Van-Kam Freightways Ltd. v Teamsters Local  
Union No. 31, 2022 89418 (CA LA)  
Legislation  
Decisions  
Vancouver Coastal Health Authority and HSA (Damji Grievance), 299 LAC (4th) 51, [2018]  
CarswellBC 2520 (not available on )  
No summaries or commentary from the legal community available. Add your own  
IN THE MATTER OF AN ARBITRATION PURSUANT TO  
THE CANADA LABOUR CODE, R.S.C. 1985 c. L-2  
BETWEEN:  
VAN-KAM FREIGHTWAYS LTD.  
(
"Van-Kam” or the “Employer")  
AND:  
TEAMSTERS LOCAL UNION NO. 31  
(
the "Union")  
Robert Qualizza Shift Posting Grievance  
AWARD  
Arbitrator:  
Counsel:  
Koml Kandola  
Carman Overholt and Jennifer Kwok, for the Employer  
Riley Kearns, for the Union  
Date of Hearing: July 4, 5, and August 24, 2022 (via videoconference)  
Date of Decision: September 28, 2022  
I.  
1
introduction  
The grievor, Robert Qualizza (the “Grievor”), is employed by the  
Employer as a pick-up and delivery driver. He applied for a position as a dock worker, which  
was denied on the basis that he was not qualified because he did not have a forklift operator  
certificate. The Union alleges that this qualification is arbitrary and unreasonable, and was  
applied in bad faith to deny the Grievor the position. It says the Grievor was entitled to the  
position based on his experience operating forklifts, together with his seniority (the  
Grievance”). The Employer says it reasonably established the qualification pursuant to its  
management rights and consistent with occupational health and safety requirements. It says it  
reasonably determined the Grievor was not qualified for the position, and the Grievance  
should be dismissed.  
II.  
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EviDENCE  
The Union called four witnesses: Bill McCrossin, pick-up and delivery  
driver; Kim Giroux, dock worker; Mike Hennessey, Business Agent and past Van-Kam  
employee; and the Grievor. The Employer called two witnesses: Randy Dupley, who was the  
Safety Compliance Manager at Van-Kam from 2019 until he retired in May 2022; and Lyndon  
Dorrington, Terminal Manager at Van-Kam’s Surrey terminal.  
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Van-Kam is a transportation company. It employs approximately 300  
bargaining unit employees and approximately 200 excluded employees in British Columbia.  
Van-Kam operates several terminals across the province, including its largest terminal in  
Surrey, which is also where its head office is located. The Grievance relates to the Surrey  
terminal. The Surrey terminal includes: an administration building, which houses various  
departments such as customer service, sales, and the Safety Department; the dock; and a  
warehouse. Mr. Dorrington has been the Terminal Manager at Surrey since November 2017.  
He was not employed by Van-Kam prior to that. As Terminal Manager, Mr. Dorrington  
manages over 60 dock workers and approximately 70 full-time drivers. His responsibilities  
include hiring, firing, and discipline.  
Roles of Dock Workers and Drivers  
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The dock is attached to the administration building, with windows from  
the dispatch office looking onto the dock. The dock includes approximately 83 truck bays, of  
which approximately 75 are used on any given day. Each bay has a large bay door to which a  
trailer or five-ton truck can back up. The dock floor is at truck level to facilitate the loading of  
trucks at the bay. The warehouse is approximately 150,000 square feet. Freight is stored in the  
warehouse and on some parts of the dock. When a truck pulls into a bay, it is unloaded if it has  
freight on it, which may then be moved to another trailer or sit on the dock for a period of  
time. The evidence was that activity on the dock in the morning is hectic, intense, and time-  
sensitive, to ensure that freight is loaded for delivery on time.  
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Mr. Dorrington gave evidence regarding the roles and responsibilities  
of dock workers and drivers. His evidence was that loading and unloading trucks constitutes  
approximately 90 to 100% of a dock worker’s duties. Dock workers primarily move freight by  
using forklifts. At times, they may manually load certain freight that is awkwardly shaped.  
Dock workers have staggered start times and different shifts to match freight delivery  
schedules.  
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Van-Kam has two types of drivers. Trailer load (“TL”) drivers transport  
pallets or skids of a standard size, and usually in large quantities or going to one customer.  
There are approximately 35 TL drivers working out of the Surrey terminal. Pick-up and  
delivery drivers, also called “less-than-a-load”, “LTL” drivers, or “P&D” drivers, transport  
freight that is not of a standard size. There are approximately 24 P&D drivers at the Surrey  
terminal. Due to the nature of the freight they transport, P&D drivers will have more delivery  
stops than TL drivers. They will usually drive the same route every day.  
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Mr. Dorrington’s evidence was that drivers do not have any obligations  
to load or unload their trailers, as that is the responsibility of dock workers. He also testified  
that all dock workers are required to be able to load both TL and LTL freight, which may  
require different forklift skills.  
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The Grievor has been employed by Van-Kam since 1998, as a P&D  
driver. At the relevant time, the Grievor was also a member of the Policy Committee and the  
Workplace Health and Safety Committee.  
The Qualification  
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Mr. Dorrington is responsible for hiring dock workers at the Surrey  
terminal. As noted above, dock workers spend a majority of their time moving freight with  
forklifts. He testified that forklift operation is a safety issue, and improper operation can lead  
to serious injury or death. His evidence was that, since 2017 when he commenced his  
employment as the Surrey Terminal Manager, he has required every dock worker that is hired  
to have: (a) previous experience in an LTL environment, and (b) a valid forklift certificate.  
