42 U/HLLINGTON STRf;ET WEST, BAHHIE, ON L4N 1K3
Telephone: (7951 7?*14127
Fax: {tOS} 7?1{520
Hmaill denarandall@ rogsrs,com
SilEffivttclHs
]DAI\A JITAI\]I]Ail,N,
Alilt31t'lt'll3.ATitoN
FAX TRANSMI$SION
DATE:
DELIVER TO:
AND TO;
ZZ July 2015
Kitchura
Mr. Ken Stuobing
SENDERT Mr. Dana Randail
Ms. Kerri
(416) g9Z-iS4S
(416) gS6.3293
lTAqTZl_BgZ}
TOTAL NUMBER OF PAGES tNCLUDtNc Tt{tS COVEft $HEET: 12
_X*
Origlnal to b6 Bont by mait
_
Sent by fax only
Re:
City of Toronto & CUPE, Local 79; Grievance of V. Katsuras
C1 3-09-041 I (Discharse)
Enclosed please find the Award in the above noted matter A
hard copy wilt be maited
to you shortly.
CONFIOENTIAI,ITY N()TICE
The inlomatjon in this lax kan$misslon js l60alty
nrjvileied ancj jonfirlootiat. tt is tnt4ncled onty for use qf
lhe addrsssco nafied obovo. ll vou havF rB;EIvdd rtris-iai
in
;L;se aovtso iilniec,otety, uy cor ect
cor or rax rransrniesion, ro arange (or rre reium ei rd rai;;j
*;,
i"-iqilaiili]iiiini"yill'ii, yo*
coon*,"rion
ln the Matter of an Arbitration
Between
City of Toronto
And
Canadian Union of Public Employees, Local 79
Grievance of Vasilios Katsuras
AWARD
Bofore:
Dana Randall
For the EmPloYer:
Kerri Kitchura, Counsel
Judy Allan-Nicholls
Wendy St. CYr
Veronica SiePhen
Nikki ChaPman
For the Union:
Ken Stuebing, Counsel
Don Styies
Alex Andera Pinoza
Vasilios Katsura$
15
This matter proceeded to hearing on February 17, May 21,'and June 1'
and '18, 2015 in Toronto, Ontario'
AWARD
lntroduction
This is a termination case.
The Grievor, Vasilio Katsuras, was fired by the City on September 10'
zOil nV fettit of that date from Nikki Ghapman, Aquatic Supervisor' Tho
letter state$:
This letter will $crvo to confirm what we discussed at our meeting on
$eptembet 9, 2013, which was attended by Byron Godfrey' Union
at
Stdward Locat 79, Gary Sanger, Supervisor, you and l' The meeting
in
guir Vorr, io**unily bentre was held to discuss your involvemeni the
break-inatDonaldDSummervillepoo]intheearlymorningofAusust29.
2013 after the pool was closed and locked up for the night-
Our inve$tigation revealed that, during the early morning horrrs of August
grorp of siaff broko into the Donald D. $ummerville pool to
;nth you
"
"ni
including the pool and diving tank and accessed tha 10
u." in" rr.iirti*i,
to trained
M. diving tower *hich is normally closed to everyone except
JiuJr, ,ulf, a coach pre$ent. This activity took place at night, ln the dark,
wittr no statt on duty and after the facility was closed Our investigation
reveateC that many (if not all) of tho staff prosent were intoxicated'
you are
As a city of Toronto employee and especially as an aq-uatic staff
amenities'
iheir
pools
and
with ensuring the safe uso of City
""nttu*tuh
fou attenO"O extensivil training whero the focus is satety and accrdent
All activities that tolk place in the early morning of August 29
irut* in oirert conflict with your role as a lifeguard and an employee.of the
jeopardy' You also
Clty-anOpuryour life and the lives of fellow siaff in
.aJr"O Oamage to City property and exposed the City to significant
potential liabilitY.
