HomeMy WebLinkAboutLowcock 12-12-111
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CORPORATION OF THE TOWN OF BRACEBRIDGE
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 305
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF TED LOWCOCK
Louisa M. Davie Sole Arbitrator
Appearances
For the Union: Tim Hannigan
For the Employer: William Phelps
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Award
Ted Lowcock ("the grievor") was fired from his position as By-law Officer at the Town of
Bracebridge ("the Employer" or “the Town”) on December 9, 2010. He filed a
grievance that same day asserting that his discharge was contrary to the collective
agreement to which the Employer is bound together with the Ontario Public Service
Employees Union Local 305 ("the Union")
Over the course of numerous days of hearing I heard the evidence of 11 witnesses, and
received into evidence more than 35 documentary exhibits, including a binder which
contained in excess of 150 pages of documents, notes, e-mails, policies etc. All of this
evidence addressed whether or not the Employer had cause to discipline the grievor,
and whether, in all of the circumstances, the termination of his employment was just.
The Reasons For Termination - An Outline Of The Case
In its three-page letter of termination the Employer relies upon 10 events or
circumstances which it asserts constitute just cause and demonstrate conduct
indicating that the grievor's employment relationship could not be continued.
Several of the items referenced in the letter deal specifically with the grievor's work
performance and how he carried out his duties and responsibilities. In this regard the
Employer asserts that the grievor counseled summer students to work slowly in order to
ensure that there would not be unfavorable comparison to the manner and speed with
which he performed his duties. The Employer maintains also that the grievor used paid
work time to go home and/or perform personal errands. Finally, within this broad
category of work performance, the Employer alleges that the grievor refused to perform
work assigned to him and that he specifically refused to do on-call work as required by
the collective agreement.
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A number of other items relate to violations of the Employer’s workplace harassment
policy. The Employer submits that the grievor's attitude and comments about some of
his colleagues and supervisors, to other employees and to members of the general
public, were unprofessional and were intended to be derogatory, sarcastic, hurtful and
embarrassing. In this regard the Employer alleges that the grievor engaged in
offensive name-calling and in particular that the grievor called Mr. John Sisson, the
Chief Administrative Officer (CAO) of the Town, “a fag” and “a queer” when speaking to
other employees and members of the public. It is alleged that he denigrated and
ridiculed the accomplishments of another employee. Finally it is asserted that he called
John Sisson "crooked" and insinuated to members of the public that his supervisor,
Scott Stakiw, granted special favours to certain persons thus undermining the reputation
of the Town and its employees.
The Employer also relies upon the grievor's conduct and a series of comments he made
which, in its estimation, challenged the authority of the CAO and his supervisor and
threatened the peaceful resolution of workplace issues and disputes. Included within
this broad category also is the Employer's allegation that the grievor monitored his
supervisor's home.
Finally, the Employer maintains that the grievor's actions and conduct are incompatible
with commitments he made when he signed an Acknowledgment Agreement dated April
7, 2010. The thrust of that document is directed at establishing a constructive and
cooperative working relationship and environment, particularly as between the grievor
and his supervisor. In signing the Acknowledgment Agreement the grievor
acknowledged and agreed to a number of expectations applicable to the performance of
his work including, amongst others, following the direction of his supervisor in an
appropriate and professional manner. The lengthy letter of termination details how, in
the Employer's view, the grievor's conduct, statements and attitude violate the
commitments made in the Acknowledgment Agreement.
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The grievor denied some of the conduct or comments attributed to him. For example he
denied referring to John Sisson in the derogatory manner alleged, and denied ridiculing
the accomplishments of his co-worker. He also denied using paid work time for
personal errands, or monitoring his supervisor's home. With respect to other
statements or actions, where he agreed that he made the comments or had engaged in
the conduct alleged, he provided an explanation or context which cast a much different
light upon the matter than the light which the Employer sought to cast upon him. It was
the grievor’s and the Union's position that none of the allegations relied upon by the
Employer were sufficient, either standing on their own or even taken cumulatively, to
warrant the dismissal of an employee with 21 years' service and only a one day
suspension on his record.
The Union submitted that the termination of employment was particularly harsh when,
as here, the Employer did not bring its concerns about the grievor's conduct or
comments to his attention at the time the events unfolded, or when the matters first
came to management's attention. The Union argued that the Employer's delay in
addressing the grievor’s alleged misconduct was indicative of the fact that the conduct
was not serious, and should not be seen to be significant enough to warrant discipline,
and certainly not discharge.
The Union submitted that the Employer failed in its duty to manage, and failed to take
any progressive, corrective action which would bring its concerns to the grievor’s
attention. Instead, the Employer simply "built a file" and then summarily dismissed the
grievor relying on events and comments which it had not previously brought to the
grievor’s attention, and about which it had not complained in a timely fashion. It was the
Union's position that the Employer's delay in addressing its concerns with the grievor,
and its failure to follow basic principles of progressive discipline and thus provide the
grievor with an opportunity to improve or correct his behavior and meet the Employer's
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expectations, was unfair and fatal to the Employer's position that the grievor was
discharged with just cause, or that the employment relationship was no longer tenable.
With this broad overview of the respective positions of the parties I turn to the evidence
of the witnesses and my findings of fact.
Credibility
As noted herein, in those instances where there is a conflict in the evidence of the
grievor and other witnesses, I have generally preferred the evidence of the other
witnesses. I did not find the grievor to be a very satisfactory witness. In his evidence
the grievor was obviously motivated by self interest. This is not surprising. He wanted
to be reinstated to his position as By-law Officer and gave testimony which would help
him achieve that result. In so doing however there was a degree of "revisionist thinking"
or after the fact rationalization as the grievor, sometimes for the first time, offered
"context" or new explanations for his conduct or comments. Throughout his testimony
the grievor was often unable to resist the tug of self interest or a tendency to attribute
cause or blame to others. The grievor's testimony also suffered from some internal
inconsistencies as well as inconsistencies with the contemporaneous documentary
evidence produced. The grievor exhibited an argumentative demeanor during portions
of his cross examination. At times his answers indicated he was either unable or
unwilling to listen and comprehend the questions being asked. The evidence of the
witnesses called by the Employer portrayed the grievor as a person who talks too much
and someone who often says things without forethought. The grievor’s own testimony
confirmed that portrait. More specific examples of these shortcomings in the grievor’s
evidence are set out herein.
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The Events Leading Up To The Acknowledgment Agreement
The grievor commenced his employment with the Employer in 1989. Initially he worked
in the Water and Sewer Department. In or about 1993 he became a By-law Officer and
he held that position until his termination on December 9, 2010.
The evidence indicates that in the four or five years of employment prior to his
termination the grievor’s employment relationship with his supervisor began to change.
The grievor attributes this to the arrival of John Sisson as the new CAO. The Employer
attributes this change to the grievor’s lingering resentment that he was not promoted to
the Chief By-law Enforcement Officer position.
Regardless of the reasons it is clear that, by April 2010, the employment relationship
had deteriorated to such an extent that the Employer was contemplating disciplinary
action which would eventually see the grievor’s employment terminated. From the
Employer's perspective the grievor was an insubordinate, uncooperative employee who
had issues in the performance of his work, including interpersonal and communication
issues with others, and, most significantly, his supervisor. Notwithstanding this view,
except for the imposition of a suspension in 2009 about which a grievance remained
outstanding, the Employer had not imposed any discipline as a result of any alleged
misconduct.
The grievor’s perspective of this time is quite different. Although he recognized and
agreed that his relationship with his supervisor had deteriorated significantly, he
disagreed with the Employer's assertions of poor work performance, insubordination or
interpersonal and communication issues. In the grievor’s view he was, and had always
been, a dedicated employee, with good work habits and communication skills, and a
conscientious hard-working approach to by-law enforcement (as evidenced by, for
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example, his willingness to be on call "24/7"). From the grievor’s perspective what
changed was not the way he carried out his duties and performed his job, but
management's approach to him. As a result the grievor had filed a harassment
grievance dated September 2, 2009.. That grievance also remained outstanding at the
time of the Acknowledgment Agreement.
Within the context of these two quite different perspectives the parties agreed that
things could not continue as they were. The Employer, the Union and the grievor
mutually agreed to, and executed, an Acknowledgment Agreement on April 7, 2010.
That Acknowledgement Agreement states, inter alia,
1. That, consistent with the expectations put forth to the Employee in writing on
March 19, 2004 by the then Chief Administrative Officer, R.M. Clarke, the
Employee acknowledges and agrees to the following expectations and
understandings for work being performed as the By-law Enforcement Officer ...
1.1 That the Chief By-law Enforcement Officer (CBEO) is the Employee’s supervisor
and that the CBEO carries both the authority and responsibility to manage the
activities of the By-law Branch... including making work assignments, monitoring
completion of those assignments, identifying any omissions or mistakes, if any,
and identifying corrective action(s).
1.2 That direction provided to the Employee by the Chief By-law Enforcement Officer
will be accepted by the Employee in an appropriate and professional manner (i.e.
without sarcasm, derogatory comments, etc.)
1.3 That the Employee will follow the Supervisor's directions unless the direction
creates an illegal or unsafe work situation.
...
1.5 That any refusal to follow or accept directions provided by the Chief By-law
Enforcement Officer, other than those addressed in 1.3 above, will result in
further disciplinary action being taken by the Corporation up to and including
termination of employment.
...
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1.7 That as evidence of the Town's commitment to work with the Employee and
OPSEU the Town will not take disciplinary action at this time on alleged previous
issues of insubordination and/or refusals to follow direction although it reserves
the right to do so as below. The parties acknowledge that it is in the best interest
of both the employee and the supervisor to have a good working relationship and
that an opportunity to work with a Workplace Relationship Facilitator will be
arranged by the Town of Bracebridge as soon as possible. It is also understood
by the parties that the other obligations contained in this Acknowledgment
Agreement do not depend on the extent or success of the Facilitation.
1.8 That, notwithstanding 1.7 above, in the event there is any future violations of this
Agreement or any other offense by the Employee becomes known, the Town
reserves the right to consider alleged previous acts of insubordination, refusals to
follow directions or other actions by the Employee, including previous discipline,
when undertaking any future disciplinary action. The Union agrees that it will not
rely on the passage of time either in respect of as yet undisciplined conduct or
with respect to previously recorded discipline. The Town acknowledges that the
Union reserves the right to consider all acts or actions of the Town and to
address them through the grievance and arbitration process as set out in the
Collective Agreement.
2. That this Agreement will constitute an "Acknowledgment Agreement" for the
Employee whereby the Employee and OPSEU acknowledge and agree that any
deviations from the expected work standards identified in the Acknowledgment
Agreement constitute the basis for future disciplinary action by the Town up to
and including termination of employment and that OPSEU reserves the right to
dispute such disciplinary actions up to and including termination of employment
through the grievance and arbitration process a set out in the collective
agreement.
The Acknowledgment Agreement is not discipline. The Employer saw the
Acknowledgement Agreement as a way to move forward and as an alternative to
discipline. The Acknowledgment Agreement does however set out the Employer's
expectations and the respective rights, obligations and duties of the grievor and his
supervisor. The Acknowledgment Agreement is not proof that the Union or the grievor
accepted that the Employer had grounds to discipline the grievor. There is nothing in
the Acknowledgment Agreement to indicate that the Union or the grievor agreed with
the Employer's allegations that the grievor had previously been insubordinate or refused
to follow direction. The Employer considered the grievor’s acknowledgment and
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agreement to follow the direction of his supervisor as significant to establishing a
constructive relationship. The Employer also thought that the assistance of the
Workplace Facilitator would help restore a productive, cooperative and harmonious
relationship to the By-law Enforcement Department.
