HomeMy WebLinkAbout1997-2033.Massa.00-02-15 Decision
o NTARW EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L '()NTARW
GRIEVANCE COMMISSION DE
.. SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB # 2033/97 384/98 385/98
OLBEU # OLB002/98 OLB235/97 OLB413/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Employees Uruon
(Massa)
GIievor
- and -
The Crown III RIght of Ontano
(LIquor Control Board of Ontano )
Employer
BEFORE RandI H. Abramsk" Vice Chair
FOR THE Lam Stemberg
GRIEVOR Counsel KoskIe & Minsk"
Barnsters & SohcItors
FOR THE Micheal Sherrard
EMPLOYER Counsel Ogil~ Renault
Barnsters & SohcItors
HEARING June 18 1998
October 27 28 1998
November 12, 13 26,27 1998
December 3 4 1998
March 10 11 1999
April 20 1999
Ma, 12, 1999
Jul, 13 14 1999
August 16, 27 1999
October 13 26 1999
AWARD
ThIS arbItratIOn Illvolves three gnevances concerillng dIscIplIne Imposed on the
gnevor Joseph Massa - a three-day suspenSIOn, a ten-day suspensIOn and dIscharge At
Issue IS whether the Employer the LCBO had Just cause to Impose these dIscIplInary
measures
A. Background
The gnevor pnor to hIS termIllatIOn III January 1998 worked as a Warehouseman 4
at the London warehouse and had held that posItIOn sIllce January 1977 The London
warehouse receIves, stores and ShIpS lIquor to 135 LCBO stores III the area. The lIquor IS
stored on pallets, by type and brand, III aisles III the warehouse ApproxImately 42 full-
tIme employees and ten to fourteen casual employees work at the warehouse
At vanous tImes, the gnevor worked as a forklIft operator III ShIppIllg and
ReceIvIllg WhICh Illvolves 10adIllg and unloadIllg trucks as well as III the general
warehouse where he would servIce the aisles by respondIllg to the needs of the
assemblers for repleillshment of stock. The assemblers pIck the stock ordered by the
stores, place them on pallets and transport the pallets to the stagIllg area for placement
IlltO a delIvery truck. A forklIft operator also retneves empty pallets, puts stock away and
maIlltaIlls the aisles In both posItIOns, the gnevor extensIvely used a forklIft.
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On a tYPIcal day there are approxImately seven or eIght forklIft trucks operatIllg
at the warehouse two on the docks, 10adIllg and unloadIllg trucks, four or five
maIlltaIllIllg the aisles and one repleillshIllg stock. In addItIOn, there are approxImately
fifteen electnc pallet trucks, or transporters, operatIllg WhICh are used by the assemblers
London warehouse Manager WillIam McDowell, descn bed the forklIfts used at
the London Warehouse as "state of the art." All are electnc, sIt-down models, WhICh can
lIft between 3 000 to 4 000 pounds and can lIft pallets up to 16 feet. AccordIllg to the
IllstructIOnal matenals for forklIft operators, "[a]n average lIft truck weIghts over 12,000
pounds fully loaded, WhICh IS eqUIvalent to the weIght of five cars" The forklIfts have
two speed optIOns, creep speed WhICh moves the forklIft between two to three mIles per
hour and accelerated speed WhICh moves It to a maXImum of seven or eIght mIles per
hour There are no speed lImIts Instead, speed IS a matter of Judgement. All of the
machIlles are eqUIpped wIth horns They do not have brake lIghts
GIven the nature of the warehouse operatIOns, safety IS a maJ or concern Jim
"Tiny" Ross, a long-servIce employee III the bargaIllIllg Uillt who was recently promoted
to General Foreman, was III charge of the traIllIllg of forklIft operators at the warehouse
WhICh took place III March 1997 The gnevor attended thIS traIllIllg WhICh consIsted of
both classroom and dnvIllg IllstructIOn.
Ross testIfied that he revIewed wIth the forklIft operators the relevant legIslatIOn,
the prIllcIples of forklIft operatIOns and a number of safety vIdeos dunng the traIllIllg.
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One of the vIdeos was presented at the heanng. It covered the dangers Illherent III forklIft
operatIOns, partIcularly to pedestnans, and the responsIbIlItIes of the forklIft operator to
ensure safety It dIscussed, among other thIllgs, establIshIllg "rules of the road" and the
Importance of abIdIllg by the rules It dIscussed that there was lImIted space contIllual
movement, and the need for cautIOn, partIcularly around IlltersectIOns and hIgh traffic
areas The courteous use of the horn and when to use the horn such as III blInd
IlltersectIOns, comers WIth stockpIles, was also dIscussed. At IlltersectIOns, Ross adVIsed
employees to slow down Just about to a stop at the end of an aisle and to proceed WIth
cautIOn
The eVIdence showed that there had been some conflIctIllg messages sent to
employees about the proper use of the horn, but It was clear that the JOIllt Health & Safety
CommIttee had sIgillficantly lImIted the use of horns, relYIllg Illstead on vIsual eye
contact and cautIOn. Massa, who had been a member of the Health & Safety CommIttee,
was aware of the change III polIcy but dIsagreed WIth It. AccordIllg to Ross, the maJonty
of employees dId not regularly use the horn although some dId. When he heard the horn,
however the maJ onty of tIme It was Massa and thIS caused a lot of IrntatIOn among hIS
co-workers Ross receIved a lot of complaIllts that Massa drove too fast and used the
horn too much. Ross acknowledged that he, lIke Massa, had been counseled about
dnvIllg too fast
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B. The Three-Day Suspension
On July 14 1997 the gnevor was gIven a three-day suspenSIOn for unsafe operatIOn
of hIS forklIft truck on the afternoon of June 3 1997 The June 4 1997 NotIce of
Intended DIscIplIne ("NOID") WhICh was later replaced by a June 12, 1997 NOID
asserts that
On June 03 1997 at approxImately 2 15 p.m I wItnessed you operatIllg
your forklIft truck at an exceSSIve speed III the proxImIty of a supervIsor
and a co-worker You faIled to reduce your speed and gIve the nght of
way to pedestnans Your actIOns whIle turillng IlltO the "B" pIckIllg aisle
forced both the superVIsor and co-worker to Jump out of the way to aVOId
contact wIth the pallet load you were carryIllg.
McDowell testIfied that on June 3 1997 at approxImately 2 00 to 2 30 p.m he
was walkIllg north on the east sIde of the bUIldIllg wIth the former manager of the
warehouse DenillS Smedley They were approxImately at the mId-poIllt between the B
and C aisles when Massa passed them III hIS loaded forklIft at an accelerated speed. He
stated that Massa had scarcely passed them when he began negotIatIllg a left-hand turn
IlltO the B aisle As he approached the IlltersectIOn, he saw that SupervIsor Ron Kestle
and warehouseman Mike Robertson were talkIllg to each near the mouth of the aisle He
testIfied that Kestle was standIllg on the left sIde of the aisle, facIllg north, and Robertson
was standIllg alongsIde hIS forklIft, on the nght sIde of the aisle facIllg south. The pallets
were three hIgh, wIth one servIce pallet on the floor empty SIllce each pallet IS about 52
Illches, the three would be approxImately twelve to fourteen feet hIgh. Instead of SIOWIllg
down or StOppIllg, McDowell testIfied that Massa slowed only enough to negotIate the
turn and then proceeded through the aisle causIllg Kestle to Jump onto an empty skid on
the left sIde of the aisle and Robertson to "lunge to the nght sIde of the aisle and grab the
5
steenng wheel to pull hImself onto hIS machIlle" On cross-examIllatIOn, however
McDowell acknolwedged that he dId not see Robertson move Instead, he dIsappeared
from hIS VIew as the forklIft went through and he next saw hIm on hIS machIlle holdIllg
the wheel He testIfied that Robertson then said to hIm, "BIll dId you see that?" WhICh
he had. McDowell stated that Massa then turned back to look hIm whIle stIll dnvIllg
west and said, III hIS VIew "defiantly" "yes, BIll, exactly what dId you see?" McDowell
stated that he cautIOned Massa to watch where he was dnvIllg. McDowell testIfied that
Robertson was VISIbly shaken and dIstraught over what happened and at about 230 p.m
asked to leave for the rest of the day He granted the request and then wrote a Health &
Safety IncIdent Report.
The IllcIdent report states III pertIllent part, as follows
The operator of FL T #20 Joe Massa, faIled to reduce speed to fit
condItIOns at the east end of the "B" pIckIllg aisle The operator sounded
hIS horn repeatedly and made a left turn Illto the left sIde of the aisle and
forced the SupervIsor to Jump out of the aisle and the operator of a parked
machIlle to qUIckly mount hIS fork lIft truck to aVOId contact.
It was marked as a "near mIss"
The "statement from wItnesses" sectIOn states as follows
M. Robertson. WhIle stopped to accept a re-assIgnment, I was standIllg III
the "B" aisle when a FLT approached wIth a load forcIllg me to Jump onto
my machIlle to aVOId beIllg hIt.
R. Kestle WhIle talkIllg to M. Robertson on re-assIgnment to dock, I
heard a horn sound tWIce and suddenly notIced a FL T out of the corner of
my eye and had to hurndly (SIC) step on to a MT pallet due to exceSSIve
speed of fork machIlle
6
The IllcIdent report also noted that "safety talk #4/97 convened May 29/97 wIth
all staff on thIS Issue Employee named III thIS IllcIdent report was gIven a wntten Safety
Talk 4/97 relatIllg to thIS very Issue on the morillng of June 3/97" It further noted that
McDowell had "verbally counseled the employee III thIS matter III the past"
Safety Talk #4/97 dated May 29 1997 Illvolves the "RIght of Way" and states,
III pertIllent part, as follows
ForklIft truck operators wIll
I) Yield the nght of way to all pedestnan traffic engaged III Order PIckIllg
actIvItIes
11) As a rule turn IlltO the nght hand sectIOn of all aisles ExceptIOn beIllg
where thIS IS not possIble due to presence of order pIckers
111) Where necessary IlldIcate to other traffic the IlltentIOn to turn and
specIfy the lane to be taken
In summary the purpose of the "talk" was to reIllforce the expectatIOn of
all Warehouse staff that forklIft operators are dIrected to adopt the "rules
of the road" to most operatIllg sItuatIOns, enter aisles to the nght of centre
as a rule and where not pOSSIble, proceed WIth due cautIOn.
(emphasIs III ongIllal) A copy of thIS memo was sent toMassa.
McDowell testIfied that he expected Massa to reduce speed before hIS turn, see
the co-workers, and toot hIS horn to make them aware of hIS presence and gIve them a
chance to react. In McDowell's VIew the gnevor used hIS horn to clear the way and dId
not YIeld the nght of way
7
Jim "Tiny" Ross testIfied that proper procedure would have been for a forklIft
operator to slow sufficIently Illto the turn and If he saw the employees, stop untIl eye
contact was made and they moved out of the way He also stated that It was not unusual
for assemblers and vehIcles to be close to the mouth of the aisle but that, generally
employees conversIllg should stand on one sIde of the aisle Robertson testIfied that
assemblers stopped at the mouth of the aisle all the tIme placIllg or retnevIllg stock.
Massa acknowledged thIS although he was cntIcal of the practIce
The record shows that McDowell counseled Massa about aggressIve forklIft
dnvIllg on Apnl30 1997 The counselIng log states
8 30 a.m DIscussed wIth Joe that mgmt had receIved a number of
concerns regardIllg the aggressIve manner III WhIch he dnves the F.L T
Strongly suggested to Joe to follow the establIshed gUIdelInes set out III
the structured FL T TraIllIllg delIvered III March 97
Massa recalled that he had spoken wIth McDowell a "couple of tImes" about thIS,
but McDowell dId not tell hIm who complaIlled, Just that that there were complaIllts that
he was dnvIllg too aggressIvely He stated that he told McDowell It was not true He
further testIfied that he dIsagreed that he drove aggressIvely He was not aware that the
conversatIOns wIth McDowell were recorded III a counselIng log
Massa was also counseled about "aggressIve dnvIllg" on May 9 1997 The
counselIng log states
DIscussed wIth Joe the IllcIdent of May 8th where he needlessly sounded
hIS horn when passIllg J Henderson. AdvIsed Joe that III the presence of
pedestnans reduced speed & Illcreased awareness IS III order not soundIllg
8
of horn as means to clear a path. Joe advIsed me that he was III
conversatIOn wIth Ron K. who III fact suggested he use hIS horn. In
summary reIllforced pedestnan nght of way and extreme care be III place
versus a long & pronounced soundIllg of the horn.
Massa recalled a conversatIOn wIth McDowell about thIS IllcIdent but was not aware that
It had been recorded III the log.
Kestle testIfied that he was III B aisle reassIgillng Robertson to the ShIppIllg area
when he heard a horn two or three tImes, then looked and saw a forklIft comIllg around
the corner "fairly fast" To get out of the way he Jumped onto a pallet and saw
Robertson Jump onto hIS machIlle He felt that he was III Jeopardy of beIllg hIt. As the
forklIft passed, he saw McDowell and Smedley at the end of the B aisle and Robertson
yelled to McDowell "dId you see that?" McDowell yelled to Massa to slow down, that
he was gOIllg too fast, and Massa turned to look at McDowell and said somethIllg WhICh
he dId not hear McDowell told Massa to "watch where he was gOIllg." In Kestle's VIew
Massa was dnvIllg too fast for the sItuatIOn, comIllg around the corner He vIewed It as
"fairly senous gIven how much room" there was and that he had to Jump out of the way
Mike Robertson, a Uillon steward and member of the JOIllt Health & Safety
CommIttee testIfied that he was standIllg next to hIS machIlle talkIllg to Kestle who was
approxImately two to three feet away from hIm when he heard a horn blast and notIced a
forklIft comIllg up turillng IlltO the aisle at a speed faster than he thought It should. He
then heard several horn blasts to IlldIcate that the forklIft was comIllg through and he
Jumped onto hIS machIlle grabbed the handlebars and swung hImself IlltO the seat. He
9
stated that he pulled hIS left foot III Just as the forklIft went by hIm and saw Kestle Jump
onto a skid on the other sIde He notIced McDowell and Smedley III VIew and yelled
"BIll, dId you see that?" and then Massa, said "yeah BIll, dId you see that?" McDowell
told Joe to turn around and watch where he was gOIllg.
Robertson testIfied that as a result of the IllcIdent, hIS nerves were shot, hIS hands
were shakIllg and he could not stay at work. He went home and wrote a memo to
Manager McDowell about what occurred. He felt that If he had not Jumped, or If he had
slIpped, he could have been crushed between two forktrucks He dId not reqUIre or seek
medIcal attentIOn.
