Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER May 5, 2014 May 5, 2014 EMPLOYMENT LAW EMPLOYMENT LAW 5 City worker's water use doesn't wash City worker's water use doesn't wash Tampering with home water meter was theft that struck at heart of employer's interests Tampering with home water meter was theft that struck at heart of employer's interests An arbitrator has upheld the fi ring of an Ottawa city worker who was caught tam- pering with the water meter in his home over a period of several years. e 46-year-old worker was an operator-in-charge in the water distribution section of Ottawa's drinking water services depart- ment. His responsibilities in- cluded directing a handful of em- ployees in the installation, repair, maintenance and operation of the city's water distribution system. e worker began his employ- ment with the City of Ottawa in 1990. On Jan. 30, 2012, Ottawa's deputy city treasurer received an anonymous written complaint that claimed the worker had been "stealing water for years" by modi- fying the water meter at his home so it didn't accurately record water use. The complaint also said the worker had helped others alter their meters in a similar way. e deputy treasurer reported the complaint to the city's fraud and waste hotline and auditor general. An investigation was launched involving the city de- partments of fi nance, corporate security, labour relations and environmental services, and con- sultation with the Ottawa Police Service. The investigation included a review of the worker's water consumption at his home. An advanced meter infrastructure (AMI) — technology that trans- mits water meter readings directly rather than having someone read the meters manually — was in- stalled 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 finance 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 usage. After being reassured he wouldn't be charged with a crimi- nal off ence, the worker allowed the offi cers and the fi nance spe- cialist into his home where the fi nance specialist examined and replaced the water meter. The worker also said he had helped two other people tamper with their water meters, according to the detective. In January 2013, the city sent the worker an invoice for almost $3,500 to cover unreported water consumption over the previous fi ve years and the replacement of the damaged water meter. He paid the full amount. Employer interview On Feb. 14, the city interviewed the worker about the water me- ter tampering. e worker ad- mitted to disengaging the meter for the past four years to reduce the amount he would be charged whenever his pool was being "topped up" and on heavy laundry days — his wife provided in-home daycare 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, saying 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 any- one else tamper with their water meters. Ottawa's manager of drinking water services decided that al- though 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 occurred were a breach of trust that irrepara- bly 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. Water usage reviewed After the worker was dismissed, the city performed a further re- view of the water usage at the worker's previous residence go- ing 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. The worker grieved his dis- missal, arguing the new technol- ogy 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 would also do so to off set the cost of any new family purchase. is hap- pened with increasing frequency, borne out by how often no water usage was recorded at his home. The union also argued the worker's actions occurred outside the workplace and were not in di- rect context of his employment — he didn't have direct involvement with water meters. In addition, the union pointed out the worker was allowed to continue in his po- sition from the date of his admis- sion of tampering in December until his termination on March 5. e worker also acknowledged his misconduct and paid full resti- tution to the city when it invoiced him for the unreported usage, said the union. Employer rights However, employers have a right to expect employees to be "trust- worthy and honest, especially when they occupy a position of trust," said the arbitrator. e nature of the worker's dis- honesty was particularly trou- bling as it struck at a fundamental aspect of his employer's business and was stretched out over a long period of time, said the arbitrator. "This is not a case of mo- mentary aberration 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 employ- er of monies that it was otherwise entitled to." e fact that the misconduct happened off -duty, didn't neces- sarily aff ect his job duties and the worker was allowed to work while his conduct was investigated did not change the fact he committed theft directly against his employer, said the arbitrator. ough the worker expressed contrition at his actions and paid the money back, he showed a ten- dency to minimize his actions, such as saying he was just trying to "get ahead" and minimizing how often he tampered with the water meter, said the arbitrator. In addition, the worker's de- nial that he told the detective he'd helped others tamper with their water meters was a direct contradiction of the detective, who had no reason to lie, said the arbitrator. e dismissal was upheld, with the arbitrator fi nding the city had just cause from the repeated "seri- ous disciplinary off ence of theft" against its direct interests. For more information see: • Ottawa (City) and Ottawa-Car- leton Public Employees Union, Local 503 (Kingsbury), Re, 2014 CarswellOnt 3153 (Ont. Arb.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today, a publication that looks at workplace law from a business point of view. He can be reached at Jeff rey.r.smith@ thomsonreuters.com or visit www. employmentlawtoday.com for more information. Jeff rey Smith Legal View " e worker, over a 13-year period, with forethought and planning, defrauded his employer of monies that it was otherwise entitled to." Credit (cover): Samuel Acosta/Shutterstock.com Credit: djem/Shutterstock.com You are invited to a free HR Seminar 7HO_+RXU_)D[_ZZZVKHUUDUGNX]]FRP DATE: 7KXUVGD\-XQH²DP EUHDNIDVWDWDPSURJUDPDWDP VENUE:+LOWRQ*DUGHQ,QQ7RURQWR9DXJKDQ +LJKZD\:HVW9DXJKDQ21/.= COST: &RPSOLPHQWDU\ RSVP: %\)ULGD\0D\DW ZZZVKHUUDUGNX]]FRPVHPLQDUVSKS presented by /DZ6RFLHW\RI8SSHU&DQDGD&3'&UHGLWV7KLVVHPLQDUPD\EHDSSOLHGWRZDUGJHQHUDO&3'FUHGLWV +53$2&+53GHVLJQDWHGPHPEHUVVKRXOGLQTXLUHDWZZZKUSDFDIRUFHUWLÀFDWLRQHOLJLELOLW\JXLGHOLQHVUHJDUGLQJWKLV+5HYLHZ6HPLQDU (PSOR\HH0LVXVHRI:RUNSODFH7HFKQRORJ\ +RZWRSURWHFW\RXURUJDQL]DWLRQ RANKED The undisciplined use of workplace technology is one of the key security threats facing Canadian employers. On the one hand, employers want employees to have access to company information remotely and whenever necessary, including outside regular business hours. However, with this flexibility comes increased risk of misuse or inappropriate disclosure of company information. 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