A Manitoba judge is urging the City of Winnipeg to allow a longtime heavy equipment operator to return to work, after declaring he was banned due to “nasty and wrong assumptions.”
The 59-year-old had worked as a contracted backhoe and machine operator for the city for about 18 years — providing his primary income — until he was banned from further work in December 2017, after he was accused of attempted theft and trespassing following disputes with a city worker that the judge said “had no basis in fact.”
The equipment operator filed a lawsuit in the Court of King’s Bench in July 2018 over lost income.
Justice Chris Martin dismissed the man’s lawsuit this week, following a three-week trial, as the legal requirements to prove his claim were “not accommodating,” but said his decision wasn’t a “vindication of the city’s actions or conduct.”
“(The operator) was not dealt with fairly and his bans were neither well-grounded nor just,” Martin wrote in his April 15 decision.
The man has been a heavy equipment operator for about 50 years, having grown up on a farm where he learned to drive the machines. Beginning in 1999, his company subcontracted to another firm to work in the Winnipeg water and wastewater departments on annual contracts.
The man’s removal from city work began with disputes at the end of March and in April 2017, Martin wrote.
At the time, the operator had no record of any complaints or deficiencies with his work, apart from occasional and minor concerns for not properly wearing safety equipment outside his machine.
On March 31, a water department supervisor accused him of not wearing safety gear and making a rude remark to the foreman when confronted about it, which the man denied.
Martin said a “petty misunderstanding” among workers at the job site that same day over the man’s willingness to help others led the supervisor to blame him, though he did nothing wrong.
Weeks later, a city contractor administrator met with city workers, including the water department supervisor, and decided to impose a ban on the equipment operator from working for water crews.
The administrator did not drill down into the accusations, said Martin, instead justifying his decision as stopping the reported misbehaviour and to support the supervisor, who didn’t want the operator working for the department.
The operator continued working for the wastewater department, but was then banned from any city jobs months later, following “careless and damning accusations” by the same supervisor, Martin wrote.
In November, the supervisor claimed that the operator trespassed and tried to steal when he drove a truck to a city yard shared by the two departments to pick up material for a sewage job the following day, after he’d clocked out.
When the operator got to the yard, Martin said, no one was working in the wastewater area, so he went to the water department’s area to ask a backhoe operator to fill his truck with clean mud.
The backhoe driver refused and reported the request to the supervisor, who demanded in an email to city officials that the operator be banned from city work entirely.
Martin said the supervisor “jumped to nasty and wrong assumptions” by accusing the man of theft.
Later in November, the operator was in a city building used by the water and wastewater department, the supervisor claimed he wasn’t allowed to be there and threatened to call police and sent a complaint to superiors.
On Dec. 1, 2017, the contract administrator decided to ban the operator from working for the city outright due to the alleged theft and the earlier disputes, even though he never sought the man’s side of the story.
The judge said if the disputes in the spring had been better handled by a different manager, the operator likely wouldn’t have been banned from the water department.
Martin said the city should “act honourably and voluntarily lift” the bans as the “only right way to make amends,” despite the fact he found the city isn’t legally liable for the loss of income.
erik.pindera@freepress.mb.ca
Erik Pindera
Reporter
Erik Pindera reports for the city desk, with a particular focus on crime and justice.