Worker called in sick to work at other job
This instalment of You Make the Call involves a part-time employee who was caught calling in sick so she could work another job.
The 50-year-old worker was a part-time facility aide providing laundry and housekeeping support services at a long-term care facility in Malton, Ont., run by the Regional Municipality of Peel.
The worker had four regular shifts every two weeks. She also took as many call-in shifts as she could get to earn more money, as she was a single mother of an adult son and teenage daughter who both lived with her. She also balanced her work at the Malton facility with another part-time job working call-in shifts at a health centre in nearby Brampton, Ont.
The worker normally told the health centre she wasn’t available on the days of her regular shifts in Malton and usually worked two or three call-in shifts at the health centre every two weeks. However, sometimes she accepted call-in shifts at the health centre when she was scheduled to work at the Malton facility and would try to switch shifts.
The Malton facility had a procedure for switching shifts before November 2011 that allowed employees to switch shifts once every pay period. After then, they were allowed to switch shifts twice. Sometimes the worker was unable to switch a shift at the Malton facility after accepting a call-in to the health centre, so she called in sick. The Malton facility eventually discovered that in 2011, the worker called in sick seven times and on another occasion said she couldn’t make it because of a doctor’s appointment, when in fact she went to work at the health centre instead.
The municipality interviewed the worker and asked the worker if she had ever falsified her reasons for being absent from work or called in sick because she was working for another employer. The worker responded that she couldn’t remember. She also explained that if there was a conflict, she usually took a shift at the health centre because it was closer to her elderly mother, to whom she provided care
The municipality terminated the worker’s employment for providing false reasons for absences, failing to attend scheduled shifts, and violating its employee code of conduct and values.
The union grieved the termination, arguing that discharge was excessive discipline. At the hearing, the worker said she was flustered in the disciplinary interview and wasn’t thinking properly. She also apologized for lying and testified she knew what she did was wrong and would never do it again. She also claimed she had not read the municipality’s code of conduct or any documents related to it that were provided when she was hired.
The union argued the worker did not intend to defraud her employer and received no additional benefit because her job at the health centre paid less than the one at the Malton facility, and the worker acknowledged that sometimes she called in sick to the health centre when she had conflicting shifts.
You Make the Call
Was termination of employment excessive discipline?
OR
Did the municipality have just cause to dismiss the worker?
If you said dismissal was excessive, you’re right. The arbitrator noted that “trust and employee fidelity were fundamental to the employment relationship” and the worker calling in sick when she really wasn’t violated her obligation to report for and work the shifts for which she was scheduled. Eight such instances over a 10-month period in 2011 was serious and dishonest misconduct, said the arbitrator.
The arbitrator found the worker’s explanation that she accepted conflicting shifts at the health centre because it was closer to her mother didn’t make sense as a reason, since she also called in sick at the health centre on occasion so she could work at the Malton facility. She also lied in her interview by saying she couldn’t remember calling in sick to work elsewhere. The worker claimed she was somewhat confused in the interview, and though this didn’t excuse her lies, she also didn’t persist in them at the hearing, said the arbitrator.
The arbitrator accepted the worker’s apology and acknowledgment of her misconduct at the hearing as authentic and found she could be trusted enough to not do it again, especially with significant discipline established. The municipality was ordered to reinstate the worker with a one-year unpaid suspension substituted for her dismissal. The arbitrator also determined that if the worker “commits any disciplinable act of dishonesty related to her employment” with 18 months from her return to work, it would serve as just cause for dismissal.
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