The memo to McDowell outlIned, from Robertson's perspectIve, what occurred
on June 3 rd and IS consIstent WIth hIS testImony at the heanng. In It, he also complaIlled
that a sImIlar near-mISS had occurred one week before that he had prevIOusly wntten to
management that he was "scared for my safety and my concern for others safety because
Management could not handle Joe Massa's aggressIve and vIOlent manner" It was
Robertson's VIew that the IllcIdent on June 3 1997 was IlltentIOnal and a result of
Massa's learillng about the earlIer IllcIdent report. He conveyed thIS VIew both verbally
and III wntIllg to Manager McDowell and also called the polIce to IllvestIgate The polIce
dId IllvestIgate questIOillng Robertson, Kestle and Massa, but no charges agaIllst Massa
were laid. The IllcIdents and concerns expressed by Robertson to management III the
memo had not been the subJect of dIscIplIne and the three-day suspenSIOn Imposed on
Massa was not based on these earlIer events
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On June 6 1997 Massa responded to the June 4 1997 NOID The same response
was later resubmItted III response to the June lih NOID In that response, Massa stated,
III part, as follows
SIllce my return to restncted dutIes on a forktruck both III Apnl and June, I
have reduced the speed at WhICh I dnve by at least one thIrd. Also at
our meetIllg of Apnl 29 regardIllg safety Issues you told me there was a
complaIllt made by a fellow employee regardIllg my dnvIllg, though you
wouldn't name the employee or specIfic IllcIdent related I assured you
then that I would drop my speed even more The workload and constant
calls for drops and complaIllts by assemblers for havIllg to Wait too long
for servIce III my aisles, should show that I have reduced my dnvIllg speed
consIderably I belIeve most of the employees would agree If surveyed,
especIally Tiny Ross, the forklIft dnvIllg IllStruCtor wIth whom I have had
regular dIscussIOns wIth concerillng forktruck dnvIllg overall and my
restncted dutIes whIle dnvIllg. When I drove by you at Dock 6 I was
already at a reduced speed. Before I reached the B aisle I tooted my horn
and slowed down even more and then proceeded down the left centre sIde
of the aisle tOOtIllg my horn tWIce as I proceeded through. Mike's
forktruck prohIbIted me from gOIllg down the nght sIde (parked III front of
B2) of the aisle Mike and Ron were on the left of the aisle wIth stIll
plenty of room for me to go through. I tooted my horn tWIce as I
proceeded through. I tooted my horn tWIce gOIllg through so to let the
pedestnans know that I was gettIllg closer and to be aware a practIce that
has come under SCrutIllY by you III the past, most recently on May 8
IllvolvIllg Jeff Henderson where you told me not to use my horn when
passIllg hIm whIle he was workIllg. As I told you then, and am tellIng you
now I would use my horn agaIll If I felt It was needed After I reached
about ten yards passed Mike and Ron I hear Mike yell "dId you see that?"
I stopped my machIlle and backed up to near where Ron was standIllg and
Mike beIllg on hIS forktruck. I asked, "dId you see what?" and Ron
replIed "you may have been gOIllg a lIttle fast." I replIed, "I'm gOIllg too
fast eh?" I shook my head, dIdn't say anythIllg else and proceeded at
creep speed when dnvIllg away when I belIeve you said somethIllg about
watchIllg where I was gOIllg. I belIeve It was III reference to turillng back
to hear you made a statement to me BeIllg a certIfied member of the
W.R. S A. I belIeve I was III no vIOlatIOn of any safety rules
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Massa's VIew of what occurred was entIrely dIfferent from that of McDowell,
Robertson and Kestle He testIfied that he pIcked up a pallet of coolers at Dock 5 near G
aisle to transport It to B 148 although that was "a guess" He proceeded north, past the
ShIppIllg office, where he saw McDowell and Smedley talkIllg to a forklIft operator at
Dock 6 He thought he was "probably at hIgh speed when he reached them" although III
hIS response to the NOID he stated that he was "already at a reduced speed."
As he headed to B aisle, he stated that he honked hIS horn a "couple of tImes"
"say 35 feet" from where Kestle and Robertson were The first tIme would have been by
the ShIppIllg office though he had no actual recollectIOn of It. He testIfied that he honked
hIS horn because he knew they were there from before, and because It was all "wIde-
open" the pallets were not stocked three hIgh. He then stated that he first beeped hIS horn
Just as he started hIS turn and, at the tIme could see Kestle and Robertson. In fact, he
thought he could "probably see them nght from Dock 5 " When asked on examIllatIOn-Ill-
chIef where he actually dId first see them, he replIed "the way I dnve probably between
docks 6 and 5" but then acknowledged that he could not recall when he first set eyes on
them although he had "no doubt" that he saw them at the tIme On cross-examIllatIOn, he
acknowledged that as he was dnvIllg to B aisle he "was not 100kIllg that far ahead."
When asked how many tImes he honked the horn, he replIed "probably tWIce I
would honk tIll I got theIr attentIOn, for sure" After that, he testIfied that "I would slow
down and Just before I enter the aisle, honk agaIll " When asked what Kestle and
Robertson dId, he first replIed that Kestle stepped onto an empty pallet and Roberston
12
backed up toward hIS machIlle and got totally out of the way Later on cross-
examIllatIOn, he stated that as he went through, he was 100kIllg at Kestle and he
"belIeve[ d] Mike backed up " That IS "what I thought" that he was "backIllg up to hIS
machIlle " He then added, "now that I thIllk about It, he mIght have had hIS hand on the
steenng wheel" SometIme later he testIfied that Robertson was leaillng agaIllst machIlle
at the tIme he passed or standIllg by hIS machIlle, "somethIllg lIke that." In hIS VIew
Robertson had "so much tIme to Just move away Ifhe got onto hIS machIlle, where IS the
danger?" When pressed, he stated that he "Just recall hIm gOIllg to the nght" that "he
wasn't on hIS machIlle" although III hIS June 6 response to the NOID he wrote that
Robertson was on hIS machIlle He was not sure WhICh was correct and when pushed,
stated that hIS memory was better at the heanng than a few days after the IllcIdent.
AgaIll, hIS "eye was on Kestle" who was facIllg northeast. He "belIeved" Kestle had one
leg on the pallet, he "mIght have had one foot on the pallet" he dId not remember
although later he stated that Kestle had "one foot hIgh on a pallet." FIllally he stated that
"Kestle stepped onto a skid" but he was "not sure what Mike dId."
In terms of speed, he stated that he was travellIng "a lIttle qUIcker than creep
speed" at the tIme, although he later said It was "regular speed." In hIS VIew the sItuatIOn
was nothIllg specIal "they Just moved." He went past them and as he got to the next pIllar
or maybe less, he heard Robertson say "wow dId you see that?" Massa testIfied that he
slowed, stopped hIS forklIft and saw Robertson laughIllg WIth a "gnn from ear to ear"
somethIllg WhICh was not put to Robertson or Kestle On cross-examIllatIOn, Massa
testIfied that he made eye contact WIth Robertson after he honked, although he could not
13
recall where Robertson was at the tIme He stated "I'm thIllkIllg - left of centre of the
aisle I would have made eye contact before I got IlltO the aisle" ThIS also was not put to
Robertson.
Massa stated after he heard Robertson ask, "dId you see that?" he then said to
Kestle "dId you see what?" and Kestle said, "you may have been gOIllg too fast" to WhICh
he Just shook hIS head and drove away Kestle dId not recall saYIllg anythIllg to Massa.
Later Massa was asked If he backed up hIS forklIft to speak to Kestle as he stated III hIS
June 6 response, and replIed "now that I keep thIllkIllg about It, I thIllk I dId back up "
Massa then testIfied that McDowell appeared and Robertson said to hIm "dId you
see that?" but he could not hear McDowell's response Massa said that he was movIllg
slowly 100kIllg backward, and McDowell told hIm to watch where he was gOIllg and he
drove away
Massa completely dIsagreed wIth the descnptIOn of what occurred by McDowell,
Robertson and Kestle In hIS VIew McDowell could not have seen the IllcIdent as he was
standIllg at Dock 6 when he passed hIm He also felt that he would have lost hIS load Ifhe
had done what they said. In hIS VIew If there was a problem, he could have stopped,
although he may have lost hIS load. In hIS VIew there was "plenty of room" for hIm to
pass His response to McDowell's assertIOn that he Improperly demanded the nght of
way was "It'S ndIculous he's mIstaken." He was not gOIllg too fast, "never" The
accusatIOn was a set-up to get nd of hIm In hIS VIew It was "too IllcredIble" to belIeve
14
that Robertson had to Jump onto hIS machIlle that would be lIke hIm "leapIllg onto tall
bUIldIllgs " It was sImply "not possIble" and "ndIculous" that he was dnvIllg too fast or
too aggressIvely
After the IllcIdent, Massa was off work on stress leave untIl mId-July 1997 When
he returned to work, he was gIven a letter of dIscIplIne dated July 14 1997 In that letter
McDowell refuted a number of the pOIlltS raised by Massa III hIS June 6 1997 reply to the
NOm That letter states, III part, as follows
In reVIew of the pOIlltS made III your response
The assertIOn that the forklIft IllStruCtor wIll support your posItIOn that you
are Illdeed dnvIllg more slowly cannot be substantIated.
The statement that you drove by me at a reduced speed IS absolutely not
the case Your selectIOn of speed at that tIme and well IlltO your left turn
IlltO "B" AIsle was exceSSIve and III fact reckless gIven the degree of
actIvIty at the east end of"B" aisle
The statement that you sounded your horn pnor to the turn and agaIll III
the mIdst of the turn IS not correct. Your first use of the horn was dunng
the completIOn of your turn, and III fact was not a cautIOnary type or
prudent use of the horn but a prolonged unsettlIng blast ThIS act forced
two (2) co-workers to qUIckly move to aVOId contact wIth the pallet load
you were transportIllg
Your descnptIOn of the area III questIOn IS generally correct. The forklIft
truck of M. Robertson was parked to the nght sIde of the aisle however
the locatIOn of R. Kestle and M. Robertson IS not correct Both partIes III
fact were not on the left sIde of the aisle, as you assert, they were III fact
dISCUSSIllg a re-assIgnment across the aisle from one another There III
fact was not "plenty" of room for you to proceed through, partIcularly at
the speed you selected
Your assertIOn that I wIsh to restnct your use of the horn IS mIsleadIllg.
DIscuSSIOns on thIS Issue have re-enforced but one pOIllt, that the horn IS to
be used to draw attentIOn to your presence when among pedestnans Not
to be used a method to demand nght of way or to gaIll, unreasonably
access to a common work area. In the example you cIte Mr Henderson
15
was III fact on the OpposIte sIde of the aisle wIth hIS pallet ncck
phYIdcaloly between hImself and you You were specIfically counseled
that wIth hIS back to you a reductIOn III speed through the area would have
been more appropnate than a prolonged blast of the horn, WhICh as you
wIll recall startled the worker III questIOn unnecessanly
In summary you have faIled to provIde any reasonable explanatIOn of your
actIOns or an accurate accountIllg of the IllcIdent III questIOn.
We can only conclude that your actIOns III thIS matter were both reckless
and III conceIved As your actIOns contravened both establIshed operatIllg
protocol and specIfic operator traIllIllg gUIdelInes dIscIplIne IS warranted.
The dIscIplIne to be Imposed III thIS case IS
a) A suspensIOn wIthout pay for a penod of three (3) workIllg days July
15 to 17 IllclusIve
b) A structured reVIew of all operatIllg gUIdelInes assocIated wIth fork lIft
operatIOns wIth IllStruCtor J A. Ross, and
c) A ten (10) day restnctIOn from operatIllg powered matenal handlIng
eqUIpment, effectIve Fnday July 18 1997
Please be advIsed that the LCBO treats the Issue of workplace safety as ItS first
pnonty Future IllfractIOns of such a flagrant nature wIth respect to health and
safety or any other actIOns requlflng dIscIplIne wIll attract a more severe response
from management up to and IllcludIllg dIsmIssal
McDowell, III thIS letter dId not refute Massa's placement of hIm at Dock 6 as he
passed hIm, but stated at the heanng that It was not true He testIfied that he was
sIgillficantly past Dock 6 at the tIme He also testIfied that he dIscussed Massa's speed
wIth IllStruCtor Tiny Ross, but Ross had no recollectIOn of that and Ross stated that, If
asked, he would have said that Massa had slowed down.
1. Relationships
McDowell became manager of the London warehouse III May 1995 and for
approxImately the first year he felt that Massa was "the most capable warehousemen III
16
the bUIldIng and probably the most knowledgeable" When he worked In ShIppIng and
ReCeIVIng, he dId a "heck of a Job" That perceptIOn, however changed In February
1996 after a settlement was reached concermng some thIrty or forty gnevances The
settlement reInstated the semonty Massa had lost as a result of a pnor termInatIOn. As a
result, hIS semonty Increased In relatIOn to several other employees, although not In
relatIOn to Robertson or Kestle Nor dId It Increase relatIve to the employees Involved In
the subsequent IncIdents, Jeff Henderson, Ron GeIsbrecht or Mark Walker In
McDowell's VIew Massa became more demandIng as to hIS semonty entItlements, to the
pOInt of bellIgerence, and became far less approachable He wanted everythIng
documented, wIth I's dotted and T's crossed. In McDowell's OpInIOn, Massa became
bellIgerent, very dIfficult to approach, and very dIfficult to dIalogue wIth, he would not
lIsten and was nearly ImpossIble to coach. None of thIS, however was to the pOInt
dIscIplIne He acknowledged that they were "not on the best of terms" He vIewed hIm
as a "problem employee" and that "towards the end" he dId not gIve Massa the benefit
of the doubt.
Massa clearly lost trust In McDowell as well After the June 3 1997 IncIdent, he
contacted a JustIce of the Peace In order to have McDowell charged. He told the JustIce
of the Peace what was gOIng on at work In the last few years, but was told that a specIfic
threat would have to be made to pursue It. In Massa's VIew McDowell could not take all
the complaInts hIS co-workers were makIng about hIm after he receIved the addItIOnal
semonty and It was sImply eaSIer to get nd of hIm
17
When asked on cross-eXamInatIOn If Massa was the target of harassment by other
employees, McDowell responded that he thought It was a "mutual thIng" that Massa
"gave as good as he got." McDowell was aware that Massa alleged that employees were
harassIng hIm, IncludIng Mike Robertson, Jeff Henderson, Ron GeIsbrecht, and Greg
Stanley
In September 1997 McDowell found a newspaper artIcle, entItled "Honesty
needed to face drug problem" whIch had been modIfied to refer to Massa posted on the
maIn floor bulletIn board. He took It down but dId not further InVestIgate It on the advIce
of Patnck HoulIhan, Human Resources Manager for the Southwest RegIOn, who advIsed
hIm that such an InVestIgatIOn would be fruItless ThIS was demed by HoulIhan, who
testIfied that he dId not suggest that the matter not be InvestIgated although agreed that he
may have told McDowell that an InVestIgatIOn was unlIkely to determIne who posted the
artIcle
Tiny Ross, who stated that he "got along" wIth Massa, testIfied that he was aware
of a lot of complaInts by employees that Massa drove too fast and used hIS horn too
much He was not aware of employees tryIng to get Massa to lose hIS temper although
he saw a comment wntten about Massa's wIfe, who IS abongInal, on hIS locker Ross
testIfied that Massa gneved thIS and management InvestIgated the matter Someone from
management came from Toronto to dISCUSS the harassment polIcy Exactly when thIS
occurred IS not clear In the record
18
Robertson charactenzed hIS relatIOnshIp wIth Massa dunng the summer and fall
of 1997 as "volatIle" although at one tIme they were fnends and he served as hIS umon
steward For some penod, however they were not on speakIng terms Massa testIfied
that In hIS VIew Robertson was gettIng a lot of flak from other employees for
representIng hIm In hIS gnevances and It got to hIm
AccordIng to Massa, he had no problems wIth Kestle In June 1997 although there
had been earlIer ones Kestle testIfied that In May 1996 he was plaYIng pool at a pool
hall In a tournament orgamzed by Mike Robertson for employees at work. The event was
posted on the bulletIn board at work and employees who wanted to play sIgned up Kestle
stated that he sIgned up for It and was plaYIng wIth Robertson when Massa came In,
walked nght up to hIm and called hIm, repeatedly a "fuckIng asshole" and a "pIece of
ShIt." He stated that Robertson Intervened comIng between hIm and Massa, and told
Massa that he was not caUSIng any trouble at thIS socIal functIOn and that If he wanted
trouble he would accommodate hIm outsIde Massa, he testIfied, contInued to call hIm a
"fuckIng pIece of ShIt" and Robertson told hIm to get out and Joe then said, "1'11 be back
later" and left. Kestle testIfied that he had gIven Massa a letter of counselIng two days
earlIer and that Massa was upset about It.
