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Accused of Sleeping on the Job, Fired BC Place Worker Ordered Reinstated

Unwarranted discipline caused illness and anger: ruling.

Bob Mackin 15 Jan

North Vancouver-based journalist Bob Mackin is a frequent contributor to The Tyee. Find his previous Tyee articles here.

A Labour Relations Board-appointed arbitrator has ordered B.C. Pavilion Corporation to rehire a longtime B.C. Place Stadium security worker who was fired after two managers targeted him for sleeping on the job. 

In a Jan. 4 written decision, James Dorsey ruled that PavCo must reinstate Dan Franz "without loss of seniority and to compensate him for lost wages and benefits for the suspension period beyond thirty calendar days and all lost wages and benefits since Sept. 4, 2013, the date the employer had both medical clearance he could return to work and a clear communication from him he was willing to return to work."

Franz started work under the dome in 1986 as a part-time field technician, and by 1994 was a security officer.

He had "discipline free employment," according to Dorsey's 70-page decision, until 2011 when he was suspended for a day after blocking the lens of a surveillance camera with a post-it note. 

The camera in question had been installed inside the control room office after the stadium's $514 million renovation. Instead of monitoring people coming and going from the building's east end security entrance, the ruling said the camera was trained to track the workers in the control room.

According to Dorsey's ruling, many employees, including Franz, were opposed to the camera.

"Mr. Franz was not alone in opposing employer monitoring of security officers while they monitored others," Dorsey wrote. "Another full-time security officer was disciplined for obstructing the view of the camera in Nov. 2011."

The B.C. Government and Service Employees' Union, which represents workers at the publicly owned stadium, successfully grieved and the camera was moved in June 2013 closer to the east door.

That did not solve Franz's problems, who went on stress leave in Oct. 2012 and was fired 11 months later.

Dorsey's written decision said the stadium's Joint Occupational Health and Safety Committee's discussed in Feb. 2012 the ongoing air quality concerns in the security office and other parts of the building, due to diesel and exhaust fumes. 

Dorsey also described Franz's role as "sedentary" because his job involved monitoring 140 of the 148 interior and exterior camera feeds at the building. 

Security system installed

Before the 2010 Winter Olympics, PavCo installed a security system, called the On-Net Ocularis Internet protocol security system, which was activated by a pre-set level of pixilation change rather than detection of motion.

The allegations against Franz stem from building and event security manager Chris Harrison's investigation of surveillance footage -- which used the new security system technology -- to look for a missing courier package.

Harrison believed footage showed several employees watching movies and sleeping on the job, including Franz.

Upon further examination, the ruling said Harrison found two full-time and three relief security workers that he believed had slept on duty. He and facilities operations director Brian Griffin interviewed all eight full-time security officers, asking whether they watched movies, put their feet up on the desk and slept on duty. Harrison and Griffin focused on Franz and suspended him for 31 eight-hour shifts for taking a nap in late July 2012. 

But, Dorsey ruled, Franz's suspension letter did not state when or for how long it was believed he had slept on duty. "The employer had not recorded the specific dates and times it believed Mr. Franz had slept. The discipline was based on a general impression gathered from the footage viewed in June or July 2012."

Dorsey did, however, find that Franz involuntarily nodded off on one occasion for 47 minutes, but he ruled that warranted a 30-day suspension, not the 31 shift-suspension, spread over 45 days, that was handed to him. He was finally fired Sept. 11, 2013. 

The firing caused emotional harm to Franz, Dorsey said in his decision.

Worker fell ill

"Mr. Franz was ill and angry throughout the winter of 2012-13 and blamed Mr. Harrison for his predicament. He expressed different thoughts about his job and future in his testimony," Dorsey wrote.

The BCGEU argued the footage revealed no evidence that Franz slept on the job.

"The union submits the footage is generally unreliable, has no context within which it can be interpreted and is unsupported by any corroborative evidence of sleeping. Mr. Franz was honest, simply reacting to events, not scheming, and gave credible testimony," Dorsey wrote.

He noted that the employer's witness is a machine.

"The challenge throughout is that the employer's main witness is a deaf artificial intelligence with limited sight operating on some unknown pixilation algorithm and could not be cross-examined." 

Dorsey heard the case over 15 dates, beginning in November 2013. Lawyer Andrea Davis represented BCGEU, while Marcia McNeil argued for PavCo. Dorsey heard testimony from three managers, Franz's doctor, an independent medical examiner, two BCGEU reps and Franz himself. 

In sending Franz back to work, Dorsey wrote: "The employment relationship is not so broken that Mr. Franz, with over 25 years employment, cannot adapt to the expectations Mr. Harrison has articulated since his hire in July 2011. He will have to keep his feet off the counter to comply with the Code of Conduct."

PavCo board chair Stuart McLaughlin said in a written statement that BC Place management is disappointed in the arbitrator's decision, saying it "does not reflect the expectations of BC Place as an organization."

McLaughlin would not comment on the specifics of the case, but wrote that the organization is "reviewing our response" to the decision.

Dorsey's decision came, coincidentally, on the eve of the eighth anniversary of the spectacular rip and collapse of B.C. Place's original inflated fabric roof. An engineering report found management did not order control room workers to heat the roof to prevent the accumulation of heavy, wet snow. The mass eventually shifted when the air pressure spiked and cut a hole in the roof's west side.

It was patched up within a few weeks. By early 2008, PavCo chair David Podmore estimated it would cost more than $75 million to replace the roof. By May of that year, Premier Gordon Campbell announced the plan to replace the inflated roof with a complex, German-engineered steel and cable-reinforced, retractable roof.

A $365 million budget was announced in early 2009, but the final cost was pegged at $514 million.  [Tyee]

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