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HomeMy WebLinkAbout1993-0776.Vining.94-10-04 ....... o.~' ~){ ~ . """ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARio GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS ~" 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, M5G lZ8 TELEPHONEIT-ELlipHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILEITELECOPIE (416) X?6- 1396 " 776/93, 858/93 I IN THE MATTER OF AN ARBITRATION I Under' THE CROWN EMPLOYEES COLLECTIVE BARGAINI~G ACT , I Before , I THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Vining) Grievor - and - Tpe Crown in Right of ontario (Ministry of Health)Brant County Ambulance Employer BEFORE: w Kaplan Vice-Chairperson J Carruthers Member M. O'Toole Member FOR THE A Lee UNION Gri~vanceOfficer ontario Public service Employees Union FOR THE J Smith EMPLOYER Counsel Mathews Dinsdale & Clark Barristers & Solicitors HEARING January 24, 1994 June 21, 1994 - - - ...,.-- ,~ -~ ? \ I Introduction On May 21, 1992, Dale Vining, a full-time Ambulance Officer employed by the Brant County Ambulance Service', filed two grievances The first grievance states that a May 17, 1993 written warning was unjust and ought to be removed from his personnel file. The second grievance alleges that he was, on May 21, 1993, unjustly suspended for forty hours. A third grievance ~ was filed on June 9, 1993, and it claims that the grievor was improperly paid. These three grievances proceeded to a hearing in Toronto, at which time evidence and argument were heard. At the outset of these proceedings, the union advised the Board that it was withdrawing the grievance alleging an unjust written warning as well as the grievance - claiming the grievor was improperly paid. In brief, this case concerns an incident that occurred on May 10, 1993 At that time, the grievor, his partner, Mr Doug Dinner, and a student, Mr Vince I Schwientek, were assigned by dispatch to proceed to a standby location and " remain on call. En route to that location, the ambulance made an unauthorized stop at a Tim Horton's Coffee was purchased and the ambul~nce proceeded to the standby location. Within a few moments of the ambulance's arrival, a supervisor appeared and it was clear, in the circumstances, that an unauthorized stop had been made Subsequently, the grievor received a written warning for that unauthorized stop, and, as already noted, the grievance with respect to that written warning was withdrawn at the commencement of these proceedings. The remaining discipline that was imposed concerns the employer's finding that the grievor removed the tach card from the ambulance tachograph, replaced it with a new tach card and then destroyed the original tach card, presumably as part of an effort to coverup the unauthorized stop. -- """ 3 iI I Fprhis part, the grievor denied removing the tach card In addition to alleging that this discipline was unjust, the union also took issue with the manner in which the employer conducted its investigation in this case and pointed out that the effect of the suspension was to deny the grievor the opportunity to, work, as previously scheduled, on a statutory holiday Accordingly, the grievor suffered an actual loss of 58 hou~ pay The employer took the position that the evidence would establish that the grievor had removed one tach card and replaced it with another, and that in these circumstances, and given the grievor's previous disciplinary record, there was just cause for the discipline that was Jmposed. The Employer's Case Evidence of Andy Jacobson Mr Jacobson testified. He is the District Supervisor and has worked for the \ employer for more than 17 years. Mr Jacobson testified generally about the workings of the tachograph The function of the tachograph is to accurately record a vehiclef's speed, the distance it has traveled, and the duration of both driving and stopping periods. It also indicates when lights and sirens are turned on The information is recorded on a wax-coated circular chart by a number of spring-loaded sapphire-tipped styli A precision quartz clock movement rotates the chart once in every twenty-four period, ensuring vehicle events are chronologically recorded According to Mr Jacobson, it is required practice, at the start of a shift, for one of the two ambulance officers to obtain a blank tach card. He or she then opens the tachograph and removes the old tach card. A new tach card is then inserted Ambulance Officers are responsible for reporting certain information on each tach card' crew member numbers, time of shift, -- -------- ~. 4 ( ~ ~ vehicle number, date of shift and outgoing mileage on the tach card The Ambulance Officer who is responsible for removing the old tach card and inserting the new one then does a radio check and confirms the time The clock on the tachograph might be adjusted in the result. The tachograph door is then closed and locked The tach card serves as an important 'record of ambulance activity, and the importance o'f this instrument has been repeatedly emphasized to Ambulance Officers. Copies of various policies to this effect were introduced into evidence Ambulance Officers receive some training in how to fill out tach cards. - On May 10, 1993, Mr Jacobson was advised by one of the supervisors, Mr Randy Papple, that the grievor and the other members of crew had been caught drinking coffee Mr Jacobson testified that Mr Papple told him that when ,he approached the ambulance Mr Dinner stated, "You caught me" On May 1 1, 1993, Mr Jacobson collected the May 10, 1993 tach card from the grievor's ambulance To make a long story short, the evidence established that at the start of the May 10, 1993 shift, Mr Dinner had, at about 7 00 a.m., taken the old tach card, dated May 7, 1993, out of the tachograph. However, the May 10, 1993 tach card which Mr Jacobson found on May 11, 1993 was filled out by the grievor This tach card only began to record at approximately 8 40 a.m. The shift had begun at 700 a m., and so the tachograph should have begun recording at that time In addition, the outgoing mileage on this tach card does not appear to correspond with the incoming mileage on the tach card that Mr Dinner had earlier removed, although the writing is somewhat obscured . ----..-- - - ~- ~i: r-' 5 , - Mr Jacobson told the Board that having reviewed both of these cards, the employer determined that further investigation was necessary On May 12, 1993, Mr Dinner, who was at work at the time, was summoned to a meeting He admitted to stopping for coffee just before 8 00 a m. Mr Dinner was also shown the various tach cards, and he rec~lIed taking the May 7, 1 993 tach card out on May 10, 1993 Mr Jacobson testified that Mr Dinner told him that he put the new tach card in, and that he was absolutely qefinite about having dorie so When Mr Dinner was shown the -May 10, 1993 tach card he could see that that card had not been prepared by him. He was asked what he thought had happened, and Mr Jacobson testified that Mr Dinner said, "It's pretty conclusive, isn't it?" - According to M~ Jacobson, Mr Dinner could not provide any explanation as to why the tachograph did not record between 700 a.m. and 8 40 a m. The grievor and other crew members were caught drinking coffee just before 8 00 a m. Dispatch records indicate that the ambulance returned to base at 8.39 a m. The tachograph began recording