Pubdate: Thu, 20 Jul 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Author: Ben Spurr
Page: A1


Employee wasn't allowed to work after drug raid in which police found
pot, $40K in cash and tokens

A fare collector who took home $40,000 in TTC funds and then lost it
in a drug raid has been awarded compensation from the transit agency
after he challenged his suspension from the job.

The case is a bizarre three-year saga involving marijuana, police, and
TTC tokens. During that time, transit employee Tyson Hu was arrested,
suspended without pay for more than a year, reinstated and finally
awarded months of back pay for some of the time he was wasn't allowed
to work.

In March, an arbitrator ruled on the grievance the TTC workers union
filed on Hu's behalf. The details of this story are taken from that
ruling, which was based on a statement of facts filed by the TTC and
Amalgamated Transit Union Local 113.

Through the union, Hu declined to comment on the case.

The trouble began just after 2 p.m. on July 28, 2014, when Hu, a
Scarborough resident who had worked as a fare collector since 2011,
finished his shift at Lawrence station.

According to agency policy, fare collectors are supposed to lock all
money and fare media they have in their possession - which is known as
a fund - in a secure place on TTC property at the end of every shift.

Instead, Hu took the $5,060.20 in cash and $34,407.70 in tokens,
tickets, and passes in his fund home with him.

In what appears to have been a coincidence, early the next morning the
Durham Regional Police executed a search warrant at Hu's home as part
of a major drug bust launched with the Toronto police dubbed Project
Bermuda. The police seized various items in the raid, including
hashish, marijuana and the TTC fund.

Hu was held in custody for several hours, and released the same day.
He was charged with "various offences," according to the arbitration
ruling. According to TTC spokesperson Brad Ross, taking thousands of
dollars worth of cash and fare media home "can be a fireable offence,
but usually only when it's connected to theft." "When the money is
taken home and returned without consequence, we still take action, but
it is considered a procedural violation and provided none of our money
is lost, we use progressive discipline," he said.

In Hu's case, he couldn't return the fund because it had been
confiscated by the police. When he came back to work a few days after
his arrest, a TTC supervisor asked him to produce the fund for an
audit. When he was unable to do so, the TTC suspended him without pay.

The police held on to the fund as Hu's criminal case proceeded. It
wasn't until June 2015, almost one year after the raid, that the Crown
attorney alerted the TTC it was ready to be returned. Even then, the
TTC had to file a court application to get it back.

In his decision, arbitrator Owen Shime wrote that he was baffled by
the delay.

"It is difficult to understand why some sensible arrangement between
the Crown or the police could not have been made for the return of the
fare media at least . . . which were clearly the property of the TTC,"
he wrote.

Neither the Durham police nor the Public Prosecution Service of Canada
could immediately say why it took so long to return the fund.

The TTC finally got its property back in September 2015, and
reinstated Hu that month in a position that didn't involve handling
fares. In October of that year, Hu plead guilty to simple drug
possession and was given an absolute discharge.

As a result of the discharge, "we were unable to take any further
disciplinary action against him," Ross said.

In the arbitration, Local 113 argued that the TTC should have allowed
Hu to return to work sooner because the agency was aware that the fund
was in police custody. The union also said he should be "fully
compensated" for the loss of pay and benefits during the time when he
should have been allowed to work.

The TTC countered that it had offered to reinstate Hu if he agreed to
certain conditions, but he refused and therefore wasn't entitled to

The offer of reinstatement came in November 2014, more than three
months after Hu was suspended. The TTC said he could come back to work
if he agreed to certain terms, including taking a drug test before
restarting the job and submitting to unannounced tests thereafter.

In his decision, Shime wrote that Hu had committed "a significant
breach of his duties and responsibilities as a collector" and should
be subject to "significant discipline."

"Individual collectors cannot go off on a frolic of their own . . .
with the trust funds that they have in their care," he wrote.

But Shime agreed with the union that the conditions the TTC tried to
place on Hu's reinstatement in 2014 were unreasonable. He noted that
Hu wasn't terminated for the off-duty conduct that led to his arrest
or for using drugs while at work. The drug test provision "was not
only unrelated to the reasons for his discharge, but was an affront to
both his dignity and privacy," he wrote.

Because the TTC's conditions were unreasonable, Hu was not obligated
to accept the offer of temporary reinstatement, Shime determined. He
ruled Hu was entitled to compensation for the nine-month period
between the conditional offer and his reinstatement in September 2015,
during which time the TTC didn't allow him to work.

The two parties reached a settlement on July 12, the terms of which
are confidential. Hu remains employed in the TTC's collectors
division, but isn't allowed to handle money or fare media, according
to the agency.

Kevin Morton, secretary-treasurer of Local 113, said it's "absolutely"
appropriate that Hu is back on the job. He noted that Hu paid a
penalty by being suspended without pay for four months after he lost
the fund, and that the TTC didn't lose any revenue because it was
eventually returned in its entirety.

Morton said what complicated the situation was the police
investigation, which he asserted was "outside of" Hu's breach of
policy. "He was caught up in it. The TTC tried to combine them,"
Morton said.

Ross, the TTC spokesperson, said incidents like this are "incredibly
rare" and "will be eliminated" once the agency replaces its older
media with the Presto electronic fare card.
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