Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2020 CanLII 98782 (ON LA) Date: 2020-12-11 Citation: Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2020 CanLII 98782 (ON LA), , retrieved on 2021-07-30 IN THE MATTER OF AN ARBITRATION B e t w e e n: TORONTO TRANSIT COMMISSION (the "TTC") - and - AMALGAMATED TRANSIT UNION, LOCAL 113 (the "Union") Re: discharge grievance of Haave Wright Russell Goodfellow - Sole Arbitrator APPEARING FOR THE TTC: Giuseppe Agostino, counsel Steve Lavender, counsel David Skwira APPEARING FOR THE UNION: Simon Blackstone, counsel Saneliso Moyo, counsel Emily Elder, counsel and others Hearing held over the course of 20 days between March 27, 2017 and September 8, 2020, followed by additional written submissions completed on October 23, 2020. AWARD This is a discharge case. It is the third award among nine or ten cases proceeding before nine or ten arbitrators in which bargaining unit members were fired for benefits fraud. A great many more grievances, challenging the discharge of other employees have been referred to arbitration but are being held in abeyance. The cases unfolded in somewhat unusual fashion. The parties agreed that evidence that would be relevant to all cases need only be led in one - in whichever case reached the relevant point in the evidence first. Such evidence was then transcribed for use in all cases. Similar treatment was accorded procedural and evidentiary rulings: rulings on common issues made in one case would apply in all cases. The object was to reduce the time and expense associated with pursuing nine or ten "test cases". In the first two awards, the grievances were dismissed; the discharges were upheld: see TTC and ATU (Elengikal), 2020 O.L.A.A. No. 214 (Howe) and TTC and ATU (Smith), 2020 CanLii 71739 (Slotnick). Following the release of those awards, which came during and after, respectively, final argument in this case, the parties made submissions as to their effect. Neither party challenged the conclusions reached. The submissions concerned the implications of the conclusions for the present case. Having read the two awards with care, there is nothing in either with which I do not agree. Arbitrators Howe and Slotnick undertook a detailed review of the voluminous evidence and lengthy legal submissions. I agree with their conclusions on both the common issues and, for what it is worth, on the facts of their individual cases. All arbitrators in the test cases owe these two arbitrators a tremendous debt of gratitude. Most significantly, the result of the Howe and Slotnick awards is, in my opinion, to make this case about what it should always have been about: the conduct of the grievor, not the TTC, in choosing to participate in the benefits fraud scheme. I adopt all of the conclusions of arbitrators Howe and Slotnick on the common issues. What did the grievor do? The grievor participated in a kickback scheme in which he defrauded the TTC benefits carrier, Manulife, of $1,680.00. The scheme is detailed in the Howe and Slotnick awards. The grievor partook of the "no loan" option described in those cases. The grievor was a bus driver. He testified that he had been experiencing shoulder and leg pain. He said he had heard from other operators that compression sleeves and stockings might help. He testified that he had also heard about, and seen promotional material in the workplace from, Healthy Fit. Mike Filicetti, another operator, appears from various communications put before me to have been an active proponent of Healthy Fit. The grievor testified that Filicetti told him that if he went to Healthy Fit he would get money back. In April 2015 the grievor attended Healthy Fit, met Adam Smith, went to Dr. Lu, got a prescription for sleeves and stockings, signed the Manulife claim form, paid the $2,780.00 claim on his credit card and almost immediately received by pre-arranged e-transfer from Smith $1,680.00. The grievor testified that he received three or four arm sleeves and three or four pairs of compression stockings. He was later reimbursed by Manulife for the full amount of the $2,780.00 claim, less a $10.00 deductible. In July 2015, about three months later, the grievor became aware of the TTC's investigation into Healthy Fit. He testified that he knew "it was going to be trouble" for himself and others who had gone. Like the grievor in Arbitrator Slotnick's case, he testified that he was afraid of losing his job. Also like the grievor in Arbitrator Slotnick's case, he decided to keep quiet. On March 9, 2016, about eight months later, the grievor was called in to a meeting with a TTC Investigator. The grievor testified that he knew what the meeting was going to be about. He attended the meeting wearing one arm sleeve and two stockings. He was accompanied by a Union representative. The grievor was asked a series of questions. Notes were taken of his answers. The Investigator prepared a report. The report was introduced in evidence. The grievor did not dispute the