The grievor regularly took time from his shift for a workout, but claimed he normally made that time up by coming in early. However, his claims did not match his recorded login and logout times on enough occasions to allow the arbitrator to uphold the termination.
A municipal worker was fired for taking extended lunch breaks and working out at the gym on company time.
R.B. was hired as a temporary worker by the City of Surrey in 1992. He secured full-time status in 1993. In 2005, he undertook training to become a By-Law Enforcement Officer (BLEO). R.B. became a permanent BLEO in 2006.
R.B. received numerous commendations from his employer for diligence, hard work, professionalism and customer service.
There was also discipline on his record, including two warning letters: one related to losing some city property; the other concerning a minor incident of misbehaviour. In addition, there was a one-day suspension on his record for time theft and dishonesty.
Surrey BLEOs were required to work compressed weeks based on nine-and-a-half hour shifts. A 45-minute lunch and two 10-minute breaks were included in the shift and workers were entitled to combine their breaks.
BLEOs spend a significant portion of each day in the field engaged in enforcement activities. Beginning in 2010, the city installed GPS tracking units in the vehicles used by BLEOs.
R.B. attended a meeting for BLEOs at 3 p.m. on March 10, 2011. Noting that R.B. arrived at the meeting carrying a gym bag, a supervisor became suspicious and asked that an investigation be conducted into R.B.’s work activities.
Investigators examined the GPS records on R.B.’s vehicle and the digital footprints from his security pass card and fob to track his comings and goings from work.
Extended lunch breaks
R.B. was called to a meeting on March 17. He was confronted with evidence that he had been taking extended lunch breaks and working out in the city’s weight room for periods of time in excess of the maximum 65 minutes per day to which he was entitled.
R.B. acknowledged that he had been in the gym on the dates mentioned. He said that he normally came in to work early to make up for the time but that he had not done so over the previous two weeks because of stressful circumstances in his life.
R.B. arranged for another meeting a week later. At this meeting, R.B. apologized. He was contrite and emotional. He said that he had done his best to make up for the time at the gym. R.B. said he thought he had an understanding with his supervisor that he would be advised if his efforts to balance his work obligations were not measuring up. R.B. owned up to misusing company time.
R.B. was fired. The union grieved.
The employer said that R.B. was guilty of time theft. He was not completely forthright about his culpability and he had tried to shift the blame to his supervisor. Previous discipline on his record was an aggravating factor. Trustworthiness and integrity were critical attributes for BLEOs. The employer said it had lost confidence in R.B.
The union acknowledged that discipline was warranted but argued that termination was excessive. R.B. had misused company time by failing to keep proper track of his breaks. He was not guilty of any premeditated scheme to defraud the employer. There were also significant mitigating factors to consider, the union said. R.B.’s conduct was not premeditated. His disciplinary record was clear for the past seven years and the employer bore some responsibility for enabling informal, flexible arrangements that seemingly condoned the behaviour.
The termination stood.
The Arbitrator gave R.B. the benefit of the doubt and accepted that he worked through his breaks when he said he did. However, there was still a time deficit according to the logged times.
The Arbitrator accepted, too, that R.B. had sought some clarifications from his supervisor about compliance with shift requirements after the supervisor sent out three separate emails to BLEOs to warn them about concerns that had been raised about time theft, timely breaks, leaving early and arriving late.
The fact that R.B. was told by his supervisor that the emails were not specifically about him did not free R.B. from the obligation of showing up on time and putting in a full day’s work, the Arbitrator said.
“[I] am not prepared to accept R.B.’s assertion that he honestly believed that he was making up the time. If the time was made up on the vast majority of days, and not made up on only a few days, I may have concluded that R.B. believed he had made up the time. However, given the number of days when the time was not made up, I conclude instead that he purposely took a lax approach to whether he made up the time or not. He was concerned enough to approach [the supervisor] three times. He could have easily ensured that the flexibility granted by the Employer was not abused… given this conclusion, I am not persuaded that R.B.’s actions were simply a misuse of company time.”
Reference: The City of Surrey and The Canadian Union of Public Employees, Local 402. Mark J. Brown — Sole Arbitrator. Michael A. Wagner for the Employer. Chris Buchanan for Union. Oct. 29, 2012. 44 pp.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.