With respect to the latter, Mr. Dorrington’s evidence was that new hires must have completed  
a forklift operator training course provided by an accepted third-party provider, and which  
must have a practical component (the “Qualification”). The course provider then issues a  
certificate of completion.  
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Both Mr. Dorrington and Mr. Dupley testified that Van-Kam does not  
have the capacity or space to provide forklift training in-house and, accordingly, it refers  
employees to third-party training providers. In this regard, there are two types of training  
courses: practical training courses, and refresher courses for those already certified. Mr.  
Dorrington’s evidence was that he has taken the practical course in the past. The practical  
course is generally one day of training, consisting of classroom training in the morning and  
hands-on training in the afternoon. The refresher training course is a one-hour online course.  
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A forklift certificate is usually valid for three years. Van-Kam requires  
dock workers to take refresher training within two years of being hired, or at the time of expiry  
of the certificate, whichever occurs first. Both Mr. Dorrington and Mr. Dupley testified that  
newly hired dock workers are required to provide a copy of their forklift certificate as part of  
the new employee checklist or onboarding process. Mr. Dorrington testified that applicants  
who do not have a valid forklift certificate will not be hired, and will not even be interviewed.  
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Mr. Dorrington’s evidence was that, in order to be hired as a dock  
worker, the applicant must have completed practical forklift training: having only an online  
course would not be sufficient. In cross-examination, he was taken to several certificates for  
existing employees where it appeared, or it was at least unclear, that the employee had taken  
only an online course, not one with a practical component. His evidence was that he was not  
previously aware of this, and would need to investigate it. He agreed that if at the time of hire,  
the course taken by the employee did not have a practical component, this would be a matter  
of concern to him.  
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The evidence was that the Safety Department is responsible for ensuring  
dock workers take the appropriate refresher training when required. The Safety Department’s  
computer system provides automatic reminders of when an employee is within 15, 30 and 45  
days of needing recertification. When these reminders pop up, the Safety Department  
arranges for the employee to take the refresher course. Mr. Dupley’s evidence was that an  
employee who has an expired certificate is not permitted to operate a forklift until completing  
the course.  
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In his evidence, Mr. Dorrington confirmed that while he introduced the  
Qualification in 2017 for all dock workers hired thereafter, he was not aware of what Van-  
Kam’s practice or policy was in this regard prior to 2017. He also confirmed that he did not  
take any steps to determine whether dock workers hired prior to 2017 had the proper  
certification. In this respect, Mr. Dorrington acknowledged that there may be employees hired  
prior to 2017 who use forklifts but for whom the Employer never verified that they had forklift  
certificates. He also acknowledged that if the Employer never had records regarding whether  
these employees had forklift certifications in the first instance, the employees would also not  
show up in the automatic reminder system used by the Safety Department.  
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Mr. Dupley gave evidence regarding the Employer’s Occupational  
Health and Safety Program Manual (the “Manual”), Among other things, the Manual refers to  
safe work procedures for mobile equipment operation and states that “workers must not  
operate any mobile equipment unless they possess [the] necessary licence and/or certificate”.  
Mr. Dupley testified this provision has been in place since at least 2014. Mr. Dupley’s evidence  
was that there is a copy of the Manual in the workplace but that it has “gone missing” from  
time to time. The evidence of some of the Union witnesses was that they were not familiar  
with the Manual. Mr. Dorrington also confirmed he has not provided a copy of the Manual to  
the Union.  
Use of Forklifts  
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Mr. Hennessey’s evidence was that the Employer never notified the  
Union regarding the introduction of the Qualification for dockworkers, nor has the  
Qualification been discussed in collective bargaining.  
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Further, each of the Union’s witnesses testified that P&D drivers  
routinely use forklifts to load their trailers, and have done so without being required to have  
forklift certification.  
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Mr. Hennessey worked as a warehouseperson and later as a driver for  
Van-Kam, until approximately 2013. His evidence was that, during his employment, he  
witnessed drivers operating forklifts “on a daily basis” to load their trailers, and that this  
remains Van-Kam’s practice currently.  
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Mr. Hennessey also gave evidence regarding a memorandum of  
agreement between the parties in 2011, when he was a shop steward, to resolve some  
outstanding layoff disputes (the “MOA”). The MOA, which was entered into evidence, states  
that Van-Kam is restricted from using a third-party company to “deprive Van-Kam drivers and  
warehousemen of their hours of work or work conditions”. It also says that Van-Kam “will not  
use drivers (Van-Kam) to deprive warehousemen of their hours of work or work conditions”.  
The MOA goes on to state:  
The agreement however does not prevent drivers from past practice, i.e., helping to load their  
equipment. Unless in period of layoffs, drivers can only be used on the dock or in the yard up  
to a maximum of two (2) hours per day.  
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Mr. Giroux has been employed as a dock worker at Van-Kam for 18  
years. He testified that Van-Kam did not provide him with any forklift training when he  
commenced employment. His evidence was that for several years, none of the dock workers  
were required to have or had forklift certification, and just had on-the-job experience. The  
records in evidence showed that in 2015, he took an online forklift training course, and took a  
refresher training course in 2021. His evidence was those courses were online only and did not  
include a practical component. This evidence was not challenged in cross-examination.  