shortly thereafter All that Mr Dinner said in his meeting with Mr Jacobson was that it was not his tach card. At the conclusion of this meeting, Mr Dinner was given a verbal warning for the unauthorized stop. Mr Jacobson test.ified that Mr Dinner was a loyal employee, and had no previous disciplinary record. The grievor was next scheduled to work on Sunday, May 16, 1993 As this was a weekend, no members of management were available to meet with him. On Monday" May 17, 1993, the grievor was summoned to a meeting with Mr Luke Hewitt. He was given a written warning for the unauthorized stop, and advised that the investigation would be continuing The grievor's next day shift was Friday, May 21, 1993 A t that time he was asked to meet . - -. - --- -- ---,-- -:~ 6 \ A\ I i with Me' Jacobson and Mr Hewitt. The employer also arranged for a union steward, Mr Wayne Buckley, to be present. The grievor was shown the May 1 7, 1993 and May 10, 1993 tach cards. The grievor was asked to provide an I .... I explanation as to why the tach card that he inserted had failed to record between 7 00 a.m. and 8 40 a.m. Mr Jacobson testified that in response to this request for an explanation, all that the grievor would say was that he "did not know" or that he "could not say " The meeting lasted for approximately fifteen minutes, at which time the grievor was given a letter of suspension. He then pulled out two grievance forms and filled them out, grieving the written warning and the forty-hour suspension - As already noted, a third grievance was filed on June 9, 1993 1 A copy of the, grievor's disciplinary record was introduced into evidence It indicates that the grievor had been previously disciplined' for an unauthorized stop; as well as for wearing an orange ribbon on his uniform. The record further indicates that the grievor had, on March 30, 1992, received a written warning for a missing tach card This warning was r removed from his record pursuant to a grievance settlement. What is important for pres~nt purposes is that this settlement states that the grievor acknowledges that tach cards are required in vehicles at all times. Mr Jacobson considered the grievor's record and this settlement in determining the quantum of discipline to be imposed. He told the Board that had the grievor provided some explanation for the missing card, or had he even cooperated with the investigation, then he might have reached a less severe result. In the circumstances of this case; however, where the . i~\,' ~ 7 grievor had acknowledged the importance of tach cards, and where he had been warned about unauthorized stops, Mr Jacobson felt that a more onerous disciplinary sanction was appropriate Very simply, the employer came to the conclusion that the grievor had removed a tach card from the vehicle and destroyed it in his effort to cover up his unauthorized stop In .J the employer's view, no other conclusion could be drawn in this case Mr Jacobson noted that the tachograph in question ha,d previously worked properly and continued to work properly after this incident. Cross-Examination of Mr. Jacobson Mr Jacobson was asked a number of questions in cross-examination While he has not received specialized training in the reading of tach cards, he has been reading and interpreting them for approximately fourteen years Mr Jacobson is aware of cases where employees have discovered that the I tachograph door is open midway through a shift. He is of the view that a \ tachograph will not "pop" open. He noted that the door must be shut and then locked with a key The tachograph in question in this case has never been serviced as it has always functioned properly Mr Jacobson was aware that Mr Dinner was going to be called as a witness and would testify that he never told Mr Jacobson that he inserted a new tach card on May lO, 1993 Mr Jacobson maintained, however, that this is exactly what Mr Dinner told him. Mr Jacobson never asked Mr Dinner what he meant by the expression, "It's pretty conclusive, isn't it?'i Mr Jacobson was asked why the grievor would destroy the tach card given that he had been caught "red-handed" by his supervisor He agreed that it did not make sense for him to do so Mr Jacobson testified that he did not want to discipline the grievor on May 21, 1993, although the suspension ~ ~ ~ , ----- '" ~ 8 letter was prepared on the 20th What the employer wanted was for the grievor to shed some light on the missing tach card With respect to the procedure followed at the start of the shift, Mr Jacobson testified that dispatch does not record who does the initial time and radio check. Re-examination of Mr. Jacobson In re-examination, Mr Jacobson testified that if the tachograph door is wide open it does not record, although it does continue to keep the time If the tachograph door is shut but not locked, it will record vehicle speed It will not record lights and sirens or -stops and starts. Mr Jacobson testified that the door is attached by a hinge, and that it would, in his experience, be somewhat difficult to keep the door partially closed Either it would click shut or it would swing open. He testified that it opens in a downwards direction, and that it is obvious when it is doing so Mr Jacobson insisted that Mr Dinner told him during their May 1 2 meeting that he put a new tach card in on May 10, 1993, although he was aware that Mr Dinner subsequently changed his account. Notwithstanding the fact that 1 it made no sense for the grievor to remove one tach card and replace it with another, Mr Jacobson concluded that he did so, and one reason for reaching this conclusion was the fact that Mr Dinner told him that he put a new tach card in on May 10, 1993 He also noted that it is the general practice for the person who takes the old card out to put the new card in. Mr Jacobson was asked why the employer did not check the tachograph after May 1 0 or May 11, 1993, and he testified that the machine was operating properly and that there was no reason to do so He pointed out that the grievor, during . ..i ~..' 9 the meeting on May 21, 1993, never suggested that the machine was malfunctioning Evidence of Luke Hewitt Mr Hewitt testified He has been a supervisor with the employer since August 1990 Mr Hewitt was not working on May 10, , 993, but he was brought up to speed on May 11, 1993 by Mr Jacobson. The May 10, 1993 tach card ,did not begin to record until approximately 8 40 ~ m Mr Hewitt testified that upon reviewing this card he did not come to any initial conclusions. Rather, he simply wished to find out what had occurred, and so a decision was made to speak with the grievor and Mr Dinner Mr Hewitt met with Mr Dinner first, and he did not deny making the unauthorized stop. He was given a warning for doing so Mr Dinner was then asked some questions about the missing tach cards Mr Dinner identified the May 7, 1993 tach card and advised Mr Hewitt and Mr Jacobson that it indicated that he had taken it out. He was then shown a copy of the May 10, 1993 tach card, and he identified the grievor's handwriting on it. Mr Dinner was then asked if the grievor had changed the tach cards. Mr Dinner replied that he did not know and that he did not change the cards He also said, "It's pretty conclusive," or "It's pretty obvious that Dale changed it." According to Mr Hewitt, Mr Dinner also said that since he was the person who took the old card out, he must have been the person who put the new card in. Mr Hewitt testified that he formed the view that the grievor had removed Mr Dinner's card from the machine and replaced it with one of his own. He noted that the outgoing mileage on the grievor's card did not match the ....... l.