Employer offered temporary placement pending drug charges but drug test requirement not related to original reason for dismissal
When he took home a fare box containing almost $40,000 in cash and fares, a Toronto Transit Commission (TTC) employee was terminated after police confiscated the box.
On July 28, 2014, Tyson Hu — who had worked as a station collector since 2011 — finished his shift at Lawrence station and went home with the fare box. He should have left it locked up at the station instead of transporting the fares and cash, according to the collective agreement.
Collectors are required to lock cash and fare media on TTC property. If the collectors are working at a different station for their next shift, they are supposed to transport it the next shift day and be paid for the travel time while carrying the fare box.
Hu believed he would not be paid for the one hour of travel time to Castle Frank station, so he incorrectly took the box home.
Early on July 29, Durham Regional Police and Toronto Police executed a warrant and arrested Hu. They seized marijuana and hashish as well as the fare box. He was unable to work his 5:30 a.m. shift that day as he was held in custody until about 4:20 p.m.
Police kept fare box as evidence
On Aug. 1, Hu met with a TTC supervisor and an Amalgamated Transit Union, Local 113 shop steward. When he was asked to surrender his fare box, he told the supervisor he couldn’t do so as it was still in the possession of the police.
Hu was terminated for “failing to produce his collector fund, resulting in loss of care, custody and control of the fund, for misleading TTC management by booking off sick on July 29, 2014, when the grievor was not sick and for not following the proper procedure by taking his collector fund off TTC property.”
After a few meetings, his dismissal was upheld by the TTC on August 18.
But on Nov. 25, the TTC offered Hu a return to work effective Dec. 8, but as a crash gate worker pending a successful resolution to his drug possession charges. The offer was rejected by Hu and the union because it came with a drug test proviso, which Hu and the union found unacceptable.
On Sept. 1, 2015, Hu was reinstated to the TTC at the crash gate position. His drug charges were behind him as he was given an absolute discharge.
The fare box was eventually returned to the TTC on Aug. 4, 2015.
Arbitrator Owen Shime found that Hu’s “conduct in taking his collectors fund to his home and keeping it there was a significant breach of his duties and responsibilities as a collector.” But the offer to reinstate him in December 2014 was “unreasonable” with its stipulation that Hu must submit to drug testing.
“I find that by imposing a condition that Hu both be ‘subject to unannounced drug testing for the entire period of his temporary placement’ and that he submit to a drug test as a precondition to his returning to work was not only unrelated to the reasons for his discharge but was an affront to both his dignity and privacy and was an unreasonable precondition to his returning to work,” said Shime.
The TTC argued that because Hu didn’t accept the earlier offer to return to work, he did not attempt to mitigate his suspension.
“I find that there were elements to the offer of reinstatement that were unreasonable and that Hu was not required to accept the commission’s offer of temporary placement in these circumstances. Accordingly, there was not a failure to mitigate and Hu is entitled to compensation for the period commencing Dec. 8, 2014, until his reinstatement, in an amount to be determined by the parties.”
For more information see:• Toronto Transit Commission and ATU, Local 113 (Hu), Re, 2017 CarswellOnt 3749 (Ont. Arb.).