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1
Mr. Giroux testified that he sees P&D drivers using a forklift to load  
their trailers “all the time”, and as recently as the week before his testimony. In terms of the  
type of work that drivers do with a forklift, Mr. Giroux’s evidence was they load their own  
trailers and may also assist dock workers with stripping trailers (i.e., removing any  
undelivered freight). In this regard, his evidence was “it’s a mad rush [on the dock] to grab the  
freight and get it into the truck and out of there… Drivers, dock loaders, everyone is grabbing  
whatever they can to get the freight out as soon as possible”. He maintained this evidence in  
cross-examination, and while he agreed that the drivers’ primary role is to drive, his evidence  
was that they “also get their freight out of the trailer and load themselves” and “basically do  
the same work we do” on the dock. Mr. Giroux also testified that he has never seen  
management telling drivers to stop operating forklifts for any amount of time and, indeed,  
that wouldn’t even make sense to do that because we are trying to get the freight out quick.  
Everything is time sensitive”. This evidence was not persuasively challenged on cross-  
examination.  
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Mr. McCrossin has been employed by Van-Kam as a P&D driver, since  
007. His evidence was that he uses a forklift virtually every day to load freight into his trailer,  
and that 75 to 80% of P&D drivers load their own trailers. He testified that management has  
seen him operating a forklift, and has never asked him to stop doing so or restricted the  
amount of time that he does so. Mr. McCrossin was asked whether he has ever seen the  
Grievor use a forklift to load his trailer, and his evidence was “I believe so”.  
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3
Mr. McCrossin testified that Van-Kam did not give him any forklift  
training when he started his employment. His evidence was that within the past year, he saw a  
bulletin in the workplace offering forklift training and he chose to sign up for it. He testified  
that he took an online training course from a third-party provider two weeks prior to giving  
his testimony, and there was no practical component to the course. Mr. McCrossin achieved  
the requisite score and was then certified to operate the forklift. His evidence was that the  
sign-up sheet was on an information board in the workplace, and not on the designated Union  
board.  
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The Grievor testified that he has 42 years of experience operating  
forklifts, both at Van-Kam and with previous employers in the transport industry. In 1983, he  
commenced employment with Arrow Transport. His evidence was that he was trained to  
operate a forklift there, and worked in the materials handling yard with large machinery and  
equipment. In or about 1990, he was laid off and then applied his seniority to “work on the  
highways”, where he operated haul trucks, tractors and trailers. Arrow Transport closed  
operations in 1998 and the Grievor moved to Van-Kam and started work as a P&D driver. For  
a four-month period in 2011, the Grievor moved to Ryder Terminals where he was in the  
process of getting certified as a forklift operator, but could not complete it as he was laid off.  
The Grievor’s evidence was that within six months of being hired by  
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Van-Kam as a P&D driver, he began to use a forklift and since then, he has used a forklift in  
his duties “every day”. He testified that he has also seen other P&D drivers using forklifts  
since day one”. The Grievor’s evidence was drivers typically will use the forklift for as long as  
they need to until their trailers are loaded. The Grievor testified that he has never been told by  
management to not operate a forklift, nor has he seen any other drivers being told not to do  
so. To the contrary, his evidence was that Van-Kam’s dispatcher has expressly advised him to  
self-serve”, i.e., to get a forklift and load his trailer himself. This evidence was not challenged  
on cross-examination.  
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Mr. Dorrington disagreed with the assertion that P&D drivers routinely  
use forklifts to load their own trailers. His evidence was that there are “a couple” of drivers  
who load their own trailers because they are “particular” about how the trailer is loaded. He  
testified that those drivers are required to have the forklift certification. Other than those  
individuals, his evidence was that he was not aware of P&D drivers using forklifts to load their  
trailers.  
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Further, Mr. Dorrington testified that, given the number of available  
forklifts, it would not be possible for P&D drivers to use forklifts in the manner asserted by the  
Union’s witnesses. His evidence was the Surrey terminal has approximately 28-30 forklifts,  
some of which are unavailable at any given time because they are being repaired or have been  
loaned out. His evidence was there are approximately 24 day shift dock workers on duty, who  
need to operate forklifts to perform the vast majority of their duties, which would leave only  
four to six forklifts available.  
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Mr. Dorrington also testified that P&D drivers would only have the  
opportunity to load their own trailers first thing in the morning, when they start their shifts.  
He referred to a document recording the amount of time spent by drivers, over a three-day  
sample period in June 2022, on the dock in the morning before leaving the yard. His evidence  
was the average time spent by a driver there was only 42 minutes which, in his view, would not  
be enough time to do a pre-trip inspection, collect paper work, and also load the trailer. In  
cross-examination, though, he agreed that the majority of drivers included in the sample were  
TL drivers, not P&D drivers. He agreed that TL drivers already have a loaded trailer and  
therefore will generally spend less time at the dock than P&D drivers. In addition, the sample  
did not include the Grievor.  
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In direct examination, Mr. Dorrington was asked whether he had ever  
seen the Grievor using a forklift to load his trailer. His evidence was that “for the most part, I  
have seen [the Grievor] have someone load his trailer, and it was not brought to my attention  
until this year that he was loading his own trailer”. In cross-examination, he repeated the  
same answer and also stated “I don’t recall ever seeing [the Grievor] operate a forklift”. He  
acknowledged that he does not see what drivers are doing on the dock at all times.  
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Mr. Dupley also testified that, until earlier this year, he was not aware  
that any P&D drivers were using forklifts to load their trailers and had never seen a driver  
using a forklift. In cross-examination, he agreed that when he first started working at Van-  
Kam, he had trouble “putting names to faces” and would not have known if a person operating  
a forklift was a driver or dock worker.  
The Posting and Subsequent Events  
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1
In late 2021, the Employer posted a full-time dock worker vacancy for  
the morning shift. Under “qualifications/special requirements”, the posting stated “must meet  
minimum company standards”. It did not expressly set out the Qualification. The Grievor was  
the only employee who signed the posting. The Employer subsequently cancelled the posting.  
