HomeMy WebLinkAbout1997-2033.Massa.00-02-15 DecisionONTARIOEMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8TELEPHONE/TÉLEPHONE,(416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396
GSB # 2033/97, 384/98, 385/98
OLBEU # OLB002/98, OLB235/97, OLB413/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees Union
(Massa)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORERandi H. AbramskyVice Chair
FOR THE Larry Steinberg
GRIEVOR Counsel Koskie & Minsky
Barristers & Solicitors
FOR THEMicheal Sherrard
EMPLOYER Counsel Ogilvy Renault
Barristers & Solicitors
HEARINGJune 18, 1998
October 27, 28, 1998
November 12, 13, 26, 27, 1998
December 3, 4, 1998
March 10, 11, 1999
April 20, 1999
May 12, 1999
July 13, 14, 1999
August 16, 27, 1999
October 13, 26, 1999
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AWARD
This arbitration involves three grievances concerning discipline imposed on the
grievor, Joseph Massa – a three-day suspension, a ten-day suspension and discharge. At
issue is whether the Employer, the LCBO, had just cause to impose these disciplinary
measures.
A. Background
The grievor, prior to his termination in January 1998, worked as a Warehouseman 4
at the London warehouse and had held that position since January 1977. The London
warehouse receives, stores and ships liquor to 135 LCBO stores in the area. The liquor is
stored on pallets, by type and brand, in aisles in the warehouse. Approximately 42 full-
time employees and ten to fourteen casual employees work at the warehouse.
At various times, the grievor worked as a forklift operator in Shipping and
Receiving which involves loading and unloading trucks as well as in the general
warehouse where he would service the aisles by responding to the needs of the
assemblers for replenishment of stock. The assemblers pick the stock ordered by the
stores, place them on pallets and transport the pallets to the staging area for placement
into a delivery truck. A forklift operator also retrieves empty pallets, puts stock away and
maintains the aisles. In both positions, the grievor extensively used a forklift.
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On a typical day, there are approximately seven or eight forklift trucks operating
at the warehouse: two on the docks, loading and unloading trucks; four or five
maintaining the aisles; and one replenishing stock. In addition, there are approximately
fifteen electric pallet trucks, or transporters, operating which are used by the assemblers.
London warehouse Manager, William McDowell, described the forklifts used at
the London Warehouse as “state of the art.” All are electric, sit-down models, which can
lift between 3,000 to 4,000 pounds and can lift pallets up to 16 feet. According to the
instructional materials for forklift operators, “[a]n average lift truck weights over 12,000
pounds fully loaded, which is equivalent to the weight of five cars.” The forklifts have
two speed options, creep speed which moves the forklift between two to three miles per
hour and accelerated speed which moves it to a maximum of seven or eight miles per
hour. There are no speed limits. Instead, speed is a matter of judgement. All of the
machines are equipped with horns. They do not have brake lights.
Given the nature of the warehouse operations, safety is a major concern. Jim
“Tiny” Ross, a long-service employee in the bargaining unit who was recently promoted
to General Foreman, was in charge of the training of forklift operators at the warehouse
which took place in March 1997. The grievor attended this training which consisted of
both classroom and driving instruction.
Ross testified that he reviewed with the forklift operators the relevant legislation,
the principles of forklift operations and a number of safety videos during the training.
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One of the videos was presented at the hearing. It covered the dangers inherent in forklift
operations, particularly to pedestrians, and the responsibilities of the forklift operator to
ensure safety. It discussed, among other things, establishing “rules of the road” and the
importance of abiding by the rules. It discussed that there was limited space, continual
movement, and the need for caution, particularly around intersections and high traffic
areas. The courteous use of the horn and when to use the horn such as in blind
intersections, corners with stockpiles, was also discussed. At intersections, Ross advised
employees to slow down just about to a stop at the end of an aisle and to proceed with
caution.
The evidence showed that there had been some conflicting messages sent to
employees about the proper use of the horn, but it was clear that the joint Health & Safety
Committee had significantly limited the use of horns, relying instead on visual eye
contact and caution. Massa, who had been a member of the Health & Safety Committee,
was aware of the change in policy but disagreed with it. According to Ross, the majority
of employees did not regularly use the horn although some did. When he heard the horn,
however, the majority of time it was Massa and this caused a lot of irritation among his
co-workers. Ross received a lot of complaints that Massa drove too fast and used the
horn too much. Ross acknowledged that he, like Massa, had been counseled about
driving too fast.
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B. The Three-Day Suspension
On July 14, 1997, the grievor was given a three-day suspension for unsafe operation
of his forklift truck on the afternoon of June 3, 1997. The June 4, 1997 Notice of
Intended Discipline (“NOID”), which was later replaced by a June 12, 1997 NOID,
asserts that:
On June 03, 1997, at approximately 2:15 p.m. I witnessed you operating
your forklift truck at an excessive speed in the proximity of a supervisor
and a co-worker. You failed to reduce your speed and give the right of
way to pedestrians. Your actions while turning into the “B” picking aisle
forced both the supervisor and co-worker to jump out of the way to avoid
contact with the pallet load you were carrying. …
McDowell testified that on June 3, 1997, at approximately 2:00 to 2:30 p.m., he
was walking north on the east side of the building with the former manager of the
warehouse, Dennis Smedley. They were approximately at the mid-point between the B
and C aisles when Massa passed them in his loaded forklift at an accelerated speed. He
stated that Massa had scarcely passed them when he began negotiating a left-hand turn
into the B aisle. As he approached the intersection, he saw that Supervisor Ron Kestle
and warehouseman Mike Robertson were talking to each near the mouth of the aisle. He
testified that Kestle was standing on the left side of the aisle, facing north, and Robertson
was standing alongside his forklift, on the right side of the aisle facing south. The pallets
were three high, with one service pallet on the floor empty. Since each pallet is about 52
inches, the three would be approximately twelve to fourteen feet high. Instead of slowing
down or stopping, McDowell testified that Massa slowed only enough to negotiate the
turn and then proceeded through the aisle, causing Kestle to jump onto an empty skid on
the left side of the aisle and Robertson to “lunge to the right side of the aisle and grab the
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steering wheel to pull himself onto his machine.” On cross-examination, however,
McDowell acknolwedged that he did not see Robertson move. Instead, he disappeared
from his view as the forklift went through and he next saw him on his machine, holding
the wheel. He testified that Robertson then said to him, “Bill, did you see that?” which
he had. McDowell stated that Massa then turned back to look him while still driving
west and said, in his view “defiantly”, “yes, Bill, exactly what did you see?” McDowell
stated that he cautioned Massa to watch where he was driving. McDowell testified that
Robertson was visibly shaken and distraught over what happened and at about 2:30 p.m.
asked to leave for the rest of the day. He granted the request and then wrote a Health &
Safety Incident Report.
The incident report states in pertinent part, as follows:
The operator of FLT #20, Joe Massa, failed to reduce speed to fit
conditions at the east end of the “B” picking aisle. The operator sounded
his horn repeatedly and made a left turn into the left side of the aisle and
forced the Supervisor to jump out of the aisle and the operator of a parked
machine to quickly mount his fork lift truck to avoid contact.
It was marked as a “near miss”
The “statement from witnesses” section states as follows:
M. Robertson. While stopped to accept a re-assignment, I was standing in
the “B” aisle when a FLT approached with a load forcing me to jump onto
my machine to avoid being hit.
R. Kestle. While talking to M. Robertson on re-assignment to dock, I
heard a horn sound twice and suddenly noticed a FLT out of the corner of
my eye and had to hurridly (sic) step on to a MT pallet due to excessive
speed of fork machine.
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The incident report also noted that “safety talk #4/97 convened May 29/97 with
all staff on this issue. Employee named in this incident report was given a written Safety
Talk 4/97 relating to this very issue on the morning of June 3/97.” It further noted that
McDowell had “verbally counseled the employee in this matter in the past.”
Safety Talk #4/97, dated May 29, 1997, involves the “Right of Way” and states,
in pertinent part, as follows:
Forklift truck operators will:
i) Yield the right of way to all pedestrian traffic engaged in Order Picking
activities.
ii) As a rule turn into the right hand section of all aisles. Exception being
where this is not possible due to presence of order pickers.
iii) Where necessary, indicate to other traffic the intention to turn and
specify the lane to be taken.
In summary the purpose of the “talk” was to reinforce the expectation of
all Warehouse staff that forklift operators are directed to adopt the “rules
of the road” to most operating situations, enter aisles to the right of centre
as a rule and where not possible, proceed with due caution.
(emphasis in original) A copy of this memo was sent to Massa.
McDowell testified that he expected Massa to reduce speed before his turn, see
the co-workers, and toot his horn to make them aware of his presence and give them a
chance to react. In McDowell’s view, the grievor used his horn to clear the way and did
not yield the right of way.
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Jim “Tiny” Ross testified that proper procedure would have been for a forklift
operator to slow sufficiently into the turn and if he saw the employees, stop until eye
contact was made and they moved out of the way. He also stated that it was not unusual
for assemblers and vehicles to be close to the mouth of the aisle, but that, generally,
employees conversing should stand on one side of the aisle. Robertson testified that
assemblers stopped at the mouth of the aisle all the time placing or retrieving stock.
Massa acknowledged this although he was critical of the practice.
The record shows that McDowell counseled Massa about aggressive forklift
driving on April 30, 1997. The counseling log states:
8:30 a.m. Discussed with Joe that mgmt had received a number of
concerns regarding the aggressive manner in which he drives the F.L.T.
Strongly suggested to Joe to follow the established guidelines set out in
the structured FLT Training delivered in March 97.
Massa recalled that he had spoken with McDowell a “couple of times” about this,
but McDowell did not tell him who complained, just that that there were complaints that
he was driving too aggressively. He stated that he told McDowell it was not true.He
further testified that he disagreed that he drove aggressively. He was not aware that the
conversations with McDowell were recorded in a counseling log
Massa was also counseled about “aggressive driving” on May 9, 1997. The
counseling log states:
Discussed with Joe the incident of May 8th where he needlessly sounded
his horn when passing J. Henderson. Advised Joe that in the presence of
pedestrians reduced speed & increased awareness is in order, not sounding
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of horn as means to clear a path. Joe advised me that he was in
conversation with Ron K. who in fact suggested he use his horn. In
summary reinforced pedestrian right of way and extreme care be in place
versus a long & pronounced sounding of the horn.
Massa recalled a conversation with McDowell about this incident but was not aware that
it had been recorded in the log.
Kestle testified that he was in B aisle reassigning Robertson to the shipping area
when he heard a horn two or three times, then looked and saw a forklift coming around
the corner “fairly fast.” To get out of the way, he jumped onto a pallet and saw
Robertson jump onto his machine. He felt that he was in jeopardy of being hit. As the
forklift passed, he saw McDowell and Smedley at the end of the B aisle and Robertson
yelled to McDowell “did you see that?” McDowell yelled to Massa to slow down, that
he was going too fast, and Massa turned to look at McDowell and said something which
he did not hear. McDowell told Massa to “watch where he was going.” In Kestle’s view,
Massa was driving too fast for the situation, coming around the corner. He viewed it as
“fairly serious given how much room” there was and that he had to jump out of the way.
Mike Robertson, a union steward and member of the Joint Health & Safety
Committee, testified that he was standing next to his machine talking to Kestle who was
approximately two to three feet away from him when he heard a horn blast and noticed a
forklift coming up turning into the aisle at a speed faster than he thought it should. He
then heard several horn blasts to indicate that the forklift was coming through and he
jumped onto his machine, grabbed the handlebars and swung himself into the seat. He
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stated that he pulled his left foot in just as the forklift went by him and saw Kestle jump
onto a skid on the other side. He noticed McDowell and Smedley in view and yelled
“Bill, did you see that?” and then Massa, said “yeah Bill, did you see that?” McDowell
told Joe to turn around and watch where he was going.
Robertson testified that as a result of the incident, his nerves were shot, his hands
were shaking and he could not stay at work. He went home and wrote a memo to
Manager McDowell about what occurred. He felt that if he had not jumped, or if he had
slipped, he could have been crushed between two forktrucks. He did not require or seek
medical attention.
The memo to McDowell outlined, from Robertson’s perspective, what occurred
on June 3rd and is consistent with his testimony at the hearing. In it, he also complained
that a similar near-miss had occurred one week before, that he had previously written to
management that he was “scared for my safety and my concern for others safety because
Management could not handle Joe Massa’s aggressive and violent manner.” It was
Robertson’s view that the incident on June 3, 1997 was intentional and a result of
Massa’s learning about the earlier incident report. He conveyed this view both verbally
and in writing to Manager McDowell and also called the police to investigate. The police
did investigate, questioning Robertson, Kestle and Massa, but no charges against Massa
were laid. The incidents and concerns expressed by Robertson to management in the
memo had not been the subject of discipline and the three-day suspension imposed on
Massa was not based on these earlier events.
