IN THE MATTER OF AN ARBITRATION

BETWEEN

CITY OF KAMLOOPS
(the Employer or City)

-and-

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 900

(the Union)

(Ian Price Suspension and Dismissal Grievances)

ARBITRATOR:

Robert Pekeles

COUNSEL:

Donald Jordan, Q.C., for the Employer

Charles Gordon, for the Union

DATE OF DECISION:

July 29, 2016

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INTRODUCTION

The Union grieves the 96 hour suspension and the dismissal imposed upon Ian Price, the
grievor. The suspension and the dismissal arose out of separate incidents, which I will
set out below.

FACTS - SUSPENSION

Price began to work for the Employer in 1992. He was a 22 year employee at the time of
his dismissal. At the time of his suspension (and dismissal) he was employed as a Water
and Wastewater Operator II (Operator II). He became an Operator II on April 23,
2012. I will expand upon that role later when I set out the facts related to his dismissal.
Rob Smith is the Utility Services Supervisor Operations for the Employer. Smith
testified that on May 20, 2014, at approximately 7:00am, Mike Long, a crew leader, told
Smith that Price had been involved in an accident. Smith went outside to see what
happened. He saw a blue Toyota Corolla that was damaged on the passenger side. It had
been backed into. Smith testified that he saw damage at the front of the car, but the worst
of the damage was at the back of the car. He saw Price get out of the Citys truck and the
other driver, whose name was Shawna Black, get out of her car. Smith testified that Price
said to her: Who are you? What are you doing here? Does your husband work here?
Dont you know that the City yard is for City employees only? Smith felt that that was
completely inappropriate.

He testified that Prices tone was disrespectful and

inappropriate.

Smith told Price to get the paperwork regarding the accident and that he (Smith) would
deal with the other driver. Smith went on to say that he made sure that she was okay and
did not need medical care. He asked her why she was there. She indicated to him that
she had brought her 4 year old child to watch planes take off from the airport. Black filled
out a portion of the Citys incident report and set out, among other things, her phone
number.

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Smith testified about an investigation meeting that took place on May 28, 2014. In terms
of the typed notes of that meeting, he testified that the notes accorded with his
recollection of the meeting.

Smith testified that at that meeting, Price gave his explanation. Price said that he had
done all his checks and was not clear how the car was behind him when he hit it.
According to Smith, Price characterized it as a minor bump. Smith testified that there
was no way that it was a minor bump. He testified that the back door of the car had
significant damage. The notes of that meeting have Smith indicating that when I went
outside, the 1st thing I hear was (Price) grilling Shawna Black. Smith testified that at
the meeting Price said he was not grilling her.
I pause here to set out Linda Rutleys evidence. Rutley is also an employee of the City.
She was in the administration building on May 20, 2014 and testified as to what she saw
through a window. She saw Price back up in his truck. It was apparent that he hit
something. She told Long. Long went to notify Smith. Rutley could not see anyone
speaking to anyone. Rutley testified that Smith later said that he wished someone had
seen the accident to save poor Ians ass. Rutley wrote a brief statement on Smiths
request. By memo dated May 30, 2014 Rutley sent a hand written note to Smith, which
read as set out below. Rutley testified that the statement was accurate as to what she saw
that day.
On Tuesday May 20th, 2014 @ 6:50am I witnessed Ian Price back out of
his parking stall and hit a vehicle in the city yard. I did not see the other
vehicle only the impact of the city truck hitting something. Ian was barely
moving, 1-2 km/h and had only backed up about 1 1/2-2 feet. I
immediately notified Mike Long who was standing by the photocopier and
he looked out the window then notified Rob Smith. I was sitting inside at
the table having my breakfast when I witnessed this.
In cross examination, Rutley testified that she did not see the vehicle that Price had hit.
She saw Prices truck come to an abrupt stop. She knew that he had hit something. She
described Prices truck as huge. By email dated May 30, 2014, with reference to

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Rutleys statement, Colleen Quigley, who I understand to be a Human Resources
manager for the City, wrote:
Her statement said Ian was barely moving..thats not good for us. Were
you the only one who overheard him talking to the woman? I want to put
something in the letter about the tone he used with her..he said the other
day he didnt think he was grilling her at all
Smith replied by email in the following terms:
Hi Colleen.
Sorry I have been out of the office until now. I agree it does not look good,
however Linda is sitting inside the lunch room at the table. Yes I was the
only one at the car when he started questioning Shawna. I know what Ian
is claiming however I would not have felt the need to stop the questioning
if I had felt he was just asking because he was concerned about her health.
Regardless I am fine with the context of the letter.

