A British Columbia company wrongfully dismissed an employee who was fired for too many absences related to his position as a volunteer firefighter, an arbitrator has ruled.
Jim Buckley was an employee with Mainroad South Island Contracting on Saltspring Island, B.C. When he was hired in 1988, Buckley informed his foreman he was a member of the Saltspring Island volunteer fire department.
The foreman said that was a good thing for the community and it would give Mainroad good public relations — the company also provided resources to the fire department. Buckley agreed he wouldn’t leave work for a fire call if it would cost Mainroad money and delay work that caused disruptions.
Though Buckley said he would return to work from calls as soon as he could, there was no formal discussion of how long he should be away or how to fill out time cards when he went on a fire call.
Mainroad used time cards and leave forms to meet its legal obligations of knowing whether each employee was at a job site or not. Employees were told to fill out time cards accurately as they were considered legal documents. The Mainroad operational agreement allowed firefighters to respond to emergencies in the community with permission, though Buckley usually didn’t seek permission and often left his time cards incomplete.
Firefighting service discussed
In April 2009, a joint labour/management meeting between the union and Mainroad discussed Buckley’s volunteer firefighting service. The union agreed to speak with Buckley to confirm: he would immediately advise his supervisor when he had to leave for a fire call; he would do his best to limit such leaves to only serious calls; and any remuneration Buckley received for fire calls would be remitted to Mainroad.
Mainroad was not aware Buckley received any pay for fire calls, but the union said it was just an honorarium.
In October 2013, Buckley was given a warning for using a Mainroad grader truck without authorization. He was told a number of times he needed authorization for outside use of company equipment and that he needed to fill out a leave form in order to take time off. Buckley was asked if there was anything else the company needed to know that had happened and Buckley said no.
On Oct. 24, 2013, Mainroad opened an investigation into Buckley’s activities. The operations manager had never seen Buckley submit a leave form for his fire calls, so he obtained records from the fire department to cross-reference with Buckley’s time cards.
The concern was that the time cards recorded the type of work employees did and inaccurate time records could have significant consequences — including the loss of a contract — as they were regularly audited.
The records showed Buckley had left his job 30 times over the previous two years. Most were relatively short, but two in August 2013 were one hour or longer. Buckley did not record that he left work on those time cards and had received a full day’s pay on those days.
The operations manager was further shocked to discover that although the fire department was called a volunteer department, the firefighters — including Buckley — were paid $17 per hour. Therefore, Buckley was paid by Mainroad when he left his job to go to fire calls, while at the same time being paid by the fire department.
This was contrary to the collective agreement, which stated employees would be granted emergency service leave without loss of pay as long as any remuneration received, other than expenses, would be remitted to Mainroad.
Mainroad held an investigative meeting with Buckley on Nov. 19. When Buckley was questioned about his absences, he didn’t say much other than “I do not recall.” Afterwards, Mainroad confirmed with the fire department the accuracy of its records.
On Nov. 26, Mainroad terminated Buckley’s employment, indicating it could not trust him because he didn’t seek authorization for his absences despite the necessity of it being explained to him. Because he was on his own going to worksites, a high level of trust was required and Buckley’s misconduct — which Mainroad characterized as fraud and theft of time — was disruptive to its operations and breached code of conduct.
Buckley testified there was not a lot of direction from Mainroad regarding time cards and he usually just entered the total number of hours at the bottom and the foreman would fill in the task the crew did.
He said he didn’t keep track of the hours that he worked as a firefighter and he was paid with a cheque every six months with no breakdown of hours.
He was unable to answer questions in the investigative meeting because he didn’t have specific information, and he never said he had another job because he didn’t consider firefighting a job, he claimed.
The arbitrator found Buckley had been operating under a “loosey-goosey” system for many years with Mainroad, though the company was making attempts to tighten things up.
However, the arbitrator found it troubling that the labour/management meeting in 2009 seemed to show Mainroad was aware Buckley was receiving some sort of pay for his firefighting duties and set up a framework for Buckley to operate under.
Though the union said it would relay the message to Buckley, Mainroad should have communicated it directly to Buckley or at least followed up with him, said the arbitrator.
“The employer in this case fired (Buckley) for leaving the workplace to attend fire calls 30 times in two years,” said the arbitrator. “The employer, however, knew this was occurring in 2009; including the number of calls — three to four times a month.”
The arbitrator found that whether Buckley was paid or not did not fundamentally change the nature of his actions. Most of his calls were less than one hour and he received his cheques from the fire department every six months without a breakdown of which calls were while he was on the job and which weren’t.
This didn’t support Mainroad’s charge of fraud and intentional time theft, said the arbitrator.
The arbitrator also found Buckley’s lack of answers in the investigative meeting were related to a lack of sufficient information to respond. Most of his responses related to past practice and indicate he didn’t deliberately collect wages from Mainroad for work he didn’t perform.
“While normally the conduct of (Buckley) would be considered very serious, the context of this workplace and the fact the employer knew of this situation in 2009 changes the complexion of the actions at issue from deliberate dishonesty and malfeasance,” said the arbitrator.
“Ultimately, the evidence in my view establishes an employee operating under an understanding he thought to be in place over a significant period of time.”
Mainroad was ordered to reinstate Buckley and compensate him for loss of pay.
For more information see:
• Mainroad Group and BCGEU, Local 10-01 (Buckley), Re, 2014 CarswellBC 3327 (B.C. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at Jeffrey.email@example.com or visit www.employmentlawtoday.com for more information.
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