Izrailov v. Greyhound Canada Transportation Corp.

Izrailov v. Greyhound Canada Transportation Corp.
Collection
Canadian Human Rights Tribunal
Date
2020-07-29
Neutral citation
2020 CHRT 23
File number(s)
T1853/8312
Decision-maker(s)
Luftig, Olga
Decision type
Decision
Decision status
Final
Grounds
National or Ethnic Origin
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT 23
Date: July 29, 2020
File No.: T1853/8312
Between:
Dmitri Izrailov
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Greyhound Canada Transportation Corp.
Respondent
Decision
Member: Olga Luftig
Table of Contents
I. Reasons for Ruling on admission of documents into evidence 1
II. Pronouns 1
III. General Overview of the Complaint 1
A. Four of the five complainants settle 2
B. Anonymity 2
C. The issue of the Settling complainants as witnesses 3
D. The Complainant Represented Himself 4
E. Overview of the Complainant’s employment with the Respondent and the Spare driver’s work 4
IV. Issues 9
V. Decision 9
VI. Reasons 9
A. The Law 9
B. Did Greyhound Discriminate Against the Complainant? 11
(i) Does the Complainant have a characteristic protected by the Act? 11
(ii) Did the Complainant experience any adverse impacts and was there a nexus or connection between the protected characteristic and the adverse impact(s)? 11
(iii) Allegation of Adverse treatment by Greyhound Dispatchers 12
C. Did the Complainant suffer adverse treatment in relation to the way the Respondent’s Dispatchers treated him? 12
(i) Was the Complainant’s national or ethnic origin a factor in the way the Dispatchers treated him? 18
(ii) Termination of Employment 21
(a) Was the termination of the Complainant’s employment an adverse impact? 21
(b) Was the Complainant’s national or ethnic origin a factor in his termination? 21
(iii) The ratings systems for federal carriers, including Greyhound 23
(iv) The Recap 26
(v) The Daily Dispatch Log 27
(vi) Burlington Initial Response Centre (BIRC) random audit program 28
VII. The Commission and the Complainant’s Positions and Arguments 34
(i) The lack of progressive discipline 34
(ii) The reduction in Greyhound’s services in Canada, including Ontario 35
(iii) Timing of the Respondent’s knowledge of the Complainant’s and the Settling complainants’ Hours of Service violations 37
(iv) The Complainant’s submissions about Mr. Davidson’s testimony 39
(v) The order in which the Respondent took the Complainant and the Settling complainants out of service established discrimination against the Complainant 39
(vi) Was the use of the nicknames “Spirit” and “Yellow” to refer to two of the original five complainants discriminatory? 44
(vii) Mr. Cadieux’s testimony, credibility and the evidentiary issue about his recording 46
(viii) Who is responsible for a Spare driver’s compliance with the Hours of Service? 49
(ix) Complainant’s submissions about his Union representation 51
(x) The Complainant’s allegation that Greyhound did not support his family needs 52
VIII. The Respondent’s Arguments 54
(i) The Respondent’s criteria of remorse 63
(ii) Observations 64
IX. Conclusion 64
I. Reasons for Ruling on admission of documents into evidence
[1] A Ruling with reasons on whether certain documents should be admitted into evidence is annexed to this Decision.
II. Pronouns
[2] During the period covered by this Complaint, the Respondent employed both men and women as drivers. Therefore, rather than repeating the phrase “he or she” throughout this Decision, a driver is referred to in the singular as “he”, which is meant to include “she” and “he” should be read with that understanding, unless the context otherwise indicates.
III. General Overview of the Complaint
[3] There were originally five individual complainants who each filed separate complaints pursuant to section 7 of the Canadian Human Rights Act, R.S.C.1985, c. H-6 (Act) against their former employer Greyhound Canada Transportation Corp. (Greyhound or Respondent). The Tribunal decided to consolidate the hearing of these five complaints, but each complaint retained its status as a separate complaint.