As a result of thIS IncIdent, Kestle contacted the polIce because It was not the first
tIme he had been threatened by Massa. There was an earlIer IncIdent In 1991 Kestle had
gIven hIm a warmng letter for smokIng at work and a day and a half later he stated that
Massa drove up to hIm, stoppIng abruptly leaned over hIS machIne and pOInted hIS finger
19
at hIm and said "you're gOIng to dIe" "one of these days you're gOIng to dIe" He stated
that Massa was dIscIplIned as a result.
In regard to the pool hall IncIdent, Massa testIfied that he was InvIted to play by
Robertson but declIned because Kestle was to be there He dId not want to go because
Kestle had wntten hIm up But the day before the tournament, Robertson called hIm and
told hIm that Kestle had cancelled out, so Massa told hIm he mIght drop by Robertson
demed thIS Massa stated that when he walked In, Kestle approached hIm and was
sarcastIc, they had words, and Robertson Intervened and threatened to take hIm outsIde If
he wanted a fight, then asked hIm to leave He stated that It was "not [Robertson's] fight
or argument." He had "words" to say to Kestle he said them and that was It. He then
went to have a beer where Tiny Ross advIsed hIm to "cool off" Ross was not asked about
thIS IncIdent
As to the IncIdent In 1991 Massa was asked on examInatIOn-In-chIef If he told
Kestle that he was "gOIng to dIe one of these days" He ImtIally responded that he "said
somethIng along those lInes" and that he was dIscIplIned for It, but later demed dOIng so
Peter Deely a warehouseman 4 testIfied on behalf of the Umon. In hIS VIew
Robertson dId not dIrectly try to "push Joe's buttons" but he "collaborated" wIth those
who dId even though he was a umon steward and member of the Health & Safety
CommIttee Deely felt that others, partIcularly Jeff Henderson and Ron GeIsbrecht, dId
not get along wIth Massa, that they had a personalIty clash, and they would go out of
20
theIr way to get Massa aggravated At tImes, In hIS VIew they succeeded. He felt that
Massa was a competent, fast forklIft dnver who would "push the truck as fast as It could
go whenever he could." He was aware of complaInts by Henderson, Robertson and
GeIsbrecht about the speed Massa drove hIS forklIft, but It was hIS belIef, even though the
complaInts were valId, that It was theIr way of gettIng back of Massa for the conflIcts
they had. In hIS VIew everyone drove fast. On cross-eXamInatIOn, Deely stated that
Massa had dIfficulty wIth other employees, not Just Henderson, GeIsbrecht and
Robertson. In hIS VIew Massa was short-fused and would get heated at work.
2. Positions of the Parties
The Employer asserts that It presented clear and cogent eVIdence that the gnevor
Improperly drove hIS forklIft on June 3 1997 as he entered the B aisle, endangenng two
co-workers It submIts that the testImony of McDowell, Robertson and Kestle should be
credIted over the demals of the gnevor All three, It argues, testIfied that Kestle and
Robertson qUIckly had to Jump out of the way as Massa entered the aisle gOIng fast,
resultIng In a near mISS It submIts that Massa used hIS horn to clear a path Instead of
gIVIng the pedestnans the nght of way as reqUIred.
The employer urges me to rely on the test for credIbIlIty set out In Faryna v
Chorny [1952] 2 DLR 344 (B C c.A.) It submIts that under that standard, the testImony
of McDowell, Kestle and Robertson was not only consIstent but far more plausIble than
the verSIOn of events descnbed by the gnevor It submIts that Massa's testImony that he
was travelIng at creep speed IS patently ImplausIble SInce both Kestle and Robertson were
21
reqUIred to Jump out of the way to aVOId beIng struck. It further argues that Massa's
verSIOn of events changed and that he belIeved hIS memory was better at the heanng than
shortly after the IncIdent, a sItuatIOn whIch IS most unlIkely as found In AFG Industries
Ltd and United Steeehwrkers of America, Local 295 (unreported, July 9 1998)
(Charney)
In the employer's VIew the three-day suspenSIOn and related dIscIplIne was fully
JustIfied. It argues that the gnevor's actIOns constItute senous mIsconduct gIven the
Importance of safety In the workplace It pOInts out that Massa was an expenenced
forklIft operator who knew what was expected but sImply chose not to follow the rules
In support of ItS contentIOns, the Employer relIes on Re Chlysler Canada Ltd and
Canadian AutoYf,orkers, Local 1285 (1997) 68 LAC (4th) 252 (Kennedy) and Re
Summit Logistics Inc andRetail Wholesale Union, Local 580 (1998) 72 L.AC (4th) 289
(Kelleher)
The Umon asserts that no dIscIplIne was warranted It submIts that the eVIdence
establIshed that the gnevor was not dnvIng hIS forklIft dangerously nor that he mIsused
the horn. It contends that the board cannot credIt Robertson, Kestle or McDowell In lIght
of theIr antIpathy towards the gnevor
The Umon submIts that Robertson cannot be credIted. It argues that there was a
group of employees, IncludIng Robertson, who acted lIke bullIes In a schoolyard wIth
Massa as theIr vIctIm ThIS was demonstrated, It submIts, by the postIng of the altered
22
newspaper artIcle and numerous other Instances of harassment. It submIts that the
employer allowed a pOIsoned work envIronment to eXIst to the detnment of the gnevor
It further submIts that McDowell IS not credIble because he made thIngs up In hIS
testImony such as talkIng to Ross about the gnevor's dnvIng and folloWIng orders from
HoulIhan not to InVestIgate the newspaper artIcle It argues that there were Internal
InCOnsIstencIes In McDowell's testImony as well as InCOnsIstencIes WIth other wItnesses
It pOInts out that In the letter of dIscIplIne McDowell dId not refute that he was at Dock 6
when Massa passed hIm and suggests that thIS was not an oversIght Instead, It submIts
that McDowell was, In fact, at Dock 6 and could not see what occurred In the B aisle It
notes that former manager Smedly could have been, but was not, called to testIfy about
McDowell's actual locatIOn. The Umon further argues that McDowell admItted that he
dId not gIve the benefit of the doubt to Massa, but accepted Robertson's and Kestle's
statements despIte knowIng about theIr ammosIty towards Massa.
Kestle, In the Umon's VIew merely stated that Massa was dnvIng too fast, but not
recklessly In ItS submIssIOn, the IncIdent was blown out of all reasonable proportIOn.
The Umon further submIts that Massa was the only person dIscIplIned for
Improper use of the horn, and pOInts out that no dIscIplIne was Imposed on eIther
Robertson or Kestle despIte the fact that they were standIng In the aisle Improperly It
submIts that the way the gnevor drove hIS forklIft was no dIfferent than others who were
not dIscIplIned
23
3 Decision
Based on my reVIew of all of the eVIdence, I conclude, on the balance of
probabIlItIes, that the gnevor Improperly operated hIS forklIft entenng the B aisle on June
3 1997 I conclude that he faIled to gIve the nght of way to the two workers present or
operate hIS forklIft wIth due cautIOn
Counsel for both partIes urged me to apply the test for credIbIlIty outlIned by the
BntIsh ColumbIa Court of Appeal decIsIOn In Faryna v Chorny supra, at pp 356-7
If a tnal Judge's findIng of credIbIlIty IS to depend solely on whIch
person he thInks made the better appearance of sIncenty In the wItness
box, we are left wIth a purely arbItrary findIng and JustIce would then
depend upon the best actors In the wItness box. On reflectIOn It becomes
almost aXIOmatIc that the appearance of tellIng the truth IS but one of the
elements that enter Into the credIbIlIty of the eVIdence of a wItness
OpportumtIes for knowledge powers of observatIOn, Judgment and
memory abIlIty to descnbe clearly what he has seen and heard, as well as
other factors, combIne to produce what IS called credIbIlIty A wItness
by hIS manner may create a very unfavourable ImpressIOn of hIS
truthfulness upon the tnal Judge and yet the surroundIng CIrcumstances In
the case may pOInt decIsIvely to the conclusIOn that IS actually tellIng the
truth I am not refernng to the comparatIvely Infrequent cases In whIch a
wItness IS caught In a clumsy lIe
The credIbIlIty of Interested wItnesses, partIcularly In cases of conflIct
of eVIdence cannot be gauged solely by the test of whether the personal
demeanor of the partIcular wItness carned convIctIOn of the truth. The test
must reasonably subJect hIS story to an eXamInatIOn of ItS consIstency WIth
the probabIlItIes that surround the currently eXIstIng condItIOns In short,
the real test of the truth of the story of a wItness In such a case must be ItS
harmony wIth the preponderance of the probabIlItIes whIch a practIcal and
Informed person would readIly recogmze as reasonable In that place and In
those condItIOns
Based on thIS standard, whIch I find appropnate to apply I credIt the testImony of
McDowell, Kestle and Robertson over the testImony of the gnevor The testImony of
McDowell, Kestle and Robertson firmly support the conclusIOn that Massa caused a
24
"near mISS" as he turned Into the B aisle All stated that Massa was gOIng too fast as he
turned and that he dId not sufficIently slow down as he entered the aisle All stated that
Robertson had to Jump onto hIS forklIft and Kestle onto a pallet Both employees feared
beIng hIt All three were eyewItnesses to the IncIdent and clearly and consIstently
descnbed what occurred. TheIr testImony contaIns far too many sImIlantIes to have been
fabncated unless there was a conspIracy among them Although there was eVIdence of III
feelIng toward Massa, there was no eVIdence of a conspIracy TheIr testImony In my
VIew was Internally consIstent and In accordance wIth the preponderance of
probabIlItIes
The dIfferences In the testImony of McDowell, Kestle and Robertson were
relatIvely mInor - how far Into the B aisle they were how many tImes Massa sounded the
horn In all key respects, however theIr testImony was consIstent. The consIstency of
theIr testImony moreover stands In sharp contrast wIth the ShIftIng recollectIOn of the
gnevor Massa's recollectIOn of what occurred repeatedly changed throughout hIS
testImony He confused what he normally would have done wIth what he "thought"
happened and what actually occurred. There were also dIfferences In hIS testImony at the
heanng and hIS response to the NOID His recollectIOn, In hIS VIew Improved wIth the
passage of tIme whIch IS most unlIkely AFG Industries Ltd and United SteelYf,orkers of
America, supra. The entIrety of hIS testImony whIch IS revIewed In detaIl above, leads
me to questIOn hIS perceptIOn of the event and hIS recollectIOn of what occurred
25
Massa's changes In recollectIOn, moreover concern cntIcal aspects of the event,
IncludIng the speed at whIch he was travellIng and made the turn, and what he saw Kestle
and Robertson do He testIfied that he was gOIng at "hIgh speed" as he passed McDowell
but In hIS response to the NOID stated that he was "already at reduced speed when he
passed" McDowell For hIS turn, he alternately stated that he was at "creep" and
"regular" speed What he saw Kestle, and partIcularly Robertson, do as he entered the B
aisle also repeatedly changed. These are key pOInts and Massa's changIng recollectIOn
leads me to favour the consIstent testImony of McDowell, Robertson and Kestle over that
of the gnevor The gnevor's account was, In my VIew both InCOnsIstent and Improbable
I further conclude that the dIscIplIne Imposed, a three-day suspenSIOn, a traInIng
reVIew and a reqUIrement to be off powered machInery for ten days, was appropnate even
though there had been no pnor dIscIplIne There was substantIal eVIdence of the
Importance of safety In the warehouse and the danger posed by forklIfts and transporters
Massa's actIOns on June 3 1997 JeopardIzed the safety of both Robertson and Kestle and
JustIfied a dIscIplInary response Re Chrysler Canada Ltd and CAW Local 1285 supra,
Re Summit Logistics Inc and Retail Wholesale Union, Local 580 supra
The eVIdence establIshed that the gnevor had two pnor counselIngs regardIng
aggressIve dnvIng and was clearly on notIce to reduce speed and proceed wIth due
cautIOn. On May 9 1997 less than month before the IncIdent In questIOn, he was
specIfically advIsed by McDowell that "In the presence of pedestnans reduced speed and
Increased awareness IS In order" and to use "extreme care" He was an expenenced
26
forklIft operator well aware of the employer's expectatIOns In hIS VIew he had reduced
hIS speed He may well have done so as confirmed by Tiny Ross, but on this occaSIOn,
on the balance of probabIlItIes, he dId not slow down and he faIled to operate hIS forklIft
In a safe manner As a result, I conclude that the employer had Just cause to Impose the
three-day suspenSIOn and related dIscIplIne
FInally there was InSUfficIent eVIdence that others were not dIscIplIned for a lIke
offense The gnevor was not dIscIplIned for hIS use of the horn, but for dnvIng the
forklIft In an unsafe manner
C. The Ten-Day Suspension
On October 27 1997 the gnevor was gIven a ten-day suspenSIOn for two
IncIdents The first one occurred on September 15 1997 and alleges that Massa
threatened and IntImIdated a co-worker Jeff Henderson, In the workplace The second
occurred on September 30 1997 and alleges that Massa operated hIS forklIft In a reckless
operatIOn of a forklIft, endangenng a co-worker Mark Walker
1 The September 15, 1997 incident.
The September 16 1997 NOID states, In pertInent part
On the mormng of September 15 1997 we receIved a complaInt from a
co-worker allegIng that you engaged hIm and used abusIve and threatemng
behavIOur
Jeff Henderson, a Warehouseman 3 at the London Warehouse testIfied that on
September 15 1997 he was assemblIng orders for vanous stores He stated that Just
27
before the first break In the mormng, he came across an area that needed more stock so he
called on the publIc address (P A) system for more stock, and contInued to assemble hIS
order The eVIdence establIshed that "callIng for drops" on the PAIS a regular practIce
and IS how assemblers convey product needs to the forklIft operators About five mInutes
later after he fimshed the rest of the order he called on the P A a second tIme, thIS tIme
USIng Massa's name to get hIS attentIOn. SpecIfically Henderson stated that he said "Joe
Massa, I need a drop In E aisle Edward 14 Joe Massa, drop In E aisle Please Edward
14 " He testIfied that thIS was not unusual, that It was common practIce to use a forklIft
operator's name on the P A and that he had done It WIth every other forklIft operator In
the warehouse The stock was stIll not forthcomIng and as It was very close to hIS break
he went to complaIn to SupervIsor Kestle and ActIng Foreperson Don Harns He let them
know that he was unhappy wIth the speed of the drops, that It was an ongoIng problem
and that It was theIr responsIbIlIty to rectIfy the sItuatIOn Kestle and Harns assured hIm
that they would speak to Massa and try to straighten the sItuatIOn out.
