Canadian HR Reporter

April 2020 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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28 www.hrreporter.com C O L U M N S E M P L O Y M E N T L AW SECURITY BREACH IS JUST CAUSE FOR DISMISSAL A Manitoba worker's failure to follow security procedures — which led to a robbery of the employer's cash — was serious enough to be just cause for dismissal even if the robbery hadn't happened, an adjudicator has ruled. Dwayne McGillivary was a cashier at a video lottery terminal (VLT) facility at the Pine Creek First Nation in Manitoba and was hired in 2010. Although the facility was connected to the community's ice rink, it was set apart and contained more than two dozen VLTs. The facility had its own security placed at the entrance to the site and only adults were allowed inside. Most of the transactions at the facility involved cash, so there was often a large amount of cash onsite — particularly on weekends when it was busy. The money was stored in a cash room that had a door from the main area and an exterior door. Both doors were supposed to be kept locked at all times. The room contained a safe — for which all the cashiers knew the combination — and a cash float was kept while the facility was open to customers. Cash was normally removed from the VLTs when there were no customers present. The VLT facility was robbed in 2015, which prompted security to be tightened. However, this had tapered off by 2017 when a new Pine Creek CEO and new VLT manager implemented security improvements. All the cashiers were given security instructions related to locking of the doors, keeping the safe locked when not in use and the care of large amounts of cash. Meetings were held with all the VLT cashiers to outline their responsibilities, including one with a representative of Manitoba Liquor and Lotteries. They were reminded to keep the safe locked at all times and not to leave the arena for breaks after 10 p.m. Failure to follow the new security measures would lead to reprimands. All of the cashiers disliked the new safe-locking procedure as they felt it would make things more difficult and McGillivary in particular was resistant to the changes. Progressive discipline Pine Creek had a progressive discipline policy that involved verbal warnings followed by written reprimands. Three written reprimands were grounds for dismissal. McGillivary had two instances of discipline in the months leading up to this period. He was given a warning when the deposit bag was found to have been tampered with and he was suspended for one week after an incident with another band member. The suspension was accompanied with a letter stating that "Should you commit one more offence in the workplace, it will result in termination." On Dec. 17, the cashier's office at the facility was robbed of a substantial amount of cash. McGillivary had been on duty that night and security video revealed that the safe and the door to the cash room had both been left open. Pine Creek also found out that McGillivary had left the facility to take a one-hour break at about 10 p.m., contrary to the security instructions. Two days later, Pine Creek terminated McGillivary's employment for failing to comply with protocol when he left the facility at 10 p.m., left the safe open and didn't stay inside the cash room and keep the door shut. McGillivary filed a complaint for unjust dismissal. He argued that he didn't act any differently than in the past and did nothing wrong. Adjudicator weighs in The adjudicator noted that Pine Creek had clearly established what security measures VLT cashiers were supposed to take. McGillivary simply didn't follow the instructions and had no excuse for his failure to do so. In addition, McGillivary had been advised that his defiance of the instructions put his employment at risk, said the adjudicator. His prior discipline — including a written warning that one more instance of misconduct would result in termination — should have made him realize the consequences of not following instructions. The adjudicator also found McGillivary didn't demonstrate any remorse or acknowledgement of his misconduct. He ignored the new security procedures that were in place and failed to adapt to changing requirements. His failure to follow the new procedures was itself a serious breach of trust that was deserving of dismissal, even if the robbery hadn't taken place, said the adjudicator in upholding the dismissal. CHRR For more information, see: • McGillivary and Pine Creek First Nation, Re, 2019 CarswellNat 1537 (Can. Adj.). In taking a look at a Manitoba worker's dismissal following a robbery, Jeffrey R. Smith highlights the cashier's lack of remorse, disregard for security procedures and failure to adapt to changing requirements considered by the adjudicator COMMON REASONS FOR DISCIPLINE IN THE U.K. 93% general misconduct 75% punctuality 70% taking leave without permission 55% theft or fraud Jeffrey Smith Editor of Canadian Employment Law Today Source: XpertHR The worker's failure to follow the new procedures was itself a serious breach of trust that was deserving of dismissal even if the robbery hadn't taken place.

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