The grievor saw the document in a somewhat different manner. In cross-examination
he said he signed the Acknowledgement Agreement under duress, because he had no
choice as the Employer had indicated that it would initiate disciplinary action which
would ultimately lead to his termination if he did not sign the Agreement. He considered
the Acknowledgment Agreement as no more than a job description which spelled out
not only his duties and responsibilities, but also those of his supervisor. The grievor had
some concerns that the Acknowledgment Agreement could/would be used against him
and wanted to make sure that the Acknowledgment Agreement reflected the fact that
relationships within the By-law Department "was a two-way street." He had "mixed
feelings" about the assistance of the Workplace Facilitator but agreed that the intent
behind engaging the facilitator was to establish a good relationship within the
department. He acknowledged that it was the Union which had proposed the concept of
such a facilitator and which suggested James Bryson for that role.
The Employer subsequently engaged the services of Mr. Bryson. Mr. Bryson met with
the grievor and Scott Stakiw in May 2010. Thereafter he prepared a report which he
provided to John Sisson on June 2, 2010.
The Bryson report makes six recommendations the first of which is that the grievor
"has clarification yet again that the intent of this process is not solely toward
termination. It is my view that the current process and the involvement of others
including myself and his Union representatives, as well as the development of an
agreement seeking clarity, indicates intent to work toward improvement but it is
my view that Ted remains concerned about a hidden objective."
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(Earlier in his report to Mr. Bryson referred to the grievor’s fear or "conviction that the
process has as its intended outcome his termination from employment.")
The Bryson report also recommended
2. That a formal job description be prepared so that duties and expectations
are clearly presented in a written form as a foundation for discussion when
job tasks and performance discussions are required...
3. That standards for work performance are identified, based on current job
requirements, so that these can support a meaningful conversation about
work performance...
4. That Scott Stakiw go on regular ride outs with Ted for the purpose of
observing the execution of duties, so that he can observe, provide positive
feedback where warranted and offer feedback for improvement where
required...
5. That Ted is provided with coaching/training in communication skills
specifically tailored to the communication skills required in the role of the
By-law Enforcement Officer...
6. That assertive communication training is considered......"
The entire report was not shared with the grievor, the Union, or Scott Stakiw. Instead,
John Sisson prepared a synopsis of the recommendations made by Mr. Bryson. A
memo outlining the recommendations was provided to the grievor and Scott Stakiw on
July 13, 2010. That memo reflects, almost verbatim, recommendations 2-6 of the
Bryson report. It also addresses the first recommendation which speaks to the
concerns expressed by the grievor that the underlying intent of the workplace facilitation
process and the Acknowledgment Agreement was directed at the termination of his
employment. In this regard the memo states:
"As previously discussed and as evidenced by the Corporation's willingness to
bring in a workplace facilitator, my ongoing dialogue with Union representatives,
as well as the development of an Acknowledgment Agreement, the Corporation's
simple goal has been to ensure the efficient and effective delivery of By-law
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enforcement services for the community. This remains the Corporation's goal
and I believe it can be achieved through the dedicated work of the Town's current
By-law Enforcement staff team."
The July 13, 2010 memo outlining the Bryson recommendations was not immediately
well received by the grievor as evidenced by the handwritten notes he made on the
memo when he received it. For example, in relation to this last paragraph, the grievor
wrote "Corporations [sic] caused these problems." Having not seen the report the
grievor apparently had some doubt whether the memo accurately and completely
summarized the report. The Employer invited him to contact Mr. Bryson directly to
alleviate his concerns about the accuracy or veracity of the contents of the July 13,
2010 memo, and the grievor apparently did that. After that, and as set out below, the
grievor did not make further reference to the Bryson report, or its recommendations,
until after October 20, 2010.
The Employer's representatives, and in particular Scott Stakiw, also did nothing further
with respect to the Bryson report or the recommendations made in that report. Scott
Stakiw testified that after the July 13, 2010 memorandum the report and its
recommendations were put on the back burner for two reasons. First, the summer
months are a particularly busy time for the By-law Enforcement Department and other
matters received higher priority. Secondly, an arbitration hearing had been scheduled
for August 27, 2010 to deal with the grievance which had been filed by the grievor in
response to discipline he had received in June, 2009. (The grievor had been
suspended for one day as a result of a complaint of alleged inappropriate conduct
towards a member of the public while he was on duty and performing his job. The
complaint of inappropriate conduct had been made by Mr. Dave Mahon, an owner of
Heather's Home Health Care. The grievor had filed a grievance claiming the
suspension was unjust and without cause.) The Employer wanted to await the outcome
of the arbitration before addressing the Bryson Report recommendations.
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The August 27, 2010 Arbitration/Mediation
On August 27, 2010 the discipline grievance came on for hearing before me. On that
day the parties mediated a resolution to that grievance. The salient features of the
Minutes of Settlement executed on that day are as follows:
1. The one (1) day suspension was to remain on the grievor’s record for one year
from August 27, 2010, or one year from subsequent discipline if discipline was
issued within the year.
2. The grievor would be paid the wages he did not receive as a result of the one-
day suspension if there was no further discipline.
3. The grievor would write a letter to Mr. Mahon that his actions were inappropriate
and apologize for them.
4. The grievor agreed to withdraw the September 2, 2009 harassment grievance he
had filed and also agreed to withdraw an "acting pay" grievance he had filed on
February 11, 2010.
In the Minutes of Settlement and in agreeing to withdraw the harassment grievance, the
grievor specifically agreed to paragraph 1.6 of the April 7, 2010 Acknowledgment
Agreement. He had not previously agreed to that paragraph which required him to
withdraw the harassment grievance. As a result, the Acknowledgment Agreement was
appended to the Minutes of Settlement.
In their Minutes of Settlement the parties agreed to the inclusion of the following clause:
"As of today's date the Town agrees that there is no known cause for other
discipline and the grievor agrees that he knows of no ground for other
grievances. In both cases "known" means "known with the exercise of due
diligence."
This clause caused the grievor to conclude that anything and everything that had
happened before August 27, 2010 was "frozen in time" and could not be brought up,
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talked about, referred to or relied upon. In the grievor’s mind the things that were
“frozen” included the Acknowledgment Agreement which he had signed April 7, 2010
and the Bryson Report and the recommendations made by the Workplace Facilitator.
The grievor’s belief that everything was "frozen" as of August 27, 2010 plays a
significant role in subsequent events. It is therefore convenient that I set out my
findings with respect to that belief.
Even if I accept that the grievor’s belief was honestly held, the belief was erroneous and
completely unfounded. (Indeed, in his evidence the grievor indicated that he now
understands that he was wrong and that "only the disciplinary action was frozen." ) I
have had some difficulty determining how or why the grievor came to his belief in the
first place. There is no evidence to suggest that anyone told him that everything was
frozen. He testified he came away with that view as a result of the discussions that took
place on August 27, 2012. However, the Minutes of Settlement he signed clearly
referenced the April 7, 2010 Acknowledgment Agreement and appended it to the
Minutes of Settlement so it is difficult to see how the grievor could conclude that the
Acknowledgment Agreement, or the Workplace Facilitator's report and
recommendations which came out of that Acknowledgment Agreement, were no longer
in effect.
Having regard to the evidence and testimony of the witnesses, including the grievor
himself, the conclusion to be drawn is that the grievor’s belief that everything was
"frozen" stemmed from his inability (or unwillingness) to listen and/or objectively
understand matters. The grievor’s evidence demonstrated a penchant for rationalizing
conduct or events by filtering them through an extremely subjective, personal point of
view that was, at times, inconsistent with the more objective documentary evidence, or
contradicted by the evidence of others. His belief that as of August 27, 2010 everything
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was "frozen" when no other signatory to the Minutes of Settlement and no other
participant in the mediation/arbitration process which led to the execution of those
Minutes of Settlement held that view is demonstrative of this characteristic. In turn that
characteristic has affected the overall reliability of the grievor’s evidence as during his
evidence the grievor consistently demonstrated an inability to be objective about events
and circumstances.
The Events Following August 27, 2010
On August 31, 2010 Scott Stakiw had a conversation with Jordan Atkinson, a summer
student in the By-law Department. It was Jordan Atkinson’s last day of work and Scott
Stakiw accompanied him in the truck that day. I accept Scott Stakiw’s evidence that the
conversation he had with Jordan Atkinson that day arose in an innocent manner. It was
during this conversation that Jordan Atkinson volunteered information about statements
made by the grievor which he, Jordan Atkinson, considered inappropriate and
unprofessional. It was his view that Scott Stakiw should know about the things which
the grievor had said. This conversation subsequently led the Employer to conduct an
investigation. That investigation in turn led the Employer to conclude that the grievor
had engaged in the following culpable misconduct referred to in the letter of termination:
(1) That the grievor counselled the summer students to work slowly.
(2) That the grievor made offensive and discriminatory comments about John
Sisson's sexual orientation.
(3) That the grievor made derogatory and denigrating comments about his
supervisors, John Sisson and Scott Stakiw, which undermined their
reputation, and consequently the reputation of the Town.
I turn first to the allegation that the grievor counselled the summer students to perform
their work slowly. Jordan Atkinson testified that while he was counting and rolling the
coins from the parking meters the grievor told him he was going too quickly and that he
had to slow down because he didn't "want the Town to expect him to go at the pace I
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was going." Jordan Atkinson was upset that in effect he was being told not to do his job
well because it would make the grievor look bad. Similarly, Kaitlyn Dyer, another
summer student, testified that the grievor also told her to "slow down with sorting or else
it’s going to make him [the grievor] look bad." Ms. Dyer took the comment with a grain
of salt and continued to work at her own pace.
When questioned about the statements during the fact-finding meeting of November 26,
2010 the grievor admitted he told both students words to the effect that they need to be
accurate and as a result proceed slowly and not hurry through the coin sorting process.
He also said that he could not speak to how Jordan Atkinson interpreted his remarks.
Although the thrust of the grievor’s response during the fact-finding was that he only
counselled the students to go slowly to ensure accuracy, his testimony during the
hearing offered a different explanation for the statements attributed to him by these
students. During his testimony he added to the accuracy explanation and stated, for the
first time, that the statement was an "icebreaker", something he said to put the students
at ease when he oriented them to the coin sorting process. He testified that new
employees were nervous when they first went into the coin room and when confronted
with the process. They were also eager to impress. He therefore told all new
employees not to go too fast "or they'll expect me to go that fast", or made a similar
statement, to ease the tension and the fear of the employee about the coin sorting task.
He testified that the line always brought a smile to the face of the person to whom it was
made.
The grievor's testimony in this area is an example of what I've earlier termed as
"revisionist thinking." If, as the grievor testified, he always made this or a similar
statement to all new employees as an "icebreaker" it would have been a simple matter
to give that straightforward explanation at the fact-finding meeting. That he did not do
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so suggests that this is an after-the-fact rationalization for a statement which the grievor
now realizes could be taken the wrong way.
Neither Jordan Atkinson nor Kaitlyn Dyer had any motive to fabricate their testimony.
Both gave their evidence in a clear, candid and concise manner. When the notion that
the statement was made in relation to ensuring accuracy was put to them both students
testified that the comments made by the grievor were unrelated to accuracy. Both
indicated that the statement to slow down was made in context of how it would reflect
on the way the grievor performed the task of sorting the coin when the summer students
were not there.
In all of the circumstances I find that the grievor told the students to slow down because
if they didn't he would be expected to go equally fast or because it would make him look
bad if he didn't do the task as quickly. That was the message conveyed to the students
by the words chosen by the grievor. If, as the grievor maintains, he was not counseling
the students to work slowly for the ulterior motive which his words suggest, this is a
typical example of the grievor talking too much, and not considering the effect or
consequences which his words may have.
The grievor’s penchant for talking too much is also reflected in the second and third
areas of misconduct investigated by the Employer as result of the conversation between
Scott Stakiw and Jordan Atkinson.