~ 10 .i.i incoming mileage, as recorded by Mr Dinner on the card that he had removed, and he reiterated Mr Jacobson's evidence that it is common practice for the person removing the old card to ins~rt the new one At the conclusion of the meeting, after Mr Dinner had left the room, Mr Hewitt and Mr Jacobson agreed that Mr Dinner had seemed straightforward in his responses and did not appear as if he had anything to hide On May 17, 1993, Mr Hewitt spoke to the grievor in the presence of Mr Papple The grievor asked if he could have a steward present, but none was available at the time It was agreed that the meeting would proceed in the steward's absence, and the grievor was given a written warning for the unauthorized stop. The grievor refused to sign this warning, and he did not avail himself of the opportunity to record his version of events or to state his objection to the discipline that was imposed After that discipline was imposed, the grievor was asked whether he had changed the tach card. Mr Hewitt testified that the grievor replied to this and other questions by saying that he "did not know," or that he "did not recall" He agreed that his writing appeared on the May 1 0, 1993 tach card. The grievor could not or would not give an explanation for the missing time on the tach card At the conclusion of the meeting, the grievor was advised that the investigation would continue Mr Hewitt formed the view that either the grievor had a poor memory or that he had something to hide Sometime on May 17, 1993, Mr Hewitt called Mr Dinner and asked him to prepare an occurrence report setting out his version of the events of May 10, 1993 Mr Dinner refused. On May 18, 1993, Mr Hewitt spoke ~ith Mr , Schwientek, who advised him that he had not removed the tach card or . ~~- -.. , , '.A I written on it. Nor had Mr Schwientek seen anyone else remove the card or I write on it. By May 20, 1993, Mr Hewitt and Mr Jacobson concluded that the grievor had removed the original May 10, , 993 card and substituted it with another card bearing that date. In the result, the decision was made to suspend the grievor for one week, and Mr Hewitt prepared the suspension lette r The disciplinary meeting, as earlier noted, took place the following day Mr Hewitt's account of this meeting did not significantly differ from that provided by Mr Jacobson. Mr Hewitt emphasized that the grievor appeared unwilling to assist in the investigation and simply stated that he "did not know" or "could not recall" in response to the employer's r~quest for further information. Faced with responses of this kind, and given the fact that this was the second time that the grievor had experienced problems with tach cards, Mr Hewitt felt that he had no choice but to give thegrievor the previously prepared disciplinary letter In preparation for this case, Mr Hewitt examined all of the tach cards prepared by either the grievor or Mr Dinner for the period beginning six months prior to the incident in question. Almost one hundred copies of these cards were introduced into evidence In almost every case, whenever Mr Dinner removed an old tach card, he was also the person who inserted the new one. In general, the grievor hardly ever changed a tach card. With respect to the operation of the tachograph, Mr Hewitt testified that some minor problems have occurred For example, the stylus that records speed has been known to waiver from the base line, and in situations like this a technician is called in to correct the problem. Mr Hewitt is not aware of any problems having occurred with the machine at issue in the instant case . l'IL" 12 '-~ Cross-Examination of Mr. Hewitt Mr Hewitt was asked a number of questions in cross-examination. He has not received formal training in the interpretation of tach cards, although he has studied the tachograph manual and has considerable experience in reading these cards. Mr Hewitt testified that if the tachograph door is closed but not locked it will still record. He is not aware of any casein which a tachograph door popped open during a shift, although he conceded that if a machine was not properly closed this might occur' . Mr Hewitt was asked a number of questions about the timing of his meetings with the grievor and Mr Dinner Suffice it to say that these questions were directed at establishing that the meetings 'were delayed so that the suspension could also be delayed, thereby depriving the grievor of the opportunity to work, as scheduled, during a statutory holiday Given our finding that this did not take place there is no need to exhaustively review this issue in our award. It was suggested to Mr Hewitt that Mr Dinner never said that he put the May 10, 1993 tach card in the machine. Mr Hewitt testified that what Mr Dinner said was that since his writing was on the old card he must have also inserted the new card Mr Hewitt agreed that he told Mr Dinner that the grievor was a bad influence Mr Hewitt rejected the suggestion that the grievor asked that the meeting on May 17, 1993 be postponed so that he could obtain representation by a union steward. Mr Hewitt did agree that he asked the grievor if he could tape this meeting but that the grievor would not give his consent to Mr Hewitt doing so . ! (!--' 13 ~ Mr Hewitt was asked if he recalled telling the grievor during the May 17, 1993 meeting that Mr Dinner had said that he did not appreciate getting "dragged down" with the grievor Mr Hewitt could not rec~1I making this remark. He could also not recall telling the grievor that Mr Dinner had said that he, Mr Dinner, had inserted the new tach on May 10, 1 993 Mr Hewitt did agree that he had called Mr Dinner on May 17, 1993, and indeed he had already testified to having done so During this conversation he asked Mr Dinner to write a report. Mr Hewitt rejected the suggestion that he asked Mr Dinner to include in this report the statement that he had inserted the new tach card Mr Hewitt was advised that Mr Dinner would testify that he told Mr Hewitt that he did not recall who put in the new tach card Mr Hewitt was also advised that Mr Dinner would testify that Mr Hewitt told him during this telephone conversation that he, Mr Hewitt, was "in a real jam because I know the grievor is lying and I can't prove it." Mr Hewitt could not recall making these remarks, but he could recall saying that he did not have anything concrete on the grievor and so would appreciate it if Mr Dinner could write something down Mr Hewitt never asked the grievor to write an occurrence report because the grievor never indicated that he had anything to say - Insofar as the suspension was concerned, Mr Hewitt agreed that he had no physical proof that the grievor had destroyed the tach card He felt that the grievor had done so, and this feeling was confirmed by the investigation that was conducted. Mr Hewitt concluded that the May 10, 1 993 tach card should have had Mr Dinner's writing on it, and the fact that it did ,not suggested that the grievor had removed the original card and replaced it . . 