After the Union filed a grievance in this regard, the parties entered into a settlement  
agreement, a term of which was that the Employer would re-post the vacancy as soon as  
possible.  
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2
In early March 2022, the Employer again posted a full-time dock  
worker vacancy for the morning shift, with the same “qualifications/special requirements”  
(
the “Posting”). The bid period for the Posting was open from March 7 to 10, 2022. Three  
employees signed the Posting, including the Grievor, who was the most senior of the  
applicants. The Grievor testified that he wanted to change jobs, despite a ten cent per hour  
lower wage, due to the stress associated with driving.  
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3
There is no dispute that the Grievor did not have a forklift certificate at  
the time of the Posting. In an email dated March 15, 2022, Mr. Dorrington advised the Grievor  
that he “did not meet the qualification of the position, including not having a valid forklift  
certificate”. In this regard, Mr. Dorrington testified that the Employer did not have any  
documentation indicating that the Grievor had a forklift certificate. The Posting was ultimately  
awarded to BW, a dock worker, who had a valid forklift certificate.  
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The Grievor’s evidence was that the March 15 email from Mr.  
Dorrington was the only communication he received from the Employer regarding the  
Posting. He testified that prior to receiving this email, but after signing the Posting, no one  
from management asked him any questions about his experience operating a forklift. Mr.  
Dorrington confirmed in his evidence that he did not ask the Grievor about his experience  
using a forklift.  
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5
In addition, the Grievor testified that between the first posting in late  
2
021 and the second posting in March 2022, the Employer did not tell him about the  
Qualification or offer him training to become certified. He also testified that he did not see a  
sign-up form to sign up for forklift training and, had he seen such a form, he would have  
signed up.  
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The Grievance was filed on March 16, 2022.  
The Grievor testified that in or around this time, he had a number of  
conversations with Mr. Dupley regarding forklift certification, including how to get certified,  
who was allowed to get certified, and how he personally could get certified. His evidence was  
that Mr. Dupley was not responsive to these requests for information. Mr. Dupley testified  
that the Grievor never asked him how he personally could become certified to operate a  
forklift.  
3
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On March 21, 2022, the Grievor sent an email to Mr. Dupley, stating as  
follows:  
It was a pleasure speaking with you this morning.  
As per our conversation this morning at around 10:20 am where I had brought to your  
attention the issue of drivers operating forklifts that may not be certified to do so.  
At 10:30 am this morning I had informed you that P&D Driver [name redacted] was loading  
his own trailer.  
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9
This email was followed by unpleasant email exchanges between the  
Grievor and Mr. Dupley which I will not go into. In a series of emails from approximately  
March 21, 2022 to April 19, 2022, the Grievor sent to Mr. Dupley a list of drivers he had  
observed each day who he believed to be operating forklifts without valid certification. One of  
the drivers listed in the Grievor’s emails was Mr. McCrossin.  
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Mr. Dupley’s evidence was that prior to receiving the Grievor’s emails,  
he was not aware of drivers operating forklifts, without certification. Mr. Dupley’s evidence  
was that on investigation, he determined the Grievor was in fact correct, and the individuals  
listed were operating forklifts without proper certification. He testified that he took steps to  
rectify the situation, including having those drivers obtain certification.  
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1
Mr. Dorrington testified that Mr. Dupley provided him with a list of two  
dock workers with expired forklift certifications as well as six drivers (including Mr.  
McCrossin) who had operated forklifts without certification. Mr. Dorrington’s evidence was  
that one of the dock workers was away on vacation when his certificate expired, and he was  
required to take the refresher course prior to restarting work. With respect to the drivers, Mr.  
Dorrington’s evidence was that it was possible they were never in the Safety Department’s  
computer system and, as a result, no automatic reminder would have been generated for them  
to renew their certification when due.  
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2
On or about March 28, 2022, the Safety Department sent Mr.  
McCrossin an email that he had been enrolled in an online forklift training course. The  
Grievor learned about this, and on April 19, 2022, sent an email to the Safety Supervisor, with  
a copy to Mr. Dupley and others, as follows:  
Well, well. It appears that this Employer is finally training drivers for certification to operate  
forklifts. Well done guys...  
A couple of questions for the Safety Department:  
1
.
How does the Safety Department determine which driver gets to be certified?  
Is this new training program available to all drivers?  
2
.
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The Grievor signed the email as a shop steward, Policy Committee  
member, and Workplace Health and Safety Committee member. Mr. Dupley’s evidence was  
that he assumed the Grievor wrote the email in his capacity as a steward and committee  
member, and not in his personal capacity. The Grievor’s evidence was that Mr. Dupley replied  
to his email but did not answer the two questions posed above. In particular, Mr. Dupley  
replied to the email as follows:  
Morning Robert,  
Actually appreciate some of the information you send us. But there is no need for sarcasm.  
Also any type of kudos from you regarding this reeks with sarcasm. All managers/supervisors  
are hired for their abilities as are drivers. I truly find disdain with your remarks such as – Well  
well - after decades.  
So a question in my mind from decades of working with people, did after decades working in  
the same place, same job and lacking advancement, did a worker just wake up or is that  
person trying to manipulate for personal gain.  
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In his evidence, Mr. Dupley acknowledged his response was  
unprofessional and expressed some regret in this regard.  
