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HomeMy WebLinkAboutHodgson 93-06-17 In the Matter of an Arbitration Between: Georgian College (Employer) -and- Ontario Public Service Employees Union (Union) And In the Matter of D. Hodgson Arbitrator: M. Brian Keller Employer Nominee: George Metcalfe Union Nominee: Michael Lyons Appearances: For the Employer: Paul Jarvis For the Union: Robert Healey Hearing: June 5, Nov. 17, 1992 and Feb. 24, April 28, May 5, 1993 AWAR~ The grievor, a maintenance handyman with two years' seniority at the College's Kempenfelt Centre, was discharged on January 9, 1992 as a result of an incident on November 19, 1991. At that time he assaulted two employees. The incident is acknowledged by the grievor. He claims there were mitigating circumstances such that the discharge should be modified in such fashion as this Board determines is appropriate. The facts regarding the incident itself are generally agreed to by the parties. The union claims that the personal circumstances of the grievor which led to the incident show that it was an aberation. The employer disputes that. The grievor is 40 years of age. He was trained as a tool maker at Georgian College in 1989 and received an award for his performance. He was employed on a part-time basis by Georgian while enrolled in the course. He was hired as a full-time handyman in January 1990. His performance appraisals in the area of work performance were good. Improvement in interpersonal skills between the grievor and staff was identified. He was recognized as having good relations with clients. When confronted with examples of what the College alleged were conflicts between the grievor and staff, the grievor acknowledged that some had occured and others had not, some were not his fault and that he got into one yelling match with two fellow employees because he couldn't handle the stress. The grievor started drinking excessively in his late teens. He didn't recognize it as a drinking problem but was aware he drank too much. He sought no help because he didn't think he had a problem. By 1988, however, finally recognizing his problem, he decided to quit drinking. It was at that time that he returned to school. He didn't start drinking again until June 1991 he said. In 1986 or 1987 the grievor hurt his back while at work. He was in traction for a few weeks as a result of the injury. He testified that he started to take analgesics containing codeine for the pain and continued to take them fairly steadily. From the end of 1987 until 1991 when the incident giving rise to the dismissal occured, the grievor stated that there were probably periods when he took very little codeine. The grievor testified that there were no days in 1991 when he did not take pills and the amount varied from 7-10 Tylenol is. He acknowledged that he was taking the same amounts of codeine while attending school and that his ability to do his work wasn't affected by his ingestion of pills. The grievor's superior at Kempenfelt was Wayne Barnard. The grievor stated that he started to have problems with Mr. Barnard from about his third week of employment. He was of the view that Mr. Barnard was conspiring against him. Mr. Barnard was involved in a relationship with Ms. Heather Hopkins a receptionist at Kempenfelt from April 1986 until November 1990 when she commenced a relationship with the grievor. She told the grievor of her relationship with Mr. Barnard but, she testified, she did not tell Mr. Barnard that she had started to see the grievor. In fact Mr. Barnard was not aware of that relationship until June 1991. On the 4th, he was driving by the grievor's house and saw Ms. Hopkins car in the driveway. He called the grievor's home and asked to speak to Ms. Hopkins. She didn't speak to him then but they spoke later when she told him of the situation. According to Ms. Hopkins from that time Mr. Barnard, who saw her on a daily basis, would periodically make disparaging remarks to her about the grievor. Ms. Hopkins stated she and Mr. Barnard got in a lot of arguments as a result and she told the grievor about every incident. Mr. Barnard couldn't recall making any such remark but testified it was possible he had. On November 15, 1991 a meeting was held with the grievor and members of management, including Mr. Barnard as well as a union representative to discuss the grievor's relationship with Mr. Barnard. Mr. Barnard indicated he was not jealous of the grievor and Ms. Hopkins. A plan of action was worked out to address the grievor's general concerns and at the end of the meeting the grievor and Mr. Barnard went for a cup of coffee. As a result of that meeting the grievor felt that if Mr. Barnard wished to discuss their personal situation he would do it directly. They also agreed to speak socially a few minutes each morning. Mr. Brian Tamblyn, Vice-President Human Resources and Organizational Change testified that the grievor was quite agitated during the meeting and that at one point had to be taken out of the room by the union representative to calm down. He further testified that the grievor said that where he came from those types of disputes were settled by violence. He indicated he was concerned about the grievor's state of mind. That evening the grievor hurt his back at home while moving a refrigerator. As a result of the pain he took Tylenol is. He was also upset at the way the meeting had gone during