.;;;ii";
lnadditiontoparticipatinginthese€vents,youtookpicturesofyourself
posted thsm
anJ another siaff on the aiving towers that evoning and
of your
reputation
the
prnri.fy on ht"gra, This negitively impacts
employer.
Your conrjuct constitutes a serious breach of trust and has caused
irreparable harm to thc employment relationship' Consequenlly' your
employment with the City of Toronto has been terminated e{fective
s*rlt"fin., 10, 2013. This applies to all divisions and ali.work locations oi
your
tho City of Toronto. Any pay owing to you will be deposited in
account in the usual mannsr.
The Process
the
The matter was heard over several days' Tho City calied
"in
charge" at the
aioiementioned Ms. Chapman; Emma Bell, who was the
the break-in;
s"***iiru pJ"l at the time of this event and discovered(CRP)
responsitlle
no*rnn Tutty, the Comnrunity Recreation Programmer
another
.
ioi iir* puJ; und Sarah Hoar, who was a "pool in'charge" at
participated in the
also
Hoar
Ms'
summer'
that
pool,
Riverdale,
outOooi
pool-hopping event at i$sue. The Union called the Grievor'
The lssue
submits that the
The only issue in the case is the penalty' The Employer
11 oiher
with
Crievor'pa*icipated in very serious misconduct, along
a
it'*"* u criminal break and enter, a tre$pass' and involvedpool,
pool deck' in the
host oi activities, in the semi-dark, in and around the
of
;;;-io met.r diving platforms' which were $uch breaches
inand
ttt* iiiy;a policles and proceduies, their training as li{eguards
Ms'
that
pool
safety'
charoes. an<j Ontario Aegulations regardlng
breathtakingly
and
lnui*J" torno the cond'uct incompiehensible
dangerous.
;;i;;d;
;ilf*;-s
penalty oiher than
ln the City's view, there aan be no reasonable
to
iur*in"ti6n, The Grievor's conduct wa$ aggravated by his decision
Dost'onlnstagram,threepicturesoftheevent.TheCity.ssaysthat
*ittit g ir',- rt",iniiiy*ourii send a torrible message to aquatic staft'
Gunuraiouturtencsneeds to be the operative concept'
deserving of
The Union acknowledges ihat the conduct was seriou$ and
for the
uionif,.t''tf Ai*.ipline, blut challenges the justness of termination
attaci on the ciry's decision is grounded o.n the
11 others
thaorv of discriminatorv treatment, The treatment of most of the
*ittiort'ptuiuoice and precedent asreements' which were
case of Sarah
nolr6irbO with me. However, there was one exception: the
the only other witness, aside from the Grievor' who
pool in the early morning o{ August 29'
bt"'iiJipti".j * fire orear< in of the
2013.
d;r;; ih;ij;;il.";"i"
il;J"6";;;;
i;;;, ;il;"*
involvement The City
Ms. Hoar roceived a 15 day suspension for her
her participation in
reties on several factors, *hi.n it alleges, distinguish
the most
that of the Grievor. I will address thoee below' but
inr
sg"in*tt of them was that she came forward early in the City's
**.tli"*
2
Her
investioation and ideniified all of the participants in the break'in
was rewarded bv the
;ilo#r=#;: in *"oJ"ing the investigation quickly'
alleged
we shalliee, the City* also relied on $everal other
mitigating factors.
ffi;y";. il
on these alleged
The Union's ca$e is predicated on its attack
voluntarilv came
th9!
oirtf .g;i;iti"g iactori, inctuding the notion
iVs; ,Hoar
didn't come forward
forward, ln its view, tfre eviOeice shows ihat Ms' Hoar
in the investigation
t"f r"t"iiry, but rather happened to be contacted early
reveal what she knew
nV ftrt. futty, her CRP, and was gently pressured.to
was not given
r,ao oone. The Uni"ion s-u6mits that the Grievor
entirely
opportunity and, as a resuli, this consideration was
conslderod' .
