Loading...
HomeMy WebLinkAbout1989-0737.McNulty.91-04-16ONTARIO CROWN EMPL O YEES G RI EVAN C E SETTLEMENT BOARD EMPLOYES DE LA COURONNE DE L 'ONTARIO CQMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS street WEST, suite 2100, TORONTO, ONTARIO. M5G 1z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO M5G 1.2'8 JELEPHONEITELEPHONE (4 16 326- 1388 (4 16 326- 1396 737/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER BEARING OLBEU (McNulty) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor N. Dissanayake E. Seymour C. Linton Employer Vice-Chairperson Member Member C. Flood Counsel Koskie and Minsky Barrister & Solicitors A. Burke Counsel Hicks, Morley, Hamilton, Stewart & Barristers & Solicitors Storie November 22, 1989 March 20, 21, 22, 1990 June 7, 1990 July 17, 1990. 2 DECISION This is the grievance of Mr. Denis McNulty, claiming that he has been discharged without cause. At the time of his discharge, the grievor was employed at the LCBO Store # 47 at St. Catherines, Ontario as a casual employee. The discharge resulted from an incident on June 23, 1989 between the grievor and a full-time employee, Mr. Terry Roach. Following the incident, on June 27, 1989, Mr. C.T. Stewart, the Store manager removed the grievor from duty and issued a notice of intended discipline pending investigation. On July 14, 1989, Mr. A.L. Torrie, Regional Director, terminated the grievor's services by issuing the following letter: This refers to the events that caused your manager, Mr. C. Stewart, to place you on Notice of Intended Discipline, and to remove you from duty effective June 27, 1989. An investigation of the events of June 23, 1989 reveals that you did in fact threaten and demean another store employee. A review of your record indicates that on November 4, 1988 you were counselled for name calling and bickering with other store employees. On December 5, 1988 you threatened and demeaned supervisory store staff for which you were ultimately given a four and one-half day suspension and advised that if there is any reoccurrence of unacceptable behaviour, your services as a casual employee will no longer be required." Therefore, I have concluded that it is in the best interests of the LCBO and its store employees to terminate your services as a casual employee effective June 27, 1989. 3 As is the practice in disciplinary cases, the Employer adduced its evidence first. A total of six witnesses were called by the Employer. At the conclusion of the Employer's case, counsel for the grievor elected not to call any evidence and moved for non-suit. After hearing submissions on the motion, the Board unanimously directed that the grievor be immediately re-instated because it was of the view that a prima facie case for discharge had not been made out. The Board reserved its decision on whether the grievor was guilty of any culpable conduct so as to justify the imposition of any discipline. During the cross-examination of the Regional Director, Mr. A.L. Torrie, who made the ultimate decision to discharge the grievor, it was revealed that he consulted with, and had input from, the District Manager, Mr. J. Turner and a Human Resources Dept. advisor, Mr. H. McNaughten. Mr. Torrie conceded that he relied on Mr. Turner for the facts upon which he based his decision and also that Mr. Turner recommended that the grievor be discharged. He also testified that Mr. McNaughten was consulted as a human resources expert in deciding the gravity of the alleged conduct of the grievor and the appropriate penalty. In cross-examining Mr. Torrie, union counsel suggested that Mr. Turner and Mr. McNaughten may not have been impartial in this regard because of their past involvement with the grievor. More specifically it was 4 brought to light that the grievor had made allegations of impropriety against a number of persons in management, and that it was Mr. McNaughten who carried out an investigation into those allegations. Based on this , Employer counsel sought an adjournment to permit her to consider whether she should call any of the individuals concerned to refute the suggestion of bad faith or bias. Counsel's position was that these were charges against management which had not been raised earlier, that she was unprepared to meet these and that before she closed her case she was entitled to an adjournment to permit her to consult with the individuals and to decide whether they should be called to testify. The majority of the Board (with Ms. Linton not taking a position) ruled that the Board would not grant an adjournment in the circumstances. It was open to the Employer to call any persons who were involved in the decision-making. For whatever reason, Counsel had not planned to call Mr. Turner or Mr. McNaughten. We do not feel that the mere fact that Mr. Torrie was cross-examined with questions suggestive of bad faith and/or bias on the part of these individuals entitled the Employer to an adjournment. As the Board indicated at the time, had the Union adduced any evidence to substantiate the allegations against Mr. Turner and/or Mr. McNaughten, the 5 Employer if it wo wished would have been in a position to call reply evidence to rebut that. While much of the evidence was focused on allegations of bad faith and ulterior motives on the part of certain members of management in the end the Union did not rely on this evidence. Therefore, it is not necessary for the Board to deal with any of that evidence. As already noted, the only evidence before the Board is that adduced by the Employer. Based on that evidence, we make the following findings of fact. On June 23, Mr. Terry Roach and Ms. Patty Talbot were assigned to duties in the back-room at LCBO Store 47. Their regular duties primarily consisted of delivering liquor stocks to hotel licensees and individuals with special occasion liquor permits. The back room employees receive orders over the telephone, assemble stocks required by the orders, obtain the prices and determine the cost to the customers. They then assemble the order for pick up by the customer. When the customer arrives, the back-room employees take the appropriate payment and hand over the goods. In addition to these duties, they also answer the telephone and issue liquor permits. There is a cash register at the back- room, which is shared by the two employees. 