[4] Three of the complaints alleged that Greyhound discriminated against them on the prohibited ground of national or ethnic origin both in how Greyhound assigned work to them and when it terminated their employment. One of the other complainants added the ground of discrimination on the basis of colour, and the other complainant specified that he was a visible minority.
[5] The Commission participated in the hearing for the first few days and then ended its participation, as set out below. The hearing continued for a total of 20 days.
[6] The Complainant and the other four complainants were self-represented by one of the complainants (not the Complainant). This representing complainant had largely handled the case management process prior to the hearing, and, on behalf of all five complainants, made the opening statement at the hearing and questioned witnesses. The five complainants also had some assistance from Commission counsel.
A. Four of the five complainants settle
[7] On the sixth day of the hearing, the Commission advised the Tribunal that four of the five complainants (Settling complainants) had entered into conditional agreements with the Respondent to settle their complaints. The Commission told the Tribunal that one of those conditions was that each of the Settling complainants had a five-day “cooling off” period during which any of them could rescind his agreement to settle and continue with the hearing. On the day the parties advised the Tribunal of the conditional settlements, the Commission announced it would end its participation in the hearing and it did so at the end of that hearing day.
[8] None of the Settling complainants rescinded their agreements to settle. This meant that the Complainant was the sole complainant who continued with the hearing and the inquiry.
B. Anonymity
[9] At the hearing, the Commission’s counsel informed the Tribunal that all parties including the Complainant, had consented to the anonymization of the name of the Settling complainant who had only testified in part. Pursuant to the parties’ consent, I stated that insofar as the Decision might mention this Settling complainant, it would refer to him by a non-identifying initial. However, the Decision does not refer to him separately, but only as one of the Settling complainants.
[10] The other Settling complainants also requested that the Tribunal refer to them in the final Decision only by non-identifying initials. The Complainant consented to this. Therefore, where it has been necessary to refer individually to the other Settling complainants, the Decision uses non-identifying initials.
[11] At the time of the above discussions and requests for anonymity by the Settling complainants, the Complainant did not request that the Tribunal use non-identifying initials in the Decision when it referred to him.
[12] Just before final submissions began, I reviewed the above requests and consents with the parties and confirmed with them that the Decision would use non-identifying initials when referring to any individual Settling complainant. I also told the parties that the Tribunal would place the Decision on the Tribunal’s website, which is accessible to the public.
[13] At the beginning of the second day of final submissions, there was a discussion about the consent order the parties had asked me to sign in 2013, specifically with respect to the confidentiality of names in the Driver Audit Spreadsheet (Exhibits R1-29 and HR1-31). This order is discussed in more detail later in the Decision. I repeated to the parties my understanding that when the Settling complainants advised the Tribunal that they were withdrawing their complaints, they requested that the Decision refer to them by non-identifying initials; the Respondent and the Complainant agreed to this request, and I decided that insofar as the Decision referred to any of the Settling complainants individually, it would do so by non-identifying initials. The Respondent and Complainant again agreed. I told the Complainant that this meant that the Settling complainants’ names would therefore not be on the Tribunal’s website when the Tribunal posted it there. The Complainant again agreed. He stated that it was fine that people saw his own name.
C. The issue of the Settling complainants as witnesses
[14] When the four Settling complaints informed the Tribunal that they were all withdrawing their complaints, only one of them had completed his testimony – that is, only one of them had testified in both direct examination and cross-examination. Two of the Settling complainants had not testified at all, and one had not completed his direct examination and had not been cross-examined before he settled. Commission and Respondent counsel informed the Tribunal and the Complainant that the two Settling complainants who had not yet testified were requesting that the Complainant undertake not to call them as witnesses, because this was part of their settlement agreement with the Respondent. The Complainant agreed not to call the two Settling complainants who had not testified as witnesses.
