Associating with a prostitute while in a company car was not enough to get a British Columbia natural gas worker fired — but lying about it was, the B.C. Arbitration Board has ruled.
Rob Beere was a customer service technician at FortisBC, the B.C. branch of Fortis Energy, a St. John’s, N.L.-based electrical utility and natural gas distribution company. Beere worked alone with a company vehicle, looking after construction and maintenance in the Langley, B.C., area.
He worked for the company for 21 years with positive job evaluations and no record of discipline.
Encounter with prostitute during shift
On Dec. 20, 2010, Beere worked a double shift and was heading to a job near the end of his shift, a few minutes before midnight. He claimed he wasn’t sure which way to go, so he pulled into a parking lot to check the address and a map on his laptop.
He noticed a woman at the window, he said, so he rolled it down and the woman asked him if he would like a date. Beere said he declined and the woman talked about religion and blessed him before walking away.
While she was standing at his window, he noticed a car pull into the lot and go by. He went back to his computer and when he found the address he was looking for, he drove off.
However, the car that pulled into the lot was driven by a security guard and the guard had a different story. His job was to patrol businesses in the area and report any activity he observed.
The guard reported that when he pulled into the parking lot, he saw the van and a person sitting in the driver’s seat. His headlights were shining on the van and his description of the driver matched Beere’s appearance.
After a few seconds, the guard saw a woman’s head pop up and he later reported he assumed the driver was “being serviced.” When she got out of the van, the woman approached the guard’s window and he recognized her as a prostitute he had known in the area for several years.
When the guard asked the woman if she had been servicing the driver, she replied she had blessed him. She was known by security and police to use that term to refer to sex acts. The guard filed his report and Fortis soon learned of the incident.
The company launched an investigation and determined the van in question was assigned to Beere at the time the guard observed it in the parking lot. Fortis also met twice with the security company, including a visit to the parking lot. Beere was interviewed twice and admitted to being in the parking lot and speaking to the prostitute, but he denied she was in the van. Fortis explained the importance of Beere being truthful and that he would keep his job if he was honest, but it would be affected if he was not.
After a discussion with a union representative, Beere maintained the prostitute was not in the van with him. However, Fortis found the security guard’s report was clear and credible, so it determined Beere was dishonest in the investigation.
It felt his misconduct and breach of its business code of conduct warranted discipline, but his breach of trust — which was important for working in an unsupervised position — made it impossible for him to continue working for Fortis. Beere was fired on Feb. 2, 2011.
The union argued the security guard’s account wasn’t completely credible because he was looking after his own interest and had already assumed the driver of the van was “being serviced” when he arrived at the parking lot.
Given it was Beere’s word against the guard’s with no other witnesses, there wasn’t sufficient proof Beere was lying, said the union, particularly for a long-term employee with no previous trouble.
Job hinged on honesty
The board found there was no doubt Beere was in the parking lot and interacted with the prostitute — both accounts confirmed this. It boiled down to which account was more credible when it came to whether the prostitute was in the van or not, said the board.
The security guard’s report was more credible as he wrote it immediately after Beere left the parking lot and it was his job to observe and report, found the board. Though the security guard had an interest in defending the accuracy of his report, it was outweighed by Beere’s self-interest in denying the prostitute was in his van. Beere risked losing his job if the report was true, while it was unlikely the guard would face the same risk and be motivated to fabricate what he saw, said the board.
The security guard saw the prostitute in the van with Beere and any assumptions he had as to what was going on did not affect what he observed, determined the board. This necessitated a finding that Beere wasn’t honest with his employer during its investigation into the incident, which damaged the employment relationship beyond repair, said the board.
“(Beere) was not honest with (Fortis) or this board in a circumstance which requires honesty in order to retain or rebuild an employment relationship. (He) was also prepared to allow this board to conclude that (the security guard) lied about his observations. These are circumstances in which the employment relationship is not restorable. It is an unfortunate outcome for an employee of 21 years of good service; however, no other finding is available to this board in these circumstances,” said the board.
For more information see:
•Fortis Energy Inc. v. I.B.E.W., Local 213, 2011 CarswellBC 3114 (B.C. Arb. Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
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