Employee found to have breached trust, abused sick leave
A cleaner at Providence Continuing Care Centre in Kingston, Ont., was fired for abusing sick leave.
The employee started working as a cleaner at the facility in 1988. Before his dismissal, he had no discipline on his record. In 2012, the employer implemented an audit program to ensure the cleaning and housekeeping of the facility were up to standard.
Under the program, each item in the room was listed and employees were evaluated based on whether that item was cleaned to the appropriate standard. Employees were expected to achieve a success rate of 85 per cent.
The audit was not, however, implemented for disciplinary purposes. If employees did not achieve a success rate of 85 per cent, corrective action was taken to assist the employee to be able to meet the standard in the future.
Until 2012, there had been no complaints about the grievor’s work. Following the implementation of the audit, however, the cleaner was unable to achieve the success rate of 85 per cent. As time went on, the worker's performance deteriorated.
The employer testified the employee was unhappy with the audit program, and was being uncooperative as a form of protest.
After several months, he was achieving a success rate of 50 per cent. In an effort to improve the employee's performance, the employer assigned a supervisor to work with him.
On Dec. 19, 2012, the cleaner became frustrated with his supervisor and pushed his cleaning cart against a wall. He left the area and visited the occupational nurse.
The employee claimed he was being harassed by the supervisor and, as a result, was under so much stress he was unable to work. On Jan. 4, 2013, he visited his doctor and obtained a note indicating he was suffering from acute situational anxiety and was totally disabled from work.
As a result, the cleaner was approved for sick benefits and went on leave. In February 2013, the employer was informed that another employee had witnessed the employee working for another company while on sick leave. The employer initiated surveillance on and confirmed he was in fact working as a cleaner at another location while receiving sick leave benefits.
On March 13, 2013, the employee was called in for a meeting to address the situation. He admitted to working at another location, saying that while he was unable to continue working at the facility due to the stress caused by his supervisor, he was able to continue working elsewhere.
According to the cleaner, it was necessary to continue working for other employers because he was caring for his ill mother and needed the money.
The employee was terminated on April 12, 2013, for abuse of sick leave and serious breach of trust. So the Ontario Public Service Employees Union filed a grievance on his behalf.
The union argued the cleaner was clearly under stress and made bad decisions as a result of that stress. The union said he was unaware he could not continue to work in other jobs while receiving sick leave benefits from the employer and should, therefore, be excused for failing to disclose his other work.
Arbitrator Norm Jesin, however, said the employee's past as a union steward made that argument unbelievable.
"The grievor, as a steward and former acting president of the union, should have been keenly aware that in these circumstances, it was incumbent on him to make full disclosure of his secondary employment to his doctor and to the employer," Jesin said. "By failing to do so, he has enhanced the suspicion that he was really seeking to maintain two incomes while only working at one job."
Reference: Providence Continuing Care Centre and the Ontario Public Service Employees Union. Norm Jesin — arbitrator. Ron Pearson for the employer, Peggy E. Smith for the union. Nov. 16, 2015.