Jordan Atkinson testified that the grievor told him that the reason he did not get the
Chief By-law Officer position was because Murray Clarke, the previous CAO, had an
affair with his [the grievor’s] wife. He testified that the grievor told him Murray Clarke
was crooked and corrupt, and that the current CAO, John Sisson, was also crooked and
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corrupt. Jordan Atkinson also testified that the grievor told him that John Sisson was “a
queer." Finally, it was his evidence that the grievor told him that his supervisor, Scott
Stakiw, was anti-conflict, stayed in his office all day, and didn't do any of the
enforcement work.
Kaitlyn Dyer testified that the grievor told her John Sisson was “a fag." (In her evidence
she said it was possible he said "a queer" but she remembered it as a conversation that
John Sisson was "a fag.") She also testified that the grievor told her that he did most of
the work and that Scott Stakiw didn't do very much. In cross-examination, when it was
suggested that the grievor told her he did all the outside work while Scott Stakiw did
the administrative work, Kaitlyn Dyer agreed but testified that "it wasn't put as outside
per se, but it was the enforcement or the bulk of the job."
The picture painted by the evidence of both these witnesses is of an employee who
gossips, talks too much, and who says things designed to put down his supervisors.
It is also convenient at this point to refer to the evidence of Greg Atkinson which also
touches on the allegation that the grievor called John Sisson “a queer" and made other
derogatory comments about John Sisson and Scott Stakiw.
Greg Atkinson is Jordan Atkinson's father. Both Mr. Atkinson's sons have worked as
summer students in the By-law Department. He knows the grievor. On October 19,
2010, Greg Atkinson received a parking ticket. He had been in the bank longer than
anticipated and the meter at which he had parked had expired. As he was driving away
he noticed the grievor and so stopped to speak to him to see if anything could be done
about the ticket. During his evidence he described the conversation which followed as
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the grievor "ranting and raving" about things. Amongst the statements the grievor made
to him that day were the following:
1. The grievor couldn't do anything about the ticket because if Scott Stakiw found
out "he would have a bird or something to that effect." He also couldn't do
anything about the ticket because he had too many problems with the Town and
he had filed several grievances against the Town.
2. The grievor told Greg Atkinson that he [the grievor] was getting screwed over by
the Town.
3. The grievor told Greg Atkinson that John Sisson was "a queer" who hated men
(something which did not make sense to Greg Atkinson).
4. The grievor told him that he didn't get along with Scott Stakiw and that he, the
grievor, was the person responsible for getting Jordan Atkinson his summer job.
The grievor advised Greg Atkinson that he was going to find out if the Town had
received a grant to hire the previous summer student because she wasn't a
student and it was illegal for the Town to have hired her as she was not a
student.
5. Finally, Greg Atkinson testified that the grievor told him that the only reason he
gave him a ticket was because he noticed his expired parking permit. When
Greg Atkinson asked how he could get his permit renewed the grievor advised
him not to bother because permits were not issued unless you have your truck
lettered or unless your name is Dave Mahon of Heather's Home Health care. (I
note parenthetically that this is the constituent who had made the complaint
about the grievor's conduct which led to the imposition of the suspension and the
grievor’s letter referenced in the August 27, 2010 Minutes of Settlement).
Before addressing the first 4 statements I note that it was Greg Atkinson's evidence that
from these last comments he understood the grievor to say that "favours" or
"exceptions" were made for different people, and that "his boss Scott Stakiw would
make exceptions."
Greg Atkinson couldn't believe "the negativity towards the Town." From the grievor's
demeanor and words he "got the impression from [the grievor] that there was a lot of
hatred from [him] toward the Town." As a result, when, later that day, he went to pay
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the $10.00 parking ticket he had received he asked to speak to Scott Stakiw. In his
view Scott Stakiw should know about this negativity and what the grievor was going
around saying. It was Greg Atkinson's perspective that people should appreciate "the
jobs they have... not fight with each other... or other departments like that... jobs are
hard to find in a recession."
Before specifically addressing the grievor’s evidence in response to these allegations I
note that I found each of these three witnesses to be credible and, as noted below,
prefer their evidence to that of the grievor. I have rejected the ulterior motives for
testifying which the grievor sought to attribute to these three witnesses. The notion that
Greg Atkinson testified because he sought revenge for a costly ticket he had received
some four years previously stretches credulity. Greg Atkinson presented himself as a
rough around the edges, straightforward man who was upset that the grievor did not
appear grateful for his job. It is true that he didn't respect the grievor or his work ethic
(he told his son not to trust the grievor and to keep his distance) and that may have
been the reason he spoke to Scott Stakiw. His evidence however was open and
forthright and not significantly affected in cross-examination. Equally I have already
indicated that I found Jordan Atkinson and Kaitlyn Dyer's testimony to be honest, candid
and consistent. I do not accept that either had anything to gain by their testimony. I do
not accept that by his testimony Jordan Atkinson sought to curry favour to improve his
future work prospects. There was no evidence that Kaitlyn Dyer had any motive for
fabricating her evidence. Both Jordan Atkinson and Kaitlyn Dyer had a good
recollection of events that was not materially affected in cross-examination.
By way of contrast the grievor’s version of events and recollection of these various
statements attributed to him demonstrated far less clarity. Moreover, he was unable to
resist the tug of self interest as he testified about the offensive, discriminatory and
derogatory comments attributed to him by these witnesses.
20
The grievor could not recall any discussion with either Jordan Atkinson or Kaitlyn Dyer
in which he discussed John Sisson's sexual orientation. Nevertheless he denied ever
using the words "fag" or "queer." He testified that he had never initiated any discussion
about John Sisson's sexual orientation but if asked if John Sisson was "a queer" he
would always respond and say "yes he is gay." Thus, if the offensive "fag" or "queer"
terms were used, those terms would originate with others and not with him. For his part
the grievor would respond using what he considered to be the more acceptable term
"gay" to describe a same sex relationship.
It was the grievor's testimony that he had been asked questions about John Sisson's
sexual orientation "more than once." He could not remember the names of any persons
who had asked him that question. He provided as an example the fact that "on more
than one occasion" constituents had attended at the Town Hall service counter and
during the course of a conversation about a By-law had raised the CAO's name and
asked questions such as "I hear the CAO is queer" or "I hear he's a fag." In each
instance the grievor indicated he would respond "yes he's gay." Therefore, it was the
grievor’s evidence that although he did not have a specific recollection of doing so, if
either Jordan Atkinson or Kaitlyn Dyer initiated the conversation and asked a question
about John Sisson's sexual orientation he would have responded in similar fashion
using the more acceptable term "gay".
The grievor’s evidence in relation to his interaction with Greg Atkinson about this subject
matter was much the same. According to the grievor, when he discussed the parking
ticket and the matter of obtaining a parking permit with Greg Atkinson and told him that
there was nothing he could do, he told Greg Atkinson that if he had a complaint he
should take it up with the Chief By-law Officer, Scott Stakiw. When asked what good
that would do the grievor responded "that's the process." In turn Greg Atkinson
responded "and then what will he do? Take it to the CAO? I hear he's queer." The
grievor responded “yes he's gay.”
21
In the course of his evidence the grievor also testified that as result of "this process"
(the grievance/arbitration process) he now understands that it is wrong and
unacceptable to discuss the sexual orientation of the Town’s CAO with anyone. He now
knows and accepts that he should not discuss this subject with other employees or with
the Town's residents. He indicated in this testimony that he was sorry if his comments
caused hurt or embarrassment. If reinstated he would not talk about the subject matter.
I have not found the grievor’s evidence with respect to this allegation to be credible. I
accept the evidence of the three witnesses that during the course of his conversations
with them the grievor referred to the Town’s CAO as "a queer" or "a fag." It is simply too
coincidental that each of these witnesses would, at their initiative, and in the
circumstances described, raise a question about the CAO's sexual orientation.
Moreover, even allowing for the fact that it's a small town where many residents may
know each other, it stretches credulity to accept the grievor’s evidence that residents
would attend at the Town Hall and in an open and public setting, at their initiative, while
talking about by-law enforcement matters, raise questions about the CAO’s sexual
orientation, and that this had happened "more than once."
John Sisson testified he found the words inappropriate, particularly for a co-worker
speaking about another employee. He described the words as demeaning, derogatory
and hurtful. I agree and find that the grievor used these words precisely because they
were demeaning and derogatory of the CAO.
I turn next to Mr. Atkinson's evidence that during the discussion of parking permits the
grievor left him with the impression that Scott Stakiw would grant favours to some of the
Town's residents. During the course of the investigation the grievor indicated that Mr.
Atkinson had asked him why Heather's Home Healthcare had two permits and that he
merely responded that Mr. Atkinson should check with Scott Stakiw. At the time the
22
grievor knew that in fact he was the person who had issued both parking permits to
Heather's Home Healthcare. In his cross-examination in this area the grievor testified
that he had issued both permits on the explicit instructions of John Sisson whom he had
consulted at the time the permits were issued. The grievor was of the view that the two
permits should not have been issued and that is why he did not provide that explanation
to Mr. Atkinson or at the fact-finding meeting. He testified that he was "not about to
divulge that information [that Heather's Home Healthcare had received two parking
permits] to Mr. Atkinson.” It is somewhat ironic that the grievor felt he could not divulge
information about parking permits which he had granted yet felt no compunction about
divulging the sexual orientation of the CAO. However, put in its most favourable light, if
the grievor did not intend to insinuate that Scott Stakiw granted special favours, this is
yet another example where the grievor failed to appreciate the impression his language
and demeanor had on others.
Having regard to the totality of the evidence and my assessment of the grievor's
testimony I find that it is more likely than not that the grievor made not only offensive
comments about John Sisson’s sexual orientation, but also made the other derogatory
and denigrating comments about which these three witnesses testified. I accept that in
gossiping about John Sisson and Scott Stakiw, in suggesting that John Sisson was
crooked and corrupt, in stating he was getting screwed by the Town, by implying that
Scott Stakiw didn't do his share of the work, and by insinuating that favours were
granted to some residents but not others, the grievor was "bad mouthing" his
supervisors in an attempt to undermine them and tarnish their reputation.
September 8, 2010
I heard evidence from both the grievor and John Sisson about a conversation they had
in John Sisson's office on September 8, 2010. John Sisson testified that the grievor
made an inappropriate comment to him during that discussion, namely, that the
23
previous CAO had been "run out of Town" and "maybe it's time for the current CAO to
leave." The grievor also recalled the discussion he had with John Sisson and denied
making these or similar statements.
I have concluded that I need not resolve this dispute in the evidence. What is clear from
the testimony of both witnesses is that at the time of this conversation John Sisson did
not in any fashion indicate to the grievor that he had said anything inappropriate.
Indeed, the evidence of both witnesses was that at the end of the conversation John
Sisson thanked the grievor for his comments.
In these circumstances I find that it would be most unfair and contrary to any accepted
standard for the imposition of discipline to rely on alleged inappropriate comments made
approximately 3 months prior to the termination. John Sisson testified that he didn't
proceed with disciplinary action as a result of the statements allegedly made because
the conversation took place in the privacy of his office without witnesses and followed
shortly on the heels of the August 27, 2010 mediation/arbitration so that he was still
optimistic that following that event his work relationship with the grievor would move
forward. As a result, instead of disciplining or confronting the grievor with the fact that
he considered his comments inappropriate, he merely made a note of the conversation.
In my view this response misses the point. Progressive discipline is intended to correct
and improve conduct and behavior. An employee who is not told that the Employer
regards his behavior as unacceptable is not given the opportunity to correct that
behavior and is unaware that his behaviour has placed his job in jeopardy. A Manager
must speak to, counsel, direct and, where appropriate, may discipline an employee.