III.  
collective agreement and statutory provisions  
The Employer and the Union are parties to a collective agreement with a  
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term from January 1, 2019 to December 31, 2024 (the “Collective Agreement”). For purposes  
of this dispute, the relevant provision are Articles 3.01 and 5.02(B).  
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Article 3 is a management rights clause. Article 3.01(A) states:  
The Union recognizes the exclusive right of the Company to manage and direct the Company’s  
business in all respects and in accordance with its commitments, and to alter from time to  
time rules and regulations to be observed by employees, which rules and regulations shall not  
be inconsistent with this Agreement, and proper notice is given to the Union. [emphasis  
added]  
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Article 5 addresses seniority. Article 5.02(B) states, in part:  
In the city or maintenance shop work, all vacancies will be posted for forty-eight 48 hours for  
bids. Seniority shall prevail for shift preferential, new jobs or vacancies provided the employee  
is qualified. … [emphasis added]  
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There is no dispute that a warehouse position is a “city” position within  
the meaning of Article 5.02(B) and that this seniority list encompasses both dock workers and  
short haul drivers, including P&D drivers. There is also no dispute that, on this basis, the  
Grievor was the most senior employee who applied for the Posting.  
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The parties also referred to the Occupational Health and Safety  
Regulation, BC Reg 296/97 under the Workers Compensation Act (the “Regulation”), and  
agree the Regulation applies in this case. Part 16 of the Regulation addresses mobile  
equipment, and Section 16.43 specifically addresses lift trucks, which the parties agree  
includes a forklift. Sections 16.43(1) and (2) state:  
(
(
(
1) The design, fabrication, use, inspection, maintenance and repair of a lift truck must meet:  
a) CAN/CSA Standard B335-15 – Safety standard for lift trucks, …  
2) Operator training for lift trucks must meet the requirements of Part 6 of the standard  
referred to in subsection (1)(a).  
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The parties also cited WorkSafeBC’s Occupational Health & Safety  
Guidelines (the “Guidelines”), which address Section 16.43(2) and forklift operator training.  
In this regard, G16.43(2) expressly states that certification is not required and sets out other  
options for achieving the requisite standard:  
Purpose of guideline  
The purpose of this guideline is to explain the training requirements for lift truck operators.  
Completion of training and testing  
The employer is responsible for ensuring a trainee completes training and testing that meets  
the performance criteria specified in section 16.43(2) before the person is assigned tasks as a  
lift truck operator. If an employee claims to have past training and/or experience as a lift truck  
operator, the employer is responsible for checking references and assessing the new  
employee's ability to meet the performance criteria specified in section 16.43(2) before  
assigning the person to be a lift truck operator.  
Lift truck operators do not need a certificate to confirm satisfactory performance and  
completion of the training mandated by section 16.43(2). The employer has several options for  
achieving compliance. Completing an external training course that effectively covers the  
specified standard, including the testing requirements, is one option to satisfy the Regulation.  
Another option is for the employer to provide in-house training and testing, to confirm the  
operator's knowledge and abilities meet the specified standard. Regardless, the employer still  
has an obligation to provide sufficient supervision and control in the workplace to ensure lift  
truck operators meet the standard on an ongoing basis. [emphasis added]  
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1
The Union referred to a WorkSafeBC online information sheet on  
forklift operator training, which states in part as follows:  
To operate a forklift, workers do not need to be certified but must first be trained to CSA  
standards. Common on the jobsite, it’s important all workers know how to use this equipment  
safely. Improper use can cause serious injuries – and even death.  
Where to get trained  
Workers must be trained to CSA Standard B335-15, Industrial Lift Truck Operator Training,  
and have passed the test before they can operate a lift truck (forklift). Workers can be trained  
by their employer or a third-party provider. Workers must be given upgrade training at least  
every three years, following the requirements of the CSA standard.  
Employers must ensure drivers are properly trained and receive additional training and  
supervision as needed.  
IV.  
Positions of the parties  
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I have carefully reviewed the submissions of the parties and the  
authorities to which they have referred, and set out a non-exhaustive summary of their  
positions below.  
The Union  
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3
In the Union’s submission, the Collective Agreement does not define the  
term “qualified” in a way that would shed light on its meaning in Article 5.02(B). Accordingly,  
it says a qualification for a position must either be: (a) unilaterally imposed by management as  
an exercise of management rights; or (b) imposed externally by regulatory requirements, such  
as through WorkSafeBC or CSA standards.  
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4
With respect to the former, the Union submits that in 2017, Mr.  
Dorrington unilaterally introduced the Qualification. It says the Employer never provided  
notice of the Qualification and indeed, prior to 2017, forklifts were frequently used without  
certification. The Union submits the Employer therefore breached the notice requirement in  
Article 3.01(A) and, as a result, the introduction of the Qualification cannot stand as an  
exercise of management rights.  
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5
The Union further submits there is no external regulatory requirement  
that a worker must have a forklift certificate to operate a forklift. It says Section 16.43 of the  
Regulation simply sets out a standard to which a worker must be trained, and does not require  
certification. The Union also refers to the Guidelines in that regard. Accordingly, the Union  
submits the Employer cannot rely on the occupational health and safety regime to say it was  
required to introduce the Qualification to mandate forklift certification.  
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6
The Union says the Employer was required to consider whether the  
Grievor, who had previous forklift experience and possessed equivalent qualifications, could  
do the job. It says Mr. Dorrington admitted he did not take any steps to assess the Grievor’s  
level of experience or equivalency. It submits automatic disqualification of the Grievor based  
on the lack of a certificate, without considering equivalency, undermines his seniority rights in  
the Collective Agreement. Further, the Union submits that there are a number of employees  
whom the Employer considers to have met the Qualification, but whose certifications on their  
face indicates only online training, not practical training. The Union says this is evidence of  
arbitrary application of the Qualification.  
