Worker completed shifts at Tim Hortons while on leave
A breakfast attendant at a hotel was terminated after the employer found out she also worked for a Tim Horton’s restaurant in Moncton, N.B.
Wanita Mallory began work at the Rodd Moncton hotel in 2014. In the beginning, Mallory worked in the laundry, but she eventually became a full-time breakfast attendant.
However, Mallory’s hours began to decline in 2017, she testified, after she raised issues about the working conditions of the hotel. By the end of her employment, Mallory was scheduled for about 25 to 28 hours of work per week.
Due to the stress of less income from the $12.76-per-hour position, Mallory developed blood pressure problems and had bouts of crying, she said.
On April 5, 2019, Mallory informed her supervisor, identified as “ST,” that she needed to book off the following day’s shift due to poor health. ST said that Mallory needed a doctor’s note to justify the time off.
On April 9, she received a note from her doctor that stated: “Ellen Wanita Mallory will be off work until May 22, 2019 for medical reasons.”
However, while she was off work, Mallory worked 12 days at a Tim Hortons, where she had been working since March 25 to supplement her lowered income.
But on April 29, Mallory was dismissed after the employer discovered her second job. Mallory never did advise Rodd Moncton about the extra employment.
The union, Unifor, Local 4528, filed a grievance on May 2.
The employer argued that because the Tim Hortons shift ended at 6 a.m., Mallory could not possibly make it to Rodd Moncton for the breakfast-attendant shift, which was at 6 a.m.
As well, because Mallory used the doctor’s note to get time off from Rodd Moncton, then continued to work at the restaurant, she was dishonest with the employer, said Rodd Moncton.
Mallory was not dishonest about the second job, argued the union, because she was never asked about it. And the two businesses were so dissimilar that no conflict of interest existed.
And because the employer had cut back on her hours, Mallory was only trying to make up the lost income and this was not prohibited in the collective agreement, according to Unifor.
Arbitrator Guy Couturier agreed and partially upheld the grievance.
“I do hereby direct and order that Wanita Mallory’s discharge be rescinded and replaced by a period of suspension, without pay, benefits and seniority accrual, for 60 days from the date of discharge of April 29, 2019 and that she thereafter be reinstated to her position by Rodd Moncton, without further loss of benefits or seniority. She is also to be compensated for any loss on income resulting from her discharge from that latter date to the date of this decision, calculated as being the equivalent of her applicable wage rate and based on a 32.5-hour work week, less any wages earned elsewhere during that period.”
Mallory’s actions didn’t warrant the firing, said Couturier, but it did cross the line.
“What motivated (Mallory) was not to defraud her employer or take some benefit from it that was not hers to be had, but rather to arrange her affairs that her income would be increased. Her method for doing so was deceptive and merits severe sanction, but not her dismissal. Her discharge was disproportionate response to the conduct she exhibited.”
“(Mallory) was deceptive and dishonest in her dealings with the employer. She should have disclosed the existence of the second job, as well as the reasons for it, to the employer,” said Couturier.
Reference: Rodd Moncton and Unifor, Local 4528. Guy Couturier — arbitrator. Clarence Bennett, Evan MacKnight for the employer. Kim Power for the employee. Aug. 14, 2019. 2019 CarswellNB 395