Culpable Inefficiency and a Smorgasbord of Issues

August 2016

Article by: Gregory J. Heywood

Previously printed in the LexisNexis Labour Notes Newsletter.

Arbitrator Larry Steinberg faced a plethora of issues in the recent case of Toronto District School Board v. CUPE, Local 4400 (Naccarato Grievance), [2015] O.L.A.A. No. 429.  The decision makes for an interesting read and contains a number of chestnuts that are useful for practitioners in the world of labour arbitration.

The case involved a 43-year old employee with 26 years of discipline-free service who was employed as a caretaker at a school board. As stated in his letter of termination, the grounds for termination were dishonesty, breach of trust, time theft, neglect of duties and conduct inconsistent with the standards expected by the Employer. Three of his colleagues were discharged at the same time for largely the same reasons.

The arbitration proceeded by way of “will say” statements and, where required, witnesses were called to be cross-examined. The Employer submitted 13 will say statements in respect of which eight deponents were cross-examined.  The Union submitted three will say statements in respect of which two deponents were subject to cross-examination.

At all material times, the Grievor worked the afternoon shift during which there was virtually no supervision on the site. As a result, the caretaker position was considered to be a position of trust.

It was found as a fact that the school in question had a long and shocking history of poor maintenance. For at least three years prior to the Grievor’s discharge, floors were regularly not mopped and classrooms, change rooms and washrooms were left dirty.  Garbage was not picked up and there were examples of display cases with growing collections of dead and withered insects.  Further, nails were sticking out of the gym floor and even the principal had to clean her own washroom.  Clearly, the facility had been subject to years of neglect and poor custodial supervision.  In October 2012, there was a change in leadership and the supervisory team attempted to bring accountability to the custodians and improve the quality of their work.  Periodic meetings were arranged with the custodial staff at the school in order to set out the Employer’s expectations and address areas of concern.  One of the steps taken to encourage more efficient use of custodial staff time was the removal of the TV and couch from the caretaker lunchroom.  Unbeknown to management, the TV and couch were simply relocated to a discrete room in the basement.  When the supervisors were advised that the TV and the couch had not been removed from the property but simply relocated, they surreptitiously placed a motion-activated video camera in room 10 (the discrete room in the basement).

The Grievor was observed to spend as much as two and a half hours a day in the makeshift lounge watching TV. In addition to channel surfing during the workday, surveillance revealed that the Grievor did not report to work for anywhere from 30 minutes to two and a half hours after his scheduled start time.  During the period of observation, he was on average late by one hour and eight minutes.  It seemed apparent that the Employer had found at least one probable cause for the unclean state of the school.

The Union presented a number of defences on behalf of the Grievor, some of which found traction with the Arbitrator but most of which did not.

One of the arguments advanced on behalf of the Grievor was that the reason he was taking breaks in the makeshift lounge was a disability (sore back) and this accommodation had been prescribed by his health advisors and authorized by his supervisor. In support of the claim of the alleged disability, the Union provided a will say statement from the Grievor’s physician.  It, however, fell short of justifying the number of breaks the Grievor was taking and the duration thereof.  The only statement the doctor made in favour of the Grievor’s claim was an acknowledgement that the Grievor was having chronic lower back pain that “may from time to time impact on his ability to work”.  The doctor no reference to taking breaks as alleged by the Grievor.  The Grievor indicated that his physiotherapist recommended that he take frequent breaks.  Interesting was that the Union did not produce a will say statement for the physiotherapist, and the Employer argued that an adverse inference ought to be drawn out of the lack of any evidence from the Grievor’s physiotherapist.  The Arbitrator concurred and concluded that if the physiotherapist could have given evidence to support the Grievor’s position, there would have been a will say statement.  The supervisor likewise denied authorizing the unscheduled breaks.

As a result, the argument of the Union that the Grievor’s sore back amounted to a disability and ought to have been accommodated was dismissed in its entirety. Moreover, the Arbitrator found the Grievor to have been dishonest in making this assertion with the result that there was a material adverse impact on his credibility and opportunity for reinstatement.