accuracy of the report. The report records the grievor admitting to receiving the $1,680.00 but to believing it was "within the rules". He did not say how. (The grievor's Union representative, however, attempted to liken it to a rebate when buying a car.) While appearing to admit in that interview that Smith had told him that he would get money back, and to thinking that it was "good" when he got it, the grievor twice stated that he went to Healthy Fit "unknowingly". The grievor repeated this assertion in two subsequent meetings with the TTC. The first was on March 22, 2016, at the "Relief of Duty" meeting. The second was on March 23, 2016, at the "Step One Appeal" meeting Both interviews were summarized in correspondence from the TTC. The following is from the summary of the March 22, 2016, meeting: You were then asked by Meghan, in light of the Union's position that you were not entirely culpable, how much responsibility you are willing to bear for your involvement? You responded that you just know that you went into Healthy Fit not knowing what was going on and after you received the funds you did not feel good about it. You stated you were sorry and want to repay whatever is owed. I asked for your comments. You again advised that you went into Healthy Fit not knowing what was going on. You further advised that you didn't feel good after receiving the funds, which is why you never went back. You expressed your remorse and embarrassment regarding the situation and offered to pay the money back. I asked if you knew you would be receiving funds through the process? You advised no, you did not. I asked if you thought that something was wrong when Adam [Smith] advised you that he would be transferring funds to you via email after you had already been fully reimbursed for the $2,780 transaction? You advised that you found it odd, but didn't say anything because you were unaware of the amount that was going to be transferred to you. I asked if you realized that what you were doing was wrong? You again advised that no, you did not. I asked why didn't you come forward to advise the TTC of your involvement with Healthy Fit once you learned about the benefit fraud? You advised that you were nervous and felt bad regarding your involvement. I asked how you came to learn about Healthy Fit? You advised that you had heard other people talking about it and seen the Healthy Fit business cards in the operator's back room at Arrow Road Division. I asked if you had not been caught, would you have gone back to Healthy Fit this year and done a similar transaction? You advised no, you would not have. I noted your comments. (emphasis added) The following is from the summary of the March 23, 2016, meeting: I asked if you had any further comments at this time. You expressed your remorse and apologized for your actions. You explained that you didn't know that you would be receiving any funds after you left Healthy Fit. When you did receive the funds you knew that something was fishy with it. You also knew that you would not go back to Healthy Fit because you knew something was up. I asked you to clarify when you knew that you would be receiving extra money and you stated that you did not know at all. I also asked if you provided an email address to Healthy Fit which you said you did. When I asked you if you had to enter a password to retrieve the money transfer you said that you don't recall. I then inquired what you were thinking after you received the money and why you didn't ask any questions. You stated that the money came from the company that you made the purchase from so you didn't really ask any questions. However, you did feel a little uncomfortable about everything and that is why you decided not to go back to Healthy Fit. (emphasis added) The grievor confirmed the accuracy of these summaries. As will be discussed below, the grievor's repeated statements that he attended Healthy Fit "unknowingly" or "not knowing what to expect" were false. The grievor also appears from these summaries to have back-tracked from the admission in the initial Investigation meeting that Smith had told him that he would be receiving money back. What should happen? Penalty The TTC submits that the grievor was properly discharged for benefits fraud and the discharge should be upheld. It relies on the same arguments made to arbitrators Howe and Slotnick, including dishonesty when the grievor was interviewed by the TTC and in his testimony before me. The Union's initial position was that there was no "just cause for discharge" but, even if there was, the grievor should be reinstated to employment in the exercise of my statutory discretion to relieve against the penalty where to do so would be just and reasonable in all the circumstances (see ss. 48(17) of the Labour Relations Act, 1995). The Union also relied, initially at least, on the same "condonation" and "discriminatory discipline" arguments made to arbitrators Howe and Slotnick. I say "initial' and "initially" because