City of Hamilton CUPE Roads AWARD

IN THE MATTER OF AN ARBITRATION
BETWEEN:
City of Hamilton
-and-
Canadian Union of Public Employees

Local 5167
Grievances re: Road Crew Terminations and Suspensions
Lorne Slotnick, Arbitrator
Representing the Employer Daryn Jeffries and Lauren Chang MacLean, counsel;
Darrell Smith, Lora Fontana, Andre Gulabsingh and others.
Representing the Union Gavin Leeb, Devon Paul and Elizabeth Nurse, counsel;
David Hauch, Derron Vernon, Sandra Walker and others.
Hearing Hamilton, Ont.
2013 June 17, Sept. 10, Oct. 7, 30, 31, Nov. 6, 25, Dec. 3, 4, 12
2014 Jan. 15, Feb. 5, 6, 12, 19, 20, 26, 27, March 4, 5, 20, 21, 24,
Apr. 4, 7, 11, May 7, 9, 12, 14, 23, June 3, 23, Sept. 17, 22, 24, 30,
Oct. 3, 22, 23, 31, Nov. 3, 17, Dec. 8, 10, 16
2015 Jan. 12, 13, 15, Feb. 3, 4, 12, 19, 25, 26, March 4
[2]
AWARD
CONTENTS (with paragraph numbers)
SECTION A INTRODUCTION
1.
2.
3.
4.
5.
6.
Brief overview1
The Grievors 8
Conduct of the Hearing17
Nature of the Evidence20
Structure of this Award21
Background and Agreed Facts27
SECTION B RULINGS ON GENERAL AND PRELIMINARY MATTERS

1. Union argument on delay45
2. Union argument on procedural fairness and conduct of investigation56
3. Union argument on Aerocide70
4. Burden of proof and evidence78
5. Falsification of paperwork81
6. Breaks92
7. Lunches99
8. Wearing of hardhats111
9. Patrolling118
10. Trucks staying together130
11. Time spent in the yard136
12. Dumping of asphalt143
SECTION C THE CREWS
Introduction147
Crew #1 Snape, Tabone, Yong, Nov. 8, 2012152
Crew #2 Micallef, Franco, two non-grievors, Nov. 8, 2012167
Crew #3 Hanson, Hanssen, Ritchie (Mascola), Nov. 8, 2012179
Crew #4 Fasulo, Palmateer, Halliday, Nov. 15, 2012187
Crew #5 Gauthier, Merritt, Micallef, Franco, Nov. 14, 2012 213
Crew #6 Di Filippo, Passa, two non-grievors, Nov. 15, 2012226
Crew #7 Di Filippo, Passa, Montoya, one non-grievor, Nov. 27, 2012233
Crew #8 Di Filippo, Passa, Montoya, one non-grievor, Nov. 28, 2012244
Crew #9 Schuster, Tabone, Nov. 28, 2012251
Crew #10 Burdis, Micallef, Franco, one non-grievor, Nov. 27, 2012265
Crew #11 Czajkowski, Micallef, Franco, 1 non-grievor, Nov. 28, 2012276
[3]
Crew #14 Hanson, Rouse, Ionni, Nov. 29, 2012307
Crew #15 Stephenson, Schiavo, one non-grievor, Nov. 29, 2012319
Crew #16 Cabral, Matias, Nov. 29, 2012329
SECTION D GROUNDS FOR DISCIPLINE PARTIES SUBMISSIONS AND
GENERAL CONCLUSIONS
1.
2.
3.
4.
5.
6.
7.
Time Theft340
Dishonesty during the Investigation354
Dishonesty at the Hearing, Credibility and Remorse...371
Personal Responsibility and Crew Dynamics383
Condonation and Workplace Culture396
Progressive Discipline 436
The Wm. Scott questions443
SECTION E THE GRIEVORS

Introduction447
1. David Snape450
2. Ming Yong463
3. Manuel Tabone472
4. Alan Schuster484
5. Fernando Matias494
6. Paul Cabral 508
7. John Hanson521
8. Robert Hanssen533
9. Wendy Ritchie (Mascola)546
10. Larry Rouse560
11. Tony Ionni575
12. Walter Halliday585
13. Mario Fasulo596
14. Edward Palmateer608
15. Andrew Stephenson623
16. Pat Schiavo 634
17. John Micallef643
18. Nicholas Franco659
19. Daniel Gauthier671
20. Frank Czajkowski685
21. Brian Merritt701
22. George Burdis717
23. Raimondo Di Filippo725
24. Franco Passa738
25. Kristin Montoya747
SECTION F CONCLUSION AND SUMMARY758
[4]
SECTION A INTRODUCTION
1. Brief overview
[1]
This award concerns 25 grievors employed by the City of Hamilton and represented by
Local 5167 of the Canadian Union of Public Employees. Of the 25 grievors, 21 were terminated
from their employment, another two were suspended for 75 work days, and the remaining two
were suspended for 30 work days. All the discipline has been grieved, and the union seeks full
compensation for all the grievors.
[2]
All the grievors worked in the Roads and Maintenance section of the citys Public Works
department. While almost all the grievors performed a variety of jobs during the year, the
discipline was imposed for activities during six days in November, 2012, when they worked on
small asphalt crews.
[3]
Simply put, when working on these crews, the grievors picked up a load of asphalt and
were assigned to fix potholes and other road defects in a particular area of the city. Sometimes
their assignment specified locations of the defects to be fixed, but a part of their duties involved
looking for road problems and using the asphalt. The crews worked in groups of two, three or
four, with no supervisor present once they left the yard where they were based. If the crew
members were assigned to work on side streets only, they would have one truck towing a
hotbox, a trailer heated by propane, most of which are designed to hold two tonnes of asphalt
but usually carried one tonne. Crews working on main streets used two trucks: one, referred to
[5]
below as the asphalt truck, towed the hotbox, and the other, referred to as a blocker or crash
truck, carried a large flashing arrow at the back. The sole purpose of the blocker truck is to
park behind the area where the crew is working so that the employees are protected from traffic.
The grievors were based at five separate yards, and all worked a 7 a.m. to 3 p.m. shift.
[4]
On the six days in November, 2012, that led to the discipline being imposed, the
employer hired private investigators to conduct surveillance of random asphalt crews. The city
was responding to rumours that material picked up by the crews from a city-owned asphalt
recycling machine was being dumped, and that, in its place, asphalt was being bought from
commercial producers, with the possibility that money was changing hands improperly. It
appears the surveillance and subsequent investigation produced no evidence of that sort of
impropriety. The matter was ultimately referred to the police, who concluded there was no
evidence to support any criminal behaviour. However, the surveillance did reveal that
significant amounts of time were being wasted by employees taking long breaks and lunches,
running personal errands and engaging in other unproductive activities.
[5]
In January, 2013, the grievors with the exception of one who was off work at the time
were interviewed, all with a union representative present, and asked about their activities in
general and also about their activities on the specific days they were under surveillance. Because
the surveillance was random and because the crews were not made up of the same people each
day, some of the grievors were under surveillance for only one day of the six; others were
followed for two, three or four days. In total, these 25 grievors were members of 16 crews
[6]
three crews were observed on Nov. 8, one on Nov. 14, two on Nov. 15, three on Nov. 27, four on
Nov. 28, and three on Nov. 29.
[6]
The termination and suspension letters are almost all dated January 28, 2013. The
employer frames this as a case about breach of trust. While there are differences in the details
set out in the letters of discipline, in general the letters say the grievors were terminated or
suspended for the following reasons:
taking long breaks and lunches, not working until the end of the work day, and spending
other time in unproductive ways. The employer characterizes this as time theft.
[7]
dishonesty and evasiveness in the interviews.
falsifying time sheets and other documentation.
failure to wear hardhats while working.
The letters of discipline also mention the possible dumping of asphalt, saying it is not
being relied upon by the employer but that the city reserved the right to rely on it, should it be
admitted or proven in the future. The employer did not rely on any allegations of asphalt
dumping at the hearing.
2. The Grievors
[8]
Of the 25 grievors, 23 are men. One of the two women, Kristin Montoya, is one of the
two grievors who received 30-day suspensions. She had the lowest seniority of all the grievors,
[7]
with only about half a year at the time of the discipline. Among the other 24, seniority ranged
from six to 33 years, as of the beginning of 2013. Eleven of the grievors had 20 or more years of
seniority with the city, including some with seniority carried over from municipalities that were
amalgamated into the City of Hamilton in 2001.
[9]
At the time the discipline was imposed, 30 roads employees were terminated, and two
suspended. The two grievors who are now challenging 75-day suspensions, Pat Schiavo and
Andrew Stephenson, were initially terminated in January, 2013. When new information came to
light, as detailed below, the city brought them back to work in May, 2013, with time served
suspensions of 15 weeks. The return to work was without prejudice to their right to grieve the
suspensions.
[10] The parties have agreed that the records of the four suspended employees are now clear by
virtue of the sunset clause in the collective agreement. The only issue in those grievances is
whether the grievors will be compensated for their loss of pay during the suspensions.
[11]
The grievances of seven of the terminated employees were settled by the parties on a
without-prejudice basis. The terms of those settlements were not disclosed to me. Of those
seven employees, five were part of crews whose activities are detailed below. The other two
were together as one crew, and were not part of any other crew that was observed on the
surveillance days, so their activities were not part of this hearing.
[8]
[12]
One member of a crew that was under surveillance (Crew #15 below) was not disciplined
at all; the citys evidence was that this was simply a mistake that came to the citys attention too
late to impose discipline. In addition, one four-member crew was lost by the private
investigators early in the sole day it was under surveillance, and its members were not
disciplined. With the exception of these five employees, everyone who came under surveillance
was either suspended or terminated.
[13]
Of the 25 grievors in this case, Ms. Montoya is the only one who has completed a post-
secondary degree. Most of the rest have completed Grade 12 education, or sometimes less. Not
surprisingly, given the high seniority of many, several of the grievors are in their late 50s or early
60s. There is little doubt that alternative employment opportunities for most of the grievors are
very limited in a changed economy where educational credentials have increased in importance.
[14]
With the exception of one grievor, Frank Czajkowski, discussed below, the employer is
not relying on any prior discipline for any of the grievors. There is a two-year sunset clause in
the collective agreement.
[15]
Without commenting now on the allegations, it would be an understatement to say that
the terminations were a complete shock to the grievors. One of them, John Hanson, testified that
when he was called to be interviewed as part of the investigation, he thought it was to be
awarded a promotion he had applied for. It appears that no one had any inkling of what was
coming.
[9]
[16]
Many of the terminated grievors were tearful in their testimony as they described the
impact of the loss of their jobs on them and their families. Others were simply angry. All or
almost all conceded that they had taken extended breaks and lunches on the days in question, and
had not been forthright in their interviews. All said they were sorry for their misconduct,
although the employer asserted that most of the apologies were not sincere.
3. Conduct of the Hearing
[17]
The hearing of these grievances consumed 56 days over a period of more than a year and
a half. Closing submissions alone took 13 days. Needless to say, those submissions were
thorough. But they were also very helpful, sorting through the enormous amount of evidence in
the case, and the large number of legal issues raised by each party. The hearing was hard-fought
by both sides on every issue, but conducted with efficiency and respect by all participants. In
particular, the two lead counsel, Daryn Jeffries for the city and Gavin Leeb for the union, are to
be commended for their command of the evidence, their civility throughout, and their strong
advocacy.
[18]
In the course of the hearing, I made numerous evidentiary rulings that will not be
recounted below. I also issued three short interim decisions, one related to production of
documents (2013 CanLII 62270 (ON LA)), another refusing production of the report produced
by police, (2013 CanLII 67387 (ON LA)), and a third allowing the employer to call an expert on
the operation of global positioning systems (GPS), related to an allegation by the employer that
there had been tampering with the GPSs on a small number of occasions during the six days of
[10]
surveillance. As it turned out, both parties called experts to offer opinions on tampering, but that
evidence, although interesting, was largely rendered moot by the later acknowledgement by one
of the grievors, Edward Palmateer, that he had disconnected the GPS on one of the trucks on
more than one occasion.
[19]
At the outset of the case, the parties provided me with an agreed statement of facts based
on their knowledge and understanding at the time, and some terms of reference for the hearing.
Included in the terms of reference were guidelines for acceptance of evidence that contradicted
the agreed statement of facts. In addition, the terms specified that evidence from all witnesses
would be admissible in respect of all the grievances. Also addressed were the number of
advisors, the presence of the grievors during the evidence, and the bifurcation of the hearing in
the event compensation is ordered for any of the grievors. In addition, the terms of reference
contained an agreement with regard to Frank Czajkowski, the only grievor who had prior
discipline imposed and whose grievances were pending at the time of the termination. That
agreement will be detailed below in the section related to Mr. Czajkowski.
4. Nature of the Evidence
[20]
The bulk of the evidence in the case consisted of the following:
An agreed statement of facts, running to 297 paragraphs and including some agreed
details of each crews activities on the days in question.
[11]
Private investigators reports. Teams of private investigators followed randomly

picked crews on six days in November, 2012. The investigators noted their observations
and took video when circumstances allowed. The investigators produced written reports
on their observations, which were put into evidence. All the video was provided to me,
and I have reviewed it. Several dozen short clips were played during the course of the
hearing. None of the private investigators testified, and the parties agreed that the
reports would be treated as if the investigators testified that they noted what they saw to
the best of their abilities and that the videos were taken on the relevant days and
approximate times stated in the reports.
GPS records. Most of the trucks were equipped with GPS units. For each GPSequipped truck, the city was able to generate a report locating the nearest municipal
address any time the truck stopped for two minutes or longer. This stops report can in
turn be cross-referenced to other documents, such as the crews recording of where road
work was performed. It can also show how long the truck was stopped for a break, for
example, at a coffee shop. The GPS records also show travel time and distance from one
stop to another. In addition, the records generated a moving map, showing
electronically the movement of the truck on a map through the day, by exact latitude and
longitude every 10 seconds, so that the route taken by the truck is known. All these
records were produced and introduced as evidence, including a large document showing
each GPS-equipped vehicles position every 10 seconds while it was moving, in latitude
and longitude to five decimal points in other words, within three metres. This
information, the city noted, can be used with Google Maps and Google Street View to
determine more precisely where a vehicle was at any given time.
[12]
Time sheets, also called activity sheets. There is a sheet for each crew on each day,
showing who was on the crew, which vehicles and hotboxes were used, how much
asphalt was picked up and from where, and how many hours each employee worked and
drove. Sometimes the sheet has information about the crews assignment. There is also
a section indicating the crews accomplishments and a result code, discussed below. The
time sheets are submitted to supervisors at the end of the day, and signed by supervisors.
Pothole sheets. These are sheets that are filled out by the crew as they are working.
Location of the work is recorded, as well as type of work, and for potholes, how many
filled at each site; crews at most yards use sheets on which the time each job was
completed is recorded. For a small number of crews, a pothole sheet could not be found,
although the city believes those sheets existed at some point. Like the activity sheets,
they are submitted to supervisors at the end of the day. The supervisors enter the data on
the pothole and activity sheets into a database, which can produce a report called an OM5
or OM6. These reports were also put into evidence.
Grievors interview notes. With two exceptions, all the grievors were interviewed on
Jan. 15, 2013, several weeks after the days they were under surveillance. They were each
asked the same general questions: (1) whether they were aware of the citys expectation
that they provide a full days work, (2) whether they had ever dumped asphalt or
observed dumping, (3) whether they had purchased asphalt or observed it, (4) whether
they had conducted personal business or observed personal business being conducted
during the workday, (5) whether they had disregarded the work assignment and spent
time unproductively in either unnecessary travel or in long periods of idleness, or had
observed it, (6) whether they had disregarded the requirements for wearing personal
[13]
protective equipment, (7) whether they had ever disregarded or violated provisions and
expectations for duration or location of work breaks, or observed it, (8) whether they had
ever used the citys equipment for personal purposes, and (9) whether they had ever
turned in a work report stating that work has been completed when it had not been. Some
of these questions, such as the one regarding dumping, were not relevant for the hearing,
as the city is not relying on any allegations of dumping. The employees were also each
asked specific questions about the days they were under surveillance (although there are
some exceptions to this, discussed below.) There were two management representatives
present at each interview taking notes. The two sets of notes for each interview were put
into evidence. One grievor, Frank Czajkowski, was never interviewed. Another, Walter
Halliday, was absent on Jan. 15 and was interviewed two days after the others. Mr.
Halliday surreptitiously recorded the interview; in addition to the notes of his interview,
each party produced a transcript of Mr. Hallidays recording.
Supervisor and superintendent interview notes. Supervisors at the yards are

unionized, in a separate bargaining unit and separate CUPE local from those of the
grievors. As part of the investigation of these grievors, seven supervisors were
interviewed, and their interview notes were put into evidence. Five of them were
interviewed again in April, 2013, along with four others. Three sets of notes of each of
those interviews were also put into evidence. In May, 2013, the nine supervisors
interviewed the previous month were disciplined, one with a written warning, four with
five-day suspensions, three with suspensions of 10 days, and one with a 30-day
suspension. There was evidence that four supervisors retired and one resigned around
this time. Any grievances by the supervisors related to disciplinary action against them
[14]
were not before me, but the letters of discipline were put into evidence. The supervisors
report to three superintendents, each of whom oversees a district of the city. Those
superintendents were also interviewed, in January, 2013, and notes of those interviews
were put into evidence. None of the supervisors or superintendents were called to testify
at the hearing.
Other documentary evidence, including the termination and suspension letters, various
city policies and memos, route maps, lists of crews working out of each yard on each day,
job descriptions, as well as documents relevant to particular grievors.
Grievors testimony. Each of the 25 grievors testified. Each grievor testified without
any of the other grievors present, with one exception the first grievor to testify, David
Snape, gave his evidence with 15 other grievors present at various times during his
testimony.
Evidence of Darrell Smith. Mr. Smith, the citys manager of Roads and Maintenance,
was the employers only witness (aside from the GPS expert witness.) He testified for
more than nine days.
5. Structure of this Award
[21]
This introduction, Section A, will conclude with some additional background and agreed
facts.
[22]
Section B will deal with a number of issues which are necessary to decide before
detailing and assessing the evidence. In addition, the union has asked for all the discipline to be
[15]
voided on the basis of delay, and has also raised questions about procedural fairness and other
flaws in the investigation. Those arguments are dealt with in Section B.
[23]
Section C will set out the evidence and conclusions regarding each of the 16 crews. The
various documents and the testimony of the grievors was used by both parties to reconstruct each
day. While the crews activities during some portions of each day are agreed, I will be making
findings on those periods where the crews activities are not clear.
[24]
Section D will deal with general observations about the grounds for discipline and
general conclusions from the evidence.
[25]
Section E will provide the reasons for my decision on each individual grievor.
[26]
I have attempted, and I hope at least partly succeeded, to keep this decision to a
manageable length. I ask the parties to forgive me for giving some of their arguments fairly
short shrift and for glossing over many details in the evidence in favour of highlighting the facts
that I felt were most significant. I can assure the parties that all the facts and legal submissions
were carefully considered and assessed.
6. Background and agreed facts
[27]
Much of this section is taken from the parties agreed statement of facts.
[16]
[28]
Since 2001, the City of Hamilton has included all areas in the former Regional
Municipality of Hamilton-Wentworth. This takes in former municipalities such as Ancaster,