[15] The Complainant asked the Tribunal whether it would take into account the testimony of both of the Settling complainants who had already testified. The Tribunal’s verbal ruling on this issue was that the Tribunal would not take into account the testimony of the Settling complainant who had not finished his direct examination or been cross-examined because his testimony had not been tested by cross-examination, but his testimony would still remain part of the record. With respect to the Settling complainant who had been cross-examined (Mr. X or X), the Tribunal ruled that it would take his testimony into account because he was cross-examined before he settled. In summary, of the four Settling complainants, I take only Mr. X’s testimony into account in this Decision.
D. The Complainant Represented Himself
[16] I note that the Complainant represented himself for the rest of the hearing and case management procedures which took place between hearing dates. Before the start of the hearing, at the request of one of the Settling complainants, the Tribunal had arranged translation from English to Russian (and Russian to English) for the entirety of the hearing. The Complainant had stated before the hearing that he would also use these translation services, and this was continued for the Complainant throughout the hearing until its end.
E. Overview of the Complainant’s employment with the Respondent and the Spare driver’s work
[17] The Complainant testified that Greyhound hired him as a paid trainee driver in September 2007. He took Greyhound’s approximately eight-week coach operator (bus driver) training course which Greyhound required its trainees to pass before they could operate buses transporting paying passengers and delivering packages. He found the course stressful, but passed it, including the written tests. He began driving buses full time in November 2007.
[18] The testimony of the Commission’s witness Mr. Mouwad Al-Khafajy, who had been President of the Amalgamated Transit Union Local 1415 (Union) since 2014 and a Union Executive Board member before that, established that at the time the Complainant and the Settling complainants began to work for Greyhound, they were required to provide documentary proof that they could legally cross the Canada-United States border. The Complainant had provided his passport. Mr. Al-Khafajy agreed with the Complainant and the evidence established that Greyhound therefore knew the national origin of its drivers at that time.
[19] There was no dispute that the employment of Greyhound bus drivers is mainly governed by a collective agreement (Collective Agreement) between the Union and Greyhound. The Complainant became a Union member when he began working for Greyhound. Canadian federal and provincial legislation and American legislation apply to Greyhound buses when they operate in those respective jurisdictions, irrespective of where their trip starts. The legislation also sets out and governs the number of daily, weekly, and monthly hours drivers can work in those jurisdictions. The legislation also sets out, among other things, mandatory rest periods. The entire scheme of permitted work, driving and rest periods are collectively called Hours of Service. The Hours of Service for Canada and the United States are different, and drivers must know each because no matter where a bus route may originate, if its route is in two different jurisdictions, the legislation which governs is the legislation in the jurisdiction which the bus is in during any particular point of the trip.
[20] The evidence established that Greyhound’s bus drivers are divided into 2 groups: regular drivers and “Spare” (Spare) drivers. Regular drivers are more senior drivers who are permitted to bid on set routes and who therefore have set hours of work. More junior drivers are placed as Spare drivers. They do not have regular routes and set work hours – rather, during the Complainant’s employment at Greyhound, Spare drivers handled any overflow of passengers who bought tickets for bus transportation where there was no more available seating on the regular driver’s bus.
[21] The Complainant and the four Settling complainants were Spare drivers. Greyhound places the names of the available Spare drivers for a given period on a chart called a “Spare Board” (Spare Board). There are separate Spare Boards for separate terminals or groups of terminals. For example, the Toronto Spare Board, the Ottawa Spare Board and the London Spare board were separate. Toronto was the Complainant’s and Settling complainants home terminal.
[22] Mr. David Butler was the Respondent’s Regional Manager for Eastern Canada during the time period covered by the Complaint until the fall of 2012, when he was promoted to Director, Eastern Canada, his position at the time of the hearing. He testified that Greyhound’s business was a 24-hour-a day, 365-day-a year operation. Weekends and holidays such as Thanksgiving, Christmas and Spring Break were Greyhound’s busiest times. Spare drivers were “on call”, meaning that they had to be available for work, unless they were officially booked off or on vacation or ill. When “on call”, Spare drivers could be called in to work when given the required notice.
