Canadian HR Reporter

CANADIAN HR REPORTER NOVEMBER 2019 EMPLOYMENT LAW 5 Ontario caseworker reinstated after post-jury duty termination Failure to keep employer informed of breaks during months-long trial stemmed from stresses of job, health not dishonest intentions: arbitrator BY JEFFREY R. SMITH An Ontario worker who breached his em- ployer's rules on reporting in during jury duty deserved serious discipline but not dismissal, as his misconduct was caused more by mental health is- sues than fraudulent intent, an ar- bitrator has ruled. e worker was employed as a caseworker in the Toronto Em- ployment and Social Services Division with 24 years of service and no discipline on his record. In February 2014, John Locke was selected to serve on the jury of a high-profile murder trial and it was expected to take several months. e collective agreement be- tween Locke's union and the city required the city to give employ- ees a paid leave of absence while they were on jury duty. Employ- ees were required to immediately contact their office for instruc- tions if they were released from duty before noon and to remit any payment received for their jury duty to the city. e worker met briefly with his supervisor before beginning jury duty to discuss it but didn't go into the collective agreement or his ob- ligations while on jury leave. Locke 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 when the jury wasn't sitting, the worker didn't check in with his supervisors. On Aug. 1, 2014, a supervisor filling in for Locke's regular super- visor while the latter was on vaca- tion saw a newspaper article 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 require- ment to check in, but the worker was just about to leave on a vaca- tion 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 discussed e acting supervisor informed the worker's regular supervisor about the issue 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 Locke with a vacation request form indicating "all dates as vacation that you were released as a juror and did not re- port for work." e worker met with his super- visor on Aug. 18 and discussed the expectations set out in the collective agreement. Locke con- firmed the dates of the trial recess and completed a request for two weeks of vacation for that time. He also provided a court calendar and said there were days when he went to court but the trial was re- cessed at the last minute, which he considered to be sitting days since he was physically there. Locke 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 wor- rying about going to work on in- dividual days when the trial was recessed early. Locke then came to work one week later and informed his su- pervisor of the 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 sitting fees, but he didn't hear back. Two of the weeks indicated hadn't been dis- cussed previously, and the worker eventually agreed to record them as vacation leave. By this point, the murder trial was causing the worker stress, and he had been diagnosed with blad- der cancer leading to surgery to remove a tumour during the trial in September. ese factors led Locke to feel disconnected from his work and he felt he couldn't work or call in sick. However, though he briefly discussed his cancer diagnosis with his super- visor, he didn't give many details or tell his supervisor how stressed he was feeling. City conducted audit after trial The trial ended in December 2014. e following month, the city began an audit to determine how many days the jury was ac- tually sitting and how often the worker should have been at work. e audit revealed that, even after the two periods of recess previ- ously 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 Locke — with 23 of them com- ing 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 provide a reason- able explanation for the 44 days. Locke maintained that the judge had told the jury to focus on the trial at all times and to treat it as a full-time activity, so he believed he was "following the instruc- tions of the court and doing my civic duty." He also said he hadn't intended to mislead the employer and wanted to "make things right." Management determined Locke had been dishonest, fraudulent and breached the high level of trust required of a caseworker, nor did he take responsibility for his mis- conduct. It terminated his employ- ment effective April 27, 2015 and the union grieved the dismissal. The arbitrator noted that, given Locke's clean record over his 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 worker didn't adhere to the collective agreement's pro- vision dealing with jury duty, which was clear and unambigu- ous, during the entire trial, found the arbitrator. However, from the start of the trial in February un- til the beginning of August, this misconduct wasn't deserving of discipline because his supervisor didn't bring the provision to his attention or discuss it with Locke. In fact, both the worker and his supervisor "exhibited a laissez- faire atittude" about the worker's obligations and neither communi- cated with the other for the first five months of the trial, said the court. And there was no fraudu- lent intent on the part of the work- er — who followed instructions to cover two recess periods as vaca- tion days once explained to him. However, after the city told the worker in August 2014 about his obligations under the collective agreement and its expectation that he report in when the jury wasn't sitting, the worker con- tinued 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. Locke intentionally breached his obligations and continued to deny them in his April 2015 in- terview, found the arbitrator. is was sufficient misconduct to jus- tify the city's decision to termi- nate the worker's employment, particularly since Locke 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 can- cer fight, the demands of the trial and the city's audit of his time sit- ting as a juror that came to light at the arbitration hearings led the arbitrator to determine Locke's misconduct wasn't caused by fraudulent intentions but rather his mental state. While this didn't give him "a free pass" for his mis- conduct, termination was exces- sive in the circumstances, said the arbitrator. "In the end, I find, in accordance with the [worker's]… evidence, that he was too paralyzed by his mental state — depression, anxi- ety, 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." The city was ordered to re- instate the worker with no loss of seniority, but with no com- pensation 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.). Jeffrey R. Smith is editor of Canadian Employment Law Today. For more information, visit www.employment- lawtoday.com. Jeffrey Smith Legal View Through fearless advocacy, clear and direct legal advice, and being informed about your case every step of the way, we believe you'll be empowered. To learn more, call us for a free consultation. EMPOWERMENT Bogoroch & Associates LLP is honoured to be named by Canadian Lawyer Magazine (May 2019 issue) as one of the Top 10 Personal Injury Boutique Law Firms in Canada. 416-599-1700 Toll Free: 1-866-599-1700 150 KING STREET WEST, SUITE 1901 TORONTO, ONTARIO M5H 1J9 bogoroch.com Yoni Silberman Partner Heidi Brown Partner Richard M. Bogoroch Managing Partner Mahsa Dabirian Partner ere 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.

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