By letter dated May 30, 2014 Smith imposed a 96 hour (8 - 12 hour shifts) suspension on
Price in the following terms:

On May 28, 2014 we met with you to discuss a recent motor vehicle
incident that you were involved in at the Public Works Centre. CUPE
representative Mary Armstrong and Human Resources Manager Colleen
Quigley were also in attendance.
On May 20, 2014 at approximately 6:50 am you finished a meeting in the
Administration building and got into a City work vehicle. Upon placing it
into reverse, you hit an oncoming vehicle driven by a member of the
public. This resulted in significant damage to the other vehicle on the rear
right passenger side, where a four-year old child was sitting. In addition,
the force of the impact caused the other vehicle to be pushed to the side.
You then got out of the City vehicle and began to interact with the female
driver in a disrespectful and inappropriate manner, including questioning
as to why she was driving in the Public Works yard.
During our meeting, you claimed that you had completed a number of
shoulder checks prior to placing the vehicle in reverse. It wasnt until you
felt a bump that you realized you had hit a vehicle. However, based on
the evidence at the scene and the results of our investigation, it is our

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position that had you performed the required checks you would have seen
the oncoming vehicle and would have been able to avoid the collision.
You also denied that you were disrespectful with the member of the
public, despite my own eyewitness account to your communications with
her.
Your failure to acknowledge responsibility for your actions and your
previous disciplinary and safety record are of great concern to the City.
For these reasons, the City has given serious consideration to terminating
your employment.
However, given all of the circumstances, including your seniority, the City
is prepared, on a without prejudice, without precedent basis, to forego
termination and instead issue a ninety-six hour suspension without pay to
be served immediately. This allows you an opportunity to rebuild the
Citys trust in you. You are to report to work on Friday June 13, 2014 at
4:00 pm.
I must advise you that any further instances of misconduct, including but
not limited to safety infractions or inappropriate behaviour, will result in
your immediate termination.
In deciding upon that discipline, Smith testified that Price did not take any responsibility
for the cause of the accident. He also indicated that he had taken into account Prices
previous disciplinary record.

In terms of that disciplinary record, Price received a 2 day suspension dated September
27, 2012 for leaving a City truck idling without ensuring that it was secured. The truck
rolled several feet before it came to rest against the property fence, causing significant
damage to the vehicle.

Price received a 1 day suspension dated April 26, 2011 for having released a pipe while
under tension and it swung and almost hit a co-worker in the face. A few days later, he
did the same thing and the pipe swung and hit the bumper of a truck.

Price received a 1 day suspension dated January 26, 2010 for bringing knives into the
workplace to show to his fellow employees. Finally, Price received a 5 day suspension

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dated July 25, 2003 for making a statement to another worker that caused anxiety to that
worker and disruption to the workplace. He had brought a knife to the workplace.

In cross-examination, Smith agreed that he did not witness the accident. He further
agreed that he was in his office, Long came in, and he then left the building. It was put to
him that he did not hear Prices conversation with the woman. Smith replied that he
heard Prices four comments directly.

He agreed that he did not see it as a serious accident.

In terms of the May 28, 2014 investigation meeting, it was put to him that Price did not
say a minor bump. Smith testified that Price said a bump. Smith agreed that Price was
not minimizing the accident. Rather, Price was describing what he felt.

Smith agreed that other than the 2 drivers, only Rutley saw the accident. In terms of
Quigleys comment that thats not good for us, Smith was asked why that was not
good. Smith replied that he did not think that how fast Price was going had any bearing.
He agreed that he (Smith) agreed that it does not look good. He then stated that
Rutleys observation that Price was moving slowly meant that Price should have been
able to see the vehicle. He was subsequently asked if Price had backed out quickly,
would that have been better. Smith replied No sir.

Loren Cusator, a City Safety Advisor, arrived after the accident occurred. In crossexamination, Smith agreed that he did not tell Cusator that Price had been disrespectful.
Micheal Firlotte is the Citys Utilities Services Manager. He is Smiths boss. Smith did
not recall Firlotte coming out. Firlotte, however, testified in cross-examination that he
came out after the accident. Smith, Cusator and Price were there. He testified that no
one said that Price was disrespectful to the other driver.

Smith agreed that the other car should not have been in the yard. He agreed that Price did
not raise his voice with the other driver. He went on to repeat that he heard Price ask the

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other driver those 4 questions. Smith agreed, however, that Black, the other driver, did
not complain to the City. He agreed that he thought that Price had grilled her. He
further agreed that Price denied that. He agreed that one way to resolve that issue was to
speak to Black. However, that was not done.

Smith testified in cross-examination that he did not know that Barb Mackie, another
employee, had been in a vehicle accident.
Price testified about the May 20, 2014 accident. He testified that he arrived at the Citys
yard at approximately 6:40 am. On the gate of the yard it is marked Employees Only.
He went into the building for about 10 minutes to return a metal detector that he had
borrowed. The City service truck which he drove was a one ton truck. The box of it was
wider than the cab. He further testified that the box of the truck obstructs the bottom half
of what he can see through the rear view mirror of the truck. When he went out to the
truck, Price did not notice any vehicles.

Price got into the truck. He testified that he checked over his shoulder. He also checked
the 3 mirrors. He saw nothing. He looked back and put the truck into reverse. He
moved several feet and he felt a bump. He looked and he saw a dark car. He put the
truck in drive, then park, and got out. He further testified that he exited the truck
immediately.

He walked to the car. He saw a driver and a small child in the rear passenger seat. The
driver walked over. Price testified that he said to the driver: Are you okay? Is your child
okay? He asked the driver: Do you work here? She said no. He testified that he was
not rude at all and did not raise his voice. He testified that no one else was around. He
saw Smith come out the door of the building. Smith came out of the building about a
minute and a half after the accident. The vehicles were approximately 25 feet from the
door of the building. Price testified that Smith would not have heard Price talking to the
woman (driver). Price testified that Smith said nothing to him about how he had spoken
to the driver.

