Loading...
HomeMy WebLinkAbout1989-1477.Morse.91-07-23 ONTARIO EMPL O YI~$ DE lA. COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 ,~UNDA$ STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 .TELEPHONE/TELEPHONE: (416,1 326-~r388 180, RUE OUNOA$ OUEST, BUREALI 2~00, TORONTO (ONTARIO). MSG T~78 FAC$1IuftLE/'t'~L.I~COPtE : [416.I 326-I396 1477/89 IN THE MATTER OF ~N ARBITRATION Under THE CROWN EMPLOYEE8 COLLECTIVE BARGAININ~ ACT Before THE GR~L'VANC~ SBTTLE](ENT BOARD BETWEEN CUPE (Morse) Griever The Crown in Right of Ontario (Ministry of Housing) Employer BEFORE: G. Brandt Vice-Chairperson I. Thomson Member G. Milley Member FOR THE R. Carnovale GRIEveR National Representative CUPE, Local 767 FORT HE A. Tarasuk EMPLOYER Counsel Smith, Lyons, Torrence, Stevenson & Mayer Barristers & Solicitors HEARING May 24, 25 1990 November 27, 30, 1990 May 3, 7, 1991 AWARD The grievor, Gary Morse, was employed as a caretaker of premises operated by t~e Metropolitmn Toronto Housing Authority. On the date of his discharge he was employed at Don Mount Court. However, some four and a half months earlier he had bee~ employed at a high rise building at 220 Oak Street where, on October 21, 1989, there was an incident which, following an investigation, led to his discharge effective November 27, 1989. The letter o~ termination recites that as a result 6f this incident in which the grievor "behaved in an unacceptable manner", viz, "punching and kicking walls in a hallway on the twenty-eight floor as well as the elevator walls", and taking into account his previous record, he was to be dismissed. The grievor did not testi~y mt the hearing. The only evidence from him that is before the board consists o£ a handwri'tten account of an interview of. the grievor on November l§, 1989 when the incident was being i~vestigated. At this interview the grievor stated that, after he finished work at Don Mount Court on Saturday, October ~1, he was telephoned by a friend who lived at 220 Oak St. and invited to go over for a few beers. He went to his friend's apartment and, while there, was invited by another friend, (who the grievor repeatedly refused to identify) up to A~artment 2812, a known crack house. He s~ated \ that when he went uD there he saw three or four people in the apartment "making transactions" and did not feel ¢om~ortabie. He w~s o~fered crack but declined. One of the men invited him in but a black woman (later identified as Angela de Silva) said that he should not be let in as he "was an ass-hole and worked for the company". She then came out into the hallway and proceeded to attack the grievor with a knife but he backed off. He stated, that all of this was observed by a tenant who was peeking through the open door to her apartment. He stated that he then went back to the apartment of the ~riend who had initially invited him over in order that he could call the police. He was repeatedly questioned as to whether he might have called from the office rather than from the apartment of his friend and repeatedly stated that he could not recall going to the office. He also stated that he did not think he had a key for the office at 220 Oak St. In any event he called 911 and reported that, it was not an emergency call but he had been threatened and almost stabbed by a woman with a knife on the 28th floor of the building. Shortly thereafter a call was put out to police patrol cars in the area ~tating that there had been a stabbing at 220 Oak. St. Two cars answered the call: one consisted of P.C. Getty and P.C. Anderson; the other contained P.C. Stern and P.C. Houston. Before they arrived Mr. Joe Brunelle, a tenant, observed the grievor come out of the office in the lobby, lock the door behind him, proceed to the front entrance of the building and exit the building by pushing automatic sliding doors so hard that they came off ~heir rails. Mr. Brunelle fixed them and went out to see the grievor who told him to "get the hell back inside and get him a 4 cigarette". The grievor wms standing Out on the sidewalk and 2 police cars drove up, went past Mr. Brunelle, and, with the grievor, got into the elevator. He heard no conversation between the grievor and the police officers at this time. P.C. Getty testified that when he arrived at the building he met the grievor in the lobby. He said that the grievor, who appeared to be "upset - hyper", identified himself as an MTHA employee who had been working on the ~Sth floor when an altercation took place outside apartment ~81~. He said that a black woman had tried to stab him at the door in the hallway while he was working. P.C. Getty could not recall exactly what the grievor was wearing. He thought he may have been wearing dark brown pants and work boots but could not recall seeing any MTHA logo on the shirt. [The uniform for MTHA employees is a light brown shirt and dark brown pants.] At his interview the grievor denied saying that he was working when the incident occurred; he surmised that the police may have thought that since, when asked if he worked "here", he responded that he did. The grievor and the four police officers went up to the 28th £1oor. The police were let into the.apartment but the grievor remained in the hall. It appeared that there was no black woman in the apartment. P.C. Getty spoke with 4 men, none of whom lived there, and asked them about the earlier incident involving the grievor and the woman. When they said they knew nothing of the incident the grievor became very upset out in the hall. He began to kick the elevator doors ~nd to scream and punch the walls. P.C. 5 Getty came out to try to calm him down but returned'to the apartment as he was concerned about the safety of the other police officers, one Of whom was an older man, and the other of whom was a woman. At this point the black woman, Angela de Silva, burst out of the closet and began to attack P.C. Houston. The other police officers were engaged in getting.handcuffs on her when the grievor continued tO"go crazy" at the doorway to the apartment. P.C. Stern and P.C. Getty grabbed him as he was kicking'and pounding the door and