in the subsequent submissions addressing the effect of the Howe and Slotnick awards, the Union's focus shifted to the exercise of my statutory discretion to relieve against penalty. Indeed, in its final submissions on the effect of the Slotnick award, the Union wrote, "Mr. Wright's honesty is a key - we say the key - difference between the Slotnick award and the facts before you. For that reason, we submit that in these circumstances, reinstatement is warranted." To the extent that it remains necessary for me to address the balance of the parties' original arguments, I can do so very briefly. First, as the awards of arbitrators Howe and Slotnick make clear, the caselaw establishes that benefits fraud is an offence that will generally provide just cause for discharge: see e.g. City of Kingston and CUPE, Local 109, (2017) 276 L.A.C. (4th) 219 (Nyman); York University and YUFA (2017), 279 L.A.C. (4th) 117 (Gedalof); City of Toronto and CUPE Local 416 (2017), 275 L.A.C. (4th) 419 (Slotnick); Canadian Pacific Railway and Teamsters Canada Rail Conference, 2014 CarswellNat 4751 (Schmidt). And, both arbitrators found fraud in their cases. I agree with the conclusions of arbitrators Howe and Slotnick (particularly that of Arbitrator Howe on the question of fraud at pp. 60-62) and apply them here. Filicetti told the grievor that if he went to Healthy Fit he would get money back. The grievor proceeded to Healthy Fit and, from there to one of the usual Healthy Fit prescription providers, Dr. Lu, with a prescription that appears to have been partially completed by Smith. (The grievor described, in varying terms at different times, the most superficial of "medical" assessments by Lu.). The grievor then returned, six days later, to Healthy Fit, presenting the signed prescription to Smith. On that second visit, the grievor signed the Manulife claim form, which he admitted in evidence to "possibly" having seen was for $2,780.00, which Healthy Fit then submitted to Manulife on his behalf. The grievor paid Healthy Fit $2,780.00 via credit card and, within 30 minutes, received by e-transfer from Healthy Fit $1,680.00. As was not atypical of the Healthy Fit scheme, this was 60% of the amount claimed. Text messages obtained by the TTC after the grievor's discharge and shortly before his testimony, record him messaging Smith within 20 minutes of receiving the kickback saying, "Thank you Adam just received your e- transfer". Within seconds, Smith replied, "thank you". Any suggestion that the grievor, or anyone, could have thought this was "within the rules", or some kind of "rebate" from Smith on the purchase of three or four sleeves and pairs of stockings defies belief. It is simply not plausible. And, both at the initial Investigation meeting and in cross-examination, the grievor appeared to acknowledge knowing the money was coming from Manulife. Overall, it was a simple, if inelegant, scheme with which the grievor appeared entirely satisfied at the time. It was also serious misconduct, which gave the TTC just cause for discharge. Positive Defences The Union advanced two "positive defences" in all of these cases. The first was "condonation" and a "failure to warn". For the very detailed reasons given by both arbitrators Howe (at pp. 63-80) and Slotnick (at pp. 59-63), these arguments are dismissed. Shortly stated, the TTC did not sanction the scheme, it did not ignore it, it did not overlook it, it did not turn a blind eye to it, and it did not encourage or permit employees to participate in it, implicitly or explicitly. The employees did that on their own. The fact that they did so in vast numbers is not the TTC's fault; it is theirs. Any suggestion that the TTC was required to "warn" employees against such behaviour, at any point or in any context, is without merit. However, as Arbitrator Slotnick found, there were more than enough warnings, or forms of warning, to be noticed by those who cared to pay attention. The second positive defence was "discriminatory discipline". This argument also had two elements: an absence of discipline of employees who attended another apparently fraudulent provider, "Layered Health Services", and the treatment of three non-union employees who attended Healthy Fit. Arbitrator Howe addressed the Layered Health branch of the argument, dismissing it (pp. 81-87). Arbitrator Howe was not required to address the treatment of the three non-union employees. Arbitrator Slotnick addressed both aspects of the argument, dismissing them both (pp. 64-70). Again, I agree with the conclusions of both arbitrators. In its written submissions on this aspect of the Slotnick award, the Union submitted, however, that, "Arbitrator Slotnick - like Arbitrator Howe before him - in principle accepted key elements of the Union's discriminatory discipline defense that focused on the differential treatment of non-unionized employees who had been found to have attended at Healthy Fit ...". By this the Union appeared to mean that Arbitrator Slotnick