Management of the behavior and performance of an employee involves more than
making notes of incidents or discussions in order to rely upon them weeks or months
later to justify discipline. If, on September 8, 2010, Mr. Sisson considered the grievor's
comments to be unacceptable he should have told him then and should have given the
24
grievor the opportunity to explain himself and/or subsequently improve his conduct. In
the circumstances, because that was not done on September 8, 2010, I have
determined that the alleged inappropriate comment cannot be relied upon by the
Employer 3 months later to support its termination of the grievor's employment.
October 19, 2010
The next item which the Employer relies upon occurred on October 19, 2010. There is
nothing in the evidence to suggest that in the timeframe between August 27, 2010 and
October 19, 2010 (with the exception of the September 8, 2010 conversation) there
were any issues or concerns with respect to the grievor's work performance or behavior.
During this timeframe however the Employer was investigating the matters first raised
by Jordan Atkinson. On or about September 19, 2010 Jordan Atkinson provided a
written statement to the Town confirming the contents of his discussion with Scott
Stakiw on August 31, 2010. Notwithstanding this written statement the Employer did
not confront the grievor with any of the allegations made by Jordan Atkinson. Having
been criticized by the Union for its precipitous handling and investigation of another
matter the Employer wanted to make sure it completed a thorough investigation. The
continuing investigation included, for example, interviewing other summer students who
had worked with the grievor. In the result the investigation was ongoing when a series
of events occurred in rapid succession. These events were subsequently relied upon
by the Town to support its position that the grievor’s employment should be terminated.
As noted, on October 19, 2010 Greg Atkinson advised Scott Stakiw of his conversation
with the grievor. Earlier that day, Cheryl Kelly complained to John Sisson that she felt
the grievor's comments about her to another co-worker violated the Employer's newly
approved Harassment Policy. Ms. Kelly considered comments she had overheard
while the grievor was talking to her assistant to be embarrassing and hurtful and
designed to ridicule her accomplishments. I turn therefore to the evidence with respect
25
to the substance of this incident relied upon by the Employer to support the grievor's
discharge.
Cheryl Kelly is the Town's Director of Economic Development. Although evidence of
any past incidents was not led, it is clear from the evidence that there is a "history"
between Ms. Kelly and the grievor. That history is not one of a positive working
relationship. Ms. Kelly testified that her relationship with the grievor had caused her to
feel uncomfortable at work and to consider and look for employment elsewhere.
Ms. Kelly had recently received a nomination for a “Woman of Distinction” award
presented by the YWCA. The award was in the Business and Entrepreneurship
category. She had been nominated for the award by others not employed by the Town.
On October 19, 2010, while she was in her office on the phone, Ms. Kelly saw the
grievor walk over to her assistant’s desk and overheard portions of the conversation he
had with Jill Harris her assistant. From Ms. Kelly's perspective the grievor knew she
was in her office as her door was open and he had looked in. From the snippets of
conversation she overheard she felt that the grievor was ridiculing her nomination for
the award. She felt that the grievor spoke loudly and intended that she overhear his
comments. She was embarrassed and worried that others had also overheard his
remarks.
Jill Harris testified and confirmed that the grievor had spoken to her about the award for
which Cheryl Kelly had been nominated. Jill Harris testified that she was uncomfortable
during the conversation and concerned that other members of the public standing by the
public counter may have overheard it. According to Jill Harris the grievor approached
her desk and said words to the effect that he wanted to nominate her, Jill Harris, for a
“Woman of Distinction” award. When Ms. Harris failed to respond and suggested to the
grievor that he didn't know what he was talking about the grievor said that "she got
26
nominated just for doing her job" and gestured towards Cheryl Kelly's office. Jill Harris
was uncomfortable, may have laughed nervously, and refused to engage further in the
conversation. The grievor said something to indicate that he sensed that Ms. Harris
didn't want anything to do with the conversation ("you're not going to bite are you?")
and moved on.
Jill Harris testified that it was her belief that the grievor's conversation with her on that
day was directed at Ms. Kelly. She described his comments as "a dig" and testified that
there was no doubt in her mind that the grievor was trying to belittle Ms. Kelly's
nomination. She did not think the conversation was funny or that the grievor was joking
or saying things in jest adding that "he may have found it funny at Cheryl's expense but
I'm certain he knew I didn't find it funny." From Ms. Harris’ perspective the grievor's
comments were derogatory and intended to ridicule Ms. Kelly.
Neither Ms. Kelly nor Ms. Harris said anything to the grievor either on that day, or
subsequently, to indicate to him that they found his comments inappropriate,
unprofessional or offensive. Ms. Kelly complained to the CAO about the circumstances
but this matter was not raised with the grievor until the fact-finding meeting of November
26, 2010
Finally I note that Scott Stakiw testified that on October 20, 2010 the grievor made
comments similar to those made to Jill Harris to him. The grievor indicated that Cheryl
Kelly's nomination was “a joke” because she was nominated for "only doing her job." It
was Scott Stakiw's evidence that the grievor advised him that he'd spoken to Jill Harris
about the matter and asked her whether he should nominate her for the award because
she does all the work. It was Scott Stakiw's evidence that the grievor called Ms. Kelly
"fat ass" during this conversation. Mr. Stakiw also did not tell the grievor that his name
calling or any of his comments were inappropriate.
27
The grievor denied ever referring to Cheryl Kelly as "fat ass." He testified that it was
Scott Stakiw who used that term to describe Ms. Kelly. The grievor also testified about
what he described as a very short two-minute conversation he had with Jill Harris. He
said the conversation was casual and joking and was not about, or directed at, Cheryl
Kelly. It was his testimony that the conversation was about nominating persons in
single incumbent positions and that he would nominate Ms. Harris and that in turn Ms.
Harris could nominate him as By-law Officer of the year. It was his evidence that his
comments were not intended to demean or ridicule Cheryl Kelly but that they were said
in a joking manner and were intended to give praise to Jill Harris who was a hard
worker. The grievor knew that Ms. Kelly had been nominated for the award but in
cross-examination insisted that his conversation with Jill Harris "had nothing to do with
Cheryl Kelly whatsoever."
Again, and on balance, having regard in particular to the evidence of Jill Harris to whom
the comments were made, I accept that on October 19, 2010 the grievor made
comments which sought to belittle a co-worker and ridicule one of her achievements,
namely her nomination for a “Woman of Distinction” award. The grievor may have
thought he was joking, but his attempt at humor was at the expense of his co-worker.
Whether or not others beyond Ms. Harris heard his comments is largely irrelevant. It is
sufficient that Ms. Harris was privy to the grievor's attempt to demean her boss. I prefer
Ms. Harris’ evidence to that of the grievor. I do not accept his assertion that his
comments had nothing whatsoever to do with Cheryl Kelly. Ms. Kelly had just been
nominated for an award and the grievor struck up a conversation with her assistant in
which he attempted to denigrate that accomplishment. His explanation that he was
talking about single incumbent positions is another example of an after the fact
rationalization.
28
October 22, 2010
The next event upon which the Employer relies to support the discharge occurred on
Friday, October 22, 2010. A significant factor in the events of that day is the grievor's
mistaken belief that "everything was frozen" and that the Acknowledgment Agreement
and the Bryson report and its recommendations were no longer in effect.
On October 20, 2010 Scott Stakiw wrote a memo to the grievor to follow-up on the
Bryson report and its recommendations. This memo reiterates the five
recommendations contained in John Sisson's July 13, 2010 memorandum. In addition
to stating that the coaching/training in communication would involve the Human
Resources Assistant or an outside consultant, and that he would be accompanying the
grievor on some patrols and calls over the next few weeks, Mr. Stakiw’s memo states:
"In order to get this process underway, and implement the recommendations of
the workplace facilitator, I would like you to spend some time to put together a
draft job description for your position. If you would like, you can use the various
By-law Officer job descriptions from employment ads that I have saved over the
years. Let me know if you would like to look at them and I will make you some
copies.
Attached to Mr. Sisson's memorandum of July 20, 2010 as an Appendix "B" is a
"Professional Conduct Task List" that could serve as a standard for duty based
performance, as identified in item 2"
Following the receipt of that memo, on Friday, October 22, 2010 the grievor went to
Scott Stakiw's office to discuss it. According to the evidence of Scott Stakiw the grievor
made comments which he construed to be threatening. The grievor warned him to "be
careful" about proceeding with the Bryson recommendations because they had arisen
prior to the August arbitration and so were no longer in effect and he, the grievor, was
not bound by the recommendations. As part and parcel of the conversation that day it
was Scott Stakiw's evidence that the grievor told him he could accompany him any time
but that working on the job description would have to be done through the Union and
29
the Town working together jointly. From his comments that day Scott Stakiw
understood the grievor (a) to be warning him that if he pursued the implementation of
the Bryson recommendations he, the grievor, would lodge additional grievances against
him for harassment, (b) that the grievor was not prepared to participate in drafting a job
description.
The grievor had a somewhat different recollection of the conversation. He testified that
if he said "be careful" at all it would not be as a threat or warning but in context of the
statement he might have made that Scott Stakiw should be careful because the Bryson
report was "frozen in time" and could not be brought up again. The grievor wondered
why references were again being made to the Workplace Facilitator's report given the
passage of time since the report was issued and the intervening August 27, 2010
arbitration/mediation. He agreed that he told Scott Stakiw that he could accompany him
on “ride-outs” at any time. He also agreed that he advised him that the job description
was up to the Union and that there was a Joint Job Evaluation process.
In my determination of this matter I have not considered the alleged "threat" that Scott
Stakiw should "be careful." The evidence indicates that when, during that conversation,
Scott Stakiw advised the grievor that he felt threatened by his choice of words to "be
careful", the grievor and Scott Stakiw had a fruitful and constructive discussion about
the language each used to communicate with the other. According to the evidence of
both Scott Stakiw and the grievor during that conversation the grievor acknowledged
that at times his words could be misinterpreted and indicated he would try to improve.
The grievor also acknowledged that Scott Stakiw was his Supervisor and could direct
his work. The grievor also pointed out to Scott Stakiw that the problem in
communicating was a two-way street because, at times, Scott Stakiw spoke to him in an
inappropriate manner (i.e. by comparing his work to that of the summer students). In
light of this I do not consider it appropriate for the Employer to rely on the fact that the
grievor may have told Scott Stakiw to “be careful.”
30
I accept however that on Friday, October 22, 2010, by his comments the grievor
indicated that he would not be spending time to put together a draft job description as
instructed because, in his view, that was a matter for the joint Employer/Union Job
Evaluation Committee. Moreover, stemming from his belief that everything was
"frozen," the grievor indicated that, from his perspective, he was no longer bound by the
Acknowledgment Agreement or the recommendations made in the Bryson report.
October 25, 2010
The grievor’s comments and his position with respect to the Acknowledgment
Agreement were troubling to the Employer, especially in light of events which
transpired the following Monday, October 25, 2010. On that day, early in the morning,
the grievor spoke to John Sisson about the memorandum he had received from Scott
Stakiw.
Both the grievor and John Sisson testified about this discussion. Having regard to their
evidence I find the following aspects of that conversation to be relevant to my
determination of this grievance.
First, the grievor commenced the discussion by asking why he was continuing to be
“harassed” by his supervisor. It was his view that the October 20, 2010 memo he had
received from his supervisor to implement the Bryson recommendations was a form of
harassment (because, in his view, the Bryson report was something in the past and had
been “frozen in time”.)
Secondly, the grievor indicated to John Sisson his belief that as a result of the August
27, 2010 settlement the Acknowledgment Agreement and the Bryson report and
31
recommendations were no longer in effect and that he was not bound by them. John
Sisson did not say anything to specifically indicate that the grievor’s belief was
erroneous, or that he had a different view of the August 27, 2010 settlement, but did
indicate either that the Town would be going forward with the Bryson recommendations
or that he would do what he had to do. The grievor's response was that if the Town
went forward with the Bryson recommendations it would be grieved.