6 On June 23, 1989 at the time in question, Ms. Talbot was busy with a customer in the back-room. Mr. Roach was at the front of the store putting stock on shelves. Another customer arrived at the back-room. The grievor, who happened to be in the back-room area went to assist the newly arrived customer. He took the customer's order form and went towards the cash register to record the transaction. Mr. Roach entered the back-room, approached the grievor and told the grievor that he will take care of the customer. The grievor stated that he already had the order and that he would ring it in. Mr. Roach informed the grievor that it was his responsibility and that he did not want anyone else to handle the back-room cash register, when he is on duty. The grievor was upset and loudly stated that he had used the back-room register a thousand times and that he would continue to use it. Mr. Roach stated "I’ll take it'' and pulled the order sheet out of the grievor's hand. The grievor released the paper and Mr. Roach proceeded to ring in the order. The grievor went out of the back-room to the front of the store and asked another employee, Mr. Ron Cartmell whether the back-room procedure had been changed recently. Mr. Cartmell said that as far as he was aware, it had not. The grievor re-entered the back-room and started hollering again that he had a right to use the back-room cash register. The evidence indicates that at this point a heated 7 exchange ensued between the grievor and Mr. Roach which lasted about 5 minutes. Voices were raised by both and sometime during this exchange, the grievor called Mr. Roach wimp” and challenged him to step outside. During this commotion, Mr. Talbot, fearing that the two might start a fight, went to the Manager, Mr. Collin Stewart and reported that the grievor and Mr. Roach were "going to go at each other." Since Mr. Stewart was on the telephone, she reported her concern to Mr. Steve Stokes, the book-keeper. Mr. Stokes immediately went to the back-room. He testified that when he got there "everything was quiet”. The grievor came up to Mr. Stokes and inquired, "If the back-room employees are busy and a customer is waiting to be looked after, what am I supposed to do?" Mr. Stokes replied, "customer service is a priority." At that point, Mr. Stewart joined them. Mr. Stewart testified that he asked if there was a problem and that everyone indicated that there was no problem. That afternoon there were two staff meetings held at store 47. While the staff meetings were scheduled in the normal course, we are convinced that it was the incident between the grievor and Mr. Roach that caused the management to discuss the proper procedure to be followed in the back- room. The grievor attended one of the meetings. When the 8 back-room procedure was being discussed, the grievor asked Mr. Stewart a question in hypothetical form. He asked, if the back-room employees were not available and a customer came in, whether it would be appropriate for him to attend to the customer. Mr. Stewart responded that it would be appropriate. After the altercation on Friday June 23, the grievor and Mr. Roach worked at the store the balance of the shift that day and also over the week-end. There was no further problem or hostility between the two. The issue to be determined by the Board is whether during the altercation on June 23, the grievor threatened and demeaned Mr. Roach, as the letter of discharge alleges. If the answer is in the affirmative, the Board must go on to decide whether the penalty imposed by the Employer was just in the circumstances. On a motion for non-suit the standard of proof has been held to be one of proving a prim a facie case. (Queen in right of Ontario and OPSEU, Barry Cahoon, Div. Ct. decision dated April 26, 1990). Based on that standard, the Board is satisfied that the Employer's evidence establishes that by calling Mr. Roach a Wimp and challenging him to step outside, the grievor engaged in threatening and demeaning conduct towards Mr. Roach. The grievor was not entitled to settle his disagreement as to work procedures by threatening 9 a fellow-employee. A workplace cannot be governed by the law of the jungle where the mightier prevails by threatening the weaker. If employees have some disagreement as to work procedures, that must be resolved in an orderly and civil manner. Resort to threats is not only an aggression against the victim of the threat, but also causes friction and is not conducive to a harmonious work environment. In all of the circumstances the grievor's conduct was culpable and justified some disciplinary response from the Employer. While we have concluded that the grievor did threaten Mr. Roach, we find that during his testimony Mr. Roach grossly exaggerated the impact of that threat on him. Mr. Roach conceded that other than the raised voice the grievor did not make any physical gestures indicating that he was about to engage in any act of violence. It was only a verbal threat unaccompanied by any physical action indicating that the grievor intended to carry out the threat. Besides, it was not a one-sided altercation. Thus, when Ms. Talbot reported the incident to Mr. Stewart and Mr. Stokes, she did not report that the grievor was trying to assault Mr. Roach. Instead she reported that the two were "going to go at each other". Mr. Cartmell in his statement reports that "both were quite angry" at the time. While Mr. Roach would have the Board believe that he was fearing a physical assault by the grievor, his conduct at the time is completely inconsistent with a finding 10 that he was in such fear. Thus when Mr. Stokes, and later Mr. Stewart, arrived at the scene, Mr. Roach did not report that the grievor had threatened him. Mr. Stewart was informed by everyone present that there was no problem If Mr. Roach had been in such fear as he claims, it is probable he would have been concerned about working