John Burns - President, CAW Local 100
Jeff Fehr - Vice Area Representative, Transcona Shop
Tim Maltais - Sr. Manager, CN Mechanical
The grievors are experienced car
mechanics who hold positions on the road repair truck and work out of the
Company’s operations at the Symington Yard in
A preliminary award was issued on April
30, 2010 dismissing several procedural issues raised by the Union. The parties were
directed to reconvene May 18, 19, 2010 in Winnipeg to hear further evidence and
submissions on the merits. In addition to leading evidence and providing
submissions on the merits at the May sittings, the
I agree with the
There was only the one tape produced by the Company for March 30, 2009. That tape was just over two weeks old when it was produced by the Company at the April 14, 2009 investigation. As the Company pointed out, there are many such conversations that take place between the RTC and employees, like the grievors, who wish to occupy the track throughout the Company’s operational area. In my view, it fell on the Union to make a request for all of the March 2009 TOP recordings at the time of the investigation on April 14, 2010, when the Company produced the single March 30, 2009 recording, or at the final investigative meeting on April 24, 2009. It would have been incumbent on the Company to respond to such a request at that point or risk having an adverse inference being drawn at the arbitration hearing. In this case, however, it was not until May 8, 2009, a few weeks after the last investigative meeting on April 24, 2009, that the Union first requested the actual tape recordings. Given the lapse of time, I am not prepared to infer that the tapes were not produced because of any deliberate or wilful action on the part of the Company to dispose of them prior to the arbitration hearing. As such, there has been no abuse of process leading to a nullity of the discipline as submitted by the Union. In addition, I note that the Union had access to the March TOP summaries from the outset which, as the Company pointed out, follow a set script prompted by a mandatory work sheet.
Turning to the merits, it is worth noting at the outset that the Company’s case is based in large part on discrepancies identified in the grievors time sheets submitted in March 2009, including March 1, 2009. However, I note that the Company never questioned the grievors about the alleged discrepancies for March 1, 2009 either at the investigation held on April 14, 2009 or at the supplemental investigation held on April 24, 2010. In the absence of any questions being put to the grievors over any alleged discrepancies in their time sheets and related receipts for that day, I am not prepared to place any weight on that evidence in determining whether there was just cause for discipline for that day. On the other hand, the Company questioned the grievors at their investigation over a number of other alleged incidents during March 2009, including the following:
March 2, 2009
The time sheets read that the grievors were on the job beginning at 07:00 and worked through regular service to 21:00. The time sheet further indicates that the grievors repaired cars between 08:00 and 13:00. The time-stamped restaurant receipt shows a morning meal was paid for at 08:28. The time sheet also indicates that the post-trip and meal took two hours from 21:00 until 23:00. The restaurant receipt for the evening meal is time-stamped at 21:05. The TOP is recorded at 18:18 (Webster) and the record of the hotel check-in time is 19:39. Both the grievors were asked at the initial investigation of April 14, 2009 to explain why they would have checked into the hotel at 19:39 and then not reported off duty until 21:00, for regular service, and 23:00 for the post-trip and meal. Both grievors indicated that they checked in to the hotel at 19:39 in order to turn up the heat and use the bathroom facilities before returning to work in the Sioux Lookout yard. Mr. Graham testified at the arbitration hearing that the 08:28 meal receipt was the time he paid his bill at the Wellington Inn restaurant in Sioux Lookout. He added that he could not recall whether he purchased sandwiches that morning or whether he had a sit-down down breakfast meal. In terms of an explanation for the dinner receipt at 21:05, when the time sheet shows the post-trip beginning at 21:00, Mr. Graham indicated that the times recorded on the sheets were often rounded off and that it was only five minutes to the yard from the restaurant.
