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IN THE MATTER OF AN ARBITRATION

B E T W E E N: RECEIVED AUG l.O 2015

-· .· .·

CITY OF TORONTO Ministry of Labour DRS - ARBITRATION SERVICES

(The "Employer")

- AND-

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79

(The "Union")

AND IN THE MATTER OF THE GRIEVANCES OF NICK MARINARO

David K. L. Starkman

APPEARANCES FOR THE EMPLOYER

Jeffrey Board Anne Musacchio Hector Moreno

APPEARANCES FOR THE UNION

Ken Stuebing Don Stiles

Arbitrator

Counsel Labour Relations Consultant Manager, Road Operations

Counsel National Representative

A Hearing in this matter was held on January 14, 15, 16, 22, February 5, 6, April 29, September 4, 5, 10, 16, October 7, 8, 21, 22, 28, 30, 31, 2014, January 7 , and May 1, 2015 at Toronto, Ontario ;::-/ .·' rf-1.,. xrd(C::Q3 ? /f__ )·nF· U { .-/-( ·

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DECISION

This decision concerns four grievances filed on behalf of the griever, Nick Marinaro.

The first grievance, No. C 10-02-2035, alleged that the Employer, in November, 2009,

did not have just cause to issues the griever a Written Reprimand for inappropriate use,

of IT resources. The second grievance, No. C11-11-0648, alleged that the Employer

did not have just cause to issue the griever a ten day suspension in October, 2011 for

Conflict of Interest. The third grievance, No. C12-09-0420, alleged that the Employer

did not have just cause to terminate the griever's employment in August, 2012. The

fourth grievance, No. C12-08-0381, alleged that the Employer failed to maintain a

harassment and discrimination free workplace.

The griever had been employed by the City for twenty-three years and had worked as a

Municipal Construction Inspector (MCI) since 2001. The discharge letter provided, in

part, as follows:

August 27, 2012

Dear Nick:

This letter serves to advise you of the results of the City's investigation into Utility Cut Repair contracts that you were responsible for in 2010 and 2011, which were brought to the City's attention based on a complaint received by the City of Toronto's Fraud and Waste Hotline program and by

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Transportation Services.

Investigatory meetings were held on May 9, May 17, May 18, May 22, and June 19, 2012. During each of the investigation meetings you were provided with union representation and given an opportunity to respond to the various allegations and concerns with your work. You were provided an opportunity to examine numerous cost sheets, review your field book entries, and attend a number of street locations (with Union representation present). You examined work completed in the field and checked and confirmed your work measurements against cost sheet entries submitted by you under 2010 and 2011 contracts for which you were responsible as a Municipal Construction Inspector (MCI).

In 2010 you were responsible for overseeing utility cut repair work completed by A & F Di Carlo Construction Inc. under Contract No. 1 ONY-1 06TU in Ward 16. After conducting our investigation, we have concluded the following: ( 1) you approved cost sheets where no work was performed, (2) you authorized payment for work that had already been paid out, and (3) you submitted cost sheets containing incorrect measurements (quantities and dimensions) and recording incorrect materials.

In 2011 you were responsible for overseeing the work of construction company Ferpac Paving Inc. under Contract No. 11 NY-1 01TU in Wards 9 & 15. During the investigation process you were questioned about the work you performed to oversee this contract. After conducting our investigation, we have concluded that: (1) you approved work performed in Ward 21 by the Contractor outside of your assigned Wards 9 & 15, (2) you submitted cost sheets where you provided incorrect measurements for this work (quantities and dimensions), and (3) you approved payments where no work was performed.

Your role as a MCI is defined as a person authorized by the City to carry out observations and inspections and take samples as prescribed by the Toronto Municipal Code. Expectations of you in this positon have been clearly outlined to you in training throughout your career, including direction provided within the Contract Inspection Manual.

In your position, your responsibilities include: ensuring that measurements be taken of the work performed by contractors to ensure the City is charged the correCt amount, keeping accurate records of where and what work is performed by contractors to ensure the correct payment for such work, and ensuring that the City is correctly charged for only that work that has been performed.

The City's investigation has revealed that you have failed to meet these requirements in numerous examples over the course of these two

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contracts for which you were responsible. After conducting an extensive review of your work, your actions have revealed a pattern of not adhering to departmental expectations for inspecting, quantifying, and measuring work performed by Contractors. You have not fulfilled your duties to accurately review, approve and issues cost sheets. You have repeatedly signed off on elevated or erroneous quantities or payment codes f,or payments to contractors. The result of your actions have exposed the City to financial liability for overbilling utility companies.

Despite being provided with extensive opportunity to explain your actions, you have not provided any legitimate explanation for why you failed to properly carry out your duties in accordance with your training, departmental expectations and your extensive experience. The MCI positon involves a high level of trust and responsibility. After reviewing· your explanations and responses throughout the City's investigation, including numerous examples where your explanations for your actions are inconsistent and contradictory, it has been determined that you were evasive and dishonest during the City's investigation into these matters. It has further been determined that you have wilfully breached your obligation to carry out you employment duties accurately, faithfully and to the best of your ability.

In considering appropriate discipline for your actions, your past performance, and discipline on file for breaching the City's Conflict of Interest and Fraud and Waste Policies on or about October 12, 2011 has been taken into consideration.

After giving serious and thoughtful consideration to the issues above, you are hereby discharged, with cause, from your employment with the City of Toronto effective immediately ....

Mr. Bruce Shaw, the grievor's immediate supervisor, testified that he came to the

Inspection Group in 2000 or 2001 and be.came a Municipal Construction Inspector

(MCI) in April, 2005 and became a Supervisor in July, 2011. He stated that the job

duties of an MCI in the summer months is to supervise the work of outside contractors

performing work involving roads and bridge repair work, and contracts for grass cutting

and general maintenance.