things
all
itie Unioti goes further and submits that'
greator culpabiliiy than that
"inri#v,
H,1i. Holr* involvemeit in the event $ugge$ted
which could be assigned to the Grievor, not less'
;;i;h"irfi;
;h;t;;;
Facts
Mo$t are not in disPute.
at the University o{
The Grievor is a 22 year old 4th year undergraduate
employee a5
roronto. ie startedwith the ciiy, as a part.time recreational
in the City's
un"," old. in or about 2008, ind worked' mostly summers'
Iie
"1a
2013'
10'
his iermination on September
pi"tjr"**".tir attendant' at age 14' became a life guard at age
"q*iltt a iwading pool
trained as a "pool in"charge'' in or about 2012'
;q
il;Giai
;;;";
paid as an 'inThe evidence is unclear about when he acted and wa$
case' lt
.flrtg*;, u matterwith some significance.to the lmgloVefs
the period .
anDears that he may have wori<ed in ihat capacity for
was not an 'inilil;tnGt t.o o*.u*o*r, 2012 at an indoor pool Hethat
he had never
rr.lJtg*; ui tf'* time of these events and emphasized
been one ai an outdoor Pool
onAugust2s"2g,z}lS,heWasworkingasalifeguardatRiverdalePool;
at somerviile
in iliu iurt, rr" had worked, several sumrer*, as a li{eguard
Pool.
record.
The Grisvor had favorable performance reviews and no disciplinary
'l
4
The event at the centre of this matter took place between a m and
party
of
a.m. on August 29, 2013. The Grievor arrived at a private beach
3
his colleagues at 1 a.m, with his friend, Diedre Robinson, who worked with
him as a t-ifegrrarC at Riverpooli he said that Diedre 'dragged' hlm to th.e
party; that fre fraO tittle appetite for same. He had passed on participating
in an earlier dinner event where the drinking had started. The Grievor
drove himself and Diedre to the beach. His evidence; that he had nothing
to drink the entire time and was a de facfo designated driver for the night,
was not challenged by the Employer.
The beach party was in full swing when the Grievor and Diedre arrived'
Many of the participants had been together since the dinner hour and
apparenily drint<ing since that time, Many were drunk or well an their way
to gettingihere. Sitting around a bonfire' the idea of "pool"hopping'' the
So"merviite pool, which was 2 or 3 ltms. away, began lo be discussed'
Pool-hopping, defined broadly, is when a group of unauthorized people
gain accessio an outdoor pool outside of its_hours of operation. lt is an
;;goi;g problem for the Ciiy and a major s-afetv concern' The City spends
signitic"nt amount of time and money safeguarciing against this unlawful .
"u.tiifty, mostly by ensuring that accesi to the pool cannot be gained. Mo$t
pool-hoppers are members of the public, who have no employment
innne.iion to the City. However, a$ it turn$ out, pool-hopping, certainly at
the time of these eveflts, was also a multi"yeaf tfadition amongst aquatic
staff in the area. Most frequently' it was an end of season event' Ms'
year$ at
Hoar testified that she had participated in the tradition lor 3 or 4
both the Rlverdale and Sommerville outdoor pools, ln some years, she
had pool-hopped on more than one occasion. She agreed in cros$tiat she had been a pool in-charge on one or more of ihose
"i"mination
occasions,thatshehadbeendrinkingontho$epreviousoccasions,swum,
and had not done or said anything to caution her colleagues'
Ms. Hoar also testified that $he was aware that a key circulated amongst
senior aquatic staff, which enabled easy access, lnterestingly, the Grievor
was not isked if he had pool-hopped before; or whether he was aware of
the key.
ln any case, the Grievor testified, and again there was no evidence to the
rontrury, that other$ began talking about heading to the Summerville Pool
in ordei to pool hop. Jamie, who went to the pool, but did not enier'
indicated that access would bo easy: that they had key access or that a fire
exit door was |ikely to have been lefi open.