found that the lesser discipline accorded the three non-union employees created a "prima facie case" of discriminatory discipline, which the TTC was required to answer. However, Arbitrator Slotnick found that the TTC did answer it, fully. In seeking to distinguish that aspect of Arbitrator Slotnick's award, the Union asserted that it was "... clear that the extent of the falsehoods told before [Arbitrator Slotnick] ... were of profound significance" to his conclusion. As noted, the Union submitted that the present grievor's comparative "honesty" distinguishes the two cases and supports reinstatement. To begin, I do not share the Union's limited reading of this aspect of the Slotnick award. There was much more to Arbitrator Slotnick's conclusion that there was no discriminatory discipline than rested on an absence of truth- telling. The persistent lies found by Arbitrator Slotnick to have been told by the grievor in his case were significant to Arbitrator Slotnick's consideration of the statutory discretion to reinstate but not to his discriminatory discipline analysis. Arbitrator Slotnick's conclusion that there was no discriminatory discipline rested on a different basis, which also applies here. Arbitrator Slotnick concluded that the grievor in his case was not discriminatorily disciplined relative to the three non-union employees who were not fired, having regard to an offer made by the TTC to the Union. That offer, introduced as common evidence in the present case, was spelled out in the Howe and Slotnick awards (at pp. 88-89 and 32-33, respectively). If accepted, it would have led to a substantial number of employees keeping their jobs, albeit under certain conditions, which was essentially the treatment accorded the three non-Union employees as revealed by the so-called "Sophia Brown documents". With that background, Arbitrator Slotnick's reasons on the point bear quoting at length: The union argues that the Sophia Brown documents establish that the employer was willing to keep some employees working even though their participation in benefit fraud had been established. In other words, benefit fraud is not incompatible with continued employment at the TTC. This is undoubtedly true in the case of those three employees. I note that there was no litigation outstanding with any of the three employees, one of several factors underlying my ruling that these were not "settlements." However, by not terminating these employees, the TTC was able to ensure that there would be no litigation and secured repayment of money. In my view, it is also clear that the grievor in this case fell within the boundaries of the Milloy document, as someone whose claims totalled less than $5,000. However, Mr. Milloy's evidence was that the TTC never wavered from its view that termination was the appropriate penalty for benefit fraud, but that the proposal to the union was an expedient way of dealing with the massive amount of financial and human resources that were going to be necessary when hundreds of employees were about to be fired and would likely be challenging the employer's actions. The TTC was willing to live with continued employment by those who had engaged in benefit fraud, providing it was at the low end of the scale and that the union was willing to agree to last- chance agreements for these employees and repayment of money. The proposal, however, went nowhere. No union witnesses testified about the proposal; Mr. Milloy said the union was unwilling to discuss it. The basic elements were imposed on Ms. Brown and two other employees who were not in the bargaining unit, but I accept Mr. Milloy's evidence that it could not be unilaterally imposed on the union members because of the union's exclusive representation rights and the requirement of union agreement on items such as the last-chance provision. I also accept Mr. Milloy's evidence that there was little point in simply imposing a suspension on individual employees at the low end of the fraud scale, as that would not necessarily have forestalled grievances from them and thus would not have accomplished the aim of whittling down the number of cases being litigated to a manageable number. To that extent, even ND is not a proper comparator for purposes of the discriminatory discipline argument. In my view, Mr. Milloy's evidence that the TTC was seeking a practical solution to the hundreds of potential cases by proposing that the least egregious offenders not be terminated provides a reasonable explanation for the proposal to the union and for the suspensions given to Sophia Brown, ND and AT. In addition to preventing potential litigation, the suspensions included repayment of money and, for the TTC, certainty about the outcome of the case. Further, in my view, the circumstances and the evidence show that the suspensions are not an indication that the TTC ever considered a suspension the appropriate penalty for benefit fraud. Nor, given that the union had the opportunity to agree to