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HomeMy WebLinkAbout1989-1321.Xanthopoulos.90-06-06  EMPLOYES DE LA COURONNE ONTARIO CROWN EMPLOYEES DE L'ONTA '~' GRIEVANCE CpMMISSlON DE ?.. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOA$ STREET WEST, SUITE ZTO0, TORC~NTO, O.N, TARFO. 180, RuE DUNDAS DUEST, BUREAU 2~'0~, TORONTO, [ONTA~R$O}. MSG fZ8 FAC$IMf[.E/T~LECOPIE .' [4 ~6) 326- 1321/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OLBEU ' (Xanthopoulos) Grievor - and - The Crown in Right of Ontario (Liquo~ Control Board of Ohtario) Empl%yer - and - BEFORE: B.B. Fisher Vice-ChairPerson P. Klym Member A. Stapleton Member FOR THE J. Chaykowsky GRIEVOR: Classification Officer Ontario Liquor Boards Employees' Union FOR THE W. Zachar EMPLOYER: Staff Relations Office[ Liquor Control Board of Ontario REARING: February 26, 1990 XANTHOPOULOS This is a discipline case. The grievor was suspended for one day for allegedly assaulting a co- worker by punching him on the arm. The grievor denies the assault, and in the alternative, states that the employer improperly took into account some previous discipline and thus the penalty should be nullified. Employer's Evidence: The victim of the alleged assault was Peter Venier, a warehouseman at the Durham Warehouse for the last four years. On August 2, 1989, he parked his forklift outside the lunchroom and went to lunch. Upon returning from lunch he found another forklift parked in front of his, blocking his exit. He then moved the other forklift and parked it in another area. He Went back to his forklift and drove off. As Mr. Venier was driving off in his forklift, the grievor yelled out to him, "Peter did you move my forklift?" Mr. Venier stopped his forklift and said to the grievor "Yes, I did because it was in my way". Then the grievor told Mr. Venier to get off his forklift. Mr. Venier at this point became angry and told the grievor to F.O. and also gave him a middle finger salute. He then drove off. At this point the grievor started chasing after Mr. Venier. Mr. Venier then stopped hi~ forklift. The grievor came up alongside Mr. Venier's forklift, made a fist, and hit him on the upper portion of his left arm with considerable force. Mr. Venier's immediate reaction was to start to shake as he was very nervous. He did not cry out with pain or say "ouch". Mr. Venier then said to the grievor, "You didn't have to hit me, your forklift truck is over there". The grievor then walked away. Mr. Venier did not report this incident fight away as he said that he was afraid Of the grievor due to his knowledge that the grievor in the past had been involved in incidents of assaulting fellow workers. He related an incident in which the grievor had put a choke hold on Mr. R0n Hamilton - as a result of an argument in the lunch room. This evidence was only admitted for the purpose of ascertaining Mr. Venier's state of mind, not for the purpose of proving a previous incident of assault by the grievor. -2- TWO days later on Friday August 4, Mr. Venier told his Union Stewart, Mr. Araujo, of the assault incident. Mr. Araujo told him to go and tell the story to Mr. Bill McDowell, the Supervisor of the Warehouse, which he did. He showed Mr. McDowell his injured arm at that time. In examination in chief, Mr. VerLier testified that on that Friday he showed Mr. McDoweH a photograph of his arm that he said was taken on the night of the incident. This photograph was allowed as an Exhibit. It clearly shows a serious, large contusion on his upper left arm, This photograph was taken by his wife, I~ut he testified that he took it in for developme~at. The original negative was also produced at the hearing. Later in his cross-examination, Mr. Venier stated that he did not have the photograph with him at the Friday meeting and in fact he gave it to Mr. McDowell only on the following Monday. He also said he was not sure whether he or his wife brought the photo in for development. On cross-examination Mr. Venier admitted that he had provoked an argument through his words and his gestures, but-said that this didn't justify an assault. He said that he did not injure his arm in any way other, than by the assault. He did not seek medical attention for the injury as his wife is a Registered Nurse and therefore she attended to his needs. The second wimess for the employer was Mr. William McDowell, the General Manager of Operations at the Durham Warehouse, a position he has held for eighteen months of his 22 years with' the LCBO. Mr. McDowell first became aware of this matter on Friday, August 4, 1989, when he was approached by Mr. Araujo who related to him an allegation of assault by the grievor upon Mr. Venier. Mr. Venier related the story of the assault to Mr. McDowell and in addition showed him the bruise. The bruise on the upper left arm was of a diameter of about 2.5 inches and was very pronounced. Mr. McDowell asked Mr. Venier to have a photograph' taken of his arm. Mr. Venier brought in the photograph on Monday August 7. -3- On August 4, 1989, Mr. McDowell