Dundas and Stoney Creek, as well as some rural areas. The citys population is more than
700,000.
[29]
CUPE Local 5167 represents both inside and outside municipal workers. The grievors
first line of supervisors are members of CUPE Local 1041.
The grievors worked in the Roads
and Maintenance section of the Operations Division of the citys Public Works Department.
This department is responsible for maintenance of roads, sidewalks, traffic, water, sewers and
other infrastructure, as well as waste collection. Darrell Smith, the citys main witness in the
case, is the manager of roads and maintenance. The superintendents report to him, and the
supervisors, 15 of them on the day shift, report to the superintendents.
[30]
The grievors have numerous job classifications, which are not particularly important
here.
Most of the CUPE 5167 members working in the roads section, whatever their
classification, can be assigned general tasks such as filling potholes and other defects, as they
were on the days in question. During the period from approximately Nov. 15 to Apr. 15
annually, all CUPE 5167 roads and maintenance workers are classified as winter operators,
with the same types of assignments but higher pay, to compensate for working outside during the
winter.
[31]
All the grievors were on the day shift, weekdays from 7 a.m. to 3 p.m. They are entitled
to two paid 15-minute breaks and a 20-minute paid lunch. There is also wash-up time of up to
[17]
10 minutes before lunch and the end of the shift. All the grievors agreed in cross-examination
that this means they are expected to work roughly seven hours and 10 minutes per shift, not
counting wash-up time.
[32]
Crews are assembled early each morning at each yard by the supervisors in consultation
with the superintendents. The crews are assigned based on the work that needs to be done,
which might include road work for the day, or sidewalk repair, litter-picking or bulk waste
removal. Road work is not assigned every day. However, there is a scheduled road maintenance
program, and some road deficiencies must be filled within a specific time frame pursuant to
regulations under the Highway Traffic Act. Potholes and other road deficiencies generally come
to the managers attention because some employees are specifically assigned, without asphalt, to
patrol a designated area and note problems, and also through public complaints, often passed on
by a city councillor; sometimes city staff will also bring problems to the attention of roads
managers. Specific deficiencies are logged onto what is known as the Hansen system, which is
reviewed by supervisors when deciding on crew assignments. When crews are assigned to
perform road work, they often have a list of Hansens, but they can also be assigned to perform
road work in a particular area where there are no specific problems known. The city is divided
into roughly 80 routes used by the roads division.
[33]
All personnel and equipment are assigned on a per-job, per-day basis. No worker has a
standard route, type of work, crew assignment or equipment, although it is not uncommon for
some groups of workers to be together often. Crews are expected to inform their supervisor of
any issues arising during a given shift.
[18]
[34]
When road crews are assigned, a sheet with the assignment and the names of the crew
members is generally given to the crew member with the most seniority, shortly after 7 a.m..
That person then rounds up the other crew members, they find the vehicles and tools needed, and
prepare for work. The senior person on the crew customarily drives the asphalt truck, which
tows the hotbox, although there are exceptions some employees like to drive, others do not,
and one, the grievor with the most seniority, Nicholas Franco, has no drivers licence. Receiving
the assignment, checking the vehicles and assembling tools often takes up to half an hour, and
the city appears to have no issue with any of the crews taking that half-hour of preparation at the
start of the day.
[35]
When assigned to road work, the crew is told where to obtain asphalt. For the relevant
days here, many of the crews were told to pick up hot asphalt at the citys asphalt recycling
facility, located at the Rymal yard on Rymal Road in the Hamilton Mountain area. Some of the
crews worked out of Rymal, so were not required to travel to pick up asphalt. When higher
quality hot asphalt was required, as is necessary for some jobs, the crew was sent to a
commercial supplier, usually the Coco Paving plant just west of downtown or occasionally to
Dufferin Construction, not far from the Rymal yard. Occasionally, crews use room temperature
asphalt, known as cold patch or KP, which does not need to be transported in a hotbox. The
crews are expected to use all the asphalt that has been assigned to them.
[36]
The asphalt recycler at the Rymal yard went into operation in 2011. Aside from the
benefit of recycling salvaged construction waste, it promised cost savings from reduced
[19]
purchases of hot asphalt from commercial providers, better results than cold patch and increased
productivity from crews who would not have to travel and wait in line at places like Coco.
However, there were complaints about the quality of the asphalt being produced by the recycler,
along with rumours that asphalt was being dumped. Mr. Smith was also concerned about the
productivity of the crews. He and a small group of his superiors decided in the fall of 2012 to
initiate surveillance on some of the road crews, and kept the matter secret from even the
supervisors and superintendents.
[37]
On the first day of surveillance, Nov. 8, the private investigators were told to follow three
crews towing hotboxes from the Rymal yard. The investigators provided their report on Nov. 12,
saying they had observed extended breaks and stops at two private residences, a bank and a drug
store. The city arranged further surveillance on Nov. 14 and 15, and after receiving reports,
arranged surveillance on Nov. 27, 28, and 29.
[38]
In the first two weeks of December, 2012, the city analyzed the reports and video,
including matching the truck numbers observed by the investigators to documents showing who
the crew members were. Documents submitted by the crews, including pothole sheets and
activity sheets, were cross-referenced to the investigators reports. The city also reviewed GPS
reports.
[39]
By mid-December, the city had analyzed the documentation and decided to set up
interviews with 32 employees whom it had determined appeared to have engaged in misconduct.
Those interviews were postponed until after the Christmas holidays, and questions were drafted
[20]
by Jan. 9, 2013. Four interview teams conducted the interviews on Jan. 15, with the union being
notified the day before. The supervisors were interviewed on Jan. 18, and the superintendents on
Jan. 21. Aside from Mr. Smith (who was on one of the interview teams) and the grievors, none
of those present at the interviews testified; however, the parties agreed that their notes would be
treated as if the interviewers testified that the questions were asked as they appear in the preprinted forms used, and that they wrote down the responses to the best of their abilities.
[40]
In the week following, the city reviewed the interview notes and drafted disciplinary
letters. On Jan. 28, 2013, two of the grievors received 30-day suspensions and 22 received
termination letters. (As noted above, two of those terminations were later changed to 75-day
suspensions.) The termination letter to the 25th grievor, Mr. Czajkowski, was issued on Feb. 6.
One other grievor, Larry Rouse, received a second identical termination letter on March 7 (to the
extent that this is an issue, it will be discussed in the section on Mr. Rouse below.)
SECTION B RULINGS ON GENERAL AND PRELIMINARY MATTERS
1. Unions delay argument
[41]
The union argued that all the discipline imposed in this case should be set aside because
the city did not comply with time limits for imposing discipline that are contained in the
collective agreement, specifically Article 15.1, which states:
15. DISCIPLINE
15.1 In the event an Employee is disciplined, suspended or discharged for other than
irregular attendance, written notification of the action stating reasons shall be delivered to
[21]
the Employees within fourteen (14) calendar days of the occasion giving rise to the
action. Absence due to vacation, sickness or any other reason by the Employee involved
shall extend the fourteen (14) calendar days referred to above. An Employee may request
that a Steward be present at any meeting related to discipline. An Employee shall have
the right to request a copy of the disciplinary notification be provided to the Union.
[42]
Normally, this is the type of argument that is made at the outset of the hearing. In this
case, however, while the issue was raised in the unions opening statement, the delay argument
was not made until final submissions.
[43]
The unions argument can be summarized as follows: the 14 calendar-day period
specified in Article 15.1 is mandatory, as indicated by the use of the word shall, particularly in
contrast to the use of the word may in another part of the same article. The 14 days began
running when the employer had the information from the private investigators in November and
early December, the union says, yet the city waited until late January to impose discipline. This
caused prejudice to the grievors and the union, and undermined the intention of the parties that
discipline be imposed quickly so that employees know where they stand. Here, the shortest span
between the investigators report and the interview was 47 days. Alternatively, given that the
grievors responses in the interviews were a ground of discipline, and that the discipline was
imposed within 14 days of the interviews, the city may rely on that ground but no other, the
union argues.
[44]
In support of this argument, the union referred to Re Alberta Health Services and Alberta
Union of Provincial Employees (2011) 210 L.A.C. (4th) 1 (Sims), in which the arbitrator upheld
a grievance after the employer had not taken action within the 15 days specified from when it
[22]
first became aware of, or reasonably should have become aware of the occurrence of the act.
The arbitrator said the parties intention was that the time limit was mandatory, citing a provision
for an extension if necessary to complete a proper investigation. He added that the parties use
of the word mandatory in other clauses does not preclude an intention to make a time limit
mandatory even where the word is not used. (This decision was overturned on judicial review
and then restored by the Alberta Court of Appeal, 2013 ABCA 243 CanLII.) Also referred to
were Re Delta Chelsea Inn and Hotel Employees and Restaurant Employees, Local 75 [1999]
O.L.A.A. No. 142 (Albertyn), which says the purpose of such clauses is to give employees the
opportunity to respond to accusations; it also says use of the word shall, but with no
consequences specified for non-compliance, is not necessarily an indication that the clause is
directory only; Re Valade and Eberlee [1972] 1 O.R. 682 (Ct. of App.); Re Inmont Canada Ltd.
and Energy and Chemical Workers Union, Local 25 (1981) 30 L.A.C. (2d) 436 (H. Brown); Re
Dalhousie University and Dalhousie Faculty Association (2004) 128 L.A.C. (4th) 190 (Carter);
Re CIP Containers Ltd. and International Chemical Workers Local 229 (1973) 2 L.A.C. (2d)
308 (H. Brown).
[45]
Even where the collective agreement is silent, there is an obligation on employers to act
expeditiously in imposing discipline, the union argues, citing the statement by the Supreme
Court of Canada in Dayco (Canada) Ltd. v. CAW-Canada [1993] 2 S.C.R. 230 that unnecessary
delay causes labour relations harm, quoted in Re Ontario (Correctional Services) and OPSEU,
unreported, Grievance Settlement Board, Oct. 9, 2001. Also cited were numerous cases
involving prejudice to the employee caused by the employers delay, such as Re Air Canada and
CAW, Local 2213 (1993) 34 L.A.C. (4th) 13 (Frumkin), where the employers delay denied the
[23]
employee the opportunity of responding when she was in a position to remember the incident;
and four cases involving another mass termination where the prejudice caused by delay was
instrumental in the arbitrators allowing the grievances: Re AFG Industries and United
Steelworkers, Local 295 [1999] O.L.A.A. No. 135 (Harris), Re AFG Industries (1998) 75 L.A.C.
(4th) 336 (Herlich), Re AFG Industries [1998] O.L.A.A. No. 577 (Weatherill) and Re AFG
Industries [1998] O.L.A.A. No. 723 (H. Brown). Also referred to was Re Miracle Food Mart
and UFCW, Local 175 & 633 (1988) 2 L.A.C. (4th) 36 (Haefling), where the prejudice to the
grievor caused by delay was not overcome even though there was video of the alleged
misconduct. The question of prejudice to the grievors in this case will be dealt with in more
detail below, under the heading of procedural fairness.
[46]
In response to the argument under Article 15.1, the city says the 14 calendar days cannot
begin running when the employer first becomes aware of possible misconduct. The employer
needs time, especially in a complex case such as this, to investigate including interviewing the
employees involved. The 14 days can start to run only after the employer is able to confirm the
facts; in this case, that was after the interviews, which were held less than 14 days before the
discipline was imposed.
[47]
In support of its argument, the city has referred to a case between these parties
predecessors involving the same language, except that the current 14 calendar days was
formerly 10 working days. In that case, Re Hamilton (City) and CUPE, Local 5 [2000]
O.L.A.A. No. 721 (Springate), the arbitrator said it was reasonable for the employer to wait until
it had confirmed the facts of the situation before acting, to ensure that it properly understood the
[24]
relevant facts before making a final decision. The city says this decision correctly rejects the
idea that the occasion giving rise to the action in Article 15.1 refers to when the employer
became aware of any misconduct. The only way to interpret this phrase is to regard the start of
the 14-day time limit as beginning when the investigation is over; using that interpretation, the
employer complied with the time limit here, the city argues. The city also notes that none of the
grievances cite delay or Article 15.1. Prejudice is irrelevant to this argument because the city
met the time lines, the employer says. Not referred to in argument but included in the agreed
documents were eight examples from late 2011 to early 2013 where the city imposed discipline
more than 14 days after at least some of the misconduct but there was no grievance.
[48]
In any event, the city argues that the language in Article 15.1 is directory rather than
mandatory, as no consequences are specified, and also given that some sections of the collective
agreement dealing with time limits specifically state that those limits are mandatory (Article
17.8 on arbitration) or strictly mandatory (Article 16.5 in the grievance procedure). It says
even the cases cited by the union agree that the prevailing view among arbitrators is that use of
the word shall does not indicate an intention to make time limits mandatory unless
consequences for non-compliance are specified.
[49]
In addition to the Hamilton case, the city also refers to Re Windsor (City) and CUPE,
Local 82 [1996] O.L.A.A. No. 549 (Brent), where the collective agreement contained similar
language and the arbitrator used the same approach as in the Hamilton case, ruling that the time
did not start to run until the employer confirmed the facts; and Re Saskatoon (City) and CUPE,
Local 47 [2012] S.L.A.A. No. 1 (Hood), where the arbitrator said the delay caused by the
[25]
investigation was fully explained and reasonable. On the issue of whether the language is
mandatory, the employer referred to Re Loblaw Groceterias Co. Ltd. and Union of Canadian
Retail Employees (1973) 3 L.A.C. (2d) 325 (Adams), Re National Grocers Co. Ltd. and
Teamsters Local 419 (1983) 11 L.A.C. (3d) 193 (Langille) and Re Revera Retirement and United
Steelworkers, Local 8300 (2012) 220 L.A.C. (4th) 165 (Bendel).
[50]
The union responds that the language can still be mandatory even if no consequence for
failure to comply is specified. Other clauses in the agreement that refer to time limits as
mandatory or strictly mandatory have no impact on Article 15, the union says.
Decision on delay argument
[51]
I find it unnecessary to rule on whether the language of Article 15.1 is mandatory or
directory, although I do note the prevailing view that use of the word shall does not in itself
determine the issue. A ruling on this issue is unnecessary because, in my view, the employer has
complied with the 14-day period in Article 15.1.
[52]
The key question in Article 15.1 is when the 14-day period begins to run in any particular
set of circumstances. The clause says the employee must be notified within 14 calendar days of
the occasion giving rise to the action. Given that there are often circumstances where the
employer would not be aware of any misconduct within 14 days, it cannot be the intention of the
parties that the occasion refers to the date of the offence for which discipline is being imposed.
Nor, in this case, can it be, as the union urges, when the employer received each report from the
[26]
private investigator. At that point, the city did not even know which employees had been part of
the crews that were observed; it had to find the paperwork necessary to match up the truck
numbers reported by the investigators to the crews that used those trucks. At that point, as Mr.
Smith testified, the city wanted to ensure that only a small circle of management was aware of
the investigation, so there were delays while the city confirmed material in the investigators
reports, drafted interview questions and set up the interviews.
[53]
I agree with the arbitrator in the Hamilton case cited above that the only sensible way to
interpret Article 15.1 is to start the 14-day period running when the employer properly
understands the relevant facts, providing the employer does not unduly delay the completion of
its investigation. The employer should be encouraged to investigate before imposing discipline
in fact, one of the criticisms of the union here, discussed below, is that the city did not
investigate enough.
[54]
Where the employer delays its investigation, it risks prejudicing the employee and ending
up with the kind of result as in the AFG cases cited above. Here, the city did not procrastinate.
The delays between the receipt of the investigators reports and the imposition of the discipline
were understandable. While there is little doubt that these grievors were prejudiced by being
asked specific questions in an interview several weeks after they were observed, as discussed
below, that prejudice does not result from a violation of the collective agreement or from an
undue delay in the employers conduct of the investigation. It is simply a function of the nature
and complexity of the investigation and the number of employees involved.
[27]
[55]
The unions argument that the discipline must be set aside because of delay is dismissed.
2. Union argument on procedural fairness, conduct of the investigation
[56]
There are two aspects to this line of argument. First, the union argues that the interviews
took place so long after the days in question that the grievors were prejudiced by their inability to
remember details of their activities on those days. Second, a number of the specific questions in
the interviews were based on incorrect facts, and incorrect facts were included in the disciplinary
letters issued to the grievors.
[57]
In my view, there is no question that the time lag between the days in question and the
interviews affected the grievors ability to remember details of the days they were being asked
about. The surveillance took place on six days starting on Nov. 8, 2012 and ending on Nov. 29,
and the interviews of 23 of the 25 grievors were on Jan. 15, 2013. Virtually all grievors said in
the interview and repeated at the hearing that they remembered little or nothing of those
November days when they were interviewed in January. (Later, after being shown video and
documentation by the union, many had more specific memories.) Although the employer
questions whether some of the interview responses indicated a refusal rather than an inability to
remember, it is clear that at least some grievors failed to remember significant facts that would
have assisted them in the interview. One example referred to several times during the hearing
related to the grievor David Snape, who was asked in the interview to explain some of his crews
activities on the afternoon of Nov. 8. He responded that he could not explain. It turned out that
Mr. Snape was not even at work that afternoon, having earlier booked half a day of vacation
[28]
time. This fact was apparent from the documentation in the citys possession at the time of the
interview, but was missed. The unions point, which I accept, is that had Mr. Snape remembered
the day in question at the time of the interview, he would have brought his absence to the
employers attention.
[58]
This inevitable fading of memory about a day where routine tasks were performed caused
clear prejudice to the grievors, the union says, prejudice that may be only partly cured by the
presence of documentation such as the GPS reports and video. The grievors have been deprived
of the ability to remember why they made some of the stops they made, which may look like
breaks or unproductive time, but which may have had a legitimate explanation. There must be
consequences for this delay, the union argues. Grievances must be allowed in some cases, and
at the very least these facts must be considered in assessing whether there was justification for
the discipline or, if so, whether reinstatement is warranted.
[59]
The same arguments apply to misinformation communicated to the grievors during the
interview, as well as the employers failure to show the videos and documentation to the grievors
at the time in order to jog their memories, the union says. Employers must be encouraged to get
their facts right in the first place, the union argues, and grievors ought not to be penalized for
their responses when the wrong information was put to them.
[60]
The union cited seven examples where termination letters include allegations that the
crew was not observed working after a certain time, yet those times are incorrect. One example
involves the two grievors whose terminations were later reduced to 75-day suspensions, Pat
[29]
Schiavo and Andrew Stephenson. Their termination letters said they were observed not
engaged in any work beyond 11:01 on Nov. 29. Mr. Stephenson said in his interview there was
no way that could be correct, and Mr. Schiavo said he did not recall. The documents, however,
reveal that they were in the yard that afternoon, having been assigned to clean the hotbox and
tools. Other examples are less egregious but similar in nature. Some of these raise issues under
the Aerocide principle, dealt with below.
[61]
In other cases, termination letters cited days that the grievors were under surveillance but
not asked about in the interviews. One grievor was asked in the interview about a day she was
not working on an asphalt crew. Others were asked about four days they were under surveillance
but their termination letters cited only three days. Various other questions in the interviews were
based on inaccurate factual assumptions. In all the interviews and termination letters, the
grievors were told they were observed working only a certain amount of time. The union says
there is no rhyme or reason to how these amounts were calculated, but it is clear that large
amounts of legitimate work time were left out, including the first half hour of the day and travel
time to and from work sites.
[62]
The union says some of these examples exhibit a reckless disregard for the evidence
that was in plain sight in the documents available to and likely in the possession of the employer
at the time of the interviews and disciplinary action. In addition, information given by grievors
in the interviews was not checked with supervisors. Nor were any of the grievors at the
interviews shown any of the documents or video, which might have refreshed their memories.
All this must have consequences, the union says.
[30]
[63]
In support of its argument on these points, the union has referred to Re Home Again
Residential Programs and OPSEU, Local 597 [1994] O.L.A.A. No. 542 (Verity), where the
arbitrator concluded that the employer did not conduct a proper investigation, depriving the
grievor of procedural fairness, which became an important factor to be considered in the
mitigation of penalty. The lack of procedural fairness contributed to the arbitration boards
decision to substitute a two-week suspension for a discharge. Also referred to was Re Otis
Canada and International Union of Elevator Constructors, Local 125 [2013] N.S.L.A.A. No. 4
(Richardson), where the arbitrator says procedural fairness is an element in assessing just cause,
and Brampton Hydro Electric Commission v. CAW Local 1285 (1993) 108 D.L.R. (4th) 168 (Div.
Ct.).
[64]
The employer does not dispute most or all the errors cited by the union. It concedes that
questions based on mistaken information were asked in the interviews, and that the disciplinary
letters in some cases contain incorrect statements. The city also does not appear to dispute that
the delay between the days in question and the interviews affected the grievors ability to
remember events from those days, with the possibility that some exculpatory information may
have been lost.
[65]
However, the employer raises the following arguments in response: first, the large
amount of documentary and video evidence in this case cures much of the prejudice caused by
the delay; second, many of the questions in the interviews were general questions, not tied to
specific events; third, no one was disciplined for not remembering the days in question when
[31]
asked in the interview, but rather for being dishonest and evasive in the interview; fourth, given
the dishonesty in the interviews, the grievors do not have clean hands in the matter and cannot
now complain of prejudice; fifth, flaws in the investigation are cured by the arbitration process
itself; sixth, while it is a good practice, there is no obligation to interview any of the grievors or
to ask them any particular questions and in fact, one of them was not interviewed so no
prejudice can result from the interviews; seventh, there is no obligation on the employer to ask
the supervisors to verify the grievors responses in the interviews; and eighth, neither the union
nor the stewards present at the interviews ever requested documents or video at any time prior to
the discipline being imposed.
[66]
In support of its arguments, the employer has referred to the following cases: Re Durham
(Regional Municipality) and CUPE, Local 132 (2011) 213 L.A.C. (4th) 205 (Bendel), which
says the conduct of an investigation is irrelevant (unless the collective agreement is thereby
violated or prejudice is caused) because the grievor has access to the arbitration process; Re
Nestle Canada and CAW, Local 252 (2011) 210 L.A.C. (4th) 397 (Stout); Re Oshawa Foods and
UFCW, Local 175 [1996] O.L.A.A. No. 471 (Craven); Tipple v. Canada (Treasury Board)
[1985] F.C.J. No. 818 (Fed. Ct. of App.), all of which take the same approach. Supporting the
statement that there is no obligation to interview employees unless the collective agreement
requires it, a point the union apparently concedes, the employer referred to Re Winpak Ltd. and
CEP, Local 830 (2010) 194 L.A.C. (4th) 154 (Robinson) and Re Code Electric Products Ltd. and
IBEW, Local 258 (2009) 187 L.A.C. (4th) 315 (Laing). Also referred to were Re Loomis Courier
Service and CBRT [1993] B.C.C.A.A.A. No. 290 (Greyell) and Re Toronto Police Service Board
and Toronto Police Assn. 2009 CarswellOnt 10982 (Knopf), both of which say the employer is
[32]
under no obligation to provide particulars unless the collective agreement requires it. In
addition, the city referred to another of the AFG cases, 1998 CarswellOnt 7208 (Brunner), in
which a long delay was ruled not unreasonable and not prejudicial in the circumstances.
Decision
[67]
In my view, there is no question that the delay between the days in question and the
interviews has caused prejudice to at least some of the grievors, in that it impaired their ability to
recall details that might have assisted them in explaining periods of time when they were not
performing road work. I have already said the delay was not unwarranted, but that does not
mean it has not had an impact. However, some of the prejudice caused by the delay has already
been cured by the extensive production of relevant documentation, including GPS reports, time
sheets, and video taken by the private investigators, and by the hearing itself. Other prejudice
has not been cured. In all cases, the extent of the prejudice and the consequences will be
assessed based on the individual circumstances.
[68]
There were also flaws in the investigation, acknowledged by the employer. Furthermore,
there are errors in the termination and suspension letters. Some of these mistakes are
understandable, others are inexplicable. Some are quite minor, and others more serious.
However, while there were mistakes made in the interviews, there is no obligation on the
employer to conduct an interview at all, so it is difficult to argue that any prejudice results. Nor
was there any obligation to check the grievors interview responses with supervisors, particularly
in this situation where the supervisors were also under investigation. In any event, questions in
[33]
the interview that were based on misinformation have been largely cured by the hearing, where
the grievors had a full opportunity to explain their conduct. As far as the disciplinary letters,
there is an issue related to the Aerocide principle discussed below. Aside from that, my task is to
consider the evidence of the grievors conduct and to assess whether there was just cause for the
discipline imposed. The precise wording of the disciplinary letters is no longer a factor, as the
union knew at the hearing exactly what the case was against each grievor.
[69]
In summary, there is no reason to set aside any of the discipline because of concerns
about the inadequacy of the investigation or procedural fairness. However, the prejudice
suffered by the grievors because of the lapse of time between the days in question and the date of
the interviews will be taken into account in assessing the evidence, particularly the grievors
theories about what they might have been doing when they were not performing road work.
3. Union argument on Aerocide
[70]
As noted above, the evidence in this case has, for at least two grievors, concerned days
not cited in the termination letters. The union says this raises issues under the so-called Aerocide
principle that employers should be held to the grounds on which they have acted in a discharge
case. I call this a so-called principle because there is some doubt whether it is a firm principle
at all and because even in the case that gave the so-called principle its name (Re Aerocide
Dispensers and United Steelworkers (1965) 15 L.A.C. 416 (Laskin)), the arbitration board seems
to hedge its statement by saying that an arbitration board is justified in a case of challenged
discharge to hold the employer fairly strictly to the grounds upon which it has chosen to act
[34]
[71]
This argument is particularly important for two grievors: John Micallef, who was asked
in his interview about the four days he was under surveillance but whose termination letter
makes no reference to one of those days, Nov. 28; and Nick Franco, who was observed for four
days, asked about all four in the interview, but whose termination letter mentions one of those
days, Nov. 27, only in relation to his failure to wear personal protective equipment. The union
argues that evidence of events on Nov. 28 is not properly before the hearing in relation to Mr.
Micallefs discipline, nor can the events of Nov. 27 be used against Mr. Franco, except in
relation to any failure to wear a hardhat.
[72]
In support of this argument, the union relies on the Aerocide case, and on the wording in
Article 15.1 of the collective agreement, set out above in the section on delay, which requires the
employer to state the reasons for disciplinary action taken. Also relied on are Re Noranda
Minerals Inc. and Canadian Union of Base Metal Workers (1995) 49 L.A.C. (4th) 46 (Brunner),
where the employer did not cite the grievors disciplinary record upon termination and was then
precluded from relying on it; Re Pembroke General Hospital and ONA (2004) 130 L.A.C. (4th)
100 (Stephens), a patient abuse case where the employer was not permitted to add a second
incident that it knew about at the time of termination but did not act on at the time; and Re PetroCanada Lubricants Centre and CEP, Local 593 (2000) 86 L.A.C. (4th) 36 (Marcotte), another
case where the employer was permitted to rely on only the incident in the termination letter, but
where the arbitrator says the rule ought not be so stringently applied in circumstances where no
harm is done to the requirement for a fair hearing or no prejudice results...
[35]
[73]
The employers response is simply that it has not changed the grounds for discipline,
which include time theft, but rather it has in the case of Mr. Micallef and Mr. Franco, come to
the hearing with more particulars than are set out in the termination letter. There is no
requirement that a termination letter give examples or particulars of the grounds relied on by the
employer, the city says. Here, there are no new grounds being added, and no prejudice to the
grievors, who knew from the outset the dates where misconduct was being alleged, the employer
says. The word reasons in Article 15.1 is equivalent to grounds, the city argues, and the city
has provided those grounds, which remain unchanged.
[74]
The city has referred to the following authorities on this issue: Re Pictou District School
Board and Nova Scotia Teachers Union (1997) 63 L.A.C. (4th) 14 (Christie), which makes the
distinction between evidence of new grounds and new evidence of old grounds; Re Canadian
Airlines International and Canadian Air Line Pilots Association (1988) 35 L.A.C. (3d) 66
(Munroe), which emphasizes that the fairness of the hearing is the key question; and Snyder,
Collective Agreement Arbitration in Canada, paragraphs 10.51-57.
Decision
[75]
In all likelihood, the issues highlighted here by the union in relation to Mr. Micallef and
Mr. Franco are simply errors of the kind that can arise in a complex situation such as this. I
cannot find any intention or suggestion on the part of the employer at any point that it would not
be relying on the events of Nov. 28 for Mr. Micallef or the events of Nov. 27 for Mr. Franco.
This, in my view, is confirmed by the fact that all other members of their crews for those two
[36]
days were terminated for the same events that the employer has, by apparent error, failed to
include in these two grievors termination letters.
[76]
None of the grievors has suffered any prejudice from the flaws in the termination letters.
They have all known from the outset, as has the union, the nature of the allegations and which
days are relevant. They have been able to make a full defence. There is no unfairness involved
in allowing the employer to establish the grounds for discipline, if it can, with respect to those
days not included in the termination letter. On the contrary, it would be unfair to the employer
not to allow this evidence.
[77]
This portion of the union argument is therefore dismissed.
4. Burden of proof and evidence
[78]
There were some submissions but little disagreement on the burden of proof, positive
defences, and the role of circumstantial evidence. The following authorities were referred to: Re
CN/CP Telecommunications and Canadian Association of Communication and Allied Workers
(1985) 18 L.A.C. (3d) 78 (M. Picher); Re Vancouver and CUPE, Local 1004 [2010]
B.C.C.A.A.A. No. 34 (Sullivan); Re Oshawa Foods and UFCW, Local 175 [1993] O.L.A.A. No.
836 (Fisher); Re Baptiste and Canada (Correctional Service) 2011 PSLRB 127; Cuddy Food
Products and UFCW, Local 175 1995CarswellOnt 6159 (Snow); Re Meadows and CUPE, Local
835 (2012) 226 L.A.C. (4th) 169 (Kydd); Re Unionville Home Society and CUPE, Local 3744
(2000) 90 L.A.C. (4th) 299 (Davie); Re Finning International Inc. and IAM, Local Lodge 99
[37]
[2013] A.G.A.A. No. 22 (P. Smith); Re Ontario (Attorney General) and OPSEU (1989) 18
L.A.C. (4th) 260 (On. GSB); Re Universal Showcase and United Brotherhood of Carpenters
(2005) 141 L.A.C. (4th) 437 (Surdykowski), regarding use of hearsay evidence, which is not a
major factor in this case); Sopinka, Lederman & Bryant The Law of Evidence in Canada, parag.
2.86-89; R. v. Crowther [2013] B.C.J. No. 1763; R. v. Poitras (2002) 57 O.R. (3d) 538 (Ont. Ct.
of App.); and Gorsky et al. Evidence and Procedure in Canadian Labour Arbitration, page 13-4
and 13-5.
[79]
The employer bears the burden of proving all misconduct in a disciplinary matter such as
this. The burden of proof comes into play on each issue where the evidence is evenly balanced.
Proof is on the balance of probabilities with evidence that is sufficiently clear, convincing and
cogent in the circumstances. With respect to positive defences asserted by the grievors for
example, that the conduct was condoned the union bears the burden of proof.
[80]
A good part of the evidence in this case is circumstantial. The union asserts that care
must be taken with circumstantial evidence to ensure it satisfies the balance of probabilities test,
and that plausible alternatives to the employers theory that work was not being done at a
particular time must be considered in assessing whether the employer has proven idleness on the
balance of probabilities. The employer responds that pieces of circumstantial evidence, taken
together, can be as convincing as direct evidence, or sometimes even more convincing. Both
statements are correct.
[38]
5. Falsification of paperwork
[81]
As noted above, there are two forms filled out by crews that are the most relevant in this
case: the daily time sheet (activity sheet), and the pothole sheet. In a small number of cases, the
employer is alleging the pothole sheet was falsified to make it look like the crew was performing
road work longer than it actually was. These examples will be discussed below in the sections
on the individual crews and grievors.
[82]
The evidence indicates that the time sheet for road crews is normally, although not
always, filled out by the driver of the asphalt truck. With two exceptions, all the grievors on all
the crews are recorded on the time sheets has having worked eight hours on the relevant days.
(One exception is David Snape, who took a half-day of vacation and is recorded has having
worked four hours. The other involves Crew #9 below, where the number of hours recorded was
whited-out by someone and replaced with six hours, and a second time sheet was created
recording one hour for each member of the crew. This crew also attended a staff meeting of one
hour at the end of the day.)
[83]
As the evidence below confirms and the union concedes, all crews took extended breaks
and lunches. Other unproductive time is alleged by the employer and will be discussed below.
However, one of the employers allegations is that all the grievors, including those who did not
fill out any time sheets, were guilty of falsification of those records by recording that eight hours
were worked on the relevant days. Each one of the termination and suspension letters, after
stating that the employee engaged in time theft/neglect of duties, contains the following
[39]
sentence: Relatedly, you have acted in a fraudulent manner by falsifying your time sheet. (For
employees observed for more than one day, time sheet is pluralized.)
[84]
It is agreed that the time sheets are signed by supervisors and among their purposes is
calculation of pay for the employees. (The time sheets also contain a space for recording the
number of hours spent driving by the employees who drive the asphalt or blocker trucks; several
of them have eight hours recorded, some record six hours of driving, and three have been left
blank. This was not a significant issue in the case.)
[85]
Mr. Smith, the employer witness, said completion of the sheet is the responsibility of the
whole crew. However, virtually all grievors testified that the person filling out the sheet rarely
showed it to the other crew members, nor would the other crew members ask to see it. Most of
the grievors said they were not given any training or instruction on how to fill out the sheets.
Mr. Smith said he was not specifically aware of the custom that the asphalt truck driver fills out
the time sheet. His evidence was that any time sheet that says eight hours was worked was
falsified when the employee did not work the full eight hours.
[86]
While some of the grievors conceded in cross-examination that the time sheets were not
accurate because they had not worked a full eight hours, others said it was always understood
that eight hours would be filled in for a full shift, and that supervisors signed the sheets, and that
they were never told to change the way they were filling out the sheets.
[40]
[87]
In my view, the allegation of acting in a fraudulent manner by falsifying time sheets
has not been established by the city against any of the grievors. It is worth noting that there is no
evidence that any of the grievors arrived at work late or left early without authorization on any of
the days in question. The allegation of falsifying the time sheets is related to but separate from
the allegations of time theft, unproductive work or neglect of duty. Proof that time sheets were
falsified requires the employer to establish dishonest intention that is simply not present here.
Aside from the question of who is responsible for the sheets clearly there were many grievors
who did not see the sheets on the days in question, and had no reason to look at them in my
opinion the employees recorded eight hours because they were at work and available to the
employer for their full shift of eight hours. The question of whether they used that eight hours
productively is a different question, to be dealt with below. However, I find there was no intent
to defraud the employer by claiming pay for time the grievors were not on duty.
[88]
With respect to the pothole sheets, the evidence is that, like the time sheets, they were
filled out by one member of the crew who would not bother showing them to the other crew
members. The other crew members would not ask to see the pothole sheets, nor would I expect
them to do so.
[89]
The employer has referred to a number of cases involving time theft in which falsification
of time sheets was an issue. However, most of those cases involved either buddy punching
where an employee had another person punch a time card for him after he had left work or
other examples where an employee claimed pay for time not spent at the workplace. These
include Re Ottawa (City) and CUPE, Local 503 [2010] O.L.A.A. No. 23 (Dissanayake), where
[41]
the grievor intentionally inflated his work time while on call after regular hours; Re Grand and
Toy Ltd. and United Steelworkers, unreported, Nov. 13,2007 (Trachuk), where the grievor had
another employee swipe his time card; Re Vancouver Police Department and Teamsters Local
31 [2010] B.C.C.A.A.A. No. 181 (Sullivan), involving claims for time at work when the grievor
was not there; Re William Osler Health Centre and CUPE, Local 145 (2011) 205 L.A.C. (4th)
386 (Levinson), where the grievor was away from the workplace for long periods of time; Re
Hiram Walker and CAW, Local 2027 [2007] O.L.A.A. No. 611 (Brent), another buddy-punching
case; Re Canada Safeway and UFCW, Local 2000 (2002) 108 L.A.C. (4th) 161 (Chertkow),
where the grievor falsely claimed on her time card that she was at work when she was not; Re
Purolator Courier Co. and Teamsters, Local 938 1992 CarswellNat 1949 (Rayner), where the
grievor claimed overtime for time he was not at work; and Re Veratech and United Steelworkers
1990CarswellOnt4887 (Stewart), a buddy-punching case. One other case cited, Re Surrey (City)
and CUPE, Local 402 [2007] B.C.C.A.A.A. No. 8 (Foley), has some significant similarities to
the case here, but the grievor there had filled out activity sheets to make it look like he had spent
more time on the tasks listed than he had in reality.
[90]
The employer here argues that there is no distinction between going home early and
being at work but not working. I disagree. The distinction lies in the fraudulent intent, which is
present in the cases cited above, but is not present here.
[91]
I have therefore concluded that the employer has not made out its allegation of acting in a
fraudulent manner by falsifying the time sheets against any of the grievors. To the extent that
there is falsification of the pothole sheets, dealt with below, this in my view is the responsibility
[42]
of the crew member who filled out the sheet and not the entire crew, unless there is evidence that
the other crew members knew of or participated in the falsification.
6. Breaks
[92]
The collective agreement gives the employees two paid 15-minute breaks per shift.
There is agreement that when a crew is doing road work and decides it is time for a break, they
are not required to stay at the work site if it is not safe to do so. The employer appears to accept
that a short amount of travel to a suitable place to have a break should not be counted against the
employee, although in cross-examination, most grievors agreed or felt they had to agree with
the suggestion that if work stops at 9:15 it should start again at 9:30.
[93]
As will be seen below, there are many examples of long breaks, as well as long periods of
travel to arrive at the location for the break. The union says the travel time should not be
considered part of the break. It states that the grievors agreed with employers suggestion of 15
minutes from the end of work to restarting work only because it was a tricky question, and
they may have intended to count travel time as work.
[94]
Mr. Smith testified that the employers expectation is that breaks will be taken at the
work site, although he said if a washroom is needed, the crew may go to the nearest facility with
one, whether that be a coffee shop or a city facility such as an arena, community centre or fire
hall. He agreed that if the crew was travelling from one work site to another, and stopped for a
break on the way, the travel time should not be counted as part of the break. However, normally
[43]
travel time should be considered part of the break, he said. Mr. Smith said he could not say
whether the grievors had been told that. He also said the city had no issue with a short
washroom break at any time.
[95]
Many of the grievors testified that they sometimes stay at the work site for breaks, but
often go to a coffee shop. Some grievors, including Ming Yong and Manuel Tabone, said they
did not regard travel time as part of the break, and had never been told otherwise. Mr. Tabone,
however, said in his interview that he had been told to take breaks at the nearest facility. One
grievor, Fernando Matias, said travel to a coffee shop is part of the job, as the crew could and
has, on many occasions come across a road defect on the way. However, another grievor, John
Hanson, said he had always understood that crews should not travel far unless there was no
alternative. Another, Larry Rouse, said breaks were to be as close to the work site as possible.
And another, Kristin Montoya, said that if the crew had to leave the work site for a break, they
should travel to near the next work site or somewhere on the way.
[96]
Related to this issue, the employer has referred to Re Winners Merchants Inc. and Union
of Needletrades, Industrial and Textile Employees [2004] O.L.A.A. No. 417 (Brent), which says
a 15-minute break means 15 minutes away from the work station; and Re Maple Leaf Fresh
Foods Brandon and UFCW, Local 832 (2010) 196 L.A.C. (4th) 336 (Werier), in which the union
acknowledged that travel time was part of the break.
[97]
In my view, the evidence indicated that most of the grievors knew the break was 15
minutes from the end of work to the restart of work, but that they could add on a short period of
[44]
reasonable travel time generally less than five minutes to leave the work site and get to a
place that is safe and has washroom facilities. A longer period of travel is legitimate if the break
is taken on the way from one work site to another. But I do not agree with the suggestion from
the union that all travel time, no matter how long, is not to be counted as part of the break.
Employees cannot legitimately travel 15 minutes to a favoured spot, spend 15 minutes there, then
travel 15 minutes back to a work site, and then claim that they had only a 15-minute break.
[98]
However, I do understand, as many of the grievors testified, that there is and ought to be
some give and take about breaks, as there inevitably is in real life, no matter what the
collective agreement says. In other words, sometimes employees might take a break that is
shorter than what is allowed, sometimes longer. The problem, as will be seen below, is that
these crews appear to have consistently abused the system.
7. Lunches
[99]
Lunches present a somewhat more complex situation. The evidence below discloses
lunches of longer than the 20 minutes allowed by all crews on all days. In many cases, an
already extended lunch period is extended further by travel to one or more locations beforehand
to pick up food. Other crews take significant amounts of time to travel back to their home yard
for the lunch period.
[100] The employer says the rules were clear, and known, but just not followed crews had 20
minutes, plus up to 10 minutes of wash-up time, and lunch breaks were to be taken at the
[45]
worksite or, more commonly, at the nearest place where the crew can eat and wash up. No one
was to go back to their home yard, unless they are working close by.
[101] An unsigned memo issued in June, 2011, and addressed to East District employees
including crews working out of the Rymal and Jones Road yards addresses lunch, breaks and
return to the yard at the end of the day. Regarding lunch, it says we will be enforcing the 20
minute paid lunch on the job siteif an employee requires a facility use they will go to the
nearest city location (yard, rec centre) or use Tim Hortons etc.We will enforce these rules and
if necessary we will discipline any one not following the rules. An e-mail message a month
earlier to superintendents from Mr. Smiths predecessor as manager of roads was introduced into
evidence. It says that NO ONE is to come in the yard at lunch and or coffee breaks. It is a 20
minute paid lunch in the field. (emphasis in original) Mr. Smith said employees are not
required to stay at the job site, but can go to the nearest suitable facility, or if they are travelling
from one work site to another, may stop on the way for lunch.
[102] Grievors who worked in the East District were asked about the memo addressed to
employees. David Snape said the memo was posted at the Rymal yard, but that employees still
usually went back to the yard for their lunch. Many kept their lunch in the refrigerator there, he
said, or used the microwave oven, or found it a convenient place to wash up. He said supervisors
were there at the time, and would often talk to crew members. Mr. Snape said he understood that
travel time to the yard was not counted as part of the lunch break. Another grievor who worked
out of Rymal, Ming Yong, said hed usually have lunch at the yard, except when his crew was
working more than about 20 minutes away. Lunches would be at least half an hour once the
[46]
crew got to the yard, he said. He agreed supervisors were often present. He said he had never
heard of any rule that lunch had to be 20 minutes at the job site and that returning to the yard was
prohibited. On cross-examination he agreed that travelling back to the yard was unproductive
use of time.
[103] Another Rymal grievor, Manuel Tabone, said he returned to the yard every day and spent
30-45 minutes there. He also said supervisors were there, along with concrete workers, parks
and sweeper crews and other workers. Mr. Tabone said he had seen the memo, but that it was
not enforced. Its been like that in that yard for the 15 years Ive been there everybody
usually takes an extended break at lunch. Alan Schuster, another Rymal grievor, gave similar
evidence, adding that the rule would be enforced once in a while when managers alerted the
supervisors. It would last about two days and then things would go back to normal, he said.
Others who worked at Rymal gave similar evidence.
[104] None of the five grievors who were based at the Jones Road yard in Stoney Creek said
they had seen the memo. One, John Hanson, said no one ever told him not to return to the yard
for lunch, which he said he did once or twice a week. He said he doesnt count travel time to the
yard as part of the lunch break. Robert Hanssen and Larry Rouses evidence was similar, but
Wendy Ritchie said she was told not to come back to the yard for lunch.
[105] The five grievors who work in the West District three at the Shaver Road yard in
Ancaster and two at the Dundas yard all testified they knew of no rule against returning to the
yard for lunch. At Shaver, all grievors said they went back to the yard virtually every day for
[47]
lunch, and that everyone else did. Lunch breaks were at least 45 minutes, and supervisors
condoned it, according to Walter Halliday, who worked out of Shaver. At Dundas, the two
grievors said workers sometimes returned to the yard. One of the grievors who worked at that
yard, Pat Schiavo, said many of the workers there believed management wanted them back at the
yard so they could see where they were.
[106] Nine of the grievors worked out of the Wentworth St. yard just east of downtown
Hamilton. They agreed in their evidence that the prohibition against lunches in the yard was
enforced there, starting around the same time as the e-mail from 2011 referred to above. John
Micallef, one of the Wentworth yard grievors, said he generally would travel to an out-of-theway place because supervisors liked them to try to keep out of the public eye. He said travel
time did not count toward the lunch period, and that he felt 45 minutes was acceptable for lunch
because thats the way it was when everyone was going back to the yard, even though he
acknowledged that employees were told at meetings that lunch was only 20 minutes. Asked why
he felt 45 minutes was acceptable when his bosses specified 20 minutes, Mr. Micallef replied, I
went with whatever everybody else did.
[107] The union says it is clear that returning to the yard for lunch was common practice in
some locations, known to management and tolerated. There is no evidence that anyone
understood that travel time back to the yard was to be counted as part of the lunch break, the
union says. At Rymal, the memo was posted but not followed. At Jones, the evidence is that no
one saw it, so the likelihood is that it was not posted, the union says. At Shaver and Dundas,
[48]
crews returned to the yard and had never been told not to do so. The Wentworth yard was the
only place where the rule prohibiting returning to the yard was enforced.
[108] The city says the presence of supervisors at the yard means little. For one thing, the
supervisors are not watching the crew every minute, and would not necessarily have any idea
how long the employees are taking for lunch. Nor do the supervisors know whether its a break
or how long the other breaks are.
[109] In my view, the grievors must have been aware that it is a poor use of time to travel 20
minutes back to the yard for a 20-minute lunch break, followed by time spent travelling back to
the same general area. This poor use of time is compounded when the time spent at the yard for
lunch is often twice or more than the allotted 20 minutes. However, despite the presence of a
clear rule against returning to the yard, it is apparent from the evidence, including many
instances detailed below, that crews returned to some yards on a daily basis, in plain view of
management. I agree with the city that supervisors would not be watching the crews through the
entire lunch period, and so would not necessarily know how long the grievors were spending at
the yard at lunchtime. But those same supervisors, who gave out the work assignments in the
morning, would have a general idea where the crews were working and how much time it would
take to travel back to the yard and then out again. So there is an element of tolerance involved
here, not necessarily for the extended time at the yard although that would also be hard to
avoid noticing at least sometimes but for the wasted travel time to the yard and then back to the
work site, and for the presence in the yard.
[49]
[110] It was possible to enforce the rule against returning to the yard for lunch, as was done at
the Wentworth yard; but at other yards, the evidence is that the rule was simply not enforced.
The grievors based at those yards cannot be faulted for thinking it was permissible to travel back
to the yard for lunch. They are not blameless for their flouting of the prohibition against
returning to the yard, but neither are they completely at fault. They returned to the yard because
it was convenient, it was easier than working, and above all, because they had reason to believe
they could get away with it. That was true until it wasnt true. The amount of time they took for
lunch at the yard is a separate issue, to be dealt with below.
8. Wearing of hardhats
[111] The disciplinary letters for all 25 grievors state that you were observed not wearing your
personal protective equipment in accordance with City policy and requirements. While there is
other personal protective equipment used by the road crews, the only issue here is hardhats, and
the city concedes it is far from the biggest issue in the case and not a ground for severe
discipline. However, the video taken by the private investigators shows most grievors
performing road work without wearing hardhats. During the hearing, there was conflicting
evidence about when the road crew members were required to wear hardhats.
[112] Mr. Smith testified that the city regards wearing a hardhat as a safety requirement
whenever an employee is performing road work such as filling a pothole. He said he
understands employees are routinely told this at health and safety meetings. One exhibit, a sheet
given to the asphalt truck driver on each crew at the Rymal yard with the days assignment, has
[50]
underlined the words Please wear hardhats. It also says in bold face, Please ensure everyone
wears protective safety gear, ie Hard Hats, Vests and Safety Glasses.
[113] Many of the grievors testified that their understanding of the rule is that they are required
to have hardhats with them in the trucks, but not required to wear them unless there is an
overhead hazard. Some of these same grievors agreed on cross-examination that they were told
at health and safety meetings that they should wear hardhats whenever working, and minutes of
meetings put into evidence confirm this. Some said supervisors have shown up at job sites when
they were working without hardhats, and those supervisors made no comment about it. Others
said supervisors had told them they have to wear a hardhat only when there is an overhead
hazard or at Coco. One of the supervisors is recorded as saying in his interview that the
requirement is that hardhats be within arms reach. One grievor, Walter Halliday, said he has
heard supervisors who showed up at job sites ask where his hardhat is, and say maybe you
should wear it.
[114] Several grievors acknowledged the rule but said it was not enforced. Its up to
somebody else to enforce it, said one of the grievors, Fernando Matias. Nobody hassled you,
for not wearing a hardhat, another grievor, John Hanson, said. Another, Mario Fasulo, said the
hardhats are uncomfortable and sweaty if you have an opportunity to get away without it, you
do. However, one grievor, Brian Merritt, said he had no idea you had to wear it. One
suspended grievor, Tony Ionni, said he was not issued a hardhat until after he returned from his
suspension and asked for one.
[51]
[115] The union argues that the evidence as a whole supports a finding that there was confusion
in the grievors minds about whether they are required to wear hardhats when performing road
patching. However, the union also concedes that the evidence discloses that some grievors were
not wearing hardhats when they should have been, and that some mild form of discipline might
be warranted in those situations.
[116] I disagree with the unions statement that there was confusion about the rule. The
evidence, based on the documents, the health and safety meetings and some of the grievors own
testimony, points to the conclusion that the grievors knew they were supposed to wear a hardhat
when they were performing road work. It is true that at least two of the supervisors said in their
interviews that their understanding was that the hardhats should be within reach; however, most
supervisors were recorded as saying that hardhats are to be worn for road work.
[117] Not all grievors specifically, not all the blocker truck drivers performed road work on
the days in question, and the individual situations will be discussed below. Essentially, the
grievors created their own rule that hardhats were required only where there was an overhead
risk and adhered to it, perhaps with acquiescence from some or all of the supervisors.
However, unlike with lunches at the yard, supervisors were generally not present at the work
sites to check whether there was compliance with the hardhat rule. The grievors were
responsible for complying with the hardhat rule, and often did not comply, simply because it was
convenient not to do so and they felt there would be no consequences. Again, that was true until
it wasnt. As one grievor, Wendy Ritchie conceded, if there is a rule it should be followed,
whether or not it was enforced.
[52]
9. Patrolling
[118] When a road crew runs out of asphalt, there is a certain point in the early afternoon after
which it makes little sense to pick up another load, because there is not enough time to use it.
For example, the parties agree that if a crew runs out of asphalt at 1:30 or 1:45, the employees
are not required to pick up more asphalt. (Whether they ran out that late because they were
wasting time in the morning and at lunch is a separate issue to be dealt with below.) The city
agrees that it is reasonable for the crews to return to the yards starting at about 2:30, in order to
put away their tools, finish paperwork and use their wash-up time. The question, then, is what
work the employees are supposed to do if they run out of asphalt at 1:30, but before returning to
the yard after 2:30.
[119] As will be seen from the evidence below, it appears that many of the crews saved a small
amount of asphalt to be used in the early afternoon, after lunch, and when that was finished,
engaged in a variety of activities that the city regards as unproductive. In many cases, the
grievors testified that they were patrolling looking for road defects to be fixed the next day
or the next time they were on a road crew.
[120] Mr. Smith said there is a specific classification of Patroller, whose job is to drive around
looking for road defects and filing reports on what they find. Road crews, on the other hand,
should be calling their supervisors for instructions when they run out of asphalt and it is too late
to pick up another load but too early to return to the yard, he said. Mr. Smith said they might be
[53]
instructed to come back to the yard to clean hotboxes and tools, or to do litter pickup or clean
catch basins.
[121] As will be seen from the more detailed evidence below, pothole work on the days in
question always seems to stop by around 1:30 to 1:45. A large number of the grievors said they
then patrolled, looking for future road work or other problems that needed attention, before
returning to the yard. Some, including Mr. Snape, Mr. Fasulo and Mr. Hanssen, said they had
never been instructed on what to do once they run out of asphalt; others, including Paul Cabral
and Mr. Micallef, said they had been told by supervisors to look for road deficiencies and other
safety hazards after they run out of asphalt. Many, including Mr. Hanssen, said they would
write down defects for the next day; others, such as Mr. Micallef, said they just made mental
notes. Mr. Yong said he has called back to the supervisor and was told to patrol and look for
garbage and potholes, so thats what he did, without calling back every time. Mr. Hanson said
employees were never required to call back to a supervisor once they ran out of asphalt, although
sometimes they did. However, Mr. Rouse and Mr. Franco said the crew was supposed to call a
supervisor when the asphalt ran out in the afternoon. Ms. Ritchie and other workers at the Jones
Road yard said there was no rule at that location that employees could not return before 2:30, and
they sometimes did; other times, the crew patrolled. She said supervisors have said part of the
job is patrolling.
[122] Mr. Fasulo expanded on that theme, saying patrolling is done whether or not the crew has
asphalt. He said no one would necessarily write down the areas where work needed to be done in
the future. George Burdis said he would make notes of future work while the crew was on its
[54]
way back to the yard. Brian Merritt said he patrols all the time, even when the crew is driving to
a coffee shop, although he also described patrolling as more or less killing time. Daniel
Gauthier said that when the asphalt was finished, he would park on a side street and wait, or sit
in a coffee shop until he could go back to the yard at 2:30. Its just the end of the day, theres
no more work to be done, he said. Before, we used to go back before 2:30, but they put a stop
to it. However, he acknowledged that management expected the crews to be out looking for
more potholes and for future work.
[123] I accept that different grievors at different yards may have been given different
instructions, or no instructions at all, about what to do when asphalt runs out too late in the day
to pick up another load. I also accept that patrolling that is, driving the streets on the
assigned route, looking for road deficiencies and other issues should be considered legitimate
work. Furthermore, there is evidence that the crews sometimes do this type of patrolling.
However, taking the same route day after day to a coffee shop after the asphalt runs out is not
patrolling, even if the crew might happen to be looking at the road for possible defects. Nor is
aimlessly driving around simply to kill time, which again might occasionally happen to result in
the crew spotting a road defect. It is these largely unproductive activities that many of the
grievors, in their evidence, have elevated to the status of patrolling.
[124] I have concluded that the evidence below of each crews activities at the end of the days
in question reveals that the claims of patrolling are largely fiction. The grievors needed an
explanation of what they did between about 1:30 and 2:30, and patrolling appeared to be their
only possible answer. I find it significant that, while many of the grievors said they write down
[55]
defects spotted while patrolling, not one scrap of paper was produced to confirm this, nor was
there any other evidence supporting it, aside from bald statements by grievors that they patrolled.
The suggestion by other grievors that they made mental notes makes little sense for workers who
are driving on dozens of streets and who may not be assigned the same area on subsequent days.
[125] I do accept that some patrolling is done. For one thing, the evidence indicates that the
number of assignments related to specific road defects given to the crews is not nearly enough to
make up a days work. However, my view is that most of the patrolling that is done by the crews
is during the early part of the day when they have asphalt in the hotbox. At these times, the
crews are often observed driving around their route and stopping when they see an area that
needs work.
[126] The union argues that the crews are left to their own devices when asphalt runs out in the
early afternoon. I accept that there is some truth to this, although it is also clear that the
employees are supposed to fill the time doing something useful. It would seem obvious that if
employees did not know what to do, they could call a supervisor. At least one supervisor said in
his interview that he had assigned patrolling at the end of the day when asphalt ran out. That,
however, does not necessarily mean that it was done.
[127] The union also argues that the grievors came to understand that the requirements were
very minimal once they ran out of asphalt. As in the case of some of the other rules above, there
may be truth in this also. Certainly, the documents submitted to supervisors indicate that the
employees were not trying to hide when they stopped actual road work: I have reviewed all the
[56]
pothole sheets for the 16 crews; two are missing, three are from a yard where no times were
listed, and one is for a crew scheduled for only half a day of road work, but the remaining 10
show times for completion of the last road work ranging from 1:25 to 1:47. That, in my view, is
remarkable consistency as to when the road work actually ended. This is relevant to the unions
arguments on workplace culture and condonation, dealt with below.
[128] However, the union goes even farther to say that when grievors are in a city vehicle
driving, they are working albeit maybe not working as productively as possible simply
because they may be in a position to spot a road deficiency. (It has referred to Re Ontario
(Ministry of Natural Resources) and OPSEU [2008] O.G.S.B.A. No. 40 in support of this
proposition). I reject this view. If the primary purpose of the crews driving is to travel to a
coffee shop, or to simply kill time before returning to the yard, that should not be considered as
useful work time even if an employee happens to spot a pothole on the way. The incidental
spotting of a pothole on the way to a coffee shop does not magically transform break time or
aimless wandering into worthwhile work time.
[129] A related issue is the return to the yard at 2:30. In their evidence, some of the grievors
treated this as an immutable rule they felt that they must return to the yard at 2:30. In fact, the
rule is that crews should not return before 2:30, which simply means that 2:30 is the earliest they
should return. When pressed on the issue, many grievors agreed that returning at 2:40 or even
2:50 would likely give them enough time to finish their tasks and leave the yard at 3 oclock, the
end of their shift. Yet few of the crews below returned after 2:30, part of the bigger picture of
how much time was spent unproductively. The grievors cannot be faulted for returning to the
[57]
yard at 2:30, but when they do, they are already likely receiving some down time in the last halfhour of the shift.
10. Trucks staying together
[130] As noted above, many of the crews used two trucks. The sole purpose of the blocker
truck is to protect the asphalt workers from traffic. Yet there are many examples in the evidence
of the two trucks separating at various points during the day.
[131] The city says the trucks must stay together unless the blocker truck driver is assigned to
perform some other task, which happens only occasionally. Otherwise, the result is unproductive
time caused by delays. The union acknowledges that there are examples on the days in question
where delays were created because the trucks were not together, but argues that if there was a
rule that the trucks must stay together, it was a rule that the grievors did not know, nor did they
see it enforced. In fact, the union says, there are differing views on what is more efficient, since
some grievors felt it was more productive for the blocker truck to be looking for road defects
than to have it accompany the truck with the hotbox when asphalt is being picked up.
[132] Mr. Smith testified that the blocker trucks only duty is to stay with the asphalt truck.
Accompanying the asphalt truck to the Rymal yard recycler or to a commercial asphalt plant
ensures that the crew is ready to work immediately after picking up the material, he said. Even if
the blocker truck goes directly to the first site and arrives before the asphalt truck, that is
improper, since the trucks would have been unable to respond quickly to a call from a supervisor
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to take care of an urgent problem, he said. However, he said he had no objection to the trucks
separating during a break or lunch period.
[133] Mr. Smith said he had never told employees that the two trucks must be together, but
believed that the crews had been told that was the citys expectation.
[134] The grievors testimony on this issue varied. Mr. Rouse said he had been told to stay
with the asphalt truck unless he was assigned some other duty. Mr. Franco, the grievor who has
no drivers licence, said supervisors instructed the employees all the time to keep the trucks
together. Mr. Burdis, who often drove a blocker truck, said he would usually go with the asphalt
truck to pick up material, and would stay with it as long as it had asphalt. Mr. Halliday, however,
said he had never heard it said that the two trucks had to stay together, and that there was nothing
wrong with the two being separate when there is no asphalt in the hotbox, either at the start of the
day or the end. Others, including Mr. Micallef and Mr. Czajkowski, agreed. Mr. Palmateer said
he was never told that the two trucks had to stay together all the time; on the contrary, he said, a
supervisor often asked him to put out cones or scout work areas while the other truck was
picking up asphalt; when the asphalt ran out, he said he would go by himself looking for road
defects.
[135] There is little doubt that the trucks must stay together when there is asphalt in the hotbox,
although the evidence below reveals some incidents when this rule was broken, beyond the
permissible break and lunch periods. At the start of the day, when the asphalt truck is picking up
material, I am satisfied that the trucks should be together so that the crew can start work
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immediately or respond to an urgent call. It doubtless would seem inefficient to some
employees to have the blocker truck wait around at an asphalt plant while another truck picked
up material; I therefore do not consider the trucks being separate before asphalt is picked up to
be a major issue, provided the blocker truck is present when the asphalt truck arrives at the first
work site. However, separation of the trucks after the asphalt has been used may be a more
serious issue, closely related to the patrolling question discussed above. If the two trucks go
their separate ways so that crew members can pursue their own time-wasting preferences before
returning to the yard at 2:30 as seems to be the case in some of the evidence below that is
part of the broader picture of unproductive time spent late in the shift.
11. Time spent in the yard
[136] The union argued that any time spent by a grievor in the yard should be presumptively
viewed as authorized work time. It cited the unchallenged evidence that supervisors are present
in the yards, and also evidence by various grievors that mechanical issues with the trucks or the
hotbox sometimes compel them to return to the yard for repairs. The union argued that when a
crew goes to pick up food for lunch and then travels to the yard, it does not necessarily follow
that all the time spent at the yard is a lunch break; the crew may also be dealing with mechanical
issues, talking to supervisors, picking up more tools, changing propane tanks, or refuelling a
truck, among other activities. One grievor, Mr. Matias, said employees returning to the yard to
deal with a repair issue, such as malfunctioning safety lights or burner on a hotbox, often have to
wait for a mechanic to finish the job he is doing before attending to their issue.
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[137] The union argues that the onus is on the employer to show that any time spent in the yard
is improper. The presence of supervisors makes it unlikely that grievors would be returning to
the yard to shirk their duties, the union says it is hardly a good place to hide. The city responds
by saying a large chunk of labour arbitration case law has been built by workers who do things
that are not rational or smart.
[138] Aside from the grievors and a GPS expert, the unions only witness was Rob MacDonald,
a long-time City of Hamilton mechanic who has worked at the Rymal yard since 2002 and is one
of a small group of mechanics there. He said very small jobs tweaks, as he called them
are regularly not recorded, as it would take as long to do that paperwork as the job itself. Mr.
MacDonald said there are often small jobs on the hotboxes, a common one being the burner not
staying lit because it is clogged a job he said takes only a few minutes and would not normally
be documented. He also said crews just show up to see him without any advance notice and do
not bother going through a supervisor; if he is working on something, the crew might have to
wait 10 minutes, he said, but a burner problem on a hotbox is given priority because otherwise
the asphalt will harden.
[139] The employer witness, Mr. Smith, testified that he reviewed the daily vehicle inspection
sheets filled out by employees at the start of the day, and could not find any issues that would
have kept the crews from working. He acknowledged that crews may have to return to the yard
for repair issues, but said that no records disclose any of those types of issues on the days in
question. Mr. Smith also said mechanics are supposed to record all repairs, but could not say
whether they in fact do. Hotbox maintenance records for the fall of 2012 put into evidence show
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only one repair on any of the days in question, Nov. 28, which may be relevant to Crew #9 below
(showing two hours of work to repair rear lights and adjust burner.) Mr. Smith said the unit
must have been functioning, as it was used on that day and was only adjusted. Mr. MacDonald
said he did not think he did the work on that hotbox that day, adding that two hours seems long
for that kind of job.
[140] Mr. Smith also testified that at some of the large yards, such as Rymal, a crew coming
into the yard would not necessarily be seen from a supervisors office.
[141] I cannot accept the unions argument that all time spent in the yard should be
presumptively considered work time. For one thing, as will be seen below, many of the grievors
admitted they took excessive time in the yards, at lunch and on other visits. For others, it was
easy to speculate in their testimony that they had a legitimate reason for spending time in the
yard; as noted by the union, it is not up to the grievors to prove anything. As outlined above, the
grievors were first asked about their activities weeks later, so they cannot necessarily be faulted
for speculating about why they might have been in the yard for long periods of time.
[142] However, the testimony of the grievors and the surrounding circumstances must be
assessed in each case to reach conclusions on whether time spent in the yard was legitimate or
not. Despite the unions argument, there can be no presumption that time spent in the yard is
legitimate. Speculation is just that, speculation. But ultimately, as in all disciplinary matters, it
is up to the employer to establish each aspect of the misconduct on the balance of probabilities.
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12. Dumping of asphalt
[143] As noted above, the genesis of the citys investigation was a suspicion that asphalt from
the citys recycling machine was being dumped by the crews. Many of them complained in their
interviews about the product, which was labelled crap by more than one grievor. A small pile
of apparently dumped asphalt on the grounds of the Brampton yard was one reason the
investigation was initiated. There is no indication of who put it there, when or why.
[144] With respect to the grievors work, it is impossible to tell from the documentation how
much asphalt is being used at a given work site. This is because potholes vary widely in their
size and depth, and because some of the work done by the crews, such as road cuts where a
large square patch is laid down or depressions in the road, may require large amounts of
asphalt. For the same reason, there is no guide to how much time it will take to use a tonne of
asphalt, for example.
[145] There is no evidence that any of the crews did anything other than use the full amount of
asphalt that was issued to them. Yet in his evidence, Mr. Smith clung to his view that there may
have been improper dumping. Numerous times, he stated that there was no way the crew could
have used all the asphalt given how little time the employees actually spent performing road
work. While he was careful to confirm that no one was disciplined for dumping asphalt, it is
important to note that there is no evidence of dumping by these crews. Virtually all the grievors
testified that they never came back to the yard at the end of the day without having used up all
the asphalt, and I accept that this is correct. There was also ample evidence that a full hotbox
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can be used quite quickly in some circumstances. For example, Crew #8 below received one
tonne from Coco Paving, worked at one site for 24 minutes, and then went back to Coco for
another load.
[146] I find that all the asphalt issued to the crews was used by them.
SECTION C THE CREWS
Introduction
[147] For each crew, the evidence about how time was spent is a combination of facts that were
agreed by the parties before the hearing, facts that are apparent from the documents combined
with the testimony, and portions of the day where the facts are in dispute, usually because the
parties have differing interpretations of the facts that are known. Where there is a dispute, I will
make findings.
[148] In the interests of containing the length of this decision, facts that are not contentious will
be stated simply without detailing the document or testimony that supports the fact. As noted
above, in all or almost all cases, the grievors said in their January, 2013, interviews with the
employer that they had no specific memories of what they were doing on the days in question.
Their responses in the interviews, and in particular the allegations of dishonesty in the
interviews, will be dealt with below in the sections related to each individual grievor.
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[149] After the discipline was imposed and the grievances filed, the union reviewed the
relevant video and documents with each grievor. This process refreshed the memory of the
grievors about some of the activities on the days in question, and their testimony is informed by
having reviewed the documents. However, it was often difficult to determine from the grievors
answers whether they were testifying about a specific memory, or whether they had simply
pieced together what had likely happened at the time in question, based on the documentation
and their usual routines. Where this distinction is relevant to the particular incident, it is noted.
[150] In assessing the activities of each crew, I have not added the precise number of
unproductive minutes for each crew or each grievor. Aside from the tedium that such an
exercise would entail, a count of minutes is ultimately not what the case is about, even though
the questioning of witnesses often veered into that territory. A finding that a grievor took an
extra four or five minutes here or there is not only petty, but tends to obscure the larger pattern of
the crews activities. Mr. Smith, who in his evidence highlighted some fairly trivial
transgressions, did in the end adopt what in my view is the correct approach: that deciding
whether discipline was warranted was not a matter of counting up minutes spent at various times
during the day, but rather examining the work of the crew for the entire day.
[151] One general point important to note is that, despite some of the low tallies used in the
termination letters and in the interviews for the amount of work done, Mr. Smith acknowledged
that much of the day can be spent on legitimate activities that are not road work. Aside from the
first and last half-hours of the shift, wash-up time and the 50 minutes allowed for breaks, the city
had no issue with time spent travelling from one work site to another, time spent travelling to
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pick up asphalt, time spent in line at the Rymal recycling plant or at a commercial asphalt plant,
time spent at some work sites waiting until the asphalt to cool so that traffic does not destroy the
work right away, time actually searching for road defects, time spent talking to members of the
public when the crew is flagged down by a citizen who wants to talk, completing paperwork,
washroom breaks and dealing with mechanical defects. In many cases, the grievors have
speculated that some of these duties were being performed when it appears the crew is wasting
time. In some cases, I have given the grievors the benefit of the doubt on these matters, but in
other cases, I have found that a grievors testimony amounts to mere speculation and does not
accord with the surrounding circumstances.
Crew #1 David Snape, Manuel Tabone, Ming Yong, Nov. 8, 2012
Evidence
[152] This crew worked out of the Rymal Road yard. As noted above, Mr. Snape had earlier
booked half a day of vacation, and was scheduled to work only until 11 a.m. The crew was
assigned to do road work on two routes in the Hamilton Mountain area.
[153] The crew left Rymal yard at 7:37 with one truck and hotbox, but had no asphalt at that
time. Mr. Snape drove the truck in the morning, and Mr. Yong took over driving after Mr. Snape
left. The crew drove to the Dufferin Construction asphalt plant, near the yard, and stopped for
roughly one minute, but it is not entirely clear whether they entered the property. They then
drove for about 10 minutes to the home of Mr. Snapes ex-wife. Mr. Snape went into the house
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and emerged with his daughters. He also took a bag of garbage and put it in the back of the
truck. They left the house just before 8 a.m.
[154] The crew then drove for about 15 minutes to a McDonalds restaurant near the Coco
Paving plant, stopping at the restaurant for eight minutes. They then picked up asphalt at Coco,
leaving at about 8:47. The crew then travelled to a number of work sites and performed road
work until 10:07. They then drove back to the Rymal yard to drop off Mr. Snape, arriving at
10:12.
[155] Six minutes later, Mr. Yong and Mr. Tabone left the yard in the truck. After a brief,
three-minute stop on Rymal Road near the yard, they drove 10 minutes to a commercial building
where they were observed talking to two other city employees for about six minutes.
[156] They then travelled for another three minutes to another commercial building. There, Mr.
Yong spent a few minutes inspecting some snow tires he was interested in buying. The crew
then travelled for about 16 minutes and stopped at a 7-11 store for about 10 minutes, leaving at
11:14.
[157] Next, the crew travelled for four minutes to a bank branch, where Mr. Yong used the cash
machine. This stop lasted about two minutes. The crew then travelled for six minutes back to
the Rymal yard, where they stayed for 47 minutes, until 12:13.
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[158] After travelling in a zigzagging manner for about half an hour and arriving at a work site,
the crew performed road work for another 27 minutes, leaving at 1:09 and travelling nine
minutes to the citys Upper Ottawa Road yard where they refuelled the truck, taking six minutes.
[159] Next, the crew travelled about three kilometres to a Shoppers Drug Mart store, where
they made a short stop for Mr. Tabone to pick up a prescription for his mother. They then
dropped off the prescription nearby at Mr. Tabones house, where his mother lives.
[160] The crew then returned to the Rymal yard, arriving at 2 oclock.
[161] Video taken by the private investigators does not show any of the crew wearing hardhats
while performing road work.
[162] Mr. Snape testified that when the crew members arrived at the Dufferin plant that
morning, they were told by the manager that there would be at least an hours wait to pick up
asphalt. Mr. Snape said he contacted his supervisor and was told to go to the Coco plant. On
cross-examination, he agreed he was just piecing together what he thinks happened. On the way
to Coco, he said, the crew stopped by his ex-wifes house because she had called the day before
to say that she was starting work early, at 7 a.m., and asked Mr. Snape to ensure their daughters
would leave for school on time. He said he needed to be there by 8 a.m. to do that. His
evidence was that if he had been told to go directly to Coco, he would not have stopped at the
house, but would have just called to make sure his daughters were awake and ready to go. He
said putting the garbage in the truck was just an afterthought.
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[163] The stop at McDonalds before loading the asphalt was to get a coffee to drink while lined
up at Coco, Mr. Snape said. It was the crews morning break. He said he did not recall what he
did in the yard from 10:12 to his 11 oclock quitting time, but said he might have done laundry.
[164] Mr. Yong said he did not recall much about the stop at Dufferin. He said he thought the
stop at McDonalds was for Mr. Tabone to use the washroom and get a coffee. It was not the
morning break, he said, just a washroom break. Mr. Yong could not explain why Mr. Snape was
dropped off at the yard more than 45 minutes before his quitting time. He said the conversation
with the other city employees involved a supervisor from the Jones yard whose truck they had
spotted. Mr. Yong said he usually takes half an hour for lunch 20 minutes plus wash-up time
and then usually talks to a supervisor, which might account for an extra 10 minutes at the yard.
He said no road work was done after 1:09 because the crew was out of asphalt. Refuelling the
truck could have been done earlier at the Rymal yard, he acknowledged, but he said he hadnt
noticed there that it was nearly empty.
[165] Mr. Tabone said he did not recall whether he got permission to pick up a prescription for
his mother and drop it off, but he said it hasnt been a problem in the past. He said the crew
returned to the yard at 2 oclock because we probably ran out of asphalt.
[69]
[166] Findings
The stop at the house of Mr. Snapes ex-wife was improper. He should have asked for
authorization. Whether the delay caused by the stop was short or long depends on
whether I accept Mr. Snapes evidence that the crew was initially sent to Dufferin rather
than Coco to pick up asphalt, in which case the stop at the house was not far out of the
way. The city argues that Coco was the usual place to go for commercially produced
asphalt, although Dufferin was used occasionally; the city says the crew went to Dufferin
simply because it might be possible to pick up asphalt there and also see Mr. Snapes
daughters off to school by 8 a.m. When the employees saw a lineup at Dufferin, they
dropped that plan and just went to the house of Mr. Snapes ex-wife and then on to Coco,
the city says, wasting significant time because they should have gone to Coco right away.
Even if that is not the case, the crew prioritized Mr. Snapes personal errands over getting
the asphalt at Dufferin. While I have my doubts about some of Mr. Snapes evidence, I
find that the city has not proven on the balance of probabilities its theory that the crew
intended all along to go to the ex-wifes house. Therefore, the delay caused by the visit
to the ex-wifes house, while improper, was not long. The picking up of garbage was
also improper, although also not serious misconduct.
The stop at McDonalds was a break, not a washroom stop.
The crew drove Mr. Snape back to the yard too early at 10:12, even though his shift did
not end until 11.
After dropping off Mr. Snape at 10:12, the crew did no work until leaving the yard after
lunch two hours later. The stop for a chat with other city employees is not significant,
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nor is the stop at the bank; however, Mr. Yongs inspection of snow tires was a personal
errand that was improper. Cumulatively, these activities, each of which was short,
wasted a more substantial amount of time. The lunch break was at the yard and was
excessive at 47 minutes. I do not accept that talking to a supervisor at lunchtime would
extend the lunch break by more than a small amount of time.
The crews travel immediately after lunch appears consistent with looking for potholes;
the city says the crew might have just been driving aimlessly, but I find this is not proven.
While the ratio of travel time to work time of this crew is high, nothing improper about
this segment of the day was proven.
The stop at the Upper Ottawa yard to refuel was likely simply a way of running out the
clock; the truck could have been refuelled earlier or later at Rymal. The visit to the drug
store and dropping off the prescription at Mr. Tabones house were short stops but I do
not accept Mr. Tabones evidence that they were authorized.
The crew returned to the yard too early, at 2 oclock, and likely did very little of use in
their last hour.
I accept that the crew was out of asphalt at 1:09, which is likely too late to pick up
another load. However, had less time been wasted, the employees would have run out
earlier and been able to work with a second load past 1:09. The employees were not
patrolling or performing any other useful work after 1:09.
No hardhats were worn.
[71]
Crew #2 John Micallef, Nicholas Franco, two non-grievors, Nov. 8, 2012
Evidence
[167] This crew worked out of the Wentworth yard in downtown Hamilton. The grievances of
two of the crew members who were terminated were settled on a without-prejudice basis. Mr.
Micallef drove the asphalt truck and one of the non-grievors drove the blocker truck. The crew
was assigned two tonnes of recycled asphalt to fix road deficiencies on main streets in three
wards in the east end of Hamilton and western Stoney Creek.
[168] The grievors left Wentworth yard at 7:33. On their way to the Rymal yard to pick up
asphalt, they made two stops, one for eight minutes at the Italo-Canadian Social Club near the
yard (referred to by witnesses as the Italian club), and one for three minutes at Grandads
Donuts, about 15 blocks out of the way of a direct route to the Rymal yard. They arrived at
Rymal at 8:23 and left 12 minutes later.
[169] The crew travelled for about half an hour and then performed road work for 14 minutes,
then travelled for another 16 minutes to another site where road work was done for five minutes.
At 9:38, the crew travelled five minutes to the citys Water Operations and Training Facility,
known as the Brampton yard, stopping briefly on the way. The crew stayed at the Brampton
yard for 31 minutes, until 10:14.
[170] Next, the crew travelled for about 11 minutes to a site where road work was performed
for 53 minutes. Then, the asphalt truck returned to the Brampton yard and stayed there for an
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hour and nine minutes. The blocker truck joined the asphalt truck there after stops at a Tim
Hortons shop and Glow Variety and Grocery, where some employees like to pick up sandwiches.
The time between the last road work before lunch and leaving the Brampton yard was an hour
and 20 minutes.
[171] At 12:35, the grievors travelled four minutes to a work site, and performed road work for
25 minutes, then travelled for another 22 minutes and performed work at another location for 21
minutes, ending at 1:46.
[172] The two trucks separated, and the asphalt truck travelled about 13 minutes, stopping at a
Starbucks coffee shop for 20 minutes. The shop is west of the city centre, well outside the area
the crew was assigned that day. Mr. Micallef appears to be by himself at this time. The truck
then returned to the Wentworth yard, arriving at 2:34.
[173] The blocker truck stayed alone at the last work site for about 10 minutes, then went back
to the Italian club, where it stopped for 23 minutes.
[174] Mr. Micallef said the morning stop at the Italian Club was to take advantage of their
cheap cappuccino a buck, which many of the employees like to have before starting work.
He said he stops occasionally at Grandads Donuts to buy treats for the employees working at the
asphalt recycler at Rymal.
[73]
[175] The first stop at the Brampton yard was a break, Mr. Micallef said, and the second stop
was for lunch.
[176] He said that after the last road work at about 1:46, he was patrolling, looking for work.
Asked why he went to the Starbucks, which was out of the district where he was assigned that
day, he said, I like that coffee shop.
[177] Mr. Franco testified that he likes to get an espresso at the Italian club at the start of the
day, stopping there almost every morning. However, he believes he was in the blocker truck
before lunch, and believes the Tim Hortons stop was for him to get tea before meeting up with
the asphalt truck, which was already at the Brampton yard. Mr. Franco said he was likely in the
blocker truck after the last road work, because he likes to have an espresso at the Italian club for
his afternoon break.
[178] Findings
The trip from the Wentworth yard to the Rymal yard to pick up asphalt should take about
20 minutes. That was the time taken by the blocker truck, which went directly. The
asphalt truck made two stops on the way, one for eight minutes close to the yard (Italian
club) and a shorter one that was well out of the way (Grandads Donuts). These stops
caused the asphalt truck to arrive at Rymal 34 minutes later than it should have.
The crew took an excessively long morning break at the Brampton yard (31 minutes).
The travel time of five minutes to the break is not excessive.
[74]
The lunch break was much longer than the allotted 20 minutes plus wash-up time. The
crew took an hour and 20 minutes from their last work until leaving the Brampton yard
where they had lunch.
The last work was performed at 1:46. Mr. Micallef then drove across town to a Starbucks
shop. His testimony that he was patrolling at the time is not believable. The blocker,
with Mr. Franco in it, did nothing useful after 1:46, although the employees were entitled
to a 15-minute afternoon break.
No one was observed wearing a hardhat while doing road work.
Crew #3 John Hanson, Robert Hanssen, Wendy Ritchie (Mascola), Nov. 8, 2012
Evidence
[179] This crew worked out of the Jones Road yard in Stoney Creek. John Hanson drove the
one truck that was used. At the time of termination and testimony, Ms. Ritchies surname was
Mascola. The grievors assignment was to repair road defects on streets in the Stoney Creek
area, including on Queenston and McNeilly roads. The city was unable to produce the pothole
sheet for this crew.
[180] The crew left the Jones yard just before 7:30 and, after a very short stop at a Tim Hortons
coffee shop, arrived at the Rymal yard at 8:00 to pick up two tonnes of recycled asphalt. The
crew left Rymal at 8:19, and drove right back to the Jones Road yard, staying there for
approximately an hour. Mr. Hanson made four short calls to a supervisor during this time.
[75]
[181] The crew left the yard at 9:51, and drove 15 minutes to Highland Country Market, where
the truck was parked for 23 minutes. The grievors left the area and drove 19 minutes back
toward the Jones yard to a work site, where road work was performed for 19 minutes, starting at
10:48. The work site was in an area the crew had already passed on the way back from Rymal to
the Jones yard.
[182] The crew then travelled three minutes to Saltfleet Arena in Sherwood Park, where the
truck was parked eight minutes. As the crew was leaving, one of the grievors briefly left the
truck to do some road work.
[183] From about 11:18 to 12:05, the crew was driving some of the time and stopped some of
the time. The private investigators report says surveillance was discontinued for most of this
time to remain discreet; because of this and the absence of the pothole sheet, it is unclear what
the crew was doing.
[184] At 12:05, the crew stopped at a small shopping plaza containing a Subway sandwich shop
for about eight minutes, then drove north toward Lake Ontario, including along the Red Hill
Valley Parkway, for about 20 minutes, stopping near the Springers Meats store, west of Stoney
Creek and outside the Jones yard district, for three minutes.
[185] The crew then drove to Confederation Park, on the shore of Lake Ontario, where the
truck was parked for about 39 minutes until 1:24. From 1:24 until returning to the yard at 2:22,
the crew drove to several locations and stopped several times, but it is not clear what the
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employees were doing, as surveillance was dropped. During this time, there was a four-minute
stop at the same Tim Hortons shop they visited in the morning. Prior to that, there were also
two stops on a portion of Arvin Avenue off Glover Road, near the yard; this section of Arvin has
a cul-de-sac on both ends. The first Arvin stop was for 10 minutes at one end, and the crew then
went to the other end for eight minutes. Just prior to returning to the yard, there was another stop
at a second Tim Hortons shop in the far eastern end of Stoney Creek.
[186] There is only one video clip of road work being performed, but none of the three crew
members is wearing a hardhat.
[187] With regard to the hour-long stop back at the Jones yard from about 8:50 to 9:50 after the
crew had picked up asphalt at Rymal, Mr. Smith said he could see no reason, adding that the city
had no record of any vehicle repair that day. Video shows six or seven people standing around
near the building at the yard in orange coveralls at around 9 oclock, including Mr. Hanson, who
is seen making a phone call. Mr. Smith agreed they would be within eyeshot of supervisors if
the supervisors were at their desks at the time.
[188] Mr. Hanson said he could not recall why the crew was at the yard for that hour. He
speculated that there might have been a propane issue. He said he could tell from his expression
on the video that there was some problem he was trying to deal with. On cross-examination, he
agreed there was tension on the crew between Mr. Hanssen and Ms. Ritchie, and also agreed that
the phone calls and the delay might have been related to that. He also agreed it was possibly just
a long break.
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[189] Mr. Hanssen said he had become frustrated because Ms. Ritchie, who had restrictions
because of a wrist injury, was not pulling her weight on the crew, which worked together fairly
often. He said he and Mr. Hanson were doing all the grunt work.
[190] Asked about the hour at the yard, Mr. Hanssen said it probably was to refuel the truck
and get more paperwork, which he said can sometimes take a while because its hard to track
down a supervisor. He said it was unlikely a long break because he does not go back to the yard
for a coffee break. Ms. Ritchie agreed, saying the yard is not a place to hang around, so there
must have been a reason, but she could not recall what it was. She speculated that the crew may
have been asking for a blocker truck, as they were assigned to do some work on main streets.
[191] Mr. Smith said there was no evidence of any stops on the assigned streets of Queenston
and McNeilly. He said no one from city management had later checked the spots where the
truck was stopped during the times when surveillance had been dropped.
[192] Mr. Hanson said the stop at Highland Market, where there is a snack bar, was a break.
The stop at Saltfleet Arena was likely a washroom break, all three crew members testified. Two
stops before the travel to the Subway sandwich shop were likely road work, Mr. Hanson said.
[193] Mr. Hanson said the break at Confederation Park was because of Ms. Ritchies desire to
have lunch in the sun before she went on night shift the following week. Ms. Ritchie denied it
was her idea.
[78]
[194] The stops on Arvin Avenue were the subject of intense cross-examination. In chief, Mr.
Hanson said the stops were probably for road work, since the street, in an industrial area, often
has potholes. He denied a statement from Mr. Smith that road crews use the street to hide.
Initially on cross-examination he said he believed the crew was working there. When it was
pointed out that both of the stops were in the cul-de-sac areas, he agreed they were likely breaks.
[195] Mr. Hanssen said he has filled potholes on Arvin and knows nothing about it being a
hiding place. On cross-examination, he said he believed the stops on Arvin were work, but
probably a bit of a break, too. Ms. Ritchie said she has done lots of road work on that street
because its a bad road. She agreed, however, that at least one of the stops did not involve any
work.
[196] Findings
The hour spent back at the Jones yard after the crew picked up asphalt remains a mystery.
The city says it is clear there was no equipment problem, and I accept that. The city also
says that the grievors knew what was going on, but would not disclose it in their
testimony. While this is possible, it is not proven, nor do I find that the city has proven
its suggestion that this was simply a long break. This is one of the situations where the
passage of time between the day in question and the date of that the employees were first
asked about it has impaired their ability to respond. While it certainly seems odd that the
crew would return to the yard for an hour right after loading up on asphalt, there may be a
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legitimate reason for it, particularly given that their presence would likely have been in
plain sight of supervisors. I find that the city has not proven anything improper about
that hour. However, assuming the hour spent at the yard was legitimate, it was still not
productive, and one might have expected that the crew would refrain from taking
excessive breaks on this day. That was not the case.
From the time the grievors left the yard until their lunch break, a large amount of time
was wasted improperly. Most of this wasted time, I find, involved picking up food for
lunch at three different locations across a wide swath of territory, including a stop outside
the Jones yard zone. I find the stop at the Saltfleet Arena to be a legitimate washroom
break.
Having wasted time picking up food for lunch, the crew then took an excessively long
lunch break of nearly 40 minutes, double their allotment.
Contrary to the citys argument, I find the crew did some road work in the afternoon,
although not much, based on the GPS stops report.
However, I find that the stops on Arvin Avenue were an improper waste of time. The
crew simply was likely killing time before going back to the yard. Even so, the grievors
returned to the yard slightly earlier than they should have. They did no patrolling once
they ran out of asphalt. Had the crew not wasted so much time before lunch, they might
have run out of asphalt early enough to use a second load.
Mr. Smiths statement that there is no evidence the crew did any work on the streets to
which they were assigned is incorrect. Queenston and Highway 8 are the same road, and
work was performed there. McNeilly is the northern continuation of 8th Road East, and
stops were made on both roads.
[80]
Hardhats were not worn by anyone when road work was performed.
Crew #4 Mario Fasulo, Edward Palmateer, Walter Halliday, Nov. 15, 2012
Evidence
[197] This crew worked out of the Shaver Road yard in Ancaster. Mr. Halliday drove the
asphalt truck and Mr. Palmateer drove the blocker truck. The crew was assigned one tonne of
asphalt from Coco Paving to fix some specific deficiencies, as well as looking for problems on
main streets in two routes in their area. There is no GPS information for either vehicle.
[198] Because there are no GPS records, it is unknown when the crew left the Shaver yard.
The asphalt truck was picked up by surveillance when it left Coco at 8:40. It then travelled for
17 minutes back to a Tim Hortons coffee shop very close to the yard, where it was joined by the
blocker truck. The grievors stayed at the Tim Hortons for 49 minutes.
[199] Next, the asphalt truck went back to the yard, staying for about 13 minutes until 10:02.
The blocker truck did not accompany the asphalt truck.
[200] The two trucks reunited at a work site about eight minutes from the yard, and performed
road work for 23 minutes until 10:33 (although the pothole sheet says 10:40). They then
travelled to another site where work was performed for 29 minutes, and another, close to the
yard, where work was performed for 11 minutes until 11:36.
[81]
[201] At 11:38, the asphalt truck returned to the yard, and stayed for about an hour. The
blocker truck did not go to the yard at this time.
[202] The two trucks reunited at 12:45 at the same site where the work was being done before
the lunch break. Work continued for 35 minutes.
[203] The road work finished at 1:20, although the pothole sheet, filled out by Mr. Fasulo, says
it was finished at 1:40. The trucks then separated again. The asphalt truck drove around a semirural area in Ancaster for about 25 minutes, outside the crews assigned routes, then parked at the
end of a dead-end gravel road, where it stayed for between 16 and 20 minutes, until 2:05. The
blocker truck was not with the asphalt truck after 1:20.
[204] The asphalt truck then returned for a short visit to the same Tim Hortons near the yard
where the crew had been in the morning. The truck returned to the yard at 2:24.
[205] Video shows all three crew members performing road work, none of them wearing
hardhats.
[206] Mr. Halliday disagreed with the suggestion by Mr. Smith that 8:40 was late to be leaving
Coco, which is about 20 minutes away from Shaver. Mr. Halliday said the average time is about
9 oclock because of lineups at Coco. He said the blocker truck was not with him at Coco
because sometimes the blocker driver is out patrolling. A visit to the Tim Hortons stop after
picking up asphalt is a daily event, he said. Mr. Halliday said he has been told to keep off main
[82]
streets before 10 oclock. Mr. Fasulo had a similar answer, although he specified 9 oclock as
the latest time to avoid main streets.
[207] The trip back to the yard must have been necessary, Mr. Halliday said, or they wouldnt
have gone back, but he could not specify the reason. Mr. Halliday said he did not know where
the blocker truck went at lunchtime. The time spent driving around after road work was finished
was patrolling, he said. The stop at the dead end of the gravel road is a place sometimes used as
an outdoor washroom or to catch up on paperwork, he said. Mr. Halliday said there was no need
for the blocker truck to stay with him after 1:20, and that it might have been patrolling another
part of the route.
[208] On cross-examination, Mr. Halliday also he was aware the truck he was driving that day
had no GPS. He agreed that the pothole sheet shows work was done only at the specific sites
requested and nowhere else. He said his truck drove around rural areas outside of the crews
assigned area because he had already patrolled the assigned routes.
[209] Mr. Fasulo said there may have been variables that caused the crew to be at Tim
Hortons until 9:45, such as getting a call from a supervisor or waiting for something, but he
could not say what. The return to Shaver yard was probably to use the washroom or pick up a
tool that had been forgotten, he said, adding that the washrooms at Tim Hortons are disgusting.
The hour-long lunch at the yard could have been caused by discussions with a supervisor or a
propane problem, he said.
[83]
[210] Regarding the inaccuracies on the pothole sheet, Mr. Fasulo said the times were
estimates, often filled in later in the day. He said he believes the citys main concern is that the
job was done on that day, not the precise time. Mr. Fasulo said the two trucks separated after
1:20 so they could patrol different areas. He went to a rural area outside of his assigned routes
because there are not many potholes in November, and sometimes the crews have been assigned
the same routes a couple of days in a row and know there is nothing to look for. He
acknowledged the stop at the end of the dead end gravel road could have been a break.
[211] Mr. Palmateer, who said he always drives the blocker truck, testified that his routine is to
patrol alone when the asphalt runs out, and return to the yard at 2 oclock after picking up a
coffee. There are tasks to do at the yard in the last hour, not all of them related to road work, he
said, such as shuttling equipment including sweepers. He also said he was doing a patrol while
Mr. Halliday and Mr. Fasulo were picking up asphalt at Coco, saying he remembers that morning
checking out Route #3; on cross-examination, he agreed he did not specifically remember. Mr.
Palmateer said the 49-minute stop at Tim Hortons was within the normal range, but also said that
traffic had been diverted at their first work site and so we took a bit more time at Tims.
[212] Findings
Despite the citys suggestion that leaving Coco at 8:40 indicated that the crew departed
the yard late, I find there is insufficient proof of this, as the lineup at Coco may have been
long.
The 49-minute break at Tim Hortons right after picking up asphalt was improper. I do
not accept any of the possible reasons given by the grievors for the excessive break. In
[84]
particular, I reject the idea that the grievors were told to keep off the streets when traffic
was heavy; even if that were true, it would not explain staying at the coffee shop until
9:46. In addition, there seems to be no good explanation for going to a coffee shop near
the yard, except habit.
The trip back to the yard after the Tim Hortons visit was also improper, I find. It was
simply additional time wasted.
The two trucks were separated from each other at various times, which is improper and
potentially inefficient.
The lunch break of 61 minutes at the yard was excessive and I do not accept that there is
any legitimate reason for it. Given that the last work site was close to the yard, I do find
that it was legitimate for the crew to return to the yard for lunch on that day. For the
same reason, I disagree with the city that the crew ought to have finished the job before
lunch instead of going back there after lunch.
I find there was no patrolling done by either truck, either before or after the asphalt ran
out. I do not accept any of the grievors evidence in this regard.
Related to the finding on patrolling, I find that no work was done after 1:20.
The trucks, particularly the blocker, returned to the yard too early.
With regard to the allegation of falsification of pothole sheets, I will address this below in
the section on Mr. Fasulo.
No hardhats were worn by any of these three grievors while performing road work.
[85]
Crew #5 Daniel Gauthier, Brian Merritt, John Micallef, Nicholas Franco, Nov. 14, 2012
Evidence
[213] This crew worked out of the Wentworth yard. Mr. Micallef was driving the asphalt truck
and Mr. Gauthier was driving the blocker. The crew was assigned to fix road deficiencies in
three wards in the east end of the old city of Hamilton and the western part of Stoney Creek. The
grievors used three tonnes of asphalt two tonnes from the Rymal recycling plant, and one tonne
from Coco. Only the asphalt truck was equipped with a GPS unit.
[214] The asphalt truck left the yard at 7:50 and made a 13-minute stop at a Tim Hortons coffee
shop on its way to the Rymal yard. It left the Rymal yard at 8:45, and was picked up by the
private investigators at that time.
[215] The truck drove to several sites where road work was performed until 10:18. The
investigators noted that the blocker was present already at the first site when the asphalt truck
arrived. At 10:19, both trucks went to another Tim Hortons shop and left eight minutes later,
driving to the Coco plant.
[216] The trucks left Coco at about 11 oclock and the asphalt truck drove to the Brampton
yard, arriving at 11:29. The blocker arrived about 20 minutes later, and both trucks stayed until
12:24, along with a third city truck that was at the yard.
[86]
[217] The two trucks then travelled to two sites where road work was performed until about
1:20. Both trucks then went to a Country Style coffee shop in Stoney Creek, where they stayed
for about 10 minutes. Mr. Micallef and Mr. Merritt then travelled in the asphalt truck 25 minutes
across town to a Starbucks coffee shop on Locke Street. The truck was there for 16 minutes,
until 2:21. It then returned to the yard at 2:39.
[218] Road work was performed without hardhats.
[219] Mr. Smith stated it was poor practice to pick up fresh asphalt at Coco and then not use it
for nearly an hour and a half. Mr. Micallef first said he didnt use it right away because Coco is
in the west end and their assigned area was in the east, but then agreed it should have been used
when its at its hottest. Later, he said the asphalt can sit for a while and is still usable. Mr.
Franco agreed in cross-examination that the newer the asphalt, the better it is.
[220] Mr. Gauthier said that at lunchtime, the asphalt truck went directly to the Brampton yard
while he and Mr. Franco went to Glow Variety to pick up some food for Mr. Franco. They ate at
Leaside Park nearby and then met the other truck at the Brampton yard, also not far away. Mr.
Gauthier said that while he and Mr. Franco had already had lunch by the time they got to the
Brampton yard around 11:50, there was nothing to do until Mr. Micallef left with the asphalt
truck half an hour later.
[221] Mr. Micallef testified that he and Mr. Merritt were patrolling on their way to Starbucks
late in the shift, and then on the way back. Again, Mr. Micallef said he likes the Starbucks on
[87]
Locke Street. Mr. Merritt said they were out of asphalt and the only thing left to do is patrol,
because they are not allowed back at the yard before 2:30.
[222] Mr. Franco said that while Mr. Micallef and Mr. Merritt went to Starbucks, Mr. Gauthier
drove him to the Italian club near the yard and waited for him in the truck before driving back to
the yard. He said there was no point in going back right away because they would have arrived
before 2:30.
[223] Asked about the late departure from the yard in the morning, Mr. Franco said it could be
because the supervisors were late in giving out assignments, or just because the employees are
hanging around chit-chatting. Mr. Gauthier said he usually follows the asphalt truck to Rymal
when he is driving the blocker, but said on that day he may have been told by the supervisor or
Mr. Micallef just to meet at the first work site.
[224] There is video of the crew at Coco, taken from behind a fairly thick wall of vegetation.
Two of the crew members are seen using a shovel within the hotbox. The city raised the
suggestion that the crew was dumping the recycled asphalt from Rymal and before picking up a
load of the commercial asphalt. Mr. Micallef said the video simply shows an employee scraping
the inside walls of the hotbox. The stop at Coco lasted 10 minutes.
[88]
[225] Findings
The asphalt truck left the yard late, at 7:50, but there may have been a legitimate reason.
I cannot find anything improper has been established.
The two trucks should have been together at the start of the day, but were not. They also
separated after the asphalt was finished.
The crew should not have taken two breaks in the morning. The breaks were at two
different Tim Hortons shops, although the second one was only eight minutes.
The crew should have started using the Coco asphalt when it was freshest. Instead they
travelled a long distance and then stopped for an extended lunch break, first using the
asphalt an hour and a half after it was loaded. The border of their assigned work area was
only about five minutes from Coco.
There is no evidence that the crew disposed of any of the recycled asphalt during their
stop at Coco.
The lunch break was excessive by at least half an hour, not counting the unnecessary
travel time.
No work was done after 1:20. I reject the evidence that patrolling was done. The crew
members wasted well over an hour between when they finished their road work and their
return to the yard.
Crew members did not wear hard hats when working on the road.
[89]
Crew #6 Raimondo Di Filippo, Franco Passa, two non-grievors, Nov. 15, 2012
Evidence
[226] This crew worked out of the Wentworth yard. The parties settled the grievances of two
crew members who were terminated, on a without-prejudice basis. The crews assignment was
to fix deficiencies on main roads in three wards in downtown Hamilton and to the west. The
asphalt truck was driven by one of the non-grievors. Mr. Passa drove the blocker truck. The
crew had one tonne of asphalt from Coco paving. Both trucks were equipped with GPS, but
there was a malfunction on the asphalt trucks unit for part of the morning.
[227] The trucks left the yard between 7:20 and 7:30, with Mr. Di Filippo and Mr. Passa
together in the blocker, stopping at the Italian club for 14 minutes before going to Coco. The
trucks did not leave Coco until 8:55, apparently spending some time there talking to other crews.
The crew then travelled for 17 minutes to a McDonalds restaurant, where they stayed for 14
minutes until 9:26.
[228] Next, the crew travelled 10 minutes to an area where road work was performed at several
sites for just over an hour. Then the crew went to a location on Sandlyn Court for about 24
minutes. They were seen talking to someone who was apparently a resident of the street. While
no work was performed there on that day and Mr. Smith said in his examination-in-chief that it
looked like the employees were just standing around talking, the evidence is that a crew with
[90]
three of the same employees returned there the next day and did road work. Mr. Di Filippo said
he remembered that the crew did not have enough asphalt for the job on their first visit.
[229] The asphalt truck then went to Leaside Park, arriving at 11:30. The blocker truck arrived
15 minutes later, after a visit to a 7-11 store and to Glow Variety, and the trucks stayed until
12:19. The crew then did road work for about 47 minutes. The asphalt truck stopped at City
Hall at about 1:23, where it reunited with the blocker and work was done. The asphalt truck then
returned to the yard, arriving at 1:54. The blocker truck made its way to the Italian club with Mr.
Di Filippo and Mr. Passa, staying there for 38 minutes, and then arrived at the yard at 2:40.
[230] The two non-grievors are shown on video wearing hardhats for at least part of the day,
but Mr. Di Filippo and Mr. Passa are not.
[231] Both Mr. Di Filippo and Mr. Passa said they had no interest in the stop at McDonalds
but had no choice because the other crew members stopped there. Mr. Passa said the driver of
the asphalt truck would ask him to take the others to get food, as his truck is not towing the
hotbox, which he said explains the two stops before going to Leaside Park.
[232] Findings
The grievors wasted some time at Coco, after already having had a break at the Italian
Club, although it is not clear whether the delay is caused by the other crew members who
[91]
are non-grievors. They then had a further break at McDonalds which was not their
choice, but rather a stop made by the asphalt truck driver.
The time spent at Sandlyn Court was legitimate work time, despite the citys initial
impression.
The lunch break was excessive, lasting more than 45 minutes.
The grievors took an excessively long afternoon break.
There is no evidence that the GPS malfunction was the result of tampering by either of
the grievors.
Neither of the grievors is seen on video wearing a hardhat.
Crew #7 Raimondo Di Filippo, Franco Passa, Kristin Montoya, one non-grievor,