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On June 6, 1997, Massa responded to the June 4, 1997 NOID. The same response
was later resubmitted in response to the June 12th NOID. In that response, Massa stated,
in part, as follows:
Since my return to restricted duties on a forktruck both in April and June, I
have reduced the speed at which I drive by at least one third. … Also, at
our meeting of April 29 regarding safety issues you told me there was a
complaint made by a fellow employee regarding my driving, though you
wouldn’t name the employee or specific incident related. I assured you
then that I would drop my speed even more. The workload and constant
calls for drops and complaints by assemblers for having to wait too long
for service in my aisles, should show that I have reduced my driving speed
considerably. I believe most of the employees would agree if surveyed,
especially Tiny Ross, the forklift driving instructor, with whom I have had
regular discussions with concerning forktruck driving overall and my
restricted duties while driving. When I drove by you at Dock 6, I was
already at a reduced speed. Before I reached the B aisle I tooted my horn
and slowed down even more and then proceeded down the left centre side
of the aisle tooting my horn twice as I proceeded through. Mike’s
forktruck prohibited me from going down the right side (parked in front of
B2) of the aisle. Mike and Ron were on the left of the aisle with still
plenty of room for me to go through. I tooted my horn twice as I
proceeded through. I tooted my horn twice going through so to let the
pedestrians know that I was getting closer and to be aware; a practice that
has come under scrutiny by you in the past, most recently on May 8
involving Jeff Henderson where you told me not to use my horn when
passing him while he was working. As I told you then, and am telling you
now, I would use my horn again if I felt it was needed. After I reached
about ten yards passed Mike and Ron I hear Mike yell “did you see that?”
I stopped my machine and backed up to near where Ron was standing and
Mike being on his forktruck. I asked, “did you see what?” and Ron
replied “you may have been going a little fast.” I replied, “I’m going too
fast eh?” I shook my head, didn’t say anything else and proceeded at
creep speed when driving away, when I believe you said something about
watching where I was going. I believe it was in reference to turning back
to hear you made a statement to me. … Being a certified member of the
W.H.S.A., I believe I was in no violation of any safety rules.
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Massa’s view of what occurred was entirely different from that of McDowell,
Robertson and Kestle. He testified that he picked up a pallet of coolers at Dock 5, near G
aisle, to transport it to B 148, although that was “a guess”. He proceeded north, past the
shipping office, where he saw McDowell and Smedley talking to a forklift operator at
Dock 6. He thought he was “probably at high speed when he reached them”, although in
his response to the NOID he stated that he was “already at a reduced speed.”
As he headed to B aisle, he stated that he honked his horn a “couple of times”,
“say 35 feet” from where Kestle and Robertson were. The first time would have been by
the shipping office, though he had no actual recollection of it. He testified that he honked
his horn because he knew they were there from before, and because it was all “wide-
open”, the pallets were not stocked three high. He then stated that he first beeped his horn
just as he started his turn and, at the time, could see Kestle and Robertson. In fact, he
thought he could “probably see them right from Dock 5.” When asked on examination-in-
chief where he actually did first see them, he replied “the way I drive, probably between
docks 6 and 5” but then acknowledged that he could not recall when he first set eyes on
them although he had “no doubt” that he saw them at the time. On cross-examination, he
acknowledged that as he was driving to B aisle, he “was not looking that far ahead.”
When asked how many times he honked the horn, he replied “probably twice; I
would honk till I got their attention, for sure.” After that, he testified that “I would slow
down and just before I enter the aisle, honk again.” When asked what Kestle and
Robertson did, he first replied that Kestle stepped onto an empty pallet and Roberston
13
backed up toward his machine and got totally out of the way. Later, on cross-
examination, he stated that as he went through, he was looking at Kestle and he
“believe[d] Mike backed up.” That is “what I thought”, that he was “backing up to his
machine.” He then added, “now that I think about it, he might have had his hand on the
steering wheel.” Sometime later, he testified that Robertson was leaning against machine
at the time he passed or standing by his machine, “something like that.” In his view,
Robertson had “so much time to just move away. If he got onto his machine, where is the
danger?” When pressed, he stated that he “just recall him going to the right”, that “he
wasn’t on his machine”, although in his June 6 response to the NOID, he wrote that
Robertson was on his machine. He was not sure which was correct and when pushed,
stated that his memory was better at the hearing than a few days after the incident.
Again, his “eye was on Kestle” who was facing northeast. He “believed” Kestle had one
leg on the pallet; he “might have had one foot on the pallet”; he did not remember;
although later he stated that Kestle had “one foot high on a pallet.” Finally, he stated that
“Kestle stepped onto a skid” but he was “not sure what Mike did.”
In terms of speed, he stated that he was travelling “a little quicker than creep
speed” at the time, although he later said it was “regular speed.” In his view, the situation
was nothing special; “they just moved.” He went past them and as he got to the next pillar
or maybe less, he heard Robertson say, “wow, did you see that?” Massa testified that he
slowed, stopped his forklift and saw Robertson laughing with a “grin from ear to ear”,
something which was not put to Robertson or Kestle. On cross-examination, Massa
testified that he made eye contact with Robertson after he honked, although he could not
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recall where Robertson was at the time. He stated: “I’m thinking – left of centre of the
aisle. I would have made eye contact before I got into the aisle.” This also was not put to
Robertson.
Massa stated after he heard Robertson ask, “did you see that?” he then said to
Kestle “did you see what?” and Kestle said, “you may have been going too fast” to which
he just shook his head and drove away. Kestle did not recall saying anything to Massa.
Later, Massa was asked if he backed up his forklift to speak to Kestle, as he stated in his
June 6 response, and replied “now that I keep thinking about it, I think I did back up.”
Massa then testified that McDowell appeared and Robertson said to him “did you
see that?” but he could not hear McDowell’s response. Massa said that he was moving
slowly, looking backward, and McDowell told him to watch where he was going and he
drove away.
Massa completely disagreed with the description of what occurred by McDowell,
Robertson and Kestle. In his view, McDowell could not have seen the incident as he was
standing at Dock 6 when he passed him. He also felt that he would have lost his load if he
had done what they said. In his view, if there was a problem, he could have stopped,
although he may have lost his load. In his view, there was “plenty of room” for him to
pass. His response to McDowell’s assertion that he improperly demanded the right of
way was “it’s ridiculous; he’s mistaken.” He was not going too fast, “never.” The
accusation was a set-up to get rid of him. In his view, it was “too incredible” to believe
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that Robertson had to jump onto his machine, that would be like him “leaping onto tall
buildings.” It was simply “not possible” and “ridiculous” that he was driving too fast or
too aggressively.
After the incident, Massa was off work on stress leave until mid-July 1997. When
he returned to work, he was given a letter of discipline dated July 14, 1997. In that letter,
McDowell refuted a number of the points raised by Massa in his June 6, 1997 reply to the
NOID. That letter states, in part, as follows:
In review of the points made in your response:
The assertion that the forklift instructor will support your position that you
are indeed driving more slowly cannot be substantiated.
The statement that you drove by me at a reduced speed is absolutely not
the case. Your selection of speed at that time and well into your left turn
into “B” Aisle was excessive, and in fact reckless given the degree of
activity at the east end of “B” aisle.
The statement that you sounded your horn prior to the turn and again in
the midst of the turn is not correct. Your first use of the horn was during
the completion of your turn, and in fact was not a cautionary type or
prudent use of the horn but a prolonged unsettling blast. This act forced
two (2) co-workers to quickly move to avoid contact with the pallet load
you were transporting.
Your description of the area in question is generally correct. The forklift
truck of M. Robertson was parked to the right side of the aisle, however,
the location of R. Kestle and M. Robertson is not correct. Both parties in
fact were not on the left side of the aisle, as you assert, they were in fact
discussing a re-assignment across the aisle from one another. There in
fact was not “plenty” of room for you to proceed through, particularly at
the speed you selected.
Your assertion that I wish to restrict your use of the horn is misleading.
Discussions on this issue have re-enforced but one point, that the horn is to
be used to draw attention to your presence when among pedestrians. Not
to be used a method to demand right of way or to gain, unreasonably,
access to a common work area. In the example you cite, Mr. Henderson
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was in fact on the opposite side of the aisle with his pallet ricck
phyidcaloly between himself and you. You were specifically counseled
that with his back to you a reduction in speed through the area would have
been more appropriate than a prolonged blast of the horn, which as you
will recall startled the worker in question unnecessarily.
In summary you have failed to provide any reasonable explanation of your
actions or an accurate accounting of the incident in question.
We can only conclude that your actions in this matter were both reckless
and ill conceived. As your actions contravened both established operating
protocol and specific operator training guidelines discipline is warranted.
The discipline to be imposed in this case is:
a) A suspension without pay for a period of three (3) working days: July
15 to 17 inclusive;
b) A structured review of all operating guidelines associated with fork lift
operations with instructor J.A. Ross; and
c) A ten (10) day restriction from operating powered material handling
equipment, effective Friday, July 18, 1997.
Please be advised that the LCBO treats the issue of workplace safety as its first
priority. Future infractions of such a flagrant nature with respect to health and
safety or any other actions requiring discipline will attract a more severe response
from management up to and including dismissal.
McDowell, in this letter, did not refute Massa’s placement of him at Dock 6 as he
passed him, but stated at the hearing that it was not true. He testified that he was
significantly past Dock 6 at the time. He also testified that he discussed Massa’s speed
with instructor Tiny Ross, but Ross had no recollection of that and Ross stated that, if
asked, he would have said that Massa had slowed down.
1. Relationships
McDowell became manager of the London warehouse in May 1995, and for
approximately the first year, he felt that Massa was “the most capable warehousemen in
17
the building and probably the most knowledgeable.” When he worked in Shipping and
Receiving, he did a “heck of a job.” That perception, however, changed in February
1996, after a settlement was reached concerning some thirty or forty grievances. The
settlement reinstated the seniority Massa had lost as a result of a prior termination. As a
result, his seniority increased in relation to several other employees, although not in
relation to Robertson or Kestle. Nor did it increase relative to the employees involved in
the subsequent incidents, Jeff Henderson, Ron Geisbrecht or Mark Walker. In
McDowell’s view, Massa became more demanding as to his seniority entitlements, to the
point of belligerence, and became far less approachable. He wanted everything
documented, with I’s dotted and T’s crossed. In McDowell’s opinion, Massa became
belligerent, very difficult to approach, and very difficult to dialogue with; he would not
listen and was nearly impossible to coach. None of this, however, was to the point
discipline. He acknowledged that they were “not on the best of terms.” He viewed him
as a “problem employee”, and that “towards the end”, he did not give Massa the benefit
of the doubt.
Massa clearly lost trust in McDowell as well. After the June 3, 1997 incident, he
contacted a Justice of the Peace in order to have McDowell charged. He told the Justice
of the Peace what was going on at work in the last few years, but was told that a specific
threat would have to be made to pursue it. In Massa’s view, McDowell could not take all
the complaints his co-workers were making about him after he received the additional
seniority and it was simply easier to get rid of him.
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When asked on cross-examination if Massa was the target of harassment by other
employees, McDowell responded that he thought it was a “mutual thing” that Massa
“gave as good as he got.” McDowell was aware that Massa alleged that employees were
harassing him, including Mike Robertson, Jeff Henderson, Ron Geisbrecht, and Greg
Stanley.
In September 1997, McDowell found a newspaper article, entitled “Honesty
needed to face drug problem” which had been modified to refer to Massa posted on the
main floor bulletin board. He took it down but did not further investigate it on the advice
of Patrick Houlihan, Human Resources Manager for the Southwest Region, who advised
him that such an investigation would be fruitless. This was denied by Houlihan, who
testified that he did not suggest that the matter not be investigated although agreed that he
may have told McDowell that an investigation was unlikely to determine who posted the
article.
Tiny Ross, who stated that he “got along” with Massa, testified that he was aware
of a lot of complaints by employees that Massa drove too fast and used his horn too
much. He was not aware of employees trying to get Massa to lose his temper, although
he saw a comment written about Massa’s wife, who is aboriginal, on his locker. Ross
testified that Massa grieved this and management investigated the matter. Someone from
management came from Toronto to discuss the harassment policy. Exactly when this
occurred is not clear in the record.
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Robertson characterized his relationship with Massa during the summer and fall
of 1997 as “volatile” although at one time they were friends and he served as his union
steward. For some period, however, they were not on speaking terms. Massa testified
that in his view, Robertson was getting a lot of flak from other employees for
representing him in his grievances and it got to him.
According to Massa, he had no problems with Kestle in June 1997, although there
had been earlier ones. Kestle testified that in May 1996, he was playing pool at a pool
hall in a tournament organized by Mike Robertson for employees at work. The event was
posted on the bulletin board at work and employees who wanted to play signed up. Kestle
stated that he signed up for it and was playing with Robertson when Massa came in,
walked right up to him and called him, repeatedly, a “fucking asshole” and a “piece of
shit.” He stated that Robertson intervened coming between him and Massa, and told
Massa that he was not causing any trouble at this social function and that if he wanted
trouble he would accommodate him outside. Massa, he testified, continued to call him a
“fucking piece of shit” and Robertson told him to get out and Joe then said, “I’ll be back
later” and left. Kestle testified that he had given Massa a letter of counseling two days
earlier and that Massa was upset about it.
