You Make the Call
This instalment of You Make the Call features a worker on modified duties who claimed his dismissal was unjust and related to his disability.
Cory Makarchuk was hired as a connectivity technician in Ontario by SC360, a telecommunications provider based in Montreal that serviced regions in Quebec and Ontario, in May 2006. He worked without any problems until August 2016, when he injured his left shoulder in a workplace accident. Following the accident, he had physical restrictions because of his injury, so he had to be placed on modified duties that involved providing support to other SC360 technicians in the field as well as doing work in the shop.
On Feb. 16, 2017, the territory manager for Southwestern Ontario received an email from a technician that said Makarchuk had not responded to calls for a few hours after finishing with another technician. Data from the GPS tracking unit in Makarchuk’s vehicle showed it was parked at a mall and then his physiotherapy clinic during the time he didn’t respond to calls. The manager was aware of the physiotherapy appointment but couldn`t understand why his truck was at the mall most of the afternoon.
Makarchuk explained that he had contacted three technicians near the physiotherapy clinic to see if they needed help so he could maximize the work he could do before leaving for the appointment, but they didn’t need assistance.
On March 8, the manager asked Makarchuk to bring in his vehicle for a random inspection. The inspection found that the GPS unit in Makarchuk’s vehicle had been disconnected. Makarchuk initially denied knowing there was a problem and then eventually admitted he had disconnected the unit because it had been making a beeping noise that was loud enough that he couldn’t hear people on his phone. He said he tried to reset it but it continued to make the noise, so he unplugged it while he completed his calls. He admitted he should have informed the manager about the problem but forgot about it over the course of the day.
Makarchuk was suspended pending an investigation. The regional manager interviewed Makarchuk about the GPS unit and determined its disconnection was a violation of company policy. Since Makarchuk had opportunities to inform management of any problems with the GPS unit but didn’t, the company believed he disconnected it to hide his location during the workday — which he did after GPS data showed he wasn’t where he was supposed to be on multiple occasions. SC360 decided to terminate Makarchuk’s employment for breach of trust and company policy.
Makarchuk filed a complaint of unjust dismissal.
You Make the Call
Was there just cause for dismissal?
OR
Was dismissal out of proportion for the misconduct?
If you said dismissal was out of proportion for Makarchuk’s misconduct, you’re correct. The adjudicator agreed that Makarchuk’s disconnection of the GPS unit was a breach of company policy and provided just and reasonable cause for discipline. Makarchuk’s failure to return phone calls during work hours when SC360 didn’t know where he was also provided cause for discipline, said the adjudicator. However, Makarchuk had worked for SC360 for 11 years without any prior discipline, warnings, or performance issues. The two incidents warranting discipline — the failure to answer calls and the GPS unit disconncection — were the first two Makarchuk had on his record and weren’t enough to serve as culminating incidents leading to dismissal, said the adjudicator.
“There is no history of repeated wrongful acts committed by (Makarchuk) which would justify the application of a culminating incident analysis to support the termination,” the adjudicator said.
The adjudicator also found that the two incidents of misconduct were not “wilful or premeditated.” The GPS unit disconnection, while serious, was “a momentary lapse in correcting the issue of the noise in order to focus on work activities and then failing to reconnect the device.” The failure to return phone calls during a workday wasn’t very serious on its own, so should be considered mild misconduct, the adjudicator said.
The adjudicator determined that Makarchuk’s misconduct deserved discipline, but termination of his employment was excessive. SC360 was ordered to reinstate him to his employment with a five-day suspension on his record instead. The company was also ordered to provide Makarchuk with compensation for lost wages from the date of his termination to his reinstatement, minus five days from the suspension.
For more information see:
• Makarchuk and SC360 Inc., Re, 2017 CarswellNat 6078 (Can. Lab. Code Adj.).