Nov. 27, 2012
Evidence
[233] This crew worked out of the Wentworth yard. The parties settled the grievance of one
crew member who was terminated, on a without-prejudice basis. The non-grievor was driving
the asphalt truck. Mr. Passa drove the blocker truck. The crew picked up two tonnes of asphalt
at Coco paving. The crew had the same assignment as Crew #6 above, and used the same
asphalt truck as that crew. As in the Case of crew #6, the GPS unit on that truck malfunctioned
for part of the day, showing at one point that the truck had driven from Hamilton to Buffalo,
N.Y. in 11 seconds. In addition, the private investigators lost both trucks at about 10:30.
[92]
[234] The two trucks left the yard separately, with the blocker truck stopping at the Italian club
nearby for 21 minutes and then arriving at Coco at 8:08. The asphalt truck made a two-minute
stop at a Tim Hortons coffee shop and arrived at Coco at 7:47. The trucks left Coco at 8:49 and
travelled for 12 minutes to an area where road work was performed for an hour and 21 minutes,
until 10:22.
[235] The crew then drove for about five minutes to the citys Chedoke yard and stayed for
about 22 minutes. The asphalt truck went back to Coco for a second load of asphalt, received at
10:51.
[236] The trucks met up at the next site, where road work was performed until 11:29. The crew
then travelled for eight minutes to a park on the waterfront for lunch, staying 42 minutes.
[237] Work was then done at several locations in the early afternoon until 1:55.
[238] The blocker truck was stopped for about half an hour starting at 2 oclock at Franks
Sicilia Bakery, around the corner from the Italian club. Mr. Di Filippo and Mr. Passa drove there
together.
[239] The blocker truck returned to the yard at 2:37. The asphalt trucks return time is
unknown.
[93]
[240] There is video of road work at only the first site, and none of the grievors is wearing a
hardhat.
[241] Mr. Smith said there was no reason for the crew to go to the Chedoke yard. Mr. Di
Filippo and Ms. Montoya said it was a washroom stop. There was also some evidence that the
crew was looking at a road defect there, which was fixed the next day by the same crew.
[242] The grievors testified that the one-hour wait at Coco for the first load of asphalt was not
abnormal, as there is sometimes a lineup. Ms. Montoya said the non-grievor who drove the
asphalt truck would sometimes patrol after running out of asphalt, and take notes of any defects
he spotted.
[243] Findings
Mr. Di Filippos and Mr. Passas morning break was slightly longer than it should have
been. The trucks did not stay together for the drive to Coco, but no delay was caused
because they left Coco together.
The stop at the Chedoke yard was likely legitimate.
The lunch break was excessive at 42 minutes plus some travel time.
Mr. Di Filippo and Mr. Passa had an excessively long afternoon break.
There is no evidence that the GPS malfunction was the result of tampering by any of the
grievors. I make no finding on the cause of the malfunction.
Hardhats were not worn.
[94]
Crew #8 Raimondo Di Filippo, Franco Passa, Kristin Montoya, one non-grievor,