After the break, Henderson went back to the same locatIOn wIth another skId to
complete the order He overheard Kestle and Harns talkIng to Massa, who raised hIS
VOIce and claimed harassment.
A short tIme later Henderson testIfied that he was In G aisle, reVIeWIng hIS order
when he looked up and notIced Massa SIttIng on hIS machIne wIth hIS baseball cap pulled
low He stated that Massa said, "don't abuse my name on the P A anymore" He testIfied
that he was dumbfounded and had no Idea what Massa was refernng to He then said,
28
"excuse me?" Massa repeated hImself, loudly angnly leamng off the truck and shakIng
hIS finger at hIm Henderson stated that he then asked Massa "what are you talkIng about
Joe?" Massa replIed, "Isn't your hIS ass already In enough hot water" Henderson stated
that he agaIn asked, "what are you talkIng about" and Massa repeated what he had said
and added "not to push It WIth hIm" to whIch Henderson responded "do whatever you
have to do " Massa then drove away and Henderson notIced co-worker Ron GeIsbrecht
about 15 to 20 feet away He asked GeIsbrecht, "dId you see that?" and he said "yeah,
what was that all about It?" Henderson told hIm he dId not know but he was not gOIng to
put up wIth any more "nonsense" from Massa. He then went to the office to report the
IncIdent to Kestle and McDowell
That same day Henderson provIded a wntten statement, whIch comports wIth hIS
testImony It also added the folloWIng "ThIS IS only one In many run-InS that I and
others have had wIth Joe Massa over the past several years I am tIred of beIng
threatened & prevented from dOIng my Job by thIS IndIVIdual"
Henderson testIfied that he was not on speakIng terms wIth Massa at thIS tIme and
tned to stay as far from Massa as he could. An earlIer problem arose In November 1996
after Massa requested, through a supervIsor that he wnte larger on the skIds He dId that
and then asked Massa, who was wIth Robertson at the tIme, "IS that all nght?" and Massa
"flew off the handle" yellIng and sweanng at hIm Henderson got off hIS machIne and
asked Massa what the problem was and Massa swore at hIm agaIn, called hIm a "fuckIng
asshole" and that he would not put up wIth hIS bullshIt. Henderson replIed "why don't
29
you try and be a man?" On cross-eXamInatIOn, Henderson admItted that he also rubbed
eyes as If brushIng away tears as Massa left, dOIng that as a partIng shot to let hIm know
he was actIng lIke a baby Later Henderson was called to the office to determIne If he
threatened Massa, as Massa had alleged. Both he and Robertson demed that he dId and no
dIscIplIne resulted. It was at that pOInt, he stated, that he decIded to stay away from
Massa.
Another IncIdent occurred In the spnng or WInter of 1997 Henderson stated that
Massa pushed hIm as he was gOIng out the door AgaIn, no dIscIplIne resulted.
Later In the day on September 15 1997 Henderson was contacted by a polIce
officer at work. Massa had alleged that Henderson had threatened to "break hIS head or
face" Henderson was IntervIewed, along wIth GeIsbrecht. No charges were filed,
although the polIce officer Informed hIm that Massa planned to contact a JustIce of the
peace about purSUIng the matter Massa dId pursue the matter wIth a JustIce of the peace
In mId-October 1997 Henderson was subpoenaed In connectIOn wIth that and retaIned a
cnmInal lawyer The matter was dIsmIssed when the Crown refused to prosecute
Henderson acknowledged that he was angry and upset wIth Massa over thIS
In January 1998 Henderson resIgned from the LCBO In large part blamIng
"harassment and IntImIdatIOn" by Massa and management's delay In dealIng wIth hIm as
the reason
30
Henderson testIfied that he was not physIcally worned about what occurred wIth
Massa on September 15 1997 Instead, he stated that he was worned about a repeat of
the type of false allegatIOns that took place In November 1996 He had "no Idea what
Massa was capable of" He also found Massa's gestures and words IntImIdatIng and
threatemng.
Ron GeIsbrecht, an assembler at the London warehouse testIfied that on
September 15 1997 he heard Henderson call for a drop In the E aisle Then, a lIttle later
on, heard Henderson call agaIn, "Joe Massa, can I have a drop In the E aisle" He
estImated that there was approxImately 10 mInutes between the calls A lIttle later on, he
was In G aisle assemblIng when Massa came down and "confronted Jeff" He dId not
hear what was said at first, and then Massa said, loudly "now your ass IS gonna be In hot
water" to whIch Henderson replIed, "well, do what you got to do" Massa then drove
away In hIS VIew neIther Massa nor Henderson appeared threatened by the exchange
GeIsbrecht's verbal statement that mornIng, whIch was reduced to wntIng, states,
In pertInent part, as follows
I hear Jeff call for a drop In "E" aisle tYPIcally - drop In "E" aisle - E130
Moments later heard Jeff repeat call thIS tIme callIng "Joe Massa drop
please at E130 that's E 130 "
Some 20 - 30 mInutes later whIle In "G" aisle I wItnessed Joe dnvIng
down to where Jeff was workIng. I was some 6-8 feet away and heard Joe
In a loud VOIce tell Jeff "I am gOIng to have your ass In hot water" and
then heard Jeff say for hIm to "do what you have got to do "
NeIther employee appeared threatened by the exchange Joe was talkIng
In a very loud manner
31
GeIsbrecht acknowledged that he and Henderson were fnends
Don Hams, a Clerk 5 Stock CoordInator and, at tImes, ActIng General
Foreperson, testIfied that on September 15 1997 Henderson came Into the General
Foreman's office InSIStIng that he do somethIng about the lack of drops he was
expenencIng on the floor Henderson stated that he had called several tImes for a
partIcular dorp and that Massa was Ignonng hIm As a result, Hams, along wIth
SupervIsor Kestle, decIded to speak to Massa about thIS Hams accepted Henderson's
VIew that Massa was slow In respondIng to hIS calls sInce, In hIS VIew Henderson was
not prone to complaIn and he had no reason to doubt hIm
Dunng theIr meetIng wIth Massa, Hams stated that Kestle dId the talkIng. He
stated that Kestle asked Massa, In a professIOnal manner to make sure that he paid more
attentIOn to the P A and made the drops called for Massa responded that he had a heanng
Impairment Kestle told hIm to lIsten more closely and Massa claimed harassment In
Hams's VIew there was no harassment but only a polIte request. He recorded the
dIscussIOn because In hIS expenence wIth Massa, It was necessary to have wntten
documentatIOn because thIngs changed when he told them to other people He was not
aware before thIS that Massa had a heanng Impairment.
AccordIng to Kestle, he had receIved "a lot of heat" from Henderson and
GeIsbrecht about not gettIng tImely drops from Massa. When Henderson complaIned
agaIn on September 15 1997 Kestle spoke to McDowell about It and was dIrected, along
32
wIth Hams, to speak to Massa about the Importance of gettIng the drops done Kestle
testIfied that he told Massa, "In a mce way" that he had to pay closer attentIOn to the P A
and make the drops, that the drops were more Important than puttIng the stock away and
that "when these guys call kIndly gIve them theIr drops" He stated that Massa told hIm
that he had trouble heanng the P A because hIS truck was nOISY and he told Massa to have
It checked out. He confirmed that the forklIft was nOISY Massa told Kestle that he would
be filIng a gnevance because Kestle was harassIng hIm Kestle testIfied that he was not
aware before thIS, that Massa had a heanng problem
Massa's explanatIOn of what occurred dIffers substantIally He stated that
September 15 was a very busy day wIth a lot of stock comIng In He heard Henderson
request a drop and stopped to lIsten but could not hear It. He stated a "number of the
speakers don't work well" and If a forklIft operator was mOVIng on hIS machIne he could
not hear the call In hIS VIew thIS was "not Just me but everyone" Massa stated that a
couple of mInutes later he heard the call for a drop agaIn and that he went there wIthIn
the next couple of mInutes As he got there, Henderson was dnvIng away curSIng at
hIm He Ignored It and made the drop He was on hIS way to Kestle to complaIn about
Henderson's actIOns when Don Hams and Kestle came out to see hIm Massa asked
Kestle If he had heard what Henderson said on the P A to whIch Kestle responded "no"
but that Henderson had Just complaIned about hIm Massa stated that Kestle InsIsted that
he should lIsten more carefully to the P A. Massa then said that he was "gettIng Imtated "
He told them that he lIstens as carefully as he can. Kestle then asked hIm whether he had
followed procedure and complaIned to Henderson and Massa responded, "no I'll do that"
33
and drove over to speak to Henderson. He stated that thIS was the reqUIred procedure
regardIng harassment. One had to approach the person, let them know how you felt and
then report It to management If the matter was not corrected. ThIS dIrectIOn to confront
Henderson was not confirmed by eIther Kestle or Hams Kestle was not asked about It.
Hams, on cross-eXamInatIOn, was asked whether at the end of the dIscussIOn, Massa
IndIcated where he was gOIng or IndIcated that he was gOIng to speak to Henderson, and
hIS response was "not that I recall "
Massa testIfied that he pulled up to Henderson In the G aisle and told hIm, "Jeff, I
don't lIke you abusIng me harassIng me on the P A system" Massa stated that he felt that
Henderson was tryIng to show hIm up He stated that Henderson said, "what are you
gOIng to do about It?" Massa told hIm that he would gneve It, and Henderson replIed
"get the fuck out of here or I'll break or smash your face" Massa then drove away
saYIng, "Isn't your ass In enough hot water as It IS?" Massa demed pOIntIng hIS finger at
hIm, raisIng hIS VOIce or saYIng the words "not to push It WIth me" He said "I don't
thInk I made that statement." In hIS VIew Henderson was a "bully" who "thInks he IS the
only one to overachIeve there" Massa dId not lIke to be bullIed by hIm, especIally on the
PA system When asked how Henderson had abused hIm on the P A, Massa stated that
Henderson had complaIned about the number of tImes he had to call, that thIS was the
"thIrd tIme lIke that." He was upset about the fact that he called hIS name on the P A, and
the way he said It. In hIS VIew It was "rude" and Henderson had "no nght to talk to me
In that manner" Massa stated that hIS aisles were the best In the warehouse He dId not
lIke to be called for drops because It "looks lIke I'm not dOIng my Job" Later he called
34
the polIce about Henderson's threat. The matter was InvestIgated and no charges were
laid
On cross-eXamInatIOn, Massa acknowledged that he was upset whIch was why he
went over to Henderson At first, he demed that he was angry then admItted that he was
"pIssed off' although he dId not lose hIS temper He acknowledged that he was In a very
bad mood, and had been up all the pnor mght wIth a headache
The next day on September 16 1997 McDowell met wIth Massa, along wIth
Umon RepresentatIve Moody to dISCUSS what occurred. Massa explaIned hIS verSIOn of
the event, whIch Involved Henderson threatemng hIm Later that day the NOID was
Issued, requestIng a wntten reply wIthIn three days Umon RepresentatIve Don
McDermott later told McDowell that there would be no wntten reply to the NOID
No dIscIplIne was Issued to Massa on thIS matter untIl October 27 1997 even
though the gnevor was present at work from September 16 through September 30
2. Incident of September 30,1997
On October 20 1997 the gnevor was sent a NOID that states, In part, as follows
On the mormng of September 30 1997 at approxImately 1045 a.m It IS
alleged that you operated your forklIft truck In an unsafe manner
endangenng a fellow worker The allegatIOn asserts that you carelessly
operated your forklIft truck at the IntersectIOn of the "E" pIckIng AIsle and
the maIn north/south comdor faIlIng to YIeld the nght of way to an order
pIckIng staff member caUSIng hIm to swerve out of our path to aVOId
beIng hIt
35
Mark Walker a warehouseman 4 testIfied on examInatIOn-In-chIef, that he was
dnvIng a loaded transporter past the ShIppIng office headIng south, "CruISIng at a good
speed" when he came to the E aisle He heard a horn, saw a forklIft truck was eXItIng
and he veered to the left to aVOId a collIsIOn. He proceeded on hIS way He testIfied that
he had no recollectIOn of what Massa, who was dnvIng the forklIft, dId or whether he
stopped or not. Later he spoke wIth Jeff Henderson and one of them may have said that It
"mIght have been a close one" Later an IncIdent report was filed and he was called In to
state what had happened. He testIfied that he "wrote what happened at the tIme"
The IncIdent report states, In Walker's wntIng and sIgnature
DnvIng south at ShIppIng when heard horn eXItIng E Isle (SIC) Fork truck
was turn (SIC) hIS nght lookIng nght not left Swerved to my left to mISS
and kept gOIng I thInk he preoccuppIed (SIC) WIth Mr Henderson comIng
from ShIppIng.
Don Hams, then ActIng General Foreperson, confirmed that Walker wrote thIS statement
and that Walker stated that he had to swerve to aVOId collIdIng wIth Massa comIng out of
the aisle He gave the IncIdent report to McDowell In a typed verSIOn of the IncIdent
report the words "beIng hIt" were added after the word "mISS" but there IS no IndIcatIOn
who made that change
On cross-eXamInatIOn and then re-eXamInatIOn, It became apparent that Walker
changed hIS testImony about Massa's actIOns at the tIme On examInatIOn-In-chIef, he
stated that he could not recall If Massa stopped or not, yet he had earlIer told Mr
36
SteInberg, counsel for Massa, that Massa dId not stop abruptly He then vacIllated
between saYIng that he could not recall If Massa stopped or not, and saYIng that he dId
not stop Walker clearly told dIfferent thIngs to counsel for the LCBO Mr Sherrard, and
to Mr SteInberg about hIS recollectIOn of what Massa dId.
Walker also told Massa, afterward, that he could have stopped hIS machIne If he
wanted to but chose to dnve around and that he dId not consIder thIS a near mISS On re-
eXamInatIOn, he acknowledged that he was gOIng "full tIlt" at the tIme and that If he
abruptly stopped, he could have gone flYIng off the machIne and hIS load would have
toppled. Tiny Ross confirmed thIS
Both Robertson and Henderson asserted that they wItnessed thIS IncIdent.
Robertson testIfied that he was mId-way through the stagIng area comIng Into the
warehouse and saw Walker swerve to aVOId beIng hIt by Massa's forklIft. He stated that
Massa stopped abruptly caUSIng the forks on hIS truck to Jump up and down, or "chatter"
Robertson ImtIated a health and safety report on the IncIdent. Afterward, Walker told
hIm "thanks a lot" SInce Walker had not wanted the report to be filed.
Henderson testIfied that he was standIng In front of the ShIppIng office after
pIckIng up an order He heard a senes of horn blasts, looked up and saw Massa eXItIng
the E aisle and Walker along the comdor "on a collIsIOn course" He stated that Massa
was comIng out of the aisle "at a pretty good clIp" that Walker was able to SWIng around
and that Massa tned to stop hIS machIne comIng to a stop Just outsIde the mouth of E
37
aisle He stated that It was a "vIOlent stop" and that the forks on Massa's forklIft chattered
as a result. Both employees then went on theIr way Henderson then looked for
Robertson, as a member of the Health and Safety CommIttee to report what occurred and
found hIm In the stagIng area.