sent a letter to the grievor entitled "Notice of Int. ended Disciplir~e". In this letter he set out the allegation of assault and requested that the grievor provide a written statement. Once he got the grievor's statement he reviewed the matters further with Mr. Venier. Mr. Venier at that time told him of three witnesses to the incident; Tim Lovely, Chris Goodyear and Kevin Colson. Mr. McDowell subsequently interviewed Mr. Lovely and Mr. Goodyear. Mr. Goodyear actually witnessed the event. Mr. Colson was not interviewed as he was not at work that day. For some inexplicable reason the Employer did not call any of these w~tnesses to testify at the arbitration although all of them were available as they were st/il employees of the LCBO. Furthermore, Mr. McDowell testified that he was influenced by the fact that there were eyewitnesses to the incident in arriving at his decision to discipline the grievor. In the discipline letter of August 25, 1989, Mr. McDowell concluded that an assault had taken place. He then made the follow comment: "Such behaviour is unacceptable. It is of spedal concern to me that you have already been verbally cautioned ih the past regarding a physical confrontation wire a co-worker". The incident to which Mr. McDowell is referring is the choking incident involving Mr. Hamilton. There is no record of the date of this incident on the grievor's personnel file. Mr. McDowell's understanding of the date of this incident was based entirely 0n what information he obtained from Mr. Araujo, who was at the time a Union Stewart, but is now a member of management. Mr. McDowell's understanding was that the incident took place in July of 1988. Mr. McDowell testified that this previous incident played no part in his decision to give a one day suspension. Union's Evidence: The grievor has been a warehouseman at the Durham Warehouse for the last five or six years. He started full time with the I.CBO in 1979 at the Kipling Warehouse. The grievor's story of the August 2nd inddent differs somewhat, from that of Mr. Venier. He denied that he parked his forklift so as to block any other forklift. When he came out after his lunch he saw Mr. Venier sitting on "his" forklift. The grievor yelled out "Peter, you have my forklift". -4- Mr. Venier's reply was to give the grievor the middle finger salute. He also could tell from Mr. Venier's lips that he was saying "F.O.". Mr. Venier then drove off and the grievor followed, not running but rather more of a half-run. The grievor thought that Venier was playing a practical joke on him and therefore continued to shout, "Peter, stop kidding around." The grievor then approached Mr. Venier who then stopped the forklift. The grievor asked Mr. Venier again why he was driving his forklift but Mr. Venier ignored him and looked the other way. The grievor then "tapped" Mr. Venier on the arm, using an open palm, simply to get Mr. Venier's attention. At the same time the grievor said "Look at me when I talk to you". He denies that he hit Mr. Venier in such a way as to cause a bruise. After the "tapping", Mr. Venier turned around and said to the grievor "I didn't take your macNne, it's over there." The grievor then said "Why didn't you tell me before? Why don't we go to McDowell's office to settle ihis". Mr. Venier declined the offer to talk to Mr. McDowell. The gr/evor then walked away. The first time that the grievor heard of re allegation that he had assaulted a co-worker was when he received the letter of intended d/sdpl/ne. He was home at the time on sick leave, He prepared a written response to the allegations, wh/ch was marked as an Exhibit to these proceedings. In this letter he requested that disciplinary action be taken against Mr. Veniex for "he tampered w/th government equ/pment~ he wasted government time and aggravated a government employee". He further stated that he %vent after him~ fed-up w/th th/s 'cat and mouse' game he was playing". The gr/evor later saWa picture of Mr, Venier's arm and said the bru/se could not have been caused by bis act/om. The grievor testified that the Hamilton assault incident took place in 1985 when he was at the K/p//ng Warehouse. He received no verbal caution in 1988. .. In cross-examination the grievor said that he was not mad or upset when Mr. Venier told h/m to F.O. and gave him the middle finger salute, although he was "fed-up". .$. Decision: The first question to determine is whether or not the grievor assaulted Mr. Venier and caused the bruise in the photograph or whether he simply "tapped" Mr. Verder. For the following reasons, the Board concludes on the balance of possibilities that the grievor did in fact assault Mr. Venier: 1. Mx. McDowell testified that he saw the bruise a mere two days after the incident. Therefore, .the actual timing of the photograph, who developed it, who took the picture, etc., is not important given that Mr. McDowell made a first hand observation. 