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Price was asked about the statement in the discipline letter that said: You then got out of
the City vehicle and began to interact with the female driver in a disrespectful and
inappropriate manner . Price denied that. He testified that it did not happen and that
it was not true.

In cross-examination, Price said that he was backing up. The woman was driving. He
testified that he was responsible for his part. He was asked whether the woman was
somehow responsible for his hitting her. He said no. Nor did he think that the City was
in any way responsible for the accident. He was asked whether he could see behind. He
replied: No. Above the box, you can see.

Price is a class 3 driver. It was put to him that he is not supposed to back up, unless it is
safe to do so. Price replied that he believed that was reasonable. He went on to say that
he had a duty to make sure that it was safe. He had checked everything. He testified that
the only cars that are there are City vehicles.
Price testified that he asked the woman: Are you okay? Is your child okay? Do you
work here or does your husband work here?

It was put to Price that the accident arose because he did not see the car. Price did not
believe that. He testified that We both played a part. That leaves a part for her. He
was asked on what basis was he only partially responsible. He replied that he did the best
he could, he checked the best he could. He agreed that the class 3 driving course says that
you honk before you back up.

In terms of the damage done to the car, Price indicated that his truck was a big one ton
truck, with a big steel bumper; his truck rolling would do that damage.

Price testified in cross-examination that he had already stopped speaking when Smith
came out of the building.

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David Harvey is employed in the Citys Utilities department.

He testified that an

employee named Mario Guido was driving a City vehicle. Harvey testified that Guido
backed into Harveys truck causing two small dents.

According to Harvey, Guido

received no discipline for that.

Dave Calderoni is a By-Law Officer employed by the City. He testified about an

occasion when he was in a City vehicle. Barb Mackie was driving. They were in a gas
station in Chilliwack when Mackie hit a post. The front fender and passenger door were
damaged. Calderoni testified that he was not aware of Mackie having been disciplined.
Calderoni went on to give evidence about other City vehicle accidents that he was not
involved in. I pause to note that he was not involved in those accidents, yet Calderoni did
not say what the basis of his knowledge about those accidents was. With respect to those
accidents, he was also not aware of discipline being imposed on the drivers.
Cusator, the Citys Safety Advisor, also testified about the accident on May 20, 2014.
She parked her car that day. She saw Prices truck and a blue car. Cusator looked at the
car and saw a significant dent, as well as a scrape, on the rear passenger door. There was
a scratch on the front passenger side. There was a dent on the rear passenger quarter
panel. There was only one point of impact. Cusator went on to say that she wanted to
know why the car was in the yard. The driver was not an employee. She said that it was
not normal for a member of the public to be in the yard.

ANALYSIS AND DECISION - SUSPENSION

I begin by addressing the issue as to whether Price asked Black the questions that Smith
testified about. In resolving that issue, I have been guided by the test articulated by the
BC Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of

evidence, cannot be gauged solely by the test of whether the personal
demeanour of the particular witness carried conviction of the truth. The

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test must reasonably subject his story to an examination of its consistency
with the probabilities that surround the currently existing conditions. In
short, the real test of the truth of the story of a witness in such a case must
be its harmony with the preponderance of the probabilities which a
practical and informed person would readily recognize as reasonable in
that place and in those conditions (at page 357)
I agree with the Union, that unlike Smiths version of events, it is much more probable
that after hitting Blacks car, Price parked the truck and immediately exited the truck. On
Smiths version, when he left the building he saw Price get out of the truck and heard him
ask Black the questions that Smith testified to.

However, unlike Smith, Rutley actually saw the accident. She then told Mike Long about
it, who in turn went to notify Smith. Smith then exited the building. I accept Rutleys
evidence about that sequence of events.
For Smiths version to be true, Price would have had to remain in his truck during the
period of time in which Rutley told Long about the accident, during the period of time in
which Long went to tell Smith about the accident, and during the period of time in which
Smith exited the building.

I agree with the Union that drivers who have an accident, and who are uninjured, do not
generally sit around in their vehicle before getting out to see what happened. That is just
not what uninjured drivers generally do.
I do not conclude that that is what Price did. I conclude that Prices evidence that he
parked the truck and exited the truck immediately is much more probable than Smiths
version, when considered in light of Rutleys evidence. Nor is it at all probable that Price
and the other driver stood around silently, thus enabling enough time for Rutley to tell
Long about the accident, for Long to tell Smith about the accident, and for Smith to exit
the building and then get close enough to hear what Price said to Black. I conclude on all
of the evidence, particularly Smiths evidence in light of Rutleys, that Smith did not
hear Price talking to Black.