As a result of this incident, Kestle contacted the police because it was not the first
time he had been threatened by Massa. There was an earlier incident in 1991. Kestle had
given him a warning letter for smoking at work and a day and a half later, he stated that
Massa drove up to him, stopping abruptly, leaned over his machine and pointed his finger
20
at him and said “you’re going to die”, “one of these days you’re going to die.” He stated
that Massa was disciplined as a result.
In regard to the pool hall incident, Massa testified that he was invited to play by
Robertson but declined because Kestle was to be there. He did not want to go because
Kestle had written him up. But the day before the tournament, Robertson called him and
told him that Kestle had cancelled out, so Massa told him he might drop by. Robertson
denied this. Massa stated that when he walked in, Kestle approached him and was
sarcastic, they had words, and Robertson intervened and threatened to take him outside if
he wanted a fight, then asked him to leave. He stated that it was “not [Robertson’s] fight
or argument.” He had “words” to say to Kestle, he said them and that was it. He then
went to have a beer where Tiny Ross advised him to “cool off.” Ross was not asked about
this incident.
As to the incident in 1991, Massa was asked on examination-in-chief if he told
Kestle that he was “going to die one of these days.” He initially responded that he “said
something along those lines” and that he was disciplined for it, but later denied doing so.
Peter Deely, a warehouseman 4, testified on behalf of the Union. In his view,
Robertson did not directly try to “push Joe’s buttons”, but he “collaborated” with those
who did even though he was a union steward and member of the Health & Safety
Committee. Deely felt that others, particularly Jeff Henderson and Ron Geisbrecht, did
not get along with Massa, that they had a personality clash, and they would go out of
21
their way to get Massa aggravated. At times, in his view, they succeeded. He felt that
Massa was a competent, fast forklift driver who would “push the truck as fast as it could
go whenever he could.” He was aware of complaints by Henderson, Robertson and
Geisbrecht about the speed Massa drove his forklift, but it was his belief, even though the
complaints were valid, that it was their way of getting back of Massa for the conflicts
they had. In his view, everyone drove fast. On cross-examination, Deely stated that
Massa had difficulty with other employees, not just Henderson, Geisbrecht and
Robertson. In his view, Massa was short-fused and would get heated at work.
2. Positions of the Parties
The Employer asserts that it presented clear and cogent evidence that the grievor
improperly drove his forklift on June 3, 1997 as he entered the B aisle, endangering two
co-workers. It submits that the testimony of McDowell, Robertson and Kestle should be
credited over the denials of the grievor. All three, it argues, testified that Kestle and
Robertson quickly had to jump out of the way as Massa entered the aisle, going fast,
resulting in a near miss. It submits that Massa used his horn to clear a path instead of
giving the pedestrians the right of way as required.
The employer urges me to rely on the test for credibility set out in Faryna v.
Chorny [1952] 2 DLR 344 (B.C.C.A.). It submits that under that standard, the testimony
of McDowell, Kestle and Robertson was not only consistent but far more plausible than
the version of events described by the grievor. It submits that Massa’s testimony that he
was traveling at creep speed is patently implausible since both Kestle and Robertson were
22
required to jump out of the way to avoid being struck. It further argues that Massa’s
version of events changed and that he believed his memory was better at the hearing than
shortly after the incident, a situation which is most unlikely as found in AFG Industries
Ltd. and United Steeelworkers of America, Local 295 (unreported, July 9, 1998)
(Charney).
In the employer’s view, the three-day suspension and related discipline was fully
justified. It argues that the grievor’s actions constitute serious misconduct given the
importance of safety in the workplace. It points out that Massa was an experienced
forklift operator who knew what was expected but simply chose not to follow the rules.
In support of its contentions, the Employer relies on Re Chrysler Canada Ltd. and
Canadian Autoworkers, Local 1285 (1997), 68 L.A.C. (4th) 252 (Kennedy) and Re
Summit Logistics Inc. and Retail Wholesale Union, Local 580 (1998), 72 L.A.C. (4th) 289
(Kelleher).
The Union asserts that no discipline was warranted. It submits that the evidence
established that the grievor was not driving his forklift dangerously, nor that he misused
the horn. It contends that the board cannot credit Robertson, Kestle or McDowell in light
of their antipathy towards the grievor.
The Union submits that Robertson cannot be credited. It argues that there was a
group of employees, including Robertson, who acted like bullies in a schoolyard with
Massa as their victim. This was demonstrated, it submits, by the posting of the altered
23
newspaper article and numerous other instances of harassment. It submits that the
employer allowed a poisoned work environment to exist to the detriment of the grievor.
It further submits that McDowell is not credible because he made things up in his
testimony, such as talking to Ross about the grievor’s driving and following orders from
Houlihan not to investigate the newspaper article. It argues that there were internal
inconsistencies in McDowell’s testimony as well as inconsistencies with other witnesses.
It points out that in the letter of discipline McDowell did not refute that he was at Dock 6
when Massa passed him and suggests that this was not an oversight. Instead, it submits
that McDowell was, in fact, at Dock 6 and could not see what occurred in the B aisle. It
notes that former manager Smedly could have been, but was not, called to testify about
McDowell’s actual location. The Union further argues that McDowell admitted that he
did not give the benefit of the doubt to Massa, but accepted Robertson’s and Kestle’s
statements despite knowing about their animosity towards Massa.
Kestle, in the Union’s view, merely stated that Massa was driving too fast, but not
recklessly. In its submission, the incident was blown out of all reasonable proportion.
The Union further submits that Massa was the only person disciplined for
improper use of the horn, and points out that no discipline was imposed on either
Robertson or Kestle despite the fact that they were standing in the aisle improperly. It
submits that the way the grievor drove his forklift was no different than others who were
not disciplined.
24
3. Decision
Based on my review of all of the evidence, I conclude, on the balance of
probabilities, that the grievor improperly operated his forklift entering the B aisle on June
3, 1997. I conclude that he failed to give the right of way to the two workers present or
operate his forklift with due caution.
Counsel for both parties urged me to apply the test for credibility outlined by the
British Columbia Court of Appeal decision in Faryna v. Chorny, supra, at pp. 356-7:
If a trial judge’s finding of credibility is to depend solely on which
person he thinks made the better appearance of sincerity in the witness
box, we are left with a purely arbitrary finding and justice would then
depend upon the best actors in the witness box. On reflection it becomes
almost axiomatic that the appearance of telling the truth is but one of the
elements that enter into the credibility of the evidence of a witness.
Opportunities for knowledge, powers of observation, judgment and
memory, ability to describe clearly what he has seen and heard, as well as
other factors, combine to produce what is called credibility. .. A witness
by his manner may create a very unfavourable impression of his
truthfulness upon the trial Judge, and yet the surrounding circumstances in
the case may point decisively to the conclusion that is actually telling the
truth. I am not referring to the comparatively infrequent cases in which a
witness is caught in a clumsy lie.
The credibility of interested witnesses, particularly in cases of conflict
of evidence, cannot be gauged solely by the test of whether the personal
demeanor of the particular witness carried conviction of the truth. The test
must reasonably subject his story to an examination of its consistency with
the probabilities that surround the currently existing conditions. In short,
the real test of the truth of the story of a witness in such a case must be its
harmony with the preponderance of the probabilities which a practical and
informed person would readily recognize as reasonable in that place and in
those conditions.
Based on this standard, which I find appropriate to apply, I credit the testimony of
McDowell, Kestle and Robertson over the testimony of the grievor. The testimony of
McDowell, Kestle and Robertson firmly support the conclusion that Massa caused a
25
“near miss” as he turned into the B aisle. All stated that Massa was going too fast as he
turned and that he did not sufficiently slow down as he entered the aisle. All stated that
Robertson had to jump onto his forklift and Kestle onto a pallet. Both employees feared
being hit. All three were eyewitnesses to the incident and clearly and consistently
described what occurred. Their testimony contains far too many similarities to have been
fabricated unless there was a conspiracy among them. Although there was evidence of ill
feeling toward Massa, there was no evidence of a conspiracy. Their testimony, in my
view, was internally consistent and in accordance with the preponderance of
probabilities.
The differences in the testimony of McDowell, Kestle and Robertson were
relatively minor – how far into the B aisle they were, how many times Massa sounded the
horn. In all key respects, however, their testimony was consistent. The consistency of
their testimony, moreover, stands in sharp contrast with the shifting recollection of the
grievor. Massa’s recollection of what occurred repeatedly changed throughout his
testimony. He confused what he normally would have done with what he “thought”
happened and what actually occurred. There were also differences in his testimony at the
hearing and his response to the NOID. His recollection, in his view, improved with the
passage of time which is most unlikely. AFG Industries Ltd. and United Steelworkers of
America, supra. The entirety of his testimony, which is reviewed in detail above, leads
me to question his perception of the event and his recollection of what occurred.
26
Massa’s changes in recollection, moreover, concern critical aspects of the event,
including the speed at which he was travelling and made the turn, and what he saw Kestle
and Robertson do. He testified that he was going at “high speed” as he passed McDowell
but in his response to the NOID stated that he was “already at reduced speed when he
passed” McDowell. For his turn, he alternately stated that he was at “creep” and
“regular” speed. What he saw Kestle, and particularly Robertson, do as he entered the B
aisle also repeatedly changed. These are key points and Massa’s changing recollection
leads me to favour the consistent testimony of McDowell, Robertson and Kestle over that
of the grievor. The grievor’s account was, in my view, both inconsistent and improbable.
I further conclude that the discipline imposed, a three-day suspension, a training
review and a requirement to be off powered machinery for ten days, was appropriate even
though there had been no prior discipline. There was substantial evidence of the
importance of safety in the warehouse and the danger posed by forklifts and transporters.
Massa’s actions on June 3, 1997 jeopardized the safety of both Robertson and Kestle and
justified a disciplinary response. Re Chrysler Canada Ltd. and CAW, Local 1285, supra;
Re Summit Logistics Inc. and Retail Wholesale Union, Local 580, supra.
The evidence established that the grievor had two prior counselings regarding
aggressive driving and was clearly on notice to reduce speed and proceed with due
caution. On May 9, 1997, less than month before the incident in question, he was
specifically advised by McDowell that “in the presence of pedestrians reduced speed and
increased awareness is in order” and to use “extreme care.” He was an experienced
27
forklift operator, well aware of the employer’s expectations. In his view, he had reduced
his speed. He may well have done so, as confirmed by Tiny Ross, but on this occasion,
on the balance of probabilities, he did not slow down and he failed to operate his forklift
in a safe manner. As a result, I conclude that the employer had just cause to impose the
three-day suspension and related discipline.
Finally, there was insufficient evidence that others were not disciplined for a like
offense. The grievor was not disciplined for his use of the horn, but for driving the
forklift in an unsafe manner.
C. The Ten-Day Suspension
On October 27, 1997, the grievor was given a ten-day suspension for two
incidents. The first one occurred on September 15, 1997, and alleges that Massa
threatened and intimidated a co-worker, Jeff Henderson, in the workplace. The second
occurred on September 30, 1997, and alleges that Massa operated his forklift in a reckless
operation of a forklift, endangering a co-worker, Mark Walker.
1. The September 15, 1997 incident.
The September 16, 1997 NOID states, in pertinent part:
On the morning of September 15, 1997, we received a complaint from a
co-worker alleging that you engaged him and used abusive and threatening
behaviour.
Jeff Henderson, a Warehouseman 3 at the London Warehouse, testified that on
September 15, 1997, he was assembling orders for various stores. He stated that just
28
before the first break in the morning, he came across an area that needed more stock so he
called on the public address (PA) system for more stock, and continued to assemble his
order. The evidence established that “calling for drops” on the PA is a regular practice
and is how assemblers convey product needs to the forklift operators. About five minutes
later, after he finished the rest of the order, he called on the PA a second time, this time
using Massa’s name to get his attention. Specifically, Henderson stated that he said: “Joe
Massa, I need a drop in E aisle, Edward 14. Joe Massa, drop in E aisle. Please, Edward
14.” He testified that this was not unusual, that it was common practice to use a forklift
operator’s name on the PA and that he had done it with every other forklift operator in
the warehouse. The stock was still not forthcoming and as it was very close to his break
he went to complain to Supervisor Kestle and Acting Foreperson Don Harris. He let them
know that he was unhappy with the speed of the drops, that it was an ongoing problem
and that it was their responsibility to rectify the situation. Kestle and Harris assured him
that they would speak to Massa and try to straighten the situation out.
After the break, Henderson went back to the same location with another skid to
complete the order. He overheard Kestle and Harris talking to Massa, who raised his
voice and claimed harassment.