[23] The Respondent’s witness Robert Davidson was a former Greyhound employee who was Manager of Operations for the Toronto terminal between April 2008 and June 2012, which included the period during which the Complainant and the Settling complainants worked for Greyhound. He had also been a driver and had acted as a Dispatcher. He testified that the Toronto operation included other terminals, called “satellite terminals”, within about a 125-mile radius of Toronto. Mr. Davidson described the Spare drivers as the “bricks and mortar” of Greyhound’s bus operations because they filled in when demand for passenger bus service required more buses than that offered through the regular drivers.
[24] The Respondent described the work of the Spare drivers as akin to “piece work” – pieces of work – that is, an assignment to operate a Greyhound bus on a bus route, whether one-way or round-trip – as and when they are required, subject to the Respondent’s obligation in the Collective Agreement to pay each Spare driver a minimum amount, called the Guarantee. The evidence established that Greyhound paid its drivers basically by using what it called a “mile equivalency”, and the evidence also established that in the period at issue in this Complaint, the mile equivalency a driver needed in order to make the Guarantee was 240 miles for each 24-hour work period.
[25] The individuals who assign the work to the Spare drivers are called dispatchers (Dispatchers). Dispatchers are not Union members. There is a set of procedures which govern how the Dispatchers are to assign work to the Spare drivers. These procedures are called the “Plugging and Assigning Procedures”, which some of the witnesses called the “Working Procedures”.
[26] The testimony of the Commission’s witness Mr. Al-Khafajy and the Respondent’s witnesses David Butler; Raymond Palmer who was Manager of the Respondent’s consolidated Dispatch in Burlington, Ontario when he testified; and Frank Marsh, a Greyhound driver who had been the Union representative for the Complainant and the Settling complainants, established that the basic principle regarding assigning work to Spare drivers is “first in, first out” (FIFO). Mr. Butler testified that what FIFO meant was that whichever Spare driver had been the first to return to a terminal from a run the day before would be the first to be assigned from that terminal to another run the next working day. The list of Spare drivers available for the day was shown on the Spare Board for the particular terminal. There were other rules in the Plugging and Assigning Procedures which modified the strict application of FIFO, for example, a Spare driver’s home terminal and other criteria, but the basic principle was first in, first out.
[27] The Respondent’s witness Robert Davidson testified that in early 2010, Mr. Butler, to whom Mr. Davidson reported, asked him to look into how Greyhound was utilizing its Spare drivers. More precisely, Mr. Butler wanted to know if Greyhound was using its Spare drivers efficiently in terms of whether it was paying overtime to some Spare drivers while at the same time paying other Spare drivers their Guarantee because they were not working or not working enough hours. The Decision deals in more detail later with how Mr. Davidson conducted this review.
[28] The Complainant and the Settling complainants were under Mr. Davidson’s jurisdiction, and in the course of his review, his subsequent investigation and the audits done on the Complainant’s and Settling complainants self-recorded logbooks in April, 2010 (discussed in more detail later), they were found to be in violation of the Hours of Service. Greyhound’s investigation and the meetings it held with the Complainant and the Settling complainants convinced Greyhound that the Complainant and two of the Settling complainants had altered the carbon copies of their Logbooks to appear legal in case they were inspected on the road and that the other two Settling complainants had also manipulated their Hours of Service in other ways to appear legal. They were also found to have made mistakes in or failed to record certain required information in their logs. These mistakes and omissions are classified as “Form and Manner” errors and are called Log Infractions in the documentary evidence and in this Decision. The Hours of Service violations meant that they were driving in excess of the driving hours permitted by the governing legislation or not taking the required rest or time off.
[29] The Respondent decided to terminate the Complainant’s employment in May 2010 as a result of its audits of his logbooks and its investigation, but agreed that he could resign, and he did so in writing on May 14, 2010. Greyhound agreed that the other two Russian Settling complainants could also resign, and they did so. The other two Settling complainants chose not to resign, and Greyhound terminated their employment.
[30] In its opening statement and Statement of Particulars (SOP), the Commission’s position included the submission that the Tribunal ought to draw the inference of discrimination on account of national or ethnic origin from the fact of the Respondent’s lack of progressive discipline of the Complainant and the settling Complainants, compared with its less severe treatment of those of its non-immigrant drivers who had had the same or similar Hours of Service violations. The Complainant adopted that position.