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In particular Mr. Shaw testified about Utility Cut contracts. He stated that Utilities, such

as Gas Companies, Hydro, Cable, and Water Services, from time to time, have the

need to repair or upgrade their service. They apply to the City to get a permit for work

to be done in the road allowance, and the City grants permits sometimes with

restrictions. The Utility has six months from getting the permit to complete the work and

is responsible for filling the hole up to grade after the work is completed. The City does

the final resurfacing of the road to insure that it is done to City standards. Various Utility

Cut contracts are awarded throughout the City which conform to the City's Wards. The

MCI is responsible for monitoring the work of the contractor to insure that the work is

done according to the contract, and is done in a timely manner.

In April/May of each year the MCI goes to each location to be re-surfaced and marks

out the limits of the cut with white paint and compiles a list for the contractor. There is a

pre-construction meeting with the contractor. It is the responsibility of the MCI to

monitor and inspect all permanent repairs to ensure the proper material is being used in

compliance with City standards. According to Mr. Shaw, in order to carry out their

responsibilities, the MCI should be measuring the length, width and depth of the cut and

then submitting a cost sheet indicating the address, permit number, the dimensions of

the work done on each Utility cut and the material used.

The cost sheets are then submitted by the MCI to their supervisor for verification. Mr.

Shaw stated that the City issues between eight and fifteen thousand Utility Cut permits

each year, and that between four and five thousand cost sheets are submitted per year

for review. The cost sheets are paid by the City to the respective contractor(s) and then

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submitted, with a City mark-up, to the respective Utilities for reimbursement.

Mr. Shaw stated that the work of an MCI requires careful attention to detail, careful

record keeping for the purpose of submitting proper accounts and for verification in the

event of an audit. He stated that each MCI has a daily work log to fill out indicating the

locations, crew members and equipment on site and a field book recording all

measurements of work completed, the cost item codes and the cost sheet numbers.

Mr. Shaw reviewed the cost sheet template and indicated how the measurements and

other pertinent information was to be filled in. He indicated that the MCI is responsible

for the accuracy of the cost sheet and that he expects the MCI to be on site to take the

measurements.

Mr. Shaw stated that he was on vacation in the summer of 2010 and Mr. Ray Kahn, the

Supervisor of Operations and Coordination, was his replacement, and the grievor would

submit his cost sheets to Mr. Kahn for sign off. When Mr. Shaw returned from vacation

on Monday August 91h, Mr. Kahn advised him that the grievor had been writing cost

sheets on the previous Thursday and Friday and that the grievor wanted him to sign off

cost sheets 153 to 183 before Mr. Shaw returned. Mr. Shaw stated that he reviewed

the cost sheets and noted that some of the addresses were the same as cost sheets

that had been previously submitted. He reported the matter to his manager and an

audit of some of the grievor's cost sheets was arranged.

The audit indicated many errors, including the wrong code, wrong location, and differing

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depths, addresses where no work was performed and at least thirty-one duplicate cost

sheets. Mr. Shaw and Mr. Kahn, in September, 2010, conducted a field audit and found

that many of the measurements submitted by the grievor to be incorrect. Mr. Shaw

stated that he expected exact measurements and, in his view, as a result of the

incorrect measurements and wrong cost codes, the contractor had been overpaid by

many thousands of dollars.

Mr. Shaw also testified concerning an audit of the grievor's cost sheets in 2011

indicating that there were incorrect measurements with respect to the lengths and

depths recorded by the grievor on the sheets.

Mr. Shaw testified with respect to the written reprimand in November, 2009. He stated

that he saw the grievor and a co-worker at a computer with others in the room viewing a

pornographic video.

Mr. Shaw testified with respect to the incidents giving rise to the ten day suspension.

He stated that on October 12, 2011 he received a call from Mr. Francis Poon to meet at

the Manager's Office to see where the grievor went with his pick-up truck. Mr. Shaw

stated that he went to the dump area at the back of the yard but the grievor was not

there. He followed the grievor to the Castlefield Yard where he witnessed the grievor

dumping a sofa. He reported the matter to management. Mr. Shaw denied giving the

grievor permission to dump the sofa and denied saying "he would take care of it".

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Mr. Shaw testified that, in the summer of 2011, the grievor was responsible for a Utility

Cut Repair Contract with Furpack for Wards 9 and 15. The contract was awarded late

and work did not begin until close to the end of August. He stated that he received a

telephone call from the Councillor for Ward 21 that a swastika had been scratched into

concrete. He told the caller that the location was not in his District. He nevertheless

went to the location and met the grievor. The grievor told him of the work he had

supervised on various streets in that area. Mr. Shaw said to the grievor that the work

was outside his boundary. According to Mr. Shaw the Ward boundaries had been in

place for years and it was known by everyone that these streets were not in Wards 9 or

15. In his view, the grievor should have known the work was out of his area.

He stated that he had never come across a situation like this before in which a MCI

permitted and supervised work in a District for which he was not responsible for the

contract.

In response to questions from counsel for the Union, Mr. Shaw indicated that the

number of Inspectors had been declining but the work to be done remained the same.

He indicated that the grievor was always at work early, that his work was satisfactory

most of the time, and that he frequently worked overtime. He acknowledged that the

grievor was very experienced and well trained, and was one of the top Inspectors.

Mr. Joe Machado, Supervisor South District Maintenance Contract Inspection, testified

that in the summer of 2011 Furpack, under the direction of the grievor, performed work

outside its prescribed Wards. He stated that he expected MCI's to know the

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boundaries. They are given maps at the beginning of each construction season and the

maps clearly show the boundary lines.

