Canadian HR Reporter

CANADIAN HR REPORTER May 29, 2017 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW LeNoury Law Proactive Advice to Management Employment Lawyer of The Year James LeNoury B.A. (Hons) M.A. LL.B 416-926-1107 • Toll Free 1-877-926-1107 • lenourylaw.com Worker's extended period of time theft, lying outweigh years of good service Alberta employee, union argued discipline wasn't consistent with everyone involved An Alberta arbitration board has upheld the dismissal of a longtime group home coun- sellor for time theft after he and several others were caught in a widespread prac- tice of starting shifts late and leaving early. Tim Page, 58, was a forensic coun- sellor at Counterpoint House, a group home for teenage male sexual off enders in Edmonton. He was hired in 1996 and 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 counsel- lors 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 sched- uled to work at all times for safety reasons. Counsellors weren't present when residents were in school and the employees had an hour in the evenings when residents were in their rooms for quiet time, but the counsellors were required to be present at all other times. Counterpoint's program co- ordinator was responsible for day- to-day supervision and schedul- ing for the staff . Sometimes, staff would get approval from her to trade shifts or work fl ex hours, as many were putting in a lot of overtime. Eventually, employees 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 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 circumstances, 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 settled, and it is safe for one staff mem- ber to be working alone." The practice was also justifi ed by the argument that they were making up for missed meal periods and breaks to which they were en- titled under the collective agree- ment, and senior staff had told them of it when they were hired. A new manager started at Counterpoint House in 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 in- terviews began, so he was one of the last to be interviewed. Several employees admitted to the practice of short-shifting and many claimed they had been told it was a normal and long-term practice when they started work- ing 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 justifi cation and said it was a practice used by a for- mer 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 dis- covered he regularly left as early as 5 a.m. After the interview, the manag- er heard that Page had told a col- league he defl ected the questions and had "stretched the time" he was on shift. He also bragged he had nothing to worry about be- cause he kept changing the ques- tions to focus on missed breaks and didn't admit to anything. Management conducted an investigation that included inter- views with fi ve full-time and 13 casual employees. Many of the employees admitted to coming in late or leaving early for half their shifts, and said their partner did the same on the other half. e investigation determined the allegations of time theft were substantiated, so Alberta Health Services (AHS) — which operated Counterpoint House — dismissed three full-time and one casual em- ployee, including Page, on Aug. 15, 2013. One other full-time employee was suspended without pay for three days as he was considered forthcoming during the investi- gation, acknowledged his wrong- doing and had halted the prac- tice several weeks before it was investigated. Four other casual staff were given letters of warning for trying to minimize or cover up the ac- tions of their colleagues. All AHS employees were given letters of expectation clarifying their hours of work. Page's termination letter stated he had participated in and was aware of co-workers participat- ing in the practice of leaving 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 irrevo- cably damaged the employment relationship. Page's union, the Health Scienc- es Association of Alberta (HSAA), grieved the termination on his be- half. It argued 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 termination was an appropriate response to it. e only things that could save Page's employment and overturn the dismissal were if the length of his discipline-free service was signifi cant enough and the disci- pline was disproportionate to that given to others. However, the board found the "fraudulent conduct of (Page) over such an extended period of time," along with his dishonesty during the investigative interview, out- weighed the nearly two decades of service Page had under his belt, as his conduct seriously damaged the trust AHS could have in him. e board also found the vary- ing levels of discipline that were meted out refl ected the diff erent circumstances of diff erent em- ployees. Some employees were more apologetic and acknowl- edged their misconduct, while others continued to be dishonest and downplayed the seriousness of it. e latter group — which in- cluded Page — was dismissed, and it had been established the practice was mostly followed by regular full-time staff , who also advised others to follow it. "Without knowing all the cir- cumstances 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 expec- tation got off lightly but that can- not aff ect our assessment of the termination of (Page), which must be compared to the discipline im- posed on the other regular full- time employees," said the board. Page's dismissal was upheld. For more information see: •Alberta Health Services and HSAA (Page), Re, 2016 Carswell Alta 2370 (Alta. Arb.). Jeff rey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment- lawtoday.com e board found the varying levels of discipline that were meted out refl ected the diff erence circumstances of diff erent employees at the group home.

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