GPS data ‘very reliable’ despite union assertion: Arbitrator
After an unsuccessful stint working at a Coquitlam, B.C., trucking company, a linehaul driver was fired for being unsuitable at his job.
Robert Harbermehl had worked at Clark Reefer Lines since Dec. 8, 2014, but on Feb. 6, 2015, while still on probation, he was told that because of unsatisfactory ratings during his performance review and speeding during a run, he would be terminated.
According to the collective agreement, new employees were considered on probation until they had worked 60 shifts.
The employer said Harbermehl was speeding on Jan. 29, but he then showed them photographs of speed-limit signs that were covered with snow, making him unsure of the limits on that day.
As well, the employer said Harbermehl had some lights installed on his truck without permission from the company. His performance review, which showed unsatisfactory rankings for three of eight categories, was also cited by Clark Reefer Lines.
Harbermehl left the company and did not grieve the termination.
On March 30, Harbermehl asked the union, Transport, Marine, Warehousing and Allied Workers Union (CLAC), Local 66 if there were any documents with his name and signature present. The union wrote back to him and confirmed that there was evidence that Harbermehl had paid his union dues.
After contacting the Employment Standards branch of the B.C. government, Harbermehl went back to the union on Sept. 8 and asked for advice regarding his termination.
The union said that because he had been a probationary employee, it would not grieve the firing on his behalf. However, Harbermehl complained to the B.C. Labour Relations Board about that response and the board ruled he should have been given a more fulsome representation by the union.
Even though timelines regarding grievances in the collective agreement had long passed, the employer agreed to the arbitration hearing.
The union argued that Harbermehl was given only minimal training, which explained his non-satisfactory gradings during the performance review. It said the employer did not provide Harbermehl with any way to improve his performance before it terminated him.
The speeding charge was subsequently changed to Jan. 10 at the hearing, and the GPS records showed that Harbermehl went as high as 26 kilometres over the limit at one point.
But the union said Harbermehl advised the employer that his speedometer was malfunctioning and it had not been fixed. As well, the union challenged the validity of the employer’s GPS data, which contradicted Harbermehl’s log book entries.
Harbermehl asked for damages in lieu of returning to his old job, which he said he would refuse anyway.
Arbitrator Michael Fleming dismissed the grievance.
“There is no assertion of discrimination in the sense (Harbermehl) was singled out in some manner and treated differently than other probationary employees. I am satisfied the employer acted in good faith, relying in part on reliable business records, using its established assessment process and criteria in reaching its decision (Harbermehl) was unsuitable. I find there is no basis upon which it would be appropriate to interfere with the employer’s decision that (Harbermehl’s) probationary employment should be terminated on the basis of his unsuitability,” said Fleming.
The charge that the employer’s use of GPS was faulty was discounted by Fleming. “It is well known that GPS is widely used in the trucking industry and is generally regarded as a very reliable means of fleet management.”
“For all the reasons provided, I find there is no basis to conclude the employer’s decision to terminate (Harbermehl’s) probationary employment was arbitrary, discriminatory or in bad faith. Accordingly, notwithstanding the fact (Harbermehl) does not seek reinstatement, I find there is no basis to interfere with the employer’s decision,” said Fleming.
Reference: Clark Reefer Lines and Transport, Marine, Warehousing and Allied Workers Union (CLAC), Local 66. Michael Fleming — arbitrator. Kacey Krenn for the employer. Jesse Dunning for the employee. Aug. 3, 2018. 2018 CarswellBC 2382
Robert Harbermehl had worked at Clark Reefer Lines since Dec. 8, 2014, but on Feb. 6, 2015, while still on probation, he was told that because of unsatisfactory ratings during his performance review and speeding during a run, he would be terminated.
According to the collective agreement, new employees were considered on probation until they had worked 60 shifts.
The employer said Harbermehl was speeding on Jan. 29, but he then showed them photographs of speed-limit signs that were covered with snow, making him unsure of the limits on that day.
As well, the employer said Harbermehl had some lights installed on his truck without permission from the company. His performance review, which showed unsatisfactory rankings for three of eight categories, was also cited by Clark Reefer Lines.
Harbermehl left the company and did not grieve the termination.
On March 30, Harbermehl asked the union, Transport, Marine, Warehousing and Allied Workers Union (CLAC), Local 66 if there were any documents with his name and signature present. The union wrote back to him and confirmed that there was evidence that Harbermehl had paid his union dues.
After contacting the Employment Standards branch of the B.C. government, Harbermehl went back to the union on Sept. 8 and asked for advice regarding his termination.
The union said that because he had been a probationary employee, it would not grieve the firing on his behalf. However, Harbermehl complained to the B.C. Labour Relations Board about that response and the board ruled he should have been given a more fulsome representation by the union.
Even though timelines regarding grievances in the collective agreement had long passed, the employer agreed to the arbitration hearing.
The union argued that Harbermehl was given only minimal training, which explained his non-satisfactory gradings during the performance review. It said the employer did not provide Harbermehl with any way to improve his performance before it terminated him.
The speeding charge was subsequently changed to Jan. 10 at the hearing, and the GPS records showed that Harbermehl went as high as 26 kilometres over the limit at one point.
But the union said Harbermehl advised the employer that his speedometer was malfunctioning and it had not been fixed. As well, the union challenged the validity of the employer’s GPS data, which contradicted Harbermehl’s log book entries.
Harbermehl asked for damages in lieu of returning to his old job, which he said he would refuse anyway.
Arbitrator Michael Fleming dismissed the grievance.
“There is no assertion of discrimination in the sense (Harbermehl) was singled out in some manner and treated differently than other probationary employees. I am satisfied the employer acted in good faith, relying in part on reliable business records, using its established assessment process and criteria in reaching its decision (Harbermehl) was unsuitable. I find there is no basis upon which it would be appropriate to interfere with the employer’s decision that (Harbermehl’s) probationary employment should be terminated on the basis of his unsuitability,” said Fleming.
The charge that the employer’s use of GPS was faulty was discounted by Fleming. “It is well known that GPS is widely used in the trucking industry and is generally regarded as a very reliable means of fleet management.”
“For all the reasons provided, I find there is no basis to conclude the employer’s decision to terminate (Harbermehl’s) probationary employment was arbitrary, discriminatory or in bad faith. Accordingly, notwithstanding the fact (Harbermehl) does not seek reinstatement, I find there is no basis to interfere with the employer’s decision,” said Fleming.
Reference: Clark Reefer Lines and Transport, Marine, Warehousing and Allied Workers Union (CLAC), Local 66. Michael Fleming — arbitrator. Kacey Krenn for the employer. Jesse Dunning for the employee. Aug. 3, 2018. 2018 CarswellBC 2382
