'When there's serious misconduct, it’s not an automatic termination,' says lawyer offering tips for HR
“When there’s serious [employee] misconduct, it’s not an automatic termination. Discipline is pretty much always deserved in those situations, but it can't be a one-size-fits-all approach - you need to look at all of the factors when assessing the appropriate penalty for something like theft in the workplace.”
So says Nicolette Belliveau, a labour and employment lawyer at McInnes Cooper in Moncton, after an arbitrator ordered NB Power to reinstate a fired worker who reconnected electrical service to his home after it was disconnected for nonpayment of his bill.
The worker was employed by New Brunswick Power Corporation (NB Power), the province’s electricity provider, since 2001. He was a power line technician (PLT) and was promoted to general foreman in early 2021, which was the last level of unionized supervision. He had no discipline on his record.
NB Power’s code of ethics prohibited the misappropriation of “corporate funds, assets, or property.”
Around 2019, the worker’s wife was diagnosed with postpartum depression that caused her to act abnormally and abuse alcohol. He also didn’t realize that, during her illness, his wife stopped paying household bills. This resulted in their electrical service account with NB Power getting in arrears. NB Power sent written notices of their bill payment issues, but the worker didn’t see them as the account was in his wife’s name.
Problems at home lead to health problems
In early 2022, the worker told his supervisor about his wife’s condition and his home life, and he was referred to an industrial psychologist. The worker told the psychologist that he was “very stressed” and “very anxious.” The psychologist told management that she was concerned about the worker’s health, but she didn’t provide details due to professional confidentiality obligations.
By July 2022, the worker’s electrical service account was in arrears by more than $2,000. The company made several attempts to contact the worker and his wife in March through automated calls and a letter sent to their home advising that their electrical service was subject to disconnection if payment arrangements weren’t made. However, it received no response.
In June, NB Power made more calls and another letter advising that a payment of more than $1,900 was needed by July 11 to avoid disconnection. There was no response.
On July 13, NB Power disconnected electrical service to the worker’s home for non-payment. The worker came home for lunch and discovered that there was no power. He checked his home’s meter and saw that service had been disconnected with “sleeves” that interrupted the power. He removed the sleeves with his own tools and reconnected the power.
The worker later said that he initially thought it was a prank by his colleagues, but when he called his wife, he learned that she had only been paying parts of the electrical bill. He called the NB Power customer care centre and was told the overdue portion of the bill had to be paid for service to be restored.
The worker left the power connected and, about a week later, went on a two-week vacation.
Theft of power by worker
On Aug. 4, a meter reader reported activity on the worker’s meter. NB Power once again disconnected the power, this time using a method that made it more difficult to restore. It assigned a PLT from a neighbouring district to do it as it was concerned over having one of the worker’s direct reports be involved.
When the worker returned from vacation, the operations manager called to tell him that his power had been disconnected again and he was to stay home until NB Power decided what to do.
The worker called customer care and pretended not to know why his service had been disconnected. He reported making a payment and asked for immediate reconnection, complaining about the reconnection fee when he could “go out and take my meter seals off and put the meter back on.”
On Aug. 12, the arrears payment was returned as “non-sufficient funds.” After a warning, the worker made a successful payment.
Management met with the worker and they asked him how his actions would impact his ability to lead his team. The worker replied that they would “have his back,” which led management to believe that the worker failed to understand his leadership position and how it put his subordinates in a difficult position of having to potentially disconnect his power.
Termination for theft
On Aug. 30, the worker’s employment was terminated for theft of power in breach of the code of ethics, along with abuse of his skills, knowledge, and tools to reconnect his power and lying about it.
The worker said that he understood the severity of what he did, calling it one of the biggest mistakes in his life. The union grieved the termination, alleging that the discharge was excessive based on the worker’s lengthy, discipline-free record, and the effect of the worker’s personal situation on his actions. It also maintained that the worker didn’t intend to steal and it was an impulsive decision.
The arbitrator noted that NB Power owned the electrical service and the worker intentionally used electrical service for 23 days knowing that he wasn’t permitted to do so. It may not have been theft “in the strict sense of the word,” but it was a breach of trust that constituted serious misconduct, said the arbitrator.
In determining the level of seriousness, the arbitrator found that there was “a particular need for this employer to rely on the integrity of those employees with the knowledge, power, tools, and opportunity to divert it of its property” and the worker abused such knowledge and power, which was further aggravated by him being in a leadership position.
The arbitrator also found that, while the initial reconnection of the power could have been a momentary lapse in judgment, when the worker left it reconnected for three weeks without disclosing it to NB Power it became “intentional repetitive conduct.” However, it was important to note that the worker had the tools and knowledge to reconnect to a pole that might never have been detected, but he chose to reconnect it at the meter where he knew consumption would be recorded. This meant he likely intended to eventually pay for it, the arbitrator said.
In addition, the worker was truthful about his misconduct, although not until he was caught, said the arbitrator in finding that the worker understood the serious nature of his misconduct.
Termination not automatic
The arbitrator considered that the worker was a respected 20-year employee with no previous discipline and found that he was unlikely to repeat his misconduct. There was also no evidence that other employees would refuse to work with him or there was any animosity, the arbitrator said in justifying reinstatement.
In assessing the validity of termination as appropriate discipline, it’s not mechanical but rather a case-by-case balance of mitigating and aggravating factors, says Belliveau.
“There were personal issues [for the worker], but he was also a 20-year employee who had no prior discipline - we can imagine a case where a four- or five-year employee had done the same thing with similar personal circumstances and maybe the decision would have been different with the shorter service employee,” she says.
“Theft has been recognized as one of the most serious forms of misconduct and the decision highlights that the worker was in a leadership position,” adds Belliveau. “But there's no automatic for-cause termination - it’s probably going to lean towards a serious disciplinary measure because it's serious misconduct, but it can't be just a checklist.”
The arbitrator determined that serious discipline was warranted, but termination was excessive. NB Power was ordered to reinstate the worker with an unpaid suspension equal to the 13 months from his termination to the decision date, without loss of seniority or benefits.
Breach of trust serious
Despite overturning the termination, the arbitrator recognized that breach of trust by someone in a leadership position is serious, says Belliveau.
“I think the arbitrator tried to walk a fine line of recognizing that seriousness but also rejecting the employer’s disciplinary measure of termination,” she says. “Especially in this industry, the question of theft is important and trust in the workplace is important.”
“It's reasonable for an employer to have a higher standard for leadership employees when it comes to trust in the workplace, because they not only have access to whatever service it may be, but also leading other employees and setting an example,” adds Belliveau. “Obviously, that wasn't enough in this case to displace all of the other factors, but it's dishonesty and breach of trust that was still treated seriously.
“The termination wasn’t upheld, but the arbitrator ordered a serious unpaid suspension, so it was still quite a serious disciplinary measure.”
See IBEW, Local 37 and New Brunswick Power Corp. (Seeley), Re, 2023 CarswellNB 619.