Henderson stated that he told Robertson that there was another near mISS to whIch
Robertson replIed that he had also seen It and would report It. A few days later he was
approached by Don Hams to wnte a statement, whIch he dId
Massa had no recollectIOn of thIS IncIdent. He was first advIsed of It on October
21 1997 when he receIved the NOm Although McDowell testIfied that the health and
safety IncIdent report was attached to the NOm as well as another unrelated one
InvolvIng Steve Senese, Massa testIfied that there were no attachments to the NOID that
he was gIven. He also stated that he asked Don Hams, who handed hIm the NOID what
the IncIdent was about, who was Involved and If any reports had been filed, to whIch
Hams stated that he dId not know Hams had no recollectIOn of thIS, but thought that It
was unlIkely SInce he had taken both Henderson's and Walker's statements whIch were
contaIned on the IncIdent report. Massa stated that he then InvestIgated to determIne who
was Involved, finally askIng McDowell who responded angnly "you know' It Involved
Walker" ThIS eVIdence was not put to McDowell Massa testIfied that he then called
Walker on the phone He stated that Walker was surpnsed that he was Just learmng about
the IncIdent. Although Massa stated that McDowell ImtIally refused to let hIm see the
38
report, he testIfied that McDowell gave It to Walker to gIve to hIm He then called
Walker to dISCUSS It and vIsIted hIm where they dIscussed what occurred for three hours
In Massa's VIew the IncIdent could not have occurred the way It was reported, If
It occurred at all In hIS VIew It made no sense that he would not look both ways when
eXItIng the aisle SInce that would be "sUIcIde" or that he was preoccupIed wIth
Henderson In hIS VIew Robertson had no clear VIew of the aisle He stated that he and
Walker concluded that Walker was the one who may not have been lookIng.
On October 23 1997 Massa submItted a wntten response to the October 20
NOID In It, he stated that he could not recall anythIng about September 30
The legItImacy of the IncIdent was subsequently raised by Massa wIth the
Mimstry of Labour Patnck HoulIhan, who met wIth Mimstry of Labour officIal Ellenor
Castle testIfied that she Informed hIm that she had met wIth Mark Walker who venfied
that what he wrote on the IncIdent report, In fact, occurred.
The gnevor's 1997 attendance record shows that after September 30 1997 he
was off work for part of the day on October 1 2 and 3 off most of the day on October 6
the date that the health and safety report was completed, and all of October 7 8 and 9
He was at work on October 10 October 13 was the ThanksgIvIng holIday Then, on
October 14 McDowell met wIth Massa, wIth a umon representatIve, to dISCUSS what had
occurred both on September 15 and September 30 After explaInIng the purpose of the
39
meetIng, Massa became III and left work. Massa was at work the next two days, October
15 and 16 and then was off agaIn on October 17 The NOID was Issued on October 20
1997 and delIvered to hIm the folloWIng day
The employer may send a NOID by regIstered mall McDowell testIfied,
however that he been gIven "InstructIOns" from Massa not to bother or harass hIm at
home
McDowell testIfied that there was no ImmedIate dIscIplIne of Massa over the
September 15 1997 IncIdent because he was In and out of work. He felt that It was
appropnate to let hIm re-establIsh hImself before bnngIng up some of these Issues and
wanted to talk to hIm about them He also stated that It was a busy tIme at the warehouse
Patnck HoulIhan, Human Resources Manager for southwestern Ontano testIfied
that he advIsed McDowell that because of the delay In dIscIplIne regardIng the September
15 IncIdent, It could no longer be the subJect of dIscIplIne Independently It could,
however In hIS VIew be combIned wIth the IncIdent on September 30 and the appropnate
measure of dIscIplIne could be applIed. On cross-eXamInatIOn, he acknowledged that
WaitIng from September 16 to October 27 to dIscIplIne was In error and precluded the
Independent use of It Further because of the delay HoulIhan could not support harsh
dIscIplIne Instead, It was determIned that the two IncIdents warranted a ten-day
suspenSIOn. He could not say the preCIse number of days attnbuted to each IncIdent.
Rather management was concerned wIth both. In hIS VIew the Walker IncIdent was a
40
repetItIOn of the type of unsafe dnvIng for whIch Massa had been gIven the three-day
suspenSIOn and It demonstrated that the message that management was tryIng to convey
to Massa had not come through.
3 Positions of the Parties
The Employer submIts that It establIshed, on the balance of probabIlItIes, that
Massa threatened and IntImIdated Henderson on September 15 1997 and that he
endangered Mark Walker on September 30 when he dId not properly eXIt the G aisle on
hIS forklIft. In ItS VIew hIS actIOns constItuted senous mIsconduct that warranted a 10-
day suspenSIOn.
The Employer contends that Massa's confrontatIOn was threatemng to Henderson
Although Henderson was not In fear physIcally he dId not know what Massa was capable
of and he feared more false allegatIOns The employer submIts that Massa's words were
said In a loud VOIce, that he leaned over hIS machIne and shook hIS finger at Henderson
The Employer further argues that Massa's verSIOn of events IS not credIble He
was clearly angry about what he perceIved as Henderson's "abuse on the PA" hIS
"rudeness" and the fact that he had complaIned to management Massa went after
Henderson, the Employer submIts, because he was angry On the balance of probabIlItIes,
It submIts that Massa told Henderson "don't push It WIth me" Those words, the employer
argues, combIned wIth the manner In whIch IS was Said, constItute a threat for whIch
sIgmficant dIscIplIne IS appropnate In support of ItS posItIOn, the Employer cItes Re
41
Toronto Western Hospital and Canadian Union of Public Employees Local 17 44 (1989)
6 LAC (4th) 150 (Mitchmck, Bnggs, Sloan Taylor)
The Employer acknowledges that there was a delay In dIscIplImng the gnevor
regardIng the events on September 15 It acknowledges that It would have been
preferable to have dIscIplIned hIm before September 30 But It contends that the delay
does not vOId the dIscIplIne It argues that It brought the matter to hIS attentIOn
ImmedIately and thereafter waited for a wntten response to the NOID as Massa regularly
provIded a detaIled response It contends that there was no preJudIce to Massa as a result
of the delay
In regard to the IncIdent on September 30 1997 the Employer submIts that thIS
was a very senous matter partIcularly In lIght of the gnevor's hIStOry of aggressIve
dnvIng and pnor dIscIplIne It contends that Massa dId not properly eXIt the aisle and
almost collIded wIth Walker It asserts that Walker changed hIS testImony In a bId to
assIst Massa and submIts that neIther the change In hIS testImony nor hIS assertIOn that he
could have stopped hIS vehIcle IS credIble It argues that If Walker had suddenly stopped,
he would have been thrown from transporter and lost hIS load. The Employer further
submIts thatMassa's vIOlent stop was wItnessed by both Robertson and Henderson.
The Employer acknowledges that there was some delay In bnngIng thIS to
Massa's attentIOn, but attnbutes the bulk of that delay to Massa's absence from the
workplace It notes that the IncIdent report was finalIzed on October 6 1997 but that
42
Massa away from work the next three days Although he was present at work on October
10 thIS was followed by the ThanksgIvIng HolIday after whIch management attempted
to meet wIth hIm Yet Just as the meetIng started and Massa was Informed of the tOpICS
to be dIscussed, Massa left. The employer argues that Massa suffered no preJudIce as a
result of the delay because Massa admItted he would recall It Ifhe had abruptly stopped.
In the employer's VIew a ten day suspenSIOn was warranted In response to the
gnevor's actIOns Threats to co-workers, It submIts, can not be tolerated by an employer
CItIng Re Toronto Western Hospital, supra, and Re Dartmouth Ambulance Ltd and
Canadian Union of Public Employees, Local 3264 (1994) 39 L AC (4th) 236 (Haynes)
Further gIven the Importance of safety at the workplace and the gnevor's pnor three-day
suspenSIOn for unsafe dnvIng, the IncIdent of September 30th warranted a more severe
dIscIplInary response
The Umon contends that the employer's delay vOIds the dIscIplIne Imposed In ItS
entIrety It asserts that the employer's actIOns amount to a comedy of errors It pOInts out
that the employer waited SIX weeks to dIscIplIne the gnevor about the "threat" on
September 15th whIch demonstrates Just how senously It took Massa's alleged "threat."
In regard to the September 30th IncIdent, the employer waited three weeks to Issue a
NOID by whIch tIme the gnevor could not recall the IncIdent. In ItS VIew the delay
severely preJudIced the gnevor The Umon submIts that the employer has a
responsIbIlIty to exerCIse ItS nght to dIsCIplIne In a fair and reasonable manner whIch
Includes actIng promptly It argues that the vanety of excuses offered by the employer -
43
that Massa was away that It wanted to reIntegrate hIm first, that It was a busy tIme at the
warehouse - all fall short and cannot excuse the type of delay whIch occurred here It
submIts that none of Its excuses precluded a NOID from beIng sent by regIstered mall to
the gnevor In support of ItS contentIOns, the Umon relIes onRe University ofOttGyt,a and
International Union of Operating Engineers, Local 796-B (1994) 42 LAC (4th) 300
(Bendel) Re Brun~ ick Bottling Ltd and Retail, Wholesale and Department Store
Employees Union, Local 1065 (1984) 16 L AC (3rd) 249 (IwamckI) Re COlporation of
the Borough of North York and Canadian Union of Public Employees, Local 373 (1979)
26 LAC (2d) 289 (SchIff) Re Air Canada and CAW Local 2213 (1993) 34 LAC
(4th) 13 (FrumkIn) Re Manitoba Pool Elevators Brandon Stockyards and United Food &
Commercial Workers Union, Local 832 (1993) 35 L AC (4th) 276 (Peltz
In the Umon's VIew McDowell's actIOns In regard to the ten-day suspenSIOn go
beyond not gIVIng Massa the benefit of the doubt but amount to Ignonng anythIng he had
to say WhIle the letter of dIscIplIne states that management receIved no response to
eIther NOID In fact, a wntten response was filed In relatIOn to the October 20 NOID and
a verbal one was provIded to the NOID of September 16th As a result, It contends that It
was more than dISIngenuous for McDowell to say In hIS letter of dIscIplIne that the
employer receIved no response and argues that thIS constItutes another reason the
dIscIplIne cannot be sustaIned
The Umon further contends that the JOImng the two IncIdents together for
dIscIplInary purposes demonstrates that the Employer was, In realIty attemptIng to use
44
anythIng and everythIng to get nd of the gnevor ThIS was also demonstrated, In ItS
VIew by ItS InclUSIOn of the IncIdent report by Steve Senese, an IncIdent report whIch dId
not form the basIs of any dIscIplIne In ItS VIew thIS was a clumsy attempt to pepper the
record wIth preJudICIal matenal and to portray the gnevor badly
On the ments, the Umon contends that there were two verSIOns of the dIscussIOn
between Henderson and Massa on September 15th and asserts that the board should credIt
Massa over Henderson. But no matter whIch verSIOn IS accepted, It argues that no
reasonable person could conclude that Henderson was threatened or IntImIdated. In ItS
submISSIOn, the IncIdent was blown out of proportIOn It cItes to The Concise Oxford
Dictionmy of Current English (SIxth EdItIOn) and notes that even under Henderson's
verSIOn of events, what Massa IS alleged to have said does not fit wIthIn the defimtIOn of
"IntImIdate" or "threaten."
The Umon further asserts that the employer cannot attempt to dIscredIt Walker
SInce he was not declared a "hostIle wItness" and that It must accept hIS testImony as It
stands In ItS VIew however Walker was not credIble and hIS testImony was replete wIth
InCOnsIstencIes Nor It submIts, should Henderson be credIted about what occurred on
September 30th. ThIS was two weeks after Massa had called the polIce In to InVestIgate
Henderson's threat and Henderson was upset about that. SImIlarly the other wItness,
Robertson, had called the polIce about Massa In June What IS left, It argues, IS very
sketchy eVIdence of what occurred and the eVIdence IS InSUfficIent to support the
allegatIOn
45
4 Decision
I conclude, on the balance of probabIlItIes, that the gnevor threatened Henderson
on September 15 1997 He also may have operated hIS forklIft In an unsafe manner on
September 30 1997 I conclude however that because of the Employer's delay In
ImpOSIng dISCIplIne regardIng the September 15th event and ItS delay In InformIng the
gnevor about the IncIdent on September 30th the dIscIplIne Imposed IS VOId
a. September 15, 1997 Incident
Once agaIn, there IS an Issue of credIbIlIty Involved. Henderson's verSIOn of what
was said on September 15th dIffers sIgmficantly from the gnevor's verSIOn. In my VIew
although Henderson's testImony must be closely scrutImzed because of hIS ammosIty
towards the gnevor I find hIS verSIOn of what occurred to be more plausIble than that of
the gnevor
The maIn reason I find It to be more plausIble IS because Massa was clearly very
angry wIth Henderson for what he perceIved as Henderson's "abuse" of hIm on the PA
and hIS complaInt to management that he was not tImely makIng the requested drops On
cross-eXamInatIOn, he admItted that he was "pIssed off' He felt that Henderson was
"rude" and that he had "no nght to talk to me In that manner" SInce hIS aisles were the
best In the warehouse Massa clearly had enormous pnde about the qualIty of hIS work
and he was angry that Henderson complaIned about the delay In drops, a complaInt
whIch, In hIS VIew was unreasonable He thought that Henderson was tryIng to show hIm
46
up makIng It look lIke he was not dOIng hIS Job The eVIdence supports the conclusIOn
that he sought out Henderson to confront hIm There was no corroboratIOn of hIS
assertIOn that he was dIrected to do so by Kestle or Hams As a result, I find Massa's
testImony that he dId not raise hIS VOIce and remaIned calm to be Inherently ImplausIble
I conclude that It IS more lIkely than not that he raised hIS vOIce, shook hIS finger at
Henderson and told hIm that hIS "ass was In enough hot water already" and "not to push
It" WIth hIm That IS a threat, albeIt an unspecIfied one
I conclude, however that the dIscIplIne Imposed cannot stand. No dIscIplIne was
Issued on thIS matter untIl October 27 1997 SIX weeks after the event AccordIng to
Brown and Beatty Canadian Labour Arbitration at 7 2100 It IS a "matter of general
arbItral pnncIple" that "the employer must sanctIOn an IndIVIdual for behavIOur It regards
as Inappropnate In a reasonably expedItIOus fashIOn " The case law cIted by the Umon
supports thIS conclusIOn. For example, In Re COlporation of the Borough of North York
and Canadian Union of Public Employees, Local 373 supra at p 290 a delay of seven
(7) weeks In ImpOSIng dIscIplIne was determIned to be "much too long." In Re
Brun~ ick Bottling Ltd and Retail, Wholesale and Department Store Union, Local 1065
supra, whIch relIed on the Borough of North York decIsIOn, an eleven-week delay was
deemed "too long also"
Exactly what constItutes "a reasonably expedItIOus fashIOn" wIll vary dependIng
on the facts In Re Manitoba Pool Elevators Brandon Stockyards and UF C W Local
832 supra, although the arbItrator concluded that an eIght and one-half month delay was
47
"Inherently unfair and preJudIcIal" he determIned that "part of the penod of delay mIght
be JustIfiable" (p 285) SpecIfically a delay of four months whIle WaitIng for the
outcome of a related gnevance "mIght be reasonable" In Re Beaver Foods Ltd and
Hotel, Restaurant and Culinmy Employees and Bartenders Union, Local 40 supra, a
case cIted by the Employer a four-month delay was found acceptable under the specIfic
facts of the case
In thIS case the IncIdent occurred on September 15 1997 and management met
wIth the gnevor the next day Later on September 16 1997 the NOID was Issued, wIth a
dIrectIOn to the gnevor to respond In wntIng wIthIn three days No wntten response was
provIded wIthIn the three days and at some pOInt, It IS not clear when, McDowell was
Informed that no wntten response would be forthcomIng. No further InVestIgatIOn after
September 16th occurred, yet no dIscIplIne was Imposed untIl October 27 1997 SIX
weeks later
There was no reasonable explanatIOn for thIS delay The fact that the warehouse
was busy may explaIn some of It, but cannot excuse a delay of SIX weeks Nor was
Massa's absence from work at fault. Massa was present at work almost every day In
September ThIS fact dIstIngUIshes the delay In ImpOSIng dIsCIplIne on Massa as a result
of the June 3 1997 IncIdent. In that case, dIscIplIne was Imposed on July 14 1997 but
Massa was not present at work the entIre tIme Here, Massa was present at work untIl
September 30th
48
SImIlarly there was no explanatIOn why McDowell thought It was necessary to
provIde Massa tIme to reIntegrate hImself In the workplace before thIS matter could be
dIscussed wIth hIm As the Employer recogmzed, It was an error to delay the ImposItIOn
of dIscIplIne In thIS matter I further conclude that as a result of thIS delay the dIscIplIne
cannot be maIntaIned.