14 ,~ with one of his own Mr HeWitt was prepared, however, to agree that the person who removed the old card was not always the person who inserted the new one . Re-examination of Mr. Hewitt In re-examination, Mr Hewitt testified that if the grievor had explained and apologized the employer likely would have reached a different result. All that the employer wanted in this case was an explanation of what had occurred, and the grievor had consistently refused to provide it with that explanation. Evidence of Doug Dinner Mr Dinner testified He has worked for this employer for ten years and is a full-time Ambulance Officer and part-time dispatcher Turning to the events of May 10, 1993, Mr Dinner could recall removing the old tach card He could not recall doing the radio and time check. Nor could he recall inserting the new tach card. Mr Dinner described what occurred on May 10, 1993 Very briefly, Mr Dinner, the grievor and Mr Schwientek went out on a call, picked up a patient and delivered the patient to the hospital The ambulance was then directed by dispatch to proceed to a standby location. On the way to that location, the ambulance stopped at a Tim Horton's. It was Mr Dinner who suggested stopping for a coffee. Dispatch was not notified of this stop, and Mr Dinner candidly conceded that it was unauthorized A few minutes after arriving at the standby location, while Mr Dinner, the grievor and Mr Schwientek were enjoying their coffee, Mr Papple arrived. He immediately discerned that an unauthorized stop had been made Mr Dinner stated, "You . 15 (!II caught me " Shortly thereafter the ambulance was directed to return to base. Mr Dinner, Mr Schwientek and the grievor made their way into the lounge. Mr Dinner testified that he entered the lounge first and that the grievor followed a few minutes later ""' On May 12, 1993, Mr Dinner was called into a meeting with Mr Jacobson, Mr Hewitt and Mr Papple. Mr Dinner admitted to making an unauthorized stop He testified that he could have lied and said that someone had delivered the coffee to them, but he chose not to do so Mr Dinner was also shown photocopies of various tach cards including the May 7 & 10, 1993 tach cards It was clear that Mr Dinner had removed the May 7, 1993 tach card. He was then asked about the May 10, 1993 tach card. He stated that he told the management representatives that he could not recall inserting the I new card He described this task as routine, but noted that sometimes employees forget to remove the old card and to insert a new one. Mr Dinner considers the carda very important piece of equipment, and testified that ensuring that it is properly inserted also serves his personal interest. For example, if he was ever accused of speeding, he would want to rely on the card to demonstrate that this accusation was unfounded Mr Dinner insisted that he never said that he put the new tach card in, all that he said was that he could not recall doing so After this meeting, Mr Dinner was contacted by telephone by Mr Hewitt, who asked him to write an incident report stating that he had inserted a new tach card the morning of May 10, 1993 Mr Dinner advised Mr Hewitt that he could not write such a report as he could not recall whether he had inserted the new card that morning Mr Hewitt then said: "I'm in a real jam. I know he's [the grievor] lying, but I can't prove it." Mr Dinner refused . 16 '" ,~ to write the report. He did not have the impression that Mr Hewitt was asking him to lie Mr Dinner was asked a number of questions about the tachograph. He could not recall looking at it on May 10, 1 993 Had he seen that it was open, or that it was improperly closed, he would have notified management and submitted an appropriate report. In preparation for this hearing, Mr Dinner met with employer counsel and reviewed all of the tach cards he completed in the six months prior to May 10, 1993 These tach cards, along with those filled out by the grievor, \ were, as already noted, introduced into evidence On twenty-one occasions, Mr Dinner took the old tach card out and put the new tach card in. On twenty occasions, Mr Dinner did not take the old tach card out or put the new tach card in. On one occasion, Mr Dinner did not take ~he old card out, but he did put the new card in On no occasion did Mr Dinner take the old ~ card out and not put a new card in- Cross-Examination of Mr. 'Dinner Mr Dinner was asked a number of questions in cross-examination He reiterated his earlier evidence that he could not recall putting a new card in on May 10, 1 993 He also testified that while he generally put a new card in if he took an old card out, he could not and would not say that he always did so On May 10, 1993, Mr Dinner suggested stopping for coffee The grievor was reluctant to do so Mr Papple appeared within five minutes of the ambulance arriving at the standby station. At that time, Mr Papple did not . ----------- ,I 17 ~ indicate that he was going to impose any discipline for the unauthorized stop Mr Dinner was, however, concerned about the prospect that he might do so Mr Dinner described the atmosphere at this encounter as fairly relaxed He noted that there was laughing and joking about Mr Dinner and the others having been caught. With respect to the meeting with management on May 12, 1993, Mr Dinner testified that Mr Hewitt suggested that he not put his neck on the line for the grievor as the grievor would not do it for him. Mr Dinner did not say that he put the new tach card it, what he said was that he did not recall doing so, and he testified that management must have concluded from this that he had in fact inserted the card. _Mr Dinner understands that the grievor was subsequently advised that he admitted to management to having inserted the new card When Mr Hewitt telephoned and asked him to write an incident report, Mr Dinner felt uneasy and uncomfortable about the tone of the conversation In Mr Dinner's fourteen years on the job he has experienced malfunctioning tachographs He testified that one or two of these machines must be examined annually Mr Dinner has experienced the door opening when the ambulance is in motion. He testified that the grievor was a reliable partner \ Re-examination of Mr. Dinner In re-examination, Mr Dinner was asked a few more questions about what occurred when he was caught with the coffee He testified that Mr Papple was laughing, joking and making comments to the effect of, "You should know better" Mr Dinner was not sure whether Mr Papple intended to . 