AH 747

IN THE MATTER OF AN AD HOC ARBITRATION

BETWEEN

CANPAR EXPRESS INC. (The “Company”)

AND

UNITED STEELWORKERS - LOCAL 1976 (The “Union”)

Regarding the Termination of C. Kapongo

Date: September 27, 2021 Arbitrator: Johanne Cavé

Appearances for the Company: Patrick-James Blaine - General Counsel Jeff Guile - National Director of Operations Joel Andre - Director, Human Resources and Labour Relations Russel Paul - Human Resources Business Partner

Appearances for the Union: Glen Rankine - National Business Agent Annie Daigneault - Representative Clovis Kapongo - Grievor

Hearing held via Videoconference on November 15, 2021 AH 747

AWARD

1. On October 20, 2015, the Company entered into a Contractor Agreement (the

“Agreement”) with Ogetrac Logistics Ltd. (“Ogetrac”), duly represented by its owner, the

Grievor, for transportation services. As a result of the Agreement, the Grievor was an

Owner Operator covered by the applicable collective agreement (the “Collective

Agreement”).

2. The Grievor initially worked the one route assigned to Ogetrac. In August 2019,

the Company awarded Ogetrac a second route. Around that time, Ogetrac hired two

drivers (the “Drivers”) and the Grievor stopped performing driver work. He moved to the

United States in or around November 2019 and managed the Drivers from there.

3. On March 11, 2020, the Company terminated the Agreement without notice, for

“false and misleading declarations of compensation”, which it says constitutes a default

under the Agreement. This automatically resulted in the Grievor’s termination as an

Owner Operator.

4. The Union filed a Step 2 grievance on September 21, 2020 (the “Grievance”),

alleging that termination of the Agreement was excessive discipline considering that the

Grievor relied on his Drivers’ time reporting to submit claims to the Company and

trusted those to be accurate.

5. The Company raises a preliminary objection, arguing the Grievance is untimely.

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Preliminary Issue – Timeliness

6. Article 20.8 of the Collective Agreement provides that grievances must be filed

within 42 calendar days of the notice of dismissal.

7. As mentioned above, the Company terminated the Agreement on March 11,

8. On March 23, 2020, less than forty-two days after the termination, the Union

asked to extend the time limit to file a grievance to May 15, 2020. On the same day,

Company Officer Fuaco granted the extension.

8. At the hearing, the Union filed an email dated August 19, 2020, addressed to

Company Officer Fuaco, seeking a second extension to file its grievance until

September 30, 2020. The evidence shows that Officer Fuaco replied the same day,

granting the second extension.

9. The Company argues that it was not aware of this prior to the hearing and that, if

Officer Fuaco granted the second extension, he may not have realized that an initial

extension had already been granted. According to the Company, the Union had already

exceeded the first extension to May 15, 2020, and therefore was too late to obtain a

further extension. The Company submits that, if an extension was granted on August

19, 2020, it should be considered invalid.

10. I reject the Company’s timeliness objection. There is no evidence to suggest that

Company Officer Fuaco approved the second request for an extension without

authority. Moreover, the fact that the second extension was requested and granted after

the deadline for the first extension had expired does not make it invalid. The Union is

entitled to rely on the second extension of time granted by Officer Fuaco.

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11. The Union filed the Grievance on September 21, 2020, some nine days before

the expiry of the second extension granted by the Company, i.e. September 30, 2020.

Therefore, the Grievance is timely.

Was Termination Excessive?

12. The Union argues that termination of the Agreement is excessive discipline, as

the Grievor relied on his Drivers’ time reporting and until the Company alerted him to

discrepancies, the Grievor was unaware of any.

13. At issue are the hours claimed by one of the Drivers over approximately 19

workdays, from January 14 to February 7, 2020. In cross-referencing the Grievor’s

claims with the time-stamped pictures taken by parking surveillance cameras, the

Company observed that the time claims included hours when the Driver’s work vehicle

was parked in its lot. The Company submits that the Driver could not be working when

his delivery vehicle was parked.

