'If you suspect your employee needs accommodation, you have to inquire'
“Termination is the capital punishment of employment and labour law, so if an employer is going to fire somebody, it better have a really good reason – especially for unionized employees, who will fight tooth-and-nail to get reinstated.”
So says Charles Millar, a labour and employment lawyer at Achkar Law in Toronto, after an arbitrator ordered a federally regulated employer to reinstate a worker it fired for time theft.
The worker, 35, was a part-time air ops sorter for package delivery logistics company Purolator in Richmond, BC. He was initially hired in 2019 and he became a permanent employee after accumulating 500 hours on the job. When he was hired, the worker signed a form indicating he had read and understood all the company’s policies and procedures.
The worker worked from 2 p.m. to 7:15 p.m. Monday to Friday sorting freight. The Richmond facility was Purolator’s second-largest air operation in Canada and the busiest time was between 5:30 p.m. and 7:15 p.m., with sometimes no freight in the mid-afternoon.
The collective agreement provided for 15-minute breaks for shifts exceeding four hours, and breaks were assigned specific times so that the conveyor belts carrying freight were always covered. Employees were allowed to manage their own bathroom breaks by telling a co-worker to watch their container on the conveyor belt. Normally, there were short daily meetings at which employees were reminded of the company rule that they were to remain in their assigned work areas when not on break, although employee largely worked unsupervised.
In 2023, the manager of the afternoon shift was on a leave of absence and lead hands were tasked with running things. During this time, the lead hands didn’t conduct the short meetings on a daily basis.
Five-day suspension
On May 16, 2023, Purolator suspended the worker for five days for breaching the company’s workplace harassment and violence prevention policy after he spread a false rumour about a co-worker and laughing at the co-worker’s concern over it – and then being dishonest about it in the investigation.
A couple of months later, on July 21, a lead hand informed the senior district manager that the worker and a co-worker had been frequently missing from their assigned areas and had spent too much time in the smoking area and break rooms, with other employees having to make up their workload. The lead hand sent more updates on July 24 saying that the two employees had spent extra time in the washroom and outside.
Purolator’s loss prevention department began an investigation involving interviews with several employees including the worker and the co-worker, cross-checking time sheets and duty rosters, and reviewing video surveillance footage over three days – July 19, 21, and 24.
The worker was asked for explanations as to his whereabouts during his absences. He said that he took a couple of long bathroom breaks and acknowledged that it was poor time management. He also said his father had died of stomach problems related to Crohn’s disease and he may have inherited them, although he didn’t say he was in the bathroom with bowel issues because he was embarrassed.
The worker also said that the weather had been hot and humid and the warehouse wasn’t air-conditioned. He had a condition that caused him to sweat a lot and drink a lot of water, so he had to use the bathroom more frequently. He added that there had been a lineup for water, but video footage didn’t show any lineups.
The worker also offered other explanations, saying he always only took a few minutes. However, management pointed to a 23-minute gap and the worker acknowledged that he “guessed not” that it was a few minutes.
The worker also acknowledged that he didn’t pay attention to the time during his breaks. He apologized and said he would be more mindful of his time management.
Termination
Management perceived the worker to be evasive and refusing to take responsibility, with some of his answers being vague. The company determined that the worker had engaged in time theft totalling 102 minutes over three days. It terminated his employment on July 27 for misrepresenting the time he worked, which “irrevocably breached the bond of trust essential to your employment.”
The union grieved, asserting that the worker’s misconduct was better characterized as misuse of time and termination was excessive. The worker claimed that no freight had been coming down his belt when he left the work area and he had told his manager that he wasn’t feeling well and needed water.
The worker provided a medical note from his doctor at a grievance meeting on Sept. 13 stating that he suffered from diabetes and excessive sweating and should be allowed to drink more water in hot conditions. Purolator had not previously known that the worker had diabetes or that the worker was having bowel movements during two lengthy periods away from his work area.
The arbitrator accepted the union’s concession that Purolator had just cause for some level of discipline, addressing the first question under the Wm. Scott framework. However, upon reviewing the surveillance footage and witness testimony, the arbitrator found that termination was excessive in the circumstances.
The arbitrator accepted the worker’s explanation that two prolonged absences of 20 and 25 minutes, respectively, from his work area were the result of gastrointestinal issues and were non-culpable. Although the worker didn’t specifically mention his condition to Purolator, his reference during the investigation to his father’s health condition that he might have inherited was sufficient to trigger a duty on Purolator to inquire further, the arbitrator said.
Accommodation
“It looks like [Purolator heard what sounded like a potential accommodation request, but there weren’t good notes taken at that meeting,” says Millar. “The arbitrator made an inference against the employer that it likely knew that the worker was looking for an accommodation that the employer didn't provide.”
“As an employer, you have an active duty that if you suspect your employee needs an accommodation, you have to inquire and work together on it,” he adds. “It didn't look as though the worker actively asked for an accommodation or reported it, but there was some suggestion the employer may have known about it.”
The arbitrator also found that the hot temperatures and the worker’s condition of excessive sweating excused any absences of five minutes or less on the days in question. This left the total time for which the worker’s absence was unaccounted for at 57 minutes, said the arbitrator.
The video surveillance footage showed the worker co-ordinating some of those absences with his co-worker and leaving early for breaks using a route not visible to supervisors. While overstaying breaks was attributed to carelessness, the arbitrator noted it reflected a disregard for employer expectations and the impact on co-workers who had to watch the worker’s conveyor belt to remove any packages before they fell off.
The arbitrator determined that the worker’s misconduct was more accurately characterized as misuse of time rather than time theft, noting that there were no allegations of falsification of records and no evidence of missed packages on the conveyor belt, but the worker knew or ought to have known the rules about staying at his work area. In addition, his misconduct was repeated over three days, said the arbitrator.
Time theft
Previous jurisprudence has established that context and the impact on the employer is important for assessing the seriousness of time theft, says Millar.
“In cases of time theft where the employee has just left their station, work has gone undone, and they have done it frequently, that's pretty serious,” he says. “But in cases where the absenteeism doesn't actually amount to much damage to the company, that's something that’s considered [in determining discipline].”
The arbitrator also noted that the worker had a prior five-day suspension for unrelated conduct but accepted that worker’s apologies during the investigation and hearing were genuine. In addition, the worker’s medical conditions were mitigating factors, the arbitrator said.
The arbitrator determined that the termination was excessive. Purolator was ordered to reinstate the worker with a 15-day unpaid suspension and no loss of seniority.
“[Purolator] thought that because the worker had a prior history of dishonesty and a five-day suspension, it thought it [already] had progressive discipline,” says Millar. “This is going to sound frustrating for an employer, but it wasn't the same type of thing – Purolator had a bit of a laissez-faire attitude when it came to taking breaks [with no active monitoring] and the worker took advantage of that.”
Jumping to termination over progressive discipline was Purolator’s biggest misstep, according to Millar.
“I think it's quite possible that if they had just reprimanded the worker and then he committed time theft again, then they may have been justified in termination,” he says. “There's no doubt the worker committed misconduct, he was dishonest, and the trust was broken, but you still have to give them a chance to correct their poor behaviour.”
