Scratching car just cause for dismissal

Worker lashed out at neighbours of client who complained
|Canadian Employment Law Today|Last Updated: 02/19/2014

An arbitrator has upheld the dismissal of a Nova Scotia home care support worker who scratched the car of a client’s neighbour.

Geraldine Campbell, 52, was a home support worker for the Inverness County Home Support Agency, a provider of home care support in Inverness County, N.S. Campbell’s duties included going to the homes of people who required assistance in their everyday lives, such as personal care, housekeeping and meal preparation.

In March 2011, Campbell was suspended for five days after sending a Facebook message to a client’s friend. In March 2012, Campbell fell asleep while at the home of an elderly client. The client fell down and Campbell didn’t respond, so the client requested Campbell no longer be assigned to him. A next-door neighbor agreed to help with the client’s care until another home support worker was able to take over.

On the night of April 13, 2012, Campbell went to the client’s residence — which was less than a block away from her own place — and scratched the car of the next-door neighbour’s husband. The neighbour’s husband saw her and yelled at her, at which point she ran away. He caught up with Campbell and picked up a bag she dropped, discovering a knife inside. He brought Campbell back to their apartment, where his wife asked, “why us?” Campbell replied that is was because of her job and the situation with the client next door.

The neighbours called the police and an officer observed a scratch on the car from “one end to the other” on the driver’s side, which ended up costing $1,700 to repair. The neighbours didn’t observe any indications of intoxication, but the police officer reported that he “could smell an odour” and Campbell had bloodshot eyes. Campbell was charged with mischief and jailed for the night.

The director of the agency learned of the incident and spoke to police. She held an investigation meeting at which Campbell provided limited answers to her questions. Campbell claimed she was walking down the road when someone attacked her, took her to an apartment and called the police. She also said she wasn’t allowed to give information on the advice of the union.

The director considered this misconduct serious, since it was related to a client and Campbell’s job, which involved working independently in clients’ homes. She also felt the incident was ground for termination, regardless of Campbell’s previous suspensions and the criminal charge — for which Campbell was later convicted. In addition, Campbell didn’t apologize for her actions, though she later admitted the union encouraged her to do so. Campbell’s employment was terminated.

The union grieved the termination and, in the hearing, Campbell admitted to damaging the car, which led to a sentence of 12 months probation. She said she had no intent to harm property but it was a spur-of-the-moment action caused by frustration with an escalation of the story of her sleeping in the client’s home and the fact she had been drinking. She apologized to the agency and the neighbours, saying she felt “ashamed and embarrassed.” She also said the termination had hurt her career, since it was a small community and the incident was known throughout.

The arbitrator noted Campbell’s actions occurred off-duty and “what an employee does on her own time will generally be of little or no interest to the employer.” However, there was a clear link between Campbell’s conduct and the agency’s interests, since it was spurred by a work-related incident.

The arbitrator also pointed out this was an isolated incident unrelated to her previous discipline and her unresponsiveness in the interview was understandable given the charges. Also, though she didn’t initially apologize, Campbell expressed remorse and understanding of the seriousness of her actions in the hearing, said the arbitrator.

However, the arbitrator found it must balance “the employer’s legitimate interests” with those of the employee. Campbell’s misconduct was directly related to the agency’s interest, breached the agency’s trust, and “was sufficiently significant and serious as to rupture the relationship between them, and render her continuing employment impossible.” Campbell’s termination was upheld. See Inverness County Home Support Agency and NSGEU (Campbell), Re, 2013 CarswellNS 1039 (N.S. Arb.).

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