FInally I also find, under the specIfic facts of thIS case, that the employer's
JOImng the two September IncIdents together for dIscIplInary purposes to have been
Improper The two IncIdents were not related and were not sufficIently close In tIme to
have been JOIned together
b. The September 30th Incident
It IS very dIfficult to determIne what occurred on September 30th Based on the
eVIdence presented, I could reach the conclusIOn, on the balance of probabIlItIes, that the
gnevor caused another "near mIss" on September 30 1997 Although Walker's overall
credIbIlIty was severely undermIned by hIS changIng testImony about what Massa dId
after he had to swerve - whether he abruptly stopped or contInued on - the key pOInt, on
whIch Walker was entIrely consIstent, IS that he had to swerve to aVOId a collIsIOn wIth
the gnevor ThIS was confirmed by hIm not only In hIS testImony at the heanng, but was
stated, In hIS own wntIng, In the Health & Safety report. ThIS was also corroborated by
Hams who wItnessed Walker's completIOn of the report and, at Massa's InSIstence, It
was subsequently venfied by the Mimstry of Labour
49
There was, however a three-week delay In InformIng the gnevor about thIS
IncIdent. Not all of the delay was the employer's fault The Health & Safety report was
not completed untIl October 6 1997 and thereafter Massa was off-work a great deal of
the tIme He was only at work one day October 10 before McDowell tned to meet wIth
hIm on October 14 Massa left that meetIng because of Illness almost ImmedIately after It
began and the employer was unable to dISCUSS what occurred wIth hIm On the other
hand, the employer could have raised the Issue WIth hIm ImmedIately even pnor to the
completIOn of the Health & Safety report SInce Massa was at work at least part of the
tIme It also could have sent a NOID to hIm by regIstered mall There was no valId
reason why a NOm was not sent to hIm An employee's InstructIOns not to be
"harassed" at home cannot ovemde the Employer's oblIgatIOn to act expedItIOusly
AlternatIvely the employer could have met wIth Massa on October 10 15 or 16
although that the latter dates may well have also been too late
In my VIew the maIn problem wIth the delay IS that Massa could not recall the
IncIdent. As a result, he was preJudIced. He was not able to offer any explanatIOn or
response because he could not recall the IncIdent.
The sItuatIOn IS somewhat sImIlar to what occurred In Re Air Canada and
Canadian Automobile Workers, Local 2213 (1993) 34 LAC (4th) 13 (FrumkIn) In that
case the gnevor was dIscharged for remarks allegedly made by her dunng the course of a
conversatIOn wIth a clIent whIch supposedly took place on May 29 1992 The gnevor
was not Informed of the allegatIOns untIl June 18 1992, three weeks later although the
50
company learned about the IncIdent almost ImmedIately The gnevor had no recollectIOn
of the conversatIOn. The board had some reservatIOns about the testImony of the clIent
SInce, at the tIme of the conversatIOn, the clIent was "upset" and "Incensed" at her travel
agent, and concluded that the eVIdence was not sufficIently relIable to support the
company's decIsIOn to dIscharge But the board was also concerned about the manner In
whIch the company conducted ItS InVestIgatIOn of the IncIdent. The board ruled at p 21
The gnevor was not appnsed of the IncIdent untIl almost three weeks after
It occurred, although It had been reported to a company representatIve In a
posItIOn to act, almost ImmedIately By that tIme the gnevor adopted the
posItIOn that she had no recollectIOn of the IncIdent, a posItIOn whIch
could be qUIte understandable gIven that, accordIng to the eVIdence she
receIves and responds to some 60 calls dally The effect of the delay and a
total absence of any effort to provoke recollectIOn of the IncIdent on the
part of the gnevor by refusIng to provIde detaIls was to deny to the gnevor
a fair opportumty to present her verSIOn of what mIght have taken place
Surely a more relIable and accurate appraisal of what actually was said on
May 29 1992 would have been possIble had the gnevor's verSIOn of
events been forthcomIng, an eventualIty whIch never matenalIzed for the
sImple reason that the gnevor was never confronted, then and there on
May 29 1992, or shortly thereafter as the tnbunal belIeves she should
have been.
GIven the board's concerns about the clIent's testImony the employer's faIlure to
confront the gnevor In a tImely manner effectIvely demed her the opportumty to explaIn
what she said and what she meant. The board stated at pp 22-23
ThIS IS not a case where the eVIdence agaInst the gnevor can be
charactenzed as strong It depends on the testImony of a sIngle wItness
relatIng a conversatIOn whIch took place wIthIn a context whIch may have
Influenced consIderably that wItness' perceptIOn of what was said and
Intended. ThIS IS why It would have been so Important for the company to
have confronted the gnevor at the tIme when the IncIdent came to ItS
knowledge By neglectIng to confront the gnevor the company effectIvely
demed her an opportumty to respond to a sItuatIOn where her reponse may
have been most revealIng. She may then have been In a posItIOn to
51
explaIn what she said and what she meant and It IS because the company's
approach precluded such a possIbIlIty the case agaInst the gnevor IS
severely weakened.
The case before me IS somewhat dIfferent because, In my VIew the eVIdence that
a near mISS occurred IS qUIte strong. The eVIdence clearly establIshed that Walker had to
swerve to aVOId collIdIng wIth the gnevor It IS also dIfferent In that what IS alleged to
have occurred IS not a conversatIOn but a near mISS, whIch, arguably should stand out In
one's recollectIOn. But the gnevor should have been appnsed of the sItuatIOn much
earlIer than he was and provIded the opportumty to gIve hIS verSIOn of the events In my
VIew the gnevor could have, and should have, been appnsed of what occurred much
earlIer than October 21 1997 Because of the employer's delay the gnevor was
effectIvely demed an opportumty to respond and explaIn what occurred.
AccordIngly the dIscIplIne Imposed for the IncIdent on September 30th cannot
stand
C. The Grievor's Discharge
On December 8 1997 a NOm was sent to the gnevor whIch states, In part, as
follows
The purpose of thIS letter IS to advIse you that we have been contacted by
the Mimstry of Labour who have IndIcated that dunng a meetIng last week
wIth them you uttered a death threat In respect of a fellow employee As a
result of thIS, you are relIeved from duty wIth pay effectIve ImmedIately
Manager McDowell testIfied that on December 1 1997 he receIved a telephone
call from PolIce Constable Maidens concermng Massa. Maidens Informed hIm that the
52
polIce had been contacted by officIals at the Mimstry of Labour because Massa, In
dIscussIOns wIth them, had uttered what amounted to a death threat. He told McDowell
that he was adVISIng the LCBO as a courtesy to let them know that they had an Irate
employee
Constable Maidens, now DetectIve Constable, testIfied that he was dIspatched at
11 01 by radIO on December 1 1997 to attend the Mimstry of Labour on a threats call
He amved there about ten mInutes later and spoke wIth SupervIsor Bonme Suhr who had
called the polIce, and InVestIgator Ellenor Castle Suhr advIsed Maidens that Massa had
come to the office to speak wIth them about a number of complaInts he had about hIS
place of work, that he had contacted them a number of tImes about hIS problems at work
and that they had advIsed hIm that the Mimstry of Labour could not assIst hIm She
relayed that Massa was not satIsfied wIth that response and wanted to meet wIth them
At the meetIng, Suhr told hIm that Massa went over hIS problems at work and they agaIn
advIsed hIm that there was nothIng that the Mimstry of Labour could do for hIm They
explaIned to hIm that hIS complaInts were an Internal matter between management, the
umon and hIm, and not a matter for the Mimstry Maidens testIfied that Suhr expressed
concern about a comment Massa made dunng course of the meetIng He had expressed
frustratIOn wIth a number of Issues and number of people and four names were
mentIOned Jeff Henderson, Mike Robertson, Greg Stanley and BIll McDowell Dunng
the course of hIS "ventIng" he said to Suhr "I want to kIll 'em" ThIS was not dIrected at
one person, and she was not sure to whom he was refemng. Suhr told Maidens that she
was taken aback and concerned about the comment. Constable Maidens testIfied that he
53
questIOned them about the gnevor's demeanor and was told that he was not overly angry
that he was frustrated that there was no resolutIOn to hIS problems She expressed
concern about hIS mental state and she wanted the polIce aware of the comment, to put It
on record and to notIfy LCBO regardIng what was said She dId not want the officer to
contact Massa for fear of more problems at her office He explaIned to her that It was hIS
duty to InVestIgate whether any cnmInal code charges should be laid. If charges were
laid, he would have to speak to Massa. He told her that he would advIse her of the
outcome
Maidens returned to hIS office and called the Crown Attorney He was advI sed
that the comment was not a vIOlatIOn of the cnmInal code SInce Massa said he "wanted
to" or would "lIke to" kIll someone and because It was not dIrected at a specIfic person.
He called McDowell and advIsed hIm about what occurred at the Mimstry of Labour and
that he had a dIsgruntled employee McDowell testIfied that upon learnIng thIS from
Maidens, he "speed dIaled" Human Resources Maidens also advIsed the Mimstry of
Labour about the outcome of hIS InVestIgatIOn. As requested by Suhr he dId not speak
wIth Massa as part of hIS InVestIgatIOn
On cross-eXamInatIOn, Maidens demed not contactIng Massa because the matter
was not senous In hIS VIew It was senous enough or he would not have called the
LCBO
54
It should be noted that pursuant to an earlIer rulIng, the testImony of Constable
Maidens about hIS conversatIOn wIth the Mimstry of Labour officIals as well as the
testImony ofPatnck HoulIhan about hIS conversatIOns wIth the same officIals came Into
the record for the truth of the matters asserted, as the tests of necessIty and relIabIlIty set
out III R. v Khan [1990] 2 S.R.C 531 (S C C ) and In R. v Smith [1992] 75 C C C 257
(S C C ) were met.
Upon beIng Informed about thIS IncIdent, management tned to meet wIth Suhr
and Castle, but they were not avaIlable untIl December 8 1997 On that date, Patnck
HoulIhan, along wIth Employer counsel, Michael Sherrard, met separately wIth Castle
and Suhr AccordIng to HoulIhan, Suhr and Castle told them Massa repeatedly phoned
them about thIngs at work whIch were outsIde of theIr mandate As a result, they decIded
to meet wIth hIm to try to explaIn theIr mandate and other possIble avenues avaIlable to
hIm Dunng the meetIng on December 1 Massa talked about IncIdents at work,
harassment, people pIckIng on hIm and they tned to explaIn other possIble optIOns such
as hIS doctor and the umon As they talked back and forth, Massa told them that one
manager was retmng and he was takIng another one to court. They stated that he was
calm, leaned forward and back, and said, "I want to kIll 'em" They stated that he said It
calmly matter of factly HoulIhan asked them why they dId not pursue that statement
wIth hIm and they responded that they felt that was not appropnate The meetIng wIth
Massa lasted 30 to 40 mInutes and they parted amIcably After they were concerned
about hIS comment, dIscussed It WIth the RegIOnal DIrector and decIded that the polIce
should be called
55
HoulIhan testIfied that after thIS meetIng wIth the Mimstry of Labour he was
concerned. Suhr and Castle confirmed that the threat had been made and although the
threat was not specIfic It concerned the Mimstry of Labour enough to call the polIce He
felt that management could not Ignore It, felt It could not take the chance wIth ItS staff
and should err on sIde of protectIng ItS employees GIven the pnor threat to Henderson
and the pnor dIscIplIne Imposed, the NOID of December 8 1997 was drafted. HoulIhan's
Intent was to have It delIvered to Massa's home but he was advIsed that Massa was at
work. HoulIhan stated that thIS caught hIm off-guard SInce Massa had been off work
SInce October 27 first wIth the ten-day suspenSIOn, then off SICk. As far as HoulIhan
knew Massa was stIll off He learned later that Massa had worked on December 5 and
December 8 McDowell, however had been aware that the gnevor had returned to work.
He testIfied that Massa was "very stnctly supervIsed" but he could not recall gIVIng that
specIfic dIrectIOn.
On December 10 1997 Massa provIded a wntten response to the NOID In It, he
acknowledged that "[d]unng the meetIng I was anxIOUS, frustrated and agItated and I
made a genenc statement, somethIng along the lInes of kIllIng someone It was said' off
the cuff' and out of frustratIOn It was not said In the same breath wIth the employees
that were mentIOned In dIscussIOns there It was a bad chOIce of words and meant as a
figure of speech " He further stated that he had been In contact wIth hIS doctor Dr
Prakash, who he had seen "Just pnor to the meetIng at the M.O.L and was aware of my
IntentIOns" The doctor had also seen hIm after the meetIng and agaIn when It became an
56
Issue He stated that "Dr Prakash fully supports me when I say that I have (SIC) nor had
any IntentIOn of harmIng any co-worker ConsIder thIS permIssIOn to contact Dr Prakash
and have hIm release to you any pertInent InfOrmatIOn regardIng myself and work related
seSSIOns, under the understandIng you keep thIS InformatIOn confidentIal" He
concluded
Please accept my apology for the alarm that the IncIdent has created My
IntentIOns for the meetIng were In good faith and I assure you that I dId
not nor have any IntentIOn of harmIng anyone I do regret that a genenc,
off the cuff remark made by me was taken and mIsunderstood by others as
havIng a meamng or Import, never Intended.