2. Mr. Venier's explanation as to 'why he waited two days to report the incident is perfectly understandable in that he feared further physical abuse by the grievor. This fear was ' · well founded as Mr. Venier had a personal knowledge of a previous incident in which the grievor had assaulted a co- worker. 3. The grievor's story doesn't make sense in that he says he was "fed-up" with Mr. Venier's actions but not "angry" with him, His contention that he wanted to accompany Mr. Venier to see Mr. McDowell about the forklift problem lacks credibility in that it ff was so important to the grievor that Mr. McDoweI1 know of this problem, why didn't he just go himself?. 4. Although we are quite troubled by the fact that the employer chose not to call Mx. Goodyear, an apparent eyewimess to the event, this only mean.~ that there is no eyewimess evidence to buttress Mr. Venier's evidence. We do draw the usual inference that the failure to call a witness who was available means that we can conclude that his evidence would not be supporting of the employer's position, but that does not mean that we can conclude that his evidence would have been helpful to the Union's case. There is a third possibility, that is, that his evidence would have been neutral. If Mr. Goodyear's evidence would have been supportive of the Union's position, one would have thought that the Union would have called him. Mr. Goodyear was a bargaining unit employee and therefore there is no reason why the Union couldn't call him to support their case, and their failure to do so leads us to believe that Mr. Goodyear's evidence would not have been supportive of the Union's case either. We note that even ff the Union only knew of the eXistence of these wimesses after Mr. McDoweLl testified, no request for an adjournment was made by the Union to allow them time to interview these witnesses. Furthermore, these witnesses were at work during the hearing and therefore could have been reached by telephone during a - break in the proceeding. 5. The grievor admitted that he tapped Mr. Venier on the left arm, which was the arm with the bruise. It~ the grievor's story is to be believed then Mr. Venier must have either intentionally or accidentally incurred a serious bruise to the same arm at relatively the same time. This is an amazing coincidence, and quite frankly, a highly unlikely one. -7- 6. It is perfectly understandable for Mr. Venier to not show any outward expression of pain upon being assaulted by the grievor as people often don't show these feelings as it could be considered to be a sign of 'Weakness". Furthermore, Mr. Venier testified immediately following the assault he shook and felt extreme nervousness, which in itself is an understandable reaction to a sudden assfiult. Having determined that an assault took place we now look at whether the penalty of a one day suspension was appropriate. The Union takes the position that because the Employer improperly considered a past disciplinary incident of the grievor's, any disciplinary actio~ is nullified. Article 26.2 of the Collective Agreement reads as follows: "No dis.~£1ine again~_.t an empl~oyee shall be used in a ~. bsequent discipl',~, , £roceeding if sufch prior incident is more taan three (3) years ora. The incident in question is the one involving the assault on Mr. Hamilton. The only first hand evidence as to the date of this incident was that of the grievor who said it took place in 1985, which was clearly beyond the three year rule. The employer does not dispute the timing of the e,~ent bat says that the re~erence to "verbal caution~ in the discipline letter refers not to discipline b~tt to counselling, and therefore it is perfectly proper to 'consider previous "counselling" letters beyond the three year rule. The word "caution" is defined in Websters Encyclopedic Unabridged Dictionary of the English Language as including "a warning against danger or evil, to give warning to, to warn or advise." Thus the words "verbal caution" and ''verbal warning" would appear to be interchangeable. It appears that Mr. McDowell specifically referred to, and relied upon, this previous incident because he had an honest, but mistaken, belief that the incidem had occurred only one year prior, thus according to Article 26.2, lie couid properly consider it. The Employer then said that even if it was discipline outside the three year rule, the Employer did not rely upon it in coming to its decision to impose a one day suspension, as Mr. McDoweli testified that he did not so consider it. The Board finds that based on the simple fact that Mr. McDowell made a specific reference to the past incident in the termination letter is sufficient evidence that he in fact considered the incident in arriving at his decision. Mr. McDowell knew he was writing an important letter and it is not likely that he would have added unnecessary comments of this nature. Furthermore, as he incorrectly thought he could rely upon this incident (as he was mistaken as to the timing) it is consistent with his desire to indicate to the grievor that he was getting a one day suspension based on a second offence. In other words, he was intending