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At the investigation meeting on May 28, 2014, Smith accused Price of having grilled
Black. Smith agreed that Price denied that. I note further that Smith did not complain
about Prices behaviour to Firlotte when he appeared in the yard after the accident. I note
further that despite the difference between Smiths version and Prices version, the
Employer did not contact Black, whose phone number they had, and who could have
confirmed or denied Smiths version. Smith agreed that one way to resolve that issue was
to speak to Black.
I acknowledge the Employers argument that Prices version was not put to Smith.
However, it was clearly put to Smith in cross-examination that he did not hear Prices
conversation with the woman. Moreover, Smith agreed in cross-examination that Price
denied that he had grilled Black. On the evidence as a whole, particularly Smiths and
Rutleys, I am unable to accept Smiths evidence about what Price said to Black. As set
out earlier, I conclude that Smith did not hear Price talking to Black. Nor am I able to
accept his allegation that Price interacted with Black in a disrespectful and inappropriate
manner.

[I note entirely as an aside, that Mr. Jordan on behalf of the Employer properly, in the
particular circumstances of the present case, never raised Browne v. Dunn (1893), 6 R. 67
(H.L). The effect to be given to the absence or brevity of cross-examination depends
upon the circumstances of each case. There can be no general or absolute rule. It is a
matter of weight to be decided by the tribunal of fact: see R. v. Palmer, [1980] 1
S.C.R.759)].

I further note that on May 30, 2014, Rutley provided a written statement to Smith at
Smiths request. Quigley referred to that statement in her email: Her statement said Ian
was barely movingthats not good for us. Smith replied that: I agree it does not look
good. When asked in cross-examination why that was not good, Smith replied that he
did not think that how fast Price was going had any bearing. He went on to say that
Rutleys observation that Price was moving slowly meant that Price should have been
able to see the vehicle. In short, Smith gave no answer to counsels question. I found his

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response to counsels question to be a self-serving attempt to address Quigleys
statement, and his agreement with it, that Rutleys statement that Price was barely
moving was not good for the City.

Moreover, Smith falsely asserted in chief that at the investigation meeting, Price
characterized the accident as a minor bump. He was compelled to back off that
assertion in cross-examination.

I mention these last two items simply as two further examples as to what has caused me
to be sceptical about Smiths testimony in connection with the suspension.
On the evidence, I am simply unable to accept Smiths version of what Price said to
Black, or how he said it, because I have concluded that Smith did not hear Price talking
to Black. I am unable to conclude that Price interacted with Black in a disrespectful and
inappropriate manner, as Smith alleged in his letter imposing the suspension on Price.

Arbitrators are to approach discipline or dismissal cases by posing the three questions set
out in Wm. Scott & Company, [1977] 1 Can. L.R.B.R. 1: First, has the employee given
just and reasonable cause for some form of discipline by the employer? If so, was the
employers decision to discipline/dismiss the employee an excessive response in all of the
circumstances of the case? Finally, if the arbitrator does consider discipline/dismissal
excessive, what alternative measure should be substituted as just and equitable?
Price was backing up his truck, and as he himself acknowledged, he was not supposed to
back up unless it was safe to do so. It was obviously not safe to do so as he backed into
Blacks car, causing damage to it. As such, there was clearly just and reasonable cause
for some form of discipline.
I am not satisfied on the Unions evidence that the Employers practice was to issue no
discipline for accidents involving City vehicles. I found Calderonis evidence of his not
being aware of discipline, very far from persuasive on this point. I do not know if the

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Employer knew of Mackies accident. Smith did not. I do not know if Mackie had any
previous discipline. Beyond that, I had Harveys single example about Mario Guido. I
do not know if the Employer knew of that accident. I do not know if Guido had any
previous discipline. I do note, however, that the Employer had disciplined Price on
September 27, 2012 for leaving a City truck idling without ensuring that it was secured,
resulting in significant damage to the vehicle. I am unable to conclude on a balance of
probabilities that the Employer had a practice of issuing no discipline to employees
involved in accidents involving City vehicles. In short, I am not prepared to conclude on
the evidence that the Employers discipline of Price was discriminatory. Nor, for the
same reasons, do I find any of the very limited evidence presented to be helpful in
answering the second Wm. Scott question. I will refer to the caselaw regarding this issue
in my analysis of the dismissal grievance below.
I have taken into account Prices disciplinary record, including the 2 day suspension for
the incident involving a City vehicle, dated September 27, 2012. I also conclude on the
evidence that Price did not fully accept responsibility for the May 20, 2014 accident.

While Price certainly bore responsibility for the accident while backing up his truck, I
conclude on the evidence that he was driving very slowly and cautiously when the truck
hit the other vehicle. As Rutleys statement put it, and about which both Quigley and
Smith expressed concern in their emails, Ian was barely moving. I am also satisfied on
Prices evidence that he checked over his shoulder and checked the 3 mirrors.
Importantly however, as set out above, part of the Employers reason for its 96 hour
suspension of Price was Prices disrespectful and inappropriate interaction with Black,
which on the evidence I am not persuaded occurred.

Having considered all of the circumstances of the present case, I conclude that the 96
hour, or 8 12 hour shifts, suspension was excessive. An important concern is the fact
that the Employer has failed to persuade me on the evidence that Price interacted with

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Black in a disrespectful and inappropriate manner which was part of its reason to
suspend him for the 96 hours.

In all of the circumstances of the case, I have concluded that I should substitute a 5 day
suspension for the 8 day suspension that was imposed. Price should be made whole for
the difference.