A short time later, Henderson testified that he was in G aisle, reviewing his order,
when he looked up and noticed Massa sitting on his machine with his baseball cap pulled
low. He stated that Massa said, “don’t abuse my name on the PA anymore.” He testified
that he was dumbfounded and had no idea what Massa was referring to. He then said,
29
“excuse me?” Massa repeated himself, loudly, angrily, leaning off the truck and shaking
his finger at him. Henderson stated that he then asked Massa “what are you talking about
Joe?” Massa replied, “isn’t your his ass already in enough hot water.” Henderson stated
that he again asked, “what are you talking about” and Massa repeated what he had said
and added “not to push it with him” to which Henderson responded “do whatever you
have to do.” Massa then drove away and Henderson noticed co-worker Ron Geisbrecht
about 15 to 20 feet away. He asked Geisbrecht, “did you see that?” and he said “yeah,
what was that all about it?” Henderson told him he did not know but he was not going to
put up with any more “nonsense” from Massa. He then went to the office to report the
incident to Kestle and McDowell.
That same day Henderson provided a written statement, which comports with his
testimony. It also added the following: “This is only one in many run-ins that I and
others have had with Joe Massa over the past several years. I am tired of being
threatened & prevented from doing my job by this individual.”
Henderson testified that he was not on speaking terms with Massa at this time and
tried to stay as far from Massa as he could. An earlier problem arose in November 1996
after Massa requested, through a supervisor, that he write larger on the skids. He did that
and then asked Massa, who was with Robertson at the time, “is that all right?” and Massa
“flew off the handle”, yelling and swearing at him. Henderson got off his machine and
asked Massa what the problem was and Massa swore at him again, called him a “fucking
asshole” and that he would not put up with his bullshit. Henderson replied “why don’t
30
you try and be a man?” On cross-examination, Henderson admitted that he also rubbed
eyes as if brushing away tears as Massa left, doing that as a parting shot to let him know
he was acting like a baby. Later, Henderson was called to the office to determine if he
threatened Massa, as Massa had alleged. Both he and Robertson denied that he did and no
discipline resulted. It was at that point, he stated, that he decided to stay away from
Massa.
Another incident occurred in the spring or winter of 1997. Henderson stated that
Massa pushed him as he was going out the door. Again, no discipline resulted.
Later in the day on September 15, 1997, Henderson was contacted by a police
officer at work. Massa had alleged that Henderson had threatened to “break his head or
face”. Henderson was interviewed, along with Geisbrecht. No charges were filed,
although the police officer informed him that Massa planned to contact a justice of the
peace about pursuing the matter. Massa did pursue the matter with a justice of the peace.
In mid-October 1997, Henderson was subpoenaed in connection with that and retained a
criminal lawyer. The matter was dismissed when the Crown refused to prosecute.
Henderson acknowledged that he was angry and upset with Massa over this.
In January 1998, Henderson resigned from the LCBO, in large part blaming
“harassment and intimidation” by Massa and management’s delay in dealing with him as
the reason.
31
Henderson testified that he was not physically worried about what occurred with
Massa on September 15, 1997. Instead, he stated that he was worried about a repeat of
the type of false allegations that took place in November 1996. He had “no idea what
Massa was capable of.” He also found Massa’s gestures and words intimidating and
threatening.
Ron Geisbrecht, an assembler at the London warehouse, testified that on
September 15, 1997, he heard Henderson call for a drop in the E aisle. Then, a little later
on, heard Henderson call again, “Joe Massa, can I have a drop in the E aisle.” He
estimated that there was approximately 10 minutes between the calls. A little later on, he
was in G aisle assembling when Massa came down and “confronted Jeff.” He did not
hear what was said at first, and then Massa said, loudly, “now your ass is gonna be in hot
water” to which Henderson replied, “well, do what you got to do.” Massa then drove
away. In his view, neither Massa nor Henderson appeared threatened by the exchange.
Geisbrecht's verbal statement that morning, which was reduced to writing, states,
in pertinent part, as follows:
I hear Jeff call for a drop in “E” aisle, typically – drop in “E” aisle – E130.
Moments later heard Jeff repeat call, this time calling “Joe Massa drop
please at E130, that’s E 130.”
…
Some 20 – 30 minutes later, while in “G” aisle, I witnessed Joe driving
down to where Jeff was working. I was some 6-8 feet away and heard Joe
in a loud voice tell Jeff “I am going to have your ass in hot water” and
then heard Jeff say for him to “do what you have got to do.”
Neither employee appeared threatened by the exchange. Joe was talking
in a very loud manner.
32
Geisbrecht acknowledged that he and Henderson were friends.
Don Harris, a Clerk 5 Stock Coordinator and, at times, Acting General
Foreperson, testified that on September 15, 1997, Henderson came into the General
Foreman’s office insisting that he do something about the lack of drops he was
experiencing on the floor. Henderson stated that he had called several times for a
particular dorp and that Massa was ignoring him. As a result, Harris, along with
Supervisor Kestle, decided to speak to Massa about this. Harris accepted Henderson’s
view that Massa was slow in responding to his calls since, in his view, Henderson was
not prone to complain and he had no reason to doubt him.
During their meeting with Massa, Harris stated that Kestle did the talking. He
stated that Kestle asked Massa, in a professional manner, to make sure that he paid more
attention to the PA and made the drops called for. Massa responded that he had a hearing
impairment. Kestle told him to listen more closely and Massa claimed harassment. In
Harris’s view, there was no harassment but only a polite request. He recorded the
discussion because, in his experience with Massa, it was necessary to have written
documentation because things changed when he told them to other people. He was not
aware before this that Massa had a hearing impairment.
According to Kestle, he had received “a lot of heat” from Henderson and
Geisbrecht about not getting timely drops from Massa. When Henderson complained
again on September 15, 1997, Kestle spoke to McDowell about it and was directed, along
33
with Harris, to speak to Massa about the importance of getting the drops done. Kestle
testified that he told Massa, “in a nice way”, that he had to pay closer attention to the PA
and make the drops, that the drops were more important than putting the stock away and
that “when these guys call kindly give them their drops.” He stated that Massa told him
that he had trouble hearing the PA because his truck was noisy and he told Massa to have
it checked out. He confirmed that the forklift was noisy. Massa told Kestle that he would
be filing a grievance because Kestle was harassing him. Kestle testified that he was not
aware, before this, that Massa had a hearing problem.
Massa’s explanation of what occurred differs substantially. He stated that
September 15 was a very busy day with a lot of stock coming in. He heard Henderson
request a drop and stopped to listen but could not hear it. He stated a “number of the
speakers don’t work well” and if a forklift operator was moving on his machine, he could
not hear the call. In his view, this was “not just me, but everyone.” Massa stated that a
couple of minutes later, he heard the call for a drop again and that he went there within
the next couple of minutes. As he got there, Henderson was driving away, cursing at
him. He ignored it and made the drop. He was on his way to Kestle to complain about
Henderson’s actions when Don Harris and Kestle came out to see him. Massa asked
Kestle if he had heard what Henderson said on the PA to which Kestle responded “no”
but that Henderson had just complained about him. Massa stated that Kestle insisted that
he should listen more carefully to the PA. Massa then said that he was “getting irritated.”
He told them that he listens as carefully as he can. Kestle then asked him whether he had
followed procedure and complained to Henderson and Massa responded, “no, I’ll do that”
34
and drove over to speak to Henderson. He stated that this was the required procedure
regarding harassment. One had to approach the person, let them know how you felt and
then report it to management if the matter was not corrected. This direction to confront
Henderson was not confirmed by either Kestle or Harris. Kestle was not asked about it.
Harris, on cross-examination, was asked whether, at the end of the discussion, Massa
indicated where he was going or indicated that he was going to speak to Henderson, and
his response was “not that I recall.”
Massa testified that he pulled up to Henderson in the G aisle and told him, “Jeff, I
don’t like you abusing me, harassing me on the PA system.” Massa stated that he felt that
Henderson was trying to show him up. He stated that Henderson said, “what are you
going to do about it?” Massa told him that he would grieve it, and Henderson replied
“get the fuck out of here or I’ll break or smash your face.” Massa then drove away,
saying, “isn’t your ass in enough hot water as it is?” Massa denied pointing his finger at
him, raising his voice, or saying the words “not to push it with me.” He said “I don’t
think I made that statement.” In his view, Henderson was a “bully” who “thinks he is the
only one to overachieve there.” Massa did not like to be bullied by him, especially on the
PA system. When asked how Henderson had abused him on the PA, Massa stated that
Henderson had complained about the number of times he had to call, that this was the
“third time, like that.” He was upset about the fact that he called his name on the PA, and
the way he said it. In his view, it was “rude” and Henderson had “no right to talk to me
in that manner.” Massa stated that his aisles were the best in the warehouse. He did not
like to be called for drops because it “looks like I’m not doing my job.” Later, he called
35
the police about Henderson’s threat. The matter was investigated and no charges were
laid.
On cross-examination, Massa acknowledged that he was upset which was why he
went over to Henderson. At first, he denied that he was angry, then admitted that he was
“pissed off” although he did not lose his temper. He acknowledged that he was in a very
bad mood, and had been up all the prior night with a headache.
The next day, on September 16, 1997, McDowell met with Massa, along with
Union Representative Moody to discuss what occurred. Massa explained his version of
the event, which involved Henderson threatening him. Later that day, the NOID was
issued, requesting a written reply within three days. Union Representative Don
McDermott later told McDowell that there would be no written reply to the NOID.
No discipline was issued to Massa on this matter until October 27, 1997, even
though the grievor was present at work from September 16 through September 30.
2. Incident of September 30, 1997
On October 20, 1997, the grievor was sent a NOID that states, in part, as follows:
On the morning of September 30, 1997, at approximately 10:45 a.m., it is
alleged that you operated your forklift truck in an unsafe manner,
endangering a fellow worker. The allegation asserts that you carelessly
operated your forklift truck at the intersection of the “E” picking Aisle and
the main north/south corridor, failing to yield the right of way to an order
picking staff member, causing him to swerve out of our path to avoid
being hit.
36
Mark Walker, a warehouseman 4, testified on examination-in-chief, that he was
driving a loaded transporter past the shipping office heading south, “cruising at a good
speed”, when he came to the E aisle. He heard a horn, saw a forklift truck was exiting
and he veered to the left to avoid a collision. He proceeded on his way. He testified that
he had no recollection of what Massa, who was driving the forklift, did or whether he
stopped or not. Later, he spoke with Jeff Henderson and one of them may have said that it
“might have been a close one.” Later, an incident report was filed and he was called in to
state what had happened. He testified that he “wrote what happened at the time.”
The incident report states, in Walker’s writing and signature:
Driving south at shipping when heard horn exiting E isle (sic). Fork truck
was turn (sic) his right looking right not left Swerved to my left to miss
and kept going. I think he preoccuppied (sic) with Mr. Henderson coming
from shipping.
Don Harris, then Acting General Foreperson, confirmed that Walker wrote this statement
and that Walker stated that he had to swerve to avoid colliding with Massa coming out of
the aisle. He gave the incident report to McDowell. In a typed version of the incident
report the words “being hit” were added after the word “miss”, but there is no indication
who made that change.
On cross-examination and then re-examination, it became apparent that Walker
changed his testimony about Massa’s actions at the time. On examination-in-chief, he
stated that he could not recall if Massa stopped or not, yet he had earlier told Mr.
37
Steinberg, counsel for Massa, that Massa did not stop abruptly. He then vacillated
between saying that he could not recall if Massa stopped or not, and saying that he did
not stop. Walker clearly told different things to counsel for the LCBO, Mr. Sherrard, and
to Mr. Steinberg about his recollection of what Massa did.
Walker also told Massa, afterward, that he could have stopped his machine if he
wanted to but chose to drive around and that he did not consider this a near miss. On re-
examination, he acknowledged that he was going “full tilt” at the time and that if he
abruptly stopped, he could have gone flying off the machine and his load would have
toppled. Tiny Ross confirmed this.
Both Robertson and Henderson asserted that they witnessed this incident.
Robertson testified that he was mid-way through the staging area coming into the
warehouse and saw Walker swerve to avoid being hit by Massa’s forklift. He stated that
Massa stopped abruptly causing the forks on his truck to jump up and down, or “chatter.”
Robertson initiated a health and safety report on the incident. Afterward, Walker told
him “thanks a lot” since Walker had not wanted the report to be filed.
Henderson testified that he was standing in front of the shipping office after
picking up an order. He heard a series of horn blasts, looked up, and saw Massa exiting
the E aisle and Walker along the corridor “on a collision course.” He stated that Massa
was coming out of the aisle “at a pretty good clip”, that Walker was able to swing around
and that Massa tried to stop his machine, coming to a stop just outside the mouth of E
38
aisle. He stated that it was a “violent stop” and that the forks on Massa’s forklift chattered
as a result. Both employees then went on their way. Henderson then looked for
Robertson, as a member of the Health and Safety Committee, to report what occurred and
found him in the staging area.
Henderson stated that he told Robertson that there was another near miss to which
Robertson replied that he had also seen it and would report it. A few days later, he was
approached by Don Harris to write a statement, which he did.