the day. He apparently had six beers and six Tylenols that day. On Saturday he was still in pain and still concerned about Friday. In addition he and Ms. Hopkins had an argument and they stopped speaking to one another. He had about 13 beers over a 13 hour period and about 25-30 Tylenols. On Sunday the grievor and Ms. Hopkins were still not speaking. The grievor had six beers and six or seven Tylenols. On Monday Ms. Hopkins and the grievor did not drive to work together nor did they eat lunch together as they normally do. They still were not speaking. He had three beers and about seven Tylenols. The two were still not talking Tuesday morning. In the morning Mr. Barnard, who was not at work, called the Centre. Ms. Hopkins answered the phone and was told that he would be in later and that he wanted to speak with her about Friday. She was asked to tell the grievor that he would be in later. Ms. Hopkins paged the grievor and told him that Mr. Barnard would be in late and that he wanted to discuss Friday with her. According to the grievor, he continued working from the time of the phone call (about 11) until lunch (1) except for a walk to the lake. He walked to the lake because the conversation with Ms. Hopkins had upset him. At 1 o'clock he went home and had two beers. He returned to work at about 2 o'clock. Mr. Barnard entered the workshop where the grievor was working and asked him "what's up". The grievor replied, "nothing" in a quieter voice than normal. At that point the grievor picked up a ball peen hammer and swung it at Mr. Barnard's head. Mr. Barnard put his hands up to protect himself and backed up to a door, trying to get into another room. He was able to and the grievor followed him with the hammer. Mr. Barnard then was able to unlock a door leading to the outside and ran toward the C.T.M.C. Building. The grievor continued to chase him. Mr. Barnard entered the building and ran toward the kitchen yelling for help. He tried to pull a garbage can across the corridor to impede the grievor and fell while doing it. At this point he was attacked by the grievor who had exchanged the hammer for a piece of lead pipe about 22 inches long and weighing about 10 pounds. He was hit a number of times on the left knee. Mr. Chris Hadley, the sous-chef, came from the kitchen and went to help. He was told by the grievor to "leave him fucking well alone". The grievor was finally subdued by Mr. Wayne Pitman the Executive Chef who managed to get him in a full-nelson. While holding the grievor Mr. Pitman was hit on the head a few times by the pipe. The grievor finally calmed down and went to the parking lot. Mr. Greg Humble, General Manager of the Centre, learned of the incident as it was happening. He went downstairs to the Chef's office and saw Mr. Barnard who quickly recounted what had happened. Mr. Humble then went to find the grievor and finally found him in the parking lot. The grievor was talking quietly with Ms. Hopkins. Mr. Humble told the grievor he should go home. The grievor, then yelled according to Mr. Humble, "I've gone to management, I've gone to the College, I've even gone to the union and no one has believed me that Barnard has ruined my career; ruined the last two years of my life and I fucking won't let that happen". He also said, "I know I've lost my job but I don't give a fuck". The grievor, asked by Mr. Humble if he was ok to drive replied yes. He then drove away quickly. Ms. Hopkins then asked if she could go home to the grievor and said "I know he's going to get his gun". The police were then called who went to the grievor's house and arrested him. As a result of the incident, Mr. Barnard sustained cuts on his hands, large bruises on his legs and had difficulty walking for a few days. Mr. Pitman was hit on top of the head a few times with the pipe but was not cut. The grievor does not deny the incident. He said that when he saw Mr. Barnard'enter the workshop something snapped. He testified that as he was swinging, chasing him and as he had him on the floor and was hitting him he could have stopped but chose not to. He stated that he hit Mr. Barnard to get him to back off and leave him alone. Mr. Barnard visited the grievor a few days later while he was in jail. Mr. Barnard testified that the grievor apologized for what had happened. He also spoke to the Crown on the grievor's behalf. He stated that although he had never been attacked before by the grievor he was fearful that it might happen gain if the grievor returned to work. As a result of the incident the grievor was charged with, and pleaded guilty to, assault. He was placed on two years' proba- tion. A condition of the probation order was that he abstain from the consumption of alcohol and none-prescription drugs and attend for assessment for alcohol and/or drug abuse and attend whatever counselling session might be required. The grievor went to see Sandra Fecht, a psychotherapist, under the College's E.A.P. program in December. She apparently suggested to him that he was addicted to codeine and that was likely responsible for his action. He then stopped taking analgesics containing codeine. He stopped seeing Ms. Fecht in June as the College discontinued paying for the visits. In early January he went to see Dr. George McDermott, a certified alcohol and drug counsellor. The grievor told Dr. McDermott of his visits to Ms. 