Nov. 28, 2012
Evidence
[244] This is the same crew as Crew #7 the previous day, working out of the Wentworth yard,
with the same assignment. Again, the GPS on the same asphalt truck malfunctioned for part of
the day. The crew picked up two loads of asphalt, one tonne each, at Coco. Mr. Passa was
driving the blocker truck, and the non-grievor drove the asphalt truck.
[245] The blocker truck, with Mr. Di Filippo and Mr. Passa, stopped at the Italian club for 18
minutes after leaving the yard at 7:16 and before driving to Coco. The asphalt truck left the yard
at 7:30 and went directly to Coco.
[246] The crew left Coco at 8:21 and travelled six minutes to the front of the Chedoke yard,
where road work was performed for 24 minutes. The crew then went back to Coco for a second
load of asphalt, leaving at 9:21.
[247] The crew then did road work at five locations, ending at 11:19. Both trucks then went to
a park on the waterfront, the asphalt truck arriving at 11:30, the blocker truck 10 minutes later,
after stopping at a convenience store. The trucks stayed at the park until 12:25.
[95]
[248] Next, the crew travelled about 10 minutes to an area where road work was done for about
an hour, finishing at about 1:35. Mr. Di Filippo and Mr. Passa then headed for the Italian club,
taking a circuitous route. They stayed at the Italian club for 38 minutes. Mr. Passa said their
meandering route may indicate that they were looking for potholes. The asphalt truck also took a
break for about 13 minutes and then a circuitous route back to the yard, which Ms. Montoya said
likely meant that they were looking for potholes.
[249] There is video of road work at several sites, but only the non-grievor is shown wearing a
hardhat.
[250] Findings
Morning and afternoon breaks were within acceptable limits for this crew, except for Mr.
Di Filippos and Mr. Passas afternoon break of 38 minutes. The lunch break for the
whole crew was excessive, lasting roughly an hour.
I find it likely that there was some patrolling done after the asphalt ran out.
There is no evidence that the GPS malfunction was the result of tampering by any of the
grievors. I make no finding on this point.
Hardhats were not worn.
[96]
Crew #9 Alan Schuster, Manuel Tabone, Nov. 28, 2012
Evidence
[251] This crew worked out of the Rymal yard. The grievors used one truck, and were assigned
to fix road deficiencies on a route in the Hamilton Mountain area. Mr. Tabone was the driver.
The crew had a tonne, or possibly slightly more, of recycled asphalt.
[252] The crew left the yard at 7:24, travelling first to a McDonalds restaurant, and returning
to the yard 18 minutes later. The grievors left the yard again at 8:02.
[253] Next, the crew travelled and performed road work on three streets, until 8:47. The
grievors then travelled another three minutes and stopped for three minutes, staying in the truck.
They then travelled for eight minutes to another McDonalds restaurant near the yard, where they
stayed for five minutes. The crew then returned to the Rymal yard and stayed there for 44
minutes, until 9:54.
[254] After leaving the yard again, the crew travelled 14 minutes to a site where work was done
for 11 minutes, until 10:19. The crew then travelled about half an hour to another area, taking a
very indirect route. Work was then done for eight minutes, until 11 oclock. This area included
a street called Ravenbury Drive, where a job is noted at the top of the pothole sheet (not in Mr.
Tabones writing, unlike the rest of the sheet). No work was performed there, and the sheet does
not mark the job as having been completed.
[97]
[255] The grievors then travelled 16 minutes to a Metro grocery store, for a seven minute stop.
They then travelled nine minutes to return to the yard, staying there for an hour, ending at 12:32.
[256] After this stop at the yard, the crew travelled 16 minutes to a street where work was done
for 16 minutes. Then, after travelling for 25 minutes on a circuitous route that included areas
outside their assigned route, the grievors returned again to the yard at 1:29. They attended a staff
meeting from 2 oclock to 3 oclock.
[257] There are two time sheets for this crew, as one was created for a particular job where the
deficiency may be charged back to another organization, such as when the gas company tears up
a street. There is also a separate sheet allocating an hour to the staff meeting.
[258] Documents in evidence also show two hours of repair time at Rymal on Nov. 28
attributed to the work on the hotbox unit used by this crew.
[259] Video of road work at various sites shows neither grievor wearing a hardhat at any time.
[260] Mr. Smith said he could not see the necessity of leaving the yard before 7:30 and then
returning to pick up asphalt. Mr. Tabone said it usually takes until later to get the recycler going,
so he goes to get a coffee and comes back. On cross-examination, he agreed the asphalt might
have been ready by 7:30, just after he left for an 18-minute trip to McDonalds. In argument, the
union said no harm was done because this crew was still the first to leave Rymal after receiving
[98]
asphalt (although the other crews, except one, had travelled from other yards; it is not clear when
the other Rymal-based crew that day left, as they were not part of this case.)
[261] Nor could Mr. Smith see a reason for the second return to Rymal for 44 minutes, after 9
oclock. With regard to the repair, he said the stops report does not show a two-hour stop at
Rymal, so it is not clear that the repair was actually done that day.
[262] Mr. Tabone said the short stop made without exiting the truck might have been the result
of a call from a supervisor to look at a job. Mr. Schuster said it could be to catch up on
paperwork. Mr. Tabone and Mr. Schuster both said the visit to the yard in mid-morning for 44
minutes could have been for an equipment problem or to get more propane; Mr. Schuster said a
return to the yard at that time of day would be very unusual. With regard to the Ravenbury Drive
job, both grievors said its possible it needed better quality asphalt than the recycled material
they were carrying (for example, for a wheelchair ramp) or that the crew did not have enough
asphalt to do the work. The stop at the Metro store was a regular occurrence, to pick up lunch
before going back to the yard to eat, Mr. Tabone said. Mr. Schuster said watching the video
made him remember that he just stayed in the truck, as he had brought his lunch and left it at the
yard.
[263] Mr. Tabone acknowledged taking a long route to get back to the yard by 1:30, saying
management did not want them back any earlier; he said he checked for potholes and debris on
the way.
[99]
[264] Findings
The break taken before loading up on asphalt was improper. The grievors should not
have left the yard until they had asphalt.
Given the evidence of repairs to the crews hotbox on this day, and also ambiguous
evidence about the amount of asphalt used one document says one tonne, one says 1.25,
raising the possibility that the crew picked up a small second load on that visit to the yard
I find the employer has not established that the return to the yard for 44 minutes after 9
oclock was a break. While Mr. Tabone appeared to admit at one point in crossexamination that this was a break, I am not convinced he understood all the surrounding
facts when he gave that response.
I find the grievors explanation for why no work was done on Ravenbury Drive to be
plausible. The indirect route taken to get there is consistent with their assignment to look
for potholes on side streets.
A significant amount of time was wasted at lunchtime, including an indirect trip to the
Metro store, a return to the yard from a work site far away, and an extended stay at the
yard.
The time from 1 oclock to 1:30 was wasted, driving aimlessly and killing time so as not
to return to the yard too early. I find no patrolling was done. The 1:29 return to the yard
is justifiable, given the staff meeting at 2.
Hardhats were not worn by either grievor.
Had less time been wasted, it is more likely than not that the crew may have been able to
pick up another load of recycled asphalt and use it.
[100]
Crew #10 George Burdis, John Micallef, Nicholas Franco, one non-grievor, Nov. 27, 2012
Evidence
[265] This crew was based at the Wentworth yard. One member of the crew who was
terminated was not involved in this case because his grievance was settled on a without-prejudice
basis. The crews assignment was to fix deficiencies on main streets in three wards of east-end
Hamilton and western Stoney Creek. Mr. Micallef drove the asphalt truck and Mr. Burdis drove
the blocker truck. The asphalt truck was equipped with GPS but the blocker truck was not.
[266] The asphalt truck left the Wentworth yard at about 7:50, stopping twice on the way to
Rymal to pick up two tonnes of asphalt; one stop was at the Italian club near the yard for seven
minutes, the other near a Tim Hortons shop on Hamilton Mountain for another seven minutes.
The truck arrived at the Rymal yard at 8:36 and upon leaving was picked up by the investigators.
[267] After leaving the Rymal yard at 8:51, the asphalt truck drove for 25 minutes to a work
site, joining the blocker truck. Road work was done at two sites for just over an hour, until
10:19.
[268] The crew travelled next to a Tim Hortons coffee shop, where they stayed for 18 minutes.
They then travelled to the same area where they had been previously and performed work for
another hour, until 11:48.
[101]
[269] Next, the trucks separated and the asphalt truck travelled 14 minutes to Glow Variety,
stopped for five minutes, and then went to the Brampton yard, arriving at 12:10 and staying for
35 minutes. Both trucks left the Brampton yard at 12:45.
[270] The trucks went back to the same area they had left before lunch, doing more road work
there for 43 minutes, ending at 1:45.
[271] The asphalt truck then travelled 13 minutes out of the way to a boat dealership in Stoney
Creek, staying 18 minutes until 2:16, then driving for 25 minutes back to the Wentworth yard.
Mr. Franco went with Mr. Burdis in the blocker truck, and believes they went to the Italian club.
[272] There is video of Mr. Franco working at several sites, never wearing a hardhat. There is
no video of Mr. Micallef doing road work. Mr. Burdis, the blocker driver, is not seen performing
any road work, but in one segment is directing traffic while wearing a hardhat.
[273] Asked about the break at 10:19, after which the crew returned to the same area, Mr.
Micallef said the Tim Hortons was only a short distance away. He said he took the truck to
Glow Variety, close to the Brampton yard, even though he always brings his own lunch because
I like to keep everybody happy. Mr. Franco said he was most likely buying lunch at Glow.
Asked about travelling for lunch when they ended up going back to the same site, Mr. Micallef
said the employees can get a sandwich at Glow and eat at the Brampton yard. Mr. Micallef
added, We went to a boat dealership of a friend after we finished work...I figured I had some
[102]
time, later correcting his statement that he had finished work to say that the asphalt was
finished. He said he was patrolling as he drove there and back.
[274] Mr. Burdis said he did not drive the blocker truck to Rymal, likely because Mr. Micallef
had told him where the first job site was. He said he may have been patrolling after he left the
yard, on the way to the first site. Mr. Burdis said he had no need to go to Glow Variety, so met
the other truck at the Brampton yard, which he acknowledged was far from where they were
working both before and after lunch. I have no control over where the others go, they wanted to
go there. He said the trucks split up at 1:46 because there was no more asphalt.
[275] Findings
The trucks should have been together on the trip from Wentworth to Rymal.
The two breaks taken by the asphalt truck on the way to Rymal wasted time and were
improper.
The break at the Tim Hortons at 10:19 was long, but not by a significant amount. The
location was a legitimate stop, close to the work area.
A large amount of time was wasted at lunchtime, travelling to an area far away from the
site where the crew worked both before and after lunch, stopping at Glow Variety and
then staying at the Brampton yard for more than half an hour. When time to travel back
to the work site is included, the lunch break was well over an hour.
No work was done after 1:45. I do not accept there was any useful patrolling, either at
the end of the day or at the start of the day by the blocker truck.
[103]
The trip to the boat dealership was improper.
Mr. Franco was not wearing a hardhat for road work.
Crew #11 Frank Czajkowski, John Micallef, Nicholas Franco, one non-grievor,
Nov. 28, 2012
Evidence
[276] This crew was based at the Wentworth yard. One member of the crew not involved in
this case was terminated and his grievance was settled on a without-prejudice basis. The crews
assignment was to fix deficiencies on main streets in three wards of east-end Hamilton and
western Stoney Creek. Mr. Micallef drove the asphalt truck and Mr. Czajkowski drove the
blocker truck. The asphalt truck was equipped with GPS but the blocker truck was not.
[277] The asphalt truck left the Wentworth yard at 7:23, and stopped for six minutes at a Tim
Hortons on the way to Rymal yard to pick up one tonne of asphalt. The truck left Rymal at 8:18
and was followed from that point by the investigators.
[278] The truck travelled for 28 minutes to an area where work was done for 36 minutes until
9:22. The crew then travelled seven minutes to a Tim Hortons coffee shop and stayed there for
32 minutes. The crew then travelled for nine minutes back to the area where it had been
working, continuing work for an hour and 12 minutes, until 11:22.
[279] Next, the asphalt truck travelled for 10 minutes to Glow Variety, where it stopped for six
minutes before travelling to the Brampton yard, arriving at 11:41. The truck stayed at that
[104]
location for 43 minutes before travelling 15 minutes back to the same area where work was being
done before lunch. It arrived at 12:39.
[280] Road work was done in the area for just over an hour, and the crew then went to a Tim
Hortons shop for about 14 minutes. At 2 oclock, the asphalt truck travelled 17 minutes to a
spot on Burlington Street where it was parked behind a building until 2:28. On the way, Mr.
Franco was dropped off at the Italian club. The asphalt truck arrived back at the yard at 2:31.
[281] Mr. Micallef and Mr. Franco are seen on video doing road work, but never wearing
hardhats. Mr. Czajkowski is not shown on video doing any road work.
[282] Mr. Micallef said that at the end of the day he was killing time behind a factory. Mr.
Franco said he walked back to the yard, about a 10 minute trip, after being dropped off at the
Italian club.
[283] Mr. Czajkowski said he likely met the asphalt truck at the first work site. He said that
while the other truck went to Glow Variety and the Brampton yard, he stayed closer to the work
area, going to Scott Park Arena, which he said was the nearest city facility (disputed by the city),
and waited for a call from Mr. Micallef to return to the job site. He said he likely followed the
asphalt truck to Tim Hortons at 1:46 and then went right back to the yard, looking for potholes
along the way. Mr. Czajkowski says he also might have patrolled while on the way to the first
job site in the morning.
[105]
[284] Findings
The trucks were not together for the asphalt pick-up, and should have been.
The morning break was excessive, triple the time allotted, at 48 minutes with travel time
to and from, and came after the asphalt truck had already stopped for a shorter break.
As Mr. Micallef and Mr. Francos crew had also done on the previous day, the asphalt
truck travelled for lunch needlessly out of the area where it was working both before and
after lunch. This wasted significant time. A 20-minute lunch took an hour and a quarter.
No work was done after 1:46, although 15 minutes was legitimate break time.
I do not accept Mr. Czajkowskis evidence that he did patrolling at any point during the
day.
Had less time been wasted, the crew might have been able to use a second load of
asphalt.
Mr. Micallef and Mr. Franco were not wearing hardhats for road work.
Evidence
[285] This crew worked out of the Shaver Road yard in Ancaster. As with Crew #4, Mr.
Halliday drove the asphalt truck and Mr. Palmateer drove the blocker truck. The crew was
assigned to fix some specific deficiencies and also to make other repairs on two routes in the
western part of the amalgamated City of Hamilton, some of which is rural. Only the blocker
[106]
truck was equipped with GPS, but the unit did not function for several hours after it was
disconnected by Mr. Palmateer.
[286] The crew, all three in the same truck, arrived at the Rymal yard at 8:34 and left at 8:43
after picking up one tonne of asphalt, then travelled 16 minutes to a Tim Hortons coffee shop
near the Shaver yard and stayed for 34 minutes. The crew then went back to the yard.
[287] Next, the crew travelled about half an hour to an area where work was done for 35
minutes, from 10:03 to 10:38. However, the pothole sheet, filled out by Mr. Halliday, says the
first job in that area was completed at 9:52 and the last one was completed at 11:18.
[288] At 10:38, the crew travelled about 18 minutes to the Copetown Community Centre,
where they stayed for 34 minutes. They departed at 11:29 and arrived 13 minutes later back at
the Shaver yard, where they stayed for 52 minutes.
[289] The crew left the yard at 12:34 and travelled 19 minutes to a location where they worked
for nine minutes. The work was completed at 1:02, although the pothole sheet reports that work
was done until 1:30. The asphalt truck then travelled for 11 minutes to the citys Rockton yard,
where it stayed for 21 minutes. The blocker truck went elsewhere.
[290] After the asphalt truck left the Rockton yard, it drove around, including in an area outside
the assigned routes, and road work was recorded by the investigator at 1:45, although it is not
[107]
clear from the investigators report where the work was done and when. Nothing at that time is
recorded on the pothole sheet. The asphalt truck returned to the yard at 2:21.
[291] No one on the video was wearing hardhats.
[292] Mr. Halliday, a diabetic, said he pulled into the Copetown centre because he was
experiencing low blood sugar and could not drive. He uses a blood glucose meter that creates a
log of readings. A reading for 11:45 a.m. on Nov. 27, 2012, put into evidence shows a blood
glucose level of 3.6 millimoles per litre, down from 6.4 early that morning. He said he ate an
apple there, or whatever else was in his jacket. He said he drove 18 minutes to Copetown
because it was a place to park.
[293] Mr. Halliday said the trip from Shaver to Rymal takes 15 or 20 minutes, and that the
crews arrival after 8:30 was likely because the supervisor was late in giving out the assignments.
He said he specifically remembered dropping off Mr. Palmateer at the yard to pick up the
blocker truck that day after the three crew members left Tim Hortons. The citys theory is that
the blocker truck was left at a place where propane is purchased called Glendale Motors to avoid
GPS readings. The blocker truck went there at 7:57 before its GPS was turned off. There was
detailed evidence and argument on this point that is not necessary to recount.
[294] Mr. Halliday and Mr. Fasulo both said they knew nothing about Mr. Palmateers
tampering with the GPS or anyone elses. Mr. Halliday said the inaccuracies on the pothole
sheet were likely caused by him inserting the times later in the day.
[108]
[295] Mr. Fasulo testified that the stop at Rockton yard was to pick up some cable. Mr. Smith
said he looked at all the relevant records and could not find anything to confirm the suggestion
that the crew picked up material at Rockton. Mr. Halliday said all the crew members had
worked at Rockton in the past, and they may have been chatting with the supervisor there. He
said patrolling was done after the crew ran out of asphalt and before returning to the yard.
[296] Mr. Fasulo said patrolling was done at the end of the day, and on the way back to the
yard. Mr. Palmateer said he was patrolling once he separated from the asphalt truck.
[297] Findings
Mr. Halliday falsified the pothole sheet to make it appear that the crew worked longer
than it did. I cannot find on the balance of probabilities that Mr. Fasulo or Mr. Palmateer
knew about this.
Mr. Palmateer disabled the GPS unit on the blocker truck. This will be discussed below
in the section about Mr. Palmateers grievance. I cannot find on the balance of
probabilities that Mr. Fasulo or Mr. Halliday knew about this.
The trucks did not stay together at the start or end of the day, which is improper. There
was no purpose in the blocker truck driver, Mr. Palmateer, riding in the asphalt truck on
the trip to and from Rymal. However, I find the blocker truck was left at the Shaver yard
for this period, and not at Glendale Motors. The crew members arrived at Rymal later
than they should have. The suggestion that this was because the assignments were given
[109]
out late is only speculation; given the activities for rest of the day, I find it more likely
that the crew was wasting time.
The morning break was excessively long at 34 minutes.
The trip to the Copetown Community Centre, which consumed about an hour including
travel time, was an improper waste of time. I do not accept that it had anything to do
with Mr. Hallidays low blood sugar reading. As will be seen below, the same crew
spent time at Copetown the following day at roughly the same time, even though Mr.
there is no indication of a low blood sugar reading for that day.
The lunch break was excessively long. There was no reason to return to the yard, as that
involved significant travel time from the location where the crew was before lunch, and
to the location where they went after lunch.
The stop at the Rockton yard, even if authorized which I do not accept
took an excessive amount of time.
If any work was performed after 1:02, it was minimal. If in fact road work was done
after 1:02, it was done without the presence of the blocker truck, which is improper. I
find that no patrolling was done late in the shift.
Had the crew not wasted so much time, they could have easily picked up and used
another load of asphalt.
The grievors did not wear hardhats when doing road work.
[298] This is the same crew as Crew #12 the previous day, with the same vehicles, working
from the Shaver Road yard in Ancaster. Their assignment was similar to the day before. Again
[110]
Mr. Halliday drove the asphalt truck and Mr. Palmateer drove the blocker truck. And again, Mr.
Palmateer disabled the GPS unit on the blocker truck.
[299] The asphalt truck departed Rymal yard with all three crew members and one tonne of
asphalt at 8:18. It stopped for a minute at a bank at 8:27. The truck proceeded to the Tim
Hortons coffee shop near the Shaver yard, where it stayed for 29 minutes, leaving at 9:19. The
truck then went to the Shaver yard, and both trucks left the yard at 9:31.
[300] The trucks travelled to a work site, where the grievors started work at 9:56 and finished at
some point between 10:35 and 10:55. No observations were recorded by the investigator
between 10:35 and 10:55. The pothole sheet, filled in by Mr. Halliday, says the first work on
that street ended at 9:35 and the last job ended at 11:18.
[301] The trucks next went to the Copetown Community Centre, where they stayed until 11:35.
The trucks then travelled toward the Shaver yard, with the asphalt truck going directly to the
yard and the blocker stopping for a few minutes at a Wendys restaurant before returning to the
yard. The trucks stayed in the yard until 12:46.
[302] The trucks then went to the same street where they had been before lunch, arriving at
1:02. At this point, the GPS, which had been off for nearly three hours, was reconnected. Road
work was performed for 11 minutes. The investigator lost both trucks at this point, but found the
blocker at 1:32 and followed it for 20 minutes before losing it again. The blocker truck drove
[111]
outside the City of Hamilton and into Brant County. It was later observed at a Tim Hortons from
2:06 to 2:09, before it returned to the Shaver yard. The asphalt truck returned to the yard at 2:22.
[303] Video of the grievors shows no hardhats were worn while doing road work.
[304] Mr. Halliday said the stop at the yard after the break at Tim Hortons was to drop Mr.
Palmateer off and get the blocker truck. He said the visit to Copetown was a usual stop to clean
the hotbox and push the material down to keep it all hot. The times on the pothole sheet, he said,
are taken from the clock on the truck radio, although on cross-examination he said he put down
the times later in the day. He and Mr. Fasulo said patrolling was done after the asphalt ran out.
[305] Mr. Palmateer said the route that took him outside Hamilton is a faster way back to the
yard from where he was.
[306] Findings
As on the previous day, Mr. Halliday falsified the pothole sheet to make it appear that the
crew worked longer than it did.
Mr. Palmateer again disabled the GPS unit on the blocker truck for much of the day.
The trucks did not stay together at the start or end of the day, which is improper. Because
Mr. Palmateer went to Rymal in the same truck as the others, he had to be taken back to
Shaver to pick up the blocker truck. The crew could not go directly to the street where it
[112]
was assigned to work, half an hour from Rymal. Instead, after an extended break and a
trip back to Shaver, the crew reached the work area an hour later.
The stop at the bank was very brief and not significant.
The morning break was excessively long at 29 minutes.
The trip to the Copetown Community Centre was wasted time and part of a long period
with no work that lasted more than two hours, including an extended lunch break at the
yard. After lunch at the yard, the crew went back to the same street where they had been
before 11 oclock and worked for only 11 minutes.
There was no work performed after about 1:15. I find that there was no patrolling.
The crew members returned to the yard too early, wasting more time.
Had the crew not wasted so much time, they could have easily picked up and used
The grievors did not wear hardhats when doing road work.
Crew #14 John Hanson, Larry Rouse, Tony Ionni, Nov. 29, 2012
Evidence
[307] This crew was based at the Jones Road yard in Stoney Creek. Both trucks that were used
were equipped with GPS units. Mr. Hanson drove the asphalt truck and Mr. Rouse drove the
blocker truck. They were issued two tonnes of recycled asphalt from the Rymal yard, and
assigned to fix road deficiencies at various spots in Stoney Creek. No pothole sheet was
produced in evidence for this crew.
[113]
[308] The two trucks left the yard at 7:21, stopped briefly at a Tim Hortons coffee shop, and
then went to a nearby parking lot at Saltfleet Arena in Sherwood Park for 27 minutes.
[309] They arrived at the Rymal yard at 8:32 and left about 10 minutes later. The crew
travelled to a work area and did road work for about 48 minutes ending at 9:58. They then went
back to the Jones Road yard for about 13 minutes, and then to a Tim Hortons coffee shop,
arriving at 10:20. After a short visit, they pulled over to the side of the road and stayed for 39
minutes until 11:07.
[310] Next, the crew performed road work nearby for 24 minutes, ending at 11:32. This was
followed by another short visit to a Tim Hortons after travel of eight minutes. The crew then
stopped briefly at a commercial building where the office of Mr. Hansons dentist is located.
[311] The crew then travelled for 26 minutes to Lococos grocery store, arriving at 11:58 and
staying for 17 minutes. Next, the crew travelled for a couple of minutes and stopped on the road
for 22 minutes. Then the crew travelled a short distance and engaged in road work for 10
minutes ending at 12:55.
[312] The trucks then returned to the Jones yard at 1:06. The blocker truck left 13 minutes later
carrying the three crew members. The investigator remained at the yard. The blocker truck took
Mr. Hanson to his dentists office for a 1:20 appointment, then stopped for 10 minutes at Mr.
Rouses house. It then drove 17 minutes back to the building containing the dentists office and
parked there for 25 minutes. The truck arrived back at the yard at 2:28.
[114]
[313] None of the three grievors was observed on the video wearing a hardhat while doing road
work.
[314] Mr. Hanson said the return to the yard at 10:07 might have been a washroom break. Both
he and Mr. Rouse speculated that it also could have been a trip back to get another shovel. Both
said they did not think it was a break. Mr. Hanson said the short stops at Tim Hortons shops
followed by long stops in parking lots and elsewhere are to keep out of public view so that there
are no complaints.
[315] Mr. Hanson said he went to his dentists office to try to cancel an appointment for later
that day that was booked when he thought he would be scheduled to a night shift. However, he
said he was advised not to cancel the appointment because it involved an oral cancer screen that
he said was important at the time because of other health concerns.
[316] He said he believed a supervisor told him to have the other crew members drive him to
the dentists office, patrol while he was there, and to pick him up when he called after the
appointment. He said he was surprised to see Mr. Rouse and Mr. Ionni in front of the building
when the appointment ended.
[317] Mr. Hanson said the stop at Lococos was to pick up lunch, which the crew ate shortly
after when they stopped the truck. Mr. Rouse said the stationary period from about 10:30 to
11:05 might have been to complete paperwork or wait for the asphalt to heat up again, but also
[115]
said it could have been a break. He said the stop at his house while Mr. Hanson was at the
dentist was probably a washroom break, because I have an aversion to public washrooms.
[318] Findings
The crew took two excessively long breaks in the morning. The break right at the
beginning of the day, before any work was done or asphalt loaded, is particularly
improper. However, I find there is not enough evidence to conclude that the trip back to
the yard in the mid-morning was a third break.
The short morning visit to the office of Mr. Hansons dentist was a somewhat urgent
matter and thus was legitimate.
The lunch break was excessively long, when the travel to the Lococos store and time
spent in the store are included. As a result, no work was done for an hour and a quarter.
I accept that the trip to take Mr. Hanson to the dentist in the afternoon was authorized by
a supervisor. However, Mr. Rouse and Mr. Ionni wasted the time that Mr. Hanson was
there, with a trip to Mr. Rouses house and idle time sitting in front of the dentists office
for nearly half an hour.
I do not accept that the trip to Mr. Rouses house was a legitimate washroom break.
Had the crew not wasted so much time, they likely could have picked up and used
No hardhats were worn during road work.
[116]
Crew #15 Andrew Stephenson, Pat Schiavo, one non-grievor, Nov. 29, 2012
Evidence
[319] This crew was based at the Dundas yard, in the town of Dundas, west of the old city of
Hamilton. The employment of the two grievors was initially terminated, but the city later
realized after it was raised by the employees during the grievance procedure that they had
been assigned to work in the yard the afternoon of the day in question; the two grievors were
reinstated with a time-served suspension of 75 work days. There was a third member of the
crew who was not disciplined. Mr. Smiths evidence was that the initial paperwork did not show
that employee as being on this crew; by the time the mistake was realized, the city felt it was too
late to impose discipline, he said.
[320] The crew was assigned to repair road deficiencies in the morning and to clean tools and
the hotbox in the afternoon at the yard. Mr. Stephenson drove the asphalt truck and Mr. Schiavo
drove the blocker truck. Only the blocker had GPS.
[321] The blocker truck left the yard at 7:46, making two short stops, including one at a Tim
Hortons shop, on its way to the first work site.
[322] The asphalt truck arrived at Coco Paving at 7:53 and left at 8:06 after picking up one
tonne of asphalt. It was then driven to a work site, where it was joined by the blocker truck.
Work was done for 22 minutes, ending at 8:39 (although this portion of the pothole sheet, filled
out by the non-grievor, says 9 oclock). The crew then travelled three minutes to a Tim Hortons
[117]
coffee shop and stayed for seven minutes. Next, the trucks drove 17 minutes to another location,
where the crew performed road work for 43 minutes.
[323] At 9:58, they arrived back at the Dundas yard and stayed for 10 minutes. The asphalt
truck then drove to a Macs convenience store and stayed for nine minutes. The blocker truck,
which left the yard at the same time, went elsewhere. The two trucks reunited at 10:28 at the
next work site, where road work was done for 19 minutes. Next, the crew travelled to another
location where road work was done for four minutes, ending at 11:01. (This portion of the
pothole sheet, filled out by Mr. Stephenson, says 11:30).
[324] The crew then travelled from west of the yard for about 21 minutes to east of the yard,
arriving at the Nigel Charlong Community Centre, where they stayed for 34 minutes. They then
returned to the yard at 12:02.
[325] Mr. Stephenson is shown on video not wearing a hardhat during road work.
[326] Mr. Stephenson said the errors in the times on the pothole sheet are because of rounding,
and because they were filled in later at the community centre. He said he was not paying much
attention to it. (All times listed are on the hour or half-hour.) The stop at the yard around 10
oclock was to change the propane tank, he said. Mr. Schiavo agreed. The stop at the
community centre was to use the washroom and have a snack, Mr. Stephenson said, adding that
they were killing time because they had run out of asphalt. He said the work at the yard in the
afternoon started after lunch and the grievors did not take a break.
[118]
[327] Mr. Schiavo said that he had been told not to bother going with the asphalt truck to pick
up material, but that this rule later changed; he was not clear about when.
[328] Findings
The trucks should have been together, but instead were separated at some points.
While the entries on the pothole sheet are inaccurate, I do not find on the balance of
probabilities that they were falsified with the intention of deceiving anyone.
The stop at the yard during the morning has not been established as improper, despite the
employers assertions.
The crew took an extra break in the morning.
The travel time to and from the Nigel Charlong Community Centre and the time spent
there, totalling roughly an hour, served no purpose and was wasted. However, it is not
clear, given that they were supposed to be out of the yard for only half the day, whether
the crew was expected to do anything after finishing the asphalt and before returning to
the yard at noon.
Mr. Stephenson did not wear a hardhat during road work.
[119]
Crew #16 Paul Cabral, Fernando Matias, Nov. 29, 2012
Evidence
[329] This crew worked out of the Rymal yard. They used one truck, which was not equipped
with GPS. No pothole sheet was produced in evidence. Mr. Matias was the driver. The grievors
were assigned to fix deficiencies on side streets.
[330] The crew departed Rymal yard at 8:15 with one tonne of recycled asphalt. They travelled
to two locations where work was done until 8:59. They then travelled about 16 minutes to Dave
Andreychuk Arena, where they stayed for seven minutes.
[331] Next, the crew travelled six minutes back to the Rymal yard, where they stayed for 36
minutes. At 10:04 they left, travelling 19 minutes to Complete Home Brewing Supplies, where
Mr. Mathias quickly picked up an ingredient used to sterilize his wine-making equipment.
[332] The crew then drove around the Hamilton Mountain area for about an hour, with one
three-minute stop during which the grievors stayed in the truck. At 11:02 they made a brief stop
at Mr. Matiass house. They arrived back at the Rymal yard at 11:24, and stayed there for about
an hour.
[333] After leaving the yard, the crew travelled along a road running along the Hamilton
mountain brow. At 12:48 the truck made a U-turn in a park and was lost by the private
investigator. It is not clear when the truck returned to the yard.
[120]
[334] Mr. Cabral is the only grievor seen on video doing road work, and is not wearing a
hardhat.
[335] Mr. Matias said the Dave Andreychuk arena is a good place to stop because there is a
Tim Hortons next to it. Both he and Mr. Cabral said the trip back to Rymal at about 9:30 must
have been for a reason, such as a mechanical issue, or else it would not have happened. Mr.
Matias said it is impossible that it would be a break, since the crew is entitled to only 15
minutes. He said the trip to the brewing supply store was legitimate because it was such a short
stop. Everybody does itit was fast, like getting cigarettes or pop.
[336] Mr. Matias explained the time driving around for an hour as looking for road defects and
other issues. He said the hour spent at lunchtime at the yard could have been partly to deal with
an equipment malfunction. Mr. Matias and Mr. Cabral both said the crew was likely driving
around looking for work after it was lost by the investigator at 12:48.
[337] Mr. Matias said the 16 minute drive to the arena for a short break was justified because
he was looking for work along the way.
[338] Mr. Cabral acknowledged that it would be unusual to be driving around as long as they
did without spotting any potholes, but said its possible. He said there must have been a reason
to stay at Rymal for an hour at lunchtime, because he has never taken a break for an hour.
[121]
[339] Findings
There is no firm evidence that any road work was done after 9 oclock. The crew spent
much time driving around, including on main streets and into a park, when their
assignment was to fix problems on side streets. It is clear that no road work was done
from 9 oclock until 12:48 when the investigators lost the crew. I find it unlikely that the
grievors were looking for potholes for more than a few minutes, if that. Otherwise, the
likelihood is that they would have found some work, particularly given Mr. Matiass
statement that he chose to drive in an area that was prone to potholes. Instead, most of
the time from 9:00 to 12:48 was wasted, I conclude.
The drive to the Dave Andreychuk arena was unnecessary, and the time spent there,
although short, was a break, contrary to the grievors evidence. Likewise, I find that the
return to the yard for 36 minutes at around 9:30 was part of the same extended break.
The stops at the brewing supply store and at Mr. Matiass residence were improper but
did not consume much time; they are simply a small part of a large amount of wasted
time.
The hour spent at the yard at lunch was an extended lunch break; this is consistent with
the evidence from the other Rymal grievors. There is no evidence of any mechanical
issue or any other valid reason for the crew spending two long periods in the yard.
While it is certainly possible that no work was performed after 12:48, I have no evidence
to establish that no work at all was done after that time. The video appears to show at
least nine potholes being filled by Mr. Cabral by 9 oclock, and the activity sheet shows
[122]
17 accomplishments i.e. potholes filled. Therefore, I find that if there was work done
after 12:48, it was a small amount.
Mr. Cabral did not wear a hardhat while doing road work.
SECTION D GROUNDS FOR DISCIPLINE

