Canadian Employment Law Today

School worker expelled Worker can't stick to story about why he took unscheduled break BY JEFFREY R. SMITH AN ARBITRATOR has upheld the dis- missal of a British Columbia worker with previous discipline who was caught taking an unscheduled break and lying about it. e worker was a caretaker for the Co- quitlam School District in B.C., hired in 2006 on a casual basis and promoted to regular caretaker in 2009. In March 2013, the worker was suspended for five days without pay for a series of incidents resulting in a breach of trust. Two weeks after that, he was given an- other five-day suspension for taking an un- scheduled break. Following that latter sus- pension, the worker was instructed to follow all of the school district's policies, proce- dures and guidelines. He was transferred to a new school with the assignment of cleaning the main floor of the school and warned that further incidents involving breach of trust wouldn't be tolerated. Supervisors occasionally stopped by the school to check how things were going or to inspect the school, but for the most part the worker was on his own for most of his shift, as with most caretakers. He worked an afternoon shift from 3 p.m. to 11 p.m., with scheduled breaks at 5 p.m., 7 p.m. and 9 p.m. On Nov. 18, 2014, a supervisor met with the worker and other caretakers on the after- noon shift to discuss them working the day shift three days later — a Friday — and ex- plain why it was necessary. It was school dis- trict policy that the full caretaking crew be consulted on any proposed shift change and given an opportunity to discuss and agree to it. During the meeting, no-one objected to the change for Nov. 21. Worker found hiding in room on cellphone e day before the changed shift, Nov. 20, the general supervisor came to the work- er's school to do a general check-up on the crew working there. He began checking the rooms on the worker's assignment, finding some open and some closed. He came to the closed door of the foods room and looked through the glass panel in the door. He couldn't initially see anyone, but when he moved closer and looked down he saw the worker sitting on a chair close to the door, hunched over and using his cellphone. e supervisor watched the worker for a few seconds and then opened the door. Once inside the room, the supervisor asked the worker what he was doing and the worker replied that he was taking a break for a few minutes. e supervisor reminded him it wasn't a scheduled break time and the worker said he'd only stopped work for about 30 seconds and to "come check the floor; it's still wet." e supervisor checked the floor where the worker was pointing and it was, according to him, almost dry. e worker later testified that he told the supervisor he was texting his wife to arrange for childcare because of the shift change the next day, but the supervisor disagreed he said anything of the sort. e worker denied knowing of the shift change on Nov. 18, in- stead finding out about it at the beginning of the Nov. 20 shift. However, he didn't contact his wife before starting work. e school district held an investigation meeting on Nov. 27. e worker's story re- garding his texting activity changed — he said that initially, he didn't send a text be- cause the supervisor walked in. He was asked to show the message but the worker said it didn't go through so it disappeared. e union agreed to turn over the worker's cellphone records, which didn't show texting history but revealed the worker talked to his wife for five minutes between breaks when he was supposed to be working. A second investigation meeting was held and the company told the worker it was strange he didn't mention the call to his wife before. e worker responded that he had forgotten about it when his supervisor found him and in the first investigation meeting. Without any evidence of texts on the phone or in the records, there was nothing to support the worker's claim he was texting his wife. However, analysis of the workers' cellphone showed deletions were made the day before the first investigation meeting, the day after the meeting, and the day before he provided his phone to the school district. e school district felt the worker had not only taken unscheduled breaks, but he also wasn't forthright or honest during the investigation. e worker's employment was terminated. e arbitrator found the worker wasn't credible in his explanations. He wasn't truth- ful in telling the supervisor he needed to ar- range for childcare, as he would have found out about the shift change three days earlier at best and at the beginning of the shift the day before at worst. He also didn't mention his call to his wife and deleted data off his phone, demonstrating subterfuge. Given the fact that the worker had been disciplined previously for taking an un- scheduled break and for breach of trust, his misconduct in taking another unscheduled break and not being upfront about his be- haviour was serious enough to warrant dis- missal, said the arbitrator. In addition, the worker had a relatively short term of service and showed no remorse, making it difficult for the employment relationship to be re- stored. "I am persuaded the (worker) does not ap- preciate the seriousness of his behaviour and his lack of candour and honesty. I have no confidence he will not repeat such behaviour in the future," said the arbitrator in uphold- ing the dismissal. For more information see: • Coquitlam School District No. 43 and CUPE, Local 561 (Lal), Re, 2015 Car- swellBC 3769 (BC. Arb.). Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as young employees, medical marijuana, religious discrimination and employee criminal charges. You can view the blog at www.employmentlawtoday.com. The worker claimed he was texting his wife about childcare but neglected to mention a phone call to her earlier in the shift

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