yelling and cautioned him that he could be arrested if he did not settle down. P.C. Getty testified that, while it was not uncommon for a victim to be upset, he thought the grievor's behaviour to be somewhat uncharacteristic of a victim. It was then that he formed the opinion that the grievor might be "high on something". The police returned to the apartment to assist with de Silva and the grievor again appeared in the doorway and pointed to the knife that he claimed de Silva had tried to use against him. He was still very upset and P.C. Getty told him to go down to the lobby to wait for them. The grievor's statement substantially confirmed the evidence of P.C. Getty with respect to these events. Specifically, he conceded that he was acting irrationally and that he "might have punched the wall", that he "upset and hit something but not a person." Upon a search of Ms. de Silva's clothing some packages 6 believed to be cocaine were found. She was then arrested and charged with assault with a weapon (apparently based on the grievor's claim) and with possession of a'narcotic. On his way down to the lobby the grievor was joined by another tenant, Mr. Dan McKinnon, who got on the elevator at the 20th floor. Mr. McKinnon stated that the grievor was wearing light brown pants and a dark green shirt and that he did not have any MTHA badge on his person. He further stated that the grievor was upset, that he smelled of beer, and that the police had hit his hand. The two men got off the elevator at the lobby. Sometime later both Mr. McKinnon and Mr. Brunelle saw the police emerged from the elevator accompanied by Ms. de Silva. Two of the police officers escorted her to the car and the other two remained in the lobby questioning the grievor as to why he was in the building. Both McKinnon and Brunelle testified that he stated that he was an MTHA employee wor~ing in the building on an emergency call. The grievor was taken to the police station for further questioning. He offered no resistance and was not handcuffed. Following the completion of the investigation he was released without being charged. P.C. Getty stated that, during the questioning of Ms. de Silva, she stated that the grievor wanted to buy drugs from her and that she had sold him "rip" or "vic", neither of which was cocaine. Subsequent analysis of the packages found in her clothing revealed the substance to be either "rip" or "vic". 7 The grievor was not questioned about this allegation as he had left the police station by this time. Nor, was it suggested to him, when he was further questioned by his employers on November 15, that he had provoked the incident with Ms. de Silva because he was angry at having been ripped off in a drug deal. The grievor's disciplinary record dates back to 1982 and contains a significant number of incidents involving conduct similar to that which led to his discharge. On May II, 1982 he received a 2 day suspension following an incident in which he had been drinking and became involved in a fracas with tenants. On June 29, 1983 he was given a 5 day suspension for an incident in which, after drinking, he had been verbally abusive to a tenant. He subsequently agreed that it was an error of judgment to behave as he did and his suspension was reduced to a warning that, if he continued to behave in that way, more serious disciplinary action would be taken. On December 25, 1983 he was again intoxicated and became involved in an altercation with tenants. He was told that, considering his two earlier incidents of the same type, his employment was in jeopardy. However, since the grievor apparently accepted that he had a problem with alcohol, and that his behaviour changed drastically when he had consumed too much alcohol, the Authority referred him to an Employee Counselling Service that might be able to assist him, 8 The ~rievor's problems with alcohol-arose again in early 1985. On February 20, 1985 he was requested to leave the work site due to an inability to work safely as he was intoxicated. On March 8, 1985, the Authority wrote to him to set out the steps which he would have to take and the assistance which the Authority was prepared to provide to held him with his problem. Specifically he was expected to enrol in a treatment program and to accept the assistance of Employee Health Services. The letter concluded by stating that if there was no improvement in the grievor's attendance and work performance, "the ultimate result must be termination of your employment". On December 16, 1986, the grievor, while under the influence of alcohol, became involved in an argument with a supervisor during which, in the presence of a tenant and her children, he used language and engaged in behaviour which was abusive and threatening. He was directed again to Employee Health Services and given a 3 day suspension with the further warning that any recurrence of his behaviour would result in more severe disciplinary action. On July 21, 1988 he was a~ain found unfit to perform his duties and suspended for 5 days. He was again offered assistance and informed that if he failed to take advantage of the offer of help and the problems repeated further disciplinary action would have to be taken. 