Canadian Employment Law Today

November 13, 2013

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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CELT November 13 2013:celt 467.qxd 13-10-25 10:57 AM Page 11 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 borrow sick leave hours yet to be earned. The collective agreement allowed employees to borrow up to 200 sick leave hours in advance. By the time Kirby joined Springhill he had a negative sick leave balance of more than 160 hours. Nearly all of these hours had been used for his surgery and subsequent recovery. In April 2009, CSC implemented an attendance awareness and management program (AAMP) designed to improve employee attendance and create "a healthy, safe and secure environment." CSC was concerned with the amount of sick leave requests and the resulting overtime costs, so it felt the program was necessary to help manage such costs. Managers had to review unscheduled sick leave and patterns of usage that could indicate abuse by employees. Patterns considered worth investigating included employees with a negative balance of sick leave. In October, managers were told employees with a negative sick leave balance of 100 hours or more or continued to use sick leave with a negative balance would have to provide medical certification for all future sick leave absences. Kirby's manager met with him and told him that since he had a negative sick leave balance, he would be subject to the AAMP and he would have to certify all future sick leaves. The manager didn't inquire into Kirby's circumstances or the reason for his sick leaves. Kirby was unable to raise his sick leave balance to a positive one because he had three more surgeries for which sick leave was granted. He grieved the decision to place him in the AAMP, saying he should not be required to certify every sick leave because of his negative balance. Kirby argued he was being treated unfairly because of his medical history and to have to provide a note for every sick day was too much for him. The adjudicator found Kirby's manager did not review his medical history and only put Kirby into the AAMP because of his negative sick leave balance. Other than that balance, there was no evidence of a pattern of suspicious sick leave use, said the adjudicator. The adjudicator noted the collective agreement specified the observation of a pattern of sick leave use was necessary before requiring an employee to provide medical certificates. Since CSC didn't observe a pattern to Kirby's sick leave — and didn't even check his medical history before he joined Springhill — there was no basis to put him in the AAMP. The adjudicator found Kirby's surgeries were events for which he had no control and should not be considered a pattern of sick leave use. A requirement to medically certify all sick leave absences just because he reached a threshold of negative sick leave balance was contrary to the collective agreement, said the adjudicator. The grievance was allowed and CSC was ordered to stop requiring a medical note from Kirby for every sick leave absence. See Kirby v. Treasury Board (Correctional Service of Canada), 2013 CarswellNat 3052 (Can. Public Service Lab. Rel. Bd.). ■ JUST CAUSE: Chronically late employee fudged punch-in time AN ADJUDICATOR has upheld the termination of a FedEx employee for misrepresenting his hours worked. Wayne Skinner was an admin clerk for FedEx in Mississauga, Ont. He performed customer service functions. Skinner was hired in 2005. Between November 2009 and February 2012, Skinner received verbal counseling once, written counseling three times and seven written warnings for "habitual tardiness." These followed FedEx's disciplinary policy of providing verbal warnings, written warnings, or termination for misconduct. On May 25, 2012, Skinner signed in at the facility's security station at 8:30 a.m., the time he was to start his shift. However, it usually took several minutes to proceed from security to his workstation — which is why FedEx recommended its employees arrive at least several minutes before the start of their shifts — and Skinner arrived at his workstation at 8:34 a.m. Despite the time, he logged into FedEx's eTime system and recorded his start time as 8:30. Company policy included requirements for employees to be at their workstations on time and to enter their start time if they were late. The policy also stated that falsification of company documents or business records — including eTime — was considered "inappropriate and unacceptable conduct." FedEx caught the discrepancy between Skinner's check-in at security and his punch-in time for work, which couldn't have been the same as he recorded. Considering his previous instances of discipline for tardiness, FedEx terminated Skinner's employment for tardiness and time theft. Skinner grieved the termination, arguing being four minutes late didn't warrant termination and he denied time theft. However, the adjudicator found the long history of tardiness was a factor in his termination. In addition, the adjudicator found it was likely Skinner entered a false start time not just on May 25, 2012, but possibly other times as well. He could not have started work at the same time as he checked into security, and it turned out the records showed he often entered exact start, stop and lunch times — possible evidence that he entered them all at the same time. The adjudicator also found FedEx relied on the "honesty and good faith of its employees to properly complete their records." Falsification of his records was misconduct that warranted "a disciplinary response," said the adjudicator. With the long history of misconduct and progressive discipline related to the latest misconduct, FedEx had just cause to consider it a culminating incident and terminate Skinner's employment, said the adjudicator. In addition, the incorrect start time entered showed Skinner "embarked on an entirely new direction of misconduct" to add to his disciplinary history. The dismissal was upheld. See Skinner and FedEx Ground Package Systems, Ltd., Re, 2013 CarswellNat 3152 (Can. Adj. (Can. Lab. Code Part III). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT 11

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