Canadian Employment Law Today

Canadian HR Reporter, 2019 November 20, 2019 | Canadian Employment Law Today could have been a missing payment from the client for May, but this wasn't confirmed. Before the end of the meeting, Headley suggested that there were no uniform pro - cedures in place for the administration of maintenance fees and that there was wide access to the shift leaders' office, which raised other possibilities of why money dis - appeared. e week after the investigative meeting, the program supervisor requested that the safe in the shift leaders' office be fixed and locked when not in use, with "all monies received and placed in the safe using daily safekeeping log" to replace the envelope-in- the-desk system. A further investigation was conducted to see if other shift leaders in the LTP had issued receipts where there was no corre - sponding entry in the accounting system. Fifty out of 108 receipts on file from June 2010 and June 2012 were reviewed and none were found to have missing money. Howev - er, they found two receipts issued by Head- ley to another client for $701 each. Employer searched for evidence of fraud Seaton House management met with Headley again on Sept. 19 to discuss the additional two receipts for $1,402. Head- ley, who hadn't been told what the meet- ing was about, was frightened by this time. He explained that "any receipts I wrote I would have put the money in the box and would have brought it [to admin- istration]" and he wasn't the "type of per- son who would steal from clients." ey asked him about a few other receipts he had issued, although it turned out the money wasn't missing for most of them. On Sept. 28, the city terminated Headley's employment for violating the city's conflict of interest policy and the Toronto fraud pre- vention policy. e termination letter stated that the city found 10 receipts he issued without money deposited — and no other shift leaders had any such issues — and that he failed to provide a reasonable explanation and didn't show any remorse or responsibil - ity for his actions. e court determined that the city was unable to prove that it had just cause to dis- miss Headley. ere was no evidence clearly linking Headley to the missing money — the method of safekeeping cash paid by clients for maintenance fees wasn't formal, the shift leaders' office was accessible to all staff and the safe was broken. Headley noted these as explanations as for why money could go missing, and Seaton House eventually rec - ognized this when it implemented a formal record-keeping system and fixed the safe, said the court. e court found that, in its investigation into receipts issued by shift leaders, Seaton House reviewed less than 10 per cent of the total number of expected receipts issued by shift leaders in the two-year period —only 108 were on file, but there could have been up to 480 with about 20 clients with their own accounts paying cash, minus some months where some clients didn't pay. In - stead, the review focused on Headley's re- ceipts, not all of the shift leaders, making it incomplete. All of this added up to incom- plete information with questionable reli- ability — not sufficient to base a termination decision on, said the court. e court also noted that Seaton House management didn't pay attention to other considerations, such as why Headley would issue receipts for cash he intended to steal or not discard them when there was no official receipt retention policy. In addition, there was no way to determine when the money went missing. "In my view, the city's failure to marshal sufficient relevant evidence to prove theft, fraud or dishonesty, was and is glaring," the court said. "I have concluded that [Seaton House's] investigation was based on false as - sumptions and inadequate." e court noted that it was agreed Head- ley issued two receipts to the troubled client for a total of $820 that the client didn't actu- ally pay and this was misconduct. However, he derived no personal benefit from the ac- tion and his motivation to do it was based on compassion for the client, who was in crisis. It was not misconduct deserving of dismiss- al, said the court. e court found that Headley was entitled to 18 months' pay in lieu of notice for his 15 years of good service and the high responsibil - ity of his shift leader position. In addition, the city's manner of dismissal could be reasonably seen to cause mental distress and make it dif- ficult for Headley to find comparable alter- native employment. As a result, Headley de- served $15,000 in damages for mental distress and $50,000 for "tangible financial loss cause by the unfair manner of his dismissal." e city was ordered to pay Head - ley $170,117.84 in total, plus interest, for wrongful dismissal. For more information see: • Headley v. City of Toronto, 2019 ONSC 4496 (Ont. S.C.J.). CREDIT: MONKEY BUSINESS IMAGES SHUTTERSTOCK ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information.

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