Bruce Power was justified in firing a unionized manager who allegedly made changes to his schedule, and that of his crew, to receive compensation they were not entitled to, among other indiscretions, an arbitrator has ruled.
“For a supervisor to plan and execute a scheme to obtain compensation for himself and his crew, there is nothing left to restore,” it said.
The worker, MC, who was employed as a first line manager (FLM), also certified time on his worksheet for hours he was not at work and he brought his personal cell phone into a work area in violation of Bruce Power’s policies.
The company also alleged that MC was not truthful in answering questions and that he failed to co-operate in its investigation.
Background
MC was hired in 2001 and, at the time of his dismissal on Oct. 4, 2022, was a FLM who supervised a crew of seven employees at Bruce Power’s nuclear generating station known as “Plant A” in Tiverton, Ont. He described his work as going into the field to ensure his crew was performing work safely, pre-job preparation and ensuring parts are ready and available.
The company uses a payroll and time reporting system called Tempus. MC, as the FLM, had authority to make changes to his crew’s schedule in Tempus and to verify the hours worked by himself and his team. Bruce Power relies on the system to pay its employees.
The incident in question involved swapping supernumerary shifts — and there was no dispute about the facts. Supernumerary shifts are eight hour days that allows time for on-the-job training and balances out the employees’ annual time allotted for work. These shifts, which are still regular work shifts, are easier to book off for vacation purposes.
There appeared to be a practice of swapping or moving these shifts into different weeks throughout the year to accommodate vacation requests, according to the ruling. FLMs have the authority to move them for employees. To move one for themself, they have to ask another FLM to make the change.
The exact manipulation was complicated (and is available in the original decision link below) but the end result is that Bruce Power estimated MC would have received at least $1,500 because of a change he made to his own schedule and that the total amount off additional wages for him and his crew exceeded $10,000. That was not in dispute.
Time theft
The second allegation against MC is that he entered and certified hours on his timesheet on 12 occasions when he was absent from the station. Bruce Power called it time theft.
The company decided to look back on his timekeeping once it became apparent MC had changed schedules for himself and his crew. It looked at the logs to see when MC entered the gate and the turnstyle, which was located o the fourth floor and about a 10-minute walk to his work location.
Bruce Power provided a log of the turnstyle reports and Tempus time submissions that showed a dozen instances where MC was inside for a period less than what he was paid without explanation. For example, on Jan. 3, 2022, he spent 12 hours and six minutes inside the turnstyles. He entered 12 hours regular pay and 0.5 hours at two times his regular rate for overtime. The differences range from seven minutes to 55 minutes.
MC said he did not intend to claim payment for time not worked, and said he may have made mistakes in not inputting time correctly. He also said there were occasions where he started working before swiping in and others where he continued working after swiping out. For example, he visited his crew at the water treatment plant. Sometimes, he logged in from home and worked remotely as well. In his view, it all worked out in the end — he may have been paid more on some occasions, but on others he worked without getting paid.
Personal cell phone use
The third allegation involved texting his crew about shift swaps. It became apparent MC had been using his personal cell phone in the work area, in violation of company policy.
Bruce Power has a strict policy prohibiting personal devices inside the protected area that is intended to protect the IT infrastructure and other intellectual property. But the company did acknowledge that the Access Control to a Nuclear Facility policy did not expressly prohibit personal devices.
But it insisted it was widely understood that no personal devices were allowed and there were signs around the guard house that clearly indicated that electronic devices were prohibited. MC admitted he had regularly brought his phone with him since 2016. He had a company phone, but he didn’t like it since it was a different brand than he was used to using.
MC thought his managers knew of his personal cell phone since he gave them that number to call while at work. He also believed that, since he had been issued a cell phone, he had permission to use his personal one at work.
Lack of co-operation
Bruce Power also claimed MC was not co-operative in its investigation. For example, there was an unwillingness to share information about who coached him to change the schedules.
It also became apparent that there were communications between MC and his crew, in the form of text messages, about the shift changes. MC said his phone had either been destroyed in a fire or dropped in a lake. He had lost two phones since the date he was fired.
He also said the messages on his phone contained private information about mental health issues related to an employee, and he was unwilling to share the message even after he was permitted to redact any personal information.
The ruling
The arbitrator noted the onus was on Bruce Power to establish misconduct and that dismissal was the appropriate penalty.
For the shift swaps, the union argued MC was behaving in a manner consistent with the norm. The arbitrator, though, rejected that argument.
“I am troubled by (MC’s) explanation that he believed it was normal to swap the shifts, his effort to find similar schedules, and then his decision to withhold the schedules from the company,” it said, adding his answers were not credible. “He is trying to justify fraudulent behaviour by saying that it was normal to engage in this misconduct.”
It also said his position as a supervisor made the misconduct “even more serious,” finding that MC took advantage of situation that provided minimal oversight for personal gain and to reward his crew.
Relating to the allegations of time theft, the arbitrator said MC’s explanations simply fell short. As a supervisor responsible for certifying his own hours, he was entrusted with accurate timekeeping. Certifying hours as worked when he had already left the station without a credible explanation is considered deceptive, it said.
As for personal cell phone usage, the evidence confirmed MC had violated company policy. The arbitrator found MC’s explanation unconvincing.
He had previously encountered security intervention for lacking proper authorization for a cell phone, an incident that should have alerted him to Bruce Power’s expectations. Additionally, when he sought permission, he specifically mentioned the employer-issued phone, which should have reinforced these expectations.
Furthermore, MC was required to use a scanning card to demonstrate authorization for bringing approved devices into the work area. Even if these factors did not sufficiently communicate Bruce Power’s prohibition, the warning signs illustrated with crossed-out cell phone images should have effectively alerted him.
Despite all of these cues, he disregarded the messages and brought his personal cell phone into the work area, directly contradicting the company’s policies and established expectations. Given this behavior, it is reasonable to impose a disciplinary response, the arbitrator said.
Was discharge appropriate?
The arbitrator noted that discharge is not the only option on the table where there is theft or tie theft.
But it noted that a scheme to gain additional compensation for time not worked is a “serious workplace offence.” MC did this not just for himself, but also for his crew, “theft that strikes at the heart of the employment relationship.”
Taken together with certifying his time for regular pay and overtime pay and his refusal to comply with the cell phone policy it demonstrated a “pattern of defiance and disregard for Bruce Power’s policies,” the arbitrator said.
It noted several aggravating factors, including that the conduct around swapping supernumerary shifts was premeditated and that he was a supervisor subject to the company’s code of ethics.
“He was entrusted by upper management with the authority to make changes to crew schedules and he took advantage of the minimal oversight,” it said.
While the union pointed to his remorse, in the form of an apology letter sent post-termination, the arbitrator put little weight on it.
“The letter does not show contrition or an understanding of the seriousness of the conduct. For the remorse to be genuine, (MC) would have needed to be more forthcoming about what he did, rather than trying to offer incredible explanations about his thinking at the time, such as following the norm or the cost of doing business,” it said. “His explanations give me no confidence that he truly appreciates the gravity of the situation or that the employment relationship could be restored.”
It also took into account his 20 years’ service and discipline-free record and the fact this his family circumstances and location of work meant losing his job was particularly severe.
“The relationship has been irreparably breached. The other workplace offences that were proven by the company make it even clearer that there is no basis to exercise my discretion to alter the penalty of discharge.”
For more information, see Society of United Professionals v Bruce Power LP, 2023 CanLII 77866 (ON LA)
