Canadian Employment Law Today

November 3, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2021 cared was referred to as RB. On May 14, 2018, RB's daughter emailed Willow Creek manage- ment to report that she had been monitoring her father's bank accounts and over the previ- ous five weeks, five cheques had been cashed from his account, with the name of "cash" in his cheque book. The cheques totalled $3,625. The daughter, who lived in the U.S., had asked a long-time friend of her father's to ask him if he had signed any cheques, to which her father had said no. As a result, she had requested that the bank investigate and had filed a police report. Willow Creek management obtained copies of the cheques and confirmed that they weren't in RB's handwriting. They decided to wait until the bank and the police completed their investi - gations before taking further action. Worker charged with theft In June 2018, the police informed AHS that they believed that the worker had stolen the funds from RB's account and had charged her with a criminal offence. AHS put the worker on paid administrative leave pending its own investiga - tion. It also reminded her that, under its own employment practices policy, she had "an on- going duty to disclose any criminal charge or conviction" and a failure to do so could result in discipline up to and including dismissal. It demanded documentation on the charges and any other information she thought AHS should consider in reviewing them by June 15. The worker provided information showing that she had been charged with fraud under $5,000 and had agreed until the resolution of the matter to abstain from communicating with RB or going to Willow Creek except to visit her grandmother, who was a resident. In an investigation meeting, the worker de - nied writing the cheques and said she had only found out about them being deposited to her account when the bank had frozen it — she said she had been dealing with a serious illness in the family and she normally only checked her balance before making a big purchase because she didn't keep much money in the account. She said she left her purse in the storage room regularly, with her phone inside it. Her phone wasn't password-protected and she had her passwords on her phone, so she suggested an - other employee had accessed her phone and deposited the cheques with photos of them — though she didn't offer any names. Management didn't believe the worker's ex- planation, as the storage room was a high-traffic area and it was unlikely someone would be able to take the time to get the worker's phone, ac- cess her passwords and deposit the cheques in a busy room. In addition, the worker said she got along well with everybody, so it didn't make sense that someone would go to so much effort to frame her. The worker said she could provide addi - tional evidence that it wasn't her, so AHS gave her a couple of weeks to provide it. However, the worker didn't provide any other documen- tation or suggested any names of who might have done it. She also didn't offer to return the money. AHS terminated the worker's employment on July 19 for theft of a resident's cheques, fail - ing to be honest and forthcoming in the inves- tigation, and demonstrating a lack of insight or remorse about her conduct. It emphasized the need for "the utmost level of trust in your ability to execute your duties with the safety and trust of our patients and clients at the forefront" and said that she had breached that trust, irrepara - bly damaging the employment relationship. The worker grieved her dismissal, arguing that AHS did not have just cause for dismissal. She and the union argued that the evidence was circumstantial and her termination had a seri - ous effect on her emotional state. In addition, because it was a small town, everyone knew about it and she was shunned by friends and family. Evidence of theft not circumstantial The arbitrator found that the evidence was clear — and the worker admitted — that five of RB's cheques totalling $3,625 were deposited into the worker's bank account. This wasn't circum - stantial evidence, but rather direct evidence that someone stole the cheques and deposited them. It was the identity of the person who did it that was circumstantial, said the arbitrator. Given the circumstances, the onus was on the worker to provide a plausible explanation as to how it couldn't have been her who did it. However, she couldn't do so. The worker said she only checked her account balance when she made large purchases, but the bank re - cords showed she had made several such pur- chases during the time in question. In addition, there was more money in the account than she claimed. "It is highly unusual for five cheques to be de- posited into a person's bank account by some- one else who used that person's cellphone to make those deposits," said the arbitrator. "It is equally unusual for that person not to notice those deposits into their account over the course of about six weeks." The arbitrator also found that AHS handled the investigation properly. It was reasonable to wait until the police and the bank completed their investigations and the investigation inter - viewed the worker and other employees. After hearing the worker's explanation, AHS offered her the opportunity to provide more evidence for it to consider, but she didn't do so. In ad- dition, it didn't need to explore the possibil- ity of someone else stealing the cheques as the evidence pointed to the worker and the worker didn't provide any names of other possible sus- pects. The arbitrator determined that the only plau- sible conclusion was that the worker stole the cheques and deposited them into her account. It was misconduct that took considerable plan- ning and was repeated over several weeks, and she denied any wrongdoing throughout the investigation and hearing. Although she hadn't received any previous discipline, the dishonesty and breach of trust the theft involved justified skipping progressive discipline and going right to termination, said the arbitrator in dismissing the grievance. For more information, see: • AUPE and Alberta Health Services (Robertson), Re, [2021] A.W.L.D. 3470 (Alta. Arb.). 6 | | November 3, 2021 November 3, 2021 « from ALBERTA on page 1 Cases and Trends Cases and Trends Worker suggested a co-worker framed her by stealing her account info CREDIT:KAZUMA SEKI iSTOCK The worker said she only found out about the cheques deposited to her account when the bank froze it.

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