PARTIES SUBMISSIONS AND GENERAL CONCLUSIONS
1. Time Theft
[340] I have avoided the term time theft in this award, even though it was used in all the
disciplinary letters, repeatedly by Mr. Smith in his evidence, and in the submissions of counsel
for the city. In my view, it is a misleading phrase because it tends to equate unproductive time
spent at work, such as taking extended breaks, with the criminal act of theft of property. I have
already commented above in the section on falsification of time sheets about the use of the term
fraudulent by the city in this case.
[341] One case referred to by the union, Re Grand & Toy Ltd. and United Steelworkers, Local
9197 [2001] O.L.A.A. No. 242 (Craven), contains an interesting discussion of the phrase time
theft. The case, involving four grievors who were drivers and who took extended breaks and
conducted personal business on company time, has many similarities to the case here. At
paragraph 86 and following, the arbitrator makes the following comments:
"Time theft" presumes that the time belongs to the Company and is misappropriated by
the grievor. This view is open to several objections, ranging from the ontological to the
practical (as employees are paid in arrears). The better view, in my opinion, is that his
time "belongs" to the employee - as do his strength, intelligence, acquired skills and
[123]
innate capacities - but that he has undertaken to accept the employer's direction for the
duration, in exchange for a wage and subject to the terms and conditions of employment.
It is the breach of this undertaking that attracts discipline. (The provision for discipline is
among the terms and conditions of employment set out in the collective agreement.)
"Time theft," so-called, is therefore more closely related to the industrial offence of
insubordination than to the criminal offence of theft. It may not involve an outright
refusal to obey a direct order, but it is at least a form of culpable inefficiency in the face
of well-understood performance expectations. The fact that it may cost the company
money does not make it a form of theft
Within the four walls of an industrial plant or distribution centre, where employees are
subject to relatively close supervision and immediate direction, ensuring efficient use of
employees' time is a supervisory responsibility. Supervisors are entitled to the
cooperation of employees in this regard. Cooperative employees will not be held
responsible for inefficiencies when they comply with directives and exercise reasonable
care. Culpable inefficiency in such circumstances is typically a form of insubordination.
In some cases, however, individuals arrange elaborate deceptions to mislead supervisors
into thinking that they are working when they are not. Examples include time card fraud,
as well as the distinction (made in Union evidence before me) between simply falling
asleep on the job and setting up a secret "nest" in which to hide from supervision. In such
circumstances culpable inefficiency goes beyond simple insubordination and becomes a
breach of trust. Trust, it has been said, is fundamental to the employment relationship. It
follows that a breach of trust is at least potentially a fundamental breach of that
relationship.
In the cases before me, the grievors' "time theft" may be distinguished from the
misconduct in several of the cases relied upon by the Company, as it lacks the ingredient
of fraud present in cases where employees intentionally falsified time cards or other
documents whereby they actively misrepresented their entitlement to pay for time
worked
Nevertheless, the Company argues, the fact that drivers work without close supervision or
(apart from the occasional page) immediate direction means that the Company must rely
on them to regulate their own working time in accordance with expectations. The
Company has to trust its drivers to perform their work efficiently and honestly. When
drivers take excessive breaks or depart from their assigned routes or unnecessarily
overextend their time on route, it goes beyond culpable inefficiency or insubordination
and becomes a breach of trust
I accept that in the absence of a compelling explanation, it may be a serious breach of
discipline for a driver to overstay his permitted break or leave his assigned route. I also
accept that the Company has little alternative but to trust drivers to comply with rules and
policies while unsupervised on route, so that trustworthiness is a necessary qualification
for continued employment in that capacity.
[124]
[342] It is important to note that despite his reservations about the phrase time theft, the
arbitrator in the Grand & Toy case still found that extended breaks were a serious matter and that
the employer could hold drivers to a higher standard than employees who are under direct
supervision. He dismissed two of the four grievances, ordered one of the other grievors
reinstated without compensation, and allowed one grievance in full because of circumstances
that are not present in any of the cases before me.
[343] The union submitted additional cases questioning the use of the phrase time theft, and
others drawing a clear distinction between employees who intentionally pursue fraudulent claims
for pay, such as those seen in the buddy-punching cases, and employees who are at work but
unproductive because of extended breaks or conducting personal business, or who make a
mistake in filling out documentation. These include Re Cominco Ltd. and United Steelworkers
Local 480 [2000] B.C.C.A.A.A. No. 464 (Larson); Re Georgia-Pacific Canada Inc. and
International Brotherhood of Boilermakers [2006] A.G.A.A. No. 30 (P. Smith); Re Tantalum
Mining Corp. and United Steelworkers Local 7499 [2004] M.G.A.D. No. 39 (Hamilton); Re
Slocan Group and Industrial Wood and Allied Workers [2000] B.C.C.A.A.A. No. 233
(Brokenshire); Re Loblaws Supermarkets Ltd. and UFCW Local 1000A [2005] O.L.A.A. No. 408
(Crljenica); Re Health Employers Association of British Columbia and Health Sciences Assn.
(2011) 213 L.A.C. (4th) 390 (Glass), where the arbitrator says, wasting time on the job can
certainly be subject to discipline even discharge but the grievors conduct here albeit wrong,
should not be characterized as theft of time (at parag. 30); and Andrews v. Deputy Head (Dept.
of Citizenship and Immigration (2011) 213 L.A.C. (4th) 255 (Can. Public Service Lab. Rel. Bd.,
[125]
Rogers), in which the adjudicator rejects the argument that unproductive work time is the same
as falsifying a time card.
[344] The city has also provided numerous cases discussing time theft, noting how seriously it
is taken. Many of them are cited above in the section on falsification of paperwork. These are
cases where the element of fraudulent intention is present, including Surrey, Ottawa, Grand and
Toy Ltd.(Trachuk), Vancouver Police Department, William Osler Health Centre, Hiram Walker;
Canada Safeway, Purolator Courier, and Veratech.
[345] One of the employers cases, Re Vancouver (City) and CUPE Local 1004 [2009]
B.C.C.A.A.A. No. 17 (Sullivan) has many similarities to the case before me. The grievor
worked independently, inspecting fire hydrants. He took excessive breaks, visited his home, and
wasted other time driving around or visiting coffee shops. The arbitrator dismissed the grievance
and rejected the argument that a warning or progressive discipline was necessary in the case.
However, it is also worth noting that the grievor in that case had also tampered with the GPS
unit, and had reported work done when it had not been.
[346] The employer has also referred to the case of Re Phillips Cables Ltd. and International
Union of Electrical, Radio and Machine Workers (1974) 6 L.A.C. (2d) 35 (Adams), with its oftquoted passage about honesty being the touchstone to viable employment relationships: If
employees must be constantly watched to insure that they honestly report their comings and
goings, or to insure that valuable tools, material and equipment are not stolen, the industrial
enterprise will soon be operated on the model of a penal institution. Also cited on the issue of
[126]
unsupervised employees being in a position of trust were Re Invista (Canada) Co. and CEP
Local 28-O [2006] O.L.A.A. No. 504 (Barrett), Re Langley (Township) and CUPE Local 403
(1991) 20 L.A.C. (4th) 256 (McConchie), and Re Spectra Energy and CEP Local 449 2012
CarswellBC4120 (Moore). Also referred to regarding the special position of employees who
serve the public were Re Calgary (City) and ATU Local 583 2014 CarswellAlta 315 (Beattie),
and Re District of West Vancouver and ATU Local 134 (1998) 70 L.A.C. (4th) 233 (Devine). In
Re National Steel Car Ltd. and United Steelworkers Local 7135 (2001) 94 L.A.C. (4th) 343
(Williamson), a buddy-punching case, the arbitrator states that where there is falsification of time
records, the onus is on the grievor to demonstrate that there is still a viable employment
relationship possible.
[347] I agree with the union that a distinction must be drawn between intentional fraudulent
activity such as punching another employees time card and the type of situation we see here,
which mainly involves extended breaks and other unproductive time. (I am not referring here to
dishonesty in the interviews or at the hearing, or to the small number of incidents where there has
been intentional falsification proven, such as Mr. Hallidays falsification of the pothole sheets on
two days.) For this reason, the essential nature of the allegations here are more properly
characterized as neglect of duty a phrase also used in all the disciplinary letters or misuse of
time, rather than time theft.
[348] Counsel for the city stated in his argument that time theft is simply an idiomatic
expression, suggesting the city is not claiming that it is equivalent to theft of property. However,
as noted above, the case law referred to by the city contains a large number of examples where
[127]
grievors intentionally claimed pay for time they were not at work. Further, the reference to time
theft in the disciplinary letters and the repeated references to time theft by Mr. Smith and the
citys counsel were, in my view, an attempt to draw an equivalence between unproductive time
and activity that borders on criminal. Mr. Franco, for example, was asked as were several
other grievors whether they reported any of the idle time to management. When Mr. Franco
said no, he was then asked whether he would report it if he observed someone stealing money.
[349] Having said that, there is one important element common to both time wasted outside the
sight of management and property theft, and that is that the employer would naturally be
concerned that if it has occurred once, there is a strong possibility that it has occurred many
times, raising questions of trust.
[350] This is perhaps an appropriate point to comment on the attitude toward the grievors
exhibited by the city, and in particular Mr. Smith, the sole city manager to testify. The union
alleged in argument that the city seemed determined to cast the grievors in the worst light
possible, and I agree there is some truth to this statement. Some of this is the natural product of
adversarial litigation, but I also found that the use of terms such as fraud and theft, the
misstatements in the termination letters of how much work was actually done, and in particular
the referring of the matter to the police when there was no evidence at all of criminal
wrongdoing, displayed an approach that was regrettable, unnecessary and distasteful. I cannot
help wondering whether the city, having failed to find what it suspected after a costly
investigation, felt it should involve the police, with all the publicity that accompanies such a
move, in order to help justify the investigation.
[128]
[351] The grievors here are not angels, but neither are they criminals. I will have more to say
about this below in relation to the arguments about workplace culture, but with respect to the
idea of time theft, I disagree with the notion that time-wasting such as extended breaks, aimless
driving, and other time spent unproductively is equivalent to theft or fraud.
[352] This is not to say that the grievors conduct, as outlined above for each crew, is not a
serious breach of the trust that is placed in employees who spend most of the day out of view of a
supervisor. Their misconduct was serious. But correct characterization of their wrongdoing is
important, because the case law treats theft and fraud as among the most serious disciplinary
matters. There is also a very narrow scope for reinstatement in cases of theft and fraud.
[353] Whether the city can be faulted for not giving these grievors a warning or a chance to
improve before firing them is a question that is addressed below.
2. Dishonesty during the Investigation
[354] As noted above, the grievors were interviewed by the employer on Jan. 15, 2013, several
weeks after the days in question. The only exceptions were Mr. Halliday, who was interviewed
two days later, and Mr. Czajkowski, who was never interviewed.
[355] All were asked specific questions about the days in question, some of which contained
erroneous facts. The responses were mostly in the nature of I dont recall. However, the
[129]
employees were also asked general questions (set out above in the section on the nature of the
evidence) regarding personal business being conducted during the work day, time spent
unproductively and long breaks. As will be apparent below, all the grievors, with the possible
exception of the two who were suspended for 30 days, were not forthright and honest in
answering these questions.
[356] To varying degrees, the grievors admitted in their testimony that they had given
untruthful answers during the interviews, although a large number of them said in examinationin-chief that they had given the wrong answer or that their answer was mistaken, as if they
had missed an answer on a trivia quiz or while playing Jeopardy at home.
[357] Others gave evidence about how stressful the interview was, or that they had just come
off a night shift and were exhausted when they were interviewed. I do not doubt that the process
was stressful for most, if not all, the grievors, and I accept that some were tired. However, stress
and exhaustion do not cause dishonesty. They may explain an inability to remember certain
details, but they are not an excuse for not telling the truth to the best of the persons ability.
[358] Others said they were scared during the interviews. Of that I have no doubt. One of the
main reasons to be scared is that they had something to hide and they knew it. They were scared
of what would happen if they told the truth. As it turned out, they should have been more scared
about what would happen if they did not.
[130]
[359] The city argues that dishonesty during an investigation is a disciplinary offence separate
from the conduct that prompted the investigation. Truthfulness is particularly important, the city
argues, when the issue being investigated involves a breach of trust, as it does here.
[360] On this point the city has relied on Re FortisBC Energy Inc. and International
Brotherhood of Electrical Workers, Local 213 [2011] B.C.C.A.A.A. No. 145 (McConchie)
which says that sometimes dishonesty is merely an aggravating factor but when the dishonesty
consists of a deliberate attempt to deceive the employer by a false or misleading explanation,
arbitrators will treat it as a separate employment offence. (at parag. 471). This is true, the
decision says, even when the initial cause for discipline is relatively minor. However, the
arbitrator also adds (at parag. 510):
Arbitrators are mindful of the fact that the human fear response can lead an employee to
prevaricate or evade the truth when confronted with an offence. It is for this reason,
among the many other reasons mentioned in the cases, that an employee who seeks to
deceive the employer with misstatements in the early stages of an inquiry is not precluded
by this alone from seeking reinstatement.
[361] The city also referred to Re Public Service Employee Relations Commission and B.C.
Government and Service Employees Union [2003] B.C.C.A.A.A. No. 161 (McConchie); Re
Versa Cold Group Chatham Centre and CAW, Local 127 [2009] O.L.A.A. No. 161
(Williamson); Re Fording Coal Ltd. and United Steelworkers 2002 CarswellBC 4042
(McEwen); Re Niagara (Regional Municipality) and CUPE Local 1263 [2010] O.L.A.A. No.
1263 (Herman); Re National Steel Car Ltd. and United Steelworkers [2012] O.L.A.A. No. 228
(Chauvin); Re Calgary (City)and CUPE Local 3421 [2001] A.G.A.A. No. 72 (P. Smith); Re
Canadian Broadcasting Corp. and Canadian Media Guild [1995] C.L.A.D. No. 1179 (Kelleher);
[131]
and Re Company A and UFCW Local 401 (2013) 232 L.A.C. (4th) 70 (Ponak), in which the
arbitrator found that the initial grounds for discipline had not been proven, but still imposed a
three-month suspension, mainly because the grievor had been dishonest during the investigation.
[362] The union does not dispute that the grievors should have been more forthright in the
interviews, but points out that some of the cases cited by the employer involve employees who
fabricated a completely false story as opposed to simply answering a yes-or-no question
untruthfully (FortisBC) or who maintained their false story at the hearing (Public Service
Relations Commission, Versa).
[363] The union argues that the conduct of these grievors at the interviews should not be a
significant factor in determining whether to reduce the penalties imposed. First, it cites the many
acknowledged errors in the questions specific to the days in question. Second, it says the
employer made no attempt to follow up on most of the explanations given in the interviews.
Third, it says, there has been differential treatment of grievors, in that Mr. Ionni and Ms.
Montoya did not respond much differently in the interviews than the others, but were only
suspended and not discharged. And fourth, the union points out that the city saw fit to reinstate
Mr. Stephenson and Mr. Schiavo with suspensions even though they had been dishonest in the
interviews.
[364] There is no doubt that the grievors were under an obligation to be honest and forthright
with the employer in the interviews. There may be some question as to whether dishonesty
during an investigatory interview is an aggravating factor in determining penalty or whether it is
[132]
a separate disciplinary offence. A review of the case law suggests that dishonesty during an
investigation is a separate ground of discipline. As always, however, the surrounding
circumstances must be examined to determine how serious the consequences are for employees
who evade, mislead or lie when asked questions about their conduct.
[365] Here, there were specific and general questions. I have already concluded that the
answers to the questions about specific days, including some questions that contained errors,
cannot be held against the grievors because of the time lapse between the events and the
interviews. This is not to deny that some of the grievors may have been dishonest when they
said they couldnt remember the days in question; or that they may not have been trying very
hard to remember. Both are a possibility that may be discussed below in relation to each grievor.
But as a general statement, the employer has not proven widespread dishonesty in relation to the
answers to questions about the specific days.
[366] With respect to the answers to general questions, there is no doubt that the grievors were
dishonest. The two grievors who were suspended for only 30 days, Mr. Ionni and Ms. Montoya,
as will be seen below, may not have been completely forthright in their interviews, but they were
more honest than the others. Mr. Ionni, for example is recorded as having agreed that, we drove
around for a few hours shooting the shit. In any event, these two grievors, unlike the others,
had done very little road work at the time they were interviewed, so that they may have been
truthful even though the same answer given by another grievor would have been false. For
example, they may have been answering honestly when they said they had never observed
[133]
anyone performing personal business on work time, whereas others would not be telling the truth
with that answer.
[367] The unions statement that the employer failed to follow up on grievors explanations is
correct, although I do not think it assists the grievors when it was clear to the interviewers from
the surveillance and from other documentation that much of what was being said in the
interviews was not truthful. In these circumstances, and in the context of a major investigation, I
find it hard to fault the employer for not following up.
[368] With respect to Mr. Stephenson and Mr. Schiavo, it is true that their untruthful answers in
the interviews were not fatal to their chances of reinstatement. Dishonesty in the interview is
not itself a bar to reinstatement.
[369] As so much of the case law emphasizes, a genuine and early admission of wrongdoing is
an important element in the arbitrators assessment of whether the employment relationship is
still viable. Here, as will be seen below, almost all the grievors missed an important and early
opportunity to be forthright. Even though they knew the employer had access GPS records for
most of the trucks, and even though they were told that they were observed on the days in
question, they told the interviewers in most cases that they had never taken long breaks, had
never spent time unproductively, and had never observed personal business being conducted on
employer time. This dishonesty will be an important ingredient in my assessment of the proper
result in each grievors case.
[134]
[370] However, not only will the dishonest answers have consequences in and of themselves,
but they also have implications for the unions arguments with respect to condonation and
workplace culture. This will be discussed below.
3. Dishonesty at the Hearing, Credibility, and Remorse
[371] The city asserts that most of the grievors were dishonest in their evidence, failing to
admit even some misconduct that was obvious, and minimizing other misconduct. The
testimony of the individual grievors will be dealt with below, but the city argues that dishonesty
at the hearing is usually fatal to any grievor seeking reinstatement. The city also argues that
most of the apologies and statements of remorse from the grievors were not genuine but merely a
rote recital of what the grievors felt they should say in order to get their jobs back. It also argues
that even if the misconduct is not severe, as in the case of some of these grievors who were
discharged, an employees dishonesty in the investigation and at the hearing will militate against
reinstatement.
[372] On these points, the city has referred to many of the cases that it referred to in its
argument about time theft and dishonesty during the investigation, and also Re Steel Co. of
Canada Ltd and United Steelworkers Local 1005, unreported, July 7, 1981 (Burkett), in which
the arbitrator says where false testimony is given, especially in a case where dishonesty is
alleged, it is itself a factor to be considered. Also referred to were Re Stelco Inc. and United
Steelworkers Local 1005 [1994] O.L.A.A. No. 110 (Beattie); Re Stelco Inc. and United
Steelworkers Local 1005 [1999] O.L.A.A. No. 911 (Levinson); Re Hilton Vancouver Metrotown
[135]
and Unite Here Local 40 [2010] B.C.C.A.A.A. No. 15 (McEwen); Re Molson Breweries and
Canadian Union of Brewery and General Workers (1994) 44 L.A.C. (4th) 398 (Mitchnick); Re
Omstead Foods Ltd. and UFCW Local 459 (2005) 144 L.A.C. (4th) 441 (Barton); Re Ontario
(Metrolinx-GO) and ATU Local 1587 (2011) 206 L.A.C. (4th) 429 (G.S.B., Mikus); Re Libby
McNeil & Libby of Canada Ltd. and UAW Local 251 (1974) 7 L.A.C. (2d) 69 (Hinnegan); Re
Peace Regional Emergency Medical Services Society and Health Sciences Assn. of Alberta
[2003] A.G.A.A. No. 67 (Moreau); Re Coast Mountain Buslink Co. and Independent Canadian
Transit Union Local 2 [1999] B.C.C.A.A.A. No. 318 (McPhillips); Re Metro Ontario Inc. and
CAW Local 414 [2010] O.L.A.A. No. 318 (Slotnick); Re Pintys Premium Foods Inc. and UFCW
Local 617P 1997 CarswellOnt 6730 (Levinson); Re Ontario Power Generation and Society of
Energy Professionals (2005) 141 L.A.C. (4th) 120 (Nairn); Re Ottawa (City) and CUPE Local
503 2014 CarswellOnt 3153 (Sheehan); Re TNT Logistics North America Inc. and United
Steelworkers (2003) 118 L.A.C. (4th) 109 (Davie); Re Cannet Freight Cartage Ltd. and
Teamsters Local 419 (1993) 35 L.A.C. (4th) 314 (Bendel); and Re University of British
Columbia and International Union of Operating Engineers, Local 882 [1982] O.L.A.A. No. 347
(McColl).
[373] The union argued that many of these cases were distinguishable on the facts, and
countered with a number of cases where the arbitrator decided to reinstate the grievor even after
concluding that he or she had been dishonest at the hearing. These include Re Toronto East
General Hospital and SEIU (1975) 9 L.A.C. (2d) 311 (Beatty); Re Ontario (Correctional
Services) and OPSEU (2013) 236 L.A.C. (4th) 91 (Ont. G.S.B., Abramsky); Re Calgary (City)
and CUPE Local 38 (2002) 110 L.A.C. (4th) 97 (Warren); Re Agropur, Division Natrel and
[136]
Teamsters Local 647 [2014] O.L.A.A. No. 328 (Shime); Re Leisureworld and SEIU Local
1.Canada [2010] O.L.A.A. No. 90 (Reilly); and Re Canada Post Corp. and CUPW [2000]
C.L.A.D. No. 541 (Gagnon), as well as Canadian Office and Professional Employees v. Yellow
Pages Group Co. [2012] O.J. No. 2880 (Ont. Ct. of App.).
[374] On credibility, I was referred by the city to the oft-cited case of Faryna v Chorny [1952]
2 D.L.R. 354 (B.C.C.A), as well as Re Durham (Reg. Municipality) and CUPE Local 132
CarswellOnt 8032 (Knopf), and United Brotherhood of Carpenters and Joiners v. Carpcon
Construction 2014 CanLII 55008 (ON LRB).
[375] The cases before me must be decided for each of the 25 grievors based on each grievors
misconduct on the days in question, each grievors responses in the interviews, and each
grievors testimony at the hearing. However, a few general comments are in order.
[376] I have already stated above that nearly all the grievors missed an important opportunity to
apologize and admit their transgressions when they were interviewed in January, 2013. Their
apologies at the hearing must be judged in light of that. An early admission of wrongdoing is
far more valuable, and has a much slimmer chance of being interpreted as insincere, than an
apology at the hearing. As the arbitrator said in the Cannet case, cited above, a late apology
may be indicative of nothing more than a grievors ability to follow advice.
[377] In my view, too many of the apologies given by the grievors in this case were grudging at
best, clearly prompted by advice from the union, and often followed by testimony that indicated
[137]
the grievors did not truly feel they had done anything wrong. In fact, given the arguments
discussed below about workplace culture, it may be understandable that some grievors believed
they had nothing to apologize for, although they clearly understood that it was a necessary step if
they wanted reinstatement.
[378] One certainty of this case is that no grievor could deny all misconduct although a few
tried given the GPS records and the cinma vrit videos and rest of the reports from the
private investigators. All grievors were essentially forced to admit wrongdoing and felt they had
to apologize, even if they did not necessarily mean it. This in itself diminishes the value of those
apologies. Dishonesty in an apology is not much different than any other dishonesty, even
though the words may sound more soothing.
[379] With respect to their testimony in general, as will be seen below, I have concluded that
some grievors gave evidence they must have known was not true. More common was testimony
that exaggerated the time that certain work tasks took or was designed to minimize the actual
amount of wasted time. In addition, while I certainly can understand that the grievors would not
remember a routine day when asked several weeks later, I find it questionable that many grievors
failed to remember some important events even after seeing the video and the documentation
from the days in question. In other words, there are different levels of dishonesty and lack of
credibility, some more serious than others, and those will be assessed accordingly.
[380] Dishonesty at the hearing in termination cases is usually seen by arbitrators as an

important indicator that the employment relationship cannot be salvaged. The reasoning often
[138]
expressed is that grievors who do not admit misconduct or go to great effort to minimize it are
not likely to make the changes in their behaviour that are necessary for a successful
reinstatement.
[381] However, I agree with the union that dishonesty at the hearing, while significant, is not
necessarily fatal to a grievors claim of reinstatement. As the union argues, the cases show that
good people can do bad things, and sometimes get caught up in their own untruthful version of
events. That does not necessarily mean they can never be trusted if they return to the workplace.
Each case must be decided on its own particular circumstances; here, there are 25 related but
separate cases.
[382] In addition, an arbitrator must guard against termination by arbitration. Dishonesty at

the hearing was obviously not a consideration for the employer in terminating 21 of these
grievors.
The arbitrator must first decide whether the grounds for discipline existed and then
decide whether the termination was appropriate. Only if the employer establishes these two
elements is the grievors conduct at the hearing relevant, in considering whether reinstatement is
nevertheless warranted. On this point, the parties are agreed. This three-step test is discussed
below in the section on the Wm. Scott questions.
4. Personal Responsibility and Crew Dynamics
[383] All grievors were asked on cross-examination whether they took personal responsibility
for their actions. Each grievor replied in the affirmative. I am not certain exactly what the
[139]
grievors meant by their answers, but I am certain that the grievors knew what they supposed to
say.
[384] The reality of this case is more complex than each person taking sole personal
responsibility for his or her actions. Every grievor was a member of a crew that worked
together. Each crew had a driver for the asphalt truck, usually the most senior employee, with
control of the primary vehicle but not with any authority over the other crew members. Each
crew also had one or two other employees who were passengers in the asphalt truck. And many
crews had a blocker truck driver.
[385] If the job of the blocker truck is to stay with the asphalt truck all day, a point that the
employer emphasized and that I have accepted, what is the blocker driver to do when the asphalt
truck driver stops for an extended break, or drives around aimlessly killing time at the end of the
day?
[386] In his evidence, Mr. Smith indicated that if a driver is taking too long a break and thus
preventing the rest of the crew from working, then it is the obligation of the other crew members
to call a supervisor. That may be the way it works in the Boy Scouts, but in my view it is
unrealistic to expect that a supervisor will be called by a crew member every time an extended
break is taken. The grievors clearly see some value in keeping harmony on the crew, and that is
understandable.
[140]
[387] The evidence indicates that decisions on when and where to take a break or lunch were
commonly made consensually by the crew members, with the usual give and take involved in
consensual decisions. That often resulted in abuse of the rules, including long periods of travel
to locations where breaks were taken, crew members having to wait for the driver of the asphalt
truck to get moving, and drivers trying to please the rest of the crew by making several stops to
pick up food before the lunch break. Crew members in these cases cannot shirk responsibility by
blaming the groups actions on only the driver. Ultimately, in my view, this is an issue that
relates to the culture of the workplace and proper enforcement of the rules.
[388] Many of the grievors said they did not want to rock the boat by pushing to end a break
that was going on too long. Ms. Ritchie, for example, said, Its not my position to say come on
you guys, get back to work; theyll just tell me to you know what theyll tell me. She and
others simply pointed out that they were not the driver and as such had no control. What am I
supposed to do? asked Mr. Di Filippo, who sat in the truck while others on his crew went into a
McDonalds restaurant. Wherever the driver goes, I have to go.
[389] Mr. Merritt said he was the junior person on his crew, so it was not his place to overrule
others on breaks or on what order to do the jobs. My job is to get out and shovel the asphalt,
he said. Mr. Franco, who had Mr. Micallef as the asphalt truck driver on all four days he was
observed, said he didnt understand why Mr. Micallef did some of the things he did such as
going all the way to Grandads Donuts when there was a Tim Hortons a lot closer but he didnt
want to pick a fight. For his part, Mr. Micallef said he liked to keep everybody happy, so he
made stops such as the one that allowed Mr. Franco get an espresso at the Italian club.
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[390] Mr. Halliday, an asphalt truck driver, said he always ate lunch in the truck at the yard, but
would not go into the building to get the rest of his crew members after 20 minutes, because its
not my job to tell people when to work....theyd just laugh at me.
[391] Mr. Smith said, however, that the city would give some leeway on this issue only to a
new employee. Other employees should be reporting a delay to the supervisor, adding that the
city protects whistleblowers.
[392] In argument, the union agreed that it seems nonsensical for a crew to go to three different
places to pick up food for lunch, but said that is a consequence of randomly assigning people at
the start of each day. Working with a crew is simply more complicated, the union argues; for
example, if one person needs a washroom break, which the city agrees does not count as one of
the 15-minute breaks, the whole crew has to stop working. Management must impose clear
rules, the union argues, and that was not done. If the rules were going to be changed, there
should have been warnings issued, the union argues.
[393] In response, the city argued that the crews could have easily worked more efficiently by
having everybody take their break at the same time, and having all members of the crew agree on
a lunch arrangement that complies with the rules. In any event, the city says, blaming the rest of
the crew or just going along to get along is a poor excuse for the misconduct here.
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[394] As noted above, in my view the situation here is more complex than simply declaring that
each grievor is responsible for his or her own actions. To be sure, following the rules was the
responsibility of each grievor, but there was also an element of responsibility in the crew as a
whole, and also a responsibility for management to ensure that the rules were being followed, or
to develop rules to ensure that crews are not operating inefficiently simply because everyones
requests for places to stop are being honoured. I will have more to say about this below.
[395] In my opinion, the blocker truck drivers and the passengers cannot be held as responsible
for some portions of the wasted time as can the asphalt truck drivers. The asphalt truck drivers,
while not formally having any authority over the others, are in a sense first among equals, in that
they have control over the truck in which the passengers are being carried and that the blocker
truck has to follow. This of course does not always apply, as for example, when the blocker
truck goes off on its own, or where the asphalt truck driver accedes to a request from another
crew member to stop at someones house. But aside from these types of situations, many of the
grievors raise a legitimate point in my view when they say that were not in control. This does
not absolve them completely of responsibility, particularly when decisions are made on a
consensual basis, but it does point to different levels of responsibility, which should be taken into
account in assessing the level of misconduct by each grievor.
5. Condonation and Workplace Culture
[396] There is not much need to discuss condonation, as it is my view that it does not apply
here. An explanation is below. However, related to condonation is the broader concept of
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workplace culture, which I believe is one of the most important issues in this case, deserving of
extensive comment.
[397] The union discussed condonation, but did not emphasize it, staking out its argument
instead on the ground of workplace culture. The employer, anticipating reliance on condonation,
made the following points on the issue: for a condonation defence to apply, there must be
evidence that the employer represented to employees that they considered the impugned
activities permissible, and the employer must have knowledge of the extent of those activities;
ignorance of the employee conduct is not equivalent to acquiescence; generalized allegations of
lax supervision do not amount to condonation, nor does evidence that employees engaged in
misconduct without being caught; evidence that enforcement of rules was not aggressive does
not mean breaking of those rules is being condoned. Furthermore, in this case, supervisors,
themselves unionized, albeit in a different bargaining unit and local of the union, are not
management; therefore, even if there were condonation by the supervisors, it would not be a
defence for these grievors.
[398] In support of these arguments, the city referred to the following cases: Re Dalhousie
College and University and CUPE Local 1392 1996 CarswellNS 623 (McDougall); Re Nova
Scotia (Public Service Commission) and NSGEU 2005 CarswellNS 717 (Veniot); Re Trans
Western Express Co. and Teamsters Local 938 1994CarswellNat 3971 (MacDowell); Re Dupont
Canada Inc. and Kingston Independent Nylon Workers Union (1983) 10 L.A.C. (3d) 424
(Swan); Re Canstar Sports Group Inc. and Amalgamated Clothing and Textile Workers Union,
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Local 308 1994 CarswellOnt 6599 (Bendel); and Re British Columbia and BCGEU 1990
CarswellBC 2483 (Ladner).
[399] I have already commented on many of the citys points in relation to some of the rules
that were violated by these grievors. To repeat, given the absence of supervisors when the crews
were out of the yards and given the lax enforcement of the rules, the grievors did not so much
believe their activities were condoned as they believed they could get away with violating the
rules without any consequences. There is no evidence that the city represented to the grievors
that they could take long breaks or lunches or otherwise spend time unproductively; in fact, there
is evidence to the contrary. There is, however, an argument that the management knew or should
have known in a general way what was going on, which will be addressed below. I will not
comment on the actions of any individual supervisor, as I understand their grievances are still
pending before another arbitrator.
[400] To the extent that the union relies on condonation as a defence, I reject the argument.
However, the union also made extensive submissions related to the culture of the workplace.
[401] First, the union pointed out that in the random surveillance of the road crews on the six
days in November, 2012, 33 employees were followed, and every one of them was disciplined
except for the third person on Crew #15 who, the employer said, escaped discipline because of
an error on the citys part. The union pointed to a list produced by the city of asphalt crews in
November, 2012, showing a total of 133 crews worked that month from eight yards, including
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the 16 crews that are part of these grievances. Roughly 95 employees in total worked on these
crews, including the 33 who were followed.
[402] The union argues that with more than a third of the employees observed in a random
sampling and every one of them found by the city not to be doing their jobs properly, there is no
reason to think that the rest were doing anything different. The city strenuously objected, saying
expert evidence from a statistician would be required to substantiate such a statement. I
disagree. While there is no evidence about what was or was not done on the road crews that
were not observed, it is correct to say that a random sampling of more than a third of the 95
employees who worked on road crews in November, 2012, found not one who was not spending
a significant amount of time unproductively. Surely that is of some significance.
[403] On the six days during which the surveillance was undertaken, there were a total of 37
asphalt crews on the road. Sixteen of them were observed nearly half the crews and every
one of them was found to be spending time unproductively. Again, that must be of some
significance.
[404] Further, another document in evidence takes the times from pothole sheets and compares
more than 70 crews who worked in November, 2012. It appears to show a large majority of the
crews ending their road work in the same time range daily well before 2 oclock as the
grievors crews.
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[405] Second, the union also pointed to the result codes listed on the activity sheets and on
the supervisors and superintendents reports (OM5 and OM6). Mr. Smith explained that the
pothole sheet is used to calculate the number of accomplishments the number of potholes
filled, for example. That number is then put into a computer program, which compares the
accomplishments to the budgeted numbers for the staff, equipment and material used. The
computer then generates on the OM5 or OM6 a result code, telling the supervisor whether the
crews accomplishments met, exceeded or fell short of what would be expected. The supervisor
then circles the appropriate result code on the daily activity sheet, and signs it.
[406] Of the 16 crews that were observed, three were given result codes that said high
achievement by crew. Another nine were given an OK result code that is listed in full as
work matches planning data sheet. For one crew, the supervisors report has the OK result
code, but the activity sheet has the high achievement code circled. Three crews all of them
the Halliday, Fasulo, Palmateer crews are given a code that is listed as non-standard travel
time, which appears to mean expectations were not met, but with the explanation of additional
travel time (these crews worked in a more rural area).
[407] Asked about one of the crews (#2) that is rated with a high achievement, Mr. Smith said
he does not agree, since he said it was obvious the crew stole time. While the union concedes
that these result codes are based on the number of potholes reported by the crew, and that they
are not seen by the employees after they are generated by the supervisors, it argues that the codes
provide some insight into the workplace culture and the expectations that the city has for these
employees. If Mr. Smith disagrees, the union argues, the correct response is to change the
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expectations rather than fire everybody, including those employees who are rated as having high
achievements for the day.
[408] It is worth noting here that Mr. Smith agreed that there is no evidence that any work
reported on the pothole sheets by these grievors was not actually done. Nor is there any evidence
that the repair of any specifically assigned road defect was not completed.
[409] Third, the union argues that the crews did not hide the fact that they did no road work
after about 1:30. That information is right on the pothole sheets (although at one yard, Rymal,
there was no space for times to be recorded on the pothole sheets.) Further, the grievors were
well aware that the trucks were equipped with GPS units. This shows that the way work was
done was open and notorious, the union argues.
[410] Fourth, the union points to several responses in the interviews with supervisors and
superintendents. (The parties agreed that the notes of those interviews are proof of what was
said in the interviews, but not proof of the truth of what was said.) As noted above, supervisors
were interviewed both before and after these grievors were disciplined. In their interviews, they
were asked questions that were geared to their duties as supervisors and managers, different from
the questions asked of the grievors. In the first interviews, they were not asked about the specific
days when crews they were supervising were under surveillance.
[411] Several of the supervisors said they ensure the efficiency of the crews through spot
checks and watching the accomplishments that are tallied on the time sheets. Many said they
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check on the crews through the day, either in person or by radio. Some mention the crews taking
lunch at the yard, but others say they have no way of knowing about breaks and that they trust
the employees to comply with the rules and do a full days work. One supervisor at Rymal said
there is a low rate of compliance with the rules regarding breaks and lunches. Another is
recorded as saying it is hard to change peoples habits.
[412] However, the supervisors generally deny being aware of any crews driving around or
sitting idle when they are supposed to be working, or conducting personal business on work
time, nor do they condone it. Several said they believe the crews have enough work to do. Some
expressed shock at the contents of the videos. One (male) supervisor is recorded as saying we
cant breastfeed everyone, they need to be responsible.
[413] The three superintendents said in their interviews that it was up to the supervisors to keep
tabs on the crews, and that they themselves did not know any details of their activities. One of
them is quoted as saying that progressive discipline should be applied if crew members are
breaking the rules regarding hardhats, long lunches or spending time unproductively.
[414] Fifth, the union argued that the evidence of the grievors showed a consistent pattern how
the work was done: most crews (with the exception of those who are rated as high achievers)
picked up their assigned one tonne of asphalt in the morning and made it last until it was too late
to pick up another load. No one is hiding the fact that they take their time in the morning, so that
there will be a little bit of asphalt left for use after lunch. Part of that routine is taking long
breaks and a long lunch period.
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[415] Many of the grievors testified that they had no training on how to do asphalt duties they
just learned from the other members of the crews they were on. Others said things have worked
the same way for as long as they can remember. Commenting on wasting time at the end of the
day, Mr. Gauthier said, It shouldnt happen but thats how it was, I cant explain whythey
(supervisors) left us alone at the end of the day; they all did the same when they were working.
He added, I thought it was odd when I started, but who am I to say when theres guys with 30
years seniority. You follow the flow, you dont want to ruffle feathers. He said that on most
days there wasnt enough work assigned.
[416] The union says it defies logic to suggest that the supervisors were not aware of the way
work was done.
[417] Union counsel was asked why, if their work practices were open and known, the grievors
would deny in their interviews that they had taken extended breaks and lunches, or used time
unproductively. His response was that everyone knew that the practices were not proper, even
though they might have been known by management, that no one was proud of it, but that no one
wanted to get into trouble. There was an expectation of how much work was supposed to be
done, but no one really talks about it explicitly. Then Mr. Smith, who started with the city only
in 2011, heard rumours about possible criminal activity and ordered an investigation. He found
no criminal activity, but the slack work practices were revealed. Instead of warning employees
that practices had to change, he fired almost all of them. The union says there is no reason to
believe that suspensions and proper instruction would not achieve a change in the culture that
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would increase productivity. The city never tried the corrective approach, and instead meted out
the ultimate employment penalty to the employees who were unlucky enough to be caught by the
random surveillance. They have been penalized even though there is good reason to believe that
their work practices did not differ from those of the rest of the department, the union argues.
[418] Sixth, the union points to a 1991 memo from the then-director of public works titled
Procedure Regarding Non-Performance during Working Hours. (This was put into evidence,
over the citys objection. along with a will-say statement from a former president of the CUPE
Local 5 a predecessor to the current Local 5167 who said the memo was the first formalized
practice on this issue.) The memo says employees found not performing their duties during
working hours will have at least one hour deducted from their pay, and more if the period of nonperformance exceeds one hour. It says progressive discipline will be applied, beginning with a
written warning, and that the memo will be applied to cases that are blatant in nature such as
playing cards during working hours, unauthorized absence from the work site, unofficial coffee
breaks, resting or sleeping on the job or any similarly blatant non-performance.
[419] The union argues that this policy, which it acknowledges was in effect until 2002 at the
latest, forms part of the culture in this workplace, where non-performance of work drew only the
mildest of sanctions.
[420] In support of its arguments on workplace culture, the union has referred to the following
cases: Re New Brunswick (Dept. of Public Safety) and CUPE, Local 1251 [2004] N.B.L.A.A.
No. 11 (Bruce), where a workplace culture of horseplay and coarse language was considered to
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be a mitigating factor; Re Lilydale Co-operative Ltd. and UFCW, Local 1518 (2001) 96 L.A.C.
(4th) 221 (Keras), dealing with inconsistent application of policies; Re Federated Co-operatives
Assn. Ltd. and UFCW, Local 649 (2004) 124 L.A.C. (4th) 308 (Priel), involving a culture of
horseplay; Re North York General Hospital and CUPE (1973) 5 L.A.C. (2d) 45 (Shime), where a
lack of warning was a determining factor in the grievors reinstatement; and the Miracle Mart
case, cited above, where the arbitrator says the misconduct for which the grievor was disciplined
was so widespread and open that the grievor reasonably believed that the employer was prepared
to ignore it.
[421] The union states that workplace culture helps explain why employees engage in
questionable or aberrant activities. It can explain the expectations of both workers and
managers. When employees are doing what theyve always done, and what everyone else does,
they should not be faulted, the union argues, or at the very least, their reasonable expectations
about their work should be a mitigating factor. Further, it is not proper to discipline one person
or a group of people for something that everyone does. The union is not suggesting that the
grievors actions were proper, but this is the way the place worked, union counsel said.
[422] The union says it acknowledges that the rules about breaks, for example, were known,
rules, but argues that if the employer wants to start enforcing those rules, it should start by
warning the employees, or perhaps imposing a short suspension rather than a mass firing.
[423] The city responds by saying the vast majority of the grievors misconduct was not open
and notorious at all. The evidence indicates that the pothole sheets were looked at only to glean
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the number of potholes filled; in many cases the crew had written that number on the activity
sheet, so there was no need for a supervisor to even look at the pothole sheet. In any event, the
time of the last road work would not necessarily indicate unproductive time later, as crews were
supposed to be doing other work when they ran out of asphalt. The result codes are just
automatically created by a computer and are no reflection of the amount of work done, the city
argues.
[424] The city also makes the following points: a culture created by the workers themselves
cannot provide an excuse for misconduct; it cannot be called a workplace culture when the
elements being relied upon are all out of sight of supervision and management; the point of a
culture argument is that the grievors thought what they were doing was proper, but here, the
grievors knew what they were doing was wrong and admitted that at the hearing; furthermore,
many of the grievors insisted they were working hard all day, completely undermining the
argument that there was a culture of spending a great amount of time unproductively.
[425] With regard to the supervisors and the notes of their interviews, the city argues that very
little can be taken from these documents. If the union wanted to establish some of the points
made by the supervisors, it should have called them as witnesses and subjected them to crossexamination, the city argues. The fact that this was not done should lead to an adverse inference
about the testimony they would have given. On this point, the city refers to the following cases
on drawing an adverse inference: Re Douglas Aircraft Co. Ltd. and UAW Local 1967 (1976) 13
L.A.C. (2d) 410 (Gorsky); Re Versacold Group Warehouse and Teamsters Local 419 2009
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CarswellOnt 10469 (Surdykowski); and Re Ontario (LCBO) and OLBEU [2002] O.G.S.B.A. No.
15 (R. Brown).
[426] The city also referred to the following cases on the issue of culture of the workplace: Re
Vancouver School District No. 39 and United Association (Plumbers), Local 170 2011
CarswellBC 1983 (Sanderson), where the arbitrator says a grievor cannot hide behind others
allegedly doing the same thing; Re Toronto Harbour Commissioners and CUPE Local 186
(1992) 29 L.A.C. (4th) 428 (McLaren), where the arbitrator says lax procedures are no excuse
for employees who fail to follow obvious standards of behaviour; and Re Calgary Co-operative
Assn. Ltd. and Union of Calgary Co-operative Employees [1998] A.G.A.A. No. 33 (Sims).
[427] In my view, many of the unions points on the culture of the workplace cannot be nearly
as easily dismissed as the employer here is attempting to do. When one employee engages in
improper conduct, it is easy to understand who is responsible for the misconduct. But when, as
here, 33 employees are observed 25 of them the grievors in this case and every one of them is
found to be breaching the rules, it points to a more complex situation. Certainly the grievors
bear much of the responsibility, but one must ask how it came to be that workers from five
different yards engage in a remarkably similar pattern of violating the established rules. How is
it, for example, that a memo is posted at the Rymal yard telling employees not to return to the
yard for lunch, yet the evidence is that every day the crews take their lunch break at that yard,
where supervisors work and talk to them during lunch.
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[428] Without making any comment on specific supervisors, I accept the unions point that it
defies logic to think that those in charge did not know, in a general way at least, the pattern of
how the work was done by the road crews.
[429] One of the more remarkable aspects of this case is that, while the reports from the private
investigators sparked the discipline, the surveillance did not tell the city very much that was not
available in the documentation it already possessed or could generate. The exception is
regarding the wearing of hardhats, a minor issue in this case. Had anyone looked closely at the
pothole sheets and the GPS records, they could have found the same misconduct as did the
private investigators long breaks, long lunches, unnecessary stops at grievors houses and at
coffee shops and food retailers, an early end every day to road work, and most of the other
wasted time. It was not necessarily open and notorious, but it was not particularly well hidden
either.
[430] With respect to the notes of the supervisors interviews, I agree with the city that they are
of little value. For one thing, the supervisors had an interest in expressing shock at the findings
in the surveillance. However, I disagree that this is a situation where I should draw an adverse
inference from the unions failure to call any supervisors. While they are employees in a
bargaining unit, their duties involve assigning work to the grievors and monitoring that work.
They were asked in the second of the interviews whether they had disciplined any of the road
crews, the assumption being that they had disciplinary power. Further, they are challenging their
own discipline. Given their situation, the fact that they were not called cannot lead me to infer
anything about the testimony they would have given had they been called. Conversely, I also
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cannot take their comments in the interviews some of which assist the union here, and some of
which clearly do not as evidence bolstering the unions arguments. However, there was plenty
of believable testimony from the grievors that supervisors saw them at lunchtime at most of the
yards, and some confirmation of this in the notes, as well as confirmation of some other items.
[431] Similarly, I find little value in the 1991 memo from the city that was produced by the
union.
[432] With respect to the result codes, I agree they say nothing about the time wasted and I
agree that the grievors themselves would not have seen them, as those codes were generated after
the grievors turned in their paperwork at the end of the day; the codes are filled in on the time
sheets by the supervisors. But the result codes must serve some purpose; at the very least, they
told someone in management that the crews were not expected to do more road work than they
actually did. It is hard to have much faith in a system that judges a crew (Crew #2 in this case)
to be high achievers when they meandered around the city, took long breaks, enjoyed a lunch
period roughly four times the allotted time, and then stopped working well before their shift
ended.
But that was the system in place, and no one demanded more from these workers than
what they were doing. This does not condone the misconduct, but it indicates a tolerance for a
way of performing the work that was far less productive than it could have been.
[433] Regarding the pothole sheets, which openly listed 1:45 or earlier as when the last road
work was done, it may well be true that no one looked at them closely, or even at all, given that
many of the crews tallied up their accomplishments and put them on the time sheet, to be used to
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generate the result code. However, if the city argues, as it does, that some grievors falsified the
pothole sheets to cover up long breaks, the assumption behind that argument is that the grievors
believed supervisors or management were looking at the sheets. That same assumption must
also apply to the times listed for the end of road work, yet no grievors seemed concerned that it
might be a problem to have stopped road work an hour and a half before the end of the shift. It is
true that there was other work that could have been done after the asphalt ran out, but it is clear
from the evidence that crews rarely, if ever, called supervisors late in the shift to ask what work
should be done.
[434] As the city pointed out, some of the grievors said they worked a full day; many of them
were adamant that they did patrolling after the asphalt ran out. However, while this testimony
would undermine the culture argument if it were accepted, I have found much of this testimony
not to be credible, and will have more to say about it when dealing below with the individual
grievors. In addition, some grievors said they were caught on a bad day or that November was
a bad month. Again, these statements tend to undermine the culture argument, but in general I
found them not credible. Other grievors said November is a poor time to evaluate their work, as
there are fewer potholes in the fall than there are at other times of the year. This instinctively
seems correct, but does not explain how the crews managed to use up all their asphalt. I find
these statements irrelevant to the case and to the culture argument.
[435] I find there was a workplace culture that is relevant to the disposition of these grievances.
The grievors had reason to believe they were discharging their duties as long as they used up the
asphalt they were issued in the morning, even if that did not entail a full days work. The culture
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was not created by the workers alone, as the city suggests, but was tolerated to an extent or at
least overlooked by management. The specifics of the misconduct may have been unknown to
management, but the general structure of work was understood by all concerned. The rules were
in place, the employees knew those rules, but understood there would be no consequences for
violating them, as long as they completed the specifically assigned road work and used up the
asphalt. This, in my view, explains why the grievors were so obviously shocked by the severe
discipline that came suddenly. The workplace culture is not an excuse for misconduct but it is a
partial explanation. It cannot absolve the grievors from their obvious misconduct, nor can it
explain their dishonest answers when confronted with the facts by their employer, but I believe
the culture must be considered as a mitigating factor in these cases.
6. Progressive Discipline
[436] As noted above, the union argued that the grievors should have been given some warning
that that their conduct was improper. It says there is no reason to believe that short suspensions
would not have sent the required message to the employees that the way of performing their jobs
must change. This, the union says, would fulfil the employers obligation and commitment to
use progressive discipline to correct misconduct.
[437] The citys commitment to progressive discipline is confirmed in its 10-page policy titled
Discipline Procedures, which was put into evidence. It is described as a corrective process
designed to help employees achieve acceptable performance through a series of progressive
levels. The policy states that where an employee wilfully breaks a rule or standard, supervisory
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actions to improve performance may be progressive, depending on the seriousness of the
problem. It outlines examples of misconduct that might draw a verbal warning, a written
warning, a suspension or termination. Among the examples given that warrant termination are
an employee guilty of dishonesty or any dishonest action, and falsifying or assist in falsifying
personnel or other records, including activity or work performance reports.
[438] Mr. Smith testified that he was familiar with the policy and applied it in the discipline
imposed on the grievors. He said there is some behaviour by employees that is serious enough
that termination is warranted without the progressive discipline approach.
[439] The city argues that there is little evidence that the supervisors and management knew the
extent and details of the misconduct, so they could not warn the grievors in advance that they
should change their ways. In any event, the level of misconduct warrants the discipline that was
imposed, the city says.
[440] In my view, common sense dictates, and the case law confirms, that there is some
behaviour so egregious that it does not require progressive discipline. No one would expect an
employer, faced with an employee who is stealing property, for example, to simply say, Please
dont do that anymore. One of the main reasons is that an employee who is stealing has broken
the trust that is essential to a viable employment relationship.
[441] Here, given how widespread the improper and unproductive use of work time was
given, in other words, the culture of the workplace, as discussed above the employer could
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have provided the grievors with a warning or a suspension in order to give them a chance to
correct their behaviour. If the employer wanted to change the culture, it could have adopted this
approach. But, as will be seen below, virtually all the grievors who were terminated denied they
had done anything that violated the rules. They did not tell the employer at the interviews they
had taken long breaks and otherwise spent time unproductively, that this is the way work is done
and always has been. Instead, they denied that any rules had been broken, and none of them
gave any indication that this is the way the work has always been done. This, in my opinion,
severely damaged their claim to have some kind of warning or suspension. Employees who deny
any wrongdoing cannot then require the employer to warn them not to do something they have
denied doing.
[442] For employees who were dishonest in the interviews which includes all the terminated
grievors I have concluded that the employer was under no obligation use the progressive
discipline approach. Had the grievors been more honest in the interviews, the employer may
have responded differently. What is certain is that, had the grievors been honest in the
interviews and the employer had still terminated them, I would have concluded that the
discipline was too severe because of the widespread violation of the rules.
7. The Wm. Scott questions
[443] Perhaps not surprisingly, the union placed much emphasis in its argument on the oftquoted case of Re Wm. Scott and Co. and Canadian Food and Allied Workers Union [1976]
B.C.L.R.B.D. No. 98 (B.C. Lab. Rel. Bd., Weiler). The decision in that case sets out the
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questions that must be asked in a case where the grievor has been terminated, as follows (at
parag. 13)
arbitrators should pose three distinct questions in the typical discharge grievance.
First, has the employee given just and reasonable cause for some form of discipline by
the employer? If so, was the employer's decision to dismiss the employee an excessive
response in all of the circumstances of the case? Finally, if the arbitrator does consider
discharge excessive, what alternative measure should be substituted as just and equitable?
[444] The main point of the unions argument, not squarely stated in the Wm. Scott decision but
widely understood nevertheless, is that, at the third step of the process, the arbitrator can decide
that even if the termination was justified at the time, reinstatement can still be ordered. This
concept is enshrined in Section 48 (17) of the Labour Relations Act, 1995, which states:
48 (17) Where an arbitrator or arbitration board determines that an employee has been
discharged or otherwise disciplined by an employer for cause and the collective
agreement does not contain a specific penalty for the infraction that is the subject-matter
of the arbitration, the arbitrator or arbitration board may substitute such other penalty for
the discharge or discipline as to the arbitrator or arbitration board seems just and
reasonable in all the circumstances.
[445] As will be obvious from the details of each crew above, there is just cause for some form
of discipline in the cases of all 21 grievors who were terminated. The questions to be answered
below in those 21 cases are whether termination was an excessive response, and even if not,
whether circumstances warrant substitution of another penalty.
[446] The city argues that in many reported cases, no just cause for termination is established
but the arbitrator reinstates without compensation, blurring the line between the second and third
steps. I agree this is true, but, in my view, those cases often do not exhibit principled reasoning.
If there is no justification for a discharge in the first place, I see no reason for an arbitrator to
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substitute a penalty that never would have been imposed on any employee, such as a timeserved suspension that can easily run to more than a year by the time a hearing is concluded and
a decision rendered. Where an employer dismisses an employee without justification, it must
expect to compensate that employee, subject to the employees mitigation efforts and any lesser
disciplinary penalty that the arbitrator feels ought to have been imposed at the time of discharge.
There is no reason that a grievor who has been wronged by being discharged without
justification should bear the financial burden of the employers improper decision. This is the
approach I have taken below, which of course does not apply where I have found the employer
had justification to terminate the grievor but where I have also found there is reason to mitigate
that penalty.
SECTION E THE GRIEVORS
Introduction
[447] Each grievors case must be considered separately. While many facts are common to all
25 grievors, there are obvious differences in the details of each crews days. The section on each
grievor below should therefore be read in conjunction with the summary above of the activities
of the relevant crew or crews. In addition, the evaluation of each grievors case will include
assessment of the employees responses in the interview, and testimony in the hearing,
summarized below.
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[448] The city has cautioned against comparing one grievor to another. I accept this point, to
some extent. I agree that some grievors may compare favourably to others, yet their misconduct
would still warrant termination.
[449] All grievors agreed on cross-examination that they were in a position of trust because
they were not closely supervised when out on the road, and that they had breached that trust by
extending their breaks and using other time unproductively. I agree that the misconduct of the
crews, as detailed above, was serious. The dishonesty shown in the interviews, detailed below, is
also serious misconduct. However, with some very limited exceptions, the city has not
established the allegation of acting in a fraudulent manner that would narrow the scope for
mitigating the penalty of those who were terminated. As stated above, I regard the culture of the
workplace as a significant mitigating factor. The employer has good reason to desire a change in
this culture. Therefore, above all, when assessing individual cases where termination has been
justified, I will consider reinstatement in light of the grievors potential to make the changes
necessary to work in a way that will restore the trust of the employer.
1. David Snape
[450] This grievor was part of Crew #1, at paragraph 152 above.
[451] Mr. Snape had about 22 years of seniority when he was terminated. He had always
worked out of the Rymal yard, where he performed various jobs including a large amount of
asphalt work in his last two years. He started working for the city when he was 26. He has
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completed high school. Mr. Snape has two daughters, who live with their mother. He said he
was paying child support until the termination.
[452] In answering the general questions in the interview, Mr. Snape said he had not conducted
personal business or observed personal business being conducted during the workday. He said
he had not spent time unproductively, or violated rules on time or location of breaks, and he said
he had not disregarded the requirements related to personal protective equipment, nor had he
used city equipment for personal purposes. These answers were not truthful.
[453] In his testimony, Mr. Snape said he was exhausted when interviewed in the morning, as
he had just finished working an overnight shift. He said he answered no to the question about
personal business because he thought he was being asked whether he ever used city asphalt to do
work for members of the public who asked. Even though he had used the city truck to carry his
ex-wifes garbage, he said he had not used city equipment for personal purposes, but said he
thought he was being asked about asphalt.
[454] As with all the grievors, Mr. Snape was asked specific questions about the time he was
under surveillance. Those questions assumed that he had been at work the whole day. It is clear
from his answers that he did not recall he was at work for only the first half of the day. He said
he was devastated when he pieced together the fact that he was off at 11, and still had been
told in the interview that he had taken an extended lunch.
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[455] He acknowledged that he went back to the yard too early, at 10:12, even though his shift
did not end until 11.
[456] Asked about reinstatement, Mr. Snape said he would not make the same mistakes. He
apologized for what happened and said he wouldnt make the same mistakes again. He said the
termination was hard to take as he was only at work for half a day on the day in question.
[457] I do not accept Mr. Snapes evidence about the interview. Even if he was tired after
working an overnight shift, this does not cause dishonesty. I believe it is likely he understood
the question about conducting personal business, yet he said he did not. He acknowledged on
cross-examination that he understood other questions but had still answered untruthfully.
[458] Mr. Snape was caught in a lie on cross-examination, saying his stop at his ex-wifes
house on the day he was under surveillance was the only time he had gone there. The city
produced GPS records showing several stops there in the two months prior to the day in
question, including one stop of more than an hour. In his interview, he had acknowledged the
stop at his ex-wifes house, but was recorded as saying it was just the one time.
[459] Mr. Smith said he reconsidered Mr. Snapes termination when he found out, after the
fact, that he had only been scheduled for half a day. But he said one of the activities that
weighed heavily in the decision to maintain the termination was that he used a city vehicle to do
a personal errand. On this point, the union pointed to evidence of a roads employee who had
been given a one-day suspension six months earlier when his crew stopped at his house and put
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some waste into the back of the truck to take to the yard. In my view, the city could have
reduced its termination once its mistaken belief that he was at work all day was revealed. The
citys failure to do so should be considered a mitigating factor. But Mr. Snape did himself no
favours with his failure to be forthright with the employer.
[460] The employer points to Mr. Snapes credibility problems, while acknowledging that Mr.
Snape spent less time unproductively than the rest of the grievors.
[461] With 22 years of seniority, Mr. Snape has spent most of his working life at the city. His
misconduct on Nov. 8, 2012, was significant, but did not in itself warrant discharge, in my view.
However, he was dishonest with his employer in the interview, both on the general questions and
on the specific question of the stop at his ex-wifes house, which he said had occurred just once.
Given this dishonesty, I cannot find the citys action unjustified. Mr. Snape then compounded
the dishonesty at the hearing with at least one blatant falsehood and other testimony that was not
credible. His untruthful testimony made his expressions of remorse seem hollow.
[462] In my opinion, despite his untruthful performance in the interview and at the hearing, Mr.
Snape deserves a chance to prove he can change the way he does his work. But no back pay is
justified. He is to be reinstated as soon as practicable with no loss of seniority but no back pay.
A suspension of 30 work days will be on his record for two years from the date of reinstatement.
2. Ming Yong
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[463] This grievor was a member of Crew #1, at paragraph 152 above.
[464] Mr. Yong had about 23 years of seniority at the time of termination. He started with
the city in 1989 at age 29. He moved to the Rymal yard in 2007, and said he was regularly on
asphalt crews. He has completed Grade 12 and some college courses. He is married with three
children and two grandchildren; one of his daughters and one granddaughter live with him. He
said his wife has health issues and requires costly medication that was covered under the benefits
plan he lost when he was terminated.
[465] In his interview, Mr. Yong said he had not conducted personal business on work time,
nor had he observed it. In his evidence, he called this a wrong answer, and said he should
have been more honest. He did give a more honest answer on the question of unproductive time,
saying that when the crew is finished its work, they add time to a break; however, on a later
question, he said he had not violated the rules on break location and times. He said he had not
disregarded the personal protective equipment rules. Asked about the trip to the bank on Nov. 8,
he acknowledged it, but said it was probably during a break, which was not true. He was also
asked a question about the crew visiting a residential address that was specified, and he did not
say it was Mr. Snapes ex-wifes address, even though he admitted in his testimony that he
recognized the address when he was asked about it.
[466] Mr. Yong said at the hearing that he answered questions in the interview dishonestly.
Im sorry I did, I regret doing it. He said he took advantage of the city, but said he would
like a second chance to prove he can be a hard worker.
[167]
[467] In his testimony, Mr. Yong claimed to remember a number of events from the day in
question, but in fact appeared to be making assumptions of what might have happened based on
the documents and video. For example, he said the crew stopped at McDonalds because Mr.
Tabone had to use the washroom; he would have no reason to remember this, especially when
he testified that he did not remember anything about Nov. 8 when he was interviewed two
months later. These type of answers are not credible and are meant, in my view, to deflect blame
from Mr. Yong.
[468] At the hearing, Mr. Yong called his personal errand to look at snow tires a big mistake.
He then said going to the bank machine every couple of weeks was the only personal errand he
performed on work time. Asked about the approximately one hour that morning before the
extended lunch break when no work was done while there was travel from one errand to another,
he said he was sorry and not proud of wasting an hour of the citys time. He said he cant
explain it, that it just happened.
[469] Mr. Yong acknowledged that no work was done after 1:09, and said he should have
called a supervisor when he ran out of asphalt. However, he said, Mr. Tabone wanted to stop at
the drug store and his house. He said he should not have returned Mr. Snape to the yard so early
and not gone back to the yard with Mr. Tabone as early as 2 oclock.
[470] Mr. Yongs day, like many involved in this case, consisted of some short periods of work
in between longer periods of personal errands and wasted time. The union, while acknowledging
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the difficulty presented by the two-hour period with no work that began with the drop-off of Mr.
Snape and the lack of honesty at the interview, said Mr. Yong was genuinely apologetic and
remorseful. The city argues the apology was not genuine.
[471] In my view, Mr. Yong recognized most of what he had done wrong, and correctly
identified that he had taken advantage of his employer. His testimony was not completely
forthright for example, he stuck to his story that he was patrolling after running out of asphalt,
and that he might have been doing something useful for his last hour in the yard, as unlikely as
these assertions seem. However, his high seniority and what I consider his genuine, albeit late,
apology, along with the workplace culture factor as set out above, warrant mitigating the penalty,
but not with back pay. He is to be reinstated as soon as practicable with no loss of seniority but
no back pay. A suspension of 30 work days will be on his record for two years from the date of
reinstatement.
3. Manuel Tabone
[472] This grievor was a member of Crews #1 and #9, at paragraphs 152 and 251 above.
[473] Mr. Tabone had about 17 years of seniority at the time of termination. He was 31
when he started with the city in 1994, and had been based at Rymal since 2000. He did not
finish high school. He said he worked on hotbox crews only now and then, and in the summer
mainly worked on sidewalks using a grinder. Mr. Tabone has served as the unions
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representative on the joint health and safety committee at the Rymal yard. His elderly mother
lives with him.
[474] In his interview, Mr. Tabone denied conducting personal business on work time, even
though this is not true. In his testimony, he said, I gave the wrong answer, because he was
nervous and did not know what was happening. Other answers were also wrong, he said. He
denied in the interview spending time unproductively or taking extended breaks, saying that
breaks were 10 minutes (15 minutes is correct) and lunches were 20 minutes and that breaks
were to be taken at the closest available facility, although he said in his evidence that he did not
use the closest facility for breaks. Regarding personal protective equipment, including
coveralls, he is recorded as saying, always have orange on and hardhat. Told about the visit to
his home address, he acknowledged it, saying he had permission to go there because of his
elderly dependent mother. He did not mention the Nov. 28 hour-long staff meeting because he
did not remember it on the day of the interview, he said.
[475] On cross-examination, he conceded that he knew he was giving untruthful answers when
he was interviewed.
[476] Despite his work on the health and safety committee, Mr. Tabone said in his evidence
there was no requirement to wear a hardhat when fixing a pothole. This does not fit well with his
apparent statement at the interview that he always wears a hardhat, which in any event was not
true on the days in question. He conceded that employees have been told at meetings to wear
hardhats but said it is not enforced.
[170]
[477] Asked at the hearing about the crews actions on Nov. 8, after dropping off Mr. Snape,
Mr. Tabone said, it was wrong, sorry, it shouldnt have been done. He said the 47 minutes at
the yard at lunchtime was typical, that everyone takes an extended lunch, although he agreed it
was wrong. He also said he should have gone to the drug store after work, although he
speculated that he might have received a call from his mother that day. He also said supervisors
knew he did that sort of thing and never had an issue with it; however, he did not say that in the
interview, and was vague about whether he had permission to pick up his mothers medication or
just his own.
[478] Mr. Tabone said he did not remember ever going to the home of Mr. Snapes ex-wife,
although the employer produced records showing he had been there twice in the weeks before
the Nov. 8 visit.
[479] Regarding Nov. 28, Mr. Tabone initially attempted to justify the trip to McDonalds
before loading up on asphalt, but then conceded it was a break that should not have been taken.
He also said he might have been looking for potholes between the time of the last road work at
1:04 and the return to the yard at 1:29, even though he drove outside the crews assigned area
during that time. Mr. Smith said in cross-examination that it was likely he was unaware of the
one-hour staff meeting at 2 oclock when he decided on Mr. Tabones termination.
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[480] Asked about reinstatement, Mr. Tabone said what we did was wrongI regret
everything. He said it would not happen again if he were given a second chance. If I lose my
job, itll ruin me, he said.
[481] The city points to the large amount of wasted time on the two days in question, and to
Mr. Tabones admitted dishonest answers in the interview. It also cites various examples of
testimony that it says are not credible. The union says Mr. Tabone was doing his best to answer
questions that confused him.
[482] From his interview and from his evidence, it is clear to me that Mr. Tabone was well
aware of all the rules that he violated on these two days. However, he also was aware he could
get away with breaking them. The city was not unjustified in the termination, despite the
incorrect assumptions and unproven allegations with regard to crew #9 on Nov. 28 at the time of
termination. (These include being unaware of the one-hour staff meeting, the assumption that
the crew failed do assigned work at Ravenbury Drive or even go there, and the allegation that the
45-minute stop at 9 oclock back at the yard was a break.) I did not find his evidence to be
particularly forthright. A good number of the statements he made in evidence were not credible,
although he often retreated from those statements when challenged on cross-examination. While
I find his grievance to be a close call, I am influenced by Mr. Tabones clear knowledge of the
citys expectations, his significant seniority of more than 18 years, and his professed willingness
to change.
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[483] While I have some doubts, I am prepared to allow Mr. Tabone the second chance he has
requested. However, his lack of forthrightness has made him undeserving of back pay. He is to
be reinstated as soon as practicable with no loss of seniority but no back pay. A suspension of 30
work days will be on his record for two years from the date of reinstatement.
4. Alan Schuster
[485] Mr. Schuster started working with the city in late 2000 at age 36. He had 12 years
seniority at the time of termination, all worked at the Rymal yard. He has completed Grade 12
and is also a qualified gas-fitter. He said he worked on a lot of asphalt crews from about 2003 to
2008, and fewer since then. He is married with three children in their early 20s, all of whom
live with him. Two of them have disabilities, he said.
[486] In his interview, Mr. Schuster denied spending time unproductively, taking extended
breaks, or disregarding requirements for wearing personal protective equipment. At the hearing,
he said he is not claiming he did not understand the questions, but just that he answered wrong.
Regarding his answer on long breaks, he said, thats the way its been since Ive been with the
city, so I didnt realize the way I answered was wrong. Asked in the interview about Nov. 28,
he made at least two references to not being in control because he is not the driver. Like Mr.
Tabone, he did not raise the 2 oclock staff meeting at the interview, saying he did not remember
it at the time. In his evidence, he said his statement in the interview denying he had conducted
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personal business on work time was not correct; however, there is no evidence that any personal
business was conducted on the day Mr. Schuster was observed. Mr. Schuster said at the hearing
that he believed he was following the rules on wearing a hardhat, so he felt his answer on that
question was correct.
[487] Asked what he would be doing when driving back to the yard for lunch, he responded,
nothing really, I guess. (This can be contrasted with the evidence of some grievors, who
claimed they were patrolling constantly.) He said the crew went to the Metro store because
Manny (Mr. Tabone) needed lunch, but that he always brings his lunch and leaves it at the
yard in the morning. Mr. Schuster said he usually eats lunch in the truck rather than with some
of the others, and waits for the driver to return. Sometimes, he said, supervisors will come by
and tell the crews to get going. He said the hour taken for lunch was not very good I guess I
pushed the lunch break too long. He acknowledged the crew had taken a long route back to the
yard so they would not arrive before 1:30.
[488] Asked on cross-examination what he had done wrong, he cited the trip to McDonalds
before picking up asphalt, the stop at the Metro grocery store before lunch, and the long lunch
break. Later, he agreed the circuitous route taken so that the crew would not return to the yard
before 1:30 was also wrong. He said he took responsibility for where the truck goes. He said the
day was most definitely unusual, although not respecting the long lunch break. He said that if
the stop at Rymal for 44 minutes around 9 oclock was a break, he apologized.
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[489] Asked about reinstatement, Mr. Schuster said he was very sorry for what happened and
that things would be a lot different if he returned to work at the city.
[490] The citys argument on Mr. Schuster focused on his untruthful answers in the interview,
contradictions and misstatements in his evidence at the hearing, and his repeated statements
shifting blame to the driver.
[491] While there were some significant flaws in his testimony at the hearing, I have concluded
that the city did not have justification for Mr. Schusters termination in the first place. I have
reached this conclusion for two main reasons, aside from my general conclusions above about
workplace culture, falsification of paperwork and other matters. First, as discussed above in the
section about Mr. Tabone, the employer based its actions on events occurring on Nov. 28 that
were either misconceptions or allegations that it could not establish on the balance of
probabilities. Nov. 28 was the only day Mr. Schuster was observed. Second, the fact that Mr.
Schuster was not the driver must be taken into account in assessing his misconduct on that day. I
find that the stop at the Metro store, for example, was the drivers decision. Mr. Schuster could
not leave the yard at lunchtime until the driver did; if a supervisor wanted the crew to get
moving, they could have been told. Mr. Schuster was also a passenger for the long drive back to
the yard before 1:30.
[492] I agree with the city that Mr. Schuster must take some responsibility for his actions on the
day in question, but in my view his responsibility is diminished by the fact that he was not the
driver, nor is there any indication that he had asked the driver to waste the time that was wasted.
[175]
Mr. Schuster is not one of the high-seniority grievors, but with 12 years his seniority is still
substantial. His performance at the hearing, although less than stellar including a refusal to try
to remember some facts cannot be used to justify a termination where there were not adequate
grounds to begin with. His misconduct, including the events of Nov. 28 and his untruthful
answers at the interview, warrant a substantial suspension only.
[493] Mr. Schuster is to be reinstated as soon as practicable with full compensation subject to
an unpaid suspension of 30 work days, which will be removed from his record six months after
reinstatement provided there is no justified discipline prior to that point.
5. Fernando Matias
[495] Mr. Matias started with the city in May 1984 at age 27. He had 28 years of seniority at
the time of termination, second highest of all the grievors. He has completed Grade 12, and has
worked out of the Rymal yard since the early 1990s. From April to November, he said, he is
usually assigned to concrete work with occasional asphalt assignments; in the winter, he operates
a snow plow. He is married with three children, one of whom lives at home.
[496] As discussed above, this crew is the only one for which there are neither GPS reports nor
a pothole sheet. The private investigators lost the crew at 12:48, and at that point no road work
had been done since 8:59. The city argues that, unlike the others, Mr. Matias and Mr. Cabral
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were not forced by the documentation to admit as much misconduct and consequently lied in
their testimony.
[497] Mr. Matiass answers in the interview differ from those of most grievors. He
acknowledged conducting personal business on work time, saying a supervisor 28 years ago had
told him there was no problem doing small errands. He said he has spent time unproductively,
although his answer appears to refer to the waiting involved in concrete work. He said he has
disregarded the rules on breaks, but his explanation was that on concrete work he would
sometimes work through the break or lunch period. He said it was not true that he took an
extended break at Dave Andreychuk arena on Nov. 29 (the crew was there for only seven
minutes, but had travelled 16 minutes to get there, and then went back to the yard for an
extended stay.)
[498] Mr. Matias is recorded as making a statement at the end of the interview. Much of it is
not relevant, but he is quoted as saying he doesnt care anymore, citing disrespect for seniority,
favouritism, low morale and that the people in charge dont know what they are doing. In his
testimony he said he was upset by the question that alleged he was observed working only 16
minutes on Nov. 29.
[499] Asked about reinstatement, Mr. Matias said that he had a record of attendance and
performance, and that he was sorry about not knowing some rules. What I know now, had I
known then, perhaps this wouldnt take place, he said. He said he wanted to finish his career
with the city, and would follow the rules, adding that for 28 years, no one said it wasnt
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acceptable to go to a corner facility and he apologized if it was something he wasnt supposed to
do.
[500] On cross-examination, Mr. Matias was asked what he did wrong on Nov. 29, and cited
only the visit to the brewing supply store and perhaps going to his house. As far as
unproductive time, he said he was following his orders and there was not necessarily any
unproductive time. I was productive on that day, he said, adding that if reinstated he might
have the same type of day if assigned to hotbox work. He said the only rule he was not aware of
at the time of termination was the rule against doing small errands on work time. After
numerous questions he agreed that the trip to the arena might have been wrong, although he said
he was working while driving there.
[501] Mr. Matias stated his view that time spent travelling to breaks is work time, saying that
road work is spotted on the way to a break on a daily basis, especially in the winter.
[502] He said he had never discussed the day in question with Mr. Cabral, saying he rarely
worked with Mr. Cabral and does not know him socially. (Ten activity sheets submitted by the
employer to establish another point show four occasions when Mr. Matias and Mr. Cabral were
on asphalt crews together.) Mr. Cabral, however, said he had been over to Mr. Matiass house
on his own time before the termination. He said the two had talked on the phone a few times, but
not about the case, since the time they were both terminated. Later, he said they had gone out for
a drive once in Mr. Matiass car since the termination.
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[503] Mr. Matias said he had never worked on the hotbox in the April to November period.
The employer produced records of 18 days that he was on hotbox crews during that period in
2012. Mr. Matias said the activity sheet produced by the employer for his crew for the day in
question cannot be the one he submitted, because it is not in his handwriting and he is always the
one who fills it out. (As was apparent from material filed by the city, there are occasions when
he does not fill out the sheet when he is driving.) At one point, he suggested the activity sheet
may have covered only the morning of that day, even though it specifies that each crew member
worked eight hours. Asked whether he went to his house often during work hours, he said he
did not recall. He said he had no idea why he would have stopped there that day. Asked if he
was sorry about the hour-long lunch at the Rymal yard, he replied, maybe there was a reason.
[504] The union points out there is no evidence that no work was done after 12:48, when the
investigators lost the crew. The absence of evidence, including the missing pothole sheet and the
lack of GPS reports, cannot be used as a basis to find misconduct, the union says. Mr. Matias
was more honest than most in the interview, the union argues. If the crew wanted to spend time
unproductively out of sight of the supervisors, they would not have gone back to the yard after
the visit to the arena, the union adds. Furthermore, there is no evidence to dispute Mr. Matiass
statement that he is always patrolling, even if other grievors dont concur, the union says.
[505] In my view, this crews strikingly small amount of time spent working on Nov. 29 was
made even more deplorable by Mr. Matiass clumsy attempts to justify it. Very little of his
testimony was believable. He showed almost no contrition, even for the one thing he admitted
might be wrong, the visit to the home brewing store, which he described as no different from a
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stop to pick up cigarettes or a drink. I see an important distinction, as a short stop for cigarettes
or a drink would generally be to buy items that would be consumed right away and would be
available at many places that are not out of the way. It is hard to imagine there was any urgency
to the brewing stop, which involved travel of 19 minutes, and was the type of errand that clearly
should be done on the employees own time. On the whole, Mr. Matias showed no insight into
the problems with his work that day. His insistence that he is always working while travelling,
even to a break or on personal errands, illustrates the difficulty with his evidence.
[506] However, even more important than his conduct on the day in question and the lack of
credibility in his evidence is Mr. Matiass firm resolve not to change if he were reinstated. This
may be one of the few credible statements he made.
[507] With his unrepentant approach, I have no confidence at all that Mr. Matias is willing to
make the changes necessary to rehabilitate this employment relationship. Despite his high
seniority, his grievance must be dismissed.
6. Paul Cabral
[509] Mr. Cabral started with the city in 1996, at the age of 27. He had roughly 16 years of
seniority at the time of termination. He has always been based at the Rymal yard, and has
worked regularly on asphalt crews, often as a raker on the large crews that are sent to big jobs
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with dump trucks filled with asphalt. He said his hotbox work is usually in the winter. Mr.
Cabral has completed Grade 12. He is married with no children. He said he does not drive at
work because he does not have a truck licence.
[510] In his interview, Mr. Cabral denied ever observing personal business being conducted on
work time, and said he had not spent time unproductively. Asked about the visit to the arena, he
said he went to use the washroom and is recorded as saying we have no choice but to go there.
He said he had never been to the home brewing store. In his evidence, he said he thought the
question about personal business was about having ones own business on the side, and would
have told the interviewers, had he understood, that he had gone to the bank machine and to his
house to change. Asked about visits to other peoples houses, he said he could not remember
any, even though he was on the crew that stopped at the house of Mr. Snapes ex-wife for more
than an hour in September, 2012. He said he had never seen anyone else go to the bank machine
or a store on work time.
[511] Mr. Cabral said he thought the interview questions about unproductive time and breaks
were about the large crews he worked on, where he said there is often no break taken. He said
he has not spent time on unnecessary travel or otherwise unproductively.
[512] Mr. Cabral also said he was thinking about the big asphalt crews when he said he had not
disregarded the requirements regarding personal protective equipment. He said he thought the
question about the brewing supply store was about the Beer Store (the question, which was read
[181]
out, names the store, Complete Home Brewing Supplies.) Had he been clear which store it was,
he would have remembered, he said.
[513] In his evidence, Mr. Cabral said he thought there must be a reason he stayed for an hour
at the yard at lunchtime, but said if there was no good reason, it was wrong and he apologized.
He said a lunch that long was not like me. However, the city produced GPS reports of Mr.
Cabral staying at Rymal numerous occasions at lunchtime for long periods that sometimes
exceeded an hour in September and October of 2012. Mr. Cabral said he did not remember those
days, and that the information is wrong.
[514] Mr. Cabral said he cannot take full responsibility for the work day because he is never the
driver, and it is not his place to tell a more senior person what to do.
[515] On cross-examination, he disagreed with a suggestion that it was unproductive to drive