Finally, in context of the discussion that matters before August 27, 2010 were "frozen"
and that he [the grievor] and Scott Stakiw were getting along fine the grievor said either
"if you keep poking a dog with a stick eventually the dog bites back" or “if you keep
poking a dog you are going to get bit. You should think about it.”
John Sisson was shocked by these words. He interpreted them as a threat by the
grievor that if the Town followed up with the Bryson report recommendations the grievor
"would disrupt the activities of the Corporation" or "disrupt the workplace." However,
rather than addressing this with the grievor that day, and rather than telling him that it
was inappropriate and that he [John Sisson] considered the comment a threat, John
Sisson escorted the grievor to the office of Carole Wakefield, the Town's Treasurer, and
asked him to repeat the statement he made in her presence. The grievor did that.
There was no further conversation between John Sisson and the grievor that morning
but later in the afternoon the grievor approached Mr. Sisson and indicated that his
statement that morning was simply intended as a metaphor for how well he and Scott
Stakiw were getting along and that he didn't mean anything else by it.
Mr. Sisson did not understand how this comment could be a metaphor to describe the
grievor's relationship with his supervisor. However, he did not engage in further
discussion with the grievor or take any further action. He did not discipline the grievor
or in any fashion indicate that he found the comments he made that morning
32
inappropriate or threatening. He did make notes of both conversations, as did the
grievor.
During his testimony the grievor admitted to making the statement that “if you poke a
dog with a stick it eventually bites back” and confirmed that he meant it metaphorically,
to describe his relationship with Scott Stakiw. In using this metaphor he considered it
similar to "let sleeping dogs lie" and used it to say "why are you stirring things up from
the past when Scott Stakiw and I are getting along so well." The grievor testified that
after he went home for lunch and discussed the matter with his spouse he realized his
words could be misinterpreted and misconstrued. That is why, later that afternoon, he
went to both John Sisson and Carole Wakefield to explain that he meant his words to be
a metaphor (similar to "let sleeping dogs lie") because he and Scott Stakiw were doing
well.
I also heard some evidence from Susan Keast, Human Resources Assistant, and Tom
Young, Union President, about this conversation. Their evidence differed as to whether
or not they discussed this matter on the evening of October 25 as they were awaiting
the municipal election results. In my view their evidence with respect to this ground
relied upon by the Employer to support the grievor's discharge adds little to the direct
evidence of the grievor and John Sisson. As a result I have determined that I need not
resolve the discrepancy in the evidence of Susan Keast and Tom Young regarding their
respective recollections of their conversation on October 25, 2010.
Based on the totality of the evidence I find that when he first made the statement that if
you poke a dog with a stick it eventually bites back the grievor intended to warn the
Employer that matters would not go well if the Employer insisted on implementing the
Bryson report and its recommendations. That it was a warning is evident from the
circumstances and words used. The grievor came to John Sisson's office to complain
33
that his supervisor was harassing him because he had been given a memo which
sought to implement the recommendations of the Bryson report. I note that there was
nothing wrong or harassing about that memo. Even without the Bryson report the
memo was a legitimate exercise of management rights. It directed the grievor to put
together a draft job description and performance based standards. The memo said his
supervisor would accompany him on some patrols, and referred to the need for training
which was to be arranged. Nonetheless the grievor saw this as a form of harassment.
When John Sisson told him the Town would proceed with these matters which were a
legitimate exercise of managements’ rights, the grievor’s immediate reaction was
aggressively confrontational.
I accept that the grievor considered his phraseology to be a metaphor. A metaphor is
figurative language, or a figure of speech to describe something using symbolism or
comparison rather than in a literal manner. It is telling that initially the grievor did not
use the "let sleeping dogs lie" statement to describe his view that because he and Scott
Stakiw were getting along well past matters should not be raised. Rather he used an
aggressive "the dog will bite back" comparison to indicate he would retaliate if his
supervisor sought to implement the Bryson recommendations. The grievor's
subsequent characterization that his statement was similar to "let sleeping dogs lie" is
an after-the-fact rationalization made when he realized that what he had said
could/would be interpreted as threatening.
Ultimately however I have placed little reliance on this incident which is referenced in
the letter of termination. That is because of two factors. First, after some reflection and
discussion with his wife, the grievor effectively tried to recant the words he belatedly
realized were threatening. The grievor on his own initiative sought out both John Sisson
and Carole Wakefield and attempted to explain what he meant. He sought to correct
the impression he had left by his earlier comments. Secondly, the fact remains that at
the time no one from management told him that his comments or behavior was
34
inappropriate and would not be tolerated. Notes were made but no one spoke to the
grievor to, for example, ask him to clarify what he meant, to advise him that they found
his comments threatening, or to direct him to comply with Scott Stakiw's memo.
Although I have not placed much reliance on the perceived threatening statement made
by the grievor on October 25, 2010, I do consider it relevant that in both his discussion
on October 22, 2010 and again on October 25, 2010 the grievor indicated that the
Acknowledgment Agreement and the Bryson recommendations were no longer in effect
because they were "frozen" and that he did not have to follow the recommendations
which Bryson had made and which his supervisor sought to implement. In cross-
examination the grievor confirmed that he felt that he did not have to follow the direction
to implement the Bryson recommendations. I also consider it significant that when
provided with a legitimate supervisory direction, as he was when the October 20, 2010
memo was given to him, the grievor characterized this as "harassment.”
The grievor's response to the October 20, 2010 memo from his Supervisor was ill
founded but reflective of his attitude and stubbornness. He felt that because of the
August 27, 2010 Minutes of Settlement, the Acknowledgement Agreement and Bryson
report could not be referred to, so he was not going to accept what were reasonable
and legitimate directions which mentioned either of those documents. This attitude is at
odds with the well-established "work now, grieve later" rule. In this instance the grievor
should have followed the directions of his Supervisor and should have raised the issue
of the appropriate interpretation and effect of the Minutes of Settlement with his Union
and/or have the issue dealt with through the grievance arbitration process. He should
not simply have taken matters into his own hands and responded to his supervisors that
he was no longer bound by the Acknowledgment Agreement and the Bryson
recommendations.
35
However, I agree with the Union that the Employer is not entirely blameless in this state
of affairs. The Employer did absolutely nothing vis-à-vis the Bryson recommendations
between July 13, 2010 and October 20, 2010. Following the discussions the grievor
had with Scott Stakiw on October 20, 2010, or John Sisson on October 25, 2010, the
Employer also did not do anything either to implement those recommendations, or to
correct the grievor's impression that the Bryson report and the Acknowledgment
Agreement were no longer in effect. Except for indicating that the Town intended to
follow through with the recommendations there was also no follow-up to the October 20,
2010 Memorandum. No further direction was given to the grievor to prepare a draft job
description or to work on duty based standards for work performance. Nothing further
was done about the Bryson recommendations or about the grievor's statements to Scott
Stakiw or John Sisson until the November 26, 2010 fact-finding meeting. Then the
grievor was simply asked whether he made the statements attributed to him by Scott
Stakiw and John Sisson.
November 3, 2010
The next ground for discharge upon which the Employer relies is set out in the letter of
termination as follows:
"On or about November 3, 2010, when you were supposed to be working, you
were at home in the middle of the afternoon. You had no need to go home at this
hour to let your dog out, or at least if there was an urgent need, you should've
reported to your supervisor that you were taking time off work to do so. Even if
there was an urgent requirement, you had no need to park your truck inside the
garage and close the garage door for an errand that shouldn't take more than 30
seconds."
Both the grievor and Scott Stakiw testified about the events of November 3, 2010. Scott
Stakiw testified that he had received a call from the OPP indicating a man had found a
stray dog, possibly injured, on the highway. Scott Stakiw spoke with the man, advised
him a By-law Officer would meet him in approximately 30 minutes, and then called the
36
grievor at 2:15 p.m. The grievor did not answer his cell phone and so Scott Stakiw left a
voicemail message with the details of the location and advised the grievor to meet the
man with the dog in 30 minutes. At 3:05 p.m. the Town receptionist called Scott Stakiw
to indicate that the man had called again as a By-law Officer had not shown up to take
the dog. Scott Stakiw again called the grievor and left a second voicemail because the
grievor again didn't answer his phone. Scott Stakiw decided to drive by the grievor's
house. The grievor was not in the office and had failed to answer two voice mail
messages that had been left for him in the past 50 minutes. Scott Stakiw had not seen
the grievor's truck in his own travels.
Scott Stakiw arrived at the grievor's house at approximately 3:08 pm and parked his
truck. As he was walking up the driveway the grievor came out of his house. The
grievor was asked why he was at home and reported it was to let the dog out. In
response to the question why his truck was parked in his garage if he was only briefly at
home to let the dog out the grievor stated he parked in the garage so people going by
would not see it. When asked why he had not responded to the voice mail messages
left the grievor indicated that he'd only just received both messages. In this
conversation the grievor did not indicate that he was on his break.
In his testimony the grievor also indicated that he had not received the first voicemail
message until the second message came through. At the fact-finding, and in his
testimony at the hearing, he stated that he often went home during his break to let out
his dog and/or to put wood on the stove. He also testified that Scott Stakiw knew this
because several years earlier he had showed Scott Stakiw a letter from the then CAO
Ken Veitch and/or Treasurer Andy Neelan (which he was unable to produce) indicating
that the Town knew he went home on his break for that purpose. When the grievor
discussed this with Scott Stakiw he was told to "cover your ass" which is why he parked
in his garage.
37
When Scott Stakiw was recalled to offer reply evidence he denied that he knew the
grievor went home to let the dog out or that he'd ever seen a letter from Mr. Veitch or
Mr. Neelan to that effect. He also denied that he told the grievor to "cover your ass."
I found the grievor's evidence with respect to this ground upon which the discharge is
based improbable and not credible. I prefer the evidence of Scott Stakiw that he did not
know the grievor went home and had not approved such an arrangement. Not only was
there some internal inconsistency in this area of the grievor's evidence, it was
contradicted by the evidence of Scott Stakiw, and was completely inconsistent with the
documentary evidence. Thus, in March 19, 2004, a date which postdates the tenure of
Mr. Veitch as CAO, the grievor was provided with a non-disciplinary letter of
expectations from the then CAO, Murray Clarke, which specifically stated, inter alia
"your work hours are for work, not for stopping off at home or performing personal
errands." This letter of expectation would supersede any letter the grievor claims to
have received from a former CAO. In a February 19, 2009 e-mail, Scott Stakiw advised
the grievor to keep his cell phone with him and that "... if you think you'll be unavailable
or tied up with something, let me know what is going on so I can approve it and make
other arrangements if need be." Scott Stakiw testified he reminded the grievor on
several occasions to keep him advised of what he was doing and if he was away from
work. Indeed, on the morning of November 3, 2010, in context of time taken by the
grievor to attend at the hospital the day before, Scott Stakiw reminded the grievor that
even if it was only a brief period of time he should let Scott Stakiw know what he was
doing and once he was on duty again.
Given my view of the grievor's evidence with respect to this issue I am also unable to
accept the grievor's testimony that he was only at home for a brief time and/or during his
break to let the dog out, and that he had not received the voice mail messages left by
his supervisor. On a balance of probabilities I've concluded that the grievor was at his
house for more than a brief period of time, and for longer than his break permitted.
38
While at home he either had his Employer issued cell phone turned off or ignored calls
made to his cell phone by his supervisor. Similarly he either failed to pick up the first
voicemail message left for him, or deliberately chose to ignore it. It is simply too
convenient to maintain that a technological malfunction of his cell phone (which had
rarely occurred in the past) happened on the very day when his Supervisor was
attempting to reach him and discovered him at his home in the middle of the afternoon.
