Worker’s misuse of bereavement leave misconduct – but well-intentioned

Death of Ontario worker’s mother’s friend not covered under leave provision

An Ontario arbitrator has reinstated a worker who was fired for the misuse of her collective agreement’s bereavement leave provision, finding the worker didn’t intend to violate her employer’s trust.

Michelle Desbiens, 53, was a gaming administration clerk at Caesars Windsor Casino in Windsor, Ont. Hired in 1994, her duties included recording sick calls, leave entries, scheduling, making adjustments to payroll entries and answering employee inquiries.

Desbiens' position required her to be familiar with booking time off work and requirements for vacations and other types of leave, to the point where she often made her own personal leave requests on a call-in basis with her supervisor.

The collective agreement between the casino and its union, Unifor, included a provision for paid bereavement leave that entitled employees to three consecutive work days within any period of 10 days that included the date of the funeral, for the death of an immediate family member.  The provision also allowed for other periods of bereavement leave for other familial relationships.

The collective agreement also allowed for leaves of absence without pay “for legitimate personal reasons.”

On Nov. 17, 2014, Desbiens asked her supervisor about calling in for bereavement purposes. The supervisor asked her who had passed away and she replied it was her grandmother. Desbiens was visibly upset but when the supervisor asked her if she wanted to go home for the rest of the day, she said she wanted to finish her shift.

Desbiens was scheduled to be off for the next two days, but logged in to the casino’s intranet recording system to book three bereavement days immediately following her days off.

The supervisor was surprised at the news as Desbiens had never mentioned her grandmother before, and her own supervisor found it suspicious Desbiens would still have a grandmother alive when she was in her 50s and her mother was in her 80s. She knew a lot about Desbiens’ immediate family through friendly discussion, and had never heard Desbiens mention her grandmother.

The day after Desbiens’ request, her supervisor researched obituaries in the local newspaper and found one for an 83-year-old woman who was a “lifelong friend” of Desbiens’ mother. When Desbiens returned to work following the bereavement leave, they called a meeting with her.

Desbiens provided a standard form certificate signed by a funeral home representative indicating she had attended the funeral of her grandmother. However, when confronted by her supervisor and the casino’s labour relations officer in the meeting with the obituary, Desbiens admitted the deceased wasn’t her blood grandmother but was “like a grandmother to me.”

Desbiens explained the deceased had lived next door to her mother for 40 years and she had grown up as if she was the woman’s grandchild, particularly since her own grandparents lived far away and she didn’t have much contact with them. Though there were no blood relations, Desbiens said the deceased was her grandmother “from my heart of hearts” and to call her anything else would be a betrayal of her memory.

She also noted she hadn’t taken bereavement leave before, even when one of her biological grandmothers had died in 2005 and her father in 2011.

Desbiens said she hadn’t thought she was deceiving her employer and said if she was wrong, she was “truly sorry” and they could take the money paid for her leave back.

Suspension following meeting

Following the meeting, Desbiens was suspended pending a management discussion over what to do. The same day, management decided Desbiens had knowlingly requested bereavement leave to which she wasn’t entitled, then submitted a document that misrepresented her relationship to the deceased to substantiate the leave. The casino considered this to be gross misconduct, fraud, a breach of integrity and a violation of its code of conduct.

Given the importance of trust in Desbiens’ position, the casino felt the employment relationship was damaged beyond repair and dismissed her.

Unifor filed a grievance, arguing that while Desbiens’ actions technically violated the collective agreement, they were not cause for dismissal, as Desbiens’ intentions were good and she treated her relationship with the deceased as she would her real grandmother.

Arbitrator weighs in
Arbitrator Tom Jolliffe agreed that “fraud or dishonesty in an employee claiming contractually based entitlements is rightfully considered” to be serious misconduct and “strict application” of the bereavement leave provision meant Desbiens wasn’t entitled to three days’ paid bereavement leave in the circumstances.

Jolliffe also noted Desbiens should have known her entitlement, due to her position, and she had time to consider what she was doing as she worked the rest of the day after speaking to her supervisor and didn’t book the leave until the next day.

In addition, she didn’t bring the funeral home certificate to back up her leave until five days later.

However, Jolliffe found “the depth of her emotional tie” to the deceased was obvious and she acted consistently with this level of attachment and the fact she considered the woman her grandmother, even if the bloodlines said otherwise.

Jolliffe also found there was no evidence Desbiens was trying to get paid time off for any reason other than the intention of the bereavement leave provision, particularly since she had never taken bereavement leave before. Her emotional state and difficulty describing her relationship contributed to her difficulty at the time, said Jolliffe.

Jolliffe determined that Desbiens’ intentions were honourable and she had a good employment record of over 20 years of service. Desbiens expressed acknowledgment of her misconduct and apologized, showing the casino could trust her going forward and the employment relationship was not irreparable.

The casino was ordered to reinstate Desbiens, with the time since her dismissal serving as a suspension to recognize her misconduct in misusing the bereavement leave entitlement.

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