Canadian Employment Law Today

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GST #897176350 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 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Double shift leads to sleepy worker THIS EDITION of You Make the Call fea- tures a worker who was fi red for sleeping on the job. Kareem Watson was a youth services worker at a Toronto shelter called Eva's Sat- ellite Shelter, which provided crisis inter- vention service to homeless youth between the ages of 16 and 24. He had four years of service with Eva's, with the fi rst three as a re- lief worker and one as a permanent full-time youth services worker. e shelter had a policy that sleeping on the job was serious misconduct and war- ranted dismissal, and working back-to-back shifts wasn't permitted since youth services workers were responsible for the health and safety of the youth using the shelter and they had to be aware and alert at all times during their shift. e clients of Eva's were particu- larly high-risk because they were banned from other shelters due to their substance abuse or behaviour. A large proportion had mental health issues. If a worker was unable to come in for a scheduled shift, proper procedure was to call the shelter and speak to a relief or youth ser- vices worker. e worker receiving the call would then start phoning other relief work- ers until someone was found who can take the shift. If no relief workers were available, a temporary help agency would be called to supply someone. On March 6, 2014, there was a mandatory training session for shelter employees dur- ing the day. e two workers who normally worked the overnight shift were at the train- ing, so the housing supervisor told them they weren't scheduled to work that night and he would arrange for relief coverage. However, he had only arranged for coverage the previ- ous night and not that night. e supervisor realized at 5 p.m. there was nobody to cover the overnight shift starting at 11 p.m. and told the staff to call around for relief workers. He also told the group of workers — including Watson — "I totally forgot to get it covered can you cover two shifts tonight," before leaving. Most of the other workers were on their way out except for Watson — who was work- ing the 3:30 p.m. to 11:30 p.m. shift — and another worker who was being replaced at 6 p.m. Watson continued to work and, when no one showed up for the scheduled shift at 11 p.m., concluded there must have been an er- ror. He and the relief worker who started at 6 p.m. were both scheduled to leave at 11:30, so he called the on-call supervisor at 11:14 and off ered to work a double shift. e on- call supervisor asked him if he was sure, to which he replied in the affi rmative, so she approved it. At 6:43 a.m., a motion-activated video camera recorded Watson — who was almost 18 hours into his double shift at the time — entering an offi ce, shutting the door, turning the lights off and sitting in a chair with his feet up. e camera then shut off and was activated again at 7:22 a.m. when Watson got up out of the chair and answered the door after a resident knocked on it. On March 17, shelter residents com- plained that staff in general weren't avail- able enough. Eva's management looked at the videotapes and observed Watson's nap from the morning of March 7. An investiga- tive meeting was held and it was determined Watson was "sleeping/in a restful state for approximately 30 minutes" and also had watched some television during the shift. Watson admitted that "sometimes the front desk is unattended and you sometimes do not do fl oor checks." Eva's terminated Watson's employment for sleeping at work and not fulfi lling his du- ties, which were extremely serious examples of misconduct, considering the risk to resi- dents and the lack of supervision workers had on the job, especially on the overnight shift. e shelter also claimed Watson lied in order to get the double shift, giving the on- call supervisor the impression he had called for relief workers before off ering to work the double. YOU MAKE THE CALL Was there just cause for dismissal? OR Should Watson have been given another chance? IF YOU SAID Watson should have been given another chance, you're right. e arbitrator found Watson was guilty of serious misconduct. No matter how tired he was by the end of his double shift, it was irresponsible to isolate himself in the offi ce and create conditions which would likely cause him to fall asleep after so many hours at work. However, the arbitrator considered the fact Watson had four years of service without previous discipline and the misconduct was the result of "an extremely long shift result from a scheduling error that was no fault of his own as opposed to a fl agrant disregard for his employment responsibilities." e arbitrator ordered Eva's to reinstate Watson with a 10-day suspension on his record instead of a discharge, "While (Watson's) conduct might be de- scribed as 'intentional' it was brought about by circumstances that were unusual and ought not, especially in light of this proceed- ing, to reoccur," said the arbitrator. See Eva's Initiatives and CUPE, Local 4358-02 (Wat- son), Re, 2015 CarswellOnt 6317 (Ont. Arb.).

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