[31] The Complainant also submitted that Greyhound used the audits of their Logbooks as a pretext to fire him and the four Settling complainants because they were either new immigrants, specifically in his case and that of two of the Settling complainants, of Russian national or ethnic origin, or, as in the case of the other two Settling complainants, because they were visible minorities and that Greyhound also did so because it wanted to make space for white Canadian drivers.
[32] The Complainant and the Commission further submitted that the Respondent’s reduction of services in various parts of Canada, including Ontario, led to the Respondent employing too many drivers in Toronto and needing to make room for drivers from the Barrie, Ontario terminal, so it used the pretext of the Hours of Service violations to differentiate adversely against the Complainant by terminating his employment (and that of the Settling complainants) because they were immigrants of a different national or ethnic origins than Canadian.
IV. Issues
[33] The Tribunal must determine the following in this Decision.
[34] First, has the Complainant made out a prima facie case of discrimination contrary to section 7 of the Act?
[35] If so, has the Respondent established a bona fide justification for the termination of the Complainant’s employment and his treatment while employed? Furthermore, if applicable, has the Respondent been able to refute the presumption of s. 65 of the Act?
[36] And, finally, depending on whether the complaint has been established, what remedies should the Tribunal order?
V. Decision
[37] Briefly, the Tribunal concludes that the evidence failed to establish a prima facie case that the Respondent Greyhound engaged in a discriminatory practice against the Complainant. On that basis, the Tribunal dismisses the Complaint. Therefore, the Tribunal is not required to address the Respondent’s burden of proof, nor the remedies the Complainant sought.
VI. Reasons
A. The Law
[38] The Complainant believes he has been discriminated against by the Respondent in the course of his employment. He submits that the Respondent’s discriminatory practice was twofold: a) its Dispatchers treated him adversely while he was employed and b) the Respondent treated him adversely when it terminated his employment. He submits that both forms of the Respondent’s discriminatory practice occurred because he was a new immigrant in Canada, in other words, because of his national or ethnic origin.
[39] Section 7 of the Act states:
It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
[40] Subsection 3(1) of the Act states, in part:
For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
[41] To establish a prima facie case of discrimination, the Complainant needs to establish:
that he had a characteristic protected from discrimination under the Act, in this case, his national or ethnic origin;
that he experienced an adverse impact or multiple adverse impacts with respect to employment, and
that the protected characteristic was a factor in the adverse impact (Moore v. B.C. (Education), 2012 SCC 61 (Moore), at para. 33).
[42] The Complainant must establish a prima facie case on the civil standard of the balance of probabilities (Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (Bombardier), at paras. 59, 65). The balance of probabilities is when the evidence has established that it is more likely than not that events occurred in the way the complainant claims they did.
[43] If the Complainant meets his burden, the Respondent has three options in responding to an allegation of prima facie discrimination: the Respondent may call evidence to show its actions were not discriminatory; it may establish a statutory defence that justifies the discrimination; or it may do both (Bombardier, supra, at para. 64).
B. Did Greyhound Discriminate Against the Complainant?
(i) Does the Complainant have a characteristic protected by the Act?
[44] The Moore test (supra) requires that the decision maker first decide whether a complainant has a characteristic protected by the applicable human rights legislation.
[45] There was no dispute that the national origin of the Complainant and two of the Settling complainants was Russian, including Mr. X. There was also no dispute with Mr. X’s testimony that he was born in Ukraine, then part of the former Union of Soviet Socialist Republics (U.S.S.R.) and that he considered himself Russian. There was also no dispute that the Complainant had a non-Canadian accent, as did Mr. X, and that English was not their first language.
