A labour arbitrator has served notice that employees who commit benefit fraud will have a hard time avoiding dismissal.

Earlier this summer, arbitrator Eli Gedalof upheld the termination of Diana Spokiene, an associate professor of German studies at York University, for submitting more than 100 false benefit claims totalling more than $8,000 for paramedical services, including physiotherapy and massage, on behalf of herself and her family. She did so by altering electronic copies of genuine invoices for prior services, the arbitrator noted in York University v. York University Faculty Association.

Employers and their lawyers welcomed the decision.

“I breathed a sigh of relief, because this was a case where the arbitrator upheld the dismissal even though the  grievor’s professional career was at stake,” says Ryan Conlin, a partner at Stringer LLP, a Toronto-based management-side labour law firm. “It will certainly help deal with the culture that exists out there that ripping off a benefits plan is not really theft, so that people are doing illegal things and not getting burned.”

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The case, Conlin points out, wasn’t merely one of a minor act of dishonesty.

“This isn’t an example of an individual fudging one thing but a case of repeating fraud, not mitigating it, and then denying it,” he says.

The university, according to Conlin, did all of the right things when it became aware of the fraud. “The employer conducted an independent investigation, gave the grievor a chance to explain herself, did not run afoul of the grievor’s right to union representation and did not rush to judgment,” says Conlin.

The frauds aside, Spokiene’ s character and professionalism were unimpeachable. As Gedalof noted, she was a productive scholar with “undeniably impressive” credentials and nine years of “impeccable service” as a “valuable and respected colleague” who has “proven more than willing to engage in academic and administrative responsibilities beyond what is required of her.”

But Spokiene’s conduct as her scheme unravelled worked against her. When the benefit administrator made inquiries about her claims, she fabricated and submitted additional fraudulent invoices. After further inquires, she denied she had ever submitted the electronic claims at all. Ultimately, however, she admitted to her misdeed, apologized and paid back the unlawfully obtained benefits.

Read: 31 Toronto hospital staff fired for benefits claim ‘irregularities’

Spokiene’s lawyer, James McDonald of Goldblatt Partners LLP in Toronto, argued his client’s conduct was out of character, wouldn’t happen again and occurred as a way of coping with anxiety arising from difficult personal circumstances and calming acute panic attacks. The circumstances included her husband’s diagnosis with cancer in 2012 and the resulting financial difficulties from his inability to work. While Spokiene, who’s in her early 50s, initially started receiving physiotherapy for neck pain in 2013, she began submitting the false claims in 2014.

The arbitrator found that explanation, which Spokiene only provided when testifying at the hearing, was “not supported” by the medical evidence.

“Considering the full evidentiary record, I must conclude that while the grievor’s family circumstances obviously form part of the explanation for her actions, she defrauded her employer because she was feeling financial pressure, wanted extra money to address the problem and chose to take it from the employer,” wrote Gedalof.

McDonald believes that finding was fatal to Spokiene’s case.

“Even though the amount of money taken was not significant in terms of my client’s income, she couldn’t come up with an explanation for her behaviour that was consistent with the evidence as a whole,” he says.

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Ultimately, Gedalof found the grievor’s evidence raised a serious concern that she hadn’t accepted full responsibility for her actions.

“Even accepting . . . that I can give weight to the fact that the grievor has been successfully working for the university and fulfilling her functions as a professor pending the outcome of this arbitration, I find that there is an ongoing concern with respect to the grievor’s reliability as an employee in a highly trust-dependant position,” he concluded.

“On balance, while the grievor’s record of service has been excellent and while the cost to the grievor of discharge is undoubtedly heavy, I find that there are insufficient mitigating factors to warrant interfering with the penalty of discharge in light of the very serious nature of the grievor’s misconduct.”


Copyright © 2020 Transcontinental Media G.P. Originally published on benefitscanada.com

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