The Employer  
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7
The Employer says the narrow issue to be determined is whether the  
Grievor met the Qualification for the dock worker position. The Employer submits the  
Qualification is reasonable in that it is consistent with occupational health and safety  
requirements and the Employer’s obligation to provide a safe workplace. The Employer also  
notes that Article 5.02(B) of the Collective Agreement does not require a senior employee to be  
given a training or trial period in order to demonstrate that he or she is qualified to do the job.  
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8
The Employer asserts that safety is a primary concern in its operations.  
The Employer acknowledges that the Safety Department’s record keeping system is “not  
perfect”. However, it says that, since 2017, Mr. Dorrington has consistently required all new  
dock workers to have a valid forklift certification prior to being hired, whether it is practical or  
online training, with the exception of four employees whose personnel records could not be  
located or happened to be missing a date.  
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9
The Employer says that the Qualification applies in terms of dock  
workers, and it does not require drivers to have a forklift certificate. However, it says that if a  
driver does operate a forklift, the driver must be certified. It says the Union has failed to  
establish that the Grievor loads his own trailer, or that drivers spend two hours a day loading  
their own trailers. In the Employer’s submission, there is also no evidence to support the  
Grievor’s claim that he has over 40 years of experience operating a forklift. The Employer says  
the qualifications for drivers are not relevant to the issue at hand. In any event, it says the  
evidence establishes that Van-Kam requires anyone who operates a forklift to have a forklift  
certification.  
6
0
In the Employer’s submission, arbitrators should not interfere with  
management's assessment of qualifications absent evidence of arbitrariness, discrimination,  
or bad faith, and it says there is no such evidence in this case.  
V.  
Analysis and decision  
It is well established that arbitrators generally extend deference to  
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1
managerial decisions in setting or assessing qualifications for a job, absent evidence of  
arbitrariness, discrimination, or bad faith. Arbitrators will also apply a standard of  
th  
reasonableness. Both parties referred to Brown & Beatty, Canadian Labour Arbitration, 4  
ed., para. 6:1800 in this regard, which states, in part (footnotes omitted):  
[
A] standard of reasonableness has been applied in virtually all cases in which an arbitrator  
must assess an employer’s judgment with respect to the skills and abilities of its employees. …  
In applying a standard of reasonableness, arbitrators have generally perceived their review to  
comprise two parts. Initially, the arbitrator must make some determination as to the  
requirements of the job and, against those requirements, assess the reasonableness of the  
standards or criteria utilized by the employer in making its judgment as to the relative abilities  
of the competing applicants. Having made that determination, the arbitrator must then assess  
the manner in which the employer applied those standards to each of the applicants.  
6
2
The authors also summarize the case law regarding an employer’s  
ability to set threshold qualifications for a position, and the need to assess equivalent  
qualifications, as follows at para. 6:2500 (footnotes omitted):  
Arbitrators are agreed that in the appropriate circumstances, employers may legitimately  
require employees who seek particular jobs to have a certain level of educational standing,  
government papers or practical experience. However, if an employee is able to demonstrate  
that his or her personal qualifications and abilities are such that he or she can do all the work  
competently, without the requisite academic standing or experiential qualification, the  
employee will be entitled to the job. In such cases, arbitrators have to evaluate the equivalency  
of different qualifications in order to determine whether an employee meets the substantive  
requirements of the job.  
In order to justify a requirement that persons who occupy particular positions have attained a  
certain level of educational standing or acquired a minimum amount of experience, the  
employer must show that the specific qualifications were necessary for adequate performance  
of the job’s associated duties.  
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3
The decision in Vancouver Coastal Health Authority and HSA (Damji  
Grievance) (2018), 299 L.A.C. (4th) 51 (Kinzie) (“Damji”) is instructive in these respects. In  
that case, the grievor was denied a posting for a social worker position as she had a bachelor’s  
degree in social work but did not have the required master’s degree. The union asserted,  
among other things, that the requirement for a master’s degree was unreasonable and that the  
grievor had equivalent qualifications. Arbitrator Kinzie held as follows at para. 99:  
Having considered all of the evidence and argument adduced, I am satisfied that the  
requirement for a Master's Degree in Social Work for the Social Worker I position on T 11 was  
in a general sense reasonably related to the job that had to be performed there given the acuity  
of the elderly patients on that unit. However, I am also of the view that the fact that a social  
worker did not possess a Master's Degree, only a Bachelor's Degree, did not automatically  
exclude her from being considered for a vacancy in such a position. If she claimed that she had  
equivalent qualifications to a Master's Degree based on her Bachelor's Degree as well as her  
experience and/or other studies, I am of the further view that the Employer would be obliged  
to consider that claim… [emphasis added]  
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4
The Qualification, as defined above and explained by Mr. Dorrington in  
his evidence, requires a new dock worker hired after 2017 to have a valid forklift certificate  
after completing practical training with a third-party forklift training provider. The evidence is  
clear that the Employer treats this as a threshold qualification, in that an applicant who does  
not have the Qualification will not be considered further or be interviewed.  
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5
The Collective Agreement does not define how to determine whether an  
applicant is “qualified” for the purposes of Article 5.02(B). In asserting that the Qualification  
is reasonable, the Employer relies on its obligations under the Regulation and to provide a  
safe workplace, and on its management rights.  