McDowell testIfied that, In hIS VIew Massa's response confirmed that he had said
he wanted to kIll someone He belIeved thatMassa regretted what he had said, but he dId
not belIeve that It was "off the cuff' In hIS VIew It was Said wIth some meamng, based
on hIS conduct and actIOns dunng the past year to year and a half
The Employer dId not contact Dr Prakash. HoulIhan dId not know what type of
doctor he was and dId not thInk he would have anythIng to offer although he demed
tellIng McDowell not to contact hIm, as McDowell had testIfied. On cross-eXamInatIOn,
he acknowledged that, In hIndsIght, It mIght have been prudent If the gnevor had been
examIned by an Independent psychIatnst to determIne If he posed a threat. He
acknowledged that the results mIght have Impacted the Employer's decIsIOn. Instead, he
determIned, based on the concern expressed by the Mimstry of Labour officIals and the
employer's expenence wIth Massa In the past, that he posed a real threat to workplace
57
Dr Prakash, the gnevor's doctor IS a forensIc psychIatnst whose specIalty IS the
assessment of whether IndIVIduals pose a danger to themselves or others and whether
they are mentally fit to stand tnal He IS on staff at the St Thomas PsychIatnc HospItal
He began seeIng Massa In May 1994 for depressIOn and anxIety due to personal problems
at home He saw hIm one tIme In 1995 then three tImes In 1996 for stress due to work-
related problems He saw hIm SIX tImes In 1997 - June 21 July 19 November 1
November 7 November 26 and December 10 all for depressIOn and anxIety ansIng out
the workplace He stated that, based on hIS seSSIOns wIth hIm In November 1997 he dId
not feel that Massa was a threat to hImself or others
Dunng the December 10 1997 seSSIOn, Massa dIscussed the IncIdent at the
Mimstry of Labour and told Dr Prakash that he could not recall what he said exactly and
that he was refemng only to hImself and dId not mean to harm anyone, that he felt
frustrated and agItated. In Dr Prakash's VIew the statement "I want to kIll 'em" was an
expreSSIOn of Massa's frustratIOn and he dId not mean what he said In hIS VIew such a
comment should be taken senously and explored and put In the context It was meant. In
hIS VIew It was sIgmficant that Massa had expressed no defimte plans to carry out hIS
threat
On cross-eXamInatIOn, Dr Prakash acknowledged that Massa had great dIfficulty
controllIng hIS anger trustIng people and dealIng wIth conflIct. He stated that In Massa's
mInd, he feels he dId everythIng nght and others are wrong. When he saw Massa III
January 1998 after hIS termInatIOn, Massa expressed a wIsh to harm McDowell and Mike
58
Robertson, but agaIn, he felt that thIS was not a dangerous threat, partIcularly sInce Massa
agreed to contInue treatment
Massa testIfied that he met wIth Mimstry of Labour supervIsor Bonme Suhr and
Ellenor Castle on Monday December 1 1997 at 1000 a.m He stated that he "kept
pushIng them to help me wIth my problems" at work and on the pnor Thursday they
suggested havIng a meetIng Massa tned to have a representatIve from the Employer and
the Umon attend the meetIng, but due to the short notIce no one was avaIlable He
dIscussed hIS second suspenSIOn wIth them and theIr advIce was for hIm to go to the
Umon He stated that he felt frustrated by that response, felt that they could help hIm and
stated somethIng along the lInes "I feel lIke kIllIng someone" He said It was not dIrected
at anyone and that he was "also refemng to myself' SInce he was "depressed over
everythIng." He stated that he said It "under my breath" and he receIved no reactIOn at all
from Suhr or Castle The meetIng lasted approxImately a half hour to 45 mInutes, and
ended wIth Castles repeatIng that there was nothIng further the Mimstry could do to assIst
hIm He tned to conVInce her otherwIse thInkIng that she mIsunderstood the sItuatIOn to
no avaIl He also called Castles agaIn a few hours later and agaIn was told that there was
nothIng the Mimstry could do for hIm and that he should go to the Umon.
The first IndIcatIOn that a problem eXIsted about the December 1 1997 meetIng
was when the gnevor was gIven the NOID on December 8 1997 He ImmedIately called
Bonme Suhr but was unable to reach her He then went to the Mimstry but she was not
there On Wednesday December 10 1997 he dId speak wIth her She Informed hIm that
59
somethIng he said at theIr meetIng concerned her specIfically what he said about wantIng
to kIll someone, and that she was plaYIng It safe and "gOIng by the book"
The gnevor also called Constable Maidens on December 9 1997 Massa asked
hIm why he was not contacted and, accordIng to the gnevor Maidens responded that he
felt that It was a work-related Issue a dIsgruntled worker bloWIng off steam, that he was
dealIng wIth a couple ofladIes and not to be concerned over It. Massa then asked hIm for
help at work and Maidens responded that hIS concern was only thIS matter
Maidens had no notes of thIS conversatIOn wIth Massa. He recalled that Massa
asked hIm to help hIm wIth hIS problems at work and that he responded that It was not
part of hIS mandate that the polIce do not get Involved In Internal labour dIsputes unless a
matter turns cnmInal On cross-eXamInatIOn, he demed that he told Massa that he
concluded that the statement was made In frustratIOn or off-the-cuff, saYIng that he
"would not have said that" and that It "doesn't sound lIke what I would have said" He
was not there on December 1 when the statement was made and all that he knew was that
It was not prosecutable under the cnmInal code
On cross-eXamInatIOn, Massa was more eqUIvocal about what he said dunng the
meetIng at the Mimstry of Labour Several tImes he demed saYIng "I want to kIll 'em"
or "kIll someone" although he later stated that he said somethIng lIke that but dId not say
"hIm" or "her" he dId not threaten any specIfic person. In hIS VIew It was lIke what one
would say at a baseball or hockey game It was meant It as a "figure of speech, meamng
60
I'm pIssed off" He further stated that he made two references to "takIng my own lIfe"
that "thIS IS how these guys make me feel and you guys can't do anythIng"
The gnevor InsIsted that none of what occurred was hIS fault at all but the fault of
others He dId not appear apologetIc In hIS VIew he dId nothIng wrong. His conduct was
"above board." The dIscIplIne and assertIOns agaInst hIm were "all nonsense" and any
assertIOn that he played a role In what occurred was "ndIculous " He was the "scapegoat
for everythIng." McDowell Robertson, Henderson, GeIsbrecht and Kestle all had It "out
for hIm" He held every productIOn record at work, no one else was even close He could
do In two days what It took others to do In five
On January 7 1998 Massa was dIscharged by letter whIch states, In part
ThIS letter IS In response to the NotIce ofIntended DIscIplIne Issued to you
by Mr W McDowell Manager of the London Warehouse on December
8 1997 relIevIng you from duty wIth pay effectIve December 8 1997
pendIng an InVestIgatIOn Into your conduct on or about December 1 1997
After reVIeWIng all the InformatIOn avaIlable to me, IncludIng your
response I VIew the IncIdent as descnbed In the December 8 1997 NotIce
of Intended DIscIplIne as a very senous matter On ItS own, It agaIn
demonstrates your InabIlIty to work wIth your fellow employees When
vIewed In conJunctIOn wIth your past dIscIplInary record, It leaves the
LCBO wIth lIttle chOIce
Based on the avaIlable InformatIOn, I regret to Inform you that, effectIvely
ImmedIately your servIces WIt the LCBO are termInated.
McDowell recommended dIscharge and that recommendatIOn was supported by
HoulIhan McDowell testIfied that It was hIS VIew that the gnevor could not be reached
and that he had lost trust In management and hIS coworkers
61
1 Positions of the Parties
The Employer asserts that It had Just cause to dIscharge the gnevor It contends
that It establIshed that the gnevor In the context of complaInIng to the Mimstry of
Labour about hIS co-workers and manager stated that he "wanted to kIll 'em" The
eVIdence further establIshed that thIS statement concerned the officIals at the Mimstry of
Labour enough to dISCUSS It ImmedIately wIth theIr RegIOnal Manager and to call the
polIce In ItS VIew thIS threat was clearly made In a work-related In context and was an
extremely senous matter In thIS day and age It submIts that such a threat IS clearly
cause for dIscIplIne CItIng Re Regional Municipality of OttGyt,a-Carleton and Canadian
Union of Public Employees Local 503 (1994) 44 LAC (4th) 95 (Folley) Re Toronto
Western Hospital and Canadian Union of Public Employees Local 1744 (1989) 6
LAC (4th) 150 (Mitchmck) Re Dartmouth Ambulance Ltd and Canadian Union of
Public Employees, Local 3264 (1994) 39 LAC (4th) 236 (Haynes) Re MadGyt,aska
Hanbtood Flooring Inc and I WA.- Canada, Local 1-1000 (1995) 51 LAC (4th) 18
(Y oung)
The Employer argues that It fully InvestIgated Constable Maidens' ImtIal report
and confirmed that the threat, In fact, was made It was also confirmed by the gnevor It
submIts that the fact that It dId not contact Dr Prakash IS not determInatIve, partIcularly
SInce Dr Prakash had not seen the gnevor ImmedIately before or after December 1 and
that It properly evaluated what the gnevor based on ItS own expenence WIth the gnevor
62
The Employer contends that the gnevor's actIOns on December 1 1997
combIned wIth hIS pnor dISCIplIne and mIsconduct, establIsh that dIscharge was
appropnate It submIts that progressIve dIscIplIne had not changed the gnevor's
behavIOur that the message was not gettIng through. It pOInts out that the gnevor had,
and stIll has, absolutely no recogmtIOn of own mIsconduct and submIts that the gnevor IS
unable to accept fault. In all of the cIrcumstances, It submIts that It had Just cause to
dIscharge the gnevor In support, It cItes Re Beaver Foods Ltd and Hotel, Restaurant
and Culinary Employees and Bartenders Union, Local 40 (1996) 57 LAC (4th) 47
(McPhIllIps)
In the alternatIve, the Employer asserts that If there was not sufficIent cause to
termInate the gnevor the Board should exerCIse ItS dIscretIOn not to reInstate the gnevor
It argues that all of the factors normally applIed In makIng that determInatIOn are present
here - no recogmtIOn of any fault, no wIllIngness to change behavIOur or even accept a
modIcum of responsIbIlIty a lack of candor and dIsparagIng VIews of co-workers and
management. In these cIrcumstances, It argues that there IS no vIable chance of re-
establIshIng the employment relatIOnshIp and reInstatment should not be ordered, CItIng
Re United Steelyt,orkers of America, Local 12998 and Liquid Carbonic Inc (1996) 20
O.R. (3d) 468 (Ont. DIV Ct) Re Doughty Concrete Products Ltd and Communications,
Energy and Paper)1, orkers Union, Local 294(b) (1996) 59 L AC (4th) 289 (Hunter) Re
Fox Ready- Mix Co and Teamsters Union, Local 880 (1991) 22 LAC (4th) 156
(Bartlet) Re Rockcliffe Nursing Home and Service Employees International Union, Local
204(1997) 62LAC (4thpI6(Abramsky)
63
The Umon asserts that the dIscharge cannot be sustaIned. It submIts that the
employer's faIlure to contact Dr Prakash, as the gnevor InvIted the employer to do
demonstrates that Its real motIve was to termInate the gnevor It argues that the employer
faIled to determIne If Massa was truly a threat, and that the eVIdence of Dr Prakash
clearly establIshed that he was not It pOInts out that HoulIhan acknowledged that would
have been prudent, In hIndsIght, to have contacted Dr Prakash SInce It mIght have
Impacted the employer's decIsIOn Indeed, the Umon submIts that the fact that the
gnevor was allowed to return to work demonstrates that he was not even perceIved by
management as a threat. Instead, hIS comment was a spur of the moment statement of
frustratIOn, a figure of speech and the Employer's legItImate Interests were never at nsk.
It contends that there was an Improper rush to Judgement, partIcularly for an employee
wIth such substantIal semonty AccordIngly It argues that the employer had no legItImate
grounds for dIscharge In support of ItS posItIOn, the Umon cItes to Centroy Assembly Ltd
and International Union, United Automobile Aerospace and Agricultural Implement
Workers of America, Local 2381 [1999] O.L AA No 400 (Craven)
As to the Employer's alternatIve argument, the Umon acknowledges that a board
of arbItratIOn has JunsdIctIOn not to order reInstatement, but submIts that IS an
"exceptIOnal" remedy to be used only where It IS ImpossIble to restore employer-
employee relatIOnshIp GIven the number of employees Involved In these matters who
are no longer there - McDowell, Henderson, and Kestle - and Massa's abIlIty to get
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along wIth others, partIcularly General Foreman Tiny Ross, the Umon submIts that there
IS a real possIbIlIty ofre-establIshIng the employment relatIOnshIp
In the event, however that such a remedy IS ordered, the Umon submIts that the
appropnate level of compensatIOn IS one month's wages per year of servIce, plus an
allowance for fnnge benefits, as set forth In Re Dehavilland Inc and Bombardier
Regional Aircraft Division and CAW Canada, Local 112 unreported decIsIOn dated Sept.
10 1999 (Rayner)
2. Decision
There IS no questIOn that on December 1 1997 at a meetIng wIth the Mimster of
Labour the gnevor In the context of complaInIng about hIS co-workers and manager
said, "I want to kIll 'em" There IS no questIOn that thIS comment concerned the Mimstry
of Labour officIals sufficIently that they ImmedIately approached theIr RegIOnal DIrector
and called the polIce TheIr call to the polIce came 15 to 20 mInutes after Massa left the
meetIng
There also can be no questIOn that such a comment IS a very senous matter and
must be taken senously by the Employer The Employer ImmedIately sought a meetIng
wIth the Mimstry of Labour officIals to InVestIgate what occurred, but could not meet
wIth them untIl December 8 1997 At that meetIng, the employer confirmed what had
occurred. It also sought the gnevor's explanatIOn and receIved a detaIled response that
65
acknowledged he said somethIng along the lInes of wantIng to kIll someone Based on
past expenence wIth the gnevor management took the statement senously
The employer dId not check wIth Dr Prakash. In my VIew however there was
no reqUIrement that It do so and ItS faIlure to do so does not lessen the senousness of
what was said As stated In Re OttGyt,a Carleton supra at p 103
A central consIderatIOn In cases such as thIS IS maIntaInIng the Integnty of
the workplace It must be clear to all employees that acts of vIOlence or
threats of vIOlence In the workplace are extremely senous matters that wIll
not be tolerated.
Massa's comment may well have been a statement of hIS frustratIOn whIch was
clearly great. He had been dealIng wIth the Mimstry of Labour SInce February He went
to the Umon and filed gnevances He went to a JustIce of the Peace hIS MPP and to a
counselor and a psychIatnst to deal wIth the problems that he was expenencIng at work,
all of whIch he felt were fundamentally unfair He felt that the Mimstry of Labour ought
to be able to assIst hIm and when they could not, he clearly felt great frustratIOn. But the
words he said, calmly In the context of complaInIng about Robertson, Henderson, Stanley
and McDowell, were "I want to kIll 'em" A reasonable person could VIew that
statement, In the context and manner In whIch It was Said, as a threat. ThIS IS partIcularly
so In lIght of the ammosIty the gnevor felt towards these IndIVIduals whIch was well
known to the Employer There was a hIStOry here that could not be Ignored by the
Employer The statement was clearly Improper and worthy of dIscIplIne
66
In Re Toronto Western Hospital and Canadian Union of Public Employees,
supra, an employee was dIscharged for threatemng to do physIcal harm to a supervIsor
The dIscharge was converted to a four month suspenSIOn, but the board stated at p 162
that ours IS "a socIety where resort to vIOlence, or even the threat of such, IS sImply not
acceptable and not wIthout ItS consequences" (emphaSIS In ongInal) The gnevor was to
understand that hIS comments "need not be tolerated by anyone, much less an employer
wIth responsIbIlIty for order and safety In the work place"
The Employer under the law and the collectIve agreement, has the responsIbIlIty
to provIde a safe work place ProvIdIng a safe work place Includes takIng threats such as
the one made by Massa senously and If establIshed as It was here ImpOSIng dIscIplIne
That the gnevor may not have Intended to carry out the threat IS a factor In
aSseSSIng the penalty Imposed. Dr Prakash testIfied that, In hIS expert OpInIOn, the
gnevor dId not Intend to carry out hIS threat, although the gnevor had some hIStOry of
vIOlence and a problem wIth anger Dr Prakash's testImony was not refuted. I accept hIS
testImony that the Massa dId not Intend to carry out hIS threat.