.t
The evidence is unclcar about how many people were at the beach party'
The Grievor described it as "hordes'', which I took to be more than 50 At
approxirnately 2:30 a.m., 15*20 of them decided to walk or drive over to
the Sommerville Pool. The Grievor drove; most of the others walked,
including Ms. Hoar, who walked to the pool with Connor Mclouglin' The
Grievoriook 3 others: Jamie, Emily, and Shea"Lin Sookbir' He parked on
a street near the Pool.
I heard detailed evidence about the architecture and lay-out of the
gained
Somerville Pool, what the entrance points are and how entry was
on the early morning of August 2S, 2013. $uffice to $ay, that it is a iarge facifity on two floorsl with *-ntrunces at both levels and at opposite ends of
doors on
the bultding, Two entrances are material. There are beachside
westside.
the
itre ioutnsiOe of the pool and there i$ an emergency exit on
itre facility has an Oiympic size outdoor pool and a separate diving facility
Ms'
''10 meter
*itt s
fiatforms. The Grievor's evidence' and that of
with respect to the enky, is essentially in agreement The only
Hoar's "n,i
arguably material difference, ii with respeci to when the Grievor would
haie known that their entry was made pos$ible by smashing the glass of
the beachside doors. The Grievor testified that he did not know unlil
entering; Ms, Hoar surmised that he would have known prior
it'ottly
as she did.* I prefer the Grievor's evidence on this point' His
io entry,"ft*t
evidence was significantly more detailed on his location at relevant time$
and he was sob6r; Ms. Hoar admitted that she was significantly inebriated;
certainty such that she was urrable to either drive or swim. she was also
upset by having been privy to the break-in.
The first to arrive at the P ool, the Grievor and his 3 passengers sat on a
grassy area at the northside of the pool He and Jamie then checked the
various entry polnt$. None was open, The rest of the grouP began to
arrive. Sarah Hoar and Connor McLo ughin arrived fast. Hoar and 0 llon
'began go ng
Sooklrir, both Pool in-charg es, and Jamie and Mcloughlin
around to all the doors testing their "managerial keys" on each and every
door'. The Grievor observed th at none worked. That group of 4 then
disappeared around the souths ide of the pool, where the beachside doors
group 0f 3'
are located. $hortlY tlrereafter, Jamie reiurned to the Grievols
The Grievor characterized Jam ie as'flustered', but there is no evidence to
suggest that Jamie revealerl what had just happened. Rather. Jamie
immediately indicated that he w anted to take care of Emily' who was so
intoxicated that she needed to be taken home and, after a brief discussion
in which the Grievor offered to drive her home, it was decided that Jamie
would walk her home. Jamie and Emily left'
The Grievor and Ms. Sookbir then noticed others gathering at the
joined ihe
emergency entrance on the west slde of the building They
group"and"were let into the faciiity when the emergency bar on the exit
Ioor'was pushed from the inside, The Grievor and Ms' $ookbir were the
tast 2 to enter. Ms. Hoar entered beforo them'
Ms, Hoar had joined the group at the emergency door shortly after leaving
Jamie, Dillon Sookbir and Connor Mcloughlin. She had left the
aforementioned, after she witnessed McLoughlin starting to kick the beach
doors, She cautioned against the action but did nothing else; as she
walked away, she heard the glass in the doors breaking'
'lhe details after that are a bit unclear. obviously, Di{lon and connor made
their way through the facility after the breach' The emergency door wa$
7 others
ttren opineO frim ttre inside and Ms, Hoar, the Grievor and 6 or
were let in to the facility.