November 15, 2010
The next area of evidence which must be addressed relates to the allegation that
"At lunch time on November 15, 2010 you were monitoring Mr. Stakiw's
residence. The Town does not accept your unlikely explanation for why you
were there."
The grievor's testimony was that on that day he was patrolling in the area when he
received a call. He indicated he pulled over to answer the call. His recollection of that
day was somewhat sketchy and changed during his cross-examination. He had either
just completed the call or was still on the call when Scott Stakiw pulled up behind him
and asked him what was going on. According to the grievor he told Scott Stakiw about
the call and Scott Stakiw went on to his house. In cross-examination the grievor could
not recall the nature of the call, whether it was from a friend, or whether or not he
was/did make notes of the call in his log book. He also indicated he was dealing with
two complaints in the area and perhaps he was parked as he was going to do a
"callback" with respect to one of these complaints. Late in his cross-examination he
volunteered that he thought this was the day that he was putting a Band-Aid on his
finger and perhaps that's what he was doing when he was parked. He was adamant
that he was not monitoring Scott Stakiw's house and testified that Scott Stakiw's house
was not visible from where he was parked.
39
Scott Stakiw however felt that the grievor was monitoring his house to see what time he
came home for lunch. In his view the grievor did not have a valid reason to be parked in
the area. When he asked the grievor what he was doing there the grievor replied he
was on a call. When asked by Scott Stakiw about the nature of the call he first replied
he was on a call "back there" and gestured towards another street. When pressed
further about the call he said it was a call "from a buddy". Scott Stakiw checked the
grievor's phone records and noted that the last call received by the grievor was at 11:42
a.m. and ended at 11:50 a.m.. The grievor was still parked, with a notebook in his
hand, and looking towards his supervisor's house, when Scott Stakiw spoke to him at
12:00 noon, the time he normally takes his lunch.
My weighing of this evidence has been impacted by the fact that the grievor has
"blacked out" and thus redacted significant portions of this notebook for the time frame
from November 15, 2010 to December 6, 2010. He did this after he was discharged
and before complying with the Employer's request to return his officer's notebooks. He
did so even though he had never blacked out any other portions of any other notebook
he kept. He did so even though he knew that a By-law Officer should not erase or cover
over any portions of his notes and if an error is made the Officer should cross the notes
out with a single line and initial the change. I do not accept the grievor's evidence that
he had not been provided with the Operational Policy manual in which this is clearly set
out. In any event the grievor testified that as a result of his training as a By-law Officer
and/or as part of his continuing education through attendance at Municipal Law
Enforcement conferences, he knew the importance and use of his notes, knew that
notes were not to be erased, and knew that errors were to be corrected using the one
line strike-through method. In light of this it is difficult to understand and accept the
grievor's evidence about why he blacked out all of his notes for November 15, 2010,
and much of his notebook for the following days until his termination.
40
In my view it is telling that the redactions in his notebook start Monday, November 15,
2010, the day that Scott Stakiw found him in his truck, parked in a manner which
permitted him to view the driveway of Scott Stakiw's house. In cross-examination the
grievor testified that in November "he had a sense, a feeling, something was going on"
so he began to "jot some things down that were personal." He testified that he redacted
only those personal notes, and did not redact any information pertaining to the Town or
his duties as a By-law Officer. Yet, all the notes for November 15, 2010 have been
redacted. If the grievor was in the area on a call, or because he was going to do a
"callback," or for any reason associated with his duties as a By-law Officer one would
have expected to see some notation to that effect in his notebook. There is none.
If the call which he received at 11:42 and which ended at 11:50 was a personal call from
a friend as he suggested the Scott Stakiw, there was no reason for him to have
remained parked in his truck for the following 10 minutes until Scott Stakiw came home
for lunch at 12:00 noon. Moreover, if it was a personal call which ended at 11:50 it also
means that the grievor was effectively unproductive for at least 20 minutes as he
chatted with a friend and then sat in his truck for the next 10 minutes. I have not
attributed any weight to the grievor's implausible explanation that he might have been
putting a Band-Aid on his finger and that's why he was parked. Not only is that
inconsistent with the evidence of Scott Stakiw who said the grievor had a notebook in
his hand, if the grievor was in fact putting a Band-Aid on his finger, one would have
thought he would have said that immediately to Scott Stakiw at the time, or during his
evidence in chief, and not wait until well into his cross-examination to offer this as a
possibility.
On the basis of the evidence I am inclined to conclude, as the Employer did, that the
grievor was parked as he was to see if Scott Stakiw was taking an early or longer lunch
because he had been caught by Scott Stakiw at home during working hours on
November 3, 2010. I have certainly concluded that the grievor's evidence with respect
41
to his actions on November 15, 2010 was inconsistent and not credible. His redactions
of the notations in this notebook are suspect and troubling and have impacted my view
of his evidence. I have concluded that on November 15, 2010, during his working
hours, the grievor was "loitering" in the area and not engaged in the performance of his
duties and was waiting to see Scott Stakiw arrive at his home for lunch.
November 26, 2010
The next event occurred on November 26, 2010. On that day the Employer conducted
its "fact-finding" meeting with the grievor. Tom Young, Union President, was also
present. I prefer the evidence of the Employer's witnesses and Tom Young about what
occurred and was said at this meeting. The grievor's recollection of the meeting was
imprecise. For example, several times during his cross-examination the grievor denied
that he had any notes at the meeting. The minutes of the meeting taken by the
Employer however clearly reflect that there was a break in the meeting during which the
grievor was given an opportunity to retrieve any notes or documents he wanted, and
that following that break he returned to the meeting with notes. His recorded answers
following that break indicate that he read verbatim from either an e-mail he had
purportedly sent to Scott Stakiw on November 4, 2010 (Exhibit 18) or the notes he
made of his discussions with John Sisson on October 25, 2010.
I have previously referred to the grievor's inability (or unwillingness) to listen and/or
comprehend and objectively evaluate events as they unfolded and the impact that this
trait has had on the overall reliability of his evidence. This trait was evident during the
grievor's testimony about the fact-finding meeting which he attended on November 26,
2010. The grievor testified that he felt "ambushed" and that he did not know the "intent"
of the meeting. This evidence however is contradicted by the objective documentary
evidence (the notes of the meeting maintained by both the Employer and Union
representatives) which indicated that at the beginning of the meeting the grievor was
42
told about the purpose and intent of the meeting (namely, the Employer had "received
reports of several irregular incidents which have either occurred since the settlement of
the arbitration hearing held on August 27, 2010 or which have become known to the
Town after the arbitration settlement. The purpose of the meeting is to give you a
chance to explain or comment on each of these matters.") I would note also that the
grievor's evidence about feeling "ambushed" is somewhat inconsistent with this
testimony that in November he had "a sense, a feeling, that something was going on"
and that's why he began to jot down some personal notes. In light of this evidence, had
the grievor listened more carefully, he would have known that his "feeling" was correct,
and that this was an opportunity to tell his side of the story and provide his explanations.
At the fact-finding meeting the Employer put the various allegations and events outlined
herein to the grievor and asked the grievor whether he made the statements attributed
to him or engaged in the conduct alleged . I do not propose to set out in detail his
various responses to each of the questions asked. It is sufficient to note that in some
cases the grievor denied the misconduct alleged, in other cases he agreed with the
statements or conduct attributed to him but offered an explanation and context, and in
some instances that explanation differed from his evidence at the hearing.
What is more significant about November 26, 2010 is what occurred after the fact-
finding meeting. Following the fact-finding the grievor left the following note on Scott
Stakiw's desk:
"I Ted Lowcock will take the call 50% of the time. I can not be on call 24-7
anymore.
Thank you
signature
P.S. I'm willing to work with you to come up with a schedule.
43
I heard evidence which indicated that "standby" or the grievor's "on call" duties had
been a long-standing issue and source of discontent for the grievor. Article 19.10 (a) of
the collective agreement provides that the Town may assign employees to standby
duty. Article 19.10 (e) specifically deals with the hours to which By-law Enforcement
staff are assigned standby and during which they must respond to calls. It also sets out
the remuneration paid to be on standby. Over the years both the remuneration paid for
being on standby, and the hours during which the By-law officer on standby may be
required to go out on a call have changed as result of negotiations between the
Employer and the Union. The grievor has been a member of the bargaining committee
which negotiated those changes.
The grievor was the only full-time By-law Officer in the bargaining unit and as such was
the only employee assigned to this standby duty. Although at times arrangements were
made to relieve him from that duty, it is evident that for much of his career the grievor
has been the only person required to be on standby and available for call outs after
normal working hours. In 2009 the grievor started to complain about having to do all the
standby all the time. John Sisson discussed the issue with Scott Stakiw and thought a
possible solution would be to use part-time employees to perform some of the standby
work. A meeting was held which was attended by the grievor and Tom Young and John
Sisson. At the meeting John Sisson discussed the possibility of using part-time
employees. The grievor reacted negatively to that suggestion and indicated that if the
Town sought to use part-time employees he would file a grievance. The grievor
proposed instead that Scott Stakiw should do more of the standby. John Sisson didn't
accept that suggestion as it was "not up to [the grievor] to determine how non-union
staff is to be scheduled." Thereafter the issue continued to exist, was raised periodically
by the grievor and the Union, but nothing further happened.
The grievor testified that the on call issue had been outstanding for more than a year
with no solution or timeframe for resolution in sight. Thus he raised the matter with Tom
44
Young on November 26, 2010 and Mr. Young advised him to write the letter. He left the
note to let the Employer know he needed help and could not continue to do all the on-
call duties. He emphasized that in his note he volunteered to help work out a schedule.
There is some discrepancy in the evidence of Tom Young and the grievor as to whether
the standby topic was discussed before or after the fact-finding meeting. I do not view
that discrepancy as particularly significant as there is no dispute that the letter itself was
left on Scott Stakiw's desk after the fact-finding meeting.
Having regard to the totality of the evidence I do not accept the position that the timing
of this note was coincidental. The grievor had a sense or feeling something was going
on. That feeling was confirmed by the fact-finding meeting at which he was asked to
comment and explain himself with respect to reports the Town had received.
Immediately after the fact-finding he left his note. (The grievor testified that after the
fact-finding meeting he was "frustrated and confused" and asked Mr. Young what was
going on, and, "why are we not hearing about the things we've asked for" referring to
the on-call issue. ) In these circumstances the Employer viewed the timing of the
grievor's note as confrontational and defiant. As Employer counsel put it, it was the
grievor’s proverbial middle finger in response to the fact-finding meeting. In these
circumstances, when the grievor left his note that he would only do standby 50% of the
time, the Employer viewed this as an indicator that the grievor was going to disrupt the
Town's operations by refusing to do work he was assigned to do, work which the
collective agreement required he do, and work that he had been doing throughout his
career. The Employer viewed this as yet another example of insubordination.
Decision to Terminate
John Sisson testified that initially he was hopeful that with the Acknowledgment
Agreement and the Bryson report the employment relationship with the grievor would
improve. His view began to change in mid October with the report of harassment he
45
received from Cheryl Kelly, the interaction which the grievor had with Jill Harris, and the
report received from Greg Atkinson. Although he had not formed a firm conclusion
about the grievor's situation because there were still matters to be investigated, the
grievor ‘s statements to him on October 25, 2010 and his expressed view that the
Acknowledgment Agreement and Bryson report and recommendations were no longer
in effect caused him concern that the grievor would disrupt the workplace. When this
was followed shortly thereafter by the November 3, 2010 events described above, and
Scott Stakiw's subsequent report that the grievor was monitoring his house, the
Employer consulted legal counsel. The fact-finding questions were prepared to obtain
the grievor's responses to the allegations. Following his review of all the incidents and
the fact finding meeting, and the grievor's refusal to do more than 50% of the on call
work, he concluded that there was no hope and no opportunity to establish an effective
working relationship between the Town and the grievor.