[46] The Commission also described the Complainant and the Settling complainants as “new immigrants”. The Complainant and Settling complainant Mr. X both also identified themselves as “new immigrants” or “new Canadians”. When asked what “new Canadian” meant to him, Mr. X testified that it was someone who had been in Canada for less than 20 years and was still learning Canadian “ways”. I find that Complainant’s self-description as a “new Canadian” and “new immigrant”, and his self-description of “Russian” nationality and ethnicity are covered by the Act’s prohibited grounds of discrimination on the basis of national or ethnic origin in subsection 3(1) of the Act. I therefore conclude that the Complainant has a characteristic protected by the Act – specifically, his Russian national or ethnic origin.
(ii) Did the Complainant experience any adverse impacts and was there a nexus or connection between the protected characteristic and the adverse impact(s)?
[47] In Tahmourpour v. Canada (Attorney General), 2010 FCA 192 (Tahmourpour, FCA), the Federal Court of Canada stated that adverse treatment usually involved “something harmful, hurtful, hostile” (Tahmourpour, FCA, supra, at para. 12). I must therefore decide if the Complainant experienced treatment from the Dispatchers or any of them which was harmful, hurtful or hostile. I must also decide if the Respondent’s termination of his employment constitutes adverse treatment.
(iii) Allegation of Adverse treatment by Greyhound Dispatchers
C. Did the Complainant suffer adverse treatment in relation to the way the Respondent’s Dispatchers treated him?
[48] The Complainant alleges that he was adversely treated by the Dispatchers, specifically that they pressured him to accept assignments even if those assignments would cause him to violate his Hours of Service. Furthermore, because he feared their reactions if he did not do as they instructed – including not giving him work, or only giving him low-paying routes or even, as he mistakenly thought, suspending him – he accepted work that put him in violation of his Hours of Service. The Complainant testified that early in his employment at Greyhound, a Dispatcher, Cory Gillis, told him to “be creative” with his Logbook. He further testified that after that, “no one could say” that he was not “creative”.
[49] After the Complainant’s direct testimony, cross-examination and re-examination, I asked him what the Dispatcher’s words “be creative” meant to him - what was he supposed to do? The Complainant responded that he thought it meant that he had to find his own solution to the situation. When I asked how he was supposed to find a solution, he responded that he did not know, but that the Dispatcher told him to “be creative”.
[50] In order to support this allegation, the Complainant called Anastasia Meicholas as a witness. She testified by speakerphone from Alberta. She had worked for Greyhound from about September 2007 when she started the bus driver training course, which she described as lasting “quite a while”, until she resigned about two years later, in 2009. When asked by the Complainant in direct examination whether she had any issues with the “hours”, she responded that there were always issues with hours and always issues with Dispatch. In response to the Complainant’s question “When we were out of hours, what [did] we had [sic] to do?”, Ms. Meicholas responded that if a driver was out of hours, he or she was supposed to mark themselves as “on duty, not driving”. She testified that the driver did not really have a choice if he wanted to get paid. She testified that in order to get paid for the time, “they” would tell us, “you have to get creative or change the times”. I found the part of Ms. Meicholas’ testimony about the details in how to get paid as a driver incoherent but I accept her testimony about the phrase “get creative”. I generally found Ms. Meicholas to be an honest, truthful and forthright witness. In her testimony, it was obvious that she did not feel Greyhound was a caring employer when she was injured on the job, but I found that her feelings about that did not taint the reliability of most of her testimony, with the exception of what I found to be her incoherent testimony when she described how to get paid.
[51] When asked in direct examination if she remembered the Dispatcher named Cory, Ms. Meicholas responded that she did, and described him as “number one” and that “He was quick to curse you out.” She again repeated that “they would always tell you to be creative when you’re doing your Logbook so you can make things happen.” When asked what kind of issues she would have with Dispatchers if she told them she did not have enough Hours of Service to accept an assignment, she responded that they would threaten the driver and that “Cory would tell you straight off. Dispatchers did spiteful things”. She gave as an example having to stay overnight in an out-of-town location longer than she wanted to. Ms. Meicholas also testified that Mr. Gillis was fired and that a Dispatcher named “Chris” took his place.