FACTS - DISMISSAL

Firlotte testified that the Operator II position is the key job for the safety of the public
regarding water and wastewater. He described it as the most important role; the Operator
II is responsible for the entire system. The job description for the Operator II states in
part that: The incumbent is required to exercise constant care in the performance of
his/her duties to ensure the safety of co-workers and the public. It goes on to state that:
The work is differentiated from that of a Water and Wastewater Operator I by the wider
range of duties performed and the degree of independent action allowed.

Firlotte said that the Operator II job is about making judgement calls. Among other
things, the job involves looking at SCADA screens. SCADA is a computer based system
that is a roundabout way of seeing a water or wastewater station. It sees which pumps are
on and how much is being pumped. SCADA enables the Operator II to make sure that
there are no anomalies at the water and wastewater stations.

The Operator II goes through the SCADA checklists on the night shift. There are no
Operator IIs on the day shift. Operator IIs do not report to crew leaders. They work one
at a time.

On September 15, 2014 Dean Slater, a City employee, mistakenly turned off the supply
line to the OConnor wastewater station. The valve would normally be open. As a result
of Slaters action, the valve was not 100% closed. It was partially closed.

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The irrigation valve that Slater was supposed to turn off required a quarter of a turn to
turn off. By contrast, the valve to shut off the wastewater line to OConnor required 21
turns. Smith agreed in cross-examination that those 2 valves are not easily confused.
Moreover, the key to turn off the irrigation valve is less than a 2 inch key. By contrast,
the key to turn off OConnor is either a 4 inch or 6 inch key.

In response to a question from myself, Firlotte testified that Slater should have known
that the valve that was partially closed was not the irrigation valve that he was seeking to
close. Moreover to Firlottes knowledge, a mistake in shutting off a wastewater valve has
not happened before. He further testified that Price would not have known that the valve
was shut.

Slater was given a written warning for his role in the incident.

Price was not on duty on the night shifts of September 15-17, 2014. Another Operator II,
Trevor Childs, was on duty. Price was on duty on the night shifts of September 18-21,
2014. Childs was also on duty on the night shifts of September 22-25, 2014. Price was on
duty on the night shift of September 26, 2014. Long was on duty on the night shift of
September 27, 2014.

A normal SCADA screen shows a saw tooth shaped line on the screen. The wastewater
comes to a station from a previous station as well as from the stations catchment area.
When a station reaches approximately 70-80% capacity, it pumps to the next station.
From 12:35pm to 6:35am on September 15, 2014 that line at the OConnor station was no
longer in a saw tooth pattern. It showed a gradually rising line, indicating that the flow of
wastewater to the station was a lot less; i.e., there was only a partial supply to that station.
By September 17, 2014 at 4:31pm the line was relatively flat and continued that way until
11:36am on September 29, 2014. That relatively flat line indicated that the OConnor
station was not receiving wastewater from the previous station, but only from the
relatively small catchment area. The change in flow beginning on September 15 occurred

16
as a result of Slater mistakenly partially closing the valve. China is the next station after
OConnor. China has a bigger catchment than OConnor so the line on the China
SCADA screen was not as flat as that of OConnor. Stations further down the line have
bigger catchment areas, but their SCADA screens did not show saw tooth shaped lines
either.
Ultimately, wastewater escaped through a manhole not far from the OConnor station. It
flowed into the South Thompson River (the River). Some 4,100 cubic meters of
wastewater ultimately emptied into the River.

Firlotte testified that the Operator looks for changes in the SCADA screens. Normally,
they will have the saw tooth pattern as a result of the pumps going on and off. If not, that
warrants an investigation.

The Operator IIs are supposed to perform nightly checks of the SCADA screen of each
station. Is the station running normally or does it require an investigation? If the station
is not running normally, the Operator II could go out to look at the station or could send
an Operator I or could bring the issue to the attention of a supervisor.
On his September 18 SCADA checklist, Price ticked the investigate further? column
for both the OConnor and China wastewater stations. According to Firlotte, Price
should have gone out to the OConnor station to physically look at it. Moreover, Price
only saw a problem at OConnor and China, whereas stations further down the line also
showed something abnormal.
At that time, there was no checklist for the day shift Operator Is. After the incident that
gave rise to Prices dismissal, the day shift Operators do fill out a checklist.
On September 19-21 and 26, 2014 Price did not indicate investigate further? on the
SCADA checklists At the October 2, 2014 investigation meeting, Price indicated that he
learned about the problem on September 18. He saw abnormal station operation at

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OConnor and China.

Price indicated that he did this all the time. He would see

something wrong and he would indicate investigate further?; if it were the same the
next day, he would indicate that it was okay. Firlotte testified that that was not the
expectation. Something that was fixed, could fail again.

Firlotte participated in the decision to dismiss Price. Childs, he said, made the same
mistake. However, Childs was very apologetic while Price was more defensive. Price
also had a greater disciplinary record than did Childs. I will elaborate on the comparative
disciplinary records of the other employees involved in the resulting emptying of
wastewater into the River, later in these facts.

