Date: 2007
Author: Daniel A. Lublin
Publication: Metro

If confronted with allegation, employees are legally required to speak the truth

Keith Richardson would have made sleeping beauty proud.
Richardson, a Production Foreman for Davis Wire Industries Ltd. was a stellar employee for 17 years. That is why his General Manager, Stephen Ward, was slow to accept the mounting reports being received from other employees that Richardson was sleeping on the job. But the complaints mounted and Ward, reluctant to confront Richardson with the allegations, decided to take a much more clandestine route to investigate the truth: Ward positioned a hidden video camera in the employee lunchroom and waited for Richardson to make his appearance. Over a period of four days, Ward concluded from the videotapes that Richardson had, in fact, been sleeping and that his ”so called” power naps went beyond the 50 minutes he was allotted as a break.
Equipped with the evidence of Richardson’s siestas, the next evening Ward confronted him by walking into the lunchroom and, turning on the lights, startling him awake. It was clear that Richardson had been sleeping, yet he refused to simply admit that he was asleep or offer an excuse or apology for his behaviour. Instead, Richardson chose to deflect Ward’s inquiries and suggest that the state of affairs was other than what it obviously was. In the court’s words, Richardson lied.
At trial, Richardson argued that he was confused when Ward interrogated him about his sleeping patterns at work. Again, rather than acknowledge that he had slept, Richardson tried to deflect criticism by suggesting it was a rare occurrence and by explaining that he had been ill. But the court disagreed. Richardson’s dubious explanations were not capable of belief, it said. Richardson lost his case, and after 17 years of employment, he lost his job.
Sleeping on the job may not, by itself, be cause for immediate dismissal. Richardson, however, complicated the problem by lying to his boss where no other explanation would have been credible. Here are four legal tips to keep you out of the courtroom and your fast-paced career on course:

  • Sleeping on the job is tantamount to theft of an employer’s time. Although Richardson’s dismissal was justified based on his duplicity alone, I am familiar with various Canadian cases where employees have been disciplined for sleeping during working hours.
  • If confronted with an allegation, employees are legally required to tell the truth. Courts tend to discredit employees where it is proven that a fictitious answer was given in response to an investigation into misconduct.
  • Consider an explanation. Many times, valid explanations
    are proffered that either justify or mitigate an
    employee’s conduct. Employers have a reciprocal
    obligation to consider the context, circumstances
    and employment history of an employee accused of
    misconduct, especially dishonesty. If there is
    a less severe punishment than termination, employees
    with no prior disciplinary problems should be given
    the benefit of the doubt.
  • Take notes immediately after an important occurrence. The Court preferred the evidence of Richardson’s manager, partly because he had taken notes of their conversation immediately after it occurred.
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