Canadian HR Reporter

CANADIAN HR REPORTER November 14, 2016 FEATURES 25 quently the flights were changed to different dates, to higher and more expensive booking codes, with no collection of the fare in- crease due to the company. Fur- ther, change fees were waived." 'No evidence' motion e four workers filed a "no evi- dence" motion alleging previous testimony from Salvato-Pinto "amounts to hearsay — double, triple, quadruple hearsay if ad- mitted for the truth of the content contained therein. ey were not business records." e actual files that proved any alleged malfeasance were purged from United's ticketing system, which is standard practice for the company. But United countered the "no evidence" motion by saying hear- say was acceptable evidence in an arbitration hearing. Arbitrator weighs in Arbitrator Stan Lanyon agreed and he also ruled printouts pro- duced during the investigation were to be considered valid busi- ness documents. "ese ticket transactions are records that were written, record- ed and stored, contemporaneous- ly with the events they described, and in United's usual and ordinary course of its business. During the investigation, they were simply reproduced and printed." e four employees further ar- gued that Salvato-Pinto was not an expert witness, so she could not be relied upon to testify as to the inner workings of the complicated United ticketing system, which involved three separate computer systems (one is for accounting, one is an auditor's coupon, and the last one houses the passenger's name and flight details). Salvato-Pinto had 20 years of experience with United and had trained ticket takers but her testi- mony was based on her investiga- tion, so she was not considered an expert witness, said Lanyon. "However... (Salvato-)Pinto did provide the sufficient evidence that is capable of supporting a finding that the computer system at United, and the Apollo reser- vation system, were at all material times operating properly." e hearsay argument was dis- missed by Lanyon. "Further, contrary to the claims of the grievors, Ms. Pinto did not show any animosity towards them; rather, she remained consistent in her evidentiary task, which was to interpret these documents. She did so with both a professional and calm demeanour throughout her testimony. "Her evidence does not amount to multiple levels of hearsay; rath- er, these documents fall within the exception to the hearsay rule under Sections 30 and 31 of the Canada Evidence Act, and there- fore can be admitted for the truth of their contents." In the motion, the employees argued United management, in effect, accused them of com- mitting fraud, which is a serious crime and, therefore, standards of evidence were not sufficient to initiate a termination. But the employees were fired because of a violation of a specific rule, not fraud, said Lanyon. "The grievors' terminations were based on the violation of rule two (that) prohibits employ- ees from deviating from the estab- lished rules and procedures with respect to providing travel servic- es for themselves, their family and friends, and their co-workers." e four ex-employees were advised by the arbitrator to re- turn for a future hearing and bring forth any supporting evidence. "e grievors have the ability to re-argue the issues they have raised in their no-evidence mo- tion," said Lanyon. Unfair labour practice As an aside, a 2014 unfair labour practice hearing before the Can- ada Industrial Relations Board awarded the four workers $15,000 when it found the union IAMAW didn't adequately represent them after the three other workers were reinstated. "In this case, as already sum- marized, the complainants were never told 'why' their griev- ances would not be taken to arbitration, other than with a boilerplate conclusion that their grievances would not be success- ful. Similarly, despite retaining le- gal counsel to send a lengthy de- mand letter, the IAMAW never responded," said Graham Clarke, vice-chairperson of the board. A series of emails was pro- duced between Tania Canniff, IAMAW general chairperson, and the four workers in which they repeatedly requested infor- mation on why their case was not going to be fought any further by the union. In July 2011, Canniff took com- passionate leave from her job but she remained as the main point person for the case. e three other workers were reinstated by United on Aug. 17. However, a Sept. 2 email requesting further details on why the three were reinstated, and not the other four, was not answered by Canniff, who by then had returned to work. A Nov. 2 letter from counsel representing the four workers was sent to IAMAW and subsequently ignored. e ruling was considered ex- ceptional in a number of ways. "e board's policy is generally not to award costs," said Clarke. "(However), the board has con- cerns when a trade union fails to tell a member its reasons for not proceeding to arbitration. How can a union member realistically file an internal union appeal if he/ she has no idea why the union de- cided not to go to arbitration?" In addition, the board ruled that any time limits specified in the collective agreement to re- quest arbitration were waived. Reference: United Airlines and IA- MAW, District Lodge 140. Employees fired for rule violation, not fraud DISCOUNT < pg. 23

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