In cross-examination, Firlotte agreed that on September 15-17, 2014 SCADA checks

would have been done. No one identified the problem. On September 15-17, on the
night shifts, Childs was the Operator II on duty. He did not identify any problem on the
SCADA checklists.
On September 18, 2014, Price did note investigate further? regarding the OConnor and
China stations. Firlotte agreed that normally that SCADA checklist would go to Smith. It
did not go to Smith, however, because Smith was on vacation. At that time, Mike Long
was the acting supervisor. Part of his job was to look at the SCADA checklists. Firlotte
agreed that Smith was diligent in looking at the SCADA checklists to see if anything was
amiss. Firlotte also agreed that Price did not know that Smith was on vacation. Price did
not know that until the investigation meeting.

Firlotte further agreed that when Price

turned in the SCADA checklist, it was reasonable for him to expect Smith to look at it
and to check it.

Smith agreed in cross-examination that the SCADA forms are left for him to review. He
testified that he reviews them when he comes in in the morning. He testified that if he had
been there, it would have been resolved that day. He would have asked the day shift to
have a look. He agreed that he did not tell Price that he (Smith) was away on vacation.

18
He agreed that Long, who was the acting Utilities Supervisor in his absence, should have
reviewed the SCADA checklist. He further agreed that Price would not have known that
Long did not do that.

Firlotte agreed in cross-examination that no one had ever turned off the valve to a station.
He went on to state that he had a hard time believing that Price did not understand that
there was a problem. He agreed that Childs had been there 3 nights and did not see a
problem. With respect to September 19, Firlotte agreed that it was reasonable for Price to
have understood that the problem would be investigated. However, Firlotte went on to
state that the station was still not working properly. Whatever fix did or did not happen,
the station was still not normal.

Firlotte agreed that if Long had looked at the checklist, he more than likely would have
seen it. He probably would have discovered the problem. He agreed that Long should
have dealt with it. If he had dealt with it, no wastewater would have emptied into the
River. Long received a 1 day suspension for his role in the incident. Long is an
employee in the bargaining unit.

Earl Wilms worked for the City as an Operator I for some 15 years and as an Operator II
for some 5 years. As an Operator I, he did the SCADA check and a physical check of the
OConnor station on Fridays. On Friday September 19, 2014, he went home sick early
and did not do a SCADA check or a physical check of the OConnor station.
He did do a SCADA check of OConnor on Friday September 26, 2014. It did not show
a pump run. He did a physical check of OConnor. It did have pump hours. But it should
have had double the pump hours as he was not there to check the hours on September 19.
Wilms did not say that there was something wrong with OConnor. He received a 5 day
suspension.

19
In cross-examination, Wilms was shown the OConnor SCADA screens. He agreed that
he would not have thought that someone was there fixing it for a week. He further agreed
that a normal SCADA screen would show the saw tooth pattern and pumps running.

Smith returned to work on September 22, 2014.

From the nights of September 23-24,

when Childs was on the night shift, Childs did not submit SCADA checklists.

On the night shift of September 27, Long saw something on SCADA. He directed Childs
to check it. Childs saw nothing wrong.

Smith agreed that on the 3 night shifts before September 18, Childs was supposed to
check. Childs saw nothing wrong.

The night shift is from 7:00pm to 7:00am.

Firlotte agreed that Price, at least, indicated something on the checklist. Childs indicated
nothing.

Childs received a 30 day suspension for his role in the incident.

That

suspension has been grieved. An arbitration is pending with respect to that grievance.

On September 28, 2014, Mike Aldrich, another City employee, mistakenly dumped
wastewater into a storm manhole, instead of into a sewer manhole (apparently at the Nina
station, some 6 stations past OConnor). Firlotte agreed that that wastewater went into
the River. For that, Aldrich was given a letter of expectation.

Price testified that the Operator IIs look after all of the water and the sewer; basically the
entire system. As an Operator II he works by himself.

In terms of the SCADA check, if there were something very serious Price would jump
into his truck or he would check investigate further?. Price testified that he fully
expected Smith to check. He testified that Rob was always on it. Price knew that if he
ticked off investigate further? Smith would investigate further every time.

20
On the September 18 night shift, he saw on SCADA that OConnor was abnormal.
However, he testified that nothing ever went wrong for 3 days. He figured that someone
must have seen it. He checked off investigate further? and put the SCADA checklist in
the box. He expected that Smith would look at it. Price did not know that Smith was on
vacation.
On September 19, Price heard nothing further about OConnor. The SCADA that night
was exactly the same. OConnor was not empty, nor was it overflowing. There was no
alarm and no phone calls. He had never seen that happen. On the days following, he
indicated that OConnor and China were okay on the SCADA checklists. Price testified
that once he realized that sewage ran into the River, he felt very badly about it.

In cross-examination, Price agreed that the saw tooth pattern would be normal on
SCADA. He agreed that the screen showed that the pump did not go off on September
17-20, 2014. He testified that he looks for the pumps running and for the levels rising
and falling. He agreed that the normal operation is the pumps going on and off. He
agreed that from September 17-20 the SCADA screen indicated that the fill line was
hardly going up at all. The pumps were not going off. He knew that was different than
normal.