Massa had no recollection of this incident. He was first advised of it on October
21, 1997 when he received the NOID. Although McDowell testified that the health and
safety incident report was attached to the NOID, as well as another unrelated one
involving Steve Senese, Massa testified that there were no attachments to the NOID that
he was given. He also stated that he asked Don Harris, who handed him the NOID, what
the incident was about, who was involved and if any reports had been filed, to which
Harris stated that he did not know. Harris had no recollection of this, but thought that it
was unlikely since he had taken both Henderson’s and Walker’s statements which were
contained on the incident report. Massa stated that he then investigated to determine who
was involved, finally asking McDowell who responded angrily “you know; it involved
Walker.” This evidence was not put to McDowell. Massa testified that he then called
Walker on the phone. He stated that Walker was surprised that he was just learning about
the incident. Although Massa stated that McDowell initially refused to let him see the
39
report, he testified that McDowell gave it to Walker to give to him. He then called
Walker to discuss it and visited him where they discussed what occurred for three hours.
In Massa’s view, the incident could not have occurred the way it was reported, if
it occurred at all. In his view, it made no sense that he would not look both ways when
exiting the aisle since that would be “suicide” or that he was preoccupied with
Henderson. In his view, Robertson had no clear view of the aisle. He stated that he and
Walker concluded that Walker was the one who may not have been looking.
On October 23, 1997, Massa submitted a written response to the October 20
NOID. In it, he stated that he could not recall anything about September 30.
The legitimacy of the incident was subsequently raised by Massa with the
Ministry of Labour. Patrick Houlihan, who met with Ministry of Labour official Ellenor
Castle, testified that she informed him that she had met with Mark Walker who verified
that what he wrote on the incident report, in fact, occurred.
The grievor’s 1997 attendance record shows that after September 30, 1997, he
was off work for part of the day on October 1, 2, and 3, off most of the day on October 6,
the date that the health and safety report was completed, and all of October 7, 8, and 9.
He was at work on October 10. October 13 was the Thanksgiving holiday. Then, on
October 14, McDowell met with Massa, with a union representative, to discuss what had
occurred both on September 15 and September 30. After explaining the purpose of the
40
meeting, Massa became ill and left work. Massa was at work the next two days, October
15 and 16, and then was off again on October 17. The NOID was issued on October 20,
1997 and delivered to him the following day.
The employer may send a NOID by registered mail. McDowell testified,
however, that he been given “instructions” from Massa not to bother or harass him at
home.
McDowell testified that there was no immediate discipline of Massa over the
September 15, 1997 incident because he was in and out of work. He felt that it was
appropriate to let him re-establish himself before bringing up some of these issues and
wanted to talk to him about them. He also stated that it was a busy time at the warehouse.
Patrick Houlihan, Human Resources Manager for southwestern Ontario, testified
that he advised McDowell that because of the delay in discipline regarding the September
15 incident, it could no longer be the subject of discipline independently. It could,
however, in his view, be combined with the incident on September 30 and the appropriate
measure of discipline could be applied. On cross-examination, he acknowledged that
waiting from September 16 to October 27 to discipline was in error and precluded the
independent use of it. Further, because of the delay, Houlihan could not support harsh
discipline. Instead, it was determined that the two incidents warranted a ten-day
suspension. He could not say the precise number of days attributed to each incident.
Rather, management was concerned with both. In his view, the Walker incident was a
41
repetition of the type of unsafe driving for which Massa had been given the three-day
suspension and it demonstrated that the message that management was trying to convey
to Massa had not come through.
3. Positions of the Parties
The Employer submits that it established, on the balance of probabilities, that
Massa threatened and intimidated Henderson on September 15, 1997 and that he
endangered Mark Walker on September 30 when he did not properly exit the G aisle on
his forklift. In its view, his actions constituted serious misconduct that warranted a 10-
day suspension.
The Employer contends that Massa’s confrontation was threatening to Henderson.
Although Henderson was not in fear physically, he did not know what Massa was capable
of and he feared more false allegations. The employer submits that Massa’s words were
said in a loud voice, that he leaned over his machine and shook his finger at Henderson.
The Employer further argues that Massa’s version of events is not credible. He
was clearly angry about what he perceived as Henderson’s “abuse on the PA”, his
“rudeness” and the fact that he had complained to management. Massa went after
Henderson, the Employer submits, because he was angry. On the balance of probabilities,
it submits that Massa told Henderson “don’t push it with me.” Those words, the employer
argues, combined with the manner in which is was said, constitute a threat for which
significant discipline is appropriate. In support of its position, the Employer cites Re
42
Toronto Western Hospital and Canadian Union of Public Employees, Local 1744 (1989),
6 L.A.C. (4th) 150 (Mitchnick, Briggs, Sloan Taylor).
The Employer acknowledges that there was a delay in disciplining the grievor
regarding the events on September 15. It acknowledges that it would have been
preferable to have disciplined him before September 30. But it contends that the delay
does not void the discipline. It argues that it brought the matter to his attention
immediately and thereafter waited for a written response to the NOID, as Massa regularly
provided a detailed response. It contends that there was no prejudice to Massa as a result
of the delay.
In regard to the incident on September 30, 1997, the Employer submits that this
was a very serious matter, particularly in light of the grievor’s history of aggressive
driving and prior discipline. It contends that Massa did not properly exit the aisle and
almost collided with Walker. It asserts that Walker changed his testimony in a bid to
assist Massa and submits that neither the change in his testimony nor his assertion that he
could have stopped his vehicle is credible. It argues that if Walker had suddenly stopped,
he would have been thrown from transporter and lost his load. The Employer further
submits that Massa’s violent stop was witnessed by both Robertson and Henderson.
The Employer acknowledges that there was some delay in bringing this to
Massa’s attention, but attributes the bulk of that delay to Massa’s absence from the
workplace. It notes that the incident report was finalized on October 6, 1997, but that
43
Massa away from work the next three days. Although he was present at work on October
10, this was followed by the Thanksgiving Holiday, after which management attempted
to meet with him. Yet just as the meeting started and Massa was informed of the topics
to be discussed, Massa left. The employer argues that Massa suffered no prejudice as a
result of the delay because Massa admitted he would recall it if he had abruptly stopped.
In the employer’s view, a ten day suspension was warranted in response to the
grievor’s actions. Threats to co-workers, it submits, can not be tolerated by an employer,
citing Re Toronto Western Hospital, supra, and Re Dartmouth Ambulance Ltd. and
Canadian Union of Public Employees, Local 3264 (1994), 39 L.A.C.(4th) 236 (Haynes)..
Further, given the importance of safety at the workplace and the grievor’s prior three-day
suspension for unsafe driving, the incident of September 30th warranted a more severe
disciplinary response.
The Union contends that the employer’s delay voids the discipline imposed in its
entirety. It asserts that the employer’s actions amount to a comedy of errors. It points out
that the employer waited six weeks to discipline the grievor about the “threat” on
September 15th, which demonstrates just how seriously it took Massa’s alleged “threat.”
In regard to the September 30th incident, the employer waited three weeks to issue a
NOID, by which time the grievor could not recall the incident. In its view, the delay
severely prejudiced the grievor. The Union submits that the employer has a
responsibility to exercise its right to discipline in a fair and reasonable manner which
includes acting promptly. It argues that the variety of excuses offered by the employer –
44
that Massa was away, that it wanted to reintegrate him first, that it was a busy time at the
warehouse – all fall short and cannot excuse the type of delay which occurred here. It
submits that none of its excuses precluded a NOID from being sent by registered mail to
the grievor. In support of its contentions, the Union relies on Re University of Ottawa and
International Union of Operating Engineers, Local 796-B (1994) 42 L.A.C. (4th) 300
(Bendel); Re Brunswick Bottling Ltd. and Retail, Wholesale and Department Store
Employees Union, Local 1065 (1984), 16 L.A.C. (3rd) 249 (Iwanicki); Re Corporation of
the Borough of North York and Canadian Union of Public Employees, Local 373 (1979),
26 L.A.C. (2d) 289 (Schiff); Re Air Canada and CAW, Local 2213 (1993), 34 L.A.C.
(4th) 13 (Frumkin) ; Re Manitoba Pool Elevators Brandon Stockyards and United Food &
Commercial Workers Union, Local 832 (1993), 35 L.A.C.(4th) 276 (Peltz
In the Union’s view, McDowell’s actions in regard to the ten-day suspension go
beyond not giving Massa the benefit of the doubt but amount to ignoring anything he had
to say. While the letter of discipline states that management received no response to
either NOID, in fact, a written response was filed in relation to the October 20 NOID and
a verbal one was provided to the NOID of September 16th. As a result, it contends that it
was more than disingenuous for McDowell to say, in his letter of discipline, that the
employer received no response and argues that this constitutes another reason the
discipline cannot be sustained.
The Union further contends that the joining the two incidents together for
disciplinary purposes demonstrates that the Employer was, in reality, attempting to use
45
anything and everything to get rid of the grievor. This was also demonstrated, in its
view, by its inclusion of the incident report by Steve Senese, an incident report which did
not form the basis of any discipline. In its view, this was a clumsy attempt to pepper the
record with prejudicial material and to portray the grievor badly.
On the merits, the Union contends that there were two versions of the discussion
between Henderson and Massa on September 15th and asserts that the board should credit
Massa over Henderson. But no matter which version is accepted, it argues that no
reasonable person could conclude that Henderson was threatened or intimidated. In its
submission, the incident was blown out of proportion. It cites to The Concise Oxford
Dictionary of Current English (Sixth Edition) and notes that even under Henderson’s
version of events, what Massa is alleged to have said does not fit within the definition of
“intimidate” or “threaten.”
The Union further asserts that the employer cannot attempt to discredit Walker
since he was not declared a “hostile witness” and that it must accept his testimony as it
stands. In its view, however, Walker was not credible and his testimony was replete with
inconsistencies. Nor, it submits, should Henderson be credited about what occurred on
September 30th. This was two weeks after Massa had called the police in to investigate
Henderson’s threat and Henderson was upset about that. Similarly, the other witness,
Robertson, had called the police about Massa in June. What is left, it argues, is very
sketchy evidence of what occurred and the evidence is insufficient to support the
allegation.
46
4. Decision
I conclude, on the balance of probabilities, that the grievor threatened Henderson
on September 15, 1997. He also may have operated his forklift in an unsafe manner on
September 30, 1997. I conclude, however, that because of the Employer’s delay in
imposing discipline regarding the September 15th event and its delay in informing the
grievor about the incident on September 30th, the discipline imposed is void.
a. September 15, 1997 Incident
Once again, there is an issue of credibility involved. Henderson’s version of what
was said on September 15th differs significantly from the grievor’s version. In my view,
although Henderson’s testimony must be closely scrutinized because of his animosity
towards the grievor, I find his version of what occurred to be more plausible than that of
the grievor.
The main reason I find it to be more plausible is because Massa was clearly very
angry with Henderson for what he perceived as Henderson’s “abuse” of him on the PA
and his complaint to management that he was not timely making the requested drops. On
cross-examination, he admitted that he was “pissed off”. He felt that Henderson was
“rude” and that he had “no right to talk to me in that manner” since his aisles were the
best in the warehouse. Massa clearly had enormous pride about the quality of his work
and he was angry that Henderson complained about the delay in drops, a complaint
which, in his view, was unreasonable. He thought that Henderson was trying to show him
47
up, making it look like he was not doing his job. The evidence supports the conclusion
that he sought out Henderson to confront him. There was no corroboration of his
assertion that he was directed to do so by Kestle or Harris. As a result, I find Massa’s
testimony that he did not raise his voice and remained calm to be inherently implausible.
I conclude that it is more likely than not that he raised his voice, shook his finger at
Henderson and told him that his “ass was in enough hot water already” and “not to push
it” with him. That is a threat, albeit an unspecified one.
I conclude, however, that the discipline imposed cannot stand. No discipline was
issued on this matter until October 27, 1997, six weeks after the event. According to
Brown and Beatty, Canadian Labour Arbitration, at 7:2100, it is a “matter of general
arbitral principle” that “the employer must sanction an individual for behaviour it regards
as inappropriate in a reasonably expeditious fashion…” The case law cited by the Union
supports this conclusion. For example, in Re Corporation of the Borough of North York
and Canadian Union of Public Employees, Local 373, supra at p. 290, a delay of seven
(7) weeks in imposing discipline was determined to be “much too long.” In Re
Brunswick Bottling Ltd. and Retail, Wholesale and Department Store Union, Local 1065,
supra, which relied on the Borough of North York decision, an eleven-week delay was
deemed “too long also.”
Exactly what constitutes “a reasonably expeditious fashion” will vary, depending
on the facts. In Re Manitoba Pool Elevators Brandon Stockyards and U.F.C.W., Local
832, supra, although the arbitrator concluded that an eight and one-half month delay was
48
“inherently unfair and prejudicial”, he determined that “part of the period of delay might
be justifiable.” (p. 285). Specifically, a delay of four months while waiting for the
outcome of a related grievance “might be reasonable.” In Re Beaver Foods Ltd. and
Hotel, Restaurant and Culinary Employees and Bartenders Union, Local 40, supra, a
case cited by the Employer, a four-month delay was found acceptable under the specific
facts of the case.
