Canadian Employment Law Today

6 | | April 30, 2014 April 30, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 More tampering than admitted at the worker's residence in May 2012. Water usage at the worker's home was tracked from April 2012 to December 2012 and for about one-half of each month — sometimes as many as 20 days — no water usage was recorded. On Dec. 19, 2012, a fi nance specialist went to the worker's home with two police offi cers. e worker spoke to the lead de- tective and admitted to tampering with his water meter so it didn't accurately record his water usage. After being reassured he wouldn't be charged with a criminal off ence, the worker allowed the offi cers and the fi nance special- ist into his home, where the fi nance special- ist examined and replaced the water meter. According to the detective, the worker also said he had helped two other people tamper with their water meters. In January 2013, the city sent the worker an invoice for almost $3,500 to cover unre- ported water consumption over the previ- ous fi ve years and the replacement of a dam- aged water meter. He paid the full amount. On Feb. 14, the city interviewed the work- er about the water meter tampering. e worker admitted to disengaging the meter for the past four years to reduce the amount he would be charged for water consump- tion whenever his pool was being "topped up" and on heavy laundry days — his wife provided in-home day care services. e worker also admitted to tampering with the water meter at his previous residence for "a couple of years." He acknowledged that he was aware such tampering was wrong and apologized, say- ing he was "just trying to get ahead." He admitted that if he hadn't been caught, he would have probably continued tampering with the meter. He denied helping anyone else tamper with their water meters. Ottawa's manager of drinking water ser- vices decided that, although the worker had 23 years of service without performance issues or previous discipline, the nature of his theft and the years over which it had oc- curred was a breach of trust that irreparably damaged the employment relationship. e worker's employment was terminated on March 5, 2013. ree months later, the worker pled guilty to a bylaw off ence of interfering with a water meter. He received a $500 fi ne. After the worker was dismissed, the city performed a further review of the water us- age at the worker's previous residence going back to 2000. Similar patterns were revealed and another invoice was sent to the worker for $3,400 for unreported water usage. e worker paid this invoice as well. e worker grieved his dismissal, arguing the new technology for water meters would have prevented him from tampering any further and he would have stopped around the time he was caught anyway. However, in the hearing, he admitted he turned off the meter more frequently than just for the pool or heavy laundry; he also would do so to off set the cost of any new family purchase — an increased frequency borne out by how often no water usage was recorded at his home. e union also argued the worker's ac- tions occurred outside the workplace and were not in direct context of his employ- ment — he didn't have direct involvement with water meters. In addition, the union pointed out the worker was allowed to con- tinue in his position from the date of his ad- mission of tampering in December until his termination on March 5. He also acknowledged his misconduct and paid full restitution to the city when it invoiced him for the unreported usage, said the union. e arbitrator agreed that employers have a right to expect employees to be "trustwor- thy and honest, especially when they occupy a position of trust." e arbitrator found that the nature of the worker's dishonesty was particularly trou- bling, as it struck at a fundamental aspect of his employer's business and was stretched out over a long time. " is is not a case of momentary aberra- tion where the (worker's) judgment went briefl y askew; but rather the behaviour is marked by its protracted and premeditated nature," said the arbitrator. " e (worker), over a 13-year period, with forethought and planning, defrauded his employer of monies that it was otherwise entitled to." e fact the misconduct happened off - duty, didn't necessarily aff ect his job duties, and the worker was allowed to work while it was investigated did not change the fact he committed theft directly against his em- ployer, said the arbitrator. ough the worker expressed contrition at his actions and paid the money back, the arbitrator noted he showed a tendency to minimize his actions, such as saying he was just trying to "get ahead" and minimiz- ing how often he tampered with the water meter. In addition, the worker's denial that he told the detective he helped others was a di- rect contradiction of the detective, who had no reason to lie, said the arbitrator. e arbitrator upheld the dismissal, fi nd- ing the city had just cause from the repeat- ed "serious disciplinary off ence of theft" against its direct interests. For more information see: • Ottawa (City) and Ottawa-Carleton Pub- lic Employees Union, Local 503 (Kings- bury), Re, 2014 CarswellOnt 3153 (Ont. Arb.). « from CITY WORKER on page 1 Ask an Expert/Cases and Trends Ask an Expert/Cases and Trends fairness in the conduct of an investigation requires that an employee be given suffi - cient details of the allegations to know the case that will have to be met and that the employee's own version of the circumstanc- es be obtained. Somewhat surprisingly, it is not unusual for employers to hear an em- ployee's version of events for the fi rst time at a hearing into the legitimacy of discipline or a dismissal. is not only presents an un- favourable impression to an adjudicator, it deprives the employer of the possibility of acquiring evidence to challenge the employ- ee's credibility at a hearing or to substantiate disciplinary action (or to reveal the lack of such evidence, thus reducing the possibility of an expensive mistake). On a practical level, thoroughness re- quires that all those with information po- tentially related to the disciplinable event be interviewed; all steps in the investigation be carefully documented; and witness state- ments be written, reviewed and acknowl- edged in writing as accurate. Where a proper investigation is conduct- ed, the likelihood is much greater that any discipline will be appropriate to the circum- stances and defensible if challenged. For more information see: • Heritage Heights Retirement Home Inc. v. OPSEU, 2013 CarswellOnt 16508 (Ont. L.R.B.). • Interior Health Authority v. British Co- lumbia Nurses' Union (Sept. 18, 2013), T. Hodges — Arb. (B.C. Lab. Arb.). • Leach v. Canadian Blood Services, 2001 CarswellAlta 173 (Alta. Q.B.). • van Woerkens v. Marriott Hotels of Canada Ltd., 2009 CarswellBC 195 (B.C. S.C.). • Clarke v. Syncrude Canada Ltd., 2013 Car- swellAlta 913 (Alta. Q.B.). • Elgert v. Home Hardware Stores Ltd., 2011 CarswellAlta 1263 (Alta. C.A.). • Vernon v. British Columbia (Housing & Social Development, Liquor Distribution Branch), 2012 CarswellBC 239 (B.C. S.C.). Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim.Mitchell@norton- rosefulbright.com. « from Ask an Expert on page 2 Fair investigation important

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