It was put to him that he worked on September 18, 19, 20, 21, 24 & 25 (the latter two on
day shift) and that he would have known if there was work going on. He replied: Not
necessarily; they didnt always tell you.
Firlottes evidence about the possibility of something being fixed and then failing again
was put to him. Price replied: Ya, we saw that a lot. Price testified that he drew the
wrong conclusion. He assumed that Smith was doing his job. He agreed that he did not
take steps to see if someone had been there. He took no steps to see if work was being
done to fix it. He testified that he felt terrible about it. He agreed that because of his
assumption that work was being done, he marked the subsequent SCADA checklists as
okay. He testified that he should have marked investigate further?. He wrongly drew

21
the conclusion that they must have been working on the problem. If that were the case,
they would have controlled the level. He agreed that if he had not made that assumption,
he would have got into his truck.

I have earlier alluded to the discipline (or non-discipline) received by other employees
involved. I should add a few facts. Dean Slaters seniority dates back to 1995. He had
no formal discipline. Mike Longs seniority dates back to 1974. He had no formal
discipline. Earl Wilms seniority dates back to 1979. He had no formal discipline.
Trevor Childs seniority dates back to 1995. He had a written warning dated September
29, 2014. Mike Aldrichs seniority dates back to 1991. He had a 1 day suspension dated
July 14, 2009 and a written warning dated December 18, 2012.

ANALYSIS AND DECISION DISMISSAL

Again, employing the Wm. Scott analysis, there clearly was just and reasonable cause for
some form of discipline. Price himself testified that the Operator IIs looks after all of
the water and sewer; basically the entire system. While Price recognized that there was a
problem at OConnor and China on September 18 and indicated investigate further?, on
subsequent nights, namely September 19-21 when the SCADA screens continued to
show a problem, he did not continue to mark investigate further?

Price testified that

he should have marked investigate further? He did not do so based on his wrong
assumption that work was being done on the problem. He did not take steps to see if
work was being done to fix it.

Even if work had been done, as Firlotte testified

something that was fixed could fail again. Indeed, Price himself said: Ya, we saw that a
lot.

As against this, I do note that Price did not know that Smith was on vacation. Firlotte
agreed that Smith was diligent in looking at the SCADA checklists to see if anything was
amiss. He further agreed that when Price turned in the SCADA checklist, it was

22
reasonable for him to expect Smith to look at it and to check it. Smith himself indicated
that if he had been there, the problem would have been resolved that day.

In all of the circumstances of the present case, I conclude that dismissal was excessive.
My central reason for reaching that conclusion is the huge disparity in discipline that the
City imposed upon other employees involved in the incident and the dismissal imposed
upon Price.

In saying this, I have not at all overlooked the responsibility that the

Operator II has for the Citys wastewater system. Nor have I overlooked the previous
discipline that Price had on his record compared to the lesser, or zero, discipline that the
other employees had.

In BC Transit, [1996] B.C.C.A.A.A. No. 161, a decision relied upon by the Union,
Arbitrator Munroe stated as follows:

There can be many valid reasons why an employer might not treat two
employees who have engaged in ostensibly similar misconduct in the same
disciplinary way. These can include differing lengths of service; differing
work records; differing job responsibilities; differing mitigating
circumstances, etc. But while allowing proper scope for such differences,
arbitrators are uniformly of the view that the modern just cause standard
requires an avoidance of discriminatory discipline.
I must refer to a decision of Arbitrator Hope in BC Railway Co, [1987] B.C.C.A.A.A.
No. 221, a decision relied upon by the Employer:

In fact, the union relied on the minor discipline imposed on that employee
as evidence of discrimination against the grievor in the decision to dismiss
him. I digress to observe that I disagree with the submission of the union
in that regard. The fact that differing penalties are selected for employees
involved in the same incident is not indicative of discrimination unless the
relevant factors touching on the imposition of the discipline are the same.
That subject was discussed by Professor George Adams in Re Phillips
Cables Ltd. and U.E.W., Local 510 (1974), 6 L.A.C. (2d) 35 at p. 48. In
that decision Professor Adams said: While there is strong arbitral
authority for the proposition of equality of treatment, these cases make it
clear that the equal treatment is only required in similar circumstances.

23
On the facts in this dispute the relevant factors giving rise to the decision
to dismiss the grievor went beyond the possession and consumption of
alcohol on a single occasion. Moreover, there was no indication that the
other employee involved had a history of employment and a discipline
record that paralleled that of the grievor. In short, to paraphrase Professor
Adams, the facts did not reveal similar circumstances with respect to the
grievor and the second employee and hence there was no basis for
concluding that the railway discriminated against the grievor in its
selection of a penalty.
I repeat, that is not to say that the decision to impose modest discipline on
the second employee was not a factor to be considered in assessing the
penalty imposed on the grievor. It is to say that the circumstances
between the two employees differed and the mere fact of the difference in
the penalties selected is not sufficient to find an inequality of treatment
that amounted to discrimination. In short, the nature of the penalty
imposed on the other employee is a factor to be considered in the second
aspect of the test in Wm. Scott & Co.

The second question, as indicated, was whether dismissal was an

excessive response in all of the circumstances. It is in considering that
second question that I must consider such matters as the grievors prior
discipline record, the immediate offence giving rise to the dismissal and
the fact that the second employee received only a warning. (emphasis
added)

I turn to the other employees. I begin with Childs, because he like Price, was an Operator
II. Childs was given a 30 day suspension which the Union has grieved. An arbitration is
pending with respect to that grievance. Childs had a written warning on his record, dated
September 29, 2014. Unlike Price, however, who at least marked investigate further?
on September 18, 2014, Childs did not do so on any of the night shifts of September 15,
16 or 17. From the nights of September 23 and 24, Childs did not even submit SCADA
checklists. Prices misconduct is substantially less than that of Childs.

