As organizations consider permanent remote work options, employers must quickly evolve in managing their unsupervised workforces. If they don’t, they will pay dearly.

In the recent Alberta decision of GiVogue v International Union of Elevator Constructors, Tammy GiVogue was hired in May 2014 to be Local 130’s office administrator. She performed office manager and book keeping duties including entering hours worked into the payroll system.

GiVogue was on a sick leave from work in February 2018. When she returned, she completed the company payroll and issued herself pay for one of the days she was on sick leave — a day she should not have been paid for.

Upon discovering this, Local 130 terminated GiVogue for cause less than two weeks later, alleging she issued herself the extra day of pay intentionally and that this act of deceit undermined her relationship with Local 130.

At trial, GiVogue sued for wrongful dismissal damages and other claims. She admitted to being paid for a day she was not entitled to but claimed it was a clerical error. She also argued that Local 130 conducted no investigation after learning about the extra pay.

Local 130 denied DiVogue’s claims and alleged her actions amounted to “time theft”.

The trial judge found DiVogue to be a credible and honest witness and did not find her actions to be “dishonest or fraudulent or that she was intending to take advantage of her employer.”

Notably, one of her superiors, Mr. Fitzsimmons, testified he had no concerns about her job performance prior to the incident that landed DiVogue terminated.

The court went on to find no one at Local 130 ever spoke to DiVogue about the pay discrepancy before she was terminated. At the termination meeting, only after she was terminated was she told by a superior “we caught you, you stole from the union.”

In finding that there was no cause for the termination the court awarded DiVogue five months pay based on her three years and nine months of service. Notably, in making the award the court considered that DiVogue’s job search would be negatively impacted by the “for cause” termination from her previous employer.

This case is a good one to keep top of mind as employers acclimatize to a world where direct face-to-face supervision may be the exception and employers must trust their workforce like never before.

Challenging the integrity of an employee should be taken with great care and only when an employer has clear, convincing and cogent evidence to back it up. Failing to do so may very well cost you in court.

On to your questions from this week:

Q. I started a small business after being fired from my old job. An employee that used to work with me has asked if I am hiring. I am. I believe I signed a non-solicit agreement however at my old job. Would I be playing with fire if I hired my old colleague?

A. As long as you do not lure your ex-colleague to come work with you, you should be fine. But if your ex-employer catches wind that you hired one of its employees it may allege you ran afoul of your non-solicit clause. Ensure the evidence around the hiring, like emails, text messages etc. clearly establish that you were contacted by the employee about potential employment and not the other way around.

Q. When I went on maternity leave in 2019 I was due a bonus payment the following quarter. I just returned and have now been told no bonuses are going to be paid out to me until next year. I feel this is because I went on my maternity leave. Should I go to the human rights tribunal?

A. If the bonus was earned and accrued prior to your maternity leave in 2019 you have a legitimate claim for it to be paid out to you. Be careful not to file an application to the human rights tribunal unless you have some evidence to support you have been discriminated against on the basis of gender or family status. If you cannot establish discrimination your claim cannot succeed, in any form, at the tribunal. Consult with counsel on how to make a claim for your bonus if your employer refuses to pay.