John Sisson was concerned that he did not have appropriate authority to terminate the
grievor's employment and needed Town Council's approval to do so. The municipal
election held on October 25, 2010 had changed the composition of the Town Council.
The new Council was sworn in on December 1, 2010 and had its first meeting on
December 2, 2010. At that meeting John Sisson received approval from the Town to
negotiate a "leaving agreement" with the grievor, failing which the grievor's employment
would be terminated.
On Monday, December 6, 2010 John Sisson had a discussion with Tom Young about
the terms of an agreement pursuant to which the grievor would resign his employment.
Quite properly there was no evidence led before me about the terms of the Town's offer.
Tom Young conveyed the offer, and the Employer’s intent to terminate his employment,
to the grievor who had been placed on paid leave. Whatever the offer may have been it
was not accepted. On December 9, 2010 the grievor's employment was terminated at a
46
meeting attended by John Sisson, Susan Keast, Tom Young, the grievor, and Doreen
Stensrud, the Union’s Staff Representative.
Evidence was led as to whether the grievor did or did not apologize at the meeting on
December 9, 2010. Having regard to the totality of the evidence I find that the apology
offered that day was a general apology that conveyed to the Employer that the grievor
was sorry that matters had come to the point that the Town would terminate his
employment. He expressed general contrition that things had "gotten this far" and
asked if there was anything he could do to change the decision to terminate his
employment. He asked for his job back. He said by-law enforcement at the Town had
been his career and was all he knew. He said he would “do whatever it takes.” He
knew the type of employee the Town wanted him to be. The grievor did not offer any
specific or detailed apology with respect his comments about the CAO’s sexual
orientation or the comments made about Cheryl Kelly because, as he stated in cross-
examination, at the time he didn't think he had done anything wrong. As indicated
earlier he now realizes he was wrong about the effect of the Acknowledgment
Agreement and recognizes that a number of his comments were hurtful and demeaning.
During the hearing he apologized if his comments offended and said it would not
happen again. With respect to the other incidents or events referenced herein the
grievor did not offer any apology either on the day of his termination or at the hearing
because he has denied those allegations of misconduct.
Following his termination, when news of his discharge was reported in the local
newspaper and on the local radio, the grievor put the Town on notice that he was
seeking substantial damages ($50,000.00) for slander. A grievance was filed with
respect to that defamation claim. It is the grievor’s position that the Town’s statement
that he had been fired for cause was defamatory.
47
Submissions of the Parties
I do not propose to detail the able submissions of counsel. Each made extensive
submissions about the conclusions to be drawn from the evidence heard and those
have been addressed in my findings of fact about the various incidents referenced in the
letter of termination.
Neither do I consider it necessary to itemize the positions of the parties or the case law
each relied upon. The positions of the parties have already been provided at the
commencement of this award where an outline of the case is set out. Broadly speaking
the Employer maintains the events described herein constitute just cause for discharge
and demonstrate that the employment relationship is no longer viable. Counsel for the
Employer also addressed the issue of delay, and why it took from August 31, 2010
(when Jordan Atkinson first raised his concerns) to November 26, 2010 (when the fact-
finding was conducted) and then to December 9, 2010 (the date of termination) for the
Employer to discharge the grievor. Some of the delay was due to vacation absences
from the workplace by key management employees. Other reasons for delay included
either waiting for, or confirming in writing, the interviews and statements of the various
witnesses, and consultation with legal counsel before and after the fact-finding.
Counsel submitted the delay was not inordinate and did not prejudice the grievor.
As noted in the outline of the case it was the Union's position that just cause for
discharge had not been established. The Union asserted that there had been
significant delay which prejudiced the grievor and which, amongst other things,
undermined the principles of progressive discipline which typically apply. In this regard
Union counsel submitted that the delay was sufficient to render the discipline void, and
in any event was also a mitigating factor because, as events unfolded, the grievor was
never told that his conduct was inappropriate. Before he was fired he was never given
an opportunity to correct his behavior or his belief that the Acknowledgment Agreement
48
was "frozen". Counsel argued also that because of the Minutes of Settlement the
evidence of Kaitlyn Dyer and Jordan Atkinson could not be relied upon as the evidence
predated August 27, 2010 and could have been known to the Town if it had exercised
due diligence.
I do not agree that the evidence of Jordan Atkinson or Kaitlin Dyer can't be relied upon
because it could have been known by the Town before August 27, 2010 with the
exercise of due diligence. The evidence these two witnesses gave about the things the
grievor said is not something about which the Employer would/could have knowledge
or even think existed. That is apparent from the fact the that this evidence only
surfaced in a casual conversation between Scott Stakiw and Jordan Atkinson on Jordan
Atkinson's last day of work.
Neither do I agree that the Employer's delay in imposing discipline in the circumstances
of this case renders the discipline void. I have not relied on the September 8, 2010
incident, so that the delay in this instance boils down to the fact that the misconduct
about which Kaitlin Dyer and Jordan Atkinson testified occurred months before it was
raised with the grievor. However, that evidence was not known to the Employer until
much later at which point the Employer commenced its investigation . Although there
was a delay between the events of October 19, 22, 25, 2010, and November 3 and 15,
2010 and the fact-finding meeting of November 26, 2010 the Employer has offered
reasonable explanation for that delay, including the fact that matters with the grievor
were happening rapidly, that there was an ongoing investigation and follow-up with
respect to the evidence of the summer students (Jordan Atkinson's written statement
was confirmed by Human Resources on October 19, 2010 and Human Resources was
unable to conduct a telephone interview with Kaitlin Dyer until November 10, 2010), that
there were several days when senior management was away from the office, and that it
took some time to consult with legal counsel.
49
Of equal significance to the Employer's explanation for any delay is the absence of
prejudice to the grievor. The grievor recalled the events and his conversations of
October 19, 22 and 25, 2010 (indeed he had his own notes/e-mails with respect to his
conversations on the latter two days). He recalled being at home on November 3, 2010
and the calls Scott Stakiw made to him that day. His evidence was sketchy on the
events of November 15, 2010. However, in my view, that was not due to the passage of
time, but because the grievor did not have a credible explanation for being parked in the
area of his supervisor's house on that day. It was also sketchy because he had
redacted any notes which might have been of assistance.
The only prejudice to which the Union points is that the Employer knew at an early date
that the grievor was alleged to have called the CAO "crooked" and "a queer", and that
he had belittled Scott Stakiw. This was confirmed by Jordan Atkinson's written
statement received September 19, 2010. The Union argues that if the Employer had
spoken to the grievor then he would have been put on notice that he should not speak
about his supervisors in that manner to others, that the words he used were derogatory
and offensive. Had he been put on notice then subsequent events and comments
made to Greg Atkinson, or the comments about which Cheryl Kelly complained might
not have occurred.
In my view this is not sufficient prejudice to render the discharge void by reason of delay
in circumstances such as these where the grievor denies ever saying that the CAO is "
crooked" and "a queer " or " a fag". As set out below however I have considered the
Employer's failure to bring these issues to the attention of the grievor at an earlier time,
and its failure to apply progressive discipline, to be a mitigating factor.
50
Decision
I found this case most difficult to decide. As indicated herein I have found that the
grievor has engaged in significant misconduct. He suggested to the summer students
that they should not work so fast so that he would not be made to look bad. He has
sought to undermine his supervisors and has "badmouthed" them to other employees
and to the Town's residents. He has described the CAO in offensive and derogatory
terms to others and has belittled and ridiculed other coworkers. When he was at home
in the middle of the afternoon on November 3, 2010, he neglected his duties, and his
conduct on November 15, 2010 was inappropriate. His comments and attitude in his
rejection of the Acknowledgment Agreement and the Bryson report recommendations
and his indication that he was only going to do 50% of the “on call” duties was
insubordinate, ill founded and challenging of management's authority to administer the
collective agreement. All of this conduct is worthy of discipline.
From the evidence before me it is apparent that the grievor is perceived as an
unsatisfactory employee who does not take direction well and who exhibits an
inclination towards confrontational or bullying behaviour. Undoubtedly that perception
helped fuel and intensify for the Employer his misconduct as set out in the letter of
termination. It may be that there is a legitimate basis for that perception. Certainly
given my findings of fact with respect to his conduct, and based on his own testimony
and performance as a witness, I have no doubt that the grievor is difficult to manage.
That perception however, even if legitimate, is not part of the grievor's disciplinary
record. That perception certainly can't outweigh a disciplinary record which consists of
a one-day suspension in 21 years of service. Perception is also not sufficient to take an
employee with 21 years of service from a one-day suspension to discharge in less than
three months time without any intervening discipline or indication from the Employer that
the grievor's conduct was unacceptable and must improve.
51
The difficulty in this case arises because the Employer did not discipline the grievor for
this conduct as it arose. The Employer did not "manage" the employee's conduct, and
did not engage in any form of progressive discipline to address the misconduct as it
happened. The Employer made notes of the inappropriate conduct but did nothing at
the time to address matters with the grievor. In the circumstances it is difficult not to
come to the conclusion urged upon me by the Union that the Employer waited until it
could "package together" several incidents of misconduct and assert sufficient cause for
termination of employment.
The difficulty with this approach is that it ignores the principles of progressive discipline.
Discipline ----and discharge is the most serious form of discipline---should be a tool
used by an Employer to achieve an objective, namely, a satisfactory employee.
Discipline is not an end in itself but is imposed to correct behavior with the hope and
expectation that by putting the employee on notice that his behavior and misconduct is
unacceptable and will not be tolerated the conduct will be corrected and the
employment relationship will be restored to the benefit of both the Employer and the
employee.
It must be remembered that discharge is the ultimate and most severe discipline which
an Employer can impose. In this case, as arbitrator, I must balance the Employer's
legitimate interests in the efficient, productive and harmonious operation of the Town's
business, with the grievor's equally legitimate interest in maintaining employment which
he has held for 21 years. The concept of progressive discipline which factors into that
balance means that I must be satisfied that either the grievor’s conduct is so egregious
as to warrant summary dismissal, or that the grievor is not likely to respond to less
severe discipline to correct behavior. In this case I have concluded that standing alone
and in isolation none of incidents of the grievor’s misconduct warrant summary
dismissal of an employee with 21 years of service. The misconduct is offensive but is
not such which by its very nature irreparably severs the employment relationship.
52
Rather the misconduct which the Employer has proven calls for discipline and the
application of progressive discipline principles.
Generally, a pattern of progressive, escalating discipline in response to successive acts
of misconduct will lead an arbitrator to conclude that an employee will not mend his
ways and is unable or unwilling to become a satisfactory employee. What is lacking in
this case is that the Employer has not undertaken such a course of progressive,
corrective discipline in response to any of the misconduct relied upon. Until he was
discharged on December 9, 2012 the Employer did little to put the grievor on notice that
his behavior and conduct was inappropriate and unacceptable and that if he persisted
he put his job at risk as there would be increasing sanctions which would eventually
culminate in the termination of his employment. The grievor is an employee with 21
years of service and only a one-day suspension on his record (I note parenthetically that
this collective agreement does not contain a provision which removes discipline after a
period of time.)
I do not agree that the Acknowledgment Agreement signed by the grievor in April 2010
can be viewed in the same manner as discipline, or that it is stronger than a disciplinary
record. Discipline is premised on employee misconduct. If the employee does not
dispute the misconduct or the appropriateness of the discipline imposed by filing a
grievance it can be presumed that the misconduct and the appropriateness of the
penalty are acknowledged. That is not the case with the Acknowledgment Agreement.
Although the Employer alleged misconduct and insubordination worthy of discipline,
there is nothing in the Acknowledgment Agreement, or in the evidence, which indicates
that the grievor agreed that prior to April 7, 2010 he had engaged in any misconduct
which warranted a disciplinary response.
