Worker’s dismissal for napping overturned for lack of evidence

Employer had evidence worker neglected some duties

Worker’s dismissal for napping overturned for lack of evidence

An Ontario employer shouldn’t have fired a worker for sleeping on the job without better evidence, but the worker’s misconduct deserved discipline, an arbitrator has ruled.

Nelson House is an emergency shelter in Ottawa for women fleeing domestic violence and the worker was a crisis shelter worker on overnight shifts. During these shifts, she was the only employee and was responsible for responding to calls and counselling residents, along with performing administrative, maintenance and security duties.

Overnight crisis shelter workers had a checklist that included checking the house, ensuring external doors were secure, and updating files in the case management software. If they completed their tasks, they could watch movies, read, or listen to music as long as they remained available to residents.

The doors in the building had electronic locks opened with fobs. In the summer of 2020, door data showed that worker often closed the door to the staff office around midnight and it would stay closed for several hours.

This concerned the executive director because it is known that traumatized women will not knock on a closed door if they’re unsure of what’s behind it, so she was worried that the worker wasn’t providing that support. Although Nelson House didn’t have a written policy, it had been discussed in training and meetings that the expectation was for doors to be kept open unless an employee was with a client or on a confidential call.

The executive director also learned that the worker had previously received a written warning and a two-day suspension for sleeping at work.

The executive director also discovered that the office computer was active at the beginning of each shift and then inactive for several hours. She compared the worker’s shifts to another overnight crisis shelter worker, who opened and closed doors all night — indicating that she was doing security checks and organizing — and spent more time on the computer.

The worker said the door data wasn’t accurate and she had counselled two residents on some of the dates in question. She said that she shut the office doors when she was working, but residents knew where she was. In addition, she said her colleague used the work computer for leisure activities while she used her own laptop.

When told that keeping the doors closed was a safety risk, the worker replied that she could hear if something happened. She also said she closed the doors to keep herself safe, though she didn’t explain from what. There had been no incidents that had caused a safety concern.

Nelson House dismissed the worker on July 24 for not performing her duties, sleeping during her shift, and being dishonest about it.

The arbitrator found that there was no direct evidence that the worker slept at work, only that she remained in the staff office with the doors closed for long periods of time. There was some movement and computer activity, which could have been her doing “the bare minimum required” but still fulfilling her duties, said the arbitrator.

The arbitrator noted that Nelson House could have checked other evidence to try to determine if the worker was sleeping — such as if the motion-sensor lights were off, any of the blinds were drawn, or if there were blankets removed from the donations room. Not checking for other evidence undermined the employer’s claim of just cause, said the arbitrator.

The arbitrator agreed that the worker knew she should have kept the office doors open and didn’t have a good explanation as to why she didn’t. This was a failure to live up to her job responsibilities and was worthy of discipline, the arbitrator said.

Nelson House was ordered to reinstate the worker with a two-week suspension in place of the dismissal.

Reference: CUPE, Local 3851 and Nelson House of Ottawa Carleton. Andrew Tremayne — arbitrator. Nigel McKechnie, Colleen Hoey for employer. John McLuckie for employee. Dec. 18, 2020. 2020 CarswellOnt 19015

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