Mr. Ray Kahn, Service Operations Coordinator, testified that he often covers for Mr.

Shaw when he is on vacation but otherwise his main responsibilities are administrative

and clerical. He looks at attendance and reviews cost sheets. He stated that in the

summer of 2010, Mr. Shaw was on vacation from July 2ih until August gth. He stated

that the grievor came into his office on Friday August 61h with approximately two

hundred cost sheets and asked that they be put through right away before Mr. Shaw

came back. Mr. Kahn asked what was the urgency and the grievor replied that the

contractor needed payment right away.

Mr. Kahn met with Mr. Shaw when he returned from vacation and they went through the

cost sheets submitted by the grievor. Mr. Shaw noted that the grievor had submitted a

considerable number of sheets and that some of the cost sheets had been paid in June.

They prepared a spread sheet and went to Mr. Hector Moreno, the Manager of Road

Operations, who said to randomly select ten cost sheets and do a field audit.

Mr. Kahn testified that when they did the field audit they found locations where

measurements were different than those reported on the cost sheets and other

locations where no work was done at all.

In response to questions from counsel for the Union Mr. Kahn denied that he ever told

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the grievor to replace cost sheets that had been misplaced.

Mr. Francis Poon, an engineer with Engineering Construction Services at the City of

Toronto, testified that his job is to monitor infrastructure contracts including quality

assurance, construction methods, type of materials used and policies and guidelines

related to the construction of roads. He stated that in 2011 the North District, where the

grievor worked, had seven Utility Cut Contracts. He monitored the progress payments

of the contracts to ensure that work is progressing according to its timelines.

Payments are made monthly to the contractors. He ensures there is supporting

documentation for the payments. Mr. Poon stated that he monitors the work activity to

see that the contract is being completed within the appropriate time line. He does not

go to the work sites but relies on the work records and cost sheets provided by the

supervisors. Mr. Bruce Shaw reports directly to him. Mr. Poon stated that he does not

directly train or supervise the work of any MCI. Mr. Poon identified notes he took of

investigation meetings with the grievor in 2011.

Mr. Poon indicated that in 2011 Furpack had the Utility Cut contract for Wards 9 and 15

and included in the contract was a penalty clause of one thousand dollars per day if the

contract was not completed on schedule. In the fall of 2011 he noticed that Furpac was

behind in the work and he brought this clause to their attention.

Mr. Hector Moreno testified that he has the overall responsibility for maintaining the

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integrity of the roads in the City of Toronto. He stated that the role of the MCI was to

monitor the contracts, make their best efforts to be on site, to look for deficiencies that

may deviate from approved practices and to invoice for work that has been completed.

They are to maintain a daily log to identify the work undertaken on a particular day, and

the particulars of any investigations or complaints. He indicated that the value of the

Utility Cut contracts had risen from two million in 2001 to ten million in 2014.

In April of each year a Utility Cut Examiner develops a preliminary list of the work to be

done for each contract and makes field measurements. He then gives the list to the

MCI responsible for the contract. The MCI reviews the list, makes site visits to confirm

the measurements and then produces a list for the contractor. After the contractor has

completed the work, the MCI produces a cost sheet. He indicated there is a high level

of trust in the MCI to produce accurate measurements as management only does a

random awdit of a small number of cost sheets.

Mr. Moreno testified that, in August, 2010, he was on vacation when he received a

telephone call concerning the grievor's cost sheets, and he advised Mr. Shaw to review

the sheets and to confirm the accuracy of the entries and to conduct a field audit of

some of the sites. The audit indicated that many of the cost sheets had errors as to

where the work had been done, many inaccurate measurements and some addresses

where no work was done at all. In addition approximately thirty-two duplicate cost

sheets had been submitted.

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Mr. Moreno testified that he retained AGS Associates Inc. to conduct core depth

measurements of some of the sites for which the grievor had submitted cost sheets in

2010 and that he received a report in January, 2011 indicating there were many

discrepancies between the results found from the core depth analysis and the depths

reported by the grievor on the cost sheets.

Mr. Moreno stated that, in October 2010, he took no action with respect to the errors.

He was unsure about the duplicate cost sheets and did not know what to make of the

cost sheets where no work was found. He had some concerns as to how big a problem

existed so he devised a system of random audits of three to five cost sheets of all the

Inspectors.

Mr. Moreno testified that he believed the grievor knew how to do his job as he had

twenty-three years experience and that the methodology for the Utility Cut repairs had

been the same since the 1990's. The grievor worked on winter duties from January to

March, 2011 and then was given new Utility Cut contracts for Wards 9 and 15 for the

summer of 2011. There was some delay in awarding the contract which was eventually

given to Furpac in late June or early July and the work began toward the end of August,

2011.

Mr. Moreno testified that it is inconceivable that someone could inadvertently do a

considerable amount of work in the wrong Ward because the system will provide work

orders only for the contracts for which an MCI is responsible. He also stated that the

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griever would know the boundaries because of his responsibilities on winter patrol, and

his many years of working in the field.

He stated that the results of the random audits indicated that the grievor was making a

considerable number of errors and that he had not seen errors of this number or this

magnitude. The other Inspectors had virtually no significant errors.

Mr. Moreno testified concerning interviews on four separate days that he conducted with

the grievor on May 9, 17, 22, and June 19, 2012 and stated that he never got a

satisfactory explanation as to what transpired. He stated that he felt the grievor was not

being honest. He stated that it was the responsibility of an MCI to have accurate

measurements. Every year the measuring wheel is calibrated. There is never

rounding.

