Moonlighting Ontario LBCO worker dismissed for dishonest sick days

Failure to acknowledge just cause for firing: Arbitrator

Moonlighting Ontario LBCO worker  dismissed for dishonest sick days

An Ontario arbitrator has upheld the dismissal of a worker who called in sick multiple times so he could work at another job and tried to hide it.

The worker was a customer service representative at the Liquor Control Board of Ontario’s (LCBO) service centre in the Greater Toronto Area. His employment was casual and he had to meet minimum availability requirements for any shifts on Mondays, Tuesdays, Wednesdays, and Fridays along with Saturdays for stock inventory and long weekends.

In June 2018, the worker was hired by the City of Toronto for a temporary position running from July 4 to Oct. 9 that involved working Monday to Friday from 7 a.m. to 3 p.m. The worker advised his shift supervisor at the LCBO that he couldn’t work his upcoming day shifts because of a temporary job.

However, the LCBO wouldn’t allow the worker to forego his scheduled day shifts because of the availability requirements. The worker asked if he could not have morning shifts scheduled until his temporary position ended, and the LCBO gave him three options — transfer to a store with availability requirements in the evenings, use vacation time, or resign from one of the jobs.

The worker opted to use vacation time to take Tuesdays off, but he called in sick on the Mondays and Wednesdays surrounding his Tuesday vacation days in August. The LCBO hired a private investigator to observe the worker on Wednesday, Aug. 22 after the worker called in sick.

The investigator reported that the worker was at his city job and the LCBO asked the worker for an explanation in writing.

The worker was scheduled to work from 1 p.m. to 9:30 p.m. on Friday, Aug. 31 and he asked for his shift to be moved to 5 p.m. because he needed to look after his brother. However, the private investigator observed the worker at his city job until 3 p.m. and then going to a mall before reporting for work at the LCBO. He worked until 9:30 p.m., when he said he felt sick with four hours left in his shift. The investigator followed him home and observed two visitors arrive and take him to a mall shortly after midnight.

The LCBO relieved the worker of duty on Sept. 6 pending an investigation. At an investigation meeting, the worker refused to answer any questions. The LCBO showed him the surveillance evidence and he admitted that he used his August sick days to work at his other job. He initially denied that he had requested his shift change to work at his other job, but once again admitted it when confronted with the surveillance evidence. He said he really didn’t feel well on Aug. 31, but once he went home and took medication, he felt better and went out.

The LCBO terminated the worker’s employment on Sept. 14. The union argued that the LCBO didn’t use progressive discipline or take the opportunity to coach the worker.

The arbitrator noted that the worker only admitted that he called in sick and requested a shift change to work at his other job when confronted with evidence. In addition, his activities after he went home sick showed that he was likely well enough to work after 9:30 p.m., said the arbitrator.

The arbitrator found that the collective agreement didn’t require progressive discipline and dishonesty is often serious enough to justify immediate termination. The worker was aware of the availability requirements of his job and his failure to acknowledge his misconduct breached the employment relationship with “no confidence that his conduct would change in the future,” said the arbitrator.

The arbitrator upheld the dismissal, finding that the worker was entitled to look after his best interests but not entitled “to maintain his employment when this is accomplished by lies and deceit.”

Reference: OPSEU and Ontario (Liquor Control Board). Ian Anderson — arbitrator. Adrienne Couto for employer. Dec. 21, 2020. 2020 CarswellOnt 19010

Latest stories