Winnipeg fire investigators moonlighted for private firm, hearing told

The City of Winnipeg is alleging that two of its fire investigators were in a potential conflict of interest when they were moonlighting as fire investigators for a private company whose clients include insurance companies.

The two fire department employees, Peter Apsit and Shelley Tyler, each got a letter from the city last February telling them to quit their jobs with the firm Origin & Cause or face dismissal from the department.

Both complied with the request but their union, the United Fire Fighters of Winnipeg, filed a grievance against the city. An arbitration hearing into the grievance was held this week with closing arguments heard on Friday.

Garth Smorang, a lawyer representing the union, said the arbitrator has to determine whether the outside employment amounts to a contravention of the City of Winnipeg's employee code of conduct.

"No employer owns their employee 24/7," Smorang said.

The union is asking that the employees be allowed to resume working for Origin & Cause and that the City of Winnipeg pay them for wages lost after they stopped working for the company.

Smorang argued that neither the code of conduct nor the employees' contracts prohibits the two fire investigators from working for the private firm.

Origin & Cause calls itself Canada's largest fire investigation firm and has offices across the country, serving clients such as insurance companies, law firms and corporate risk managers.

'Sniff test'

The city's lawyer, John Jacobs, said the city alleges no wrongdoing on the part of the two employees.

"This is about potential," Jacobs said at the hearing.

"Ultimately it’s a sniff test, and that’s the task you are given," Jacobs told the arbitrator. He said it’s all about "what the public might think."

The hearing was told that the two employees had, in the past, disclosed to the city their work with the private investigation company.

In the case of Apsit, Smorang said "he made full disclosure and met every concern" about the outside employment, such as taking steps to ensure information from the fire department didn't flow to officials of the private company.

The hearing was told that the two city employees did not conduct investigations for Origin & Cause within Winnipeg, only outside the city.

Nevertheless, Jacobs said that on some 40 occasions, Apsit investigated fire scenes for the city which were also being investigated by the private firm on behalf of its clients.

Jacobs said that could lead to either an intentional or inadvertent conflict of interest.

Jacobs also said Apsit had a personal friendship with Origin & Cause investigator Ken Swan, which might have "unconsciously affected" Apsit.

The city's lawyer raised concern about volume of information available to fire investigators, such as police information, radio calls, medical information, addresses, policy changes and errors.

Decision rests with arbitrator

Jacobs said Origin & Cause does a lot of work in the city and its employees will "cross paths … over and over" at fire scenes with investigators for the fire department.

He said the interests of Origin & Cause lie with its clients — the insurance companies — and the concern is that city employees "could disclose information socially or on the job."

"This opportunity needs to be removed," Jacobs said.

Smorang countered that just because Apsit and Tyler have access to information as fire department investigators doesn't mean that information will be disclosed in some way.

"Is there a real concern that Apsit and Tyler might be tempted to abuse their positions and provide that information?" he said. "How could the information Tyler and Apsit have access to be valuable to Swan?"

"The answer to both those questions must be no," said Smorang.

The decision now rests with the arbitrator Colin Robinson.

Origin & Cause declined an interview request while the matter is before arbitration.

Swan, who is the company's manager for western Canada, said in an email, "Origin and Cause has presented evidence to the arbitrator regarding this matter. This matter is between the City of Winnipeg and the fire department union."

"This matter was fully aired at the hearing. We are eagerly awaiting the release of that decision," Swan wrote.

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