'[Worker's] conduct after the fact helped show that the trust was irreparably damaged'
An Ontario arbitrator has upheld the firing of a worker following time and property theft which the worker tried to downplay.
The worker was a custodian with the Dufferin Peel Catholic District School Board north of Toronto, hired in 2006. In addition to his job, he ran a landscaping business.
On April 20, 2021, the worker approached a technician performing maintenance and repair on the board’s landscaping and snow removal equipment. He had a weed trimmer and asked the technician to take a look at it.
According to the worker, he believed that the weed trimmer was his own and didn’t ask the technician to fix it. The technician repaired the weed trimmer but noticed a board sticker on it identifying it as board property. The technician put it back in a storage room instead of returning it. The interaction was recorded on surveillance video.
Later that day, the technician noticed the worker golfing on the school’s back field. He also saw that the weed trimmer he had serviced – which was from a different school - was in the back of the worker’s pickup truck.
The technician reported the day’s events to the board, as custodians weren’t supposed to transport equipment between schools or use their own equipment. They also weren’t supposed to use board equipment for non-board work.
Video surveillance
The board reviewed additional video surveillance footage that showed the worker walking to the back sports field, hitting a golf ball, then following the ball and hitting it again. This lasted for about 20 minutes.
The worker was also caught on video surveillance on April 20 pulling up beside a school garden and digging out a significant portion of a shrub. He lifted the shrub with roots intact and placed a white bag in the spot where he had been digging. He returned a short time later, shovelled dirt into a bag, put the shrub in the bag and drove away with it. It was later discovered that the worker planted the shrub in his garden at home.
One week later, on April 27, video surveillance caught the worker washing his truck for almost two hours during the workday.
The board investigated the multiple incidents, including interviewing the worker, the technician, and the worker’s lead hand. The worker said that he didn’t know the technician repaired the trimmer, as he only asked him to “take a look at it.” He also said that he suffered from attention-deficit hyperactivity disorder (ADHD) and he was colour-blind, which may have caused him to mix up the board’s weed trimmer with his own.
As for the golfing, the worker admitted to it but said that golf courses had been shut down because of the pandemic and he missed playing. He later said that he was checking for hazardous material and garbage on the field while swinging his golf club, and it didn’t interfere with his ability to do his job.
Investigation into misconduct
The worker also admitted to digging up the shrub, but he said it was overgrown and had to be cut back. He claimed he was going to “re-transplant” it but he ran out of time. When asked what he did with it, he said it was dead but later acknowledged taking it home. He said that he hadn’t intended to return the shrub, but he would if the board wanted him to.
The worker acknowledged that he washed his truck during working hours, but he said that his tailgate had stopped functioning properly because of debris from his landscaping business. He said that it was wrong and “should not have done that.”
The school board approached the matter appropriately by investigating and interviewing the worker, according to Madeleine Loewenberg, an employment lawyer, workplace investigator, and mediator at Loewenberg Psarris in Toronto.
“They had a meeting with the [worker] in order to get his side of the story before making any decisions - which is critical in any case where an employer wants to impose discipline or discharge someone for their misconduct,” she says. “It seems that they spoke to everyone who was involved and they had surveillance evidence that helped to confirm what happened.”
On June 8, the school board terminated the worker’s employment for misconduct. The termination letter listed the misconduct as taking a board-owned weed trimmer home after servicing it at the board’s expense, golfing on school property during working hours, removing a shrub without permission and taking it home, and washing his truck during working hours.
Termination excessive: union
The union grieved, alleging that termination was disproportionate and unreasonable. It argued that the worker didn’t intend to steal anything, there were no clear policies stating that the worker’s conduct was worthy of discipline, and the board’s investigation was flawed and unfair. It also said that the worker apologized and took responsibility.
The worker also claimed that the lead hand had given him permission to clean his truck because the debris interfering with his tailgate was from work-related activities, but the lead hand said that he didn’t give explicit approval to wash his truck. The worker hadn’t brought this up in the investigative interview.
The arbitrator found that the worker believed the board’s weed trimmer was his own and he attempted to get it fixed at the board’s expense, particularly since he retrieved it after the technician had put it back in storage. This was dishonest and premeditated conduct deserving of discipline, particularly since he refused to acknowledge that he intended to get it fixed, said the arbitrator, adding that the worker provided no medical evidence supporting his claim that his various conditions contributed to his behaviour and he had never requested accommodation.
The arbitrator also found that the worker’s explanation of his golfing didn’t hold up, as the video footage didn’t show him picking up any trash or looking for it. He also didn’t have any tools with him for doing such work, the arbitrator said in finding that the worker was guilty of time theft and tried to minimize his misconduct.
As for the shrub incident, the arbitrator found that the worker’s conduct went “well beyond trimming or cutting the shrub back and constitutes theft.” It wasn’t a spur-of-the-moment decision and the worker only reluctantly acknowledged taking the shrub home. He initially refused to admit to taking it, said it was dead, and tried to downplay this incident as well, said the arbitrator.
Time theft
The truck washing incident was also time theft, the arbitrator said, adding that regardless of the worker’s explanation, it involved planning. The worker initially apologized, but then changed his story and tried to justify his actions, and his claim that he had been given permission – which he hadn’t mentioned in the investigation – “defies any logic” and was inconsistent with what the lead hand said, who didn’t have the authority to grant permission anyway. It was another case of the worker trying to justify or downplay serious misconduct, the arbitrator said.
“The worker initially seemed forthcoming and apologetic, and then perhaps he got some bad advice and came up with other explanations for his misconduct, including reference to his mental illness which the arbitrator wasn't particularly impressed with,” says Loewenberg. “In some ways, he helped the employer’s case to show the breakdown of the trust necessary to continue the employment relationship, as his conduct after the fact helped show that the trust was irreparably damaged.”
The premeditation involved in his actions was particularly problematic for the worker, adds Loewenberg.
“Bringing the golf clubs to work and deciding to wash the truck at work, digging the plant up and then returning for dirt - these are activities that required some planning and exacerbated the seriousness,” she says.
The arbitrator determined that the worker’s multiple incidents of dishonesty and theft irreparably broke the employment relationship. Despite the fact that the worker had 15 years of discipline-free service, his misconduct was serious enough to justify termination, said the arbitrator in dismissing the grievance.
Importance of investigations
Loewenberg reiterates the importance of the school board taking the time to get the worker’s version of events in its ultimate success in justifying dismissal.
“If the employer doesn't consider all relevant factors and then imposes discipline or discharge, it may be procedurally viewed as a reason to reduce the penalty that was imposed,” she says. “This case is a great example that if the employer takes those steps and then the worker changes his story later, that improves the employer's case if the matter goes to arbitration.”
“To justify the discipline, you want to make sure it's fair and appropriate in all the circumstances - even if it's fair, that doesn't stop somebody from filing a grievance,” says Loewenberg. “[The worker] obviously wanted to save his job, and in a situation like that, it's helpful to have a record so if the story changes, you have evidence of that.”
See CUPE Local 1483 v. Dufferin Peel Catholic District School Board, 2024 CanLII 48607.