16 minutes to the arena for what he said was a washroom break. He said the crew might have
been looking for potholes or may have received a call from a supervisor to go to the area. He
also said he would not go back to the yard for no reason.
[516] Asked about reinstatement, Mr. Cabral said that if he took a long lunch he apologized.
He said it would never happen again, and asked for a second chance to prove his good work
ethic.
[182]
[517] The union argues that Mr. Cabral was a sincere witness who may be mistaken about some
facts but tried to be truthful. It is not surprising that he geared his interview answers to his work
on the large asphalt crews, since that is where he did most of his work. He is a hard worker who
deserves reinstatement, the union says.
[518] Much of what is said above regarding Mr. Matias applies also to Mr. Cabral. While Mr.
Cabral was slightly less disingenuous in his testimony than Mr. Matias, he was still, in my
opinion, dishonest in many of his responses. In addition, his responses in the interview were
more untruthful than Mr. Matiass, and he compounded the problem in his testimony with
generally flimsy explanations for why he misunderstood virtually every question asked in the
interview. If it were not for all those misunderstandings, he said, he would have answered
honestly. I find that highly unlikely.
[519] Mr. Cabral stuck to his story on many issues, despite solid evidence to the contrary. For
example, the visit to the arena was a washroom break, he said. The visit to the yard afterwards
was also not a break, nor was the jaunt to the brewing supply store. That leaves no morning
break except possibly while driving in the truck, which he suggested might have been his break
on a day when no road work was done from 9 oclock until at least after lunch.
[520] It is possible that Mr. Cabral was telling the truth when he described how hard he worked
when he was on the big asphalt crew. But he is not being judged on those days, on which I have
no evidence except his own assertions. On the day that counts, however, he put in very little
work, although I accept his point that he was not the driver. Given the conspicuous lack of work
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on the day in question and the dishonesty in the interview, the city had ample justification to take
the action it did. But Mr. Cabral cannot bring himself to admit any wrongdoing, despite all the
evidence. This tells me the prospect of a successful reinstatement is dim. Had he been more
honest in the interview, and especially had he been honest in his testimony, he would have his
job back. But Mr. Cabral apparently believes that denying the obvious in testimony at a hearing
is the ticket to reinstatement. He is wrong. His grievance is dismissed.
7. John Hanson
[521] This grievor was part of Crews #3 and #14, at paragraphs 179 and 307 above.
[522] Mr. Hanson started with the city in November, 2005, and was 41 years old at the time of
termination. He had seven years of seniority. He has worked at the Jones Road yard since
2006. He said he has worked on asphalt crews both hotbox and large crews about 80 per cent
of his time, except when he was an acting supervisor in the winter of 2011-12. Mr. Hanson has
completed Grade 12. He is married with three young children. In late 2012, Mr. Hanson applied
for a posted position as a supervisor, was interviewed, and said there were rumours that he had
been successful until he was terminated.
[523] In his interview, Mr. Hanson denied conducting personal business on work time,
spending time unproductively, taking extended breaks and breaking the rules on wearing
personal protective equipment. In his testimony he said those answers were wrong but he was
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very nervous and not thinking clearly at the interview. On cross-examination, he agreed he was
not just wrong, but dishonest.
[524] In response to an interview question about the hour-long stop at the yard early in the day
on Nov. 8, Mr. Hanson said he did not recall what was going on, but is also recorded as saying
Im not a rat. In his evidence, he said he was concerned about what the interviewers were
looking for, doesnt know what he was referring to, and that he was dumfounded that I said
that.
[525] In his evidence about Nov. 8, he said the trip to Highland Meats was wrong, because it
was too long a break and too far to go when there was no work in the area. He said he was
embarrassed by how much time it took the crew to get to their first work location. He also
agreed the lunch break was too long.
[526] Regarding Nov. 29, Mr. Hanson said the stop at Saltfleet arena was likely a break that
was too long and was a horrible break to take especially since we hadnt been to Rymal yet. A
second break that morning after a stop at Tim Hortons was way too longtheres no excuse for
it, he said. The lunch break of more than an hour was not acceptable, he said.
[527] Mr. Hanson said he cant look in the mirror since the termination, and that he feels
atrocious about what happened. Asked about reinstatement, he said the job with the city was the
best thing that has ever happened to him, except for his family. He said that if he were
[185]
reinstated, he would never be in this situation again. Im embarrassed as a man and as a
worker, he said. Im nothing without my job; it was my identity. I am truly sorry.
[528] Mr. Hanson said he agrees that travel to take a break is improper unless there is no
alternative. However, he agreed that these were not the only days when extended breaks and
lunches were taken, although he denied consistently long lunches. The city produced records
from September and October, 2012, showing eight long stops exceeding 40 minutes at lunchtime
on Mr. Hansons crews. Asked whether it was just coincidence that the two days he was
observed were bad days, he did not have an explanation except to say that as the driver, I should
have controlled things better. He also said, I take responsibility but if Im by myself, youd
never see anything like this. Mr. Hanson said he likes to work, which is why hes nicknamed
Zippy.
[529] Counsel for the city said Mr. Hanson was the only grievor who was truly remorseful.
However, his case still involves among the largest amounts of unproductive time, as well as
dishonesty in the interview, which to his credit he has admitted, the city says. The city says he
still resisted acknowledging some misconduct in his examination-in-chief, such as the stops on
Arvin Avenue. While the city concedes he was among the most honest grievors in his testimony,
that does not mean he ought to be reinstated, the city argues. The union argues that Mr. Hanson
clearly understands the need to be more consistent in his work. It argues that seven years is still
significant seniority (a point made in a case referred to by the union, Re Ontario (Community
Safety) and OPSEU 2005 CanLII 55218 (ON GSB)).
[186]
[530] I agree that Mr. Hanson readily acknowledged every suggestion that his breaks and travel
time were too long. I was, however, perhaps less impressed than the parties with his testimony.
His effusive apologies may have obscured a failure to provide details of events that he may
remember but not wish to disclose. For example, it is still not clear what he was referring to with
his Im not a rat comment in the interview. When asked at the hearing, his answer was lengthy
but incomprehensible, providing no details. I cannot help thinking that he knew more than he
was letting on about the hour-long stop at the yard on Nov. 8 when he was seen pacing around
looking concerned, and was simply not being forthright.
[531] Certainly, the two days Mr. Hanson was observed are notable for the small amount of
time the crew spends actually working, even giving the employees the benefit of the doubt, as I
have, on some periods such as the hour-long stop at the yard after picking up asphalt on Nov. 8.
Further, despite the favourable reviews for his performance at the hearing, his responses in the
interview were no less dishonest than those of most of the other grievors. The city justified the
termination, in my view. Nevertheless, I have little doubt that Mr. Hanson sincerely intends to
make the changes that the city would require to sustain this employment relationship, and, given
the mitigating factors including the workplace culture I have found, the situation therefore
warrants a return to work but without back pay.
[532] Mr. Hanson is to be reinstated as soon as practicable with no loss of seniority but no back
pay. A suspension of 30 work days will be on his record for two years from the date of
reinstatement.
[187]
8. Robert Hanssen
[534] Mr. Hanssen started with the city in November, 2005. He was 35 years old when he
testified in March, 2014. He had seven years seniority at termination. He has completed Grade
12. Mr. Hanssen has always worked out of the Jones Road yard, and has performed a variety of
jobs, including working often on hotbox crews.
[535] In his interview, Mr. Hanssen denied conducting personal business on work time or
having observed it, and denied spending time unproductively or taking extended breaks. He said
he sometimes forgets his hardhat, although it is not clear whether he was referring to wearing it
or just having it with him. In response to a question about the trip to Highland Meats, he replied
that it was on the way to a job site, which was not true. In his evidence, he said the interview
took place after he worked a night shift, and he was tired and had the flu at the time. He
apologized for the answers, which he said were not truthful at the time. The response to the
Highland Meats question was just a guess, he said. Asked why he gave the answers he did, he
said, I have no idea, I made a mistake.
[536] In his evidence, Mr. Hanssen said the 15 minutes to drive to Highland Meats and the 23
minutes spent there was a mistake to go there at that time. He apologized for the lunch break
at the park, saying it was wrong to take that long.
[188]
[537] Mr. Hanssen had various ideas about some of the time spent not working, some of which
were incorrect. For example, he believed the trip outside the Jones yard district was to pick up a
truck at a transmission shop. It appears from documents put in evidence later that a Jones yard
truck was at the transmission shop, but on a different day; instead, this trip was to pick up food at
a store near the transmission shop. He also said the stops on Arvin were for work, before partly
backing away from that statement in cross-examination.
[538] Asked about reinstatement, Mr. Hanssen apologized for the extended breaks and not
being truthful in the interview. He said he guaranteed it would not happen again if he were
reinstated.
[539] In its argument, the city cited some of Mr. Hanssens credibility problems and the lack of
work on Nov. 8. The employer also seemed to argue that Mr. Hanssens explanation of the trip
which he said was to a transmission shop was made up to cover improper travel. I find it is more
likely a mistake, as there was a trip to the transmission shop only a few weeks before.
[540] The union notes that Mr. Hanssen was forthright in his evidence about his untruthful
answers in the interview. It says he made an effort to piece together the day including the
story about the transmission shop and then found it used against him by the city.
[541] In my view, there was significant misconduct by the crew members on Nov. 8, although
it is true they used two tonnes of asphalt. It is also true that Mr. Hanssen was not the driver, but
[189]
this counts for less when, as here, a three-member crew went to three different places all over the
map to pick up lunch. In that situation, all three must take responsibility.
[542] Mr. Hanssen can also be faulted for his dishonest answers in the interview, which he
readily conceded in his testimony. But in that testimony he also hung on to stories designed to
raise the possibility that work was being done when it was not; Mr. Hanssen stuck to those,
including the transmission shop story, even after they had been discredited.
[543] Mr. Hanssen readily apologized. I am not sure he is remorseful as much as he regrets
losing his job. However, like many of the grievors, he knows now that the city is serious about
its expectations and that not following the rules can have severe consequences.
[544] Given the crews activities on Nov. 8 and even giving them the benefit of the doubt, as
I have, on the hour-long stop at the yard early in the day and Mr. Hanssens dishonesty in the
interview, I find there was justification for the employers action. However, in the
circumstances, particularly considering the workplace culture findings as set out above,
I believe that Mr. Hanssen deserves a chance to establish he can meet the citys expectations. I
cannot, however, justify any back pay.
[545] Mr. Hanssen is to be reinstated as soon as practicable with no loss of seniority but no
back pay. A suspension of 30 work days will be on his record for two years from the date of
reinstatement.
[190]
9. Wendy Ritchie
[546] This grievor was part of Crew #3, at paragraph 179 above. She used the surname
Mascola at the time of her termination.
[547] Ms. Ritchie was hired by the city in December, 2002. She was 44 years old when she
testified in April, 2014, with 10 years seniority at the time of termination. She has worked out
of the Shaver and Rymal yards, and had been at Jones Road since 2010. She said she had done a
variety of jobs, including working often on a hotbox crew. She has completed Grade 12.
[548] Ms. Ritchie suffered a workplace injury to her wrist in June, 2011, when she was part of a
ditching crew. She attempted a return to the job the next day but could not work, and was off for
six weeks. She returned without restrictions, but her wrist problems flared up several months
later, and she was prescribed a wrist brace to wear at work. Surgery was discussed, and
eventually scheduled for a date that was after the termination. In August, 2012, her doctor
advised the city she was fit to work with some restrictions on lifting, carrying, pushing and
pulling, and added, current work with sod, weed-whacking shovelling/raking, activities
requiring right hand pressure not possible. The city put her on modified duties, but Ms.
Ritchies doctor wrote a further note in November on the day after the day in question here
saying she can drive. Otherwise no R [right] hand use beyond light grasping/lifting. The city
then amended its restrictions, making them more stringent, a few days after the day in question
here. After her surgery, her claim was accepted by the Workplace Safety and Insurance Board.
[191]
[549] Ms. Ritchie testified she had an issue with being assigned to hotbox crews when she was
on modified duties; she said she was just told to do my best, but felt she was just a nuisance
because she could not do the job. She said she went to her doctor the day after spending four
days in a row on hotbox crews the last day of the four was Nov. 8, the day her crew was
observed because she felt the city was not honouring her restrictions.
[550] In her interview, Ms. Ritchie denied conducting personal business on work time, or
violating the provisions regarding location and duration of breaks. Asked about using time
unproductively, she is recorded as saying no and also, when they are done [the] job, and I
dont know. In her evidence, she said that answer referred to the large asphalt crews, not the
small hotbox crews. She said the answer about breaks was wrong, but added that she is not
working by herself, but rather part of a crew. On cross-examination, she agreed the answer was
untruthful. Also in the interview, she denied disregarding the requirements for wearing personal
protective equipment. At the end of the interview she is recorded as asking why she is being
followed and investigated, and telling the interviewers she would be getting a lawyer. One
interviewer notes, stormed out. At the hearing, she agreed she left abruptly, because I was
being accused of certain things and nothing was explained to me. She said she felt she had a
right to know what was going on.
[551] She agreed she did not mention her wrist injury during the interview. The video shows
her briefly shovelling asphalt.
[192]
[552] In her evidence, Ms. Ritchie acknowledged not using the time efficiently on Nov. 8, and
said the three stops before lunch to pick up food, plus the long lunch break, were not acceptable.
On cross-examination she said she absolutely apologizes for the fact that no work was done
from 11:50 to 1:40, which included the lunch break. She denied, however, suggesting lunch at
the park, contrary to Mr. Hansons evidence. She also agreed that time was used unproductively
at the end of the day.
[553] Asked about reinstatement, Ms. Ritchie said she shouldnt have been working on the
asphalt crew that day in the first place, because of her restrictions. She said she was apologizing
for any wrongdoing but was also sorry she didnt do a proper work refusal, and sorry she let the
city abuse her. She said the union steward didnt represent her properly. If reinstated, she said,
things would be different if a break was extended Id call HR or a supervisor, I would not be
going down with other people, I would look after myself.
[554] The city says that even though Ms. Ritchies general demeanour was angry, there is no
evidence she was forced to work beyond her restrictions, and she has refused to accept any
blame. There is nothing wrong with a supervisor telling her to do the best she could in the
circumstances. The city says she feels she did almost nothing wrong. She denied it was her idea
going to the park, yet Mr. Hansons evidence and documents showing that she was in fact about
to go onto a night shift tend to prove it. If it was her idea, that undermines her statements that
she has no control over what the crew does. While the wearing of hardhats is not a major issue,
the dishonesty about it is, the city says, and here Ms. Ritchie eventually agreed on crossexamination that she was breaking the rule by not wearing it, after saying in her examination-in-
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chief that there was no such rule. Her angry statement when asked about reinstatement should
count against her, the city says. Anger 18 months after termination makes her a poor candidate
for reinstatement, the city argues.
[555] The union says it is questionable whether she should have been on this type of crew,
unless she was only driving. Thus, her anger is understandable, the union argues. Ms. Ritchie
apologized for her answers in the interview, and for the unproductive time. The question of who
suggested lunch in the park is not important, the union argues, since it is agreed they all went.
[556] Much of what is written above regarding Mr. Hanson and Mr. Hanssen applies to Ms.
Ritchie the Nov. 8 day contains some egregious time-wasting. Ms. Ritchies answers in the
interview were similar to those of the other two in the level of dishonesty, with the added
dimension of her abrupt departure. I agree with the city that it is more likely than not that she
suggested the park as the lunch spot, which means that Ms. Ritchie was not forthright in her
testimony and also that she cannot claim to be only a captive of where the rest of the crew is
going.
[557] However, I disagree with the employers statement that she was unapologetic and does
not admit to wrongdoing. In my view, there was an apology, but it was intertwined with her
angry lashing out at the employer, the union, and even the doctors, who she said misdiagnosed
her injury at the start. Like many injured people, she is angry and upset, and emotion may trump
rationality in her statements. However, it is entirely possible that she is right that she should not
have been put on asphalt crews in the fall of 2012. Her restrictions from that August said she
[194]
was not to use her right hand for pushing, pulling, carrying or heavy lifting. It is also entirely
possible that no supervisor expected her to do any shovelling or other heavy work, and that Ms.
Ritchie herself, in her efforts not to be a drag on the rest of the crew, pushed herself beyond her
restrictions. Ms. Ritchie is angry but there may be no one that deserves any blame.
[558] There is no doubt Ms. Ritchie could have presented herself better at the hearing. For
example, she could have apologized for something she and none of the others did, namely
walking out of the interview. None of this, however, disqualifies her from reinstatement, if there
is a good possibility that she can comply with the citys expectations and that the employment
relationship can be restored. Ms. Ritchie has firmly stated her intention to change the way she
does things if reinstated, and, given my findings about workplace culture and other matters
above, I believe she deserves the opportunity to prove it.
[559] Ms. Ritchie therefore, like her co-workers on this Nov. 8 crew, is to be reinstated as soon
as practicable with no loss of seniority but no back pay. A suspension of 30 work days will be
on his record for two years from the date of reinstatement.
10. Larry Rouse
[560] This grievor was a member of Crew #14, at paragraph 307 above.
[561] Mr. Rouse started with the city in August, 1991, at age 36. He had about 21 years
seniority at termination. He worked in various jobs with the city, and moved to the roads section
[195]
in 2007. He was based at Jones Road starting in 2010. He has completed Grade 12. He is
married and has a daughter in university.
[562] Mr. Rouse said he has not been on a hotbox crew very often and on those occasions
usually was a blocker driver, which was his role on Nov. 29, the only day he was under
surveillance. He said he rarely put down any asphalt. At first he said he worked on hotbox
crews 6-10 times a year; when it was pointed out that he had five days in November, 2012 on a
hotbox crew, he said there were probably about another 10 days in 2012. (The employer
produced documentation establishing Mr. Rouse was on hotbox crews 22 days from February to
September of that year, and said it likely totalled more than 40, to which Mr. Rouse said he could
not recall.)
[563] Like almost all the other grievors, Mr. Rouse was interviewed on Jan. 15, 2013.
However, between the time of the interview and the time of the terminations, Mr. Rouse went off
sick with a return date of March 7. For this reason, there are two termination letters for Mr.
Rouse, identical except for the dates, Jan. 28 and March 7, 2013, although it appears Mr. Rouse
received only the second one. It is not necessary to make any findings on this point.
[564] In his interview, Mr. Rouse is recorded as answering a simple no to all the general
questions, and saying he did not recall on the questions specific to Nov. 29. At the hearing,
asked about the question regarding breaks, he said he should have said yes. I probably said it to
cover my ass, he added. He said he apologized if he did it. On cross-examination, he agreed he
knew he was not telling the truth in the interview.
[196]
[565] In his evidence, Mr. Rouse was asked about the 27-minute stop at the arena before the
crew picked up asphalt, and said he had no idea why this stop was made, but said there was no
work-related reason. Union counsel, no doubt fishing for an apology, asked Mr. Rouse what he
thought about the stop. His answer was, if you say I did it, I did. Asked again he said he could
not remember it. Asked a third time, he said maybe someone had to use the washroom.
[566] Regarding the stop from 10:30 until 11:05 at the side of the road, Mr. Rouse said the
crew was probably doing paperwork or letting the hotbox heat up. When it was suggested to him
that it was a break, he said that was possible, and again responded, If I did it, I did it. A
similar exchange took place regarding the 45 minutes it took to get lunch and eat it. Mr. Rouse
said, If it happened, it happened if it happened, Im regretful, what can I say? Referring to
the stop a few doors from his home address, he said, I used to live at #55, thank you for that,
Mr. Smith.
[567] Mr. Rouse said he didnt recall much about long breaks on Nov. 29 when he was
interviewed because it probably was not the only time. He denied that he and Mr. Ionni did
nothing while Mr. Hanson was at the dentist that afternoon, but could not specify what they did.
[568] Asked about reinstatement, he said I apologize for everything thats gone wrong. Ive
lost everythingis there anything else you want to reap from me. (He may have said rip or
take instead of reap. The comment seemed to be directed at no one in particular.) Asked on
[197]
cross-examination what he was apologizing for, he said anything that went wrong, but said there
was nothing specific.
[569] The city argues Mr. Rouse does not even come close to acknowledging wrongdoing. He
shows no rehabilitative potential, the city says.
[570] Mr. Rouse began his examination-in-chief near the end of one hearing day, and continued
the next hearing day. At the start of his second day, Mr. Rouse said he was upset because he had
just lost his cottage after 15 years, as he could not keep up payments. The union said this must
be taken into account in assessing the bulk of Mr. Rouses testimony, which was on the second
day he gave evidence.
[571] The union also contrasts the employers action in terminating Mr. Rouse with the 30-day
suspension given to Mr. Ionni, who was with Mr. Rouse the whole day on Nov. 29, the only
relevant day for both of them. The only distinction is their conduct in the interview, which does
not justify the differential treatment, the union argues. These two grievors did not even answer
the questions much differently, the union says.
[572] I do not agree with this argument, as Mr. Ionni was more honest in his interview, and was
also new to the hotbox crews, so that even answers that were the same as Mr. Rouses might
have been correct whereas Mr. Rouses were not. In any event, the fact that he (and Ms.
Montoya) were new to this type of work was a factor in the employers decision, and a legitimate
one, in my view.
[198]
[573] I accept that Mr. Rouse was upset on his second day of testimony. He gave the strong
impression that he did not care about getting his job back. The quotations above speak for
themselves; even though he used the word apology, it is hard to characterize what Mr. Rouse
said as such. His misconduct on the day in question was serious, and cannot all be laid to the
fact that he was only driving the blocker truck; his visit to his house and the other wasted time
while Mr. Hanson was at the dentist are his own decision.
[574] It is possible Mr. Rouse would have responded differently had he not been upset about
the loss of his cottage. But I can only assess his potential for a successful return to work based
on the answers he gave, not the answers he might have given on another day. In that sense, a
grievors testimony in a termination case where serious misconduct has been established is
somewhat analogous to a job interview; the arbitrator must assess the prospect of whether there
can still be a successful employment relationship, based in large part the grievors responses
during a relatively short appearance at the hearing. In this case, Mr. Rouse missed his chance to
redeem himself. Despite his long seniority, he has not given me the tools that would justify
reinstatement. His grievance is dismissed.
11. Tony Ionni
[575] This grievor was part of Crew #14, at paragraph 307 above. He was given a suspension
of 30 work days, which is now off his record. The only issue left in his grievance is his claim for
compensation for the 30 days.
[199]
[576] Mr. Ionni started working for the city in November, 2005, and had seven years of
seniority at the time the discipline was imposed. He had worked at various jobs, including road
crews. but not hotbox work. Until two weeks before the day in question, he had most recently
worked as a gardener at Gage Park. He said Nov. 29, the day his crew was observed, was the
first time he had performed hotbox work, which seems to be confirmed by other documents.
[577] All the grievors said they had no particular training on hotbox work, but instead learned
from the others on the crews. Mr. Ionni said he found out on the morning of Nov. 29 that he
would be on a hotbox crew that day. He said he did not even have a hardhat at the time, and did
not receive one until he requested it after his suspension was served.
[578] In his interview, Mr. Ionni responded affirmatively to the question on conducting
personal business, saying he had gone to Gage Park to see a supervisor. He said at the hearing
he did not mention Mr. Hansons trip to the dentist or the stop at Mr. Rouses house because he
thought the question was about his own activities (although the question asks also about having
observed personal business being conducted). He said in the interview that he had not
disregarded the work assignment or spent time unproductively, but did say he has taken long
breaks, while sometimes working through and not taking a break at all. At the hearing, he said
he felt the question about disregarding the work assignment related to when he was in charge of
a crew, before he worked on the hotbox; he said he should have answered that he had spent time
unproductively but not disregarded the work assignment.
[200]
[579] Also in his interview, he agreed with a suggestion from one of the interviewers that after
the hotbox was dropped off, the crew members drove around shooting the shit. Told in the
interview that he was observed on Nov. 29 not wearing a hardhat, he is recorded as agreeing with
the statement, saying he doesnt have one, that he didnt know he had to wear one, and that the
other guys werent wearing them.
[580] In his evidence, Mr. Ionni said the stop at the Saltfleet arena for 27 minutes was for a
break, and he added that it was the wrong thing to do before the crew had even picked up
asphalt. He said the long break at the side of the road was uncalled for. He said he didnt know
the details of the job, so I just went along with it. He said the 25-minute stop in front of the
dentists office waiting for Mr. Hanson was wrong and inappropriate.
[581] Mr. Smith cited two reasons Mr. Ionni was suspended rather than terminated: he had only
just started on hotbox crews, and he admitted facts in the interview and expressed remorse.
(There is no indication of remorse in the notes of Mr. Ionnis interview, at which Mr. Smith was
not present.)
[582] In argument, the city acknowledged Mr. Ionni had been truthful in the interview about
killing time on Nov. 29, and that he was apologetic, but said there was still serious misconduct
on that day.
[583] Given that this was Mr. Ionnis first shift ever on a hotbox crew and that he had had no
specific training on the jobs details, I am hard-pressed to find justification for any discipline.
[201]
While his answers in the interview were not perfect, the city acknowledged he was among the
most honest of those interviewed, and some of his answers were geared to the jobs he had done
previously. As a passenger in a truck on his first day with a hotbox crew, I cannot see how he
can be faulted for simply doing what the rest of the crew did, even if he wondered why some of
it was happening. Mr. Smith, who said employees should be notifying management if an
extended break is taken, agreed in his evidence that he would not expect that of an employee
who was new to the job. Perhaps a letter of warning would have been warranted, but at this
point even the suspension is off his record.
[584] In summary, there was no just cause for a suspension. Mr. Ionnis grievance is allowed
and he is to be to be fully compensated for any losses.
12. Walter Halliday
[585] This grievor was a member of Crews #4, #12 and #13, at paragraphs 197, 285 and 298
above.
[586] Mr. Halliday was hired in June, 1992, at the age of 38. He had 20 years seniority at
the time of termination. He has performed numerous jobs, including often on hotbox crews since
moving to the Shaver Road yard in 2006. He has completed Grade 12 and has a college real
estate diploma. He has a son living with him and two other children who are not at home. As
noted above in the passage on Crew #12, he has had Type 1 diabetes since 2000. The city has
accommodated this by allowing him to stop and eat and take insulin when his blood sugar is low.
[202]
[587] Unlike everyone else, Mr. Halliday was not interviewed on Jan. 15, 2013, because he was
at a funeral that day. He was interviewed two days later, but said he had not talked to anyone
who had already been interviewed. Nevertheless, he took a tape recorder and secretly taped the
interview, saying he was confused and scared about why he was being called in. Both parties
produced a transcript based on Mr. Hallidays tape.
[588] In the interview, Mr. Halliday denied conducting personal business or observing it. At
the hearing, he said he did not consider the short stop at the bank to apply. Asked in the
interview about unproductive time, he talked about driving around looking for potholes and
sometimes not finding any. At the hearing, he said he did not know at the time of the interview
that he had been unproductive. In response to the interview question about long breaks, he
talked about his requirement to stop sometimes because of his low blood sugar. At the hearing,
asked why he mentioned only his health issue and not long breaks unrelated to his health, he said
he thought there would be a follow-up question, but there wasnt; he acknowledged the extended
coffee breaks in the morning had nothing to do with his health issue. He said he did not know
why he was being asked, and added that the interview threw me for a loop.
[589] At the end of the interview, Mr. Halliday asked, Why is this even going on? Mr.
Smiths superior, the director of operations for the public works department, replied as follows:
Well, in essence we need to be accountable to Council for the investment weve made in this
recycler so we have applied some resources to observing how this stuff is used. So, a lot of other
issues have been raised which is why (inaudible)so its just part of an overall review slash
[203]
investigation. While this quotation is not particularly relevant to Mr. Hallidays grievance, it
does confirm that the investigation had as its genesis concerns about the recycled asphalt.
[590] In his evidence about the Nov. 15 crew, Mr. Halliday conceded the crew members
overstayed their morning coffee break, which he said was a regular occurrence. Lunch of an
hour is too long, he said, adding that he apologized but its the norm at that yard, and he stays
in the truck waiting for the others, who are in the building with supervisors. He had similar
comments about the Nov. 27 and 28 breaks and lunches. However, he also said there were
routines and you cant change people. He also apologized for other unproductive time, but
also said, this is how it works there.
[591] Asked about reinstatement, Mr. Halliday said he has had a difficult time for the past five
years, and hopes for a second chance. He apologized, saying these things wont happen again
if he gets another chance to finish up his career at the city.
[592] The employer argues that Mr. Halliday came to the interview already knowing what was
going to be asked and was determined to evade the true answers. He used his diabetes as an
excuse to cover up extended breaks, the employer says, when there was no need to hide those
breaks with false times on the pothole sheets if they really were health-related.
[593] The union acknowledges that Mr. Halliday presents one of its toughest cases in this
matter, saying it agreed Mr. Halliday did a poor job of explaining his actions. But it says Mr.
Halliday and the other two crew members recognize that past routines cannot continue. The
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Shaver yard simply had loose practices on a range of issues, such as lunch at the yard and
separation of the trucks.
[594] I have already found that Mr. Halliday intentionally falsified the pothole sheets on the
two relevant days that he completed them, in order to make it appear that more time was spent
working than there actually was. That in itself is likely enough to justify termination and to
minimize the possibility of reinstatement. However, there are additional facts that work against
Mr. Halliday, including the large amount of wasted time on each of the three days he was
observed, his evasive answers at the interview, and his conduct at the hearing. Mr. Halliday
made no real attempt to hide the insincerity of his apologies. He did not acknowledge any
wrongdoing. Most importantly, however, there is no indication of any sincere desire or
willingness to change if he is reinstated. While his age and long seniority might point to
reinstatement in some circumstances, his responses at the hearing have closed the door to that
possibility.
[595] For these reasons, Mr. Hallidays grievance is dismissed.
13. Mario Fasulo
above.
[205]
[597] Mr. Fasulo started working at the city in December, 2002, and was 51 years old when he
testified in May, 2014. He had 10 years seniority at the time of termination. He started at the
Shaver yard in 2005, and alternated between Shaver and Rockton yards some of the time since
then. He performed various jobs, including frequent assignments to hotbox crews. He has also
been involved in the union, as well as with social events at the yard. Mr. Fasulo has completed
Grade 12 and some college courses. He is married with four children, all of whom live at home.
[598] In his interview, Mr. Fasulo gave a different answer from other grievors to the first
general question, which asks whether the employee is aware of the citys expectation that they
provide value, including a full days work. Mr. Fasulo answered yes, like all the others, but is
also recorded as saying, I provide the level of service that the employer approves and that he
works hard 80 per cent of the time. Asked about this at the hearing, he cited mechanical
breakdowns and supervisors organizational skills. He said he did not say 100 per cent because
it was not true. He said he understands the extended breaks in the morning were improper.
[599] Asked in the interview about personal business, he responded that he has had to stop at
home to use the washroom. Regarding breaks, he said that they are stretched to 30 minutes
sometimes, a trade-off for days when the afternoon break isnt taken. He acknowledged that he
probably didnt wear a hardhat when observed. He also made the point that he cannot control the
truck when he is not driving, but that the job gets done. At the hearing, he said some of his
answers addressed jobs he does other than hotbox crews, such as snow plowing, where
sometimes no breaks are taken. In cross-examination he agreed that some of his answers were
misleading.
[206]
[600] In his evidence, Mr. Fasulo said the long breaks at Tim Hortons near the yard in the
morning after the crew picked up asphalt were wrong and should never happen, although he
said there may have been reasons, such as being required to wait for something. He said an hour
for lunch at the yard was excessive, but also said there might have been a reason, such as a
propane problem or a discussion with a supervisor. Addressing early return to the yard in the
afternoon, he said, Its wrong, its the culture, we were never disciplined for it. I wish I could
take it back, I know better. He made similar statements about breaks and lunches, and his stop
at the bank on Nov. 28. He also said that by November, most of the potholes have been taken
care of, so there is a relaxed atmosphere.
[601] Regarding the Nov. 15 pothole sheet, the only one he filled out on the three days in
question, there are only four times listed for completion of jobs. The first is listed as having been
finished at 10:40, while the investigators say the crew left the site at 10:33. Mr. Fasulo said he
estimated the time, and it may have been filled out at the next job site. The second time listed is
10:55, but the investigators say the crew was at the site until 11:08. The third time listed is one
minute off the investigators observations. The last time listed is 1:40, but the investigators
report that the crew left the site 20 minutes earlier. Mr. Fasulo said he was not trying to stretch
the time on the last entry, but only estimating, and hopefully its not too exaggerated. He said
his understanding is that the city is mainly concerned that the job was done, and wants a rough
time frame, not the exact time it was completed.
[207]
[602] While the time entered for the last job raises some suspicion, I am not prepared to
conclude that Mr. Fasulo intentionally falsified the pothole sheet on Nov. 15. I note that one of
the four times is accurate within a minute, whereas another underestimates the amount of time
spent at the site. It is possible to accuse Mr. Fasulo of sloppiness or carelessness in noting times,
but falsification has not been not proven.
[603] Asked about reinstatement, Mr. Fasulo said he was sorry for what happened, and is sick
over it. He said he owes the employer, not the other way around, and that he loves his job and
the people he worked with. He said it will not happen again.
[604] Mr. Fasulos case is particularly difficult, in my view. The employer has not proven all
its allegations against this crew, including its allegation that Mr. Fasulo falsified the pothole
sheet on Nov. 15, that Mr. Fasulo knew about the disconnecting of the GPS unit, or that the
blocker truck was left at Glendale Motors on Nov. 27. However, it has proven a major
dereliction of duty by this crew on each of the three days it was observed. This includes long
breaks, long lunches at the yard, aimless driving without patrolling, and early returns to the yard.
[605] Moreover, I find that Mr. Fasulo was not forthright at the hearing. He was reluctant to
admit misconduct that seemed obvious, based on the crews pattern of conduct on two or three
days. He repeatedly kept falling back on the possibility of other variables to explain long
periods without work, even when there was strong evidence that none of those variables was
present. While there is always a possibility of some alternative explanation when the crew seems
to be doing no work, most of these variables posed by Mr. Fasulo seemed to be remote
[208]
possibilities compared with the strong circumstantial evidence that the crew was simply not
working. As set out above in the description of each of these three days, I do not accept the
evidence about patrolling.
[606] On the other hand, I believe Mr. Fasulos apology was heartfelt. His responses in the
interview, while sometimes misleading, were more accurate and honest than those of many of the
grievors. More importantly, Mr. Fasulo seemed to understand that he was part of a certain
workplace culture and that the culture must change. In my view, the culture argument is even
stronger at the Shaver yard, where Mr. Fasulo worked, than at some of the other locations. I say
this because of the strong evidence that everyone returned to the yard for a long lunch every day;
the presence of the crews, if not the length of time they are there, would be known by
supervisors. The Shaver supervisor who was interviewed made reference to the employees going
to the Tim Hortons near the yard, and supervisors would likely have been aware of the early
return to the yard in the afternoons, as well as the fact that the blocker truck is often left at the
yard when the crew goes to pick up asphalt. Furthermore, Mr. Fasulo was a passenger in the
truck on all three days he was observed, reducing his control over what the crew did.
[607] With some hesitation, I have decided to allow Mr. Fasulo the second chance he
requested. He is to be reinstated as soon as practicable with no loss of seniority but no back pay.
A suspension of 30 work days will be on his record for two years from the date of reinstatement.
[209]
14. Edward Palmateer
above.
[609] Mr. Palmateer started at age 27 in August, 1988, with Hamilton-Wentworth Region. He
had about 24 years of seniority at the time of termination. He has performed various jobs
during that time, and moved to Shaver yard in 2003 or 2004. He has been active in the union for
24 years, including a stint as outside vice-president of the local from 2010 to 2012, when he was
on full-time release from his regular job. Mr. Palmateer said he returned to Shaver in June,
2012, having done very little hotbox crew work since 2005, but began regular hotbox
assignments in the fall of 2012, always driving the blocker truck. He is married with two
teenaged children living at home, and said he has a long-standing medical issue.
[610] In his interview, Mr. Palmateer denied conducting personal business or observing it, and
denied spending time unproductively or taking extended breaks. At the hearing, he said he
should have mentioned the trip to the bank. Asked in the interview about the morning breaks at
Tim Hortons, he acknowledged them, but appears to say they are not extended unless there is a
reason. In his testimony, he said he might have answered differently had he not felt he was
putting other employees at risk with the correct answer. A question about the Copetown stops
says the crew was there for an hour on Nov. 27, and Mr. Palmateer is recorded as saying there
was no way he would be there for an hour. (In fact, they were not there for an hour, unless half
an hour of travel time to and from Copetown is counted.) Again, he said at the hearing he
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responded that way because he wanted to protect the others. He also said in the interview that
the crews work until the assignments are done.
[611] In his evidence, Mr. Palmateer said it was wrong to sit at the Tim Hortons for so long
every morning after picking up asphalt; he said the crew should have abided by the collective
agreement. He also said that there is a lot of down time in November, especially on the hotbox
crews. As for the stops at Copetown, he said it was probably wrongful to take so much time,
adding that he should have spoken up about the abuse of time because he knows better.
[612] Regarding his action in disconnecting the GPS, he said he didnt do it in a malicious
way. He said he was curious to see whether anyone was checking. He said he disconnected the
cable and reconnected it only twice, even though there are five segments of time on Nov. 27 and
28 where there appears to be a malfunction. He described himself as being devilish, wanting
to see what would happen, because there had been much discussion between the union and
employer when the GPS units were installed. He said the city assured the union the GPS would
not be used for disciplinary purposes. Mr. Palmateer said his actions were his alone, and no one
else knew. The devil got the best of me, so I tripped the system to see who was monitoring it,
he said.
[613] Asked if he knew of anyone else who disconnected the GPS, there was a long pause and
he responded that he had never witnessed anyone tampering. Asked whether anyone told him
they did it, he said he had no memory.
[211]
[614] On cross-examination, he said he should not have disconnected the GPS, should not have
taken extended breaks, and should have answered better in the interview. As for the long
lunches, he responded that he understood it was wrong, but cited the long-standing practice.
Asked if he was sorry about it, he said I guess I am. Asked about his contention that he was
patrolling before returning to the yard at the end of the day, he said, it wasnt the best work, but
it was work, I did patrol. He conceded that he should have stayed within the city limits. He
also acknowledged other inefficient use of time, aside from the long breaks and lunches.
[615] Asked about reinstatement, Mr. Palmateer said he did not have a full understanding at the
time of termination why the employer was disciplining him. He said he now understands where
he was wrong, and is sorry for my ignorance. He said he could have and should have been
better, and would change if reinstated. He said he would like the opportunity to prove he can be
a better employee than what was shown on these days.
[616] The union argues that Mr. Palmateer was forthright in his evidence about disconnecting
the GPS, and that he was just testing the system. On Nov. 27, the GPS was connected for a
period when the crew was doing road work for most of the time, so the employers theory that it
was aimed at covering up malingering must be incorrect, the union says. Further, on Nov. 28,
the GPS was on when Mr. Palmateer was driving outside the city. The union, however,
acknowledges that Mr. Palmateers actions with respect to the GPS may still be deserving of
discipline.
[212]
[617] In my view, Mr. Palmateers case has many similarities with Mr. Fasulos. However,
there are some important differences. One obvious one is that Mr. Palmateer disconnected the
GPS. I cannot conclude that the employer has proven on the balance of probabilities that Mr.
Palmateers intention in this action was to cover up malingering; my main reason for this
conclusion is that the times that the GPS was off do coincide with some work being done, and do
not coincide with some of the worst misconduct, including leaving the city limits. It is true that
the GPS was disconnected during some periods when no work was performed, but given this
crews record, any substantial period of the GPS being off would necessarily coincide with a
period of unproductive time. Nevertheless, I regard disconnecting the GPS as serious
misconduct, even if done for a less deceitful reason than the employer believes. It is also
noteworthy that it was revealed only after the union had gone to the expense and trouble of
retaining an expert to counter the employers theory that there had been intentional tampering
with the GPS unit, a theory that the union strongly denied.
[618] Another difference with Mr. Fasulos situation is that Mr. Palmateer was driving a truck.
Although it was a blocker truck, there were times, particularly late in the shift, when he was not
with the asphalt truck and therefore had control over whether he performed work. My
conclusion is that he did nothing or very little during these times, returning to the yard early and
even leaving the city.
[619] I do not accept Mr. Palmateers statement (also made by Mr. Fasulo) that there is little
pothole work in November. It is undermined by the fact that it did not take much effort to use up
the asphalt that was issued. Had the crew spent time looking for more work and not found any
[213]
road defects, this argument might carry some weight; instead, they spent large amounts of time
not even looking for defects.
[620] Mr. Palmateer was considerably less honest in his interview than Mr. Fasulo. He
attributes this to his desire to protect his fellow workers, which I accept to a certain point, given
his long history as a union activist. However, as the city points out, he was also protecting
himself in the process. Mr. Palmateers efforts to protect others led to a refusal in his testimony
to answer questions about GPS tampering.
[621] While Mr. Palmateers comments about reinstatement showed some insight, I have
concluded that he himself believes that it would be difficult to make significant changes in the
way he does his work. In that respect, he is more like Mr. Halliday than he is similar to Mr.
Fasulo.
[622] For these reasons, and despite his lengthy service, his grievance is dismissed.
15. Andrew Stephenson
[623] This grievor was part of Crew #15, at paragraph 319 above. As detailed in the section
about this crew, he was initially terminated, but that was changed to a suspension of 75 work
days after the city was advised that it was mistaken about a key fact.
[214]
[624] Mr. Stephenson started with the city in July, 2006, at the age of 26. At termination, he
had 6 years seniority. He moved from the Wentworth yard to the Dundas yard in 2012. Mr.
Stephenson was classified as a lead hand. Most of his work in 2010 and later was with what is
known as the pond crew, which manages storm water. He said the day in question was only his
third time on a hotbox crew; the other two were earlier the same month. He has completed Grade
12 and some college courses. He went through a serious health issue in 2011, with ongoing
monitoring. Mr. Stephenson testified that he left a new job to come back to the city when he was
offered his job back with the suspension.
[625] Mr. Stephenson said the crew was assigned that morning to clean the hotbox and tools in
the yard for the afternoon. He said they were told to get of a tonne of asphalt so it would be
used up before they got back to the yard. (A receipt produced by the city shows one tonne was
bought.) He said there was some down time after the asphalt ran out and before returning to the
yard, which accounts for the long ride to the community centre and the long stay there.
[626] When interviewed, Mr. Stephenson said, he did not remember that he had been assigned
to the yard for the afternoon. Told in the interview that he had not been observed doing any
work after 11 oclock, he said thats definitely not me, and speculated there might have been a
health and safety meeting that day. Im not the guy doing nothing at 11 a.m., he is recorded as
saying. He denied conducting personal business, or spending time unproductively, saying he had
heard rumours of what other people do, but he would not be some place he shouldnt be. He
denied not wearing his personal protective equipment, although at the hearing he said he was
never told it was required. At the hearing, he said his answers about breaks and unproductive
[215]
time were not truthful, but he has not spent long periods idle. However, he said he did not know
at the time he answered the questions that he was not being truthful because he was so nervous in
the interview.
[627] In his testimony, Mr. Stephenson said he was disciplined because the city thought he
didnt do any work in the afternoon and took an extended break in the morning. He said he did
not consider the extended break a breach of trust. On cross-examination, he was highly
argumentative, saying the city was way out of line for terminating him when the pothole sheet
was wrong by a matter of minutes and he had taken an extended break. He noted that he had
worked the whole afternoon, but that the city had got it wrong.
[628] The city says Mr. Stephenson showed no remorse at all, proving that he learned nothing
from the suspension. He seemed to believe he did nothing wrong, the city said.
[629] The union argues that while Mr. Stephenson was combative at the hearing, he has every
reason to be upset about what happened. The union acknowledges that he gave incorrect
answers in the interview, but says the only thing this crew did wrong on the day in question was
to stop for an extended time at the community centre.
[630] It is clear that Mr. Stephenson, along with Mr. Schiavo, was victimized by a mistake in
the investigation. It was a mistake that was easily avoidable, had the city checked the paperwork
in its possession, or talked to the supervisor. The activity sheet plainly says cleaned tools & hot
box in afternoon. When the city realized its mistake, Mr. Stephenson was put back to work, but
[216]
with apparently no real consideration for what level of discipline was justified. The suspension
was simply set as the time span between the termination and the return to work.
[631] In my opinion, a suspension of 75 work days, an extraordinarily long suspension by most

