Officer used employer’s gas card to gas up own vehicle, but owned up to his actions; breach of trust not necessarily irreparable
A New Brunswick adjudicator has ordered the reinstatement of a correctional officer who was fired after he was caught using his employer’s gas card to put fuel in his personal vehicle, with the officer’s remorse, service history, and the relatively small amount of theft all factors in his favour.
The worker was a correctional officer at an open custody centre for young offenders operated by the New Brunswick Department of Justice and Public Safety. Hired on a casual basis in November 2000, he gained full-time status in March 2009.
Over the years, the worker had some attendance issues, which he attributed to stress from his personal life. He had financial problems that caused him to be in arrears for child support for his three children from former relationships and had been prescribed medication to help deal with his stress. He didn’t claim to be stressed by his job, but he didn’t report to work if his stress levels were too high. He claimed he had suicidal thoughts in 2015 and mentioned it to the acting superintendent of the facility where he worked, though he didn’t tell his physician.
In February 2016, the worker told management he had mental health issues and suicidal thoughts, so he took a medical leave, missing six shifts, after which he attended a suicide intervention course at the facility. However, he dropped out because he felt it was too personal and was “too much, too fast.” He also sought counselling both within the employee assistance plan (EAP) and outside it.
On May 10, 2016, the worker asked the unit supervisor for a vehicle key and gas card to access the fuel pumps at a nearby depot operated by the Department of Transportation and Infrastructure (DOTI), as he needed to gas up a vehicle that was to be used to transport open custody clients. He also mentioned he needed to drop off an item at his daughter’s daycare. The supervisor provided the key and card and made an entry in the log about it.
The worker got into his own vehicle to go to his daughter’s daycare first, but noticed the low fuel indicator had come on. He didn’t have his own bank card with him, so he went to the fuel depot and used the gas card to put 20 litres in his truck. He claimed he intended to pay back the amount and felt it wasn’t a big deal, as the previous year he had paid for gas for a work vehicle and was reimbursed for it later. He didn’t speak to his supervisor about using the gas card for his own vehicle.
The program manager for the facility saw the worker in his truck at the time and later noticed the gas card in his possession while talking to him. She told the acting superintendent and the supervisor about her concerns over the worker’s use of the gas card, so the acting superintendent investigated.
Police involved following employer’s investigation
The superintendent learned from a DOTI employee that the gas card had been used for a truck that wasn’t the rental van to be used by the facility and was in fact the worker’s personal vehicle. He determined that a theft of gas had occurred and contacted police. The investigation also turned up other dates when “double fuelling” had occurred while the worker was on the job, but didn’t proceed further. The superintendent contacted the worker the following day and advised him to meet with police for an interview.
The worker went to the police station and talked to police about the situation. He was placed under arrest, charged, and released. He felt he was likely to lose his job, so he contacted a lawyer when he got home. He didn’t report to work after that, calling in sick once so he didn’t trigger a collective agreement provision that called for the loss of seniority and employee status if absent for five consecutive working days without notifying his supervisor. According to the worker, the union advised him to stay off work until the matter was resolved.
The superintendent tried unsuccessfully to arrange a meeting during the worker’s absence, but the worker didn’t respond. A meeting was finally scheduled for June 3.
The superintendent and supervisor wanted the worker to explain his use of the gas card to fuel his own vehicle, but the worker didn’t say much at the meeting. He acknowledged that he had taken gas for his own vehicle and had met with police. When asked why he hadn’t responded to the employer’s efforts to contact him, the worker replied that he had had suicidal thoughts and “didn’t expect to be around.”
The worker also stated that the program manager had given permission for personal use of the card the previous summer, but the superintendent confirmed with the program manager that she had not given permission in this case. The management team determined that the worker had attempted to divert fault from himself, compounding his dishonesty in stealing the gas. This was a “fundamental breach of trust” that was incompatible with his position of correctional officer for youth that required a high level of trust and “an enhanced responsibility to be supportive of youth and help them make good choices.” The worker’s employment was terminated.
The worker, however, felt his termination had already been decided before the meeting — a termination letter had been prepared and was given to him at the meeting — and he wasn’t given an opportunity to change things. As a result of his termination, he had to move in with his parents and didn’t apply for employment insurance benefits until the fall of 2017 because he had been terminated for cause.
The worker filed a grievance arguing termination was too harsh, and said he regretted his actions, and he was taking counselling and treatment to ensure he wouldn’t make such a decision again.
In May 2017, the worker entered a plea of guilty to the theft charge and was sentenced to a conditional discharge with two days’ probation.
The adjudicator noted that the superintendent and supervisor took an “absolutist” approach to the trust attached to the correctional officer position involving theft. However, previous jurisprudence had established that employee theft, like other forms of misconduct, didn’t automatically breach the duty of good faith and trust beyond repair and must be considered in context. He also pointed out that correctional officers at the open custody youth facility didn’t wear police-style uniforms and were less likely to be perceived as “peace officers” by the general public.
“The ‘peace officer’ status of a (correctional officer) is not a general status requiring a standard of near-perfect conduct or an ‘elevated’ standard,” the adjudicator said. “The standard is contextual.”
The adjudicator pointed out that the judge overseeing the worker’s trial for theft considered it to be a “less serious offence” and let him off with a “modest” sentence. In addition, the worker acknowledged his misconduct and accepted responsibility to both the police and his employer.
The adjudicator found that the worker’s taking of gasoline was “a clear error in judgment and by an individual with a recent history of mental distress” that should have been met with lesser discipline than dismissal. The New Brunswick Department of Justice and Public Safety was ordered to reinstate the worker with a two-week suspension in place of dismissal as the discipline of record. The department was also ordered to pay the worker $20,000 to help him with his financial uncertainty while the parties worked out the total compensation for lost wages and benefits.
“To be blunt, $25 for gas it not worth an employee’s career — though I certainly recognize that value is not a deciding factor,” the adjudicator said. “Trust can be restored when the focus of attention shifts from a single act of ‘theft’ to years of acceptable service.”
For more information see:
• CUPE, Local 1251 and Department of Justice and Public Safety, Re, 2018 CarswellNB 142 (N.B. Lab. & Emp. Bd.).