I turn to Dean Slater. Unlike Price, Slater was the original cause of the problem. He
mistakenly partially turned off the supply line to OConnor.

This was not some

innocuous mistake. The irrigation valve that Slater was supposed to turn off required a
quarter of a turn to turn off. By contrast, the valve to shut off the wastewater line to

24
OConnor required 21 turns. Smith agreed in cross-examination that those 2 valves are
not easily confused. Firlotte indicated that Slater should have known that the valve
which he partially closed was not the irrigation valve that he meant to close. Slater
received only a written warning. However, Slater had no previous discipline. Nor was he
an Operator II.
I turn to Mike Long. In Smiths absence on vacation, Long was the acting supervisor.
He should have reviewed Prices September 18 SCADA checklist. He did not do so.
Firlotte agreed that if Long had looked at the checklist, he probably would have
discovered the problem. Firlotte agreed that Long should have dealt with it. If he had
dealt with it, no wastewater would have emptied into the River. Long received a 1 day
suspension. However, there are two important differences between Longs circumstances,
and those of Price (or Childs). First, he had much longer seniority than either Price or
Childs. Second, he had no previous discipline. A third difference is that while Long failed
on that one occasion, Price continued to not mark investigate further? beyond
September 19 alone.

Finally, I turn to Mike Aldrich. Aldrich had a 1 day suspension dated July 14, 2009 and a
written warning dated December 18, 2012. Aldrich mistakenly dumped wastewater into
a storm manhole, instead of into a sewer manhole. That wastewater went into the River.
For that, Aldrich received a letter of expectation, not formal discipline. Aldrich was not
an Operator II.

Given how lightly the Employer disciplined everyone else involved, I have no difficulty
concluding that its dismissal of Price was excessive in all of the circumstances. In saying
that I have taken into account Prices previous disciplinary history. I have also given
very careful consideration to the fact that unlike every other employee except Childs,
(and Long who was effectively replacing Smith while Smith was on vacation), Price was
responsible for the entire system. Nevertheless, the comparatively very light discipline,
or even non-discipline, of other employees involved is simply too extremely divergent,
compared to the dismissal meted out to Price, to ignore.

25
I turn then to the third Wm. Scott question namely, what alternative measure should be
substituted as just and equitable? I begin by noting that the Operator II is responsible for
the entire system. Price failed to continue to mark investigate further? when the
SCADA screens continued to show a problem. Price acknowledged that he should have
marked investigate further?
Prices previous disciplinary record is significant. It includes a 5 day suspension for the
driving accident, a 2 day suspension dated September 27, 2012, a 1 day suspension dated
April 26, 2011 and a 1 day suspension dated January 26, 2010, a disciplinary record
which is substantially worse than that of Childs, and indeed everyone else involved.
Price also had a 5 day suspension dating back to 2003, but given the substantial length of
time between 2003 and 2010, I give that discipline no weight in terms of the present case.
The Union notes that Prices prior discipline is for behaviour which is different than what
happened at OConnor and emphasizes that he has responded to corrective discipline. I
do not subscribe to the view that just because the individuals misconduct differs from
incident to incident, then it should be ignored. Were that the case, then so long as an
employee engaged in different misconduct each time, then he would never be subject to
more serious discipline to correct his repeated misconduct. As I indicated above,
however, it is important to take into account the length of time between incidents of
discipline. The longer the period of no misconduct, the greater the indication that the
employee has responded positively to corrective discipline. In my view, that is a key
indicator of a positive response to corrective discipline. Prices record in his last 5 years
of employment prior to the Employers dismissal of him, involving 4 separate incidents
of employment misconduct resulting in two suspensions of 1 day, one suspension of 2
days and one suspension of 5 days, simply cannot be ignored when considering all of the
circumstances of the case. Prices prior discipline is substantially greater than every other
employee involved in the incident.

In all of the circumstances of the case including, among others, the nature of his
misconduct, the discipline imposed upon the other employees involved, Prices

26
substantially greater discipline than every other employee involved, and the important
fact that he was an Operator II responsible for the entire system, I conclude that the
appropriate penalty is a 30 day suspension. I should add that even had I dismissed the
suspension grievance, the suspension that I would have substituted for the dismissal
would have been exactly the same. Put another way, whether he received an 8 day
suspension or a 5 day suspension for the accident, would not have made a difference to
the result in the dismissal grievance.

Price is to be reinstated to his employment as an Operator II. Price should be made

whole for his losses arising from his dismissal, taking into account all relevant factors
including any income that he earned in that period, as well as the law governing
mitigation. I leave it to counsel to work out the precise amount owing to him flowing out
of this decision.

I retain jurisdiction to address that, or any other issue, arising out of this decision.

Dated at the City of Vancouver, in the Province of British Columbia, this 29th day of
July 2016.

_________________________
Robert Pekeles
Arbitrator