Canada: Dishonesty Trumps Length Of Service

A recent labour arbitration award has reinforced the importance of honesty in industries where trust is an essential component of the employment relationship. In such industries, any form of dishonesty can justify the discharge of even a longterm employee.

In Sobeys West Inc. v. UFCW Local 1518 (Cahoon Grievance) [2015] B.C.C.A.A.A. No. 36, the grievor, a unionized, parttime clerk at a Safeway store in British Columbia, was discharged when he applied for and took an educational leave under false pretences. He had 34 years of seniority.

For several years, the grievor had reduced his employment status to part-time while working full-time with another employer on the Alberta oil sands. He was able to accomplish this feat by taking advantage of the generous leave provisions in the parties' collective agreement; this resulted in him not attending work from 2012.

In the summer of 2013, the grievor had exhausted all leave entitlements available to him, with the exception of an educational leave which was conditional on attendance at an accredited educational institution. After he provided proof of registration at a B.C. college, the grievor's application for educational leave was granted from Sept. 1, 2013 to Sept. 1, 2014. It was made clear to the grievor that he was expected to comply in all respects with the conditions of the leave and that his compliance would be monitored.

In January 2014, the employer wrote to the grievor and requested proof of attendance at school. Surprisingly, the grievor responded he had withdrawn from all classes because of a September 2013 eye surgery. The employer requested more information, warning the grievor it would conclude he had taken the leave under false pretences should he not provide fulsome answers. The manner in which the grievor responded to the employer's questions was evasive and non-responsive. His employment was terminated for just cause.

At the arbitration hearing, the employer argued the grievor had been deceitful when applying for and taking the educational leave: his sole motive for the misconduct was to keep his fulltime job in Alberta. The employer said the grievor had a positive duty to immediately inform it when his circumstances changed; failure to do so was dishonest. Termination for cause was the only viable option as trust was vitally important in the employer's business, the retail food industry.

The union denied that the grievor had a positive duty to inform, noting the employer had provided no authority on the point. The grievor had fully intended to attend classes in B.C. and had only withdrawn because of his eye surgery. The grievor's oral testimony was that apart from six weeks of leave for his surgery and recovery, he had continued to work full-time for his Alberta employer. While the grievor admitted at the hearing that he had been dishonest when he told the employer he had attended classes before withdrawing, he repeatedly insisted that he had done nothing wrong and accordingly had no reason to apologize.

Arbitrator John Sanderson concluded that the grievor's testimony was unreliable. It was improbable the grievor had intended to attend classes in B.C. when he worked full-time in Alberta. The arbitrator found that the grievor had deliberately not informed the employer when he withdrew from classes in order to keep his Alberta job. The grievor continued to deceive the employer when he provided false and misleading answers to its questions.

Of special note, the arbitrator agreed with the employer that the grievor owed it a duty of good faith and a duty to act honestly and responsibly. This included a positive obligation to inform the employer when he no longer met the conditions of his leave.

This holding is significant because many categories of leave, including sick leave, are conditional. Intentionally failing to inform one's employer of a change in circumstances can constitute dishonesty and result in termination of employment, regardless of whether the leave involves any monetary benefit.

In arguing that the grievor should be reinstated to employment, the union focused on his lengthy service of 3.5 decades as a significant mitigating factor. The union highlighted that by all accounts the grievor was a good employee. The employer responded that long service cuts both ways; a senior employee ought to have known better.

Arbitrator Sanderson held that the grievor's long service may have saved his job in another employment context but not in an industry such as the employer's, where trust is paramount. The arbitrator rejected the union's argument that the major concern in the retail food industry is theft and not other forms of dishonesty. He was clear that in industries which require a high degree of trust, dishonesty in all its forms is damaging to the employment relationship.

The grievor's insistence that he had no reason to apologize was the nail in the coffin. Arbitrator Sanderson found no reasonable basis upon which to order reinstatement and held, "The grievor's behaviour and conduct has been most unfortunate. He has ignored his duty to his employer to act in good faith rather than in his own selfinterest. The responsibility for his actions lie solely with him."

Previously published in The Lawyers Weekly

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
James Kondopulos
Julie Menten
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22 Nov 2018, Workshop, Vancouver, Canada

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