During the course of these interviews the grievor was asked on numerous occasions

about the measurements he put on specific cost sheets .. At no time did he indicate that

he did not measure but rather estimated the measurements and frequently when asked

to confirm a measurement he would reply "If I was on site that day- yes and if I took a

measurement".

Mr. Moreno stated that the grievor never advised management that he could not keep

up with the work.

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With respect to the verbal warning Mr. Moreno testified that the grievor violated the

Acceptable Use Policy by viewing a pornographic video while at work.

With respect to the incident leading to the ten day suspension, Mr. Moreno testified that

there is a garbage receptacle in the yard on Murray road and the yard where the

grievor dumped the couch was four and one-half to five kilometres away. He said he

saw the grievor enter the yard with material in the back of his truck and when he

returned in mid-day the material was gone. Mr. Shaw reported that he thought the

grievor was going to Ingram Transfer Station but he was not there and Mr. Shaw found

him at the Castlefield Yard. Mr. Moreno indicated that there is a fee to dump materials

which are not road waste. He stated that the ten day suspension was justified because

the grievor went out of his way to disguise the fact that he was dumping personal waste

and was trying not to pay the dump fee.

With respect to the termination of the grievor's employment Mr. Moreno testified that it

was justified because the grievor had made many errors, including wrong codes and

wrong measurements, submitted duplicate cost sheets, and performed work in the

wrong Ward all without a sa�isfactory explanation. In his view, it is the fundamental part

of the job to take measurements, and when confronted, the grievor's answers were

extremely evasive. Mr. Mareno stated that when you accumulate all the different

issues, it gave us no choice but to conclude that the grievor neglected to perform his

job, and given the evasiveness of his answers there was no confidence that he would

improve if left in the workplace.

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The grievor testified that he began working for the City in 1989 and became an MCI in

2001. He indicated that in 2000 there were four MCI's and seven Municipal Patrollers

(MP's) whereas in 2010 there were 2 MCI's and seven MP's, and that in 2010 he was

the senior inspector. He stated that he has shown others how to do measurements,

and stated that for a large cut he would take two to three measurements for width and

then take an average.

Mr. Marinaro testified that his mother passed away in May, 2010. She had been ill for a

period of time and he stated he was close to her and it affected his performance at

work.

The grievor stated that he took length and depth measurements using a measuring

wheel and did the depth measurements with a tape.

The grievor testified that he submitted his cost sheets every Friday. With respect to

cost sheets 153 to 183 he acknowledged they were duplicates. He said that during the

week of July 19th Mr. Shaw told him Mr. Kahn wanted to speak with him. He went to Mr.

Kahn's office and according to the grievor, Mr. Kahn told him that the cost sheets from

the previous week had been misplaced and asked him to redo the cost sheets.

He stated that he redid and submitted the cost sheets and did not hear anything further

about them until May, 2012. He denied he had any personal interest in the duplicate

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cost sheets and denied submitting them for any improper purpose.

With respect to the cost sheets with the wrong code, the grievor stated that he had

made a mistake. He had done so much work on Lawrence Ave. that when he shifted to

the side streets he did not make the change in the code to indicate the work was on an

arterial road, and noted there were no other code discrepancies on the cost sheets.

Many cost sheets with differential measurements were reviewed by the grievor in detail

and he stated that he often estimated/guesstimated the measurements, and stated that

he estimated because he was in a hurry and was responsible for multiple crews. The

grievor testified that at times he would not get out of his truck to take the measurement

or to view the cut. He also stated that at times he rounded the numbers. He stated that

he was very busy but had too much pride to ask for help. He acknowledged it was not

good to make mistakes, and was sorry for the waste of others time, was sorry to Mr.

Moreno, and that it would never happen again as he recognized others depended on

him.

The grievor stated that he will never again round numbers and will never guesstimate

again, that this has given him a bad feeling about his life and in future he would ask for

help if he needed it. He acknowledged that he did not ask Mr. Moreno to be taken off

Utility Cut contracts.

The grievor testified that he never estimated in the years prior to 2010, as in those prior

years he only worked one year on Utility Cut contracts. In the other years he

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supervised contractors performing other road work which did not have multiple crews.

With respect to the differentials in the core depths, the grievor acknowledged that at

times he did not measure the depth but entered the default variance of 200 millimetres

because he was in a hurry, or did not have his tape measure. He indicated that it is not

correct to assume 200 millimetres and if reinstated he would measure every hole and

put down precise measurements.

The grievor gave considerable evidence with respect to the work in the wrong Ward and

essentially his explanation was that it was a mistake and not done deliberately. He had

never worked in Ward 15, which is contiguous with Ward 21 and was not familiar with

the Ward boundaries in that part of the City. He stated that he usually does good work,

but he was confused and did not work in the wrong Ward deliberately.

The grievor said he met with Mr. Poon on October 29, 2010 and was told to re-do the

inaccurate item codes, and that he had no further meetings with Mr. Moreno or Mr.

Shaw in November or December, 2010 or in 2011 and was never advised that his job

was in jeopardy.

With respect to the incident leading to the ten day suspension, the grievor testified that

he brought a couch in his personal vehicle and transferred it to a City vehicle and

dumped it at the Castlefield Yard. He saw Mr. Shaw at the Yard who told him to "go

dump it" and "he will take care of it". He stated that he did not know it was a conflict of

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interest as he picked up debris on the roads for years. He stated that others dumped

personal garbage bags into the garbage bin at Murray Street.

SUBMISSIONS OF THE EMPLOYER

The Employer submitted that the grievor had the skill and ability to do his job and

deliberately chose not to. The central function of an MCI is taking and accurately

recording measurements. In its view the grievor deliberately and repeatedly

submitted false records over a period of time and when confronted in the

investigatory process lied about it.

