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HomeMy WebLinkAbout1997-2164.Smith.99-07-27 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARlO 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 # 2164/97 OPSEU # 98B 104 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (AdaIr Srmth) Grievor - and - The Crown III RIght ofOntano (Mimstry of Transportauon) Employer BEFORE Randi Hammer Abramsky Vice-ChaIr FOR THE Heather BOWIe GRIEVOR Counsel Gowhng, Strathy & Henderson Bamsters & SOhCItorS FOR THE Kelly Burke EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARINGS July 13 1998 October 21 1998 Apnl 23 1999 AWARD On April 14 1997 the gnevor AdaIr SmIth, was gIven a three-day dIscIphnary suspenSIOn for verbally threatenIng a co-worker Byron Carey With profamty and attempTIng to assault hIm on December 27 1996 On May 2, 1997 Mr SmIth gneved thIS suspenSIOn, asserTIng that It was Imposed WIthout Just cause FACTS Both Mr SmIth and Mr Carey are employees of the Mimstry of TransportaTIon. At the relevant TIme, Mr SmIth was a Patrol Foreman at Peter's Comers Yard, responsible for supervISIng both In