[52] I accept the Respondent’s David Butler’s testimony that Greyhound fired Dispatcher Mr. Gillis in February of 2008. I therefore find that the Complainant remained employed by the Respondent for more than two years after Mr. Gillis’ firing and thus worked with other Dispatchers after Mr. Gillis no longer worked for Greyhound.
[53] The Complainant also testified that he was afraid of the Dispatchers because he felt that they had the power and discretion to both give out and withhold work and to suspend drivers. Both he and Mr. X testified that they had been told by Walter Kiskunas, a Greyhound instructor, that the Dispatchers were the Spare drivers’ immediate supervisors and that the Spare drivers should have good relationships with the Dispatchers if they wanted good and steady work. The Complainant testified that Mr. Kiskunas suggested that he should do small favours for the Dispatchers, such as bringing them coffee, to foster that good relationship. Settling complainant Mr. X testified that he had seen then Dispatcher Raymond Palmer suspend Spare driver Dan Gregoriev, who was of Russian national origin, right in front of him for refusing to drive on account of being tired.
[54] The Complainant’s witness Brian Cadieux, a former Greyhound Spare driver who identified as French-Canadian, testified that the Dispatchers sometimes withheld work from Spare drivers. He testified that the Dispatchers could “forget” about a Spare driver who was at home if they wished to, and not give that Spare driver work. He recalled this happening to him at least once. He also testified that Dispatchers would tell drivers to “work your books”. Mr. Cadieux interpreted this as a hint to record the Hours of Service in his logbook in such a way as to be within the legal Hours of Service while at the same time accommodating a Dispatcher’s request that he take a route that would result in Mr. Cadieux driving longer than the Hours of Service permitted.
[55] Greyhound’s witnesses David Butler; Raymond Palmer; and former Toronto Operations Manager Robert Davidson testified that Dispatchers did not have the discretion to change the system in the Plugging and Assigning Procedures (or Working Procedures) when they assigned work to the Spare drivers. Mr. Davidson described those Procedures as “basically the Bible” of assigning work to the Spare drivers. Mr. Butler referred to his own experience as both a driver and a Dispatcher in London, Ontario, and testified that when he was a driver and told a Dispatcher he could not do the run the Dispatcher wanted him to do because he was out of Hours of Service, the Dispatcher would move on to the next available Spare driver. He said it was the same when he was a Dispatcher and the situation was reversed.
[56] Mr. Palmer, who was a Dispatcher during the period covered by the Complaint and, since May 2013, is Greyhound’s Operations Manager for Consolidated Dispatch in Burlington, Ontario, also testified that FIFO was the basic principle of assigning work to Spare drivers and that it had to be done in accordance with the Working Procedures “to ensure that everything is fair”. When asked in direct examination if there was any room for discretion in how a Dispatcher assigns work to the Spare drivers, he responded that there was not. He further testified that in his current role as Dispatch Operations Manager, if he became aware that a Dispatcher was demanding that Spare drivers go beyond their Hours of Service in order to take runs, that Dispatcher would be fired.
[57] Mr. Butler and Mr. Davidson also testified that if they ever found out that a Dispatcher was hinting or pressuring drivers to violate their Hours of Service, that Dispatcher would have been fired.
[58] Mr. Butler and other of the Respondent’s witnesses further testified that if a Dispatcher did not assign a driver to a route in compliance with the Working Procedures, the driver to whom the Dispatcher should have assigned the route according to the Working Procedures could claim what was called a “Run-around”. If the Run-around claim was successful, Greyhound would have to pay the skipped-over driver what he would have earned for that route, in addition to paying the driver who actually drove the route. Mr. Butler also testified that if a Dispatcher had what Greyhound considered to be too many Run-around claims, Greyhound would investigate him and discipline him if warranted, because Run-around claims were unnecessary costs for the Respondent. I find that Run-around claims were therefore a disincentive for Dispatchers to fail to comply with the Working Procedures in assigning runs. The evidence established that one of the Settling complainants had filed a Run-around claim.
