Written by Daniel Standing, LL.B., Editor, First Reference Inc.
Sick leave abuse is notoriously hard to catch. As a form of workplace fraud, one such incident can rupture the trust at the centre of even a long-standing employment relationship, prompting the employer to emphasize deterrence over rehabilitation when it imposes discipline. An Ontario arbitrator recently considered the plight of an employee who wrongfully entered a pandemic leave program that was designed to help facilitate isolating at home when required. When his ulterior motives came to light, even his long period of service could not tip the scales in favour of reinstatement.
This blog post will discuss the termination at issue in Unifor Canada, Local 1996 v Pepsico Foods Canada (Quaker Oats Peterborough) (Young Grievance),  O.L.A.A. No. 122.
The grievor worked at a food production facility in Peterborough, Ontario, which operated using a rotation of day, afternoon, and night shifts. He was a 14-year employee and for some time, he worked only afternoon shifts, which helped him with his childcare responsibilities. His schedule changed in the summer of 2020, when he successfully applied for a High-Pressure Syrup Operator position and was told he would have to work the full rotation of shifts. The employer explained to him what he would be doing, and what the training would involve. Shortly after receiving the employer’s expectations, the grievor sent a series of text messages to the employer stating that he would continue working afternoons and would “be absent for sure on days.” He was told that if he needed an accommodation, he would have to go through human resources, but he never did.
Meanwhile, the employer had put in place a pandemic paid leave plan. The plan was set up apart from the normal sick leave program to help employees who were personally affected by the virus to quarantine without loss of pay or sick leave credits. Entry to the program was easy; it ran on the honour system. All an employee had to do was report to human resources the onset of one or more symptoms.
Several months into the new job, he was determined to return to his afternoons-only schedule. The employer dug in its heels, explaining there were several good reasons for someone in his position to work the full range of shifts. Attempting to seize an opportunity to have his way, he refused to follow the proper protocol for entering the pandemic paid leave plan which required that he self-isolate at home. The problems were many: The employer could later justify having hired a private investigator to watch the employee. The private eye failed to turn up much of a consequence, but when the employee found out he was being followed, he made a self-serving, obsequious phone call to the medical benefit provider which contradicted some of his observed activities. He was “casually dismissive” in refusing to return his supervisor’s phone call despite others’ urging, and he was dishonest in a phone call about a Covid test he had taken.
Workplace offences of the sort in this case, the arbitrator reasoned, are among the most serious and sometimes amount to an “irreparable repudiation of the employment relationship.” The arbitrator praised the employer in the final paragraph for its foresight in setting up the plan and finished with the point that deterring future similar offences should outweigh the rehabilitative aims of discipline in a case like this where access to the benefit depended solely on the employee’s honesty. The grievance was dismissed.
Paid sick leave programs are susceptible to abuse because they are so dependent on the honour system. That is not a reason to do away with them; most employees will respect the rules. Such plans may even be a term of employment that employees demand in today’s job market, at least in non-virtual workplaces. Clearly spelling out the rules, especially around the more restrictive elements of the leave system, can help avoid confusion down the road.
A note of caution about the surveillance that was done: The employer, in this case, was able to justify hiring a private investigator, but the case was exceptional in that the employer already had reason to believe the employee was in the midst of wrongdoing. Normally, because of privacy implications and other legal issues, the issue of covert surveillance requires extreme caution.