Claiming hours spent at home or sitting in vehicle over five-month period was time theft
An Ontario worker’s submission of timesheets for work he didn’t do over several months was cause for dismissal, an arbitrator has ruled.
The 47-year-old worker was a gas technician for Enbridge Gas in Ottawa. He was initially hired as a seasonal employee in 1998 and became a permanent employee in 2004. He had a one-day suspension on his record for minor misconduct in 2020.
The worker was part of a floater crew of two gas technicians who responded to emergencies such as gas leaks or broken gas lines. They were assigned to various jobs over the course of the day, which they would stop if an emergency came up.
When the pandemic hit, Enbridge assigned individual vehicles to the gas technicians rather than having a crew travel together. Each technician was expected to drive independently to assignments and emergency sites, where they would work together.
Enbridge received a complaint that the worker was not showing up to his scheduled non-emergency assignments, leaving his partner to do the work himself but still claiming payment for the time. Enbridge reviewed his vehicle’s GPS records for the month of January 2021 and determined that he had submitted timesheets for more than 46 hours of work that he didn’t do. Another review from September to December 2020 found that the worker had not worked for almost one-quarter of the scheduled hours for which he had been paid.
Many of the times in which the worker wasn’t working involved the worker taking his vehicle home or sitting at a coffee shop.
Enbridge investigated, including interviews with the worker and his supervisors. The worker said that he went home when he had nothing to do or was between jobs in order to check on his wife, who had health issues, or to use the bathroom because he had bowel issues. He also acknowledged sitting in a parking lot or the coffee shop to do computer work and wait for a call.
The worker said that many of the scheduled work assignments could be done by one employee and his partner had the large utility truck, so he suggested that he only needed to go if his partner called him to assist. He also claimed that his supervisor had told him that he could wait for assignments or do computer work at home, since he lived close by.
The worker was suspended with pay while Enbridge investigated his explanations. The supervisor denied telling him he could go home between jobs or that there was ever insufficient work. The company also discovered that the month of January had not been slow.
The company determined that the worker engaged in serious misconduct including “dishonesty, theft of time, and violating the statement on business conduct” and terminated his employment for cause on March 22, 2021.
The union grieved the dismissal.
The arbitrator noted that there is a need for flexibility in enforcing usual employment rules during uncertain times such as the pandemic, but found that the worker went too far and took advantage of the situation.
Enbridge wasn’t prepared at the beginning of the pandemic, but the company clearly directed gas technicians such as the worker to perform their usual work with the exception of travelling separately, said the arbitrator. In addition, the worker was only entitled to be paid for hours he worked and work he performed, so his repeated failure to follow the work schedule and claim payment was dishonest and constituted “time theft, which is a form of fraud that is very serious misconduct,” said the arbitrator.
The arbitrator also found that the worker’s time theft was not isolated and involved many hours over several months. The worker’s explanations, such as permission to go home from his supervisor or that work was slow, were not supported by any evidence.
The arbitrator determined that the worker did not attend his assigned work on numerous occasions over a period of at least five months and received several thousand dollars in pay for work he didn’t perform. This was “time theft, dishonesty, breach of trust and fraud” which provided Enbridge with just cause for discipline, with discharge within the reasonable range of actions, said the arbitrator.
Despite the fact that the worker had 23 years of service with only one incident of minor discipline, the arbitrator found that the worker’s misconduct was serious enough to justify termination. See Enbridge Gas Inc. v. Unifor, Local 975, 2023 CanLII 2937.
