Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Osbourne falsified her time sheet to show that she had worked until 11:30 p.m. and told one of her subordinate employees to falsify his own time sheet to show the same. e next day Osbourne was supervis- ing on the same shift and closed the store at 10:41 p.m. However, customer arrived a few minutes later and was allowed into the store. e customer bought some items and was let out by a store employee at 10:46 p.m., after which the store was closed once again. Osbourne and the other employees prepared the store for the next day's opening and left at 11:22 p.m. As she had the previous night, Osbourne falsified her time sheet to show that she had worked until 11:30 p.m. A few weeks later, from July 21 to 25 and Aug. 1, 2014, Osbourne filled in for the store manager while the manager was on holidays. Her shifts were to be from 6:30 to 11 a.m. and noon to 3:30 p.m. on Mondays and 8 a.m. to noon and 1 p.m. to 5 p.m. Tuesday through Friday. Osbourne's time sheet for the period indicated she had worked those hours plus three hours of overtime, but the store's sur- veillance video showed her starting work and leaving earlier each day. Her lunch breaks were also longer than scheduled. e Co-op learned about Osbourne's ac- tivities and conducted an investigation into potential time theft. Osbourne was inter- viewed but denied doing anything wrong. She said her time sheets were accurate and she didn't close the store early on June 30 and July 1. e Co-op determined through its inves- tigation that Osbourne had "stolen time" and lied about it on her time sheets. It terminated her employment for time theft on the days she closed early and dishonesty, which the union grieved. Board overturned termination At the arbitration hearing, Osbourne con- tinued to deny she had closed the store early or told her subordinate to falsify his time sheet. ough the arbitration board found her to be "untruthful" and "deceptive," and it agreed Osbourne had committed time theft, the actual amount of time theft wasn't prov- en due to uncertainty over her lunch breaks. e board also found the termination letter was poorly drafted and failed to reference the June 30 store closing. Since Osbourne had a good employment record without prior discipline and it was an isolated incident, the Co-op was ordered to reinstate Osbourne with a formal suspen- sion without pay from the date of her termi- nation. e Co-op appealed to the Saskatchewan Court of Queen's Bench, which found the arbitration board had acted unreasonably in setting aside the termination. e court found that although Osbourne had a good prior record and the Co-op had not enforced incidents of time theft in the past, the Co- op had made it clear to employees that time theft would no longer be tolerated. In addi- tion, Osbourne exacerbated her misconduct by instructing, as a supervisor, a subordinate to commit time theft as well. Osbourne's continued denial of her misconduct added to the seriousness which irreparably dam- aged the employment relationship, the court said in quashing the arbitration decision and confirming the termination. e union appealed this decision to the Saskatchewan Court of Appeal. e appeal court agreed that it had been established that Osbourne closed the store early twice, falsified her time sheets, and di- rected a subordinate employee to falsify his own time sheet. She continued to deny do- ing so in the Co-op's investigation and the arbitration hearing, doubling down on her misconduct. In total, the appeal court found Osbourne "failed to take ownership of her wrongdoing and gave no comfort that she would not repeat it." As a result, the appeal court was "at a loss to understand how the board could have reasonably decided that a viable working relationship between (Os- bourne) and the Co-op could be rebuilt." e appeal court acknowledged the union's argument that the total amount of time Osbourne worked less than what she reported when she closed the store early was less than one hour in total, but the ap- peal court noted that she "did more than just leave work early." She breached the Co-op's trust in her role as a supervisor and in lying about it. In addition, it didn't matter whether there was uncertainty in how much time theft Osbourne committed when filling in for the store manager, as her termination was primarily for the time theft on the early store closings, said the appeal court. "A grievor does not receive an automatic discount from the disciplinary action taken by his or her employer simply because, at an arbitration hearing, the employer is not able to prove the full range of its allegations against the grievor," the appeal court said, if some of the allegations are proven and are serious enough to warrant the disciplinary action taken. In finding the arbitration board's rein- statement of Osbourne was unreasonable, the appeal court upheld the Court of Queen's Bench decision confirming Osbourne's dis- missal for time theft and dishonesty and dis- missed the union's appeal. "(Osbourne) took no ownership of her wrongdoing and the board found as a fact that there could be no comfort that she would not repeat her wrongdoing. In other words, the trust necessary to sustain the em- ployment relationship between (Osbourne) and the Co-op had been fractured in cir- cumstances where the Co-op could have no confidence it would or could be repaired. As a consequence, the termination of (Os- bourne's) employment was the only reason- able bottom line at which the board could have arrived." For more information see: • Retail, Wholesale Department Store Union v. Yorkton Cooperative Associa- tion, 2017 CarswellSask 646 (Sask. C.A.). 6 | January 31, 2018 Employee denied any wrongdoing throughout investigation « from TIME THEFT on page 1 The board's finding that a viable working relationship could be rebuilt was unreasonable: Court 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 preparing for marijuana legalization, Ontario's minimum wage change, and random drug and alcohol testing. You can view the blog at www.employmentlawtoday.com.

• Cover