Complained of 'loosey goosey’ atmosphere
An arbitrator has ruled against the Toronto District School Board (TDSB) in the case of a worker who was repeatedly lackadaisical doing his job.
John Douglas had nine years of experience working as an unassigned engineer for the TDSB. His regular work involved driving to various buildings owned by Toronto Land Corporation and servicing the sites or delivering equipment.
On Dec. 8, 2015, Douglas was advised by manager of labour relations Marla Fowler that he was being accused of time theft, leaving work early, submitting false hourly cards and mileage, as well as making false sick-leave claims.
Douglas admitted all of the accusations were true, but said his immediate supervisor, known as a family team leader (FTL), knew about his behaviour and condoned it.
The FTL fostered a “permissive” environment that spawned the various transgressions. The FTL was accused of attending his own home during working hours, to check up on site construction, and of arriving late and leaving early often, as well as conducting personal business and shopping when he was supposed to be working.
As a result, Douglas was often left on his own.
“FTL told him he could run personal errands during work hours or go home early if all his assignments were completed, on condition he was available by telephone to deal with any new assignment,” said arbitrator Tanja Wacyk. “This appeared, from the surveillance of the FTL, to be the way the FTL managed his attendance at work, and it is not difficult to conclude that in that context as well, the grievor was not expected to do more than his FTL.”
In addition, the FTL had discussions with Douglas about potentially finding another job with TDSB because there wasn’t enough work to justify his continued employment.
Despite the “relaxed” atmosphere, all of Douglas’ work was being completed regularly.
On May 15, 2015, the FTL and Douglas drove to a job site in Shelburne, Ont., about 100 kilometres northwest of Toronto. After a couple of hours there, they went to Innisfil, Ont., to buy a garbage compactor for the FTL’s personal use.
The pair then went to Stouffville, Ont., where Douglas was dropped off at his trailer. Douglas was told he could claim eight hours that day, even though they didn’t return to Toronto the rest of the day.
The FTL initially said they were in Toronto later that day, but on cross-examination he changed his story after being presented with cell phone records indicating he was in Markham, Ont., near Stouffville, at 2:48 p.m. Since Douglas' shift was over at 3 p.m., it wasn’t realistic to expect him to drive back and resume his duties in Toronto.
Another reason for termination happened during the period of Aug. 19 – 21, 2015, when Douglas called in sick for three days, after being turned down for lieu days or sick days' credit. His claim of sickness was accepted by the FTL, even though he was the one who didn’t approve the earlier request for time off.
On two of those days, Douglas helped his brother-in-law to demolish his home and was paid for his time.
When questioned by Fowler during an investigation meeting, Douglas said “he had never done so before coming to the Central Services, and that ‘it’s too loosey goosey’ and that he made mistakes and took advantage of the lack of structure.”
The arbitrator ordered Douglas reinstated.
“Outside of the most egregious circumstances, which I find do not exist in this instance, it is now widely accepted that the lack of warning to an errant employee that their job might be in jeopardy, may lull them into a false sense of security about their work performance. To then discharge the employee without warning is ‘manifestly unfair since the employer has tolerated the relaxed standards which had been in existence and which the employee may have considered to be the norm.’”
Douglas was ordered to have a five-month suspension without pay to remain on his record and the TDSB was ordered to compensate him for the illegitimate termination.
Reference: Toronto District School Board and the Canadian Union Of Public Employees, Local 4400. Tanja Wacyk — arbitrator. Edward O’Dwyer for the employer. Tim Gleason, Rebecca Liu for the employee. July 28, 2016.