March 4, 2009
The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 20:00. The restaurant receipt for breakfast at Sioux lookout is time-stamped at 08:33 while the time sheets show them travelling to Richan and then back to Sioux Lookout between 08:00 and 15:00. The time sheet further indicates that the grievors repaired cars between 15:00 to 20:00. The time sheet also indicates that the post-trip and meal took two hours from 20:00 to 22:00. The restaurant receipt for the evening meal is time-stamped at 16:36. The motel record check-in time is recorded as 19:34. The grievors were asked at the investigation why the time sheet indicates that they checked into the motel at 19:34 and yet they did not report off duty for regular service until 20:00, and 22:00 for the post-trip. Mr. Graham indicated at the investigation that they checked into the hotel at 19:34 because one of them had to use the washroom. Mr. Graham further testified in that regard at the arbitration hearing that the doors of the washroom at the crew house in Sioux Lookout were locked. He admitted in cross-examination that he never reported that fact to his supervisor. Mr. Graham testified that he returned to the Sioux Lookout yard, after checking into the hotel, to change the wheels on the three train cars. Mr. McCorry stated at the investigation that they arrived at the hotel at 19:34 and that it took until 20:00 to check into the hotel and wash up for their meal. Mr. McCorry also confirmed in his testimony at the arbitration hearing that it was his understanding that the tool house facility, including the washroom, was reserved for track maintenance personnel only and was closed at 16:00.
March 5, 2009
The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 22:00 that evening. The morning restaurant receipt at Sioux Lookout is time-stamped at 08:50 while the time sheets show the grievors loading wheels from 08:00 to 09:00. Mr. Graham testified at the arbitration hearing that he rounded off his time and that he was either eating or loading wheels at 08:50. The time sheet further indicates that the grievors repaired cars between 09:00 to 22:00.The time sheet also indicates that the post-trip and meal took two hours from 22:00 to 24:00. The motel record check-in time is at 21:46. Mr. Graham was asked at the investigation why he would have checked in to the hotel at 21:46 and not gone off duty until 22:00 for regular service and 24:00 for his post-trip. Mr. Graham replied that he had to “burn a wedge out of a five pack and I knew there was none available in Symington so I contacted Gerry Harder in Calder yard to have one sent to us. And that is why I did not go off duty until 22:00”. The cell phone records for the number assigned to the grievor’s road repair truck do not show any call to Mr. Harder at his phone numbers for the month of March 2009. However, Mr. Harder confirmed in an email dated April 23, 2009 to union representative Terry McKimm that the grievors did call him at home on the evening of March 5, 2009.
March 10, 2009
The time sheets read that the grievors
were on the job beginning at 07:00 and worked through to 01:00 on March 11th
.The time sheets also indicate that the post-trip and meal took two hours from
01:00 to 03:00. The motel record check-in is time-stamped at 23:43 at the
Travelodge Hotel in Kenora. Mr. Graham was asked at the investigation why he
checked into the hotel in Kenora at 23:43. Mr. Graham replied that he actually telephoned
the hotel to check in on March 10th. He explained that they had been
March 13, 2009
The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 23:00. The time sheet also indicates that the post-trip and meal took two hours from 23:00 to 01:00 on March 14th. The motel check-in is recorded at 19:07 in Sioux Lookout. The restaurant receipt for dinner that evening is time-stamped at 21:37. The grievors were asked at their investigation why they checked into the hotel at 19:07 and then not reported off duty until 23:00 for regular service and 01:00 hours on March 14th for the post-trip. The grievors again replied that they checked into the hotel to turn on the heat in their rooms, use the washroom and then returned to the yard in Sioux Lookout to repair cars. Mr. Graham added in his testimony that they evidently did go back to work after checking into the hotel because they did not eat that evening until 21:37.
March 16, 2009
As noted in the investigation, the time sheets read that the grievors worked through to 24:00. The time sheets also indicate that the post-trip and meal took two hours from 24: 00 to 02:00 on March 17th. The hotel check-in is recorded as 19:09 in Dryden. The grievors testified that they reserved the room at 19:09 by telephone. They also noted that the TOP was cancelled at 17:38 at Armstrong and that it took about 8 hours to travel from Armstrong to Dryden. The Employer did not allege any misfeasance on the part of the grievors for this trip in their submissions at the arbitration hearing.
