The grievor's failure to pay the personal portion of his cell-phone usage, which was permitted, was compounded by the employer's failure to provide him with a repayment plan, or even to cash his cheques. His failure to stop using the phone was insubordinate, however.
A worker for a public housing corporation was fired after he racked up more than $13,000 in charges for personal calls on his work cell phone.
W.D. was a Senior superintendent at a public housing complex. He directed more than 30 employees and was responsible for maintaining more than 350 apartment units. He worked independently at numerous locations. A cell phone was required for the job and was supplied by the employer.
Employees were permitted to use their work cell phones for personal calls; however, they were required to reimburse the employer for the cost of personal calls.
In February 2010, W.D.’s common-law wife, and their son, were deported and compelled to relocate to the Caribbean.
W.D.’s son had medical issues and circumstances were emotional and stressful for W.D.’s wife. At the time, W.D. had no other cell phone or a landline.
Concerns about W.D.’s cell phone use surfaced at a meeting in September 2010. It was noted then W.D. had accumulated charges for personal calls in July and August of 2010 in the amount of $451 and $751 respectively.
A letter was sent to W.D. reminding him of the terms of the employer’s cell phone policy and of the outstanding charges. The letter referenced W.D.’s earlier commitment to make good on the charges by October and his assurance he would stop using his cell phone for personal, long distance calls.
Cheques not cashed
W.D. provided the employer with four cheques in October to cover the bill. For reasons unknown, the cheques were not cashed. In any event, W.D. did not stop using the cell phone to call his wife.
In February 2011, W.D.’s supervisor forwarded to him an email sent to all employees reminding them they needed to pay for all personal cell phone calls made on the employer’s account.
W.D. responded to the email and asked for details about the employer’s plan and whether or not calls made during the evenings and on weekends were still free, as they were before.
In April 2011 the supervisor emailed W.D. to inform him about another bill in excess of $900.
Later in the day, the supervisor emailed W.D. again. W.D. was informed he had until the end of April to cover his cell phone bill, which now totaled $8,289.
An agreement was reached to allow W.D. to pay back the money owing with deductions from his paycheque over a two-year period.
However, despite the agreement and queries from W.D. about what he needed to do to begin the repayment process, no steps were taken to put the payment plan into effect.
W.D. continued to use the cell phone for personal calls.
W.D. was summoned to a meeting in July. W.D. acknowledged his circumstances and his debt.
W.D. was fired. The letter of termination alleged abuse of the company cell phone. The letter also said W.D.’s unwillingness to comply with company policy and refusal to stop using the phone for personal calls amounted to insubordination.
The union grieved.
No fraudulent intent
The Arbitrator agreed termination was excessive in the circumstances.
W.D. was guilty of an error in judgment, the Arbitrator said, but his actions betrayed no fraudulent intent.
“In this instance, while the grievor ‘intended’ to make long distance calls, he always recognized that he was responsible for the charges incurred. What happened was decidedly an error of judgment and culpable misconduct but it cannot be said that he ‘intended’ to commit theft or defraud the employer.”
Under company policy, employees were legitimately entitled to use the employer’s account for personal calls, the Arbitrator said. And, until difficulties arose in his personal life, W.D. had made use of his cell phone for personal calls for eight years without any problems.
W.D.’s grievance presented a “compelling list” of mitigating factors, the Arbitrator said. W.D. was a capable employee who had been promoted a number of times. He had more than 20 years’ service with the employer. W.D. acknowledged his debt to the employer and had made a number of attempts to arrange repayment. He had apologized and expressed remorse. The reasons for the calls were certainly not frivolous and W.D.’s termination would result in significant hardships for him and for his family.
W.D. was not blameless. By failing to live up to his word to stop using the cell phone, W.D. was insubordinate.
However, the employer, too, dropped the ball. “[O]ne cannot ignore the fact that the employer did not intervene for many months until the decision in July to suddenly terminate the grievor for his accumulated long distance charges and ‘insubordination’ in failing to adhere to the directives given in the September meeting.”
The termination was replaced with a six-month suspension. W.D. was ordered to reimburse the employer for amount of $13,093.
