Employment terminated after changing payroll records, deleting proprietary materials, plagiarism
The New Brunswick Labour and Employment Board has overturned an employer’s order to pay outstanding wages and vacation pay to a worker it fired for plagiarism.
Life Start Training is a Saint John, NB-based company that provides training courses for instructors trying to achieve certification in first aid and safety training. In January 2020, Life Start offered employment to the worker as an instructor, conditional on her completing appropriate training to teach the course. The worker completed the training and joined Life Start in February. In addition to working as an instructor, she was hired to perform some administrative tasks.
When the COVID-19 pandemic arrived, the province of New Brunswick went into lockdown. Life Start stopped its courses and gave the worker administrative work for the first couple of weeks. However, the worker’s role was irrelevant without students to teach.
The company and the worker agreed to an alternate arrangement to keep the worker on payroll, which involved making her a salaried employee instead of an hourly one. The worker was to receive $1,200 for every two-week pay period.
A BC court overturned an employer’s damages for hours not worked because the records were made long after the worker’s employment and were inaccurate.
New duties during pandemic
During the pandemic, the worker developed training videos and manuals, did first responder training, set up kiosks for home shows, and reviewed training manuals, first aid materials for pets, babysitting courses, and skills assessment manuals. According to the worker, all of the work was requested and approved by Life Start.
The worker took a course in July that was recommended by Life Start to increase her certification levels. However, the company didn’t reimburse her for costs of that course or another one in November. However, Life Start claimed that it prepaid for the course, which took one day but the worker took eight days for a mentorship program that it didn’t approve. It also didn’t approve a November course.
Life Start hired a computer forensic company to investigate the worker’s computer and found that the worker had accessed and changed payroll records, deleted proprietary company materials, and had plagiarized other sources for her training videos, making them useless to the company. The computer itself was also corrupted, resulting in a loss of data.
According to the company, the worker logged more than 1,000 hours developing training materials that ended up being copied from other sources. Because of this plagiarism, Life Start terminated the worker’s employment on March 19, 2021.
A BC employer was liable for unpaid wages due to improper deductions of business expenses from a worker’s commission for two-and-a-half years.
Worker claimed employer owed her wages, vacation pay
The worker filed an employment standards complaint, alleging that Life Start owed her unpaid wages from extra hours, vacation pay, and expenses related to her job.
Life Start maintained that the worker was paid for Family Day and her holiday pay was part of her salary.
An employment standards officer found that the worker wasn’t paid holiday pay on Family Day 2021 and Life Start also owed her compensation for mileage, accommodation, and fees for the July 2020 course. The officer also found that Life Start didn’t pay the worker vacation pay equalling four per cent of her gross wages, as required by the New Brunswick Employment Standards Act (ESA). Life Start was ordered to pay $3,407.73 to the worker.
Life Start requested the matter be referred to the New Brunswick Labour and Employment Board.
The concepts of vacation time and vacation pay are related but not the same, says an employment lawyer.
Reliable payroll records
The board noted that Life Start provided payroll records and other materials concurrent with the worker’s employment, while the worker provided documents prepared much later and many she made herself, making them less objective. As a result, the company’s evidence was more reliable, said the board.
The board found that the payroll records matched the salary rate that had been agreed to and also showed payment for two weeks’ vacation in December 2020. This supported the conclusion that vacation pay required by the ESA was paid as part of the worker’s salary and, since the records showed payment in full, there were no outstanding wages, said the board.
The board also found that, since the worker plagiarized the instruction videos, she didn’t perform the work that had been assigned to her. Had there been outstanding wages, the company would not be obligated to pay her, the board said.
The board determined that the worker was paid all the wages and vacation pay that was owed to her and overturned the order to pay. See Russell v. Life Start Training Inc. (Life Start), 2023 CanLII 67280.