18 impose discipline as a result of this incident. With respect to the unexpected opening of tachograph doors, Mr Dinner could only recall this having occurred on one occasion many years previously when the machines were mounted on the dash He gave the Board some details of this incident. The Union's Case Evidence of Stephen Lightfoot Mr Lightfoot testified He has held the position of Driver-Attendant for approximately fifteen years and has experienced various problems with the tachograph. On occasion, these machines have failed to record some inform~tion He has also experienced tachographs failing to record any information He testified that while it was generally the practice to put a new tach card in after taking the old one out, this practice was not always followed Over the years, problems with the tachographs have increased, and one reason for the increase is that they are now located under the seat. They are, therefore, out of view Mr Lightfoot has experienced the tachograph door popping open. In his opinion, even if the machine door was closed and locked it was still possible, especially with the old machines, for it to pop open. Cross-Examination of Mr. Lightfoot Mr Lightfoot was asked a number of questions in cross-examination He was asked about the operation of the tachograph and agreed that if the door was shut but not locked the machine would still make an indication to this effect on the tach card In his opinion, if the tachograph door was open, and if the vehicle was going up a hill, it is possible that it would register on . - 19 , the card because of the forces of gravity He noted that the door is hinged and is therefore susceptible to movement. In his experience, it was not likely that a tachograph door that flipped open would later flip shut and lock itself ~ Mr Lightfoot was asked to recall any of the cases in which the tachograph failed to record anything at all, but he could not do so He could recall instances where the door was only partially shut, and in the result there were partial recordings Mr Lightfoot was familiar with the employer's policies with respect to the operation of the tachograph. He could not recall ever reporting a defect in the operation 'of one of these machines to the employer There was, he told the Board, a difJerence between mechanical and human error. He would definitely bring the former problem to the employer's attention. Mr Lightfoot could not, however, recall reporting to the employer the unexpected opening of a locked tachograph. He testified that given the nature of his work he recalls certain events, such as accidents,but not events of a routine nature such as those involving the operation of the tachograph. He was sure, however, that at some point in the last five years he had seen a locked tachograph come open. While he did not prepare a report about this incident, he probably, or possibly, discussed it with his supervisor If such an incident were to occur while he was operating an ambulance, he would simply relock the door and continue with his assigned tasks. Evidence of Wayne Buckley Mr Buckley testified. He is a union steward and has been employed as an Ambulance Officer for the past seven years. On May 20, 1993, Mr Buckley received a telephone call from Mr Hewitt, who asked him~o attend a ... ,- 20 meeting the following morning in his capacity as union steward Mr Buckley met briefly with the grievor before the start of the meeting, and the grievor advised him that the matter concerned an unauthorized stop for coffee and that he, the grievor, did not have much more to say Mr Buckley told the Board that the meeting took approximately thirty minutes and that he expressed the view that a forty-hour suspension was excessive Mr Buckley has had problems with tachographs in the past, and these problems include the time, date and mileage not being recorded. On one occasion, Mr Buckley was advised that the clock on his tachograph was out by several hours. He was advised of this by his supervisor He was not asked to prepare an incident report about this incident. Sometimes Mr Buckley will remove the old tach card but will not insert the new one On one occasion, Mr Buckley discovered that the door on his tachograph was open after he returned to base He testified that because the tachographs are located under the seat, if the door was not completely open the fact that it was ajar might go unnoticed. Cross-Examination of Mr. Buckley Mr Buckley was asked a number of questions in cross-examination. He agreed that if the tachograph door was locked, it would work. He was not, however, fully familiar with various other details concerning the workings of the machine, and he testified that no one in management has ever provided him with instruction in its operation and functioning He did agree that it was not likely that a locked tachograph would open on its own There was, however, always the possibility that it might do so if the machine's lock was worn. 21 It was suggested to Mr Buckley that there was no need for him to write an incident report on the occasion when the clock on his tachograph was improperly set because that fact was brought to his attention by his supervisor He testified that it was still normal practice for employees to write reports for any unusual events. On the occasion when he discovered that his tachograph was not closed, Mr Buckley did not bring it to his supervisor's attention because he figured that if the supervisor had any questions about it he would ask and Mr Buckley would, at that time, explain what had occurred. With respect to the meeting that took place on May 21, Mr Buckley agreed that the grievor was given an opportunity to provide an explanati9n for the missing period of time on the May 10, ,.993 tach card but declined the opportunity to do so. Evidence of Dale Vining The grievor testified He has served as an Ambulance Officer for more than eight years He is also a union steward and negotiator The grievor described his activities on May 10, 1993 He testified that he could not recall who replaced the old tach card and who made the radio check. In general, the person who took the old card out was also the person who put the new card in. The grievor testified that he knew that if he removed a tach card after the start of a shift and replaced it with another tach card, a period of time would go unrecorded. The grievor told the Board that he did not remove the card after the start of shift, and believes that he inserted the card, which began recording at 8.40 p.m., at the start of the shift. The grievor was aware that members of management regularly collected and reviewed tach cards. . :! 22 The grievor was in the ambulance when Mr Papple arrived and discovered all three members of the crew drinking coffee Everyone was laughing about being caught, and the grievor did not expect any disciplinary action The grievor worked his regularly scheduled shift on May 11, 1993, and there was no indication that discipline was in the offing He then had several days off, and returned to work for the night shift on May 17, 1993 A t that time he was summoned to the main base for a meeting with Messrs. Jacobson, Hewitt and Papple He was not advised to bring a union steward with him. When the gri~vor was asked if the meeting could be taped, he specifically requested a steward He told the Board that he was also advised that his partner would not be permitted to attend the meeting as a witness According to the grievor, management insisted that the meeting I continue The grievor testified that he conceded to making an unauthorized stop He was given a written warning for having done so The meeting then moved on to a consideration of the tach card and the fact that one hour and forty minutes was not recorded on it. The grievor was advised that Mr Dinner had admitted taking the old card out and putting the new card in. The grievor was told that the fact that the card that was found in the machine was put in by him proved that he had taken Dinner's card out and replaced it with one of his own The grievor denied doing so and testified that it was clear to him that management had not called him to the meting to answer questions or to assist in the investigation Rather, in his view, the purpose of the meeting was for management to tell him what he had done wrong On May 21, 1993, the grievor was scheduled to work beginning at 8 00 a m. The night before he learned that he was to attend a disciplinary meeting, . 