suspensions for a large number of its members, can that very disposition for some employees outside the bargaining unit be a basis for a finding of discriminatory discipline. In any event, it strikes me as odd that a claim of discriminatory discipline could be propelled by, at most, three non-unionized employees who were suspended when hundreds of employees in the bargaining unit received, among themselves, the equal treatment of termination. I agree with the employer that the union, having rejected the proposal that employees like the grievor here could keep their jobs, cannot now ask an arbitrator to impose that proposal, or something similar, just because the TTC used it as a basis for disciplining some non-union staff. Otherwise, there would be no risk to the union in rejecting any proposal to resolve a grievance or potential grievance. Negotiations cannot be conducted productively if a party that refuses an offer can successfully ask an arbitrator to order it later, when the offer might look better. A proposed resolution that is rejected cannot become a guarantee that the rejecting party will do at least as well at arbitration. As the arbitrator in the Imperial Parking case said (at paragraph 67), "abortive discussions aimed at resolving a dispute are not a sound basis for reinstatement." In this case, as noted in Arbitrator Howe's award, the rejection by the union of the Milloy proposal has caused the expenditure of resources that the proposal was designed to avoid. Therefore, while I agree with the union that there is no meaningful difference between the misconduct of the grievor in this case and that of at least one of the three non-union employees who were only suspended, my view is that the TTC has met its burden of adequately explaining the differential. Simply put, the TTC was able, with employees not covered by a collective agreement, to accomplish its aim of cutting down on potential litigation and other expenditures of resources by not terminating some employees while still extracting repayment, but it was unable to do the same thing with the union representing this grievor and others. The evidence is clear that the TTC would have done the same for the grievor here as it did for Ms. Brown, AT and ND, had the union been willing to negotiate. (pp. 67-70) Arbitrator Slotnick had earlier observed that, " ... the Milloy document underpinned the result for the three employees who were later suspended ...". It was put into effect in their case but not, for the reasons given, in the case of the unionized employees. The differential treatment as between the three non-union employees and the grievor in Arbitrator Slotnick's case, in other words, was based on the fact that the three employees accepted the offer, while the Union did not. That conclusion applies here. This brings me to the hundreds of bargaining unit members who the TTC has reason to believe participated in the kickback scheme but who have yet to be interviewed (or fired). The Union notes that these employees are still carrying out their duties many years after the fact despite the TTC's knowledge of their attendance at Healthy Fit. The Union submits that their continued employment demonstrates that the "trust" the TTC submits is necessary to the employment relationship isn't necessarily sundered by such conduct. I disagree. The fact that the TTC's investigation is not yet complete does not speak against the penalty of discharge or in favour of reinstatement. The TTC's investigation has been massive. And hugely expensive. And extremely thorough. And with good reason. If nothing else, the manner of prosecution of these cases demonstrates that the TTC would be put to the strictest possible proof of each and every alleged fact, both in its interviews with employees and at arbitration. Nothing would be admitted unless demonstrably provable and no potential weakness would go unexplored or unchallenged. Arbitrator Slotnick addressed the continued employment of these employees this way: Similarly, I find no merit in the suggestion that discriminatory discipline can be found in the fact that the TTC has continued to employ many people who have attended Healthy Fit. This is easily answered with the TTC's assertion, not challenged, that it has imposed discipline only on those employees who it can establish participated in benefit fraud. Given its discharge already of hundreds of employees, I accept the TTC's statement that it intends to continue investigations when it obtains more information in disclosures from the criminal investigation. (pp. 64-65) To this I would simply add that the TTC would also, in my opinion, be fully entitled to "press the pause button" on its massive investigation and expenditure of resources pending the resolution of at least some of these cases. An employer in a situation such as this can only be expected to do so much. The TTC has done it. Finally, although "Layered Health" did not feature in the Union's post-Slotnick submissions, I adopt Arbitrator