In this case, the incident occurred on September 15, 1997 and management met
with the grievor the next day. Later on September 16, 1997, the NOID was issued, with a
direction to the grievor to respond in writing within three days. No written response was
provided within the three days and at some point, it is not clear when, McDowell was
informed that no written response would be forthcoming. No further investigation after
September 16th occurred, yet no discipline was imposed until October 27, 1997, six
weeks later.
There was no reasonable explanation for this delay. The fact that the warehouse
was busy may explain some of it, but cannot excuse a delay of six weeks. Nor was
Massa’s absence from work at fault. Massa was present at work almost every day in
September. This fact distinguishes the delay in imposing discipline on Massa as a result
of the June 3, 1997 incident. In that case, discipline was imposed on July 14, 1997, but
Massa was not present at work the entire time. Here, Massa was present at work until
September 30th.
49
Similarly, there was no explanation why McDowell thought it was necessary to
provide Massa time to reintegrate himself in the workplace before this matter could be
discussed with him. As the Employer recognized, it was an error to delay the imposition
of discipline in this matter. I further conclude that as a result of this delay, the discipline
cannot be maintained.
Finally, I also find, under the specific facts of this case, that the employer’s
joining the two September incidents together for disciplinary purposes to have been
improper. The two incidents were not related and were not sufficiently close in time to
have been joined together.
b. The September 30th Incident
It is very difficult to determine what occurred on September 30th. Based on the
evidence presented, I could reach the conclusion, on the balance of probabilities, that the
grievor caused another “near miss” on September 30, 1997. Although Walker’s overall
credibility was severely undermined by his changing testimony about what Massa did
after he had to swerve – whether he abruptly stopped or continued on – the key point, on
which Walker was entirely consistent, is that he had to swerve to avoid a collision with
the grievor. This was confirmed by him not only in his testimony at the hearing, but was
stated, in his own writing, in the Health & Safety report. This was also corroborated by
Harris who witnessed Walker’s completion of the report and, at Massa’s insistence, it
was subsequently verified by the Ministry of Labour.
50
There was, however, a three-week delay in informing the grievor about this
incident. Not all of the delay was the employer’s fault. The Health & Safety report was
not completed until October 6, 1997, and thereafter, Massa was off-work a great deal of
the time. He was only at work one day, October 10, before McDowell tried to meet with
him on October 14. Massa left that meeting because of illness almost immediately after it
began and the employer was unable to discuss what occurred with him. On the other
hand, the employer could have raised the issue with him immediately, even prior to the
completion of the Health & Safety report since Massa was at work at least part of the
time. It also could have sent a NOID to him by registered mail. There was no valid
reason why a NOID was not sent to him. An employee’s instructions not to be
“harassed” at home cannot override the Employer’s obligation to act expeditiously.
Alternatively, the employer could have met with Massa on October 10, 15 or 16,
although that the latter dates may well have also been too late.
In my view, the main problem with the delay is that Massa could not recall the
incident. As a result, he was prejudiced. He was not able to offer any explanation or
response because he could not recall the incident.
The situation is somewhat similar to what occurred in Re Air Canada and
Canadian Automobile Workers, Local 2213 (1993), 34 L.A.C. (4th) 13 (Frumkin). In that
case, the grievor was discharged for remarks allegedly made by her during the course of a
conversation with a client which supposedly took place on May 29, 1992. The grievor
was not informed of the allegations until June 18, 1992, three weeks later, although the
51
company learned about the incident almost immediately. The grievor had no recollection
of the conversation. The board had some reservations about the testimony of the client
since, at the time of the conversation, the client was “upset” and “incensed” at her travel
agent, and concluded that the evidence was not sufficiently reliable to support the
company’s decision to discharge. But the board was also concerned about the manner in
which the company conducted its investigation of the incident. The board ruled at p. 21:
The grievor was not apprised of the incident until almost three weeks after
it occurred, although it had been reported to a company representative in a
position to act, almost immediately. By that time the grievor adopted the
position that she had no recollection of the incident, a position which
could be quite understandable given that, according to the evidence, she
receives and responds to some 60 calls daily. The effect of the delay and a
total absence of any effort to provoke recollection of the incident on the
part of the grievor by refusing to provide details was to deny to the grievor
a fair opportunity to present her version of what might have taken place.
Surely a more reliable and accurate appraisal of what actually was said on
May 29, 1992, would have been possible had the grievor’s version of
events been forthcoming, an eventuality which never materialized for the
simple reason that the grievor was never confronted, then and there, on
May 29, 1992, or shortly thereafter, as the tribunal believes she should
have been.
Given the board’s concerns about the client’s testimony, the employer’s failure to
confront the grievor in a timely manner effectively denied her the opportunity to explain
what she said and what she meant. The board stated at pp. 22-23:
This is not a case where the evidence against the grievor can be
characterized as strong. It depends on the testimony of a single witness
relating a conversation which took place within a context which may have
influenced considerably that witness’ perception of what was said and
intended. This is why it would have been so important for the company to
have confronted the grievor at the time when the incident came to its
knowledge. By neglecting to confront the grievor the company effectively
denied her an opportunity to respond to a situation where her reponse may
have been most revealing. She may then have been in a position to
52
explain what she said and what she meant and it is because the company’s
approach precluded such a possibility, the case against the grievor is
severely weakened.
The case before me is somewhat different because, in my view, the evidence that
a near miss occurred is quite strong. The evidence clearly established that Walker had to
swerve to avoid colliding with the grievor. It is also different in that what is alleged to
have occurred is not a conversation but a near miss, which, arguably, should stand out in
one’s recollection. But the grievor should have been apprised of the situation much
earlier than he was and provided the opportunity to give his version of the events. In my
view, the grievor could have, and should have, been apprised of what occurred much
earlier than October 21, 1997. Because of the employer’s delay, the grievor was
effectively denied an opportunity to respond and explain what occurred.
Accordingly, the discipline imposed for the incident on September 30th cannot
stand.
C. The Grievor’s Discharge
On December 8, 1997, a NOID was sent to the grievor, which states, in part, as
follows:
The purpose of this letter is to advise you that we have been contacted by
the Ministry of Labour who have indicated that during a meeting last week
with them you uttered a death threat in respect of a fellow employee. As a
result of this, you are relieved from duty with pay effective immediately.
Manager McDowell testified that on December 1,1997, he received a telephone
call from Police Constable Maidens concerning Massa. Maidens informed him that the
53
police had been contacted by officials at the Ministry of Labour because Massa, in
discussions with them, had uttered what amounted to a death threat. He told McDowell
that he was advising the LCBO as a courtesy, to let them know that they had an irate
employee..
Constable Maidens, now Detective Constable, testified that he was dispatched at
11:01 by radio on December 1, 1997 to attend the Ministry of Labour on a threats call.
He arrived there about ten minutes later and spoke with Supervisor Bonnie Suhr, who had
called the police, and investigator Ellenor Castle. Suhr advised Maidens that Massa had
come to the office to speak with them about a number of complaints he had about his
place of work, that he had contacted them a number of times about his problems at work
and that they had advised him that the Ministry of Labour could not assist him. She
relayed that Massa was not satisfied with that response and wanted to meet with them.
At the meeting, Suhr told him that Massa went over his problems at work and they again
advised him that there was nothing that the Ministry of Labour could do for him. They
explained to him that his complaints were an internal matter between management, the
union and him, and not a matter for the Ministry. Maidens testified that Suhr expressed
concern about a comment Massa made during course of the meeting. He had expressed
frustration with a number of issues and number of people and four names were
mentioned: Jeff Henderson, Mike Robertson, Greg Stanley and Bill McDowell. During
the course of his “venting” he said to Suhr, “I want to kill ‘em.” This was not directed at
one person, and she was not sure to whom he was referring. Suhr told Maidens that she
was taken aback and concerned about the comment. Constable Maidens testified that he
54
questioned them about the grievor’s demeanor and was told that he was not overly angry,
that he was frustrated that there was no resolution to his problems. She expressed
concern about his mental state and she wanted the police aware of the comment, to put it
on record and to notify LCBO regarding what was said. She did not want the officer to
contact Massa for fear of more problems at her office. He explained to her that it was his
duty to investigate whether any criminal code charges should be laid. If charges were
laid, he would have to speak to Massa. He told her that he would advise her of the
outcome.
Maidens returned to his office and called the Crown Attorney. He was advised
that the comment was not a violation of the criminal code since Massa said he “wanted
to” or would “like to” kill someone and because it was not directed at a specific person.
He called McDowell and advised him about what occurred at the Ministry of Labour and
that he had a disgruntled employee. McDowell testified that upon learning this from
Maidens, he “speed dialed” Human Resources. Maidens also advised the Ministry of
Labour about the outcome of his investigation. As requested by Suhr, he did not speak
with Massa as part of his investigation.
On cross-examination, Maidens denied not contacting Massa because the matter
was not serious. In his view, it was serious enough or he would not have called the
LCBO.
55
It should be noted that pursuant to an earlier ruling, the testimony of Constable
Maidens about his conversation with the Ministry of Labour officials as well as the
testimony of Patrick Houlihan about his conversations with the same officials came into
the record for the truth of the matters asserted, as the tests of necessity and reliability set
out in R. v. Khan [1990] 2 S.R.C. 531 (S.C.C.) and in R. v. Smith [1992] 75 C.C.C. 257
(S.C.C.) were met.
Upon being informed about this incident, management tried to meet with Suhr
and Castle, but they were not available until December 8, 1997. On that date, Patrick
Houlihan, along with Employer counsel, Michael Sherrard, met separately with Castle
and Suhr. According to Houlihan, Suhr and Castle told them Massa repeatedly phoned
them about things at work which were outside of their mandate. As a result, they decided
to meet with him to try to explain their mandate and other possible avenues available to
him. During the meeting on December 1, Massa talked about incidents at work,
harassment, people picking on him and they tried to explain other possible options such
as his doctor and the union. As they talked back and forth, Massa told them that one
manager was retiring and he was taking another one to court. They stated that he was
calm, leaned forward and back, and said, “I want to kill ‘em.” They stated that he said it
calmly; matter of factly. Houlihan asked them why they did not pursue that statement
with him and they responded that they felt that was not appropriate. The meeting with
Massa lasted 30 to 40 minutes and they parted amicably. After, they were concerned
about his comment, discussed it with the Regional Director, and decided that the police
should be called.
56
Houlihan testified that after this meeting with the Ministry of Labour, he was
concerned. Suhr and Castle confirmed that the threat had been made and although the
threat was not specific, it concerned the Ministry of Labour enough to call the police. He
felt that management could not ignore it, felt it could not take the chance with its staff
and should err on side of protecting its employees. Given the prior threat to Henderson
and the prior discipline imposed, the NOID of December 8, 1997 was drafted. Houlihan’s
intent was to have it delivered to Massa’s home but he was advised that Massa was at
work. Houlihan stated that this caught him off-guard since Massa had been off work
since October 27, first with the ten-day suspension, then off sick. As far as Houlihan
knew, Massa was still off. He learned later that Massa had worked on December 5 and
December 8. McDowell, however, had been aware that the grievor had returned to work.
He testified that Massa was “very strictly supervised” but he could not recall giving that
specific direction.
On December 10, 1997, Massa provided a written response to the NOID. In it, he
acknowledged that “[d]uring the meeting I was anxious, frustrated and agitated and I
made a generic statement, something along the lines of killing someone. It was said ‘off
the cuff’ and out of frustration. It was not said in the same breath with the employees
that were mentioned in discussions there. It was a bad choice of words and meant as a
figure of speech.” He further stated that he had been in contact with his doctor, Dr.
Prakash, who he had seen “just prior to the meeting at the M.O.L. and was aware of my
intentions.” The doctor had also seen him after the meeting and again when it became an
57
issue. He stated that “Dr. Prakash fully supports me when I say that I have (sic) nor had
any intention of harming any co-worker. Consider this permission to contact Dr. Prakash
and have him release to you any pertinent information regarding myself and work related
sessions, under the understanding you keep this information confidential.” He
concluded:
Please accept my apology for the alarm that the incident has created. My
intentions for the meeting were in good faith and I assure you that I did
not nor have any intention of harming anyone. I do regret that a generic,
off the cuff remark made by me was taken and misunderstood by others as
having a meaning or import, never intended.
McDowell testified that, in his view, Massa’s response confirmed that he had said
he wanted to kill someone. He believed that Massa regretted what he had said, but he did
not believe that it was “off the cuff”. In his view, it was said with some meaning, based
on his conduct and actions during the past year to year and a half.
