Thursday, February 7, 2013

Discipline and Discharge--Theft of time

This summary prepared by blog contributor Diane MacLean

Surrey (City) v Canadian Union of Public Employees, Local 402,
Date: October 29, 2012 Arbitrator: Mark J. Brown

Grievance: Dismissal (for alleged theft of time; grievance dismissed)



The grievor, a long-term employee, was a by-law enforcement officer. He was regarded as a good employee, having received many commendations. However, he had received discipline for loss of equipment, time theft and dishonesty and inappropriate conduct, all occurring in 2004 or earlier. Due to the nature of the employment, the employer had installed a GPS tracking system to monitor the location and movement history of by-law section vehicles (by-law enforcement officers are assigned specific vehicles). Employees also had fobs that would indicate the time of entering a door and the employer had video cameras in certain areas.

In March 2011, the grievor attended a meeting carrying his gym bag and his employer decided to investigate his actions. The employer found that the grievor was repeatedly taking breaks in excess of what was allowed and he was dismissed. At the hearing, the grievor testified that he honestly believed he did his best to make up time he spent at the gym, but did acknowledge that he misused company time.
Analysis and Decision

The arbitrator applied the Wm. Scott analysis. The union conceded that the grievor had given just and reasonable cause for some form of discipline. The real question to be addressed was whether dismissal was excessive in the circumstances. The arbitrator considered factors in the grievor’s favour: he was a long service employee, he apologized and the dismissal was an economic hardship. However, the arbitrator concluded that the grievor:

… did not work the required amount of time for an extended period of time. It did not occur only during the brief period when he was experiencing a break-up in a personal relationship. I concluded above that the [grievor] was aware he was not making up the time. Therefore it was not a spur of the moment isolated incident ...The nature of the offence is serious. The [by-law officer] position is unsupervised and requires trust. [The grievor] has also been disciplined previously for time theft. On balance, these factors outweigh the others noted above. Therefore I conclude that the employment relationship is irreparable.

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