• Alex Robertson

Breach of Trust by Employees

Updated: Oct 29

Trust is a fundamental element in employment relationships. In some cases, if that trust is broken, it can warrant dismissal. This was exactly the circumstance in a recent case involving ICBC and one of its employees. The ICBC employee in question acted deceitfully and dishonestly and, in turn, ICBC claimed a breach of trust had irreparably damaged the employment relationship.


INSURANCE CORPORATION OF BRITISH COLUMBIA. V. MOVEUP

(CANADIAN OFFICE AND PROFESSIONAL EMPLOYEES’ UNION LOCAL 378)


A part-time Customer Service Adjuster for ICBC was fired for being dishonest about taking a sick day. At the time, the employee was working remotely from home due to Covid-19. She had previously requested to take a vacation day off on the Saturday of the August long weekend, but her request was denied. However, on the day she requested off, the employee called in sick. Because the day had been rejected as a vacation day, ICBC’s system automatically flagged it and her supervisors were alerted and started an investigation. The investigation later revealed that the employee had posted on Instagram celebrating at Penticton’s Lakeside Resort on the day she requested off but then called in sick. During the investigation interviews, the employee claimed that she had intended to work remotely from the hotel room that day but called in sick because of a migraine.


ICBC fired the employee citing a breach of trust which had irreparably damaged the employment relationship. The employee’s union, the Canadian Office and Professional Employees’ Union, grieved the termination and argued that there was no just cause and that the dismissal was excessive, and a lesser penalty should have been applied instead.


THE DECISION


Arne Peltz, the Labour Relations Board arbitrator hearing the case, concluded in a ruling on April 7, 2021, that the central issue was why the employee was not able to attend work on the day in question, as she called in sick but was actually on vacation in Penticton with her husband. Peltz also found that the employee’s testimony was not credible when analyzed. He concluded that she hid her trip to Penticton from her employer and only told the truth about the trip when confronted by management, who were already aware of it.


Peltz noted some mitigating factors in the case. The employee’s prior work record was favourable, and she did not have any previous discipline. He also noted the employee’s length of service to ICBC, having worked for the company for six years. Further, the current offence was a single isolated incident and there was no evidence of any previous attendance or sick leave issues.


However, Peltz also noted an aggravating factor in the case, in that the misconduct committed by the employee could not be considered a spur of the moment decision. He stated that the course of events clearly seemed planned and premeditated.


In his ruling, Peltz stated that he found it “reasonably probable the [employee] was not intending to work on Saturday.” Peltz also noted that he did not believe the employee’s testimony and that her actions were considered sick leave abuse and fraud on her employer.


Regarding the union’s contention that the employee’s dismissal should be considered excessive discipline, Peltz called the employee’s offence serious as it involved dishonesty and fraud. He further stated that his decision was also based on the employee’s lack of apology, acknowledgement or remorse. Peltz did consider that there was no evidence of financial loss for ICBC resulting from the employee’s actions; however, he noted that he did not accept that submission in full, as the vacation day request denial meant that there was insufficient staffing for that day, meaning other staff members were required to carry that workload.


Peltz considered the potential for reinstatement but he found that in this case, fraud had been proven. Peltz also noted that the conduct of the employee was “characterized by deceit and denial from start to finish”, and there had not been an acknowledgement of any wrongdoing, nor an apology or any evidence of remorse. For these reasons, Peltz

did not find reinstatement to be a reasonable option and found that the employment relationship could not be restored.


In his decision, Peltz found the penalty of termination for the employee was not excessive and denied the Union’s grievance.


THE TAKEAWAY


This case is an example that highlights the importance of trust in employment relationships and what can ensue when this trust is damaged beyond repair. In some cases, regardless of prior work record, misconduct leading to a breach of trust on part of an employee can result in dismissal.


We strongly recommend that employers seek legal advice when facing decisions involving employee discipline and terminations. If you have any questions, please contact us at (604) 736 9791 or email Alex Robertson ar@dwslaw.ca.


Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. Should you require legal advice for your particular situation, please get in touch with us. The information for this article was compiled on June 30, 2021. Any updates made to the article can be found at dwslaw.ca/articles.