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]

A W A R D

CONTENTS (with paragraph numbers)

SECTION A INTRODUCTION

1. Brief overview1 2. The Grievors 8 3. Conduct of the Hearing17 4. Nature of the Evidence20 5. Structure of this Award21 6. 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 Crew #12 Fasulo, Palmateer, Halliday, Nov. 27, 2012285 Crew #13 Fasulo, Palmateer, Halliday, Nov. 28, 2012298

[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. Time Theft340 2. Dishonesty during the Investigation354 3. Dishonesty at the Hearing, Credibility and Remorse...371 4. Personal Responsibility and Crew Dynamics383 5. Condonation and Workplace Culture396 6. Progressive Discipline 436 7. 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.

dishonesty and evasiveness in the interviews.

falsifying time sheets and other documentation.

failure to wear hardhats while working.

[7] 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 GPS-

equipped 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 pre-

printed 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 Petro-

Canada 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

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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

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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

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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

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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

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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

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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-the-

way 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,

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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.

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[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,