Canadian Employment Law Today

8 published by Canadian hr reporter, a thomson reuters business 2014 April 16, 2014 Published biweekly 22 times a year Subscription rate: $299 per year customer Service Tel: (416) 609-3800 (toronto) (800) 387-5164 (outside toronto) Fax: (416) 298-5082 (toronto) (877) 750-9041 (outside toronto) E-mail: Carswell.customerrelations@ thomsonreuters.com website: www.employmentlawtoday.com thomson reuters Canada ltd. One Corporate Plaza 2075 Kennedy road, toronto, Ontario, Canada M1T 3V4 Publisher: John hobel Managing Editor: todd humber Editor: Jeffrey r. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2014 thomson reuters Canada ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, pho- tocopying, recording or otherwise, without the prior written permission of the publisher. the publisher is not engaged in rendering legal, accounting or other professional advice. if legal advice or other expert assistance is required, the ser- vices of a competent professional should be sought. the analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any govern- mental body. We acknowledge the financial support of the Govern- ment of Canada, through the publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Worker fired for moonlighting after calling in sick thiS inStalmEnt of You Make the Call involves a part-time employee who was caught calling in sick so she could work another job. The 50-year-old worker was a part- time facility aide providing laundry and housekeeping support services at a long- term care facility in Malton, Ont., run by the Regional Municipality of Peel. The worker had four regular shifts ev- ery two weeks. She also took as many call-in shifts as she could get to earn more money, as she was a single mother of an adult son and teenage daughter who both lived with her. She also bal- anced her work at the Malton facil- ity with another part-time job working call-in shifts at a health centre in nearby Brampton, Ont. The worker normally told the health centre she wasn't available on the days of her regular shifts in Malton and usu- ally worked two or three call-in shifts at the health centre every two weeks. How- ever, sometimes she accepted call-in shifts at the health centre when she was scheduled to work at the Malton facility and would try to switch shifts. The Malton facility had a procedure for switching shifts before November 2011 that allowed employees to switch shifts once every pay period. After then, they were allowed to switch shifts twice. Sometimes the worker was unable to switch a shift at the Malton facility after accepting a call-in to the health centre, so she called in sick. The Malton facility eventually discovered that in 2011, the worker called in sick seven times and on another occasion said she couldn't make it because of a doctor's appoint- ment, when in fact she went to work at the health centre instead. The municipality interviewed the worker and asked the worker if she had ever falsified her reasons for being ab- sent from work or called in sick because she was working for another employer. The worker responded that she couldn't remember. She also explained that if there was a conflict, she usually took a shift at the health centre because it was closer to her elderly mother, to whom she provided care The municipality terminated the worker's employment for providing false reasons for absences, failing to at- tend scheduled shifts, and violating its employee code of conduct and values. The union grieved the termination, arguing that discharge was excessive discipline. At the hearing, the worker said she was flustered in the disciplinary interview and wasn't thinking properly. She also apologized for lying and testi- fied she knew what she did was wrong and would never do it again. She also claimed she had not read the municipal- ity's code of conduct or any documents related to it that were provided when she was hired. The union argued the worker did not intend to defraud her employer and re- ceived no additional benefit because her job at the health centre paid less than the one at the Malton facility, and the worker acknowledged that sometimes she called in sick to the health centre when she had conflicting shifts. iF you SaiD dismissal was excessive, you're right. The arbitrator noted that "trust and employee fidelity were funda- mental to the employment relationship" and the worker calling in sick when she really wasn't violated her obligation to report for and work the shifts for which she was scheduled. Eight such instances over a 10-month period in 2011 was seri- ous and dishonest misconduct, said the arbitrator. The arbitrator found the worker's explanation that she accepted conflict- ing shifts at the health centre because it was closer to her mother didn't make sense as a reason, since she also called in sick at the health centre on occasion so she could work at the Malton facility. She also lied in her interview by saying she couldn't remember calling in sick to work elsewhere. The worker claimed she was somewhat confused in the in- terview, and though this didn't excuse her lies, she also didn't persist in them at the hearing, said the arbitrator. The arbitrator accepted the worker's apology and acknowledgment of her misconduct at the hearing as authentic and found she could be trusted enough to not do it again, especially with sig- nificant discipline established. The mu- nicipality was ordered to reinstate the worker with a one-year unpaid suspen- sion substituted for her dismissal. The arbitrator also determined that if the worker "commits any disciplinable act of dishonesty related to her employ- ment" with 18 months from her return to work, it would serve as just cause for dismissal. For more information see: • Peel (Regional Municipality) and CUPE, Local 966 (Fagu), Re, 2013 CarswellOnt 4493 (Ont. Arb.). you make the call Was termination of employment excessive discipline? OR Did the municipality have just cause to dismiss the worker? how would you handle this case? Read the facts and see if the judge agrees

• Cover