'Fecht and also informed Dr. McDermott that he had been to Simcoe Outreach Services, a treatment addiction centre. The grievor informed Dr. McDermott that he would like to go to the Homewood Health Centre to receive treatment for what he characterized to Dr. McDermott as his addiction to codeine and alcohol. The grievor attended at the Centre and then joined Dr. McDermott's Relapse Prevention Group. He has participated fully in that group therapy and regularly attends AA. In his opinion letter Dr. McDermott states that the grievor suffers from the illnesses of alcoholism and drug addiction. It was his opinion that the Tuesday incident was influenced by his weekend consumption of alcohol and Tylenol. He further stated that: "Due to the effect of alcohol and codeine on his - 12 - nervous system and his brain he handled the stress of conflicting pressures on November the 18th by acting out his angry feelings". Dr. McDermott concluded that in his opinion the grievor was in the recovery phase of his illness, is showing evidence of willingness to change and that his capacity to deal with stress will improve as a result of his recovery. In cross-examination Dr. McDermott confirmed that he was still seeing the grievor and stated that it was hard to say when the visits would no longer be necessary. He indicated that the workplace was stressful for the grievor in the past and would continue to be so if he was returned to work. Dr. McDermott stated that an individual builds up a tolerance to codeine over time which means that more and more would have to be taken before it would impair someone's functions. In his opinion ingesting 6-8 per day was a small amount and wouldn't interfere with a person's functioning. He also concluded that the grievor had developed a tolerance to alcohol and that the grievor could take up to six drinks without difficulty. The manufacturer of Tylenol indicates that up to 12 per day can be taken safely. Dr. McDermott testified that he would put faith in what the manufacturer states regarding a safe limit before function are impaired. Finally, Dr. McDermott testified that the effects of the Tylenol and alcohol were out of the grievor's system by Tuesday, that the amount of codeine and alcohol he took on Tuesday would not intoxicate him or give him a high and that the ingestion of the codeine and alcohol on that day would not have caused him to loose control. The argument made on behalf of the employer can be summarized as follows. The assault was committed by the grievor as alleged. In light of the act committed and the circumstances surrounding it, the discharge was a reasonable response. The union has to prove that there are reasons to mitigate the penalty imposed by the employer. In the instant case, notwithstanding the argument of the union that the grievor suffered from alcohol and codeine addiction, the actions of the grievor were not related to those addictions. It was also submitted that the action of the grievor was not a momentary aberation and that the grievor, by his own admission could have ceased his assault but chose not to because he wanted to injure Mr. Barnard. On behalf of the grievor it was admitted that the assault took place. It was argued, however, that his addictions were responsible for his confused state of mind and that he was not in control of himself. It was submitted that the steps he has taken since the incident are proof that he has his life under control and that there is little likelihood of a recurrence. Finally, it was submitted that if the Board is not prepared to reinstate him to his former position, with suitable and appropriate condition, then he should be reinstated as a laid off employee and be entitled to exercise his seniority at other campuses. The principle reason advanced on behalf the grievor is that as a result of his addiction he was not in control of himself. That, it was advanced, accounted for his behaviour. If that submission was correct the Board would have no hesitation in reinstating the grievor in some fashion, with specific conditions. Unfortunately, when one analyzes all the relevant facts of the instant case, the conclusion that is reached is that the grievor's behaviour on the day in question resulted from factors other than his addictions. We reach that conclusion based on an analysis of the grievor's work history, his testimony, that of Dr. McDermott and the context of the case. In dealing with his work history, there is no evidence to suggest that he has had any behaviour difficulties in the past that can be attributed either to codeine or alcohol. In fact, the grievor performed very well on his return to school at a time when he was ingesting large quantities of codeine. Although the evidence was that he did have some difficulties in his relationship with fellow employees there was no suggestion by the union that those difficulties were anything other than normal strains that occur at the work place. Thus, the first evidence of any behavioural affects of codeine and alcohol were manifested at the time of the assault. Still dealing with the grievor's work history the evidence was that the grievor, in his two years with the employer, had a number of verbal altercations with fellow employees. They were characterized by the employer as the fault of the grievor and the union portrayed them as being of mixed responsibility. However it is portrayed the conclusion that is reached is that there were personality differences