Reference was made to the decisions in Kamloops (City) and CUPE, Local 9 00

(2014) 241 L.A.C. (4th) 349 (J. Nichols), Canada Safeway Ltd. and U.F.C. W,

Loca1401 (2011) 215 L.A.C. (4th) 183 (W.O. McFetridge), Telus Corp. and TWU

( Glen) (2013) 237 L.A.C. (4th) 344 (W.O. McFetridge), Toronto Community

Housing Corporation and T CEU, Local 416 (2012) 228 L.A.C. (4th) 111 (H.

Snow), Loomis Express ( Canada) Ltd. and CAW Local4 45 7 (2012) 227 L.A. C.

(4th) 279 (A. Barrett) , Toronto Transit Commission and A TU, Local113 (Ukwu),

(2012) 228 L.A.C. (4th) 64 (V. Solomatenko), Lakeridge Health Corporation and

OPSEU, (2012) 218 L.A. C. (4th) 178 (J.D. Carrier), lndidra Gangasingh and

Deputy Head ( Canadian Dairy Commission), (2012) 226 L.A. C. (4th) 109 (S. B.

Katkin), Canada Post Corp. and CUPW (Morgan), (2012) 229 L.A. C. (41h) 433,

Telus Communications Inc. and Telecommunications Workers Union, (2007) 168

L.A. C. (4th) 67 (W.O. McFetridge), Mississauga Toyota and CAW-Canada, Local

18

I I

I

252 , (201 0) 199 L.A. C. (4th) 186 (B. Herlich), Canada Post Corporation and

CUPW, (201 0) 198 L.A. C. (4th) 258 (R.I. Hornung), William Osler Health Centre

and CUPE, Loca/145 , (2011) 205 L.A. C. (4th) 386 (R.L. Levinson), Algoma Steel

and United Steelworkers, Local2251 , (2011) 215 L.A.C. (4th) 43 (J. Parmar),

North Bay Health Centre and ONA [2012] O.L.A.A. No. 11 (R.H. Abramsky),

Calgary (City) and A TU, Local583 (Harrison), (2014 242, L.A.C.(4th) 434 ( A.V.M.

Beattie), Williams Lake Plywood and United Steelworkers, Local1 -425

(Barbondy), (2010) 196 L.A.C. (4th) 310 (M.J. Brown), British Columbia Public

School Employer's Assn. and B C TF (C. (J.)), (2013) 237 L.A. C. (4th) 272 (E.

Doyle), Canada Post Corporation and CUPW, (2011) 216 L.A.C. (4th) 207 (A.

Ponak), Fortis BC Energy Inc. and I.B.E.W, Local213 (2011) 214 L.A.C. (4th )

307 (R.S. Keras), Ontario (Ministry of Community & Social Setvices) and

O.P.S.E.U., (2011) 216 L.A.C. (4th) 184 (K. Petryshen), Sheridan College

Institute of Technology & Advanced Learning and O.P. S.E. U. (201 0) 201 L.A. C.

(4th) 243 (M. Bendel), Teamsters, Local 41 9 and BFI Canada Inc., (2010) 193

L.A. C. (4th) 353 (L. Trachuk), Re British Columbia Public School Employers'

Assn. and B.C. T.F., (2008) 185 L.A. C. (4th) 1 (J.B. Hall), The Corporation of the

City of Toronto and Metropolitan Toronto Civic Employees Union, Local 4 3 ,

unreported, March 10, 1993, (S. Stewart), the Corporation of the City of Toronto

and Canadian Union of Public Employees, Local 7 9 , unreported, April 16, 1996,

(C. G. Simmons), Toronto Licensing Commission and Canadian Union of Public

Employees, Local 79 Grievances of R. Decoteau, unreported, April �� 1999, (J.D.

Carrier), Corporation of the City of Toronto and Canadian Union of Public

19

Employees, (1991) 20 L.A. C. (4th) 158 (R.H. Mclaren), The Corporation of the

City of Toronto and Canadian Union of Public Employees, Local 79 , unreported,

June 14, 1999, (1. Springate), City of Toronto and Canadian Union of Public

Employees, Local 79 Lubben Grievance, unreported, November 20, 2005, (R.

Goodfellow), City of Toronto and Toronto Civic Employees Union, Local 416,

Grievances of D. Brackett and G. Nigro, unreported, January 19, 2006, (R.J.

Roberts), Pirelli Cables & Systems Ltd. and U.S. WA., Local 2 952 , (2001) 97

L.A.C. (4th) 63 (Somjen), Chinook Health Region and H.S.A. A. , ((2005) 138

L.A. C. (4th) 278 (Madsen), City of Toronto and Canadian Union of Public

Employees, Local 79 , Bodnar Grievance, unreported, February 6, 2012, (D.K.L.

Starkman), and City of Toronto and Toronto Civic Employees' Union, Local 416,

unreported, April 9, 2015, (W.A. Marcotte).

SUBMISSIONS OF THE UNION

The Union submitted that the grievor had twenty-three years seniority. It was

emphasized that every year the grievor submitted many hundreds of cost sheets,

and that when Messieurs Shaw and Kahn did their audit in July, 2010 they

examined forty-two cost sheets and there were issues with only thirteen of them,

and other employees were not audited in the same way so it is difficult to

determine if the error rate of the grievor was excessive. It was submitted that

there was no evidence of fraud or deceit and no evidence that the grievor profited

in any way from inaccuracies in the cost sheets.

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In any event, the Union submitted that while the grievor's work may have been

careless, it was not deliberate or reckless and discharge was too harsh a penalty

in the circumstances. The Employer should have undertaken some form of

corrective action to bring to the grievor's attention that he should work more

carefully and the grievor should have been given the opportunity to improve. By

proceeding in the way it did, the Employer ignored the principle of progressive

discipline.

