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Employment & Labour

Disputes likely after Hamilton group firing

Arthur Zeilikman
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Disputes are likely to arise after the firing of 29 Hamilton city workers who were monitored both internally, and by outside investigators, says Toronto labour and employment lawyer Arthur Zeilikman.

The surveillance was unveiled by the city late last month, and almost all of the unionized employees who were monitored were fired, accused of taking a day’s pay for, in some cases, just minutes of work, the National Post reports.  Read National Post

“The problem with this case is that these employees were subjected to a form of collective punishment,” says Zeilikman. “In my opinion, an en-masse termination of this kind will surely be faced with a series of grievances that would dispute the justness of the dismissals. This is because each case would have to be assessed in the context of each employee’s unique set of circumstances.

“To take a simple factor, it is highly probable that these employees’ employment with the city was of varying lengths. An arbitrator is likely to be more lenient with someone whose length of service is 20 years with an untarnished record than someone who committed the alleged infractions a year into their employment.”

In the National Post article, Hamilton’s city manager says the case started through internal monitoring of productivity that flagged a problem, which prompted the city to then retroactively check records on GPS tracking devices installed on most of its work vehicles.

The data showed some trucks had not travelled to the areas some workers had been sent to, the Post reports, noting outside investigators were then called in.

The fired workers are members of the Canadian Union of Public Employees, Local 5167, the report says.

“It is not unheard of for employers in a unionized workplace to hire private investigators when absences of employees become suspiciously chronic. However, it is unclear as to whether there is a pattern in this case as to warrant surveillance to begin with,” says Zeilikman. “The more important question is whether such evidence can be used at an arbitration proceeding later on. The answer is ‘yes,’ but not always.”

In a labour relations context, says Zeilikman, requirements with respect to the admissibility of evidence are not as strict as they are in criminal cases.

“Evidence admitted in an arbitration proceeding may well be excluded in a court proceeding. The result is: some arbitrators admit evidence that was ostensibly invasive of someone’s privacy rights, while others do not,” he says.

“What is certain, however, is that evidence that is material to the employer’s case and of considerable weight would have a better chance at being admitted than one that is not.”

Zeilikman says Hamilton is not alone in dealing with such issues.

“It is hard to ascertain with statistical precision what percentage of employees commits time theft. However, the problem is certainly not unique to Hamilton,” he says. “Time theft is a well-known problem and it is experienced in a wide range of sectors: public and private. When your boss is not looking, chances are that you’d slip and dedicate less time to your required duties.”

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