Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends In May 2017, the worker entered a plea of guilty to the theft charge and was sen- tenced to a conditional discharge with two days' probation. e adjudicator noted that the superin- tendent and supervisor took an "absolutist" approach to the trust attached to the cor- rectional officer position involving theft. However, previous jurisprudence had es- tablished that employee theft, like other forms of misconduct, didn't automatically breach the duty of good faith and trust be- yond repair and must be considered in con- text. He also pointed out that correctional officers at the open custody youth facility didn't wear police-style uniforms and were less likely to be perceived as "peace officers" by the general public. "e 'peace officer' status of a (correction- al officer) is not a general status requiring a standard of near-perfect conduct or an 'el- evated' standard," the adjudicator said. "e standard is contextual." e adjudicator pointed out that the judge overseeing the worker's trial for theft con- sidered it to be a "less serious offence" and let him off with a "modest" sentence. In addi- tion, the worker acknowledged his miscon- duct and accepted responsibility to both the police and his employer. e adjudicator found that the worker's taking of gasoline was "a clear error in judg- ment and by an individual with a recent his- tory of mental distress" that should have been met with lesser discipline than dis- missal. e New Brunswick Department of Justice and Public Safety was ordered to re- instate the worker with a two-week suspen- sion in place of dismissal as the discipline of record. e department was also ordered to pay the worker $20,000 to help him with his financial uncertainty while the parties worked out the total compensation for lost wages and benefits. "To be blunt, $25 for gas it not worth an employee's career — though I certainly rec- ognize that value is not a deciding factor," the adjudicator said. "Trust can be restored when the focus of attention shifts from a single act of 'theft' to years of acceptable service." For more information see: • CUPE, Local 1251 and Department of Jus- tice and Public Safety, Re, 2018 Carswell- NB 142 (N.B. Lab. & Emp. Bd.). Worker received light sentence for theft conviction Common practice didn't justify breach of fiduciary duty « from GAS-STEALING on page 3 « from PUBLIC WORKS on page 1 Employee bonuses, travel reimbursements, disposal of material required approval properly reporting his activities and playing cards with his crew during work hours. is led to a 10-day suspension on Aug. 12, 2015, and a discipline letter stating that "any fur- ther misconduct after the suspension will be termination without any reasonable sever- ance notice." ree months later, in November 2015, the public works manager received a text from a Samson Creek band member ask- ing why public works trucks were delivering material off Samson Cree lands to a grocery store nearby. e manager asked Potts about it and Potts replied, "I told you it was before your time and I will leave it at that." Potts also said the store owner had given the staff $2,000 — he sometimes advanced money to the Samson Cree Nation through the band office with five per cent interest and helped cash cheques that were approved by the na- tion's financial department but weren't pro- cessed in time — to attend a retreat and they were paying him back with 10 loads of sand and gravel. e manager contacted a council member, who asked the ombudsman to conduct an investigation. e ombudsman interviewed Potts, who described the arrangement with the store owner and said he had "done it for years." Potts also claimed previous managers had been aware of such arrangements. How- ever, the investigation determined that Potts breached the Samson Cree Nation employ- ment policy — Samson Cree Nation wasn't in the business of selling material and dis- posal of any such material required written authorization from the band administrator and approval from the chief and council. Em- ployee bonuses and travel reimbursements also had to be approved. e supervisor, band administrator, director, and chairman decided to terminate Potts' employment for the unauthorized sale of material and provi- sion of bonuses to staff effective Feb. 3, 2016. Potts' earlier suspension factored into the decision to terminate him. Potts filed a complaint of unjust dismissal under the Canada Labour Code, claiming the arrangement he made with the store owner was a common one the store owner had with the Samson Cree Nation and other depart- ments and individuals regularly received money from the store owner. Potts said he had the right to take the loan on behalf of the nation and "other people do it" without official documents condoning the practice. He claimed he was singled out for discipline and discriminated against because his fam- ily had dealings with the ombudsman's fam- ily — and he had not received any warnings about his job performance before his 10-day suspension in August 2015. e adjudicator found Potts was guilty of serious misconduct, as he admitted to tak- ing the loan on behalf of the public works department, failed to answer his manager's questions about it and misappropriated the nation's goods. As for any bias on the part of the ombudsman during the investigation, Potts didn't raise any objections at the time of the investigation and didn't see any evi- dence of bias in the investigation's findings, the adjudicator said. e adjudicator also found that while Potts had been spoken to about playing cards at work, these weren't formal warnings and couldn't be counted towards progressive discipline. However, the 10-day suspension was a clear warning that Potts needed to im- prove and the nation made it clear his em- ployment would be in jeopardy with further misconduct. e adjudicator agreed that Potts' actions in taking the loan from the store owner for expenses related to a staff retreat exceeded his authority, but didn't necessarily warrant termination. However, Potts exacerbated his misconduct when he used Samson Cree Na- tion goods to repay the loan without trying to make requests through proper channels. e adjudicator found that Potts breached his fiduciary responsibility to the nation as the acting manager in the public works de- partment and it made no difference whether it was a common practice in dealings with the store owner, said the adjudicator. "(Potts') use of public works employ- ees, equipment and the misappropriation of materials may have significant conse- quences to the reputation, relationships and funding arrangements of the nations," the adjudicator said. "I accept the (nation's) evidence that Mr. Potts' actions created a potential liability for the nation and are egregious in the extreme." e adjudicator determined there was just cause for the termination of Potts' employ- ment based in the significance of his miscon- duct and his previous suspension. See Potts and Samson Cree Nation, Re, 2017 Carswell- Nat 7306 (Can. Lab. Code Adj.).

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