standards, is nowhere near justified here. It must be remembered that this was only Mr.
Stephensons third day on a hotbox crew. Some of the rules, such as whether the two trucks
must be together, and what to do when the asphalt was finished, may not have been clear to him
at the time. The employer is correct, however, that there was some misconduct, mainly related to
the travel to the community centre and the stop there, and the untruthful answers given in the
interview.
[632] Mr. Stephensons performance at the hearing was not his finest moment, and it is
tempting to say he is lucky he received only a 75-day suspension. The city says his antagonistic
attitude proves that he did not get the message. But his belligerence at the hearing is not directly
relevant to whether the long suspension was justified in the first place. Mr. Stephensons attitude
is understandable, if regrettable. Given the shock he experienced from losing his job through a
mistake, I believe he can be excused for not expressing remorse.
[633] I have concluded that a five-day suspension would have been an appropriate level of
discipline for Mr. Stephenson. The discipline that was imposed is now off his record because of
the sunset clause in the collective agreement. His grievance is allowed in part, and he is to be
compensated for his losses, subject to five days unpaid.
[217]
16. Pat Schiavo
[634] This grievor was part of Crew #15, at paragraph 319 above. Like Mr. Stephenson, he
was initially terminated, but that was changed to a suspension of 75 work days.
[635] Mr. Schiavo started working for Hamilton-Wentworth region at age 17, left sometime
later and returned to work for the city in 2002 at the Dundas yard. He had 10 years seniority at
the time of termination, and was 64 when he testified in June, 2014. He has worked in a number
of jobs and at several yards, and joined the pond crew with Mr. Stephenson in 2010. The pond
crew was transferred to Dundas in the fall of 2012, not long before the relevant day here. He
said he probably had worked fewer than 10 days on a hotbox crew by November, 2012. He has
completed Grade 10.
[636] Like Mr. Stephenson, Mr. Schiavo did not remember when he was interviewed that the
crew had been assigned to do work at the yard on the afternoon of Nov. 29. Asked in his
interview about personal business, he said he asks the supervisor if he has to run an errand. He
denied spending time unproductively, and responded to the question about breaks by saying the
pond crew does not take breaks by which he meant afternoon breaks, he said at the hearing. In
response to the specific questions about Nov. 29, he said he did not recall, and like Mr.
Stephenson, did not recognize the name of the community centre when asked (the city had the
name of the centre wrong in the question.)
[218]
[637] In cross-examination, Mr. Schiavo agreed he did not live up to his own standard of
putting in a full days work. He agreed that his answer about unproductive time was not true, but
said he had not remembered going to the community centre when he answered. However, he
agreed that he knew there had been other time spent unproductively. He also agreed that when
he said he always wore his personal protective equipment, that was not true. (He was not seen
on the Nov. 29 video performing any road work.)
[638] Mr. Schiavo described himself as a good soldier, saying he will go for lunch wherever
the rest of the crew wants to go, including back at the yard. Asked in his evidence about the
second stop at Tim Hortons in the morning, he said he didnt go in, but sat and waited for the
other crew members to come out. As the blocker truck driver, I have to follow them, thats my
job, he said. He said he wasnt sure why they went to the community centre, but he followed
them and said he was apologizing for the extra time spent there. He said he remembers eating
something there; when the crew returned to the yard at noon, he said, he started working
immediately while the others went into the building for lunch.
[639] The city, citing Mr. Schiavos testimony that he learned his lesson, argues that this
establishes that the suspension was appropriate. The union argues that does not mean he agrees
with a 75-day suspension. A letter of warning would be more appropriate, the union says.
[640] Like Mr. Stephenson, Mr. Schiavo was the victim of a mistake by the city, terminated
and then reinstated when the city realized that they had been assigned to work in the yard on the
afternoon on Nov. 29. However, Mr. Schiavos demeanour at the hearing could not have been
[219]
more different from Mr. Stephensons anger and combativeness. In the end, this matters little, as
the main issue is whether there was misconduct justifying a suspension of 75 work days.
[641] In my view, there is even less justification for Mr. Schiavos 75-day suspension than
there is for Mr. Stephensons. The trip to the community centre was unproductive time, but as
the driver of the blocker truck, Mr. Schiavo had little choice but to follow the asphalt truck. In
fact, one of the few things he can be faulted for is not staying with the asphalt truck earlier in the
morning, although there is some evidence that he may have been told to check out his winter
operations routes, having been recently transferred to the Dundas yard. His answers in the
interview were not completely forthright, but not as untruthful as those of most of the grievors.
[642] I find that a two-day suspension is more appropriate. The discipline that was imposed is
now off his record because of the sunset clause in the collective agreement. Mr. Schiavos
grievance is allowed in part, and he is to be compensated for his losses, subject to two days
unpaid.
17. John Micallef
[643] This grievor was part of Crews #2, #5, #10 and #11, at paragraphs 167, 213, 265 and 276
above.
[644] Mr. Micallef began working for Hamilton-Wentworth region at age 23, in November,
1985. He had 27 years seniority at the time of termination. He has performed many jobs,
[220]
working from several locations, including working as a meter reader for 13 years until 2000. He
had been based at Wentworth yard since 2010, where he performed a variety of jobs including
sometimes working on hotbox crews. He has completed Grade 12 and some college.
[645] Mr. Micallef drove the asphalt truck and filled out the pothole sheet on all four days he
was observed in November, 2012. There was a different blocker truck driver each day.
[646] In his interview, Mr. Micallef denied conducting personal business on work time, except
for stopping to buy cigarettes or gum. (His visit to the boat dealership was not specifically put to
him.) He denied spending time unproductively, saying he goes on scouting trips looking for
future work when the asphalt runs out and its too late to get another load. In cross-examination
at the hearing, he agreed that answer was not truthful. He said in the interview he always wears
his personal protective equipment, which he also conceded at the hearing was not truthful. He
denied taking extended breaks, except sometimes in hot conditions. At the hearing, he said that
was a wrong answer the truth is I take long breaks. I got into bad habits, especially when its
not busy. But he added that there are times when he gets no break at all. Mr. Micallef also said
in the interview that he thought the lunch break was 45 minutes. In his testimony, he said he
didnt realize his lunches were even longer than that until he saw the video and the documents.
[647] Mr. Micallefs evidence about the times he entered on the pothole sheets was nothing if
not confusing. His four pothole sheets are more detailed than those filled out by other grievors,
one of them running to 2 pages. They all contain precise times, such as 10:01. Mr. Micallef
said in examination-in-chief that he likes to be precise, and is proud of that, using his own watch
[221]
or the clock in the truck to verify times. Yet a comparison of the pothole sheets with GPS stops
records and with the surveillance reports reveals numerous differences.
[648] On cross-examination, he said the times are written in when the pothole is actually
finished, and that he tries to be accurate. He was referred to the Nov. 8 sheet, where the time for
one pothole completion was listed at 9:03, but the evidence was that the truck had not even
arrived at that location until 9:04. Less than an hour later, the truck left a work site at 9:38, but
the pothole sheet has the crew working there until 9:45. There are other examples, including a
notation on Nov. 28 for work completed at 9:46, right in the middle of a half-hour visit to Tim
Hortons. Asked if he was trying to make it look like the crew worked longer than it did and to
make the breaks look shorter than they were, Mr. Micallef said that was not his intention, and
that there might have been occasions when he filled out the sheet sometime after the work was
done. Other than that, he said he had no explanation.
[649] The city says it is clear Mr. Micallef falsified the pothole sheets to make the long breaks
look shorter, although it makes that allegation with respect to only two of the four days in
question. The union acknowledges that Mr. Micallef did not have much of an explanation for the
incorrect times, but says they are likely just mistakes. It points to several examples where the
crew stayed longer at a work site than indicated on the pothole sheet, suggesting a pattern of
sloppiness rather than a pattern of deception. Mr. Micallefs failed efforts at precision should not
be used against him, the union says.
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[650] For two reasons I find that the city has not proven that Mr. Micallef intentionally falsified
the pothole sheets. First, the pattern of incorrect times is mixed: there are several examples of
incorrect times where Mr. Micallef has understated the amount of time the crew stayed at a work
site. Second, even though all four days on which Mr. Micallef was observed exhibit a similar
pattern of long breaks, long lunches, and finishing work early, there are two days when there are
no incorrect times that appear to exaggerate work time and minimize break time. Had Mr.
Micallef intended to enter incorrect times as a way to deceive the employer, I would have
expected him to have done it on all four days. This is not to say his evidence makes sense; it
does not. But that does not necessarily lead to the conclusion that he intended to falsify the
documents.
[651] Mr. Micallef apologized at the hearing for the long breaks and lunches at the Brampton
yard. Even though he testified he thought 45 minutes for lunch was acceptable, he
acknowledged that some of the lunch breaks exceeded even that, and said he was sorry about it.
He said he should have been out patrolling after running out of asphalt on Nov. 28, instead of
just killing time in the truck parked at a factory near the yard. He said these things would not
happen again if he were reinstated.
[652] Aside from the difficulties with his evidence about the pothole sheets, some of his other
testimony was also unconvincing. Explaining his late arrivals at Rymal, for example, he said the
recycled asphalt is not ready until 8:40, even though there are many examples of it being ready
long before that, including one of Mr. Micallefs own crews leaving Rymal at 8:18. He later
backed away from that statement. On cross-examination, he said he didnt think at the time that
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it was wrong to show up late at Rymal since there is often a lineup there, and asked, is it wrong
to get donuts for the guys? He asserted that he was patrolling after finishing the asphalt, but
agreed later that he likely was not.
[653] Asked about reinstatement, Mr. Micallef said he has worked for the city for 27 years.
Thats all I know, he said. He said he viewed himself as a model employee and took pride in
wearing the city uniform, working for the people. He promised he would answer questions
truthfully and not take excessive breaks and lunches if reinstated.
[654] The city says Mr. Micallef was dishonest in his evidence, trying to get away with
untruthful answers until he was cornered and had to admit the facts. He clearly felt his day was
finished once the asphalt ran out, but still insisted that he was patrolling after that, even though it
was clear he was not, the city says.
[655] The union points out that the Micallef crew of Nov. 14 was the only one to use three
tonnes of asphalt, and was rated with a high achievement. The Micallef crews were also rated
high on two of the other three days. This makes it difficult to understand his termination, the
union argues. The union acknowledges inconsistencies in his testimony, but said it was due to
nervousness. The union says there is no rule against going to a boat store during a break.
[656] Like Mr. Fasulos, I found Mr. Micallefs case one of the more difficult to decide. There
clearly was serious abuse of time on these four days, as well as dishonesty in the interview, in
total more than enough justification for termination. Mr. Micallefs evidence at the hearing did
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not satisfy me that he was forthright or that he was fully sincere when he apologized for
misconduct. The union is far off the mark in its attempt to justify an out-of-the-way trip to a
boat dealership as legitimate break time. Nevertheless, Mr. Micallef has some factors in his
favour that may justify mitigating the penalty of discharge. One obvious one is his high
seniority, 27 years. Another is the fact that he and his crew appeared to be working hard when
they were working, using larger amounts of asphalt than most other crews including the only
three-tonne day seen in this case and were rated with a high achievement on three of Mr.
Micallefs four days.
[657] In addition, Mr. Micallefs case is one that brings the workplace culture argument into
sharp focus. One might ask how it is that a 27-year employee who says he knows that the
collective agreement allows only 20 minutes for lunch can then, in almost the same breath, say
he always thought 45 minutes was acceptable. In my view, there can only be one explanation,
and that is that this is what Mr. Micallef saw happening over many years with no consequences.
Asked about a lunch that went 35 minutes before travel time was even counted, he replied,
when I was working in other yards we took way longer than that and nobody said anything.
Similarly, one might ask how an employee who is confronted with so much evidence of time
spent unproductively can say with a serious face that he viewed himself as a model employee. I
do not discount the possibility of self-deception, but more likely it is not as simple as that.
Looking at how the hotbox crews worked across five different yards, it is possible to see how
Mr. Micallef might view himself as a model employee.
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[658] While I have doubts about Mr. Micallefs ability to make the changes necessary to
sustain a successful employment relationship, I am prepared to give him that opportunity. But
for the reasons expressed above, no back pay is warranted. He is to be reinstated as soon as
practicable with no loss of seniority but no back pay. A suspension of 30 work days will be on
his record for two years from the date of reinstatement.
18. Nicholas Franco
[659] This grievor was part of Crews #2, #5, #10 and #11, at paragraphs 167, 213, 265 and 276
above.
[660] Mr. Franco started working for Hamilton-Wentworth region in April, 1979. With 33
years, he has the most seniority of all 25 grievors. He was 56 years old when he testified in
September, 2014. He has worked at various locations and in various jobs, and was based at
Wentworth yard starting in 1997. He was transferred to the roads section as a labourer in 2006,
and has worked on hotbox crews often since then, particularly outside the winter months. Mr.
Franco has completed Grade 11, and is the main caregiver for his elderly mother, with whom he
lives.
[661] Mr. Franco was observed on four days, all with Mr. Micallef driving the asphalt truck.
Despite his seniority, Mr. Franco never drives either truck. He testified that he does not have a
drivers licence.
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[662] In his interview, Mr. Franco said he had not conducted personal business on work time,
except for picking up cigarettes and drinks. He denied spending time unproductively. At the
hearing he said he was sorry I gave the wrong answer, but I was very nervous. In his
interview, he also denied disregarding personal protective equipment requirements. Asked
about breaks, he said he had not violated expectations, but does take an early morning break
before picking up asphalt. Asked about long lunch breaks at the Brampton yard that were
observed on the four days in question, he is recorded as saying in the notes of one of the
interviewers, Cant explain. Just a labourer. I just sit in truck. When the driver is ready to go
back to work, we go back to work.
[663] At the hearing, he was asked why he didnt speak up and tell the others that lunch was
over, and replied, Im not a person to speak upI dont like causing rifts between people. He
later added that you never know who youre dealing with. On cross-examination, he agreed
that he knew some of his answers in the interview were untruthful, and apologized for being
dishonest.
[664] Mr. Franco testified that a stop at the Italian club for an espresso is part of his routine;
other hotbox crew members, including some of the other grievors, are regulars there also. He
said the espresso is useful in the morning to wake him up and get him ready for work. And he
said the supervisors at Wentworth all know he goes there Ive told them, I need an espresso,
Im bagged in the morning because I take care of my mom. Mr. Franco said he was told it was
all right to stop at the Italian club in the morning, as long as it was quick. He said he usually
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ends up there near the end of the shift also, before going back to the yard. On cross-examination,
he conceded that supervisors never really gave me permission but they knew I go there.
[665] Mr. Franco apologized for the long breaks and long lunches, and the multiple stops
before lunch, saying none of it should have happened. He said he agreed the asphalt should be
used as soon as possible and also has questioned in his own mind why the crew did not go back
for another load when the asphalt was gone at 1 oclock. If I could drive, this wouldnt be
going on, he said. He also agreed that the crew should not stop at two coffee places in the
morning, as they did on Nov. 27, just because one person doesnt want espresso at the Italian
club. He said if he is reinstated he would have to start making espresso at home.
[666] Asked about reinstatement, he said he was sorry for what he did, and would like to get his
job back so he could support his mother and get his pension.
[667] The city points to flaws in Mr. Francos evidence, but acknowledges he was more
forthright than some of the grievors. While he is not a driver, it is clear the stops at the start and
end of the day at the Italian club are at his request, the city argues. The union argues that Mr.
Franco was sincere in his apologies and desire to change.
[668] As Mr. Franco was on the same crew as Mr. Micallef for the four relevant days, some of
my comments above in the section on Mr. Micallef are applicable. In particular, it is worth
noting that these crews were given high achievement ratings on three of the four days, and were
the only crew to have used three tonnes of asphalt in one day.
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[669] While large amounts of time were wasted on the four days in question and Mr. Franco is
not blameless in this, and while he was not truthful in his interview, there are a number of factors
that justify mitigating the penalty of discharge. His lengthy service of 33 years cannot be
ignored, nor can his personal circumstances. Also relevant is the fact that he never drives any of
the trucks. I accept his evidence that he is not assertive about telling his co-workers to get back
to work. I also accept that his espresso habit, while not necessarily condoned by management,
was known and tolerated, at least to some extent. I do not agree with the city that his apologies
were insincere; Mr. Franco may not be able to articulate his remorse as smoothly as some, but I
believe his feelings are genuine. I also note that he was one of the more forthright grievors at the
hearing. While his testimony was not perfect, he acknowledged wrongdoing when the incidents
were put to him, and unlike some, he did not claim to have misunderstood the questions in the
interview.
[670] In my view, while the facts justify the employers action in terminated Mr. Franco, the
circumstances dictate mitigating the penalty by reinstating him. I am also of the opinion that it
would be unfair, given my conclusions above and in particular his honesty in his evidence to
have him bear the entire economic burden of the more than two years since the termination. He
is to be reinstated as soon as practicable with no loss of seniority and with partial back pay
equivalent to one year at the rate he was paid at the time of termination. A suspension of 30
work days will be on his record for six months from the date of reinstatement.
[229]
19. Daniel Gauthier
[671] This grievor was a part of Crew #5, at paragraph 213 above.
[672] Mr. Gauthier started with the city in June, 2005, at age 43. He had 7 years seniority at
the time of termination. He has worked out of the Wentworth yard since about 2008, and said he
worked on hotbox crews a couple of times a month starting in 2010, usually when a regular crew
member was absent. He usually drove the blocker truck. He is married with three grown
children.
[673] In his interview, Mr. Gauthier is recorded as saying he provides a full days work every
day. In cross-examination, he agreed that statement was not true, but only after he said that if
there was work, he did it, when there wasnt, he didnt. He said in the interview he has not
spent time unproductively, adding that with GPS, you cant do it anymore. At the hearing, he
said he should have answered yes, and then said he may not have understood the question. He
added that he should have talked about unproductive time at the end of the day; he said the
interview was overwhelming and he had just finished an overnight shift.
[674] Also in the interview, Mr. Gauthier said he takes 15-minute breaks and then is back on
the job. At the hearing, he said that was a correct answer, except for his days on hotbox crews.
He told the interviewers he could not remember Nov. 14, but when asked about the lunchtime
break at the Brampton yard, he is recorded as saying it must be a mistake because I never go to
the Brampton yard. (It is an agreed fact that Mr. Gauthiers truck was there for more than 35
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minutes on Nov. 14.) At the hearing, he said Nov. 14 was the only day he went to Brampton
yard. The city produced documents that it says show Mr. Gauthiers asphalt crew stopping at
Brampton yard at lunchtime on two days in August, 2012, and on Nov. 15. Mr. Gauthier said he
had no explanation, other than that he might have been sent there to pick up something. The
union raised questions about these documents. I find that there was at least one other lunchtime
stop at Brampton, and probably two.
[675] He also is recorded as saying at the interview that we are totally busy when we are doing
asphaltI am always working, I cant sit still. Regarding personal protective equipment, he
said he does not wear his hardhat for work in alleys.
[676] Mr. Gauthier said in his testimony that he regarded the asphalt truck driver as being in
charge of the crew, by virtue of seniority. Regarding the long stop at the Brampton yard on Nov.
14, he said he and Mr. Franco had already finished lunch and were just waiting for Mr. Micallef
to move the asphalt truck. He said he didnt know what Mr. Micallef was doing, but said it was
wrong, and unusual, to take that long a break. The blocker truck he was driving cannot move
until the asphalt truck does, he said. On cross-examination, he said it was not common to take an
extended lunch break, and said he could not recall any long lunch breaks at Leaside Park in the
east end or at the waterfront parks in the north end. The city produced documentation of three
extended lunchtime stops breaks in the summer and fall of 2012 when Mr. Gauthiers asphalt
crews stopped at those parks and at the Chedoke yard. Mr. Gauthier said those were possibly
long lunches but he did not recall.
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[677] When the trucks separated, and Mr. Micallef drove to Starbucks, he said he likely drove
Mr. Franco to the Italian club and then would have just parked the truck on a side street near the
yard, waiting until 2:30. There were always other trucks there doing the same thing, he said.
They didnt give us enough work to begin with, he said. In cross-examination, he agreed there
was plenty of work, but said his issue is that few Hansens are assigned. He said he cannot work
when the crew has run out of asphalt, although he agreed that on the day in question, there was
no work done for periods of time even when there was asphalt. He said his time parked in the
afternoon before returning to the yard could be considered work time rather than break time
because he was available if a supervisor had called on the radio.
[678] He apologized for the long lunch, but also said asphalt is the hardest job out there.
[679] Asked about reinstatement, Mr. Gauthier said that if he got his job back he wouldnt let
the rest of the crew just sit around, but would call a supervisor. Before, he said, he was afraid to
get into a confrontation with co-workers. I should have done it then, but I thought I would be a
rat if I did it. Now I wouldnt care; I didnt think Id lose my job. If the asphalt ran out at 1:30
he said he would call the supervisor and ask if there was more work. He said he is a good
worker, but fell into the trap of how things were done, which he said was not proper or right.
[680] The city acknowledges that Mr. Gauthier is not one of the grievors who wasted the most
time, but says his actions still warrant discharge. The city points to his particularly poor
performance in the interview, and his incorrect assertions in his evidence, for example that he did
not go to the Brampton yard except on this day. In addition, he agreed that there is work at the
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end of the day, but that he simply didnt bother doing it, instead sitting idle before going back to
the yard.
[681] The union said Mr. Gauthier understands what needs to change in the workplace if he is
reinstated, despite the flaws in his evidence. The union notes that the only day Mr. Gauthier was
observed he was on the one crew that used three tonnes of asphalt. Mr. Gauthier is seen on video
doing some of the road work, not common to all the blocker drivers. The union argues that Mr.
Gauthier was caught in a situation that he did not create and did not know how to change. His
testimony and some of his interview answers are more characterized as mistakes rather than lies,
the union says, acknowledging that in his interview he was trying to say he worked harder than
he was, while in his testimony he contradicted that by saying the city doesnt assign enough
work.
[682] While Mr. Gauthiers actions on the one day he was observed contained some
misconduct, such as sitting idle near the yard in the afternoon, it would not itself have justified
termination, particularly since he was the blocker driver. But Mr. Gauthier did not do himself
any favours in his interview, where he was forceful and specific in his dishonesty. He
compounded the problem at the hearing, where some of his testimony was simply not credible.
[683] However, it was clear from his demeanour that the termination has had a major impact on
Mr. Gauthier. He appears motivated to make changes if he is returned to work. I believe he is
sincere in his desire to comply with the rules if he is reinstated, and, given my findings on the
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workplace culture, he deserves that opportunity. However, his lack of forthrightness at the
hearing has excluded him in my view from consideration for back pay.
[684] Mr. Gauthier is to be reinstated as soon as practicable with no loss of seniority but no
back pay. A suspension of 30 work days will be on his record for two years from the date of
reinstatement.
20. Frank Czajkowski
[686] Mr. Czajkowski began working for the city in July, 1990, at age 27. He had 22 years of
seniority at the time of termination. He has worked in a variety of jobs and had been based at
Wentworth yard from 2009. He is married with a grown son. He has completed Grade 11.
[687] Mr. Czajkowski said he has had permanent restrictions on his work related to a back
injury since 1996, and performed only driving jobs, including on the blocker truck, which he said
he did only about a dozen times since 2009. (The city disputes this estimate and documents show
that a dozen is a low estimate, but that his work as a blocker driver was not frequent.)
[688] Mr. Czajkowskis case differs from all the others in two important respects.
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[689] First, he is the only grievor who was not interviewed. Related to this, his termination
letter, dated Feb. 7, 2013 (about a week after the other grievors termination letters), notes that he
had been absent from work since Jan. 4. The letter goes on to say that the absence was originally
related to a workers compensation claim, but that the claim was denied and the absence was
then characterized as an unpaid leave. The letter says the city requested that Mr. Czajkowski
report to work on Jan. 29, and said it was able to accommodate restrictions set out in a functional
abilities form he had provided, but that Mr. Czajkowski failed to show up. The letter says a
meeting with Mr. Czajkowski was scheduled for Jan. 31 to discuss this situation, and also to
discuss the asphalt program (presumably with the same questions the other grievors were asked.)
The letter states that Mr. Czajkowski was considered absent without leave starting on Jan. 29.
His failure to attend the interview is not being treated as a disciplinary issue.
[690] Second, he is the only grievor for whom the city is relying on previous discipline. I have
been advised that there are two instances of discipline that have been grieved, aside from the
termination at issue here. I have been given no further details. The parties have agreed that I
will decide the appropriate discipline in this grievance as if the two other matters did not exist,
and that if my decision is anything less than termination without compensation, I will remain
seized regarding the earlier grievances. In that event, I will hear those grievances and render a
final decision based on this case and the other matters.
[691] There is a third difference that appears not to be significant. Mr. Czajkowskis
termination letter cites one ground of discipline unique to him, related to his attendance record.
It says his attendance was being monitored for six months starting in June, 2012, and that he was
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required to make improvements or else be terminated. The letter goes on to say that he was
absent twice for a total of eight days during the six-month period, and that therefore he had not
made the required improvements. This attendance issue was not referred to by either party in
evidence or argument.
[692] In his evidence about Nov. 28, Mr. Czajkowski acknowledged the half-hour break at Tim
Hortons was a little longer than normal, and apologized, but speculated he may have had a
headache or backache and said there had never been issues before with him taking a break when
it was needed. He said the long lunch break, which he took separate from the rest of the crew,
should not have happened. He said he was waiting for a call from Mr. Micallef to return to
work. He also said there is give and take on break times, since sometimes, such as after a
winter storm, the workers get no breaks. He said he has learned his lesson.
[693] There was evidence related to Mr. Czajkowskis absence after Jan. 4 that is not
mentioned in the termination letter. Originally, he was told to report to work on Jan. 28. On that
day, he forwarded to the city a functional abilities form filled out filled out by his chiropractor,
which said he was unable to return to work at that time. On the same day, the city told him to
return to work the next day. Mr. Czajkowski said he did not do so, because his chiropractor said
he was unable to work.
[694] With regard to the meeting scheduled for Jan. 31, Mr. Czajkowski said the letter advising
him of the meeting came to him by registered mail when he was out on Jan. 30. By the time he
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picked up the letter at the post office the next morning, it was past the meeting time. He called
the union to talk about it, he said.
[695] Asked on cross-examination whether he was remorseful about the extended break at Tim
Hortons, he replied that maybe he should have called in. Asked about the lunch break, he said he
could have done things differently. Asked if he felt there was serious misconduct, he first
replied that he had taken breaks before, then he agreed. Regarding the time from 1:46 to 2:30, he
said he was working because he left to go back to the yard at 2 oclock. Mr. Czajkowski said he
has never had problems returning to the yard before 2:30 in the winter, even though he agreed
that employees were not supposed to return until 2:30.
[696] Asked about reinstatement, he said he apologized for the long breaks, but said
termination was not warranted. He said he would like to finish his career with the city.
[697] The city says Mr. Czajkowski, not having been interviewed, had his chance to admit
misconduct at the hearing and he failed to do so, or when he did, it was reluctantly or with
caveats. He is an untruthful witness, the city says, citing his statements that he was patrolling at
the start and end of the day.
[698] The union says this is the citys thinnest case of the 21 terminated grievors, as Mr.
Czajkowski was not interviewed. He was followed for only one day, and has high seniority.
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[699] I agree with the city that Mr. Czajkowski did not show much remorse and that the
remorse he did show did not seem particularly genuine. However, this is a case where I have
concluded that the city did not have just cause for discharge based only on his misconduct on
Nov. 28. I have reached this conclusion for the following reasons. First, unlike all the others, he
was not interviewed; based on his evidence in the hearing, one might speculate that he would
have been dishonest in the interview, like most of the others, but dishonesty in the interview is a
significant part of the discipline here for the other discharged grievors, and it is not present in
Mr. Czajkowskis case. Second, he was a blocker truck driver on the only day his crew was
observed. This, as I have said above, diminishes his responsibility for some of the misconduct
on that day, including the long lunch break. Third, contrary to the statement in the termination
letter, there is no evidence that he was observed without his personal protective equipment on the
day in question. Fourth, while I have concluded he was not patrolling when he said he was, and
that the trucks should have been together in the morning, these in themselves are not enough to
warrant the termination of a 22-year employee.
[700] The termination of Mr. Czajkowski based on his activity on Nov. 28 was not justified. I
would partially allow this grievance, substitute a suspension for the discharge, and order
compensation for the rest of the time he has been off. I have not specified the length of the
suspension, as my overall ruling in Mr. Czajkowskis case is subject to his two other grievances
pending.
[238]
21. Brian Merritt
[701] This grievor was a part of Crew #5, at paragraph 213 above.
[702] Mr. Merritt started working for the city in January, 2007. He had six years of seniority at
the time of termination, and was 52 when he testified in October, 2014. He had worked at other
yards, alternating between the roads and sanitation sections for three years before being
transferred to the Wentworth yard a week before he was observed on Nov. 14. He has completed
Grade 12. He testified that he was engaged to be married at the time of termination but had to
cancel the wedding.
[703] In his interview, Mr. Merritt denied spending time unproductively or taking extended
breaks. At the hearing, he said his answer about breaks was improper, that he was in shock
and confused when he answered, and that he apologized for answering wrong. The answer
about unproductive time was incorrect also, he said. But he reacted strongly in crossexamination with a suggestion that he was lying, saying he could not remember because he was
in shock. I dont appreciate you calling me a liar and I dont appreciate you trying to humiliate
me. I made it clear that I dont recall. The answers were incorrect but they werent lies.
[704] Asked in the interview about extended breaks on Nov. 14, he said the senior person on
the crew decides on breaks. When he was told the crew was observed working only 2 hours
that day, he is recorded as saying that is a false statement, that he is trying to move up the
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ladder, that he holds the record for the most cold-patch asphalt, and that he is the furthest thing
from lazy.
[705] Mr. Merritt said he had been on hotbox crews before being transferred to the Wentworth
yard, but not for about three years; he said he was given no training or instruction at Wentworth.
He said he had no idea that wearing a hardhat was compulsory; had he known, he said, he
certainly would have worn it. He apologized for not wearing it, and said he knows more now.
He also apologized for the long lunch break, and promised it would never happen again, saying
he would remind the driver that this is why he was terminated.
[706] Asked at the hearing about the drive across town to the Starbucks coffee shop after the
asphalt was finished, Mr. Merritt said, we were more or less killing time by patrolling. Mr.
Merritt said the second he gets back into the truck after he finishes road work, he is patrolling.
Im more important than the driver, because he has to drive. Asked on cross-examination
whether he was apologizing for all the time from 1:28, when the last pothole was done, until he
got back to the yard at 2:39, except for a 15-minute break, he said no, because patrolling was
done, and only about 15 or 20 minutes was spent improperly.
[707] Asked about reinstatement, Mr. Merritt said he was raised on a farm where he worked all
day. He called himself reliable and dependable, saying he had integrity, pride and leadership
skills. He said he was asking the city to think about that, while apologizing for the time theft and
promising it will not happen again.
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[708] The city acknowledged that, like Mr. Gauthier, Mr. Merritt was at the lower end of
misconduct of the terminated grievors. However, it says he lied in the interview and at the
hearing, on issues large and small.
[709] The union acknowledged that Mr. Merritt did not seem to appreciate the nature of the
hearing, using it as a forum to air his views about his alleged mistreatment, but said this showed
only how upset he was by the termination. While he was mistaken about a number of issues, it
was not intentional, the union argues.
[710] Mr. Merritt, like Mr. Gauthier, was observed only on Nov. 14 as part of the crew with
Mr. Franco and Mr. Micallef, who drove the asphalt truck. This is the sole crew in this case that
used three tonnes of asphalt, as the union pointed out in its submissions on each of the four of the
crew members. The union argues that Mr. Merritts and Mr. Gauthiers cases are similar.
[711] While many of the facts are similar as between Mr. Merritt and Mr. Gauthier, I do not
agree their cases are similar. The key difference is Mr. Merritts presentation at the hearing.
While Mr. Gauthiers evidence had flaws, he was willing to concede in areas where the evidence
was clear, and he was convincing when he said he was determined to make changes if reinstated.
On both counts, Mr. Merritt was vastly different.
[712] Near the outset of his cross-examination, Mr. Merritt declared that he would not be
intimidated. What that meant, it turned out, was that he was going to stick to his story, no matter
how implausible or how much it differed from the evidence given by the other members of the
[241]
same crew. There were a number of facts that he claimed to remember about Nov. 14 that were
either incorrect or unlikely to have been remembered.
[713] Mr. Merritt seemed to view the hearing as an opportunity to proclaim his industriousness
and importance rather than deliver any believable assurances that he was prepared to change.
His apologies were particularly unconvincing, thrown in as an aside to his many statements
about how he is always patrolling. He addressed Mr. Smith directly with his views about the
termination, which may have made him feel better but did not assist the process.
[714] I was particularly struck by Mr. Merritts hostile reaction to the suggestion that he knew
in the interview that the answers he was giving were untruthful. In my view, he was well aware
that he was not telling the truth, and unlike many other grievors, he would not admit it,
apparently feeling instead that the best defence was a good offence.
[715] As noted above, one of key purposes of hearing a grievors testimony in a case such as
this is to enable the arbitrator to make an assessment of the prospect of a successful employment
relationship if reinstatement is ordered. On that question, Mr. Merritt has given me no
confidence. I note also that he is one of the grievors with the lowest seniority.
[716] For the reasons above, Mr. Merritts grievance is dismissed.
[242]
22. George Burdis
[718] Mr. Burdis started work with the city in January, 2004, and had nine years of seniority
when he was terminated. He was 61 years old when he testified in October, 2014. He has
worked at various yards in various jobs, and had been based at Wentworth since 2006. He said
he was off with a workplace injury for two years ending in April, 2011, and had been in the
roads section since then. He has worked often on hotbox crews, both driving blocker trucks as
he was on Nov. 27, the relevant date here and performing the road work. Mr. Burdis is
married; his wife is retired and his two daughters are no longer living at home. He has
completed Grade 12.
[719] In his interview, Mr. Burdis denied spending time unproductively or having observed it.
At the hearing, he said, the answer is wrong, sorry I said that. I was wrong that day, I made a
mistake. He had a similar comment about his interview answer that he had not taken extended
breaks. On cross-examination, he agreed he was untruthful in the interview.
[720] Asked about the long trip to the Brampton yard for lunch and the long break there, Mr.
Burdis said he has no control over where the others go, so he goes where they want to go. He
also said it was wrong, and I made a mistake. On cross-examination he said the lunch break
was very wrong and apologized for not staying with the asphalt truck at the start of the day,
and for the long break in the morning.
[243]
[721] Asked about reinstatement, Mr. Burdis said he was sorry he took the long breaks, and that
he enjoyed working for the city, meeting people and dealing with the public. He said people still
ask him about the situation, including questions about the crews supposedly stealing asphalt.
[722] The city said that in its view, Mr. Brudis was closest to the line of all the discharged
grievors. It said Mr. Burdis was trying to be honest in his testimony but did not show much
remorse. He was not truthful in the interview, and minimized his misconduct in his evidence, the
city argued.
[723] In my view, there was misconduct on Mr. Burdiss part, but it was not serious enough to
justify termination. He was the driver of the blocker truck for the one day he was observed. As
such, his responsibility for one of the most serious issues that day, the long and out-of-the-way
lunch break, is significantly diminished. I accept his evidence that he had no real choice but to
stick with the asphalt truck. He should have accompanied the asphalt truck to the Rymal yard
early in the morning, but it is worth noting that he was at the first job site before the asphalt
truck, so his actions did not cause any delay. He can also be faulted for wasting time at the end
of the day, after the asphalt was finished. He was not forthright in the interview.
[724] I have concluded that only a suspension was justified in Mr. Burdiss case. He is to be
reinstated as soon as practicable with full compensation subject to an unpaid suspension of 30
work days, which will be removed from his record six months after reinstatement provided there
is no justified discipline prior to that point.
[244]
23. Raimondo Di Filippo
[725] This grievor was part of Crews #6, #7 and #8, at paragraphs 226, 233 and 244 above.
[726] Mr. Di Filippo has been with the city since July, 1989. He had 23 years of seniority
when he was terminated. He was 64 years old when he testified in October, 2014. He has been
based at the Wentworth yard since 2001, where he has done mainly asphalt work, including often
on the large crews. He is married with two children, one of whom lives with him. He testified
with the assistance of an Italian interpreter, even though it was apparent he understood the
questions. He has lived in Canada for more than 40 years. Mr. Di Filippo has an elementary
school education. He took a keen interest in the hearing; I believe he was the only grievor to
attend for all 13 days of final submissions.
[727] Mr. Di Filippo said he worked with Mr. Passa about 95 per cent of the time, and also with
the same asphalt truck driver, whose grievance was settled. The three crews with Mr. Di Filippo
and Mr. Passa, two of which also include Ms. Montoya, are the only ones where the asphalt truck
driver was not a grievor; therefore, for these three grievors, I was without testimony from the
crew member who normally exercises the most control over the crews movements.
[728] As is obvious from the three days Mr. Di Filippo was observed, he and Mr. Passa have a
routine of stopping at the Italian club, not far from the yard, near the start of the shift and near
the end. I need my espresso, Mr. Di Filippo explained. Without that I have no life. On one
[245]
of the three days, one stop was instead at the Sicilia Bakery around the corner from the Italian
club, where espresso is also served. Mr. Di Filippo rode in Mr. Passas blocker truck for those
visits; in the morning, they then met the other truck where the asphalt is being loaded, usually at
Coco. Mr. Di Filippo then moved to the asphalt truck, which on the first day took a break at a
McDonalds after picking up the asphalt. Mr. Di Filippo said he has no interest in McDonalds
or Tim Hortons just espresso so he sat in the truck and waited. At the hearing,
acknowledged that it was a second break but said, What am I supposed to do? Wherever the
driver goes, I have to go.
[729] In his interview, Mr. Di Filippo said he has not spent time unproductively, describing
himself as not a troublemaker. At the hearing, he said he understood the question the wrong
way, and didnt know what I had to answer, yes or no, I wasnt sure. He said he has not
disregarded the personal protective equipment requirements, nor has he taken extended breaks.
He is recorded as saying he pushes the guys to get jobs done as fast as possible. At the
hearing, he said, I didnt answer the question well and didnt know whether to say yes or no.
Asked in the interview about specific days, he responded that hes not in charge, and just goes
where the truck goes.
[730] In his testimony he also said he couldnt figure out what they were talking about at the
interview, because of the questions about dumping asphalt. He said he understood some but not
all the questions. On cross-examination, he said, I understood but I didnt know what they were
talking about. He later conceded that his answer about the breaks was untruthful and he knew
that at the time.
[246]
[731] Asked at the hearing about lunches, he apologized and said, its not right what we did.
He said he would have to stop doing that if he went back to work. He said the long lunches were
not all the time, once in a while. He also apologized for doing no work after about 1:35 one
day, and 1:45 and 1:55 on the others, and for hanging around Coco on Nov. 15 talking to other
crews.
[732] He testified that he wore his hardhat 80 per cent of the time. When asked on crossexamination whether it was just a coincidence he was not wearing it on any of the three days he
was observed, he replied, I dont understand, myself; sometimes the devil follows me. It was a
bad month. Then he said it was more like 85 per cent compliance.
[733] Asked about reinstatement, he requested to read a letter that he had written in Italian. It
said he thanked the city for giving him the opportunity and honour of working for 24 years; that
he is sorry for the mistakes he has made and offers his apologies; that his mistakes have hurt him
and his family; and that he is hoping to get back to work and promises not to repeat the same
mistakes.
[734] The city argues that Mr. Di Filippos termination should be upheld because of his serious
and repeated time theft, combined with his dishonesty in the interview, which then carried over
to his evidence. The city also said he was not very remorseful, despite his apologies.
[247]
[735] Mr. Di Filippos testimony was peppered with exaggerations, some of them largely
innocent: sometimes it takes two to three hours to get asphalt at Coco; he does a hundred jobs a
day; he apologizes a million times; he wears his hardhat 85 per cent of the time; he works with
Mr. Passa 95 per cent of the time. Other exaggerations were not so innocent. He said, for
example, he did not understand at least some of the questions in the interview. I have concluded
that this is not correct; he understood the questions, he answered them untruthfully, and he was
not forthright at the hearing when he said he did not understand the questions.
[736] However, despite some wasted time on each of the three days, and his dishonesty in the
interview, I have concluded that the city was not justified in terminating Mr. Di Filippos
employment in the first place. My reasons are as follows. First, his visits to the Italian club at
the start of the day were harmless on the three days in question, since the blocker truck joined the
asphalt truck at Coco and no delays were caused. Second, he was not driving the asphalt truck,
so he cannot be held completely responsible for some of the wasted time, such as the Nov. 15
break at McDonalds; I accept his evidence that he almost always brings his own lunch, so there
was no wasted time picking up his food. Third, the city seemed to have no regard for his age or
high seniority when deciding on termination. Fourth, much of what the city relied on for his
termination turned out to be mistaken or unproven; examples include the time spent on Sandlyn
Court on Nov. 15; the statement in his termination letter that he was observed not engaged in any
work after 1:15, when in fact the crew did work at City Hall until about 1:45 (there is video of
this work, but no reference to it in the investigators report); and the first trip to the Chedoke
yard. Fifth, while Mr. Di Filippo and Mr. Passa can be criticized for their frequent visits to the
Italian club and particularly for their long stays in the afternoon, it is hard to believe that such a
[248]
set routine would be unknown around the yard, including among the supervisors (Mr. Passa
testified that the morning visits were well known to the supervisors).
[737] I have concluded that Mr. Di Filippos misconduct warranted only a serious suspension.
He is to be reinstated as soon as practicable with full compensation subject to an unpaid
suspension of 30 work days, which will be removed from his record six months after
24. Franco Passa
[738] This grievor was part of Crews #6, #7 and #8 above, along with Mr. Di Filippo, at
paragraphs 226, 233 and 244 above.
[739] Mr. Passa began working for the city in February, 1987. He was 60 years old when he
testified in November, 2014, and had nearly 26 years seniority when he was terminated. He has
performed various jobs, including in the sanitation section and driving snow plows. He had been
based at the Wentworth yard since 2001. He said he often drove the blocker truck on hotbox
crews in 2012. Mr. Passa has completed Grade 11. He is married with two children, one of
whom lives at home.
[740] In his interview, Mr. Passa denied spending unproductive time and taking extended
breaks. At the hearing, he said, I answered it wrong, I should have said yes. I didnt answer
[249]
truthfully; now I know what I did wrong. He also said in his testimony, what I did was what
we all do.
[741] In the interview, Mr. Passa was asked about only one of the three days, Nov. 27, and said
he was surprised to see the termination letter with three dates listed. He also expressed surprise
that the letter said he was observed not engaged in any work beyond 10:22 on Nov. 27 (Mr. Di
Filippos letter alleges only an incomplete full work day that day. This was the day the
investigators lost the crew at 10:30.) Mr. Passa said he knew something was not right, so he
went to Coco and said the staff there found the invoice for the second load of asphalt.
[742] In his evidence Mr. Passa agreed he should have been wearing a hardhat. He said he had
to stay with the asphalt truck when it stopped at McDonalds even though he had already had a
morning break at the Italian club since the blocker trucks job is to stay with the asphalt truck.
He agreed the afternoon breaks were too long, but said the visits to the club are a social occasion.
He agreed there is work that could have been done even after the asphalt is used up late in the
shift. He also agreed the lunch breaks were excessive. He apologized for the long lunches, long
breaks and other wasted time.
[743] Asked about reinstatement, Mr. Passa apologized for the long breaks and said he would
do better if he were returned to work. He noted that there had been suggestions that the
employees had been stealing, and that caused problems with his neighbours and made me feel
low. He said he loved to work for the city and would like to finish his career there.
[250]
[744] The city points to the extended breaks and the dishonesty in the interview, arguing that
Mr. Passas termination should be upheld.
[745] I found Mr. Passa to be a generally honest witness, despite his admitted untruthfulness in
the interview. He did not jump immediately to the perfunctory apologies that many of his
colleagues did. In any event, for many of the same reasons given above in the section on Mr. Di
Filippo, I find that the city did not have justification to terminate Mr. Passas employment. He
was the blocker truck driver on all three relevant days, and had little control over where the
asphalt truck went and how long it stayed there. I accept his evidence that he was asked by the
asphalt truck driver to take the other crew members to pick up food. The level of misconduct
and dishonesty in the interview justified a significant suspension, but not the termination of an
employee with nearly 26 years of seniority. Again, I refer back to my findings on workplace
culture as a mitigating factor.
[746] Mr. Passa is to be reinstated as soon as practicable with full compensation subject to an
unpaid suspension of 30 work days, which will be removed from his record six months after
25. Kristin Montoya
[747] This grievor was part of Crews #7 and #8 above, along with Mr. Di Filippo and Mr.
Passa, at paragraphs 233 and 244 above. She was suspended for 30 work days.
[251]
[748] Ms. Montoya began working for the city roughly six months before the discipline was
imposed. She was 41 when hired. She has a bachelor of science degree in agriculture, and was
hired as a gardener. She was transferred to Wentworth yard for winter operations on Nov. 20, a
week before the first of the two days at issue here. She was pregnant at the time, and had her
baby in July, 2013, returning to work in June, 2014, after her maternity leave, as a gardener.
[749] Ms. Montoya said her first day on an asphalt crew was Nov. 23. She said she had no
experience with asphalt before that. She said there was no training or instruction, only an
indication from the supervisor that the other crew members would show her what to do. She
said she had no understanding about when she should wear her hardhat.
[750] In her interview, she was asked questions about Nov. 15, which was not a day she was on
an asphalt crew, even though the questions assumed that to be the case. Ms. Montoya said she
was training to get her DZ drivers licence that week, but did not remember that when
interviewed. The interviewers did not ask about Nov. 28, one of the two days that is cited in the
termination letter.
[751] Asked in the interview about unproductive time, she is recorded as saying, If I did it was
as a passenger in the vehicle as a labourer. She denied violating expectations regarding breaks.
At the hearing she said that answer was mistaken. I was scared during the questioning, so I
equivocated; I didnt remember specific incidents. She also said she was new to the crew and
didnt really know the others. I didnt feel comfortable saying, Lets get on the road. I didnt
ask a lot of questions, I just went along with what the crew was doing.
[252]
[752] Ms. Montoya, unlike most grievors, remembered much about the days she was observed.
Her recollection helped fill in some of the details recounted in the sections above relating to
Crews #7 and #8.
[753] Ms. Montoya conceded the breaks and lunches were excessive, and said she was very
sorry for it. She said she has learned since then to be very vigilant.
[754] Mr. Smith testified that Ms. Montoya (like Mr. Ionni) was suspended instead of
terminated because the city looked at the fact that they had just been transferred into the roads
section for winter operations, and that she had expressed remorse in the interview (Mr. Smith
was not involved in the interview of Ms. Montoya, and there is no indication in the two sets of
notes that she expressed any remorse.)
[755] The city argues the 30-day suspension should stand because there was still significant
time theft on these two shifts.
[756] Beyond a written warning for her one untruthful answer in the interview, I cannot see any
reason to discipline an employee who has been newly assigned to an asphalt crew, is told to
watch what everyone else does, and then does exactly that. The employers assumption in
suspending Ms. Montoya must be that she should not have done something that she did, or that
she did something she should not have done. But on the days in question, she simply followed
the lead of the rest of the crew, as one would expect of an employee who was transferred to the
[253]
roads section only a few days before. As noted above, the suspension has been removed from
her disciplinary record by virtue of the sunset clause in the collective agreement.
[757] Ms. Montoyas grievance is allowed and she is to be to be fully compensated for any
losses.
SECTION F CONCLUSION AND SUMMARY
[758] It has been said that in a disciplinary case where the grievors conduct is being judged,
the arbitrator must also necessarily judge the employer. Here, the large body of evidence reflects
serious failures by the grievors, but also by the city.
[759] The grievors failures are obvious from the details of their work days set out above. They
were sent out from the yards each day, trusted to use their work time productively doing road
repairs that help ensure the safety of all the citys residents. But they breached that trust by
taking long breaks, by extending their lunch periods, and by spending time travelling to locations
that were unnecessary and out of the way. Some conducted personal errands on work time,
others sat idle for substantial periods of time, or drove aimlessly to kill time. When asked about
these activities by their employer, virtually all of them were untruthful in their responses, some
to a greater extent than others.
[254]
[760] The citys failures are less apparent, because they mainly reflect an attitude of
indifference to some issues that should have been obvious such as crews returning to yards for
lunch when they were supposedly prohibited from doing so and other matters that would have
been plainly evident had anyone taken the opportunity to examine how the asphalt crews did
their jobs. The citys laxity fostered a culture of low expectations. With most of their activities
out of sight of the supervisors, the employees on the asphalt hotbox crews took advantage. They
understood that they did not have to do much in order to satisfy their supervisors and managers.
If issued one tonne of asphalt, they stretched their breaks and lunches, and made the asphalt last
until it was too late to pick up another load.
[761] The supervisors processed the crews documentation, and as detailed above, these 16
crews were rated as having performed to expectations or even, in the case of several, at a level
of high achievement. This culture of low expectations is the only explanation for how crews
from five different yards who were put under surveillance in November, 2012, displayed a
strikingly similar pattern in the manner they performed their work. It is the only explanation for
how every single employee put under surveillance was found to be violating provisions about
breaks, lunches, and other work rules. It is the only explanation for the complete absence of
evidence that any of the grievors was ever told they were not doing enough work.
[762] The employees must shoulder much of the blame and the consequences for their actions.
Just because a rule is not enforced does not mean it is not still a rule. As a result, I have upheld
some level of disciplinary action against all 25 grievors with the exception of the two who were
[255]
initially only suspended because they had been caught in the surveillance on their first days on
hotbox crews.
[763] With regard to the 21 grievors whose employment was terminated, I have concluded that
in a few cases, the city had justified discipline in the form of a significant suspension, but not
termination. Those grievors are entitled to back pay because their discharges were unjustified in
the first place. In most cases, however, my view is that the city was justified in determining that
the combination of the large amount of time wasted on the days in question and the dishonesty in
the interviews warranted termination.
[764] But that is not the end of the story. Termination must be considered a last resort,
ultimately to be upheld by the arbitrator only where the employment relationship cannot be
rehabilitated. This is particularly true where the grievor is a long-service employee with no
disciplinary record, indicative of a stable and viable employment relationship that can often be
revived. In the case of the majority of the grievors whose misconduct was serious, the main
question in my mind was whether it appeared that they were prepared to escape the old culture
the one the city has apparently decided must end and to embrace a more productive way of
working. In my view, there is nothing incompatible about the city changing the culture and
having most of these grievors back at work.
[765] Those grievors who, in my opinion, did not indicate sincerely that they were prepared to
change will not be going back to work for the city. The grievors who are prepared to change will
be reinstated, but generally with no back pay, reflecting a balancing of their misconduct, on the
[256]
one hand including their activities on the days in question, and their dishonesty when
questioned and, on the other hand, the reality of the workplace culture, summed up neatly by
one grievor, Franco Passa, when he said, what I did was what we all do. That culture which
is a failure of management is the main factor in my decision to give most grievors another
chance. An additional consideration in my decision to reinstate numerous grievors was the very
high seniority of many. Some of these employees have spent all or most of their working lives
with the city, and deserve an opportunity to show they can work productively, now that the city
has said the rules will be enforced. But in a case where employees were paid a full day and were
found to have been unproductive for significant amounts of it, it would send the wrong message
to award back pay in most cases. Those grievors who are being ordered reinstated without back
pay will have spent more than two years without being paid by the city; they will clearly
understand the risk of further misconduct. They will also have substantial discipline on their
records, and so they must work quickly to regain the trust of their employer or they will likely
not have another chance.
[766] The grievors expressed willingness to change their habits, in my view, outweighs their
often tepid expressions of remorse. Many of the grievors were torn between their understanding
that they had done wrong, but also their understanding that what they did was in keeping with
what had become the norms and expectations of the workplace. For that reason, I believe
heartfelt expressions of remorse were not crucial in this case to the question of reinstatement.
[767] It is important to emphasize again what the investigation did not find, as I believe there
are misconceptions in the community about what prompted these terminations, something
[257]
alluded to by some of the grievors. The employer was responding to rumours that the crews may
have been dumping the asphalt from the citys asphalt recycling machine, then buying asphalt
from commercial producers, with the possibility of money improperly changing hands. Its
investigation found no evidence at all of this, and there was no evidence of it in the hearing
before me. Despite this lack of evidence, the city handed the matter over to the police, in a move
that was well publicized in Hamilton. Its reasons for doing so is beyond the scope of this matter,
but, again, it is important to note that the police found no evidence of criminal wrongdoing. (I
also note that in general I have dismissed the citys allegations that the grievors acted in a
fraudulent manner by falsifying time sheets and other documentation.) As stated earlier in this
decision, these grievors are not angels, but neither are they criminals.
[768] As the city argued, members of the public who ultimately pay these workers are entitled
to good value for their money. It is my hope that this decision will assist in that goals, as well as
provide some justice for those grievors who I believe were treated unfairly and those whose
terminations were justified but who merit a chance to show they can change.
[769] Having assessed the evidence both individually and as a whole, I have reached the
following conclusions on these grievances, which are explained in more detail above in the
sections related to each grievor:
1.
David Snape reinstated, no back pay, 30-day suspension on record.
2.
Ming Yong reinstated, no back pay, 30-day suspension on record.
3.
Manuel Tabone reinstated, no back pay, 30-day suspension on record.
[258]
4.
Alan Schuster reinstated with back pay except for 30-day suspension.
5.
Fernando Matias grievance dismissed.
6.
Paul Cabral grievance dismissed.
7.
John Hanson reinstated, no back pay, 30-day suspension on record.
8.
Robert Hanssen reinstated, no back pay, 30-day suspension on record.
9.
Wendy Ritchie (Mascola) reinstated, no back pay, 30-day suspension on record.
10.
Larry Rouse grievance dismissed.
11.
Tony Ionni grievance allowed, to be compensated for 30-day suspension.
12.
Walter Halliday grievance dismissed.
13.
Mario Fasulo reinstated, no back pay, 30-day suspension on record.
14.
Edward Palmateer grievance dismissed.
15.
Andrew Stephenson 75-day suspension changed to 5 days, compensation for remainder.
16.
Pat Schiavo 75-day suspension changed to two days, with compensation for remainder.
17.
John Micallef reinstated, no back pay, 30-day suspension on record.
18.
Nicholas Franco reinstated, back pay of one year, 30-day suspension on record.
19.
Daniel Gauthier reinstated, no back pay, 30-day suspension on record.
20.
Frank Czajkowski reinstated with back pay, subject to suspension and decision
on remaining grievances.
21.
Brian Merritt grievance dismissed.
22.
George Burdis reinstated with back pay, subject to a 30-day suspension.
23.
Raimondo Di Filippo reinstated with back pay, subject to a 30-day suspension.
24.
Franco Passa reinstated with back pay, subject to a 30-day suspension.
25.
Kristin Montoya grievance allowed, to be compensated for 30-day suspension.
[259]
[770] I will remain seized in the event of any difficulties implementing this award, and for the
remainder of Mr. Czajkowskis grievances.
___________________
Lorne Slotnick, Arbitrator
April 29, 2015