In this regard reference was made to the decisions in United Brotherhood of

Carpenters and Joiners of America, Local 27 and Ellis Don Limited, [1988] OLRB

Rep. April 379, City of Vancouver and Vancouver Municipal and Regional

Employees Union, (1983) 11 L.A. C. (3rd) 121 (H.A. Hope), Community Living

Meaford and OPSEU, Local 2 35 Boogerman Grievance, unreported, (R. L.

Levinson), Bracebridge ( Town) and Ontario Public Service Employees Union,

Local 305, Lowcock Grievance), [2012 O.LO.A.A. No. 643 (L.M. Davie) ,

Consolidated Fasfrate Transport Inc. and Teamsters Union, Local 938, 28

C.L.A.S. 504 (Joyce) , Nighthawk Security Ltd. and U.S.W.A., Local 9342 , 41

C.L.A.S. 314 (Alcock) , Manitoba Lotteries Corp. and M. G.E. U. (2003) 7 4

C.L.A.S. 49 (Hamilton) , Western Forest Products and USW Local1-1 937

(Harper), (2013) 116 C. L.A.S. 167 (McPhillips), Clarendon Foundation ( Cheshire

Homes) Inc. and O.P.S.E.U., Local5 93 , (1 9 9 9 ) 58 C.L.A.S. 477 (Sarra),

Purolator Courier Ltd. and Teamsters, Local 3 95 , (1999) 59 C. L.A.S. 70 (F .C.

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Smith), Windsor (City) and Windsor Municipal Employees' (C. UP. E.), Local 5 4 3 ,

Gertsakis Grievance, (2012) 109 C.L.A.S. 330 (M.V. Watters), Regina Public

Library and CUPE, Local15 94 (Quinton-Cuddington), (2014) 119 C.L.A.S. 35

(K.A. Stevenson), Canadian National Railway Co. and C. A. W, Local 100

(Cousins), (2012) 110 C. L.A.S. 289 (M.G. Picher), and La batt Brewing Co. and

brewery, Winery & Distillery Workers Union, Local 3 00 (Pinder Grievance) [2004]

B.C.C.A.A.A. No. 65 (W. Moore).

The Union also submitted that little if any weight should be placed on the events

of 2010. The Employer'investigated and no new information was acquired after

January, 2011 at which time the Employer concluded that no disciplinary or

other action was required. The Employer took no corrective steps at that time.

In the Union's view it is entirely inappropriate to expect the grievor to recall

incidents or events in the interviews in May/June, 2012 that transpired in the

summer of 2010.

Reference was made to the decisions in Miracle Food Mart, Steinberg Inc.

(Ontario) and United Food & commercial Workers, Locals 175 & 633 , (1988) 2

L.A.C. (4th) 36 (P. Haefling), Aluminum, Brick and Glass Workers International

Union and AFG Industries Ld. (Walton Grievance) (1998) 75 L.A. C. (4th) 336 (B.

Herlich), Ontario Public Service Employees Union and Ontario Public Service

Staff Union, [2011] O.L.A.A. No. 191 9T. (Crljenica),

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DECISION WITH RESPECT TO THE GRIEVANCE ALLEGING THE EMPLOYER HAS FAILED TO PROVIDE A HARASSMENT AND DISCRIMINATION FREE WORKPLACE

With respect to this grievance the onus rests with the Union to establish facts

which lead to the conclusion that the Employer has failed to provide a

harassment and discrimination free workplace. There was little direct evidence

concerning this grievance, and from the evidence regarding the facts giving rise

to the three disciplinary grievances, I have concluded that the Union has not

established that the Employer failed to provide a harassment and discrimination

free workplace.

Accordingly this grievance is dismissed.

DECISION CONCERNING THE NOVEMBER 13, 2009 WRITTEN REPRIMAND GRIEVANCE

The written reprimand provided in part as follows:

This letter is further to our meeting held on June 8, 2009, and our subsequent discussion today where we advised you of the result of an IT investigation that has recently concluded.

Through user monitoring of IT resources we have determined that you have used your City e-mail account to send inappropriate material outside of the City that is in direct violation of the Acceptable Use policy. When questioned about this matter you acknowledged sending and receiving joke-based e-mails, however our investigation has concluded that the content of some of the

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messages you sent were in fact joke related, but still inappropriate.

The city has taken steps to inform all employees of their responsibilities under.the Acceptable Use policy and Human rights and Anti-harassment policy. The Acceptable Use policy specifically prohibits the downloading, uploading, storing, sending, distributing or displaying of messages, files or other data that are pornographic in nature or that target an individual or group in a manner that is embarrassing, degrading of humiliating. Further, you must also be aware that under the Ontario Human Rights Code, the City is required to make all reasonable efforts to maintain a workplace that is free from sexual harassment. As such, the City's Human Rights and Anti-harassment policy explains that displaying pin-ups, pornography or other offensive materials in the workplace constitutes sexual harassment. Management has a responsibility to set and enforce standards of appropriate workplace conduct and must take appropriate action upon becoming aware of discriminatory and/or harassing conduct contrary to these policies.

As a result of your actions this letter will be placed on your employee file as a warning. I must advise however that any further conduct of this nature or any other inappropriate behaviour on your part will result in further discipline, up to and including termination.

I trust that through this letter our expectations are abundantly clear. If you have any questions or concerns, please do not hesitate to speak with me

Hector Moreno

In my view the evidence established that the grievor violated the Acceptable Use Policy

and Employer therefore had just cause to discipline the grievor by means of a written

warning.

This grievance is therefore dismissed.

