Alberta employee, union argued discipline wasn’t consistent with everyone involved
An Alberta arbitration board has upheld the dismissal of a longtime group home counsellor for time theft after he and several others were caught in a widespread practice of starting shifts late and leaving early.
Tim Page, 58, was a forensic counsellor at Counterpoint House, a group home for teenage male sexual offenders in Edmonton. He was hired in 1996 and considered a good counsellor with a strong work ethic who was good with counselling and building trust with the residents of the house. His duties included supervising and counselling residents and providing direct patient care as part of the team at the house.
Usually, two forensic counsellors worked day and evening shifts at the house, with one working overnight while residents slept. However, after a serious incident in 2008, the schedule was changed so two staff members were scheduled to work at all times for safety reasons.
Counsellors weren’t present when residents were in school and the employees had an hour in the evenings when residents were in their rooms for quiet time, but the counsellors were required to be present at all other times.
Counterpoint’s program co-ordinator was responsible for day-to-day supervision and scheduling for the staff. Sometimes, staff would get approval from her to trade shifts or work flex hours, as many were putting in a lot of overtime.
Eventually, employees were allowed to trade shifts among themselves without notifying the program co-ordinator in advance, which could result in both staff members on duty during a particular shift being in a short-shift situation where they were to leave early or come in late.
Over time, this practice evolved to the point where many staff members left early or came in late even if they weren’t in a short-shift situation. In such circumstances, shift partners agreed in advance that one would come in late or leave early one day, and the other would the next.
They claimed this would only be done if the “house is settled, and it is safe for one staff member to be working alone.” The practice was also justified by the argument that they were making up for missed meal periods and breaks to which they were entitled under the collective agreement, and senior staff had told them of it when they were hired.
A new manager started at Counterpoint House in 2011. She soon learned of the shift-sharing practice and that half of full-time staff left their shifts early and half had their partner leave early. In 2013, she proceeded to interview 22 employees about this practice. Page was on vacation when the interviews began, so he was one of the last to be interviewed.
Several employees admitted to the practice of short-shifting and many claimed they had been told it was a normal and long-term practice when they started working at the house.
Worker tried to justify shortening his shifts
Before Page was interviewed, he told several co-workers that he was going to justify his absences as making up for missed meals and breaks at the beginning and end of his shifts. At his interview, he stuck to this justification and said it was a practice used by a former program co-ordinator.
He also claimed he didn’t leave early on evening or night shifts if only a casual counsellor was left on duty, and acknowledged that what he and other staff were doing was “not proper.” Page said that when he left early on the night shift — which ended at 7 a.m. — it was usually around 6 a.m. or later. However, management soon discovered he regularly left as early as 5 a.m.
After the interview, the manager heard that Page had told a colleague he deflected the questions and had “stretched the time” he was on shift. He also bragged he had nothing to worry about because he kept changing the questions to focus on missed breaks and didn’t admit to anything.
Management conducted an investigation that included interviews with five full-time and 13 casual employees. Many of the employees admitted to coming in late or leaving early for half their shifts, and said their partner did the same on the other half.
The investigation determined the allegations of time theft were substantiated, so Alberta Health Services (AHS) — which operated Counterpoint House — dismissed three full-time and one casual employee, including Page, on Aug. 15, 2013.
One other full-time employee was suspended without pay for three days as he was considered forthcoming during the investigation, acknowledged his wrongdoing and had halted the practice several weeks before it was investigated.
Four other casual staff were given letters of warning for trying to minimize or cover up the actions of their colleagues. All AHS employees were given letters of expectation clarifying their hours of work.
Page’s termination letter stated he had participated in and was aware of co-workers participating in the practice of leaving early and coming in late for scheduled shifts, putting patient safety at risk. It also said his dishonesty in trying to downplay the frequency and severity of his time theft was serious misconduct and irrevocably damaged the employment relationship.
Page’s union, the Health Sciences Association of Alberta (HSAA), grieved the termination on his behalf. It argued his discipline was disproportionate compared to that for several other employees who weren’t terminated.
The board of three arbitrators agreed that Page’s misconduct was serious and termination was an appropriate response to it. The only things that could save Page’s employment and overturn the dismissal were if the length of his discipline-free service was significant enough and the discipline was disproportionate to that given to others.
However, the board found the “fraudulent conduct of (Page) over such an extended period of time,” along with his dishonesty during the investigative interview, outweighed the nearly two decades of service Page had under his belt, as his conduct seriously damaged the trust AHS could have in him.
The board also found the varying levels of discipline that were meted out reflected the different circumstances of different employees. Some employees were more apologetic and acknowledged their misconduct, while others continued to be dishonest and downplayed the seriousness of it.
The latter group — which included Page — was dismissed, and it had been established the practice was mostly followed by regular full-time staff, who also advised others to follow it.
“Without knowing all the circumstances and the reasoning of the employer, it does seem that the four casual employees who received letters of warning and a few who received letters of expectation got off lightly but that cannot affect our assessment of the termination of (Page), which must be compared to the discipline imposed on the other regular full-time employees,” said the board.
Page’s dismissal was upheld.
For more information see:
•Alberta Health Services and HSAA (Page), Re, 2016 Carswell
Alta 2370 (Alta. Arb.).
Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com