with the grievor and that he would have raised that concern at the time with management. The evidence, quite to the contrary, is that the two went right back to work immediately after the incident and worked together without any further incident or hostility the rest of the shift that day and over the week-end. Mr. Roach first made a complaint to management on Monday. In all of the circumstances, it is our conclusion that the threat uttered by the grievor was a verbal threat unaccompanied by any physical conduct indicating an intention to carry it out, and that Mr. Roach had no apprehension or fear of an imminent physical assault. The evidence shows that there was confusion among the employees as to what the proper back-room procedure was. While the Employer attempted to convince the Board that the procedure was clear that only the two employees assigned to the back-room were allowed to use the back-room cash register, the evidence indicates the opposite. We do not propose to review in detail that evidence. Suffice it to state that the evidence clearly establishes that if there was any procedure 11 at all it was not consistently followed or enforced. It is clear at least that the procedure was flexible enough to allow another employee to serve a customer (including the use of the cash register) if the assigned employees were not available in the back-room area. This was conceded by most of the Employer's own witnesses. For example, Mr. Stokes testified that, while theoretically it is not supposed to happen, at lunch time both back-room employees may not be available for periods of up to 15 minutes. He agreed that during these times, any available employee is expected to attend to customers who come to the back-room. Mr. Cartmell also agreed that it was permissible for any employee to serve customers at the back-room if the two assigned employees are not available. This evidence is further confirmed by the answers given by Mr. Stokes and Mr. Stewart, when the grievor inquired about the proper back-room procedure. Given the absence of a clear rule that only the back-room employees are allowed to use the back-room cash register, in our view it was an unwarranted provocation on Mr. Roach's part to insist that the grievor had no right to use the cash register and to grab the order sheet from the grievor's hand. This is a factor which the Board considers to be relevant in assessing the degree of culpability or seriousness of the grievor's reaction towards Mr. Roach. 12 Also in favour of the grievor is his relatively long service with the Employer. It was agreed that his service of over 10,000 hours in a period of over 8 years is to be considered long service for a casual employee. Over the years, his performance appraisals have been quite satisfactory. It is note worthy that his appraisals indicate that his relationship with other employees has been satisfactory. On the negative side of the ledger, the grievor received counselling in November 1988 for bickering with another employee. At the time the grievor was advised that continuance of that conduct would not be tolerated and could result in discipline. Subsequently in December 1988 the Employer referred to this advice in imposing on the grievor a suspension without pay for threatening and demeaning a member of supervision. Initially the suspension was for a period of ten working days. Following a grievance filed by the grievor, in May 1989 the grievance was settled. The grievor agreed to withdraw the grievance and the period of suspension was reduced from 10 to 4 1/2 days. In light of the terms of the settlement, what is on the grievor's record is not a ten day suspension but a 4 1/2 day suspension. However, we disagree with counsel for the union that the reduction of the suspension nullifies the warning 13 contained in the initial letter of suspension that "if there is a reoccurrence of unacceptable behaviour your services as a casual employee will no longer be required". Merely by giving an advanced warning, an Employer cannot turn conduct which otherwise is not worthy of serious punishment into just cause for discharge. However, that warning must be taken as notice to the grievor of the Employer's concern about his behaviour and that the Employer viewed it as serious misconduct. That knowledge must be taken into account in assessing the gravity of the grievor's conduct and the appropriate penalty. In all of the circumstances, the Board was unanimously of the view that discharge was not justified. It was for that reason that we directed at the conclusion of the hearing that the grievor be reinstated. We have considered the grievor's seniority, the provocative stand Mr. Roach took in the face of a unclear and inconsistent procedure and the absence of any physical act on the part of the grievor as factors weighing in favour of the grievor. On the other hand, in November 1988 the grievor was advised that hostility towards fellow employees would not be tolerated. Despite that advice, he again engaged in threatening and demeaning behaviour towards a member of the supervisory staff. He received a 4 1/2 day suspension and a further warning that a repetition may result in his dismissal. Yet just six months later he resorted to 14 threats and bullying tactics when he had a disagreement with Mr. Roach. While we have concluded that discharge is too severe, a penalty must be assessed to clearly convey to the grievor that he has to change his attitude, that he is not entitled to resort to bullying and threatening as a means of resolving differences that inevitably will arise in the day- to-day interaction at the workplace. With the foregoing considerations in mind, we have concluded that the penalty of discharge must be substituted with a suspension without pay for 20 working days. Subject to this period of suspension, the grievor is to be reinstated with compensation and without loss of seniority. The Board shall remain seized in the event the parties cannot agree upon the implementation of the remedy directed. Dated this 16th day Of April 1991 at Toronto Ontario. Vice-Chairperson Member C. Linton Member