9 On May 10, 1989 he was issued -a warning respecting an allegation of vandalism in the lunchroom and a failure on his part to punch out. One week later he was involved in an incident concerning his manner of inappropriately addressing his supervisors and given a warning with a threat of further progressive discipline. On August 11, 1989 the grievor was again intoxicated and became involved in a physical altercation between a co-worker and a friend. He was given a 10 day suspension and warned that, if there was a recurrence of a similar problem, he would be subject to further discipline up to and including termination. The next incident was the October 21 incident for which the grievor was terminated. There was a good deal of'evidence and argument respecting the reasons why the grievor became involved in the altercation with Ms. de Silva. Counsel for the Ministry suggested that he originally went to Apartment 2812, a known crack house, because he had "ripped" off by de Silva. The grievor's statement suggests that the attack was entirely unprovoked. We have some difficulty in understanding why the grievor originally went to Apartment 2812. Evidently the friend that he was visiting did not live there; rather he was invited up by another friend and he accepted that invitation. Given that Apartment 2812 is a known crack house, his motivation for being there is somewhat suspect. Nor do we accept that he was working on 10 the 28th floor when the incident happened. Although there is some evidence to indicate that this is what he told the police officers, the clothing he was wearing, whichever evidence one accepts on that issue, indicates that he was not working in the building at the time. He did not appear to be wearing the uniform of an MTHA employee. Moreover, in his statement the grievor denied that he was working, a denial that is contrary to his interest and therefore entirely credible. However, while we are puzzled as to why he was at Apartment 2812, the evidence does not support the allegation that he went there for the purpose of challenging Ms. de Silva on an earlier transaction. The only evidence of any prior transaction at all is the hearsay evidence of P.C. Getty as to what Ms. de Silva told him at the police station. The grievor firmly denied the allegation. In the circumstances we are reluctant to conclude that the grievor's purpose was as suggested by counsel for the Ministry. That is a serious charge and would require far more cogent evidence than that which is before us. However, in our opinion the case does not turn on this issue. The grievor was discharged for certain inappropriate ~behaviour which occurred at the premises on October 2I; whatever may have been the precipitating cause, there is no question that the grievor did engage in certain violent and inappropriate behaviour. Over a period (which P.C. Getty estimated to be between ll and 14 minutes) the grievor demonstrated considerable anger by yelling and punching and kicking the walls and the elevator. He had to be ll requested once to calm down by P.'C.~ Getty and subsequently, restrained and threatened with arrest by officers Getty and Stern. The grievor had no explanation for this conduct. Even if it is accepted that the precipitating cause was an unprovoked attack on his person by Ms. de Silva, his response was clearly excessive. With the arrival of the police officers on the scene, the matter which had led him to seek assistance, was presumably being taken care of. Yet, the simple denial of any knowledge of a'prior incident by the 3 or 4 men questioned by P.C. Getty triggered the grievor's initial outburst. The second outburst occurred when Ms. de Silva emerged from the closet. Again, it is difficult to understand why the grievor would have become even more agitated when it was apparent that the police officers were evidently successful in subduing Ms. de Silva. Given the absence of any significant evidence from the grievor as to why he behaved the way he did it is difficult for us to reach any conclusions which would excuse his behaviour. It would appear, however, that in all probability, it was related to his consumption of alcohol. There is evidence which would indicate certainly that he had consumed alcohol on this day. He stated himself that he originally went to 2~0 Oak St. for a few beers with a friend. Mr. McKinnon testified that he had a "beery smell" when he got on the elevator. P.C. Getty, although not noticing any smell of alcohol, described as "hyper" when he first arrived at the building. FinallY, when asked at his interview whether or not he had been drinking, he 12 replied that "that was not relevant", tha~t he was under medication. That is a response which suggests to us that, indeed, he was drinking and didn't want that fact to be known. Having regard to his prior record whic~ reveals a number of instances in which the grievor became involved in somewhat violent and abusive behaviour when he consumed alcohol, the most probable conclusion to draw is that, on this occasion, he responded excessively and aggressively to whatever it was that provoked him because of alcohol. In that regard, what occurred on October 21, was a carbon cody of a number of earlier incidents. Therefore, it is beyond question that there was a culminating incident which warranted some discipline. It is thus appropriate to assess the grievor's disciplinary record in order to determine whether or not the grievor should have been discharged for his most recent misconduct. It is unnecessary to review in detail the content of the record. It has been set out in detail above. However, what it discloses is that this employer has not, contrary to the submissions of the union, acted in haste. Rather the employer has gone to considerable lengths in an attempt to accommodate the grievor's problems with alcohol. We note that it has reduced suspensions (in May 1982, June 1983 and December 1986) on the strength of various undertakings or representations of the grievor; we note that it ~as repeatedly (in December 1983, March 1985, December 1986 and July 1988) offered to assist the grievor with counsellinG and- to refer him to Employee Health Services. We note also a number of inssances in which ~ne employer, rather than follow strictly a route of progressive discipline, has imposed less severe discipline than might have Peen expected. T~us, in 1982 and 1983, he "progressed" from a 2 day suspension to a 1 day suspension to a warning letter. In May of 1989, at a time when he already had suspensions of 1 and 5 days on his record, he received a warning letter for conduct involving racially improper statements. We are satisfied that the employer has done all that could be reasonably expected of it in accbmmodatinG the Grievor's problems. In all the circumstances we are of the opinion that the discharge o~ the grievor was warranted. Consequently, the grievance is dismissed. DATED at London, Ont. this 9~rd day of ;ul~ , i991 G. J. Brandt:~ Vlce Chair 1. Thomson, ~aio~ ~em~er