Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Gas-stealing corrections officer should be corrected, not fired: Adjudicator Officer used employer's gas card to gas up own vehicle, but owned up to his actions; breach of trust not necessarily irreparable BY JEFFREY R. SMITH A NEW BRUNSWICK adjudicator has or- dered the reinstatement of a correctional of- ficer who was fired after he was caught using his employer's gas card to put fuel in his per- sonal vehicle, with the officer's remorse, ser- vice history, and the relatively small amount of theft all factors in his favour. e worker was a correctional officer at an open custody centre for young offenders operated by the New Brunswick Depart- ment of Justice and Public Safety. Hired on a casual basis in November 2000, he gained full-time status in March 2009. Over the years, the worker had some at- tendance issues, which he attributed to stress from his personal life. He had financial prob- lems that caused him to be in arrears for child support for his three children from former relationships and had been prescribed medi- cation to help deal with his stress. He didn't claim to be stressed by his job, but he didn't report to work if his stress levels were too high. He claimed he had suicidal thoughts in 2015 and mentioned it to the acting su- perintendent of the facility where he worked, though he didn't tell his physician. In February 2016, the worker told man- agement he had mental health issues and suicidal thoughts, so he took a medical leave, missing six shifts, after which he at- tended a suicide intervention course at the facility. However, he dropped out because he felt it was too personal and was "too much, too fast." He also sought counselling both within the employee assistance plan (EAP) and outside it. On May 10, 2016, the worker asked the unit supervisor for a vehicle key and gas card to access the fuel pumps at a nearby depot operated by the Department of Transporta- tion and Infrastructure (DOTI), as he need- ed to gas up a vehicle that was to be used to transport open custody clients. He also mentioned he needed to drop off an item at his daughter's daycare. e supervisor pro- vided the key and card and made an entry in the log about it. e worker got into his own vehicle to go to his daughter's daycare first, but noticed the low fuel indicator had come on. He didn't have his own bank card with him, so he went to the fuel depot and used the gas card to put 20 litres in his truck. He claimed he intended to pay back the amount and felt it wasn't a big deal, as the previous year he had paid for gas for a work vehicle and was reimbursed for it later. He didn't speak to his supervisor about using the gas card for his own vehicle. e program manager for the facility saw the worker in his truck at the time and later noticed the gas card in his possession while talking to him. She told the acting superin- tendent and the supervisor about her con- cerns over the worker's use of the gas card, so the acting superintendent investigated. Police involved following employer's investigation e superintendent learned from a DOTI employee that the gas card had been used for a truck that wasn't the rental van to be used by the facility and was in fact the worker's personal vehicle. He determined that a theft of gas had occurred and contacted police. e investigation also turned up other dates when "double fuelling" had occurred while the worker was on the job, but didn't proceed further. e superintendent contacted the worker the following day and advised him to meet with police for an interview. e worker went to the police station and talked to police about the situation. He was placed under arrest, charged, and released. He felt he was likely to lose his job, so he con- tacted a lawyer when he got home. He didn't report to work after that, calling in sick once so he didn't trigger a collective agreement provision that called for the loss of seniority and employee status if absent for five con- secutive working days without notifying his supervisor. According to the worker, the union advised him to stay off work until the matter was resolved. e superintendent tried unsuccessfully to arrange a meeting during the worker's absence, but the worker didn't respond. A meeting was finally scheduled for June 3. e superintendent and supervisor want- ed the worker to explain his use of the gas card to fuel his own vehicle, but the worker didn't say much at the meeting. He acknowl- edged that he had taken gas for his own ve- hicle and had met with police. When asked why he hadn't responded to the employer's efforts to contact him, the worker replied that he had had suicidal thoughts and "didn't expect to be around." e worker also stated that the program manager had given permission for personal use of the card the previous summer, but the superintendent confirmed with the pro- gram manager that she had not given per- mission in this case. e management team determined that the worker had attempted to divert fault from himself, compounding his dishonesty in stealing the gas. is was a "fundamental breach of trust" that was in- compatible with his position of correctional officer for youth that required a high level of trust and "an enhanced responsibility to be supportive of youth and help them make good choices." e worker's employment was terminated. e worker, however, felt his termina- tion had already been decided before the meeting — a termination letter had been prepared and was given to him at the meet- ing — and he wasn't given an opportunity to change things. As a result of his termi- nation, he had to move in with his parents and didn't apply for employment insurance benefits until the fall of 2017 because he had been terminated for cause. e worker filed a grievance arguing ter- mination was too harsh, and said he regret- ted his actions, and he was taking counsel- ling and treatment to ensure he wouldn't make such a decision again. WORKER on page 7 » 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.

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