The Employer did not contact Dr. Prakash. Houlihan did not know what type of
doctor he was and did not think he would have anything to offer, although he denied
telling McDowell not to contact him, as McDowell had testified. On cross-examination,
he acknowledged that, in hindsight, it might have been prudent if the grievor had been
examined by an independent psychiatrist to determine if he posed a threat. He
acknowledged that the results might have impacted the Employer’s decision. Instead, he
determined, based on the concern expressed by the Ministry of Labour officials and the
employer’s experience with Massa in the past, that he posed a real threat to workplace.
58
Dr. Prakash, the grievor’s doctor, is a forensic psychiatrist whose specialty is the
assessment of whether individuals pose a danger to themselves or others and whether
they are mentally fit to stand trial. He is on staff at the St. Thomas Psychiatric Hospital.
He began seeing Massa in May 1994 for depression and anxiety due to personal problems
at home. He saw him one time in 1995, then three times in 1996 for stress due to work-
related problems. He saw him six times in 1997 – June 21, July 19, November 1,
November 7, November 26 and December 10, all for depression and anxiety arising out
the workplace. He stated that, based on his sessions with him in November 1997, he did
not feel that Massa was a threat to himself or others.
During the December 10, 1997 session, Massa discussed the incident at the
Ministry of Labour and told Dr. Prakash that he could not recall what he said exactly and
that he was referring only to himself and did not mean to harm anyone, that he felt
frustrated and agitated. In Dr. Prakash’s view, the statement "I want to kill ‘em” was an
expression of Massa’s frustration and he did not mean what he said. In his view, such a
comment should be taken seriously and explored and put in the context it was meant. In
his view, it was significant that Massa had expressed no definite plans to carry out his
threat.
On cross-examination, Dr. Prakash acknowledged that Massa had great difficulty
controlling his anger, trusting people and dealing with conflict. He stated that in Massa’s
mind, he feels he did everything right and others are wrong. When he saw Massa in
January 1998, after his termination, Massa expressed a wish to harm McDowell and Mike
59
Robertson, but again, he felt that this was not a dangerous threat, particularly since Massa
agreed to continue treatment.
Massa testified that he met with Ministry of Labour supervisor Bonnie Suhr and
Ellenor Castle on Monday, December 1, 1997, at 10:00 a.m. He stated that he “kept
pushing them to help me with my problems” at work and on the prior Thursday, they
suggested having a meeting. Massa tried to have a representative from the Employer and
the Union attend the meeting, but due to the short notice, no one was available. He
discussed his second suspension with them and their advice was for him to go to the
Union. He stated that he felt frustrated by that response, felt that they could help him and
stated something along the lines “I feel like killing someone.” He said it was not directed
at anyone and that he was “also referring to myself” since he was “depressed over
everything.” He stated that he said it “under my breath” and he received no reaction at all
from Suhr or Castle. The meeting lasted approximately a half hour to 45 minutes, and
ended with Castles repeating that there was nothing further the Ministry could do to assist
him. He tried to convince her otherwise thinking that she misunderstood the situation to
no avail. He also called Castles again a few hours later and again was told that there was
nothing the Ministry could do for him and that he should go to the Union.
The first indication that a problem existed about the December 1, 1997 meeting
was when the grievor was given the NOID on December 8, 1997. He immediately called
Bonnie Suhr but was unable to reach her. He then went to the Ministry but she was not
there. On Wednesday, December 10, 1997, he did speak with her. She informed him that
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something he said at their meeting concerned her, specifically what he said about wanting
to kill someone, and that she was playing it safe and “going by the book”.
The grievor also called Constable Maidens on December 9, 1997. Massa asked
him why he was not contacted and, according to the grievor, Maidens responded that he
felt that it was a work-related issue, a disgruntled worker blowing off steam, that he was
dealing with a couple of ladies and not to be concerned over it. Massa then asked him for
help at work and Maidens responded that his concern was only this matter.
Maidens had no notes of this conversation with Massa. He recalled that Massa
asked him to help him with his problems at work and that he responded that it was not
part of his mandate, that the police do not get involved in internal labour disputes unless a
matter turns criminal. On cross-examination, he denied that he told Massa that he
concluded that the statement was made in frustration or off-the-cuff, saying that he
“would not have said that” and that it “doesn’t sound like what I would have said.” He
was not there on December 1 when the statement was made and all that he knew was that
it was not prosecutable under the criminal code.
On cross-examination, Massa was more equivocal about what he said during the
meeting at the Ministry of Labour. Several times he denied saying “I want to kill ’em”,
or “kill someone”, although he later stated that he said something like that but did not say
“him” or “her”; he did not threaten any specific person. In his view, it was like what one
would say at a baseball or hockey game. It was meant it as a “figure of speech, meaning
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I’m pissed off.” He further stated that he made two references to “taking my own life”,
that “this is how these guys make me feel and you guys can’t do anything”.
The grievor insisted that none of what occurred was his fault at all but the fault of
others. He did not appear apologetic. In his view, he did nothing wrong. His conduct was
“above board.” The discipline and assertions against him were “all nonsense” and any
assertion that he played a role in what occurred was “ridiculous.” He was the “scapegoat
for everything.” McDowell, Robertson, Henderson, Geisbrecht and Kestle all had it “out
for him.” He held every production record at work; no one else was even close. He could
do in two days what it took others to do in five.
On January 7, 1998, Massa was discharged by letter, which states, in part:
This letter is in response to the Notice of Intended Discipline issued to you
by Mr. W. McDowell, Manager of the London Warehouse on December
8, 1997 relieving you from duty with pay effective December 8, 1997
pending an investigation into your conduct on or about December 1, 1997.
After reviewing all the information available to me, including your
response, I view the incident as described in the December 8, 1997 Notice
of Intended Discipline as a very serious matter. On its own, it again
demonstrates your inability to work with your fellow employees. When
viewed in conjunction with your past disciplinary record, it leaves the
LCBO with little choice.
Based on the available information, I regret to inform you that, effectively
immediately your services wit the LCBO are terminated.
McDowell recommended discharge and that recommendation was supported by
Houlihan. McDowell testified that it was his view that the grievor could not be reached
and that he had lost trust in management and his coworkers.
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1. Positions of the Parties
The Employer asserts that it had just cause to discharge the grievor. It contends
that it established that the grievor, in the context of complaining to the Ministry of
Labour about his co-workers and manager, stated that he “wanted to kill ‘em.” The
evidence further established that this statement concerned the officials at the Ministry of
Labour enough to discuss it immediately with their Regional Manager and to call the
police. In its view, this threat was clearly made in a work-related in context and was an
extremely serious matter. In this day and age, it submits that such a threat is clearly
cause for discipline, citing Re Regional Municipality of Ottawa-Carleton and Canadian
Union of Public Employees, Local 503 (1994), 44 L.A.C. (4th) 95 (Folley); Re Toronto
Western Hospital and Canadian Union of Public Employees, Local 1744 (1989), 6
L.A.C. (4th) 150 (Mitchnick); Re Dartmouth Ambulance Ltd. and Canadian Union of
Public Employees, Local 3264 (1994), 39 L.A.C. (4th) 236 (Haynes); Re Madawaska
Hardwood Flooring Inc. and I.W.A.- Canada, Local 1-1000 (1995), 51 L.A.C. (4th) 18
(Young).
The Employer argues that it fully investigated Constable Maidens’ initial report
and confirmed that the threat, in fact, was made. It was also confirmed by the grievor. It
submits that the fact that it did not contact Dr. Prakash is not determinative, particularly
since Dr. Prakash had not seen the grievor immediately before or after December 1, and
that it properly evaluated what the grievor based on its own experience with the grievor.
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The Employer contends that the grievor’s actions on December 1, 1997,
combined with his prior discipline and misconduct, establish that discharge was
appropriate. It submits that progressive discipline had not changed the grievor’s
behaviour; that the message was not getting through. It points out that the grievor had,
and still has, absolutely no recognition of own misconduct and submits that the grievor is
unable to accept fault. In all of the circumstances, it submits that it had just cause to
discharge the grievor. In support, it cites Re Beaver Foods Ltd. and Hotel, Restaurant
and Culinary Employees and Bartenders Union, Local 40 (1996), 57 L.A.C. (4th) 47
(McPhillips).
In the alternative, the Employer asserts that if there was not sufficient cause to
terminate the grievor, the Board should exercise its discretion not to reinstate the grievor.
It argues that all of the factors normally applied in making that determination are present
here – no recognition of any fault, no willingness to change behaviour or even accept a
modicum of responsibility, a lack of candor, and disparaging views of co-workers and
management. In these circumstances, it argues that there is no viable chance of re-
establishing the employment relationship and reinstatment should not be ordered, citing
Re United Steelworkers of America, Local 12998 and Liquid Carbonic Inc. (1996), 20
O.R. (3d) 468 (Ont. Div. Ct.); Re Doughty Concrete Products Ltd. and Communications,
Energy and Paperworkers Union, Local 294(b) (1996), 59 L.A.C. (4th) 289 (Hunter); Re
Fox Ready- Mix Co. and Teamsters Union, Local 880 (1991), 22 L.A.C. (4th) 156
(Bartlet); Re Rockcliffe Nursing Home and Service Employees International Union, Local
204 (1997), 62 L.A.C. (4th) 316 (Abramsky).
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The Union asserts that the discharge cannot be sustained. It submits that the
employer’s failure to contact Dr. Prakash, as the grievor invited the employer to do,
demonstrates that its real motive was to terminate the grievor. It argues that the employer
failed to determine if Massa was truly a threat, and that the evidence of Dr. Prakash
clearly established that he was not. It points out that Houlihan acknowledged that would
have been prudent, in hindsight, to have contacted Dr. Prakash since it might have
impacted the employer’s decision. Indeed, the Union submits that the fact that the
grievor was allowed to return to work demonstrates that he was not even perceived by
management as a threat. Instead, his comment was a spur of the moment statement of
frustration, a figure of speech and the Employer’s legitimate interests were never at risk.
It contends that there was an improper rush to judgement, particularly for an employee
with such substantial seniority. Accordingly, it argues that the employer had no legitimate
grounds for discharge. In support of its position, the Union cites to Centroy Assembly Ltd.
and International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, Local 2381 [1999] O.L.A.A. No. 400 (Craven)
As to the Employer’s alternative argument, the Union acknowledges that a board
of arbitration has jurisdiction not to order reinstatement, but submits that is an
“exceptional” remedy to be used only where it is impossible to restore employer-
employee relationship. Given the number of employees involved in these matters who
are no longer there – McDowell, Henderson, and Kestle – and Massa’s ability to get
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along with others, particularly General Foreman Tiny Ross, the Union submits that there
is a real possibility of re-establishing the employment relationship
In the event, however, that such a remedy is ordered, the Union submits that the
appropriate level of compensation is one month’s wages per year of service, plus an
allowance for fringe benefits, as set forth in Re Dehavilland Inc. and Bombardier
Regional Aircraft Division and CAW Canada, Local 112, unreported decision dated Sept.
10, 1999 (Rayner).
2. Decision
There is no question that on December 1, 1997, at a meeting with the Minister of
Labour, the grievor, in the context of complaining about his co-workers and manager,
said, “I want to kill ‘em.” There is no question that this comment concerned the Ministry
of Labour officials sufficiently that they immediately approached their Regional Director
and called the police. Their call to the police came 15 to 20 minutes after Massa left the
meeting.
There also can be no question that such a comment is a very serious matter and
must be taken seriously by the Employer. The Employer immediately sought a meeting
with the Ministry of Labour officials to investigate what occurred, but could not meet
with them until December 8, 1997. At that meeting, the employer confirmed what had
occurred. It also sought the grievor’s explanation and received a detailed response that
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acknowledged he said something along the lines of wanting to kill someone. Based on
past experience with the grievor, management took the statement seriously.
The employer did not check with Dr. Prakash. In my view, however, there was
no requirement that it do so and its failure to do so does not lessen the seriousness of
what was said. As stated in Re Ottawa Carleton, supra at p. 103:
A central consideration in cases such as this is maintaining the integrity of
the workplace. It must be clear to all employees that acts of violence or
threats of violence in the workplace are extremely serious matters that will
not be tolerated.
Massa’s comment may well have been a statement of his frustration which was
clearly great. He had been dealing with the Ministry of Labour since February. He went
to the Union and filed grievances. He went to a Justice of the Peace, his MPP, and to a
counselor and a psychiatrist to deal with the problems that he was experiencing at work,
all of which he felt were fundamentally unfair. He felt that the Ministry of Labour ought
to be able to assist him and when they could not, he clearly felt great frustration. But the
words he said, calmly in the context of complaining about Robertson, Henderson, Stanley
and McDowell, were “I want to kill ‘em.” A reasonable person could view that
statement, in the context and manner in which it was said, as a threat. This is particularly
so in light of the animosity the grievor felt towards these individuals which was well
known to the Employer. There was a history here that could not be ignored by the
Employer. The statement was clearly improper and worthy of discipline.
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In Re Toronto Western Hospital and Canadian Union of Public Employees,
supra, an employee was discharged for threatening to do physical harm to a supervisor.