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6
There is no dispute that dock workers spend the vast majority of their  
time using forklifts to move freight. Clearly, the Employer is required to provide a safe  
workplace, and there can be no doubt that serious injury can result from improper operation  
of a forklift. However. In terms of whether the regulatory scheme requires the Employer to  
ensure dock workers have a forklift certificate in order to be hired and to be able to operate a  
forklift safely, the Regulation does not say so. Instead, the Regulation identifies a standard of  
training that forklift operators must meet, as set out by the CSA. Further, the Guidelines  
recognize that workers are not required to be certified in order to meet that standard, and set  
out options for the Employer to meet its obligation. Similar observations regarding the nature  
of the regulatory scheme were made in West Fraser Mills Ltd. (Fraser Lake Sawmills  
Division) v. USW 1-2017 (Webber Grievance), [202] B.C.C.A.A.A. No. 126 (Matacheskie),  
application for review denied, 2021 BCLRB 28, cited by the Union. Thus, the regulatory  
scheme does not require the Employer to have the Qualification.  
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7
Undergoing training to the requisite standard, as provided by a third-  
party provider, is one option contemplated by the regulatory scheme for an employer to meet  
its obligations. In that regard and, to that extent, the Qualification is reasonably related to the  
job. However, the Regulation does not say this is the only way in which an employer can meet  
the requirements set out therein. Accordingly, I find it was not reasonable for the Employer to  
treat the Qualification as a threshold qualification to the exclusion of any other method of  
satisfying the requirement in Section 16.43 of the Regulation.  
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8
Further and in any event, even if it was reasonable for the Employer to  
do so, I find that the Employer introduced the Qualification in a manner inconsistent with its  
obligations under Article 3.01(A) of the Collective Agreement.  
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9
The Employer asserts that even prior to 2017, it required dock workers  
to have forklift certificates. Based on the evidence before me, I cannot agree. The Employer  
relies on the Manual and the hiring checklist in this regard. As noted above, the Manual states  
that “workers must not operate any mobile equipment unless they possess [the] necessary  
licence and/or certificate”. While Mr. Dupley testified the Manual has included this statement  
since at least 2014, there was no persuasive evidence that the Manual is provided to the Union  
or circulated to all employees, nor was there any evidence as to how this purported rule was  
applied and enforced. Similarly, the mere fact that a hiring checklist has a tick box for having  
received a copy of forklift certificate does not establish that the Employer consistently  
required all dock workers to have such certificates in order to be hired. Mr. Dorrington also  
acknowledged he was not aware of the Employer’s practices in this regard prior to his  
employment in 2017.  
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0
In contrast, Mr. Giroux, Mr. McCrossin, and the Grievor, who are long  
term employees and have worked for the Employer prior to 2017, each testified that for many  
years, the Employer did not require dock workers, or drivers who operated forklifts, to have  
the forklift certification. The Employer did not persuasively challenge that evidence.  
7
1
I find the evidence establishes that the Qualification was introduced by  
Mr. Dorrington when he became the Surrey Terminal Manager in 2017. Pursuant to Article  
.01(A) of the Collective Agreement, where the Employer alters rules or regulations applicable  
3
to employees, the Union is to be given notice. There is no evidence that the Union was  
provided notice of the introduction of the Qualification. I also find that even after taking down  
the initial posting in late 2021, the Employer did not advise the Grievor of the Qualification  
and its view that he was not qualified for the job on that basis. The Grievor’s evidence, which I  
accept, was that he was not aware of the Qualification until he was denied the Posting in  
March 2022.  
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2
I also find that the Employer applied the Qualification in an arbitrary,  
inconsistent and unreasonable manner.  
7
3
First, Mr. Dorrington’s evidence was that while he required dock  
workers hired after 2017 to have the Qualification, he did not take any steps to investigate or  
ensure that dock workers hired prior to 2017 were up to date in their certifications. Similarly,  
Mr. Giroux, who has been employed as a dock worker for 18 years, testified that Van-Kam did  
not provide him with any forklift training when he commenced employment and that for  
several years, none of the dock workers had forklift certifications. Further, his evidence was  
that when he did take a training course in 2015 and in 2021, the courses were online and did  
not include a practical component. Indeed, in cross-examination, Mr. Dorrington  
acknowledged that at least in a few cases, he was not sure whether a course taken by an  
employee who was deemed to have the Qualification actually involved any practical  
component at all, and that if it did not, it would be a matter of concern to him.  
7
4
In my view, if safety obligations and compliance with regulatory  
requirements are the reason for having the Qualification, as the Employer asserts, then it was  
arbitrary and unreasonable for the Employer to not require, and not even investigate, whether  
dock workers hired prior to 2017 had the Qualification. Indeed, as noted, Mr. Giroux’s  
unchallenged evidenced was that dockworkers did not have forklift certifications for many  
years. I further find it was an arbitrary and unreasonable application of the Qualification for  
the Employer to consider employees to be qualified even where their training course did not,  
on the face of the records, include a practical component, as Mr. Dorrington required.  
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5
Second, I understand that the Qualification was only required of dock  
workers, not drivers. However, Mr. Dorrington and Mr. Dupley testified they were not aware  
of drivers using forklifts to load their trailers. At the same time, their evidence was that while  
drivers are not required to operate forklifts, Van-Kam consistently requires anyone who uses a  
forklift to be certified. In contrast, each of the Union witnesses testified that they have  
routinely seen P&D drivers operating forklifts to load and unload their trailers, and the  
evidence was that some of those drivers were not certified.  