March 17, 2009
The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 23:00. The time sheets also indicate that the post-trip and meal took two hours from 23:00 to 01:00 on March 18th. The motel check-in time is recorded at 18:02 in Dryden. The restaurant receipt for dinner that evening is time-stamped at 20:30 in Dryden. The grievors were asked at their investigation why they checked into the hotel at 18:02 and then did not report off duty until 23:00 for regular service and 01:00 hours on March 18th for the post-trip. The grievors replied that the hotel must have checked them in at 18:02 when they made their reservation over the telephone. The grievors testified at the investigation that they travelled between Dryden and Sioux Lookout that day and repaired six cars by 21:00. They then travelled two hours to get back to Dryden. They also noted, in support, that the work documents for that day show the RTC releasing one of the six cars at 21:10. Under cross-examination, Mr. Graham was asked how they ended up at a Dryden restaurant at 20:30. He responded by stating that they had also performed repair work in Richan that day, which was about a two hour travelling distance from Dryden. The Richan trip was not documented on their time sheets nor did Mr. Graham have any recollection of the time of day they made the trip.
March 30, 2009
The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 22:00. The time sheet also indicates that the post-trip and meal took two hours from 22:00 to 24:00. The hotel check-in is time-stamped at the Super 8 hotel in Kenora at 19:25:00 hours for Mr. McCorry and 19:25:54 for Mr. Graham. The RTC Log presented at the investigation shows the grievors clearing their TOP at 19:39 central time. The grievors claimed work time (highrailing) between 18:00 and 21:00. The grievors were asked at the investigation why they claimed highrailing between 18:00 and 21:00 when they gave up track protection at 19:39. The grievors replied that they still had to guage the wheel and secure it for travel, which took until 21:00. Mr. McCorry testified that they would have been checked in at the Super 8 hotel by calling in to reserve a room because their TOP was not cancelled until 14 minutes later.
March 31, 2009
The time sheets read that the grievors were on the job beginning at 07:00 and worked through to 22:00. The time sheets also indicate that the post-trip and meal took two hours from 22:00 to 24:00. The motel check-in time is recorded at 18:17 in Sioux Lookout. The restaurant receipt for dinner that evening is time-stamped at 20:53 in Sioux Lookout. The grievors were asked at their investigation why they checked into the hotel at 18:17 and then not reported off-duty until 22:00 for regular service and 24:00 for the post-trip. The grievors replied that once again they would have checked in to their rooms in order to turn up the heat and use the washrooms. They then returned to work repairing three cars in two different locations within the yard between 16:00 and 22:00.
its submissions, the
Bearing in mind that the Company has the onus of proof in this matter, and that an allegation as serious as fraud requires a high standard of clear and cogent evidence, what the case at hand presents is evidence which is equivocal at best. While the Arbitrator can appreciate the suspicions of the Company, particularly in light of the fact that the grievor’s stated limitations appeared, at least for a time, to increase as he was under the care of his chiropractor, the employer is nevertheless under an obligation to present evidence which compellingly establishes, on the balance of probabilities, that the grievor falsified his injury. That is not confirmed on the evidence before the Arbitrator.
The grievors consistently claimed two hours of “post-trip and meal” at the end of their work day. This is the time the grievors were typically supposed to be checking into hotels and eating their evening meals, as they both claimed they were doing in their daily time sheets. It may happen on occasion that the grievors were required to check in to the hotel to use the washroom facilities. It was simply unacceptable for them, however, to be checking into hotels on a consistent basis when they were supposed to be working. If there was an issue with accessing the washroom facilities in Sioux Lookout, for example, the grievors should have reported their concerns to their supervisor.