23 '! I and when he arrived for that meeting he was advised that the subject matter of the meeting was the missing tach card The grievor testified that Mr Hewitt advised him that management knew that he had taken out the original tach card and destroyed it. Accordingly, management had no choice but to give him a one-week suspension. The grievor was again advised that Mr Dinner had reported taking out the old tach card and putting in the new one, and since the tach card which was found in the machine had been filled out by the grievor, the conclusion was inescapable that he had removed and destroyed the tach card that had been inserted by Mr Dinner The grievor again denied doing so (indeed, he had already discussed this matter with Mr Dinner, who told him that he had never said any such thing) After receiving the 40-hour suspension, the grievor pulled out some grievance forms and began to fill them out. The grievor testified that the suspension, which was effective immediately, came at the start of a long weekend, during which he had been scheduled to work. Accordingly, he not only lost forty hours of pay, but he also lost the premium pay for the Victoria Day holiday Over the years, the grievor has come across tach cards with missing data He has also experienced tachographs opening while the ambulance is in motion. This was much more common several years ago when the tachograph was located on the dash. Cross-Examination of Mr. Vining I Mr Vining was asked a number of questions in cross-examination. He agreed that the tachograph will record if it is properly locked If the tachograph is properly locked this will be indicated on the card. If the door . f" 24 is improperly closed, this mayor may n6t be indicated on the card The grievor was asked about the likelihood of a closed tachograph flipping open, and he testified that if the machine was properly closed, this would be somewhat unlikely \ The grievor reiterated his belief that on May 10, 1993 he inserted the tach card at the start of the shift. When asked to provide an explanation why it did not begin recording until approximately 8 40 a m., the grievor testified that either the door must not have been properly closed or that the machine had malfunctioned The grievor did not speak with Mr Papple when he caught the crew drinking the coffee He did, however, hear the conversation and specifically heard Mr Dinner stating, "You caught me " Mr Papple was working at the grievor's . base on May 10, 1993, but did not say anything about the incident when the grievor and the others returned from standby The grievor could not recall Mr Hewitt advising him on May 17, 1993 that the employer's investigation would be continuing. The grievor testified that he probably would not submit a written report if a tachograph was not functioning properly because the cards are reviewed by management at least once a week. He also testified that he was not aware that the employer wished to be advised about a malfunctioning tachograph. The Employer's Reply The employer called an expert witness to give reply evidence Evidence of Ms. Kathi Langhammer Ms. Langhammer testified. A mechanical engineer, Ms Langhammer has . '! 25 years of experience with tachographs, and has given expert evidence about I these machines and the interpretation of their results in courts of law as well as before arbitration hearings. She has prepared more than 3,000 Accident Reports and more than 2,000 Special Reports The union did not object to her being qualjfied as an expert, and a copy of her May 1 8, 1 994 report was introduced into evidence Ms. Langhammer testified generally about the workings of the tachograph She testified that as soon as the tach door is closed and locked it begins to record, whether the vehicle is in motion or not. The tachograph is an electronic scientific instrument with no mechanical parts. Ms. Langhammer reviewed a number of examples of tach cards taken from the tachograph at issue in this case She noted that any deficiencies in the operation of the machine will appear on all samples. The only deficiency in this case was the fact that the tachograph did not record distance. I Turning to the specific tach cards, Ms Langhammer testified that the May 7, I 1993 card indicated that it had been in place over the course of a weekend. The May 7, 1993 tach card also indicates that the tachograph was opened at I 7 00 a.m. on that date. Ms. Langhammer's report states: "The chart itself does not show whether or not is [sic] was removed at this time However, it is common practice to remove the chart at the end of the trip or shift and to insert a new blank chart~" May 1 0, 1993 was a Monday, and the tach card taken from the machine on that date indicates that it was opened and closed twice at 843 a m., and then remained in place until it was removed and replaced. There were no markings indicating that it had been inserted at 7 00 a.m. The Report ---.- ~ '. 26 ,... states: "If a chart was inserted at 07 00 and the tachograph was closed then all styli would begin to record at this time" Ms. Langhammer was asked to provide an explanation for the tachograph's failure to record between 700 a.m. and approximately 8.40 ~a m. She stated that there were three possible explanations' 1 A chart was not inserted at 07 00 and the tachograph operated without chart until 08 43 At 08 43 the tachograph was opened, a chart was' inserted and the tachograph was closed 2 A chart was inserted at 07 00 and the tachogr:aph was not closed until 08 43 - 3 A chart was inserted at 07 00, at 08 43 the tachograph was opened, the chart was removed and the chart dated May 10, 1993 was inserted. Ms. Langhammer testified that apart from the distance stylus, which was not recording, the tach cards indicated that the machine w~s operating properly She also told the Board that even if the door was not completely closed, there was a likelihood of the tachograph making some markings on the cards as the different styli were spring-loaded and some of them might still make contact with the tach card paper For example, the speed styli might be engaged although the recording location on the actual tach card might be displaced Ms. Langhammer told the Board that it was absolutely impossible for the door to be closed and locked and for the tachograph to fail to record . ;, 27 Cross-Examination of Ms. Langhammer In cross-examination, Ms. Langhammer was asked a number of questions about the circumstances in. which her services were retained. She was also asked whether there was any way in which the tach card could be inserted at 700 a.m. but show no recordings until approximately 8 40 a m. Ms. Langhammer testified that this was impossible for the tachograph in issue, with the exception of the indication for mileage, worked properly The evidence having been completed, the matter turned to argument. Employer Argument In employer counsel's submission, the evidence established that the grievor removed and destroyed a tach card, and counsel argued that this was a deliberate destruction of ~overnment property, that it was intended to ) mislead the employer, and that it "!lore than justified the discipline that was imposed Turning to the