DECISION WITH RESPECT TO THE 10 DAY SUSPENSION GRIEVANCE

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The correspondence imposing the ten day suspension provided in part as follows:

October 28, 2011

Mr. Nick Marinaro

RE: Violation of Conflict of Interest and Fraud Prevention Policies- 10 Day Suspension Without Pay

This letter is further to our investigation meeting held Wednesday October 19, 2011. You were interviewed regarding a number of violations of the City's Conflict of Interest and Fraud and Waste policies. This investigation meeting was as a result of your improper use of City equipment and facilities during company time, contrary to the above City's policies.

During the above noted investigation meeting you admitted that on October 1 ih, 2011 you brought an old couch from your house in your own private vehicle. You admitted that you transferred the debris from your assigned City Vehicle (Inventory No. 048021) and drove to Castlefied Yard, a City of Toronto, Transportation Services facility for TEY. You admitted that you did so, for the purpose of disposing of the content illegally.

The City of Toronto Human Resources Policy for Conflict of Interest under the sub heading Using City Property states:

Using City Property- Employees may not use, or permit the use of items of city property, facilities, equipment, supplies or other resources not associated with their work. Further, the City of Toronto Corporate Policy­Fraud Prevention Policy under the definition of fraud, states:

Definition of Fraud: For the purposes of this policy, the definition includes any misuse or attempt to misuse a City asset for personal gain or purposes unrelated to City Business. Examples of fraud include, but are not limited to: Using City equipment, facilities, supplies or funds for purposes unrelated to City business; and ...

As a result of the violations of-the above city policies, and in consideration of your acknowledgement of the seriousness of your inappropriate actions, you are hereby suspended for ten (1 0) days without pay to be served from Monday October 31, 2011 to November 14th, 2011. Y0u are to return to the workplace on Tuesday November 15th , 2011 at 7:00 am.

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In addition, upon our return you will be required to attend the next available course on the City's Human Resources Conflict of Interest and Fraud prevention policies. Furthermore, please be advised that this suspension letter will be placed on you employee file and will remain there for the next two (2) years. I must advise however, that any further conduct of this nature, or any inappropriate behaviour on your part including nonattendance to any of the courses outlined above, will result in further disciplinary action up to an including termination of employment. ...

The evidence established that, on October 12, 2011, the grievor brought a sofa in his

own vehicle to the Murray Street Y�rd. He subsequently transferred the sofa to a City

vehicle and went to the Castlefield Yard, some four kilometres away, to dump the sofa.

The grievor offered no plausible explanation for this behaviour except to say that the

Castlefield Yard was en route to his worksite.

In my view, if the sofa was something the grievor found on the road allowance he would

have dumped it at Murray Street. More probably, the sofa was the grievor's personal

property and he delivered it in a City vehicle to the Castlefield Yard and sought to dump

it without paying a dumping fee. I do not accept the grievor's evidence that Mr. Shaw

approved of this behaviour, nor do I accept that Mr. Shaw said "he would look after it".

The grievor violated the City's Conflict of Interest policy, lied about it, and endeavoured

to avoid responsibility by saying that his supervisor, Mr. Shaw, approved of his actions.

In such circumstances the Employer had just cause to discipline the grievor and I see

no reason to exercise my discretion to alter the ten day suspension.

This grievance is therefore dismissed.

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DECISION WITH RESPECT TO THE DISCHARGE GRIEVANCE

It is clear from the evidence that the duties of an MCI are very important. They

work predominately alone with little direct supervision, and they monitor the work

of outside contractors who are doing work for the City worth millions of dollars.

In the summers of 2010 and 2011 the grievor was assigned to monitor the Utility

Cut contracts awarded to private contractors to re-surface the road after cuts had

been made by Utilities repairing or upgrading their infrastructure under the road.

It is the responsibility of the MCI to ensure that the proper material is used to re­

surface the road and that the work is done in a timely fashion. It is also the

responsibility of the MCI to take accurate measurements of the width, length and

depth of the re-surfacing because the contractor is payed based on the

dimension of the cut being re-surfaced, and the Utility is subsequently billed

based on the dimension of the cut and a mark-up to the City for supervising and

coordinating the work.

The grievor has been employed by the City for twenty-three years and has been

doing the inspection work since at least 2001. He testified that he often trains

others in measurement protocols and was aware of the importance of taking

accurate measurements. He was also aware of the importance of putting

accurate measurements and accurate information on the cost sheets which are

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submitted for each Utility Cut because it is this information which generates the

payment to the contractor and the invoice to the Utility.

At the hearing the City introduced considerable evidence as to the submission of

duplicate cost sheets in the summer of 2010, and as to errors on the depth

measurements in the summer of 2010 and other inaccuracies in the cost sheets

submitted by the grievor.

It appears from the evidence that all of the information concerning events in the

summer of 2010 was gathered by the end of January, 2011 when the Employer

received the report concerning the core depth analysis, yet the Employer did not

confront the grievor with many of its concerns until the investigation in May/June,

2012. The Employer offered no viable explanation for the passage of eighteen

months except to say that the Department was busy.

In my view the delay was excessive and, I have therefore not considered the

events of the summer of 2010 to support the discipline because the delay in

bringing these matters to the attention of the Grievor may have impacted the

Grievor's recollection of events, and because, after the passage of so much time,

the Employer can be seen to have countenanced the behaviour, or deemed it not

worthy of a disciplinary response. I have however considered the events of the

summer of 2010 as an indication to the g rievor that the Employer was concerned

about the accuracy of some of the information on the cost sheets submitted by

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the grievor.