Unlike some of the other hotel receipts entered in evidence, the Travelodge hotel receipt for March 10th and the Super 8 hotel receipt for March 30th show the actual printed check-in times of the grievors. I note, by way of example, that the Travelodge receipt for Mr. McCorry is time-stamped at 23:41 and that Mr. Graham’s receipt is time-stamped at 23:43. This indicates to me that Mr. McCorry checked in first, in person, at 23:41 and that Mr. Graham then checked in second, in person as well, two minutes later at 23:43.
I simply do not agree with the
Given that the hotel check-in times evidence establishes a clear case against the grievors on its face, it falls on the grievors to provide a satisfactory explanation that the accepted business practices of the hotel industry were not followed. Specifically, it falls on the grievors, using the Travelodge example, to explain that they were in fact checked in by telephone at 23:41 and 23:43 on March 10, 2009. No corroborating evidence has been adduced by the grievors to support their explanation, including any supporting documents from the hotel, to show that the two reservations were actually called in by telephone at that those times. I find that the explanation of the grievors that they phoned in their reservations on the evening of March 10 and March 30, 2009, as well as on other occasions that month, do not stand up to scrutiny and seriously undermines their credibility.
I also have difficulty with the grievors explanations that they checked into the hotels to simply “turn up the heat and use the washroom”. By way of example, I note that the time sheets for March 13th show the grievors repairing cars from 13:00 to 23:00 (a post-trip and meal from 23:00 to 01:00). The hotel check-in occurs at 19:07 and a restaurant receipt was produced for Dick and Nellie’s Bar a half hour later at 21:37. The time sheet for March 31st, to cite another example, shows the grievors repairing cars at Sioux Lookout between 16:00 to 22:00 (a post-trip and meal between 22:00 to 24:00) while the hotel check-in occurs during the same time period at 18:17 and a restaurant receipt indicates a meal being paid for at 20:53.
The grievors consistently claimed at the investigation that they returned to work after checking into their rooms but there is no documentary evidence presented to back-up their claims such as clocked yard records or eyewitness testimony showing they were actually in the yard working. Given the clear evidence before me in the form of the hotel and restaurant receipts, and in the absence of any verified explanation to the contrary, I find that the grievors have attempted to cover up their actual whereabouts in order to justify their work hours, including overtime. This lack of honesty over their actual work time in the month of March 2009 seriously affects their credibility and ability to be trusted, particularly given that they are self-supervised employees who spend most of their working time on the road.
In the end, after a careful review of the evidence, I have come to the conclusion that these two long-term employees were submitting improper time claims. There are legions of cases which support the proposition that dishonest conduct breaks the bond of trust and causes irreparable harm to an employment relationship. The fact that the grievors are long-term employees with years of dedicated service is an insufficient basis to consider reinstatement under the circumstances. I note in that regard the comments of the arbitrator in CROA 1835 where the grievor was found to have falsified trip tickets and, as in the present case, did so knowingly for the purpose of enhancing earnings:
In the instant case, the conduct of the grievor is a form of theft. It is trite to say that such conduct, particularly in a position where a relationship of full trust is essential to the nature of the job, the most serious measure of discipline is justified. Decisions resulting in dismissal have consistently been upheld by this Office in such circumstances (see CROA 461, 478, 899, 1472, 1474)
It is also important to note in this case that the Union has gone to great lengths on behalf of both grievors to present a thorough and determined defence to the Company’s allegations, including raising several procedural issues which were dealt with in the preliminary award. Comprehensive briefs, conference call submissions and supporting materials were presented throughout the arbitration proceedings on their behalf. In the end, however, I find that the Company, on balance, has presented a convincing case of falsification of time sheets by the grievors during the month of March 2009.
For all the above reasons, the grievances are dismissed.
________________________________ JOHN MOREAU QC
July 21, 2010
1 It is worth noting that the Supreme Court of Canada has recently confirmed a single balance of probabilities test in the case of F.H. v. McDougall  3 S.C.R. 41. The Court emphasizes the need to scrutinize the evidence with care” at paragraph 49: “In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred”.