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.
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.
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.
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.
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.
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.
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