City of Hamilton CUPE Roads AWARD

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City of Hamilton CUPE Roads AWARD

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IN THE MATTER OF AN ARBITRATION

Canadian Union of Public Employees

Grievances re: Road Crew Terminations and Suspensions

Lorne Slotnick, Arbitrator

SECTION B RULINGS ON GENERAL AND PRELIMINARY MATTERS

SECTION E THE GRIEVORS

dishonesty and evasiveness in the interviews.

falsifying time sheets and other documentation.

failure to wear hardhats while working.

Without commenting now on the allegations, it would be an understatement to say that

3. Conduct of the Hearing

4. Nature of the Evidence

The bulk of the evidence in the case consisted of the following:

Private investigators reports. Teams of private investigators followed randomly

Supervisor and superintendent interview notes. Supervisors at the yards are

5. Structure of this Award

general conclusions from the evidence.

6. Background and agreed facts

Municipality of Hamilton-Wentworth. This takes in former municipalities such as Ancaster,

first line of supervisors are members of CUPE Local 1041.

The grievors worked in the Roads

SECTION B RULINGS ON GENERAL AND PRELIMINARY MATTERS

1. Unions delay argument

The unions argument can be summarized as follows: the 14 calendar-day period

Decision on delay argument

I find it unnecessary to rule on whether the language of Article 15.1 is mandatory or

2. Union argument on procedural fairness, conduct of the investigation

3. Union argument on Aerocide

This portion of the union argument is therefore dismissed.

4. Burden of proof and evidence

In my view, the allegation of acting in a fraudulent manner by falsifying time sheets

10. Trucks staying together

11. Time spent in the yard

SECTION C THE CREWS

Crew #1 David Snape, Manuel Tabone, Ming Yong, Nov. 8, 2012

The stop at McDonalds was a break, not a washroom stop.

No hardhats were worn.

No one was observed wearing a hardhat while doing road work.

[218] Road work was performed without hardhats.

The lunch break was excessive, lasting more than 45 minutes.

The grievors took an excessively long afternoon break.

Neither of the grievors is seen on video wearing a hardhat.

Crew #7 Raimondo Di Filippo, Franco Passa, Kristin Montoya, one non-grievor,

The stop at the Chedoke yard was likely legitimate.

Hardhats were not worn.

Crew #8 Raimondo Di Filippo, Franco Passa, Kristin Montoya, one non-grievor,

Hardhats were not worn.

Hardhats were not worn by either grievor.

The trip to the boat dealership was improper.

Mr. Franco was not wearing a hardhat for road work.

[291] No one on the video was wearing hardhats.

The morning break was excessively long at 34 minutes.

The morning break was excessively long at 29 minutes.

No hardhats were worn during road work.

The crew took an extra break in the morning.

Mr. Stephenson did not wear a hardhat during road work.

SECTION D GROUNDS FOR DISCIPLINE

2. Dishonesty during the Investigation

3. Dishonesty at the Hearing, Credibility, and Remorse