Slotnick's conclusion that the evidence concerning employees that attended that provider has no bearing on these cases (pp. 50-51). Possible Relief Against Penalty This brings me to the exercise of my statutory discretion to reinstate, where to do so would be just and reasonable in all the circumstances. This, as I have said, is the only real issue following the Howe and Slotnick awards. There are a number of circumstances that might point in favour of the exercise of that discretion. First, the grievor made only one claim through Healthy Fit. Unlike, for example, the grievor in Arbitrator Howe's case, he did not appear to turn attending Healthy Fit into something like a part-time job. And although it is true that there was only three months between the grievor's visit and the investigation into Healthy Fit becoming public, that was more than enough time for the grievor in Arbitrator Slotnick's case, for example, to have returned and "re-upped". Second, in the two post-Investigation meetings the grievor expressed "remorse" to the TTC for "what happened" and for having made the "wrong decision". He did the same before me. Asked in examination-in-chief how he felt about his "decision to go to Healthy Fit and enter into the scheme", the grievor testified that he was "embarrassed about it", felt "terrible" for it and had not used his "better judgment". The grievor acknowledged that what he did was "wrong" and said that he "take[s] full responsibility for it". Third, the grievor offered to pay all of the money back, even bringing the funds with him to the Step One Appeal meeting. The grievor testified that he is still willing to do so. Fourth, at least when compared to others, the extent of the grievor's fraud - the quantum of his ill-gotten gains - was at the lower end of the scale. It was well within the $5,000.00 threshold of the TTC offer to the Union referred to above. Fifth, although not a long service employee (approximately five and one half years) the grievor had a discipline- free record and had received commendations for good service to the public. Sixth, the grievor appears to have suffered mightily from his discharge. Describing it as "life-changing", the grievor testified that he and his wife divorced and that he was forced to sell his house. (The grievor is since re- employed as a part-time driver for a large national employer.) In a different setting, these facts, taken together, might support reinstatement, if only, perhaps, without compensation and on terms. For two reasons, however, they do not do so here. First and most important is the nature of the offence and the magnitude of the problem. The grievor did not simply stumble upon some cash; money did not simply turn up, unbidden, in his bank account, as he told the TTC. Rather, he participated in a calculated, premeditated, fraudulent transaction. At the apparent invitation of another employee, the grievor set out to obtain money to which he knew he was not entitled and he did obtain that money. There were a number of steps involved. It was not a "spur of the moment" thing. The scheme involved attending an orthotics provider and coming away not just with orthotics (or, in some cases no products at all) but, in the grievor's case, with a substantial deposit to his bank account: $1,680.00. The money was taken from a benefits plan funded by the TTC. (Whether it came from Manulife under an ASO- only arrangement with the TTC or under an insured plan is neither here nor there, as Arbitrator Howe pointed out: see pp. 60-62 of the Howe award.) And, importantly, it came at the expense not just of the TTC but, indirectly, of other, honest, employees, many of whom, it is reasonable to assume, chose not to participate in the scheme. The problem was as insidious as it was clandestine. As detailed in the Howe and Slotnick awards, hundreds of employees appear to have set out, surreptitiously, to defraud the insurance plan, which exists for the benefit of all employees, for their own personal gain. It was an egregious abuse of the public trust, which cost the TTC millions of dollars. Signed terms of employment, posted notices, and the words of the claim forms themselves (again see the Howe and Slotnick awards) were insufficient to prevent it. In a context such as this - with abuse that is difficult to detect, prove and prevent, as the magnitude of the police, TTC and Manulife investigation amply demonstrated - general deterrence, as Arbitrator Slotnick pointed out, necessarily plays an outsized role. It argues strongly against the substitution of any lesser penalty. Even if, however, that was not thought to be enough to rule out any possibility of reinstatement, other factors do so here. The law is crystal clear that, especially in cases of offences involving dishonesty, a grievor seeking reinstatement must demonstrate complete honesty and fidelity to the truth, certainly to the arbitrator, better still with the employer when the dishonesty is uncovered. The grievor failed