to rely upon the doctrine of progressive discipline to justify the one day suspension. Therefore, this Board concludes that the Employer improperly considered a previous disciplinary incident contrary to the provisions of the Collective Agreement. What then is the effect of this improper considerat/on? The Union says that the effect of such breach is to nullify the discipline. The Union relies on the case of Molson's Brewer,/and Brewery Workers, Local 304 (Ch'one), unreported, November 17, 1981, Arbitrator Saitman as judicially reviewed by the Divisional Court, reasons dated December 20, 1982 (Southey, .,',) and upheld by the Court of Appeal in a decision dated June 17, 1983 (Blair i.A.). In that case a similar clause to Article 26.2 was held to be mandatory and not directory. The Divisional Court in effect ordered the Arbitrator to reinstate the grievor with full back pay. The Court of Appeal however varied the Divisional Court order ' so that the Arbitrator was to determine the appropriate compensation. In other words, by allowing the Arbitrator to provide for a eompensatlon award of less than reinstatement with full back pay, there was an implicit understanding that the Arbitrator could order a lesser compensatory award, that is to substitute a suspension for the discharge. This, in effect mean~ that the breach of ar~ article like Article 26.2 does not automatically lead to a nullification of the discipline. -9- This was further expanded on in a case by Arbitrator McLareu decided subsequent to the Molson decision (Labatts Ontario Breweries Ltd. and Brewery Workers Local 304 (Rawlings) unreported December 5, 1983). He finds that in the particular case before him the effect of a breach by the Employer was so severe that the discipline should be nullified. However, he went on to say as follows: " The co.nsequences 9flailing to fqllow a mandatory provision, which is set up.to iptace res~qtidns on t.t~e othe.rwise quite broad doctrine of the. culminating incM. qntt rn.ust Oe to utter, the dis. ciplinar~, decision of. me Cor~pany. It might oe tttat it i~. not always me case tttat the disciplinary a. ction would be a nullity. In mis case, ti~at is the proper d_isposittoon oecause it is agreed by the parties that gre. at weight w..as £1aded u_gon the April 1, 1981, conduirt in drriving at the decision to disc _aRrg. q. £b. rties agree that is the case in the Agreed Stalernent and Jrom the previous _quotes in Exhibit #4 that the Co.rnp~_ attached considerable weight to the previous Offence in reachihg its decision to d. ischarge. .~. prior cortd~t havin~ha~, such an ig.f~. .nce on the clecision to ctiscttarge, must be considered a nullity iit mis case. It is .Cl~estio~le that the record was 5'e[erred to' and that it was given considerable weight in reaching the discharg, e. decision. If it had not been .referred_ to, but had been madvertentl~ looked al as discussed in the Divisional. Court decision or not been given weight, it would not . necessary oe axiomatic that discharge would be a nullity." We adopt the reasoning in the Labatts case and therefore must look at the facts of this case to see if the improper reliance by the Employer on the Hamilton inc/dent was to such a degree that the discipline should be nullified. Although Mr. McDowell testified that the previous incident was not considered by the Employer in arriving at the decision, the Board is skeptical of that statement. However, the Board is not satisfied that the Employer relied to such a degree upon this previous inddent so that the decision should be completely nullified. This is not a case of where the employer imposed a serious penalty for a final incident of a minor nature, rather it is a relatively short suspension for a significant offence. In assessing the appropriate penalty, however, we must consider that if the decision maker had only considered the single incident, he likely would have given a lesser penalty than a one day suspension, as that is the penalty he assessed based on the premise that this was a second assault. - 10 - A similar approach was taken by this Board in Lenehan 164/89 (Fisher) in which the grievor was suspended for three days for. two separate offences. The employer only proved one incident and the Board reduced the penalty on the premise that if the decision maker believed the grievor had only committed one offence, she would have imposed a lesser penalty. Similarly, this Board is satisfied that had Mr. McDowell not considered the Hamilton incident, he would have imposed a lesser penalty. In the circumstances a written warning would have been proper. The grievance is therefore allowed, however, the penalty of a one day suspension is to be replaced with a written warning. The grievor is to be compensated for one day's pay if he has served the suspension, however, without the payment of any interest. This Board will remain seized of any matters arising from the implementation of this decision. DATED this 6 day of June. 1990. er- Vice Chairperson Klym- - l~lembe r A.G. Stapleton - Member