matter of motive, counsel suggested that the grievor might have destroyed the tach card for a number of different reasons. First of all, there was always the possibility that the grievor, when he returned to base, simply panicked and thoughtlessly destroyed the card There was also the possibility that the grievor intended to deny stopping for coffee, suggesting instead that someone had dropped the coffee off, and so had no choice but to destroy the card that could be used to establish that the unauthorized stop was, in fac~, made In this regard, counsel noted that Mr Dinner testified, when asked about the unauthorized break, that he could have lied but . ~. '" 28 decided to tell the truth instead In counsel's submission, had' Mr Dinner and the grievor decided to lie, the destruction of the first tach card was necessary as that card could have proved that they did make an unauthorized stop Counsel suggested that the evidence proved that it was Mr Dinner who inserted the first tach card at around 7 00 a.m. In this regard, counsel noted that with a limited and unrelated exception, it was always Mr Dinner's practice to insert a new card after removing the old one Given that the tach card that was eventually recovered from the ambulance was submitted by the grievor, the inference was irresistible, employer counsel argued, that it was the grievor who destroyed the original tach card and replaced it with a substitute after returning to base In the employer's submission, if the Board found that the grievor did remove one tach card and replace it with another it would not be appropriate to interfere with the penalty the employer has imposed given that the grievor was in an unsupervised position of trust (Re Eastern Ontario Health Unit and CUPE. Local 1997 23 L.A C. (3d) 258 (Willes) In counsel's view, the employer had more than met the evidentiary burden of establishing the facts necessary to support the discipline that was imposed. e Referring to Re Leisure World Nursing Homes Ltd. and Service Employees' International Union. Local 204 9 L.A.C. (4th) 338 (Brent), counsel pointed out that in that case, as in the instant one, there was only one piece of objective evidence, and that piece of evidence supported the conclusions reached by the employer Once that objective evidence was combined with the documentary evidence indicating that Mr Dinner almost always put in a . -- ,~ ~ 29 new tach card after taking the old one out, not to mention his viva voce testimony to that effect, the only conclusion that could reasonably be reached is that he did so on May 10, 1993 In the result, the grievor had to have removed the card since the one that was eventually recovered had been inserted by him. While it was true enough that this conclusion was based in large part on circumstantial evidence, counsel argued, citing Re McDonnell Douglas Canada Ltd. and CAW. Local 1967 14 L.A.C. (4th) 234 (Gorsky), that: There is no rule in civil matters which requires that evidence, merely because it is circumstantial, be given less weight than direct evidence It is, after all the evidence has been heard, necessary to determine whether the evidence is cogent as in the case of direct evidence The trier must assign the appropriate weight to the evidence. (at 242) In the employer's view, the evidence presented in this case was both cogent and compelling, and ultimately led to the conclusion that the grievor, after being caught making an unauthorized stop, removed one tach card and replaced it with another, thus explaining the recording gap In closing, counsel argued that there was absolutely no evidence whatsoever supporting the union's allegation that the employer delayed imposing discipline so as to deprive the grievor of working on a statutory holiday Instead, counsel submitted, the evidence established that the employer conducted a thorough and proper investigation, and, given the grievor's work schedule, not to mention the need to speak to everyone involved, the investigation was conducted with very little delay ~-~~ ~ .~ -. 30 . Union Argument In the union's submission, the employer failed to establish that the discipline imposed was either just or warranted. In Ms. Lee's submission, there was no basis for the employer's conclusion that it was the grievor who removed one tach card and replaced it with another Very simply, Ms Lee argued that there was no reason for the grievor to do sQ When the grievor and Mr Dinner were caught drinking coffee, Mr Dinner admitted to Mr Papple that he had been caught. While the grievor did not participate in this conversation, he did overhear it. And that being so, why would the grievor return to base, remove one tach card and replace it with another one? Ms. Lee noted that the grievor was generally aware of how the tachograph / worked, and he knew that replacing a card midway through a shift could not but be noticed by management when the cards were subjected to their weekly review This is another reason, the union argued, for finding that the grievor's version of events should be preferred. And to further support this submission, counsel referred to the evidence of both union witnesses, as well as that of the grievor, to the effect that there have been problems with tachographs in the past. , , Ms. Lee also took issue with the employer's conduct of the investigation In her view, the employer focused on the grievor at the outset and pursued an investigation that could only lead to its preordained conclusion that the grievor was somehow culpable for the tachograph's failure to record While Mr Hewitt stated that the grievor did not assist in the investigation, Ms Lee suggested that the grievor gave what assistance he could given that he did not know why the tachograph had failed to record. Ms. Lee noted that . 1-' 31 ,.' the employer sought to tape the first meeting, and that that meeting took place in the absence of union representation, which the grievor had specifically requested She also pointed out that the employer sought to mislead the grievor by attributing remarks to Mr Dinner that he definitely did not make Instead of focusing on the grievor, Ms. Lee suggested that the employer should have focused on what might have gone wrong with the tachograph Instead of only asking Mr Dinner for an occurrence report, the employer might have asked the grievor to prepare one as well For whatever reason, the employer determined, Ms Lee argued, that the grievor was responsible, and did everything it could to find ways of attributing that responsibility to him. Mr Hewitt's remark that he was "in a jam" was particularly noteworthy in this respect. 1 Finally, Ms. Lee pointed out that there was evidence before the Board indicating that tachographs sometimes do fail to record periods of time. For example, among the photocopies of the tach cards for the shifts worked by , the grievor and Mr Dinner in the six months prior to May 10, 1993, there were two examples of tach cards that were apparently inserted at the start of a shift but that failed to show any markings until sometime thereafter On March 15, 1993, the grievor and another employee were working the 0800 to 1800 shift. The tach card does not, however, begin to record until approximately 10'00 a m. On January 8, 1993, the grievor and another employee were working the 1800 to 0800 shift, but no markings appear on the card until approximately one hour after the start of the scheduled shift. The existence of these two examples, and Ms. Lee suggested that there could be others, indicated that the tachograph was not infallible, and this . ,eb ,,!