Litfio more needs be said about the activitiBs in the pool and at the diving
tank, subsequent. 11 recreational staff entered the pool; Ms. Hoar's friend,
vrnes.a, *iou it 12. Most, and maybe all but the Grievor, were drunk lt
*pp*urc ihut everyone bui Ms, Hoar swam. she testified that she didn't
because sho was too drunk, but it is also clear that $he was out of sorts
because she was privy to the break-in, which made her feel bad' and
pa$t'
differentiated this poot'hopping adventure from all of those in the
Most of the men in the group climbed and jumped from the diving
platforms; $ome from the 10 meter' The Grievor swam, cllmbed both to
jumped from
ihe 5 meter and the 10 meter platforms anrl admits that he
the 5 meter platform.
TheGrievoralsotoOk,orhadtaken,3picturesofhimselfonthediving
platform; one of the three features Ms' Sookbir with him. He posted the 3
pictures on his lnstagram account. They were available for public viewing.,
ior approximately g hours, at which time the Grievor took them down. I will
*ui *or* about ihe pictures, and whether they are an aggravating factor'
in my decision below.
6
it appears that Ms, Hoar told the CitY that she only stayed for 20 minutes.
am unable o make that finding. The best evidence is that she stayed for
about 45 m nutes, which is not appreciably shorter than the time spent at
the pool by the Grievor. I have no doubt that she was ill at ease, having
been privy to ihe break-in, and wanted to leave, but her friend, Vanes$a'
was swimming and enjoying herself and Ms. Hoar waited patiently'
I
Finally, there is the evidence with respect to Ms. Hoar's cooperation in the
invesiigation. I have no difficulty in adopting the view that an employee
who comes forward and assists an employef s investigation can be justly
rewarded by the employer; she can cut a deal and be treated less harshly
with respeci to disciplinary consequences, as a result. But the evidence, in
this case, does not bear out the Employer's theory that the Grievor
voluntarily came forward, Rather, it is cloar that Ms. Hoar was contacted
by Ms. Tutty and asked, by the latter, what she knew about the break-in;
und rft* was told that the police were involved' Ms' Tutty advised Ms'
Hoar that coming foruvard was in her best interest. lt was in that context
that Ms. Hoar cooperated and named ali of the individuals involved'
Decision
This case is entirely about ihe arbitral doctrine of discriminatory treatment.
Essentially, one of the hallmarks of fair discipline, pursuant to a just cause
provision,'is that similar cases need to be treated in a similar fashion. ln
my view, the City has failod that test,
Ms. Hoar was given a 3 week suspension; the Grievor was terminated'
The city justifies the differentiel treaiment on several grounds, Most are
not made out, I wili speak to each briefly.
The main one, which I addressed above, is that Ms. Hoar came forward
and cooperated with the Employe/s investigation. That is an exaggeration
of the facts, Ms. Hoar did not come f0rward; rather, she wa$ contacted, a$
a pool 'in-charge' by Ms. Tutty, and encouraged, given the seriousness of
events, to cooperate or face the consequences' No doubt' Ms' Hoar was
vulnorable to duch entreaties, She had been privy to the break-in, which
took her history ol pool"hopping well beyond her comfort zone'
7
While I agree entirely with the City that the Grievor participated in very
serious group mi$conduct, which may welr have justified termination fbr
every member of the group, I arn unwilling to sustain the Grievor,s
termination, given the Gity's keaiment of Ms. Hoar and I so find.