Also relevant IS the fact that the gnevor was allowed to return to work on Fnday
December 5 1997 and Monday December 8 1997 Upon beIng Informed about the
December 1 statement, the Employer could have but dId not, ImmedIately suspend the
gnevor pendIng InVestIgatIOn. The gnevor had been off work for a consIderable penod
before but McDowell was aware that he had returned to work and dId not prevent It. He
67
stated that Massa was under very "stnct supervIsIOn" at thIS tIme but could not recall
gIVIng that dIrectIOn. In my VIew allowIng the gnevor to return to work undermInes the
employer's assertIOn that It senously feared that the threat made on December 1 1997
would be camed out Centroy Assembly Ltd and International Union, United
Automobile Aerospace and Agricultural Implement Workers of America, Local 2381
(Fraser Grievance) supra
Also relevant IS the gnevor's length of servIce and pnor dIscIplInary record.
Massa, wIth twenty years semonty IS a very long servIce employee Counsel for the
employer at the outset of the heanng, acknowledged that the gnevor's threat on
December 1 1997 standIng alone, was not sufficIent grounds for dIscharge but Instead,
was a culmInatIng IncIdent. I agree that, standIng alone, the gnevor's statement on
December 1 1997 IS not grounds for dIscharge but It IS clearly cause for dIscIplIne
Consequently gIven what occurred on December 1 1997 In lIght of Massa's length of
servIce and pnor dIscIplInary record - a three day suspenSIOn - I conclude that the
employer had cause to dIscIplIne the gnevor for hIS threat, but dId not have Just cause to
dIscharge hIm Instead, It IS my VIew that a suspenSIOn of thIrty (30) days should be
Imposed
3 Should the Grievor be Reinstated?
The Employer has argued, In the event that I conclude that It dId not have Just
cause to dIscharge the gnevor that I nonetheless exerCIse my JunsdIctIOn under the
68
Labour Relations Act not to reInstate the gnevor In my VIew thIS IS the most dIfficult
decIsIOn that must be made In thIS case
The case law IS clear that thIS remedy IS an "exceptIOnal arbItral response In a
umomzed workplace" Us. WA. Local 112998 and Liquid Carbonic supra. As I stated
In Re Rockcliffe Nursing Home and Service Employee International Union, Local 204
supra at p 342-343
It IS an exceptIOnal remedy SInce It IS fundamentally contrary to the
concept of Just cause whIch eXIsts under a collectIve agreement. In
contrast to the common law under whIch an employee may be dIsmIssed
for any legal reason wIth proper notIce (or damages In lIeu thereof) an
employee protected by a Just cause provIsIOn In a collectIve agreement
normally has a nght to reInstatement If It IS found that hIS or her dIscharge
was wIthout Just cause
Only "[w]here the conclusIOn IS Inescapable that the vIabIlIty of the employment
relatIOnshIp has been destroyed, reInstatement IS not deemed to be In the best Interests of
the partIes or the gnevor and damages In lIeu of reInstatement may be awarded" (p
343)
In Re United Steelyt,orkers of America, Local 12998 and Liquid Carbonic supra,
the court upheld the remedIal authonty of an arbItrator to award damages In lIeu of
reInstatement. In the underlYIng award, the arbItrator concluded that reInstatement on
condItIOns was "not a vIable alternatIve In thIS case" The arbItrator concluded, as quoted
by the DIvIsIOnal Court at p 470
ReInstatement on condItIOns presupposes and, Indeed, reqUIres, some
reasonable expectatIOn that the reInstated employee IS wIllIng and capable
of adJustIng hIS behavIOur and attItude to permIt the contInUatIOn of the
69
employment relatIOnshIp free of behavIOural problems plaguIng the
employment sItuatIOn In the past. Without that, reInstatement wIth
condItIOns IS generally consIdered an exerCIse In futIlIty and an InVItatIOn
to further problems and an InevItable further dIscharge and arbItratIOn.
The gnevor's demeanor and attItude dunng hIS testImony at the heanng
effectIvely stnpped me of any addItIOnal basIs for reInstatIng hIm, even
wIth stnngent condItIOns wIth respect to hIS future conduct. The umon
representatIve presentIng thIS case made a tenacIOUS effort to salvage the
gnevor's employment, but, In the end, he was unable to save the gnevor
from hImself I have some dIfficulty In recallIng another gnevor who was
so sIngle-mIndedly unwIllIng to accept even a modIcum of responsIbIlIty
or fault In anyone of the several IncIdents revIewed over the course of thIS
heanng Although the gnevor's credIbIlIty was called Into questIOns wIth
respect to vanous of the IncIdents, he appears more as an IndIVIdual who IS
sImply Incapable of consIdenng even the possIbIlIty that he may be wrong
on occaSIOn. He steadfastly refused to accept that possIbIlIty at any pOInt
about anythIng no matter the cIrcumstances, and It would appear that thIS
IS a classIc case of someone beIng absolutely convInced that he IS the only
member of the band In step whIle all of the others are out of step
In Re Dehavilland Inc and Bombarier Regional Aircraft Division and CAW
Canada, Local1l2 unreported decIsIOn of September 10 1999 (Rayner) the arbItrator
lIsted several factors that are relevant In determInIng whether to award compensatIOn In
lIeu of reInstatement
1 The refusal of coworkers to work wIth the gnevor
2 Lack of trust between the gnevor and the employer
3 The InabIlIty or refusal of the gnevor to accept responsIbIlIty for any
wrongdoIng
4 The demeanor and attItude of the gnevor at the heanng
5 AmmosIty on the part of the gnevor towards management or coworkers
6 The nsk of a "pOIsoned" atmosphere In the workplace
70
In that case the arbItrator determIned that many of the factors lIsted were present.
The gnevor belIeved that management was out to get hIm because he was a "whIstle
blower" He belIeved that an earlIer stnng of progressIve dISCIplIne was "bogus" and he
accepted no responsIbIlIty for any Improper behavIOur He also dIstrusted the umon. The
gnevor tended "to see Issues In terms of black of whIte and that If you are not wIth hIm
you are agaInst hIm" (DeCIsIOn, p 5) In the arbItrator's VIew "the reasons to award
compensatIOn In lIeu of reInstatement are compellIng." He concluded at p 5
It IS clear to me that the gnevor belIeves that he has done nothIng wrong
and that he wIll contInue to bnng a confrontatIOnal and uncooperatIve
approach to hIS dealIngs wIth management. He wIll contInue to dIStruSt
both the Company and the Umon and thIS dIStruSt goes far beyond what
one mIght reasonably expect from a dIsgruntled employee In a large work
force I also belIeve that the Company has no trust In the gnevor and I see
no chance to ever repair the mImmum level of trust needed to sustaIn the
employment relatIOnshIp The lack of trust between the two partIes
appears absolute
Although I am not sure what a "pOIsoned" work atmosphere IS, If there IS
such a thIng, the relatIOnshIp between the gnevor and the Company can be
said to fall wIthIn that descnptIOn.
In thIS case I conclude that the gnevor should not be reInstated. It was very clear
dunng the heanng, and upon a thorough reVIew of the eVIdence, that the gnevor accepts
no responsIbIlIty for hIS actIOns He was In what can only be charactenzed as a state of
demal, blamIng everyone else for hIS dIscIplIne and dIscharge In hIS VIew all of It was
"nonsense" and "ndIculous" He was the "scapegoat for everythIng." He was "not at
fault for any of thIS " His conduct was "above board" In hIS VIew the others "were out to
get" hIm and he had the "nght to be angry" In lIght of all of the "crap at work" he was
forced to accept.
71
There can be no doubt, based on the eVIdence, that there was ammosIty toward
Massa from many of the wItnesses - Robertson, Henderson, Kestle and, to a certaIn
extent, McDowell But what Massa overlooks entIrely IS the role he played In creatIng
that ammosIty - dnvIng aggressIvely and endangenng hIS co-workers, Ignonng the
Health & Safety CommIttee's rules about the use of the horn, threatemng co-workers and
other harassment. ThIS was not a sItuatIOn where Massa was sImply a "vIctIm" even
though there were tImes when he was the recIpIent of Improper actIOns (e g the
newspaper artIcle that was posted) There were also tImes when Massa was the
protagomst and the cause of hIS co-workers legItImate anger
In my VIew many of the same factors cIted In Liquid Carbonic supra, and
Dehavilland Inc supra, are present In thIS case The gnevor completely refuses to accept
even the possIbIlIty that he dId anythIng wrong. He belIeves that all of the dIscIplIne
Imposed on hIm was based on management's attempt, wIth some cooperatIOn by the local
umon, to get nd of hIm He demonstrated no remorse He clearly harbors great
ammosIty and was dIsparagIng toward management and a number of co-workers,
partIcularly McDowell, Robertson, Henderson, GeIsbrecht and Greg Stanley He also
mentIOned other employees who refused to work wIth hIm There IS a decIded lack of
trust between the gnevor and the employer The gnevor also demonstrated a lack of
candor about what occurred as the InCOnsIstencIes In hIS testImony reveal I have no
doubt, however that the gnevor truly belIeves he testIfied truthfully that he played no
role In what occurred, that he dId nothIng wrong and that none of what occurred IS hIS
72
fault. As In Liquid Carbonic the gnevor appears to be "absolutely convInced that he IS
the only member of the band In step whIle all of the others are out of step"
In Re Doughty Concrete Products Ltd and c.E.P supra at 295 the board
consIdered the gnevor's lack of remorse, hIS lack of candor at arbItratIOn and hIS
frequent, dIsparagIng reference to both management and fellow employees to conclude
that reInstatement was Inappropnate The board determIned that reInstatement "would be
both unproductIve and hazardous to harmomous labour relatIOns" and that "It would be
dIsruptIve of productIVIty and morale In the workplace" See also Re Fox Ready-Mix
Co and Teamsters Union, Local 880 (1991) 22 LAC (4th) 156 (Brent) The same
conclusIOn may be reached In thIS case
For these reasons, the fact that a number of the IndIVIduals Involved In thIS
matter no longer work for the LCBO does not change the result McDowell and Kestle
have retIred and Henderson has resIgned. But wIthout any recogmtIOn of hIS own role In
the events that led to dIscIplIne there can be no reasonable expectatIOn that the gnevor IS
"wIllIng or capable of adJustIng hIS behavIOur and attItude to permIt the contInUatIOn of
the employment relatIOnshIp free of the behavIOural problems plaguIng the employment
relatIOnshIp In the past." Liquid Carbonic supra at 469
The gnevor further demonstrated an attItude that the rules do not apply to hIm
ThIS was eVIdenced by hIS refusal to abIde by the revIsed rules regardIng the use of the
horn. There may well have been, as the Umon asserts, some conflIctIng messages about
73
that, but It IS clear that the polIcy In the warehouse about the use of horns had changed
and had become much more lImIted. The gnevor was not confused about the change He
sImply dId not agree wIth It and refused to comply
AccordIngly for all of the reasons set forth above I conclude that thIS IS one of
the "exceptIOnal" cases where the gnevor should not be reInstated.
I further conclude, however that the gnevor IS entItled to compensatIOn for the
loss of hIS nghts, pnvIleges, and benefits under the collectIve agreement. In Dehavilland
Inc and Bombarier Regional Aircraft Division, supra, arbItrator Raynor determIned that
"the Issue of compensatIOn turns of the value that one places on the semonty nghts,
wages and benefits that an employee has under a collectIve bargaInIng regIme as
compared to hIS or her sItuatIOn as an applIcant for a new posItIOn WIth a new employer"
In hIS VIew It was not tIed at all to the gnevor's past mIsconduct. The two Issues, In hIS
VIew were analytIcally separate To consIder It "eIther explIcItly or ImplIcItly when
awardIng compensatIOn IS to mIsconstrue the nature of the compensatIOn awarded In lIeu
of reInstatement." He also determIned that compensatIOn was "not merely to replIcate any
notIce penod, or payment of momes In lIeu thereof under Employment Standards
legIslatIOn. " Instead, he determIned that a better companson "would be to early
retIrement severance packages that are gIven to umomzed employees" and concluded that
"an amount equal to one month's wages for every year of semonty together wIth a 15%
payment for loss offnnge benefits, would be an appropnate payment to reflect the loss of
74
coverage under the collectIve agreement." In addItIOn, the gnevor was to receIve the
amount that he would have receIved under theEmployment Standards Act
I agree wIth thIS analYSIS CompensatIOn when reInstatement IS demed must be
based on the loss of the nghts, pnvIleges and protectIOns of the collectIve agreement. It
must, as arbItrator Raynor concluded at p 7 be based on the loss of the "economIC value
of beIng a member of a bargaInIng umt and the recIpIent of all of the benefits and
protectIOn that a collectIve agreement bnngs" Exactly what that amounts to wIll vary
but I agree that an appropnate companson IS to the early retIrement severance packages
gIven to umomzed employees Such employees are also faced wIth the loss of the nghts,
pnvIleges and protectIOns of the collectIve agreement and beIng a member of a
bargaInIng umt.
In thIS case, In lIght of the gnevor's substantIal semonty there can be no doubt
that the loss to the gnevor IS great. As In Dehavilland Inc and Bombardier Regional
Aircraft Division, supra, I conclude that he IS entItled to one month's wages for every
year of semonty together wIth a 15% payment for loss of fnnge benefits He IS also
entItled to any momes due hIm under the Employment Standards Act I have decIded to
SubstItute a thIrty (30) calendar day suspenSIOn for hIS threat on December 1 1997 so
thIS should be deducted from that sum In addItIOn, SInce the 10-day suspensIOn IS VOId,
he should be paid those momes as well
75
D Conclusion
1 The three-day suspenSIOn was for Just cause
2 The ten-day suspenSIOn IS VOId for untImelIness, both as to the IncIdent on September
15 1997 and September 30 1997 The gnevor IS to be paid for the loss of hIS wages
3 The employer had cause to dIscIplIne the gnevor for hIS actIOns on December 1
1997 but dId not have Just cause to dIscharge hIm A one-month, (30) day
suspenSIOn wIthout pay IS substItuted Instead.
4 Nevertheless, I conclude that thIS IS an "exceptIOnal" case In whIch reInstatement
should be demed. The gnevor IS to be paid one month's wages for every year of
semonty together wIth a 15% payment for loss of fnnge benefits He must also be
paid any compensatIOn due under the Employment Standards Act
5 I shall remaIn seIzed If the partIes have any dIfficulty ImplementIng thIS Award.
Dated at Toronto thIS 15th day of February 2000
{-/, i.,Jonr;t6lc
RandI H. Abramsky Vice-Chair
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