Worker must reimburse employer more than $44,000 after being paid for shifts he filed timesheets for but didn’t really work
A New Brunswick employer is entitled to more than $44,000 from a former worker who submitted false timesheets for 41 shifts he didn’t really work, the New Brunswick Court of Appeal has ruled.
The worker worked for Ontario Hydro for 10 years before joining Bruce Power, a business partnership of energy corporations headquartered in Tiverton, Ont., as a radiation protection assistant in 2007.
The following year, in 2008, the worker asked a representative of the Power Workers’ Union, if any employers were hiring radiation protection assistants. He was told that a generating station in Point Lepreau, N.B., was undergoing refurbishment and a subcontractor on the project, Coor Nuclear Services, was hiring. The worker contacted the technical and sales manager for Coor and was hired to work at the Point Lepreau generating station starting on Jan. 5, 2009.
By the spring of 2009, there were about 100 radiation protection assistants working on the Point Lepreau refurbishment. The worker kept track of his own time worked, submitting his timesheet to the company to whom Coor subcontracted the work — Atlantic Nuclear. Atlantic Nuclear then billed NB Power, the province’s energy provider and overseer. NB Power made the final approvals of timesheets for radiation protection assistants.
NB Power decided to conduct a review of the timesheets submitted by all radiation protection assistants. The reviewer initially identified two shifts claimed by the worker for periods when the station logs indicated he wasn’t physically present. The reviewer brought the issue to the attention of the worker’s shift supervisor, who took a closer look and identified two other shifts that raised concerns. All of the worker’s timesheets dating back to when he started working at Point Lepreau were reviewed, which revealed 43 shifts the worker claimed but didn’t actually work. It was later determined that the worker had failed to claim two shifts that he did work, so the total false shifts was reduced to 41.
NB Power asked Atlantic Nuclear to remove the worker from the generating station, and Coor agreed that the worker should be terminated.
On July 6, 2009, the worker arrived at Point Lepreau for a shift but was met by three armed security guards. The guards escorted him to a trailer, where Coor’s technical and sales manager was waiting with a manager from Atlantic Nuclear. They informed the worker his employment was being terminated for submitting false timesheets.
They gave the worker a termination letter and a second document for him to sign, which stated that he had falsely recorded hours and he agreed to allow Coor to withhold his wages from his last paycheque “as a downpayment towards what I owe Coor Nuclear Services.” The worker signed the letter.
Coor — which later changed its name to Nuvia Canada — sued the worker for fraud. The New Brunswick Court of Queen’s Bench found the employer proved the fraud and ordered the worker to pay Nuvia more than $44,000 that he owed the company.
The worker appealed to the province’s Court of Appeal, arguing that he had logs that had been sent to him by NB Power that showed he had worked the shifts in question.
The Court of Appeal found discrepancies in the logs the worker provided with NB Power’s, and called into question their credibility. There were a number of spelling mistakes, the confidentiality clause was English-only, the e-mail address of the NB Power employee who supposedly sent the logs was incorrect, and the email containing the logs was sent at a time the NB Power employee would have been at home. In addition, it was sent before the review was complete, so neither the NB Power employee nor the worker would have known which shifts had been questioned.
The worker provided other emails as evidence that had similar errors, so the court found the evidence was not persuasive to change the trial court’s decision. In fact, the worker stated to the court that he had “produced these documents for his case ‘so it swings my way.”
The Court of Appeal noted that the document the worker signed at his termination meeting wasn’t valid as the worker signed it with no notice, when he had just been told he was being terminated, and in the presence of armed guards. As a result, Coor/Nuvia and Atlantic Nuclear did not have permission to deduct anything from his wages. However, Coor/Nuvia’s claim against the worker for fraud was legitmate and the trial court didn’t make any errors in finding the worker liable for more than $44,000 owed to the company.
The worker’s appeal was dismissed.
For more information see:
• Mendes v. Nuvia Canada Inc., 2018 CarswellNB 481 (N.B. C.A.).