14. On March 4, 2020, the Grievor was interviewed regarding the hours invoiced for

the work performed by his Drivers. The Grievor indicated that he does not receive a

copy of the Drivers’ daily timecards, which they send directly to the Company. However,

he stated that the Drivers send him a daily breakdown of their hours worked, which he

looks at and questions before submitting invoices to the Company.

15. When questioned during the interview on the daily schedule and activities of the

Driver at issue, the Grievor did not appear to be well informed. For example, the Grievor

was not aware that the Driver was booking his lunch breaks at the end of his workdays,

as shown on his timecards. Similarly, the Grievor was not aware that the Driver had

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claimed between 1.5 to five extra hours for most, if not all, the workdays at issue. Based

on the information provided by the Company during the investigation, the Grievor

recognized that his Driver was “doing something wrong” in the reporting of hours. The

Grievor acknowledged that he was responsible to ensure the accuracy of the time he

claimed for his Drivers’ work and indicated he needed to look into it.

16. On March 9, 2020, the Grievor sent an email to the Company, indicating he had

spoken to his Driver, who confirmed the Company’s assertion that he was booking his

lunch and other breaks at the end of his shifts. As for the further discrepancies in his

Driver’s end time and the photos showing his delivery vehicle in the parking lot at the

end of his workdays, the Grievor suggested that the Company’s surveillance cameras

had either been tampered with or had inaccurate time stamps. The Company verified its

surveillance cameras and confirmed that the time stamps were accurate. In light of what

it considered to be an unsatisfactory explanation from the Grievor for invoicing his

Driver’s excessive time claims, the Company terminated the Agreement.

17. While the Grievor was within his rights under the Agreement to hire drivers to

provide the delivery service, he was to ensure they did so in a manner consistent with

the terms of the Agreement. The Grievor was also responsible for ensuring the

accuracy of the invoices he submitted to the Company and was accountable for any

discrepancies. However, the evidence shows that the Grievor was not diligent in

supervising and reviewing the hours submitted by his Driver, as he was initially unable

to provide substantive answers to most of the questions asked of him during the

investigation. Importantly, when specific concerns were brought to the Grievor’s

attention, he acknowledged an apparent problem with timekeeping. But after taking the

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time to discuss the issue with his Driver, he still did not provide a reasonable

explanation for the excessive claims. His approach was to deflect blame on to the

Company, suggesting that the time stamps on its surveillance cameras were inaccurate.

The Union did not raise any issues with the time stamps or rely on this argument at the

hearing.

18. Subsection 12(b) of the Agreement provides that the Contractor is considered in

default where “any declaration, or guarantee given by the Contractor is false or

substantially misleading”. Section 13 of the Agreement provides that, in the event of a

default, the Company “may immediately terminate the contract without any notice or any

recourse to the Contractor.”

19. There is compelling evidence to show, on a balance of probabilities, that one of

the Grievor’s Drivers significantly misrepresented his hours of work from January 14 to

February 7, 2020. Specifically, it is improbable that the Driver took no lunch or other

breaks during his workdays. However, even assuming approximately one hour per day

at the end of his shift made up for lunch and breaks, the Driver still misrepresented his

hours for most or all 14 days at issue. On some days, he claimed up to five hours of

work for periods of time when his delivery vehicle was parked on the Company lot. As

for the Grievor, he failed to take appropriate steps to adequately supervise his Driver

and ensure the accuracy of his time reporting. Moreover, when issues were brought to

the Grievor’s attention, he failed to provide a reasonable explanation for the

discrepancies and to accept accountability. The fact that the Grievor has no prior

discipline is a mitigating factor. However, I accept the Company’s argument that by

submitting false or substantially misleading claims, which constitutes a default under the

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Agreement, the Grievor irreparably breached the bond of trust with the Company, as it

relies on its Owner Operators to ensure proper service and reporting.

20. In the circumstances, the Company had just cause to terminate the Agreement.

21. The Grievance is denied.

Dated at Gatineau this 30th day of November 2021.

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Johanne Cavé, Arbitrator

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