But case fails because discipline never applied until final disconnect
In the firm’s view, there was no reason any employee could plead ignorance of the fact that calls from the sales floor were forbidden and would be considered theft.
Melissa Montorro worked in an Air Canada call centre in Vancouver during the week but returned home to Kelowna on the weekends to be with her husband and their new baby. Her husband’s restaurant business had failed, and he was suffering from depression. Since he was not well enough to look after their child, her mother and sister were doing so.
Montorro began taking double shifts to pay the bills. She was working 16-hour days — surrounded by telephones — and the temptation to keep in touch with home using the call centre’s phones proved too great to resist.
From January to October of 2004, she made about 750 calls, mostly long distance. Between June and October, she ran up a total of almost nine hours of long distance — making 176 phone calls home to Kelowna.
Air Canada finally got wind of her activities. Her then supervisor, John Porayko, spoke to her as early as August 2003 about not using the Internet for personal use. In April 2004, a work co-ordinator, Robert Jeanneau, also warned her not to make personal calls from the call centre. During a routine monitor the following August, he found her using the phones again. This time he warned her that discipline could follow and sent a memo about the conversation to Porayko and others in management, but did not copy Montorro. On Oct. 23, after again detecting an outward bound call, he sent an e-mail directly to new supervisor, Lynette Kirk (Porayko was on a sick leave). He copied others in management, but not Montorro.
Kirk did not let any grass grow under her feet. On her next shift, Montorro was called into a meeting and confronted with the evidence of her time theft. She said she did not realize it was stealing. Nevertheless, she received a letter of termination the next day.
The union grieved the dismissal, saying that Montorro had not understood that she had stolen from her employer when she made the calls. To make things right between them, she offered to repay the cost of the phone calls, as well as the time lost from work.
The company stood by its assertion that all employees were given the company policy on personal calls. In its view, there was no reason any employee could plead ignorance of the fact that calls from the sales floor were forbidden and would be considered theft. The policy clearly stated personal calls were to be made from the employees’ lunch room.
The union pointed out that it was not suggesting what she did was not wrong, but that she had “never had to answer for her wrongs. She never received any discipline.” The progressive discipline policy had never been used. While Jeanneau could warn her about using the telephone, he had no authority to mete out discipline, and, for whatever reason, his e-mails to management went unheeded. No discipline was ever imposed until the final disconnect.
The arbitrator agreed with the union. Reading from the hearing transcript, he quoted Montorro attesting she “never had that concept — never realized phoning could be theft — it is very devastating for me — theft.” Devastating because being dismissed for theft would tarnish her reputation and make finding a new job difficult. The arbitrator needed “clear cogent and convincing” evidence to prove theft, given the serious consequences for Montorro. He did not find it.
The problem was that although she had clearly not put her employer’s interests first, she did not conceive of her actions as being theft, and no one in management had told her that they were. When her supervisor had asked her to stop using the Internet for personal use, she had done so. The arbitrator concluded that had she been told a similar use of the telephone would lead to dismissal, she likely would have complied. But no one from management communicated this message. Jeanneau failed to copy her on the e-mails he sent to management, which might have twigged her to the gravity of her error.
In the end, the arbitrator gave her a second chance, “She says she will not do it again. I believe her.” He reinstated her with no loss of seniority, but without back pay. In his view, her lengthy suspension (a little over five months) was sufficient for him to waive any requirement for repayment of theft.
For more information: Air Canada and CAW-Canada, Local 2002, a Canada Arbitration Board decision; C. Gordon Simmons – Sole Arbitrator, April 6, 2005.
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, newsletters that report on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
Melissa Montorro worked in an Air Canada call centre in Vancouver during the week but returned home to Kelowna on the weekends to be with her husband and their new baby. Her husband’s restaurant business had failed, and he was suffering from depression. Since he was not well enough to look after their child, her mother and sister were doing so.
Montorro began taking double shifts to pay the bills. She was working 16-hour days — surrounded by telephones — and the temptation to keep in touch with home using the call centre’s phones proved too great to resist.
From January to October of 2004, she made about 750 calls, mostly long distance. Between June and October, she ran up a total of almost nine hours of long distance — making 176 phone calls home to Kelowna.
Air Canada finally got wind of her activities. Her then supervisor, John Porayko, spoke to her as early as August 2003 about not using the Internet for personal use. In April 2004, a work co-ordinator, Robert Jeanneau, also warned her not to make personal calls from the call centre. During a routine monitor the following August, he found her using the phones again. This time he warned her that discipline could follow and sent a memo about the conversation to Porayko and others in management, but did not copy Montorro. On Oct. 23, after again detecting an outward bound call, he sent an e-mail directly to new supervisor, Lynette Kirk (Porayko was on a sick leave). He copied others in management, but not Montorro.
Kirk did not let any grass grow under her feet. On her next shift, Montorro was called into a meeting and confronted with the evidence of her time theft. She said she did not realize it was stealing. Nevertheless, she received a letter of termination the next day.
The union grieved the dismissal, saying that Montorro had not understood that she had stolen from her employer when she made the calls. To make things right between them, she offered to repay the cost of the phone calls, as well as the time lost from work.
The company stood by its assertion that all employees were given the company policy on personal calls. In its view, there was no reason any employee could plead ignorance of the fact that calls from the sales floor were forbidden and would be considered theft. The policy clearly stated personal calls were to be made from the employees’ lunch room.
The union pointed out that it was not suggesting what she did was not wrong, but that she had “never had to answer for her wrongs. She never received any discipline.” The progressive discipline policy had never been used. While Jeanneau could warn her about using the telephone, he had no authority to mete out discipline, and, for whatever reason, his e-mails to management went unheeded. No discipline was ever imposed until the final disconnect.
The arbitrator agreed with the union. Reading from the hearing transcript, he quoted Montorro attesting she “never had that concept — never realized phoning could be theft — it is very devastating for me — theft.” Devastating because being dismissed for theft would tarnish her reputation and make finding a new job difficult. The arbitrator needed “clear cogent and convincing” evidence to prove theft, given the serious consequences for Montorro. He did not find it.
The problem was that although she had clearly not put her employer’s interests first, she did not conceive of her actions as being theft, and no one in management had told her that they were. When her supervisor had asked her to stop using the Internet for personal use, she had done so. The arbitrator concluded that had she been told a similar use of the telephone would lead to dismissal, she likely would have complied. But no one from management communicated this message. Jeanneau failed to copy her on the e-mails he sent to management, which might have twigged her to the gravity of her error.
In the end, the arbitrator gave her a second chance, “She says she will not do it again. I believe her.” He reinstated her with no loss of seniority, but without back pay. In his view, her lengthy suspension (a little over five months) was sufficient for him to waive any requirement for repayment of theft.
For more information: Air Canada and CAW-Canada, Local 2002, a Canada Arbitration Board decision; C. Gordon Simmons – Sole Arbitrator, April 6, 2005.
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, newsletters that report on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