The discharge was converted to a four month suspension, but the board stated at p. 162
that ours is “a society where resort to violence, or even the threat of such, is simply not
acceptable, and not without its consequences.” (emphasis in original) The grievor was to
understand that his comments “need not be tolerated by anyone, much less an employer
with responsibility for order and safety in the work place.”
The Employer, under the law and the collective agreement, has the responsibility
to provide a safe work place. Providing a safe work place includes taking threats such as
the one made by Massa seriously, and if established as it was here, imposing discipline.
That the grievor may not have intended to carry out the threat is a factor in
assessing the penalty imposed. Dr. Prakash testified that, in his expert opinion, the
grievor did not intend to carry out his threat, although the grievor had some history of
violence and a problem with anger. Dr. Prakash’s testimony was not refuted. I accept his
testimony that the Massa did not intend to carry out his threat.
Also relevant is the fact that the grievor was allowed to return to work on Friday,
December 5, 1997 and Monday, December 8, 1997. Upon being informed about the
December 1 statement, the Employer could have, but did not, immediately suspend the
grievor pending investigation. The grievor had been off work for a considerable period
before, but McDowell was aware that he had returned to work and did not prevent it. He
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stated that Massa was under very “strict supervision” at this time, but could not recall
giving that direction. In my view, allowing the grievor to return to work undermines the
employer’s assertion that it seriously feared that the threat made on December 1, 1997
would be carried out. Centroy Assembly Ltd. and International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America, Local 2381
(Fraser Grievance), supra.
Also relevant is the grievor’s length of service and prior disciplinary record.
Massa, with twenty years seniority, is a very long service employee. Counsel for the
employer, at the outset of the hearing, acknowledged that the grievor’s threat on
December 1, 1997, standing alone, was not sufficient grounds for discharge but instead,
was a culminating incident. I agree that, standing alone, the grievor’s statement on
December 1, 1997 is not grounds for discharge, but it is clearly cause for discipline.
Consequently, given what occurred on December 1, 1997, in light of Massa’s length of
service and prior disciplinary record – a three day suspension – I conclude that the
employer had cause to discipline the grievor for his threat, but did not have just cause to
discharge him. Instead, it is my view that a suspension of thirty (30) days should be
imposed.
3. Should the Grievor be Reinstated?
The Employer has argued, in the event that I conclude that it did not have just
cause to discharge the grievor, that I nonetheless exercise my jurisdiction under the
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Labour Relations Act not to reinstate the grievor. In my view, this is the most difficult
decision that must be made in this case.
The case law is clear that this remedy is an “exceptional arbitral response in a
unionized workplace.” U.S.W.A., Local 112998 and Liquid Carbonic, supra. As I stated
in Re Rockcliffe Nursing Home and Service Employee International Union, Local 204,
supra at p. 342-343:
It is an exceptional remedy since it is fundamentally contrary to the
concept of just cause which exists under a collective agreement. In
contrast to the common law under which an employee may be dismissed
for any legal reason with proper notice (or damages in lieu thereof) an
employee protected by a just cause provision in a collective agreement
normally has a right to reinstatement if it is found that his or her discharge
was without just cause.
Only “[w]here the conclusion is inescapable that the viability of the employment
relationship has been destroyed, reinstatement is not deemed to be in the best interests of
the parties or the grievor, and damages in lieu of reinstatement may be awarded.” (p.
343)
In Re United Steelworkers of America, Local 12998 and Liquid Carbonic , supra,
the court upheld the remedial authority of an arbitrator to award damages in lieu of
reinstatement. In the underlying award, the arbitrator concluded that reinstatement on
conditions was “not a viable alternative in this case.” The arbitrator concluded, as quoted
by the Divisional Court at p. 470:
Reinstatement on conditions presupposes and, indeed, requires, some
reasonable expectation that the reinstated employee is willing and capable
of adjusting his behaviour and attitude to permit the continuation of the
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employment relationship free of behavioural problems plaguing the
employment situation in the past. Without that, reinstatement with
conditions is generally considered an exercise in futility and an invitation
to further problems and an inevitable further discharge and arbitration.
The grievor’s demeanor and attitude during his testimony at the hearing
effectively stripped me of any additional basis for reinstating him, even
with stringent conditions with respect to his future conduct. The union
representative presenting this case made a tenacious effort to salvage the
grievor’s employment, but, in the end, he was unable to save the grievor
from himself. I have some difficulty in recalling another grievor who was
so single-mindedly unwilling to accept even a modicum of responsibility
or fault in any one of the several incidents reviewed over the course of this
hearing Although the grievor’s credibility was called into questions with
respect to various of the incidents, he appears more as an individual who is
simply incapable of considering even the possibility that he may be wrong
on occasion. He steadfastly refused to accept that possibility at any point
about anything no matter the circumstances, and it would appear that this
is a classic case of someone being absolutely convinced that he is the only
member of the band in step, while all of the others are out of step. …
In Re Dehavilland Inc. and Bombarier Regional Aircraft Division and CAW
Canada, Local 112, unreported decision of September 10, 1999 (Rayner), the arbitrator
listed several factors that are relevant in determining whether to award compensation in
lieu of reinstatement:
1. The refusal of coworkers to work with the grievor.
2. Lack of trust between the grievor and the employer.
3. The inability or refusal of the grievor to accept responsibility for any
wrongdoing.
4. The demeanor and attitude of the grievor at the hearing.
5. Animosity on the part of the grievor towards management or coworkers.
6. The risk of a “poisoned” atmosphere in the workplace.
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In that case, the arbitrator determined that many of the factors listed were present.
The grievor believed that management was out to get him because he was a “whistle
blower”. He believed that an earlier string of progressive discipline was “bogus” and he
accepted no responsibility for any improper behaviour. He also distrusted the union. The
grievor tended “to see issues in terms of black of white and that if you are not with him
you are against him.” (Decision, p. 5) In the arbitrator’s view, “the reasons to award
compensation in lieu of reinstatement are compelling.” He concluded at p. 5:
It is clear to me that the grievor believes that he has done nothing wrong
and that he will continue to bring a confrontational and uncooperative
approach to his dealings with management. He will continue to distrust
both the Company and the Union and this distrust goes far beyond what
one might reasonably expect from a disgruntled employee in a large work
force. I also believe that the Company has no trust in the grievor and I see
no chance to ever repair the minimum level of trust needed to sustain the
employment relationship. The lack of trust between the two parties
appears absolute.
Although I am not sure what a “poisoned” work atmosphere is, if there is
such a thing, the relationship between the grievor and the Company can be
said to fall within that description. …
In this case, I conclude that the grievor should not be reinstated. It was very clear
during the hearing, and upon a thorough review of the evidence, that the grievor accepts
no responsibility for his actions. He was in what can only be characterized as a state of
denial, blaming everyone else for his discipline and discharge. In his view, all of it was
“nonsense” and “ridiculous”. He was the “scapegoat for everything.” He was “not at
fault for any of this.” His conduct was “above board.” In his view, the others “were out to
get” him and he had the “right to be angry” in light of all of the “crap at work” he was
forced to accept.
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There can be no doubt, based on the evidence, that there was animosity toward
Massa from many of the witnesses – Robertson, Henderson, Kestle and, to a certain
extent, McDowell. But what Massa overlooks entirely is the role he played in creating
that animosity – driving aggressively and endangering his co-workers, ignoring the
Health & Safety Committee’s rules about the use of the horn, threatening co-workers and
other harassment. This was not a situation where Massa was simply a “victim”, even
though there were times when he was the recipient of improper actions (e.g., the
newspaper article that was posted). There were also times when Massa was the
protagonist and the cause of his co-workers legitimate anger.
In my view, many of the same factors cited in Liquid Carbonic, supra, and
Dehavilland Inc., supra, are present in this case. The grievor completely refuses to accept
even the possibility that he did anything wrong. He believes that all of the discipline
imposed on him was based on management’s attempt, with some cooperation by the local
union, to get rid of him. He demonstrated no remorse. He clearly harbors great
animosity and was disparaging toward management and a number of co-workers,
particularly McDowell, Robertson, Henderson, Geisbrecht and Greg Stanley. He also
mentioned other employees who refused to work with him. There is a decided lack of
trust between the grievor and the employer. The grievor also demonstrated a lack of
candor about what occurred as the inconsistencies in his testimony reveal. I have no
doubt, however, that the grievor truly believes he testified truthfully, that he played no
role in what occurred, that he did nothing wrong and that none of what occurred is his
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fault. As in Liquid Carbonic, the grievor appears to be “absolutely convinced that he is
the only member of the band in step, while all of the others are out of step.”
In Re Doughty Concrete Products Ltd. and C.E.P., supra at 295, the board
considered the grievor’s lack of remorse, his lack of candor at arbitration and his
frequent, disparaging reference to both management and fellow employees to conclude
that reinstatement was inappropriate. The board determined that reinstatement “would be
both unproductive and hazardous to harmonious labour relations” and that “it would be
disruptive of productivity and morale in the workplace.” See also, Re Fox Ready-Mix
Co. and Teamsters Union, Local 880, (1991), 22 L.A.C. (4th) 156 (Brent). The same
conclusion may be reached in this case.
For these reasons, the fact that a number of the individuals involved in this
matter no longer work for the LCBO does not change the result. McDowell and Kestle
have retired and Henderson has resigned. But without any recognition of his own role in
the events that led to discipline, there can be no reasonable expectation that the grievor is
“willing or capable of adjusting his behaviour and attitude to permit the continuation of
the employment relationship free of the behavioural problems plaguing the employment
relationship in the past.” Liquid Carbonic, supra at 469.
The grievor further demonstrated an attitude that the rules do not apply to him.
This was evidenced by his refusal to abide by the revised rules regarding the use of the
horn. There may well have been, as the Union asserts, some conflicting messages about
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that, but it is clear that the policy in the warehouse about the use of horns had changed
and had become much more limited. The grievor was not confused about the change. He
simply did not agree with it and refused to comply.
Accordingly, for all of the reasons set forth above, I conclude that this is one of
the “exceptional” cases where the grievor should not be reinstated.
I further conclude, however, that the grievor is entitled to compensation for the
loss of his rights, privileges, and benefits under the collective agreement. In Dehavilland
Inc. and Bombarier Regional Aircraft Division, supra, arbitrator Raynor determined that
“the issue of compensation turns of the value that one places on the seniority rights,
wages and benefits that an employee has under a collective bargaining regime as
compared to his or her situation as an applicant for a new position with a new employer.”
In his view, it was not tied at all to the grievor’s past misconduct. The two issues, in his
view, were analytically separate. To consider it “either explicitly or implicitly, when
awarding compensation is to misconstrue the nature of the compensation awarded in lieu
of reinstatement.” He also determined that compensation was “not merely to replicate any
notice period, or payment of monies in lieu thereof under Employment Standards
legislation.” Instead, he determined that a better comparison “would be to early
retirement severance packages that are given to unionized employees” and concluded that
“an amount equal to one month’s wages for every year of seniority, together with a 15%
payment for loss of fringe benefits, would be an appropriate payment to reflect the loss of
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coverage under the collective agreement.” In addition, the grievor was to receive the
amount that he would have received under the Employment Standards Act.
I agree with this analysis. Compensation when reinstatement is denied must be
based on the loss of the rights, privileges and protections of the collective agreement. It
must, as arbitrator Raynor concluded at p.7, be based on the loss of the “economic value
of being a member of a bargaining unit and the recipient of all of the benefits and
protection that a collective agreement brings.” Exactly what that amounts to will vary,
but I agree that an appropriate comparison is to the early retirement severance packages
given to unionized employees. Such employees are also faced with the loss of the rights,
privileges and protections of the collective agreement and being a member of a
bargaining unit.
In this case, in light of the grievor’s substantial seniority, there can be no doubt
that the loss to the grievor is great. As in Dehavilland Inc. and Bombardier Regional
Aircraft Division, supra, I conclude that he is entitled to one month’s wages for every
year of seniority, together with a 15% payment for loss of fringe benefits. He is also
entitled to any monies due him under the Employment Standards Act. I have decided to
substitute a thirty (30) calendar day suspension for his threat on December 1, 1997, so
this should be deducted from that sum. In addition, since the 10-day suspension is void,
he should be paid those monies as well.
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D. Conclusion
1. The three-day suspension was for just cause.
2. The ten-day suspension is void for untimeliness, both as to the incident on September
15, 1997 and September 30, 1997. The grievor is to be paid for the loss of his wages.
3. The employer had cause to discipline the grievor for his actions on December 1,
1997, but did not have just cause to discharge him. A one-month, (30) day
suspension without pay is substituted instead.
4. Nevertheless, I conclude that this is an “exceptional” case in which reinstatement
should be denied. The grievor is to be paid one month’s wages for every year of
seniority, together with a 15% payment for loss of fringe benefits. He must also be
paid any compensation due under the Employment Standards Act.
5. I shall remain seized if the parties have any difficulty implementing this Award.
Dated at Toronto, this 15th day of February 2000.
Randi H. Abramsky, Vice-Chair