When an employee goes on leave for whatever reason and his or her work ethic has been less than exemplary, an employer can still fire the employee if there is just cause. Many employers are under the impression that they can't dismiss a worker on leave -- whether they're not working due to medical reasons, parental leave or for any other matter.
Employees using a leave to try to slip away from under the axe should know that being on leave doesn't grant them immunity from being fired or laid off. If you have an employee who has been reprimanded or written up a couple times and then suddenly take stress leave, it may be that he or she senses impending dismissal and is trying to avert what he or she sees as an inevitability.
What to do with an employee playing hide and seek?
It's unfortunate that many employers are confused as to how they can handle such a situation. It's true an employer can't fire an employee for actually taking the leave as per human rights legislation and employment standards in British Columbia and the rest of Canada. The thing is to make sure you have proof that the employee is being fired because of other issues and not because he or she took leave.
You will need to make sure you can back up the dismissal because if a tribunal or court gets even the smallest of an inkling that you let the employee go because of the leave, you could be found to be in breach of the law and will have to compensate the employee you fired.
Cross the t's and dot the i's
In these instances, you should keep in mind a number of things when planning to dismiss an employee who is on leave:
- Make sure you have documented those times when you've given verbal and written warnings to the employee.
- Show that your decision is unrelated to the leave.
- Be prepared should the employee launch a wrongful dismissal suit against you.
Having proof that you discussed the employee's work and/or conduct prior to him or her going on leave will bode well should the matter end up before the courts. Make it crystal clear that you didn't fire the person because he or she took a leave. The clearer your notes are regarding this employee, the greater your chance for a favourable outcome in court.
Has your company ever been in such a bind? Take early action. Get a legal opinion before taking action.