between the grievor and many of his fellow employees. The testimony of the grievor is not consistent with the assertion either that his behaviour was caused by alcohol and codeine or that the attack on Mr. Barnard was anything but a willful and deliberate attempt to harm. There was certainly no suggestion in his testimony that there was any confusion about what he was doing. This is evidenced by the fact that he could have stopped his attack but chose not to: that he wished to hurt Mr. Barnard. It is also demonstrated by his statements to Mr. Humble in the parking lot. He knew what he had done and the results. There was no confusion in his mind. The evidence of Dr. McDermott is not helpful to the grievor as it relates to the attack. Although it was Dr. McDermott's evidence that the alcohol and codeine would, in general, cause sOme confusion in the grievor's mind, he was clear in his evidence that on the day of the attack that the grievor's previous ingestion of codeine and imbibing of beer was not the reason for him to have attacked Mr. Barnard. Most importantly is the context in which this event takes place. There was, patently, ill will between the grievor and Mr. Barnard. On the one hand Mr. Barnard had difficulty adjusting to the fact that the Ms. Hopkins was involved in a relationship with the grievor. His comments to her at various times are proof of that. On the other hand, the grievor was upset and unable to deal with Mr. Barnard's conduct towards Ms. Hopkins. This was escalated, on the weekend before the assault when the grievor and Ms. Hopkins fought and stopped speaking to one another until the Tuesday when Ms. Hopkins speaks to the grievor for the first time to tell him Mr. Barnard would be in late and wanted to speak to her. This was the cause of the attack. The grievor was incapable of handling the triangular relationship as it then existed. In view of the above we conclude that the attack on Mr. Barnard was caused by the strained relationship resulting from their involvement with Ms. Hopkins and not from alcohol or codeine addiction. Therefore, we are unable to find that an addiction - 18 - was a mitigating circumstance. But if we had, we would not return the grievor to the same place of work. The grievor has undoubtedly made great strides in rehabilitating himself. He has sought professional advice and continues in various help programmes. This is to his credit. He testified that he would be able to handle the environment at the work place. While we have no doubt he believes he can, we are not so sure. The same conditions which gave rise to the attack are present: Mr. Barnard is still there and would be his supervisor, Ms. Hopkins is still there. The situation would be the same if not worse. Worse because at the date of the last hearing, the grievor and Ms. Hopkins had separated and were reassessing their relationship. Although they were hopeful of a reconciliation there is no guarantee of this. Thus placing the grievor back where he was before would result in an environment that is arguably more stressful than it was before. The grievor claims he is better able to handle stress. Dr. McDermott's evidence was that the workplace was stressful, in the past and he acknowledged it would still be. He made the statement before the grievor and Ms. Hopkins were estranged. Presumably, therefore, the workplace would be even more - 19 - stressful. The Board also has to consider the effect of the attack on other employees at the workplace. Although both Mr. Barnard and Mr. Pitman testified they had no ill will toward the grievor both testified they would be fearful if the grievor returned to work. In our view it would not be fair to the employer to cause that stress on other employees. The Board would also have rejected the alternate proposal that the grievor be placed on lay-off and be allowed to exercise his bumping rights. In our view, it would be inappropriate in the circumstances to cause another employee to lose his or her job by allowing the grievor to bump. Finally, the Board considered the possibility of placing the grievor on a leave of absence type status with the right to apply for job postings under the following conditions: - the grievor had to continue seeing Dr. McDermott and attending his AA and counselling sessions. - 20 - - the College would be sent regular reports on the grievor's progress and prognosis. - the grievor could not apply for a position at the Kempen- felt Centre (unless Mr. Barnard was no longer located there). - the grievor would maintain this status for a period of two years from the date of this award. If he was not successful in winning a competition by that time, his employment would be considered terminated. However, even though the Board felt it might be appropriate to make such a decision in a case of this nature, in light of the specific facts of this matter, we decline to do so. We do, however, recognize that the grievor has made significant efforts and progress in dealing with his problems. In conclusion, we are satisfied on the evidence that alcohol and codeine were not the cause of the grievor's assault on Mr. Barnard. In the result, the argument of mitigation advanced by the union can not succeed. The grievance is dismissed. Nepean, this I~ day of ~ 1993. M. Brian Keller, Arbitrator I concur "George Metcalfe" George Metcalfe, Employer Nominee I concur "Michael Lyons" Michael Lyons, Union Nominee