want to underscore that this decision, in no way, condones the
misconduct of the group or sends the meseage, to the aquatic staff, that
such misconduct will not attract the penariy oi termination as th€ ju$t and
appropriate result. The group activity in question included a break and
enier, a trespass, drunken swimming, drunken Jumping, certainly from tho
5 meter platform, and possibly from the 10 meter. The main pool lights
were not turned on in order to avoid delection, so all of this took plaie in
semi-darkness. Ms. Chapman gave detailed and compeliing evidence
about the sheer number of health and safety violalions invqlved in these
ectivilies. Frankly, it is unnecessary to detall the hreaches of the City,s
aquatic policy and precedures and the entario Regulatory requirements for
public p_ools. 1"hey are legion, self-evident and not contested by the Union
{or the Grievor). Ms, Chapman, very legitimately, fe{t betrayed by her
iifeguards and in-charges. $he felt especially betrayed by her in"charges,
who had been trained on health and safety issues for the purposes of
supervising a safe pool. She had difficulty accepting thather trained staff
could show such appatlingly bad judgment. This conduct coutd easily have
resulted in catastrophic injury or death, lt is a testament to Ms. Chapman's
commitment to health and safety, that she placed those health and safety
issues higher on the scaie of seriousness than the break-in itself,
I
l"he problem with the City's position is obvious. While the City submits that
participation [n the event is, in itself, just cause for termination, it did not
terminate Ms. Hoar for her parlicipation. While distinguishing her from the
Grievor was justified on the theory that she came forward and cooperatecl
in the City's investigation, I am not satisfied to find lhat $he voluntarily
came forward, for the reasons set out above. Absent that, there is litile to
distinguish Ms. Hoar's participa{ion in the event from thet of the Grievor.
Arguably, Ms. Hoar was more culpable for her conduct than the Grievor.
Mosl significantly, she was privy to the break-in; the Grievor was not. At
the ilme of these event$, she was a "pool in chargo,,; the Grievor was noi
Ms. Hoar was drunk; the Grievor was not.
The City appear$ to have glven weight to Ms, Hoar's account that $he
stayed only 20 ninutes. I have found that not to be an eccurate account of
events,
I appreciate that several aspect$ of the Grievor's conduct were
aggravating. He swam, but unlike Ms. Hoar, he had not been drinking.
More significanlly, he admitted to climbing the S and 10 meter diving
towers and jumping from the S meter platform. These are profoundly
unsafe activities. ln addition, he took, or had taken, 3 pictures of himself
on the diving towers, which he posted for g hours on his lnstagram
account. He took them down, on his own motion, a{ter that.
The City considered the last a significanl aggravating feature of the case,
ln the City's view, the pictures were a further ''screw you" to the City.
Having engaged in serlou$ misconduct, the Grievor then posted, for all to
see, images of same.
While I agree with the City that the last demonstated further bad judgment
by the Grievor, I am unwilling to conclude that the pictures were intended
or represented a 'screw you'attitude to the City. More importantly, I am
unwilling to flnd that the pictures compromised the re putation of the City.
Ms. Bell, the in charge at the Somerville pool, testifled that the pictures
gave no indication that they were taken at the pool, let alone that they
provided evidence of a pool-hopping adventure. The broatjer public would
have no idea of their significance. There is no evidence that the broader
public accessed the pictures during the t hour window. No doubt, the
City's aquatic staff, who had heard rumours of the event, did.
For all of these reason$, I allow the grievance to this extent. I substitute a
2 summer suspension for the Grievor'$ termination. He is to be rein$tated, effective $eptember 1,2015, to lris employment with the City and
to the normal terms and oonditions of same. His recorrj will show a 30 day
suspension. That penalty reflects a consideration of all of the mitigating
and aggravating factors pleaded by the parties.
While the doctrine of discriminatory treatment is the major consideration in
this award, I note my concern that the termination of a part-time
recreational worker, who has years of service, though litile seniority based
on total hours worked, suffers a very significani consequence. As I
understand the evidence, the Grievor would no longer be considered for
any employment with the City, ln my view, this is a very serious penalty
and one which should bo clearly made out.
I
The City has not made out that case. Leaving aside the main issue:
discriminatory treatment, I am not convinced that tho Grievor should be
treated as unemployable by the City, He has a clean record. I have no
doubt that he will not re-offend. He participated in an event that had
become a staff tradition and his responsibility for participating in same is
attenuated as a result.
{ remain
seized.
DATED THIS 27TH DAY OF JUI.Y, 2015 IN BARRIE, QNTARIO
Dana Randall, Arbitrator
10