Canadian Employment Law Today

hour shift checking for signal "leakage" from coaxial cables and recording them using a GPS system. During a normal shift, it was expected he would be driving for eight or nine hours. ough the GPS system also re- corded times when the driver was driving, it was mainly used to record the co-ordinates of where the leaks were. Another Shaw employee was found to be not working full days but recording them on his timesheets, so he was fired. Because Sin- clair was doing the same job, Shaw decided to investigate him as well. Shaw generated a report from the GPS data for the period of March 2 to April 26, 2015, which showed Sinclair was not reach- ing its expectations for drive time. On one occasion, he was recorded as driving for 1.32 hours and several others less than five hours. Gas records also showed he wasn't driving as much as he was supposed to, but was filling out his timesheets with full days. Shaw tested the GPS backpack Sinclair was using and it proved to be accurate, so it called a meeting with Sinclair to ask him about the difference in the data and his timesheets. Sinclair didn't deny the differ- ences in the GPS data and his timesheets and said he didn't drive beyond what was on the maps of the areas he covered. He insisted he worked 10 hours a day except for one day when he left early for a physiotherapy ap- pointment. On the day in question, a witness saw Sinclair's car leave one hour earlier than what Sinclair claimed. ere were several other days where less than five hours were recorded but Sinclair entered eight hours on the timesheet. In total, Sinclair charged Shaw for 198 hours worked but the GPS data indicated he only drove for 48 hours over that period of time. Sinclair tried to explain that some of the discrepancy was due to driving two differ- ent vans to areas not shown on the uploaded GPS data, and while he was out of town he had another employee submit timesheets for him as he had no access to them. How- ever, he didn't contact anyone to say his timesheets were inaccurate. Shaw considered the time differential to be theft and fraud and terminated his em- ployment. Sinclair filed a claim for unjust dismissal, claiming the GPS data wasn't in- tended to be used to track employees and it was a violation of his privacy. e adjudicator found there were mul- tiple instances of misconduct — falsifying timesheets — during March and April 2015. Sinclair never brought this to Shaw's atten- tion and, while he didn't deny filling them out incorrectly, he didn't admit to making mistakes. He demonstrated no remorse, nor did he acknowledge his misconduct, and his only defence was that there was missing GPS data and he continued to insist he was a good employee, despite his previous warnings. He also was aware that the GPS data could track his movements, said the adjudicator. e adjudicator determined Sinclair "de- stroyed the trust relationship he had with his employer" beyond repair, giving Shaw just cause for dismissal. See Sinclair and Shaw Cablesystems Ltd. (Unjust Dismissal), Re, 2016 CarswellNat 918 (Can. Lab. Code Adj.). Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 More Cases Employee worked a fraction of reported hours « from FALSIFYING on page 1 Employer incorrectly assumes employee gave two weeks' notice AN ONTARIO employer jumped the gun when it assumed an angry employee quit her job and provided two weeks' notice without actually confirming that was the case, the Ontario Labour Relations Board has ruled. Patricia Kelly worked at a Harvey's res- taurant in Ontario. On Nov. 11, 2014, Kelly found out that the restaurant's general manager was not sending her to a training program that she wanted to take. Kelly was angry about it and left the restaurant on her scheduled break, saying that she quit. How- ever, at the end of her break she returned to the restaurant. e general manager told the owner of the restaurant that Kelly had quit, and he indi- cated he wanted to hear it directly from Kelly before accepting that. When Kelly returned, the owner met with her in his office. According to the owner, Kelly confirmed she was quitting and he told her he accepted her resignation. He assumed she was giving her two weeks' notice at that point, though she didn't specifically say so — he assumed two weeks because that was the normal amount of notice employees gave for res- ignations. However, he didn't confirm with Kelly that she was actually giving her two weeks' notice of resignation. Kelly continued to work her scheduled shifts over the next one-and-one-half weeks. Eight days after the incident on Nov. 19, she received a job offer from another employer — following an interview she had a few days previously — which she accepted. She pro- vided the restaurant with a written notice of resignation the next day stating that her last day of work would be Dec. 5. However, the general manager told Kelly she didn't have to work for the remainder of her notice period. Kelly sought clarification and was told she had given notice of resig- nation on Nov. 11, so her last day of work would be Nov. 25 — meaning she only had two shifts left for which she would be paid. Kelly filed a claim for termination pay up to Dec. 5, claiming she didn't actually quit her job on Nov. 11 and she didn't give notice of resignation until Nov. 21. An employment standards officer sided with Kelly and or- dered Harvey's to pay Kelly termination pay for terminating her employment early. Har- vey's appealed the decision to the board, ar- guing Kelly quit her job and therefore wasn't entitled to termination pay. e board found Kelly said words to the effect that she quit as an angry response to not being sent to the training session. How- ever, the evidence showed that she didn't have a subjective or objective intention to quit that day — she returned to work after her break and continued to work without in- cident. ese actions were "simply not con- sistent with an individual who quit her job," said the board. e board also found that the owner had a discussion with Kelly, but never actually confirmed a date of resignation. He assumed she was giving two weeks' notice but didn't actually confirm that was the case. At no point then or subsequently was Nov. 25 dis- cussed with Kelly as the date of her final shift, said the board. In addition, the restaurant's general man- ager never discussed Nov. 25 with Kelly and perhaps "specifically avoided telling Ms. Kelly that her last day of work would be Nov. 25, 2014," said the board. Given Kelly did not quit her job on Nov. 11, Harvey's had no ba- sis to terminate her employment on Nov. 25 without notice. "e employer chose to make use of the events of Nov. 11, 2014, so as to deem Ms. Kelly's employment to be at an end effective Nov. 25, 2014," said the board. e board found Harvey's violated the Ontario Employment Standards Act, 2000, when it failed to pay her until her indicated date of resignation of Dec. 5, 2014. Harvey's was ordered to pay Kelly compensation for two weeks' salary plus vacation pay. See Nunes & Murphy Restaurants Inc. v. Kelly, 2016 CarswellOnt 5064 (Ont. L.R.B.).

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