Canadian Employment Law Today

6 | July 17, 2019 Cases and Trends Canadian HR Reporter, 2019 tors to not go to the transfer station before 1 p.m., even if they finished their route earlier — the station didn't open until 1 p.m. How- ever, if operators were able to dump their load and return to the city yard before 3 p.m. — but not before 2 p.m. — they were permit- ted to leave. e worker started working for the city in 1997 and began working with his latest part- ner in April 2016. According to the worker, they shared the driving duties fairly equally, but his partner claimed the worker drove most of the time. Both agreed the worker always drove the vehicle after they finished their collection route. Stopped off at local business ey usually finished their collection route in time to dump their load at the transfer station shortly after 1 p.m. Since it was only about a 10-minute drive back to the yard, they were usually done by 1:15 p.m. As a re- sult, about three times a week they stopped at the Italian Club — a social club in Ham- ilton — where the worker would park and shut off the vehicle, use the washroom, and "have a coffee or buy a drink and get some- thing for my partner." His co-worker usually stayed in the vehicle while he did this, and after about 10 minutes they went the trans- fer station to dump the garbage. e worker's partner said later he had a feeling they shouldn't be going to the Ital- ian Club since it wasn't on their route, but he didn't say anything to the worker because he was a relatively new employee and the work- er had been around for a while. On July 5, 2016, the city received a com- plaint that a waste collection vehicle had been coming to the Italian Club every day and people were bringing their garbage to give to the operator for disposal. e indi- vidual felt this was preferential treatment for those people. He provided the truck and license plate numbers, which corresponded to the worker's vehicle. A few days later, on July 9, the maintenance department took a look at the worker's col- lection vehicle because of a problem with the ignition system. ey discovered a wiring problem in the vehicle's Drivecam — a cam- era mounted on the windshield of the vehicle that faces both forward and backward into the cab and saves footage when there is a hard stop, hard turn, or collision — that had caused a short circuit in the ignition. It ap- peared that the camera was functional but the main power supply cable had been torn out and pushed back in. On July 19, the superintendent and man- ager of waste collection checked out the Ital- ian Club location. ey observed the worker and his partner arrive in the waste collection vehicle. e worker reversed his vehicle into the parking lot beside the club without us- ing a safety spotter — a requirement under the city's standard operating procedure, on which the worker had been trained — de- spite the fact his partner was trained in per- forming the spotter function. ey also saw the worker go into the Ital- ian Club and emerge about five minutes later. e worker emptied a garbage can that was at the side of the building into the vehicle, but no one else came by to give him garbage. e next day, they checked the Drivecam footage from the worker's vehicle and found it had stopped working on the worker's shift while he was at the transfer station waiting for it to open. ey interviewed the worker's partner, who said while they were waiting, the worker suddenly said "f--- this camera" and pulled out the power cable. He then shoved the wires back in and told the partner not to say anything about it. e partner also said the worker didn't ask him to be a spotter when they backed in beside the Italian Club — where they went "every day." e city gave the partner a disciplinary verbal warning for not reporting the Drive- cam incident — a safety violation. He wasn't formally disciplined for failing to act as a spotter, but his other warning mentioned it. e worker was suspended with pay pend- ing an investigative interview. Worker's story changed At his interview, the worker initially said he only stopped at the Italian Club on Mon- days, Tuesdays, and Wednesdays. However, he then admitted he had gone there on 20 to 30 ursdays over the past year. He ex- plained that he liked to use the washroom facilities there because they were clean and it was on the way back to the yard. e work- er also acknowledged that he took garbage from the club on the day he was observed and had done so on a few other occasions — which he followed up by saying it was one to two times per week — but had never seen any citizens placing garbage in his vehicle and he had never accepted any. He said he was "just a nice guy" and would throw some of the club's garbage in his vehicle because he was using their facilities. e worker claimed he had never been told not to pick up garbage off his route, but he had received a written warning in De- cember 2009 for just that — for which he had refused to acknowledge receipt. He also said when he backed up into the spot beside the Italian Club, he and his partner never discussed having a spotter, but since he was driving it was his partner's job. e worker also denied damaging the camera, but faced with the evidence and his partner's account, he acknowledged that he damaged it on purpose and told his partner not to tell anyone because he knew he would get into trouble. He also explained that he had been under stress as his mother had de- mentia and he was her primary caregiver. On July 21, 2016, the city terminated the worker's employment for violating the safe operating procedures by reversing a garbage collection vehicle without using a spotter, collecting garbage off-route at a private busi- ness, deliberately damaging the Drivecam, and deliberately misleading the investiga- tion into these activities. e arbitrator accepted that the worker was under stress at the time he damaged the Drivecam, but he knew it was wrong and lied about it to city management when they interviewed him about it. It was a conscious decision to hide his misconduct because he knew he would be disciplined for it, and his remorse when he finally acknowledged it was for the loss of his job, not his miscon- duct, said the arbitrator. e arbitrator found that the worker's fail- ure to use a spotter when reversing his ve- hicle at the Italian Club was "a serious safety violation" under the city's standard operat- ing procedure that he committed nearly every day, especially since the worker had been trained on the procedure and the city's safety issues. While his partner was aware of the precedure and shared responsibility, the driver of the vehicle was primarily respon- sible for the safe operation of the vehicle. e arbitrator also accepted that the worker visited the Italian Club every day and it was likely he accepted garbage from the club and others who knew he would be there. e worker may not have received any "concrete benefit" from this practice and just wanted to be "a nice guy," but it's likely his stature in the Italian Club community im- proved because of it, said the arbitrator. "I am satisfied that the (worker) knew or ought to have known that picking up off- route garbage at the Italian Club was pro- hibited, and that he consciously disobeyed that prohibition," the arbitrator said. "I can discern no excuse for this insubordination." e arbitrator determined that the city had just cause to terminate the worker's em- ployment. For more information see: • Hamilton (City) and CUPE, Local 5167 (Losak), Re (March 19, 2019), G.T. Sur- dykowski – Arb. (Ont. Arb.). « from GARBAGE on page 1 The worker's failure to use a spotter when reversing was a serious safety violation. Worker first denied but then acknowledged damaging camera

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