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6
Where there are material conflicts in the evidence of the Union and  
Employer witnesses on this issue, I prefer the evidence of the Union witnesses. In particular, I  
find that while the evidence of Mr. Giroux and Mr. McCrossin was not as detailed or specific as  
it could have been, it is still credible. They have no stake in the outcome of this matter. They  
were candid and forthright. They maintained their evidence on cross-examination. With  
respect to the Grievor, I do not share the Employer’s criticisms of his evidence in this regard.  
In particular, on the relevant points, I find the Grievor’s evidence remained unshaken despite  
a lengthy cross-examination. I also note the Grievor testified that on some occasions, Van-  
Kam’s dispatcher directed him to load his own trailer. This evidence was not challenged in  
cross-examination, nor did the Employer call a witness to give evidence on this issue.  
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7
In contrast, some aspects of the Employer’s evidence were problematic.  
Mr. Dupley testified he was unaware that drivers were operating forklifts until 2022, when the  
Grievor raised the matter. Mr. Dupley agreed that the Grievor was in fact correct and there  
were some drivers using forklifts, without certification. While he testified that he took steps to  
correct the situation, the fact is drivers were using the forklifts, and in some cases, without  
certification. Given the Employer’s purported emphasis on safety, it is difficult to accept Mr.  
Dupley’s complete lack of awareness on this issue, as Safety Compliance Manager. In addition,  
Mr. Dupley acknowledged that he had difficulty putting names to faces and initially may not  
have recognized whether an employee operating a forklift was a driver or a dock worker.  
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8
Mr. Dorrington testified that he was aware of at least some drivers,  
albeit a small number, who used forklifts to load their trailers. To the extent Mr. Dorrington  
stated that he was not aware of any other drivers using forklifts, he also acknowledged that he  
does not see what the drivers are doing at all times. In addition, when he was asked whether  
he had seen the Grievor operate a forklift, he did not definitively respond, despite being asked  
the question a few times. Instead, he stated that he “did not recall” or that “for the most part I  
have seen [the Grievor] have someone load his trailer”. He also agreed in cross-examination  
that Mr. Dupley had provided him with a list of six drivers who were operating forklifts and  
did not have certification.  
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9
In all of the circumstances, and considering the evidence as a whole, I  
find it difficult to accept that management was entirely unaware that drivers were operating  
forklifts to load and unload their trailers. This is particularly so given the hectic nature of work  
on the dock in the morning and the need to get trailers loaded as fast as possible. Further, the  
evidence shows that there were at least four cases where drivers were operating forklifts  
without certification. While the Employer asserted in final argument that “it was only four out  
of 300 employees”, I find I have not been provided with any reasonable justification as to why  
the Employer was unaware of this fact. Ultimately, this constitutes an inconsistent application  
of the Employer’s stated requirement that anyone who operates a forklift must have  
certification to do so.  
8
0
The Employer’s focus in its evidence and argument on the amount of  
time spent by drivers on forklifts is also problematic. In its closing argument, the Employer  
mischaracterized the evidence of the Union witnesses in this regard. For example, Mr.  
Crossin’s evidence was that 75-80% of drivers load their own trailers. He did not, as the  
Employer asserts, testify that they do so for two hours every day. Regardless of whether they  
used forklifts for two hours in a day or more or less time, the fact is they were using them and,  
in some cases, without certification. The Employer’s focus on the number of forklifts in the  
terminal also does not assist its argument that drivers could not have been using forklifts in  
the manner asserted by Union witnesses. The Union did not argue that the drivers use the  
forklifts continuously. Again, the issue is not whether the drivers use the forklift for long  
amounts of time. The issue is that drivers are using the forklifts without certification, given the  
Employer’s assertion that it requires anyone who operates a forklift to be certified.  
8
1
I turn now to the Grievor’s evidence regarding his experience with  
operating forklifts. The Employer submits the Union has not established that the Grievor had  
prior experience operating forklifts. I disagree. The Employer asserted the Grievor’s evidence  
was not supported by documents, but did not specify which types of documents would have  
been relevant. In my view, the Grievor provided viva voce evidence in this regard that was  
sufficient to establish his experience. The Employer also asserts that the Grievor did not put  
forth his prior experience when he signed the Posting. However, as noted above, I find the  
Grievor was not aware of the Qualification at the time he signed the Posting.  
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2
The Employer also asserts that the Collective Agreement does not  
require it to provide a training or familiarization period. While that may be the case, the  
evidence was that the Employer offered training to other drivers who it discovered were  
operating forklifts without certification, including Mr. McCrossin. I was not provided with a  
sufficient reason as to why the same training could not have been offered to the Grievor,  
particularly in circumstances where he made inquiries about the training, and where he is one  
of the most senior employees (and certainly was the senior most applicant for the Posting). I  
must note, however, that the fact that the Grievor has either failed or refused to make  
arrangements to take the training course himself is both puzzling and unhelpful.  
8
3
In summary, for the reasons set out above, I find and declare that the  
Employer’s introduction of the Qualification was contrary to Article 3.01(A) of the Collective  
Agreement, and that its application of the Qualification in the circumstances was arbitrary and  
unreasonable. Clearly, the Union now has notice of the Qualification.  
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4
As a remedy, I order the Employer to provide the Grievor with the  
required training, as it has for others who have operated forklifts without certification, and to  
then assess his qualifications for a dock worker position at the next opportunity. I was not  
provided with any evidence of monetary loss suffered by the Grievor and I decline to make any  
orders in that respect.  
th  
DATED this 28 day of September, 2022, in the District of North Vancouver, BC.  
KOML KANDOLA”  
________________________  
_
Koml Kandola  
Arbitrator  
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