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I accept that the grievor agreed to abide by certain rules, and, in signing the
Acknowledgment Agreement, made certain commitments. I also agree that the
Acknowledgment Agreement spells out for the grievor the Employer’s expectations.
These expectations had previously been spelled out for him in the March 19, 2004 letter
of expectation from Murray Clarke who was then the CAO at the Town. During the
hearing the parties also agreed that as a result of events between the grievor and Ms.
Kelly in 2007 the grievor knew that he should not be intimidating in the workplace. His
conduct as set out herein indicates that he did not live up to the commitments he made
in the Acknowledgement Agreement, and did not meet the Employer’s expectations.
This failure to comply with the rules set out in the Acknowledgment Agreement however
does not convert that Acknowledgment Agreement to discipline. In the absence of
agreement, acknowledgment or adjudication to establish that misconduct warranting
discipline had taken place it can't be said that the Acknowledgment Agreement is any
stronger than an indication of the expectations the Employer had with respect to the
grievor’s conduct and an agreement by the grievor that he would comply with those
expectations. When the grievor did not do so the response should be corrective and
progressive discipline, not summary dismissal.
In this case there were any number of occasions when the Employer could have, and in
my view should have, imposed discipline and thus warned the grievor of the
seriousness with which it regarded his behavior and misconduct.
I have already referred to the September 8, 2010 discussion during which the CAO
could have addressed the grievor's alleged comments.
By September 19, 2010 the Employer had a written statement from Jordan Atkinson
which was substantially similar to his testimony. Although the Employer may not have
wanted to confront the grievor shortly after August 31, 2010 when Scott Stakiw first
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became aware of the allegations, and wanted to investigate properly and make sure
that Jordan Atkinson was firm and stood by his allegations, I fail to understand why,
upon receipt of this written statement, Scott Stakiw did not impose discipline. If he had
done so it would have served as a warning to the grievor that his "bad mouthing" of the
CAO and his supervisor was unacceptable and would not be tolerated, and that, at a
minimum, his communications to the summer students about the coin counting was
being misconstrued as a direction to purposely slow down and not work too hard. If
discipline had been imposed and such a warning had been given the grievor would
know his employment was at risk and could not claim surprise when, after subsequent
incidents and further discipline, he was discharged because he did not alter his
behavior.
I agree with Employer counsel that it should not take discipline to let the grievor know
that name-calling and the insulting, derogatory manner in which he described the CAO
is wrong. However, discipline is required not only to indicate such conduct is wrong, but
also to emphasize that it won't be tolerated, and to bring home to the grievor that if he
persists in such conduct he risks losing his job.
Similarly, I do not understand why, upon receipt of Cheryl Kelly's complaint of
harassment, and following confirmation from Jill Harris, the matter was not immediately
raised with the grievor and appropriate discipline meted out. The comments the grievor
made in his attempt to belittle Cheryl Kelly and ridicule her accomplishment do not
warrant discharge of an employee with 21 years of service. However the grievor was
entitled to know how his remarks were perceived, and had a right to be warned that this
type of behavior jeopardized his continued employment because it did not meet the
norms of the harmonious work environment which the Employer sought to establish.
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As to the October 22 and October 25, 2010 discussions the grievor had with John
Sisson and Scott Stakiw, there was no reason why the matter of the grievor's disavowal
of the Acknowledgment Agreement and the Bryson report recommendations could not
have been dealt with immediately. I do not accept the Union's position that the grievor
is being disciplined for his mistaken belief that matters were "frozen." Discipline is
warranted for his conduct on October 22 and October 25, 2010 because the grievor said
and indicated that he did not have to follow the directions of his Supervisor (which is
what the Acknowledgment Agreement states) not because he believed then that
matters were "frozen".
It is self-evident that the events of November 3 and 15, 2010, and the grievor's refusal
to do more than 50% of the standby, are worthy of discipline. An employee can't use
working time for personal errands and ignore the calls of his supervisor. Scott Staikw
could have, and in my view should have, imposed discipline when he discovered the
grievor at home in the middle of the afternoon on November 3, 2010 after he had not
responded to his voice messages. Neither can an employee loiter about his
supervisor's home without purpose, or simply refuse standby which he is directed to do
and which he is obliged to do under the collective agreement. The grievor had a one-
day suspension on his disciplinary record and his conduct on November 3, 15 and 26
would warrant the imposition of progressively more severe suspensions. Having not
managed the grievor or created a disciplinary record which would show he is not
amenable to changing his behavior after the imposition of corrective discipline, it is not
appropriate to accept these incidents as sufficient cause for discharge either standing
alone, or taken together as a culminating incident. (A culminating incident or "the straw
that broke the camel's back" applies when there has been a record of discipline.)
In the result I have determined that the lack of progressive discipline in this case is a
significant mitigating factor which has caused me to conclude that discharge is too
severe a penalty.
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Although the Employer did not propose I do so I have given serious consideration
whether, in all of the circumstances of this case, other remedial relief such as monetary
damages should be ordered in lieu of reinstatement. Certainly there is now a body of
arbitral jurisprudence which indicates that where the employment relationship is no
longer viable and can't be restored a remedy of damages in lieu of reinstatement may
be ordered by an arbitrator. In weighing this option I considered whether a future
employment relationship has been so compromised and eroded by the grievor's conduct
that it can't be restored. The collective bargaining benefit of security of employment
which is inherent within the "just cause" provisions of a collective agreement dictates
that, where I have determined that termination was improper but that reinstatement is
inappropriate and monetary damages should be awarded, I must be satisfied that the
relationship can't be fixed and that the imposition of further discipline will not correct
behavior.
In weighing this option I was concerned that even though the grievor expressed to Mr.
Bryson his concern that the Employer was going to terminate his employment he
nevertheless engaged in the errant behaviour set out herein. Moreover, the fact that he
considered the legitimate direction of his supervisor as set out in the October 20, 2010
memo as "harassment" is cause for concern that the grievor doesn't get it. (The grievor
must understand and accept that his supervisor's legitimate management of the
department and its employees does not constitute harassment.) Finally, whether by
accident or design, the fact that it is entirely likely that he was "monitoring" his
supervisor's house has been extremely troubling as that conduct indicates such
dysfunction and leads to such a lack of trust that restoration of the relationship becomes
problematic.
Notwithstanding these concerns however, having regard to all of the evidence before
me, because the Employer has not imposed progressive discipline to correct behavior, I
simply can't be satisfied that the relationship is irreparable. I don't know whether
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progressive discipline will have its desired results because it has not been tried. Simply
put it does not appear to me that the grievor has in fact been managed. It appears
instead that often the grievor has been allowed to act inappropriately and say things
without complaint and without anyone taking him to task, telling him he was out of line,
or directing him to stop or conduct himself in a different manner. When the grievor
refused to follow direction from his supervisor he was not disciplined and the matter was
not pursued. Ultimately, in rejecting compensatory damages in lieu of reinstatement in
the circumstances of this case I have concluded that a monetary remedy should not be
used as a substitute for progressive discipline and the requirement to manage.
In the result I have determined that this is an appropriate case in which the grievor
should be given another opportunity to demonstrate that he can correct his behavior,
accept and follow the legitimate directions of his supervisor without challenge, abide by
the rules and the norms of the work environment particularly as they relate to respectful
interaction with others, and otherwise meet the employment expectations of the Town.
The grievor should be under no illusion that this is his last chance. I have found that he
has engaged in significant wrongdoing. Although he is reinstated I consider it
appropriate to impose terms and conditions with respect to that reinstatement to reflect
the seriousness of his misconduct and to emphasize to the grievor that he must mend
his ways, correct his behavior and comply with the Employer's requirements or risk
future loss of employment.
The grievor's reinstatement is subject to the following terms:
For the remainder of his employment the grievor shall refrain from making any
derogatory, demeaning or belittling comments about his supervisors or his
colleagues to anyone. This includes not only his fellow employees but also the
Town's residents.
The grievor performs portions of the job in a largely unsupervised manner. He
has shown that he does not always use his working time for working purposes.
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For a period of 12 months following his reinstatement the grievor shall therefore
be required to contact either his supervisor, or if he is unavailable another
member of management, to advise them when he commences a break and when
he returns from that break and is again on the job. The same applies if the
grievor needs to remove himself from duty for reasons other than normal breaks
under the collective agreement.
For the remainder of his employment the grievor shall not threaten anyone
(whether metaphorically or not). If he has an issue or concern with respect to his
employment duties or his obligation to follow the directions of his supervisor he
shall raise those concerns in a respectful manner with either his supervisor or his
Union representative (who may, if appropriate, raise the issue or concern with the
Employer.) Unless there is a safety concern he shall follow the directions of his
supervisor and adhere to the "work now, grieve later" rule.
The grievor believes that communication is his strength and that he has excellent
communication skills. He does not. As this case has shown he doesn’t listen
well (listening is part of communication), he talks too much, and without
forethought often says things that are inappropriate or easily capable of being
misconstrued. I therefore direct that within 6 weeks of his reinstatement the
grievor undertake communication training satisfactory to the Employer.
Finally, the reinstatement is to take effect within 10 days of the date of this award.
Reinstatement is without loss of seniority but without any compensation.
I have also concluded that the defamation grievance must be dismissed. The Employer
did not provide any details of the termination and stated only its position that the
discharge was for cause (in an article which also indicated that the termination was
being grieved and would be arbitrated.)
The Evidence Not Heard
I note that on behalf of the grievor the Union sought to introduce evidence from an OPP
officer who, in the course of his duties, dealt with the grievor. The Union provided a
written statement from the OPP officer addressed to the Councillors of the Town of
Bracebridge and sought to call the officer as a witness for two purposes. First, the
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Union sought to rely on this evidence in support of the grievor's position that he was not
the type of person and employee the Employer sought to make him out to be.
Secondly, the OPP officer‘s statements and testimony was to address the issue of the
manner in which the grievor's employment was terminated. The statement indicated
that the OPP officer, a taxpayer and constituent in Bracebridge, objected to what he
characterized as a "closed-door meeting" at which the Town Council was "railroaded"
without knowing all the facts and without hearing "the other side of the story." This
correspondence to the Town Councillors also raised concerns that the CAO had
contacted his OPP supervisor in an effort to have him stop asking questions about the
grievor's termination.
The Employer objected to the introduction of that evidence as the OPP officer did not
have any personal knowledge of any of the circumstances and events which caused the
Employer to conclude that the grievor's employment should be terminated. His
evidence therefore would not assist me in my adjudicative role to determine the facts
which gave rise to the discharge. At the hearing, after hearing the submissions of
counsel, I orally ruled that the evidence would not be admitted. The Employer has
requested that I set out my oral ruling in this award. At the hearing I orally ruled as
follows:
At this stage I do not consider this evidence, or viva voce evidence of this nature,
to be relevant to the issues before me. The issue before me are the merits as to
whether Mr. Lowcock’s dismissal was with or without cause. It is apparent that
Mr. Allen [the OPP officer] cannot offer any evidence with respect to any of the
matters that formed the basis for the termination. At best he can offer character
evidence about Mr. Lowcock. In the abstract character evidence, whether
offered by the grievor to say he's a good person and a good By-law Enforcement
Officer, or by the Employer to say that the grievor is a bad person, is not relevant.
I'm certain that the grievor could call any number of constituents who, based on
their experience or interaction with him, would attest to his good character. The
Employer would probably be able to call an equal number of constituents who,
based on their experience or interaction with the grievor, will say he's not a good
person. There's a reason why this type of character evidence is not admitted at
this stage in this type of arbitration.
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With respect to the other matters raised by Mr. Allen in his letter, those fall
beyond my jurisdiction as they deal with Mr. Allen as an employee of the OPP, as
a taxpayer in Bracebridge, and perhaps the relationship between Bracebridge
and the OPP.
Dated at Mississauga this 11th day of December, 2012.
Louisa Davie
Louisa M. Davie