-~ 32 ,. - " was yet another reason for finding that the employer had failed to discharge its evidentiary burden Ms. Lee asked that the suspension be set aside and that the grievor be compensated for lost wages and benefits, including the additional compensation he lost as a result of not working on the statutory holiday Employer Re ply In reply, counsel ar~ued that the employer had more than met its evidentiary burden, and that there were explanations for the two examples of apparently malfunctioning tachographs. With respect to the union's allegation that management lied to the grievor about what Mr Dinner actually said, counsel pointed out that Mr Dinner testified that the employer apparently understood from what he had said that he must have inserted the new tach card. In these circumstances, the employer was not lying when it reported its understanding of what had occurred to the grievor Decision Having carefully considered the evidence and arguments of the parties, we are of the view that the grievance should be upheld The union did not take issue with the written warning the grievor received for his unauthorized stop It also withdrew the grievance alleging that the grievor had been improperly paid What the union took issue with was the forty hour \ suspension the grievor received based on the employer's finding that he had improperly removed the tach card from the ambulance tachograph, replaced it with a new tach card and then destroyed the original tach card, presumably as part of an effort to cover up the unauthorized stop. Very . .--,~,,>. -----""- ~.. ,~ -;" 33 simply, in our View, there is insufficient evidence to support this finding, and on this basis the grievance is allowed Obviously, this is a difficult case. We heard expert evidence that tachographs, if properly operated, never fail The evidence also establishes that in almost every case where Mr Dinner removed the old tach card he inserted a new one, and that the machine then operated without incident. The tach card which was removed from the tachograph on the day in question had, however, been filled out by the grievor, and management had some reason to conclude, in all of the circumstances of this case, that the grievor had removed the old tach card and replaced it with a new one The fact that the tachograph was opened and closed twice at 8 43 a m. and that it then began to record properly is strongly suggestive of the conclusion that the old card was removed at this time by the grievor who replaced it with a new one. However, the evidence also establishes that there was absolutely no reason for the grievor to remove the old tach card and replace it with a new one. He and Mr Dinner had been caught making an unauthorized stop. Removing one tach card after the fact and replacing it with another does not, in these circumstances, make any sense It would have required the' grievor, Mr Dinner and Mr Schwientek to enter into some kind of conspiracy in order to explain the presence of coffee in the ambulance Needless to say, we heard no evidence of any such conspiracy What we did hear evidence of was that sometimes the person who takes the old card out does not put the new card in. Mr Dinner testified that he could not recall putting the new card in, and there was evidence that he had put a new card il1, on one occasion in the past six months, without having taken the old ca rd out. ~-~- --- .: --"".- ~ ~~ ,,.: 34 ~ The evidence also establishes that the grievor knew that the tach cards were regularly checked by management, and that if he took ,a card out mid-shift and replaced it with another card management would notice And the reason management would notice was because a period of time would go unrecorded It is possible, as employer counsel suggests, that the grievor, upon returning to base simply panicked and removed and replaced the card without realizing the consequences of doing so. Once again there is no evidence, as Mr Hewitt candidly admitted, establishing this to be the case. We heard some evidence from union witnesses about problems they had experienced with the tachograph machines, but given the failure of these witnesses to provide any specifics we are not inclined to give that evidence much weight. The employer's expert witness testified that these tachograph machines never fail. Yet there is evidence before the Board that on two occasions these machines failed to record for significant periods of time comparable to that in the instant case The employer's expert also testified that it was possible that a card had been submitted at 7 00 a m. and that the tachograph door was not closed until 8 43 a m. Given the fact that the grievor had absolutely no motive for removing one tach card, destroying it and replacing it with another, and given the fact that there is no proof that he, in fact, did so, we are inclined to accept this explanation While the grievor may not have properly closed the tachograph door when he inserted his card, and while he may have later corrected that mistake, that is not why he was disciplined He was disciplined for removing and destroying the old tach card and replacing it with a new one And, as we have found, there is insufficent evidence establishing this to be the case. . ~ ilJ. ~ 35 ~' '.,-J ': In these circumst~nces we find that the discipline imposed was unjust. As the effect of the suspension was to deprive the grievor of an assignment on a previously scheduled statutory holiday, we find; by way of remedy, that the grievor should' be compensated for 58 hours of lost wages together with. interest. All' recc;>rds relating to this suspension should be removed from his file Before concluding, a few final observations are in- order It is easy to understand management's frustration in dealing with this grievor He made no effort whatsoever to assist management in its investigation In response to employer questions he gave only the most cursory of replies, and this too was the approach he took in- testifying before the Board Some of his statements were simply unbelievable, for instance, that he was not aware that the employer wished to be advised about malfunctioning tachog ra phs. Overall, the grievor's attitude left something to be desired, and there is evidence that had he cooperated in the investigation of an important matter that matter might have reached a different conclusion However, managment's conduct of this investigation also leaves a great deal to be desired Telling the grievor ina disciplinary meeting that Mr Dinner had made certain statements when he had not, is not, in our view, an appropriate way for an employer to conduct an investigation A ttempting to record meetings on tape and denying employees access to union stewards, to cite another example, might achieve certain responses, but cooperation in an investigation is not likely to be among them. ~~ ;):JO' c~ 36 We remain seized with respect to the implementation of our award. DATED at Toronto this 4th day of October, 1994 - i!~ " William Kaplan Vice-Chairperson / 7 1 t:~ h V'l 'J -? l.--~ / z2 L I / t' I!;f"< 7 //" --_. ----------- / / J Carruthers /,. Member ~. 1111 Ql7~ M O'Toole Member ~~... - .