Canadian Employment Law Today

6 | October 9, 2019 Cases and Trends Canadian HR Reporter, 2019 were required to immediately contact their office for instructions if they were released from duty before noon and to remit any pay- ment received for their jury duty to the city. e worker met briefly with his supervi- sor before beginning jury duty to discuss it but didn't go into the collective agree- ment or his obligations while on jury leave. e worker began his jury duty and was out of contact with the city for more than five months, during which time no one at the city monitored the trial or his absence. Despite the fact there were times the jury wasn't sitting, the worker didn't check in with his supervisors. On Aug. 1, 2014, a supervisor filling in for the worker's regular supervisor while the latter was on vacation saw a newspaper ar- ticle from two weeks earlier that stated the trial was taking a two-week break. She called the worker to find out what his plans were with regards to the collective agreement's requirement to check in, but the worker was just about to leave on a vacation with his family during the trial recess. However, he also said the jury "had just been dismissed for the day," which raised suspicions. Collective agreement requirement discussed e acting supervisor informed the worker's regular supervisor about it when he returned. e regular supervisor contacted the court and learned the trial was in recess from July 28 to Aug. 8. He then sent a letter to the worker with a vacation request form indicating "all dates as vacation that you were released as a juror and did not report for work." e worker met with his supervisor on Aug. 18 and discussed the expectations set out in the collective agreement. e worker confirmed the dates of the trial recess and completed a request for two weeks of vaca- tion for that time. He also provided a court calendar and said there were days when he went to court but the trial was recessed at the last minute, which he considered to be sitting days since he was physically there. e worker explained that the trial judge had told the jury that they should consider it a full-time job and they should take care of their physical and mental health for the duration. As a result, he was focused on the trial and not worrying about going to work on individual days when the trial was recessed early. e worker came to work a week later and provided his supervisor with weeks when the jury didn't sit or wasn't scheduled to sit. He requested information from the court about which dates the jury had received sit- ting fees, but he didn't hear back. Two of the weeks indicated hadn't been discussed pre- viously, and the worker eventually agreed to record them as vacation leave. By this point, the murder trial was get- ting to the worker and, adding to his stress, he had been diagnosed with bladder cancer leading to surgery to remove a tumour dur- ing the trial in September. ese factors led him to feel disconnected from his work and he felt he couldn't work or call in sick. How- ever, though he briefly discussed his cancer diagnosis with his supervisor, he didn't give many details and he didn't tell his supervi- sor how stressed he was feeling. City conducted audit after trial e trial ended in December 2014. e following month, the city began an audit to determine how many days the jury was actually sitting and how often the worker should have been at work. e audit re- vealed that, even after the two periods of recess previously converted to vacation days were accounted for, there were 44 days over the course of the trial during which the worker didn't sit as a juror nor did he call in or report to work, accounting for more than $10,000 in salary paid to the worker — with 23 of them coming after Aug. 1 when he had been told to use vacation leave for days he hadn't been in court. City management interviewed the worker in early April 2015 and he was unable to pro- vide a reasonable explanation for the 44 days. e worker maintained that the judge had told the jury to focus on the trial at all times and to treat is as a full-time activity, so he be- lieved he was "following the instructions of the court and doing my civic duty." He also said he hadn't intended to mislead the em- ployer and wanted to "make things right." Management determined the worker had been dishonest, fraudulent and breached the high level of trust required of a case worker, nor did he take responsibility for his misconduct. It terminated his employ- ment effective April 27, 2015, and the union grieved the dismissal. e arbitrator noted that, given the worker's clean record over this 24 years of employment with the city, it was likely he wouldn't have had any disciplinary issues had he not been summoned for jury duty, which was a factor in the worker's favour. e arbitrator found that the worker didn't adhere to the collective agreement's provision dealing with jury duty, which was clear and unambiguous, during the entire trial. However, from the start of the trial in February 2014 until the beginning of August, this misconduct wasn't deserving of disci- pline because his supervisor didn't bring the provision to his attention or discuss it with the worker. In fact, both the worker and his supervisor "exhibited a laissez-faire atittude" about the worker's obligations and neither communicated with the other for the first five months of the trial and there was no fraudulent intent on the part of the worker — who followed instructions to cover two recess periods as vacation days once ex- plained to him, said the court. However, after the city told the worker in August 2014 about his obligations under the collective agreement and its expecta- tion that he report in when the jury wasn't sitting, the worker continued to breach the collective agreement by not contacting the city and collecting his city wages while not working or sitting as a juror for 17 of the 44 days found in the audit. e arbitrator found that the worker in- tentionally breached his obligations and continued to deny them in his April 2015 interview. is was sufficient misconduct to justify the city's decision to terminate the worker's employment, particularly since the worker didn't share the extent of his mental health issues with the city, said the arbitrator. However, the extent of the worker's stress related to his cancer fight, the demands of the trial and the city's audit of his time sitting as a juror that came to light at the arbitration hearings led the arbitrator to determine the worker's misconduct wasn't caused by fraudulent intentions but rather his mental state. While this didn't give him "a free pass" for his misconduct, termina- tion was excessive in the circumstances, the arbitrator said. "In the end, I find, in accordance with the [worker's]… evidence, that he was too paralyzed by his mental state: depression, anxiety, PTSD and estrangement from his workplace, to even call into the employer," said the arbitrator. "In my view, that was a credible explanation for his conduct." e city was ordered to reinstate the worker with no loss of seniority, but with no compensation in recognition of his misconduct. For more information see: • Toronto (City) and CUPE, Local 79 (Locke), Re (July 22, 2019), D. Randall – Arb. (Ont. Arb.). « from WORKER REINSTATED on page 1 There were 44 days over the course of the trial during which the worker didn't sit as a juror nor did he call in or report to work, accounting for more than $10,000 in salary paid to the worker. Worker not initially informed of requirement to check in

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