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We often read about toxic bosses. What about their employee equivalents? I’m referring to the employee who wants to extract as much money from the company for as little work as possible and is prepared to go to any means to do so.

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In fact, given the abundance of social legislation supporting employees, they have ample available (often governmental) helping hands enabling them to do so.

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What can an employer do? Here’s a list of common scenarios and how best to navigate them.

1. False overtime claims

In Ontario, an employee is entitled to overtime at time and a half if the employer permits them to work more than 44 hours per week. In other provinces and federally, it is 40 hours.

What does one do about an employee who creates and submits fictitious “records” of their hours, often after they are fired. I have seen those overtime hours add up to more than the employee’s salary!

Many employers are flummoxed. The employment standards branch, to which the employee complains to obtain that time and a half, requires employers to keep records of employees’ time and, if they have not created those records as required, will presumptively accept the employee’s version.

Calling evidence to disprove the employee’s recording that they were working at specific times can be difficult and sometimes impossible.

The best technique to protect themselves is to have a written memo, signed by everyone, advising that employees are prohibited from ever working over those 44 hours a week without the employer’s written consent.

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If an employer does that, unless the employee can prove the employer was wilfully blind and observed all of this overtime being worked and permitted it, the employer will have protected itself.

2. False illness claims

Many employees combine long weekends and compliant doctors to obtain illegitimate paid vacations, taking time off work just because they wish to. If the employer has a paid sick leave policy, the employees will be paid for those days. Subject to certain statutory exceptions in some provinces, there is no inherent obligation for employers to pay for sick days. Still, most medium and large employers will pay, at least for some number of days per year.

Often other employees will know if a co-worker has a practice of falsely making such claims and will resent having to work when that employee does not. This affects morale as well as productivity.

What is the solution? In the provinces that permit employers to demand medical notes, require one so the employee cannot spend a day of leisure or at the cottage but instead must attend the doctor’s office. If you suspect that the employee is not genuinely ill, contact them to ask relevant business questions to ensure that they are engaged and prevent them from having a real holiday.

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Finally, if a particular employee has a pattern of suspicious absences, have their doctor list their limitations and functionalities and require them to work within that modified job description. At last resort, if you believe they are not disabled at all, have them attend an independent medical examination with a doctor you retain and then insist on compliance with that doctor’s recommendation.

3. “Working” from home

Of course, some employees can pretend to be working by simply staying near their phones but provide little value because, in the absence of supervision, they are not working at all.

One solution is to install software that monitors their keyboards to ensure they are productive.

Another is to order them back to work where they have to attend the office (and cannot take their dogs for a walk or watch that daytime soap).

To answer the unspoken question: yes, you can order back to work those who are not effectively working from home — whether it be because they are simply not working or because they are ineffective in that modality — while allowing employees who are effectively working from home to continue doing so. And yes, that is discrimination, but it is legal discrimination.

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4. Employees looking for severance

Some employees push their employers, including in the ways discussed above, hoping to be fired. They misbehave hoping their misconduct will be rewarded.

What can employers do?

Start documenting their activity and providing warnings. If the employee miscalculates, you might well develop a case for cause, or at least give the employee the perception that they could lose such a case, which will make them ultimately change their conduct, or take less if you terminate them. You can also assign them duties that minimize the ill effect of their conduct — duties that would not amount to a constructive dismissal. And you can warn them that continued misconduct will affect their reference. References can last for one’s entire career.

5. Frivolous free claims

Employees can make claims without any foundation, such as to human rights, occupational health and safety and/or to human rights. This is often done in the hope of provoking a firing.

The problem is that retaliating by firing them is itself a violation of these statutes, so that is not a viable option.

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Another problem is that, even if the employer is successful, they cannot recover costs from the employee.

Some of these statutes have provisions whereby the cases can be dismissed on an early basis if they are frivolous. Again, although this cannot be threatened, as nothing can, there is nothing wrong with telling future employers about the employee’s history.

6. Disparagement of the employer

A disgruntled employee might disparage an employer on social media or just in conversation. It might even rise to the level of defamation, permitting a lawsuit or, depending on the context, be cause for dismissal without severance — sending a message to other malcontents.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.

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