Video surveillance, witnesses place worker at scene of flood
An Ontario school board had just cause to dismiss a custodian with a long service record for sabotaging a school’s auto shop.
Mike Zale, 56, was a custodian for the Lakehead District School Board for 34 years, most recently at a high school in Thunder Bay.
On Jan. 16, 2018, two teachers entered the school’s auto shop after a staff meeting and noticed that the door was unlocked — they had locked it up at the end of the school day and ensured all tools had been put away and a water hose in the vehicle bays had been properly coiled.
They noticed the garbage cans had been emptied, so they figured Zale was still cleaning. However, he wasn’t there and when they walked to the auto shop area and turned on the lights, they found “around five to six inches of water covering the back shop area.” The water hose was uncoiled, connected to the tap, and “running full steam.” One teacher turned off the tap, which required more than two full turns.
The teachers also saw an electrical extension cord with one end plugged in and the other near the edge of the water. One of them kicked the end away and unplugged it, noticing wet footprints near the back door.
After making sure the water was slowly draining into the floor grate, one of the teachers — who was a supply teacher — went to find a custodian. He found Zale, who seemed unconcerned. Zale suggested he call a plumbing contractor, which surprised the supply teacher since he didn’t have the authority to call outside contractors.
The school principal was notified, and she issued a non-disciplinary suspension to Zale while she investigated. She viewed surveillance camera footage that showed Zale entering the auto shop for about 10 minutes and leaving shortly before the two teachers entered.
Zale said he had been cleaning the auto shop but was called to go to the office before he finished. He said he noticed the back door of the shop was “wedged open” and there was about four inches of water on the floor. He maintained he didn’t hear any water flowing from the hose. He then said he had spoken to the supply teacher and left him to make sure that the water was draining after he was “called away” a second time.
The school board determined that Zale had either deliberately attempted to damage school property or injure someone by turning on the water hose and plugging in the extension cord, or he failed to take reasonable steps to remedy or inform management of the flooding. Since Zale worked without supervision, the board felt he had breached his position of trust and it terminated his employment.
The union grieved the dismissal, claiming there was no evidence that Zale committed the misconduct.
The arbitrator found that the accounts of the teachers and principal were credible and were consistent with the video surveillance footage and the fact Zale was one of the few who had keys to the room. Therefore, it was apparent that Zale was the only one to enter the auto shop between the time the teachers left and when they returned.
Zale’s report that the hose wasn’t running was contrary to both teachers who had no reason to lie, and their evidence that he seemed unconcerned about the situation was consistent with the notion that he was responsible. In addition, the worker didn’t address the extension cord and turned-off lights.
The arbitrator determined that Zale committed “a deliberate act of sabotage” that was serious in the context of a high school where young people were around. Despite his length of service, the danger from his misconduct and his failure to admit any responsibility provided just cause for dismissal, the arbitrator said.
Reference: Lakehead District School Board and CUPE, Local 2486. Gordon Luborsky — arbitrator. Donald Shanks for employer. Mike Walters for employee. March 31, 2020. 2020 CarswellOnt 4495
