Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2014 Volunteer firefighter fired from regular job for leaving too often Employer accused worker of leaving without permission but worker was operating under past practices By JEffrEy r. SmiTh A BriTish ColumBiA company wrongfully dismissed an employee who was fired for too many absences related to his position as a volunteer firefighter, an arbi- trator has ruled. Jim Buckley was an employee for Main- road South Island Contracting on Saltspring Island, B.C. When he was hired in 1988, Buckley informed his foreman he was a member of the Saltspring Island volunteer fire department. e foreman said that was a good thing for the community and would give Mainroad good public relations — the company also provided resources to the fire department — and Buckley agreed that he wouldn't leave work for a fire call if it would cost Mainroad money and delay work that was causing disruptions. ough Buckley said he would return to work from calls as soon as he could, there was no formal dis- cussion of how long he should be away or how to fill out time cards when he went on a fire call. Mainroad used time cards and leave forms so it could meet its legal obligations to know whether each employee was at a job site or not. Employees were told to fill out time cards accurately, as they were con- sidered legal documents. e Mainroad operational agreement allowed firefight- ers to respond to emergencies in the com- munity with permission, though Buckley usually didn't and often left his time cards incomplete. Employee's firefighting service discussed In April 2009, a joint labour/management meeting between the union and Mainroad discussed Buckley's volunteer firefighting service. e union agreed to speak with Buckley to confirm he would advise his su- pervisor immediately when he had to leave for a fire call, he would do his best to limit such leaves to only serious calls, and any re- muneration Buckley received for fire calls would be remitted to Mainroad. Mainroad was not aware Buckley received any pay for fire calls, but the union said it was just an honorarium. In October 2013, Buckley was given a warning for using a Mainroad grader truck without authorization. He was told a num- ber of times he needed authorization for outside use of company equipment and also that he needed to fill out a leave form in order to take time off. Buckley was asked if there was anything else the company need- ed to know that had happened and Buckley said no. On October 24, 2013, Mainroad opened an investigataion into Buckley's activities. Mainroad's operations manager had never seen Buckley submit a leave form for his fire calls, so he obtained records from the fire department to cross-reference with Buck- ley's time cards. e concern was that the time cards recorded the type of work em- ployees did and inaccurate time records could have significant consequences, as they were regularly audited and could re- sult in the loss of a contract. e records showed that Buckley left his job 30 times over the previous two years. Most were relatively short, but two in Au- gust 2013 were an hour or more. Buckley did not record that he left work on those time cards and had received a full day's pay on those days. e operations manager was further shocked to discover that, although the fire department was called a volunteer department, the firefighters — including Buckley — were paid $17 an hour. ere- fore, Buckley was paid by the fire depart- ment when he left his job to go to fire calls, while at the same time being paid by Main- road. is was contrary to the collective agreement, which stated where employees were needed for emergency service leave, it would be granted without loss of pay as long as any remuneration received other than expenses would be remitted to Main- road. Mainroad held an investigative meet- ing with Buckley on Nov. 19. When Buck- ley was questioned about his absences, he didn't say much other than "I do not recall." Afterwards, Mainroad confirmed with the fire department the accuracy of its records. On Nov. 26, Mainroad terminated Buck- ley's employment, indicating it could not trust him because he didn't seek authoriza- tion for his absences despite the necessity for it being explained to him. Because he was on his own going to worksites, a high level of trust was required and Buckley's miscon- duct – which Mainroad characterized as fraud and theft of time – was disruptive to its operations and breached its code of conduct. Buckley testified there was not a lot of di- rection from Mainroad regarding time cards and he usually just entered the total num- ber of hours at the bottom and the foreman would fill in the tasks the crew did. He said he didn't keep track of the hours he worked as a firefighter and he was paid with a cheque ev- ery six months with no breakdown of hours. He was unable to answer questions in the investigative meeting because he didn't have specific information and he never said he had another job because he didn't consider firefighting a job, he claimed. e arbitrator found Buckley had been operating under a "loosey-goosey" system for many years with Mainroad, though the company was making attempts to tighten things up. However, the arbitrator found it troubling that the labour/management meeting in 2009 seemed to show Mainroad was aware Buckley was receiving some sort of pay for his firefighting duties and set up a framework for Buckley to operate under. ough the union said it would relay it to Buckley, Mainroad should have commu- nicated it directly to Buckley or at least fol- lowed up with him, said the arbitrator. "e employer in this case fired (Buck- ley) for leaving the workplace to attend fire calls 30 times in two years," said the arbitra- tor. "e employer, however, knew this was occurring in 2009; including the number of calls – three to four times a month." e arbitrator found that whether Buck- ley was paid or not did not fundamentally change the nature of his actions. Most of his calls were less than one hour, and he received The arbitrator found that whether Buckley was paid or not did not fundamentally change the nature of his actions. EmployEr on page 6 »

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