that test. When initially interviewed, having had eight months to think about it, and without ever having come forward to acknowledge his wrongdoing, the grievor decided to tell the TTC that he had no idea that he would be getting money for going to Healthy Fit. And, in the two later interviews at least, he said that he did not become aware of it until after the money was received. The grievor said that when the $1,680.00 turned up in his bank account, something seemed "fishy with it", so he decided not to go back. And he told the TTC that he could not remember who had referred him to Healthy Fit. All of that was false, and it was within that false context that the grievor expressed his remorse to the TTC. The grievor knew before going to Healthy Fit there would be money coming to him and, as the text messages made apparent, and as the grievor was therefore forced to admit in evidence, money was discussed with Smith. The grievor acknowledged in examination-in-chief that Smith had told him that approximately $1,600,00 would be coming his way. The grievor lied to the TTC about this, in three separate meetings, in a clear attempt to minimize his misconduct. And, of course, the grievor knew it was Filicetti who had referred him, as the text messages revealed but as he could only half-heartedly admit in cross-examination by way of saying, "possibly it could have happened that I talked to him and knew he was going to contact Adam". The grievor was not "lured" or "induced" into the transaction by a "smooth operator", as the Union asserted. He was a knowing and willing participant in a fraudulent scheme to deprive the TTC benefits carrier of $1,680.00. If that alone was not enough to disentitle the grievor to any possibility of reinstatement, other facts do so. The grievor's untruthfulness extended to his testimony. Asked how the subsequently obtained text messages fit with his having told the TTC that he attended Healthy Fit "unknowingly" or "not knowing what to expect", the grievor decided to spin another story. In examination-in- chief, he testified that what he had meant was not knowing how much to expect. He suggested that perhaps there was some misunderstanding by the TTC, or some miscommunication on his part, given how nervous he was. As the interview summaries themselves reveal, however, that explanation was nonsense. And it was nonsense that the grievor only abandoned under cross-examination and only after much to-ing and fro-ing about the contents of the reports. The grievor eventually agreed that it was a "lie" or, as he put it, "untruthful". When asked what the difference was between the two, the grievor replied, "I like untruthful better". A further instance of what might charitably be described as a "lack of forthrightness" on the grievor's part concerned matters of timing. In the Investigation interview the grievor attempted to suggest that everything occurred within a single day: the two trips to Healthy Fit and the trip to Dr. Lu, not separated by five days, which might be seen to lessen the degree of deliberation involved. To similar effect, the grievor testified that he could not recall when he learned from Smith about the kickback: on the first or second visit. (The established pattern of the business, as revealed by the undercover investigations described in the Howe and Slotnick awards, was that money was discussed in the first visit.) The subsequently obtained text messages disclosed the following exchange between Filicetti and Smith on the afternoon of the grievor's first visit: Filicetti to Smith: "Just saw [the grievor] he was happy when he came back to work". Smith to Filicetti, "must have been the complimentary handjob". Filicetti to Smith, "Lmao". Asked about this exchange, the grievor suggested, "maybe I ran into him [Filicetti] and told him that I just went to see Adam and that the items I wanted to get were ... that it was going to take place". The memory of the grievor, who saw the text messages a week before testifying, was apparently not jogged; if by "the items" was meant the 1,680.00 CDN, this was a plausible answer. There were other instances of dubious, or potentially dubious, testimony of which the TTC, in final argument, made much (including as to whether the grievor had any medical need for the products and as to how many, if any, he received) with which I need not burden these reasons. Suffice it to say, even from the above, the grievor was not completely truthful to the TTC or to me. Thus, even were I to conclude, notwithstanding the importance of the first factor discussed above, that reinstatement was a possible option, it is denied here. The grievor, seeking to establish that he could be trusted in the future, was unable to bring himself to establish trust in the present. The grievance is, accordingly, dismissed. DATED this 11th day of December 2020. Russell Goodfellow - Sole Arbitrator

QUESTION:

Q. What did you learn about labour relations from this case. 10 major take away from this case