It is interesting to note that the Union did not object to the admission of the video surveillance evidence as the law is well settled in Ontario that if the surveillance evidence is taken where there is no reasonable expectation of privacy and the evidence is probative, it will be admitted. This stands in stark contrast to the tortured jurisprudence in British Columbia which imposes arbitrary and unnecessary restrictions on the admission of video surveillance evidence.  For a recent example, see Unifor, Local 433 v. Crown Packaging Ltd (Giesbrecht Grievance), [2014] B.C.C.A.A.A. No. 43.

Another defence of the Union was that the Employer did not follow progressive discipline and implicitly condoned poor workmanship as the Employer knew the janitorial standards were not being met at the school for several years and did nothing about it. The Arbitrator agreed with this assertion and noted that if poor workmanship had been the only issue, this point would have been persuasive.

While the Arbitrator acknowledged that there was no discipline of any note on the 23-year record of the Grievor, the circumstances of the misconduct in this case justified termination. The Arbitrator reviewed the notion of time theft and, in particular, the use of that terminology.  He cited with approval Arbitrator Craven’s decision in Re Grand & Toy Ltd. v. United Steelworkers, Local 9197, [2001] O.L.A.A. no. 242, including the following:

“Time theft”, so-called, is therefore more closely related to the industrial offense of insubordination than to the criminal offence of theft. It may not involve an outright refusal to obey a direct order, but it is at least a form of culpable inefficiency in the face of well understood performance expectations …

… [C]ulpable inefficiency in such circumstances is typically a form of insubordination.  In some cases, however, individuals arrange elaborate deceptions to mislead supervisors into thinking that they are working when they are not.  Examples include time card fraud, as well as the distinction (made in the Union evidence before me) between simply falling asleep on the job and setting up a secret “nest” in which to hide from supervision.  In such circumstances, culpable inefficiency goes beyond simple insubordination and becomes a breach of trust. Trust, it has been said, is fundamental to the employment relationship.  It follows that a breach of trust is at least potentially a fundamental breach of that relationship.

[Emphasis added.]

Other circumstances which the Union argued were mitigating factors included the apology offered by the Grievor “for whatever [he] did”. An Employer witness characterized the apology as “nonchalant, dismissive and not sincere”, a description that the Arbitrator appeared to accept.

The Union also argued that once it came to the Employer’s attention that the Grievor was misappropriating time and engaging in conduct worthy of discipline, it ought to have intervened at an earlier stage and imposed a lesser form of discipline. The Arbitrator correctly dismissed this argument and held:

The employer’s explanation for not acting immediately when the lounge was discovered was that it wanted to see if employees were engaged in a pattern of misconduct or whether the use of the lounge was limited to periodic visits. This is a perfectly legitimate line of inquiry for the employer to undertake because each situation would call for different responses from the employer.

The employer is entitled to investigate to ascertain precisely what it has to deal with. The principles of progressive discipline do not require the employer to discipline at the very first indication of misconduct where the circumstances clearly call for a more detailed fact-gathering exercise.

Finally, the Arbitrator dealt with the implications of continued dishonesty by referring to Arbitrator Slotnick’s decision in City of Hamilton v. CUPE, 2015 CanLII 22664 (ONLA):

Dishonesty at the hearing in termination cases is usually seen by arbitrators as an important indicator that the employment relationship cannot be salvaged. The reasoning often expressed is that grievors who do not admit misconduct or go to great effort to minimize it are not likely to make the changes in their behaviour that are necessary for a successful reinstatement.

The Arbitrator concluded with the following observations of his own:

Dishonesty, particularly for an employee employed in a position of trust, is an offense that can provide just and sufficient cause for discharge.

In the particular circumstances of this case, where the termination is for breach of trust and dishonesty, the fact that the grievor was dishonest at the hearing weighs very heavily against the exercise of my discretion to reinstate the grievor to employment.

… If the grievor cannot tell the truth at a hearing, an arbitrator cannot credibly tell an employer that it must give him another chance when it was the grievor’s dishonesty and breach of trust that gave rise to the termination of employment in the first place.

As a result, the discharge of this long-service employee with a clean disciplinary record was upheld. As an aside, it is refreshing to welcome to the lexicon of labour arbitrations the enticing and broadly defined term “culpable inefficiency”.