[59] Mr. Butler and Mr. Palmer asserted in their testimony that Dispatchers did not have the authority to discipline drivers – they could not suspend drivers or execute any form of discipline, nor take them out of service on their own authority during the time the five complaints arose. Mr. Palmer testified that a Dispatcher could not take a driver out of service with pay, although he also testified that he had “yanked” a driver (see below). Mr. Davidson modified Mr. Palmer’s testimony when Mr. Davidson testified that if the situation involved a serious violation of the Hours of Service, and a Dispatcher could not reach a manager, the Dispatcher could take a driver out of service. According to all these Respondent witnesses, what the Dispatchers had the authority to do was document situations and write reports to the next level of management, who would then decide on discipline if there was an incident where they thought that a driver had not followed either Greyhound or governmental rules.
[60] The evidence, specifically the Collective Agreement, and the Complainant’s and Mr. Butler’s testimony on the point, which I accept, established that when the Respondent takes a driver “out of service”, it means that he is removed from his working duties but still receives a flat basic rate of pay until the final resolution of the issue [1] .
[61] I also accept Mr. Butler’s testimony that a “suspension” of a driver (suspension or suspending) was a disciplinary decision that could only be made by management, and in accordance with the Collective Agreement, only after the driver had been given the opportunity for both Union representation and to explain his side of the alleged issue. A suspension was almost always without pay. A suspension could vary from one to five days’, with five days usually being the longest number of days.
[62] I find that the evidence established that in most cases, the Respondent’s decision to take a driver out of service is made by the next level of management above the Dispatchers. The decision to actually discipline a driver – and examples of such discipline are to suspend the driver without pay, order re-training, or terminate his employment - can only be made after conducting an investigation and having an investigative hearing (Investigative Meeting) with Greyhound management during which the driver gives the driver’s side of the situation and during which the driver is entitled to Union representation.
[63] I accept the testimony of these Respondent’s witnesses that when they were Dispatchers, they followed the Assigning and Plugging Procedures and the governing legislation.
[64] I also accept the testimony of some of the Complainant’s witnesses that sometimes, what went on between the Dispatchers and the Spare drivers was not the rules-based, co-operative, pleasant relationship that was meant to exist between them. I take into account and accept on this point the testimony of the Complainant’s witnesses Brian Cadieux, Ms. Meicholas, Mr. X and the Complainant himself that the Dispatchers, in particular but not limited to former Dispatcher Mr. Gillis, could be rude and “curse” at the drivers, could pressure a Spare driver, and could make the Spare driver’s working day more difficult. In fact, Mr. Palmer himself testified about an incident when he was a Dispatcher and “yanked” Dan Gregoriev from service, a driver who he identified as being of Russian national origin, for what Mr. Palmer felt was a breach of the rules. Mr. Palmer did not specify nor was he asked what he meant by “yanked” – that is, did he mean taking the driver out of service with pay or actually suspending the driver. Taking into account all the previous testimony and my finding about the lack of authority Dispatchers had to actually discipline a driver, I find Mr. Palmer took Mr. Gregoriev out of service and a manager suspended him. Mr. X may have misunderstood what he saw when he testified about being present when a Dispatcher suspended Mr. Gregoriev right in front of him, but the upshot was that the driver ended up being suspended.
[65] I find that it is not a coincidence that both the Complainant and Ms. Meicholas described Dispatchers as saying to them “be creative”. At the start of the hearing, I made an oral order excluding all witnesses from the hearing room before they testified except the Respondent’s instructing witnesses and the five complainants. Ms. Meicholas testified by phone from Alberta, where she lived, so she was not even near the hearing room before she testified. There was also no evidence that the Complainant and she had spoken before her testimony - in fact the Complainant had previously advised the Tribunal that he had had trouble reaching her. Ms. Meicholas’ testimony confirmed that Dispatcher Gillis told her to “be creative” at least once. She acknowledged in her testimony that no Dispatcher told her outright to go beyond her Hours of Service, and she was never found to have done so, but she also took the phrase as a hint