In the summer of 2011 the grievor was responsible for supervising the contract

awarded to Furpac to perform Utility Cut repairs in Wards 9 and 15. There was

considerable evidence given about work that the grievor supervised in Ward 21

which was outside his jurisdiction. The implication of such evidence was that the

grievor authorized or at least permitted this work because it would have in some

way assisted Furpac, who was potentially facing damages for being late on the

completion of the contract.

After considering all of the evidence concerning what transpired with respect to

the work performed in Ward 21, I have accepted the grievor's explanation that

the work was done by mistake, and his delay in advising his supervisor is

attributable to the grievor's concern that he would be in trouble because ofhis

recent ten day suspension.

The Union urges me to find that the grievor was careless in his work and should

have been given some assistance to improve, and a lesser disciplinary penalty.

In my view however it is clear from the grievor's evidence that his actions were

deliberate and repeated. I can accept that, from time to time, an Inspector might

make an error with respect to a code, or with respect to a particular

measurement, but in this case the evidence from the grievor was that he often

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estimated/guesstimated the length and width and always put down 200 mm for

the depth without measuring. The grievor had been doing the job for a

considerable number of years and knew the importance of accurate

measurements. It may be that the grievor was stressed because of the number

of crews working in his Wards, but he never mentioned this to management, and

even if he was stressed, that is not a valid explanation for deliberately submitting

false information.

In the summer of 2010 the grievor knew that the Employer was concerned about

errors on his cost sheets and about measuring errors with respect to the

dimensions of the Utility cuts, yet at no time in the fall of 2010 did he advise the

Employer that he was guesstimating the dimensions and that he always entered

200 millimetres for the depth without measuring.

The grievor continued this practice of not measuring into summer of 2011, and

when confronted by the Employer with the errors on his cost sheets over four

days in May/June, 2012 the grievor offered various explanations for the errors

but never indicated that he would estimate/guesstimate the dimensions of the

cuts. The notes of the questions asked of the grievor over those days indicate

the grievor was asked detailed questions about dozens of cost sheets, and the

measurements entered on the cost sheets for the summers of 2010 and 2011,

and the grievor often answered, "if I was on site, I must have taken a

measurement", or words to that effect.

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The grievor indicated he did not have his field books for most of the time during

the interviews, but having his field books would not have made a difference. He

knew the measurements, whether entered into his field book or not, were

inaccurate because he had not measured and he acted dishonestly by trying to

conceal from the Employer what he had done.

In British Columbia Public School Employers' Association, supra, the Board

made the following comments at paragraph 89 with respect to dishonesty:

In previously conveying my conclusion to the parties, I remarked: "regrettably, the misconduct which led to the [Grievor's] dismissal was accompanied through by dishonesty and deceit". In Tober Enterprises Ltd., IRC No. C54/90, the Labour Relations Board held that an employee's decision to remain silent when accused of wrongful conduct cannot form a basis for discipline; that is, a failure to explain-without more-cannot be regarded as culpable behaviour, On the other hand:

... where an employee deliberately attempts to deceive his employer by false or misleading explanation, the employee's conduct is clearly blameworthy and threatens the basis of the employment relationship. The employee's behaviour is equally blameworthy where he knowingly allows his silence to damage the legitimate business interest of the employer ... (at QL. P. 7 of 10)

Following his discharge in August, 2012 and up to the commencement of the

hearing in January, 2014, the grievor made no effort to advise the Employer as to

what transpired or to offer his apologies. It was only after hearing many days of

the Employer's evidence and during his examination-in-chief that the grievor

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offered the explanation as to what transpired and offered an apology. As noted

in Re Sheridan College Institute of Technology, supra, at paragraph 60:

In Re Gannet Freight Cartage Ltd. and Teamsters Union, Loc. 410 (1993), 35 L.A.C. (41h) 314 (Bendel), the value of an apology in the assessment of disciplinary sanctions was discussed in these terms (at page 327):

I also have reservations about the value of an apology in a case like this. If the apology is offered spontaneously, immediately following the incident, it can demonstrate true remorse and can assist an arbitrator in deciding whether the misdeed was accidental or out of character. But if an apology is offered well after the incident, when it is likely prompted by the advice of lawyers or union officials, it tells us nothing of a griever's contrition or culpability, and may be indicative of n othing more than a grievor's ability to follow advice.

In the present case, the grievor apologized at a grievance meeting after he had been discharged, in the presence of a union representative. His apology, which the employer in any event viewed as insincere, was what might be termed a "strategic" apology. It tells us nothing about his remorse or contrition. It certainly does not appear to us to call into question the appropriateness of the discharge.

In this matter the Employer clearly had cause to discipline the grievor. He had a

prior ten day suspension on his record. He had deliberately provided false

information on the cost sheets, and when questioned lied about it.

The grievor testified that he is apologetic and remorseful but given the lateness

of the apology, I have concerns about his sincerity, and in any event it is not a

sufficient reason to mitigate the penalty. The grievor was an experienced and

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knowledgeable MCI. He worked with little supervision in a position of trust.

Accurate measurements are a core function of his job and the grievor knew it.

He engaged in a deliberate and egregious course of conduct over a very

considerable period of time which had a direct financial impact on third parties

and potentially on the Employer. When confronted about it he lied by offering

various explanations for the discrepancies knowing them to be false. As a result

of this deceit the Employer undertook costly third party investigations, including '

the cost and disruption of an approximately twenty day arbitration hearing in

order to establish what transpired.

The grievor's conduct endeavoured to place the blame for his actions onto others

and only to admit wrongdoing when the evidence was overwhelming. In such

circumstances I have concluded that the Employer had ample cause to impose

discipline, and that there are insufficient reasons to mitigate the penalty.

The grievance with respect to the discharge is therefore dismissed.

Dated at Maberly, Ontario this 31st day of July, 2015

ISJj ltQ David K.L. Starkman.

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