Canadian Employment Law Today

May 10, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 3 Cases and Trends Worker's extended period of time theft and lying outweighs years of good service Employee argued discipline wasn't consistent with all involved but other full-time workers were also fired BY JEFFREY R. SMITH AN ALBERTA arbitration board has upheld the dismissal of a long-time group home counsellor for time theft after he and several others were caught in a wide-spread practice of starting shifts late and leaving early. Tim Page, 58, was a forensic counsellor at Counterpoint House, a group home for teenage male sexual offenders in Edmon- ton. He was hired in May 1996 and was considered a good counsellor with a strong work ethic who was good with counselling and building trust with the residents of the house. His duties included supervising and counselling residents and providing direct patient care as part of the team at the house. Usually, two forensic counsellors worked day and evening shifts at the house, with one working overnight while residents slept. However, after a serious incident in 2008, the schedule was changed so two staff members were scheduled to work at all times for safety reasons. Counsellors weren't present when resi- dents were in school and had an hour in the evenings when residents were in their rooms for quiet time, but were required to be pres- ent at all other times. Counterpoint House's program co-ordi- nator was responsible for day-to-day super- vision and scheduling for the staff. Some- times, staff would get approval from her to trade shifts or work flex hours, as many were putting in a lot of overtime. Eventually, em- ployees were allowed to trade shifts among themselves without notifying the program co-ordinator in advance, which could result in both staff members on duty during a par- ticular shift being in a short-shift situation where they were to leave early or come in late. Over time, this practice evolved further to the point where many staff members left early or came in late even if they weren't in a short-shift situation. In such circumstanc- es, shift partners agreed in advance that one would come in late or leave early one day and the other would the next. ey claimed this would only be done if the "house is set- tled, and it is safe for one staff member to be working alone." e practice was also justi- fied by the argument that they were making up for missed meal periods and breaks to which they were entitled under the collec- tive agreement, and senior staff had told them of it when they were hired. A new manager started at Counterpoint House in April 2011. She soon learned of the shift-sharing practice and that half of full-time staff left their shifts early and half had their partner leave early. In 2013, she proceeded to interview 22 employees about this practice. Page was on vacation when the interviews began, and he was one of the last to be interviewed as a result. Several employees admitted to the practice of short-shifting and many claimed they had been told it was a normal and long-term prac- tice when they started working at the house. Worker tried to justify shortening his shifts Before Page was interviewed, he told several co-workers that he was going to justify his absences as making up for missed meals and breaks at the beginning and end of his shifts. At his interview, he stuck to this justification and said it was a practice used by a former program co-ordinator. He also claimed he didn't leave early on evening or night shifts if only a casual counsellor was left on duty and acknowledged that what he and other staff were doing was "not proper." Page said that when he left early on the night shift — which ended at 7 a.m. — it was usually around 6 a.m. or later. However, management soon discovered he regularly left as early as 5 a.m. After the interview, the manager heard that Page had told a colleague that he de- flected the questions and had "stretched the time" he was on shift. He also bragged that he had nothing to worry about because he kept changing the questions to focus on missed breaks and didn't admit to anything. Management conducted an investigation that included interviews with five full-time and 13 casual employees. Many of the em- ployees admitted to coming in late or leaving early for half their shifts and their partner do- ing the same on the other half. e investiga- tion determined the allegations of time theft were substantiated, so Alberta Health Ser- vices (AHS) — which operated Counterpoint House — dismissed three full-time and one casual employee, including Page, on Aug. 15, 2013. One other full-time employee was sus- pended without pay for three days as he was considered forthcoming during the investiga- tion, acknowledged his wrongdoing and had halted the practice several weeks before it was investigated. Four other casual staff were giv- en letters of warning for trying to minimize or cover up the actions of their colleagues. All AHS employees were given letters of expecta- tion clarifying their hours of work. Page's termination letter stated that he had participated in and was aware of co- workers participating in the practice of leav- ing early and coming in late for scheduled shifts, putting patient safety at risk. It also said his dishonesty in trying to downplay the frequency and severity of his time theft was serious misconduct and irrevocably dam- aged the employment relationship. Page's union, the Health Sciences As- sociation of Alberta (HSAA), grieved the termination on his behalf. It argued that his discipline was disproportionate compared to that for several other employees who weren't terminated. e board of three arbitrators agreed that Page's misconduct was serious and termina- tion was an appropriate response to it. e only things that could save Page's employ- ment and overturn the dismissal were if the length of his discipline-free service was sig- nificant enough and the discipline was dis- proportionate to that given to others. However, the board found the "fraudulent conduct of (Page) over such an extended pe- riod of time" along with his dishonesty dur- ing the investigative interview outweighed the nearly two decades of service Page had under his belt, as his conduct seriously dam- aged the trust AHS could have in him. e board also found the varying levels of discipline that were meted out reflected the different circumstances of different employ- ees. Some employees were more apologetic and acknowledged their misconduct, while others continued to be dishonest and down- played the seriousness of it. e latter group — which included Page — were dismissed, and it had been established that the practice was mostly followed by regular full-time staff, who also advised others to follow it. "Without knowing all the circumstances and the reasoning of the employer, it does seem that the four casual employees who received letters of warning and a few who received letters of expectation got off lightly but that cannot affect our assessment of the termination of (Page), which must be com- pared to the discipline imposed on the other regular full-time employees," the board said. Page's dismissal was upheld. For more information see: • Alberta Health Services and HSAA (Page), Re, 2016 CarswellAlta 2370 (Alta. Arb.).

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