussion. Our consulting and investigation team is ready to assist companies in combating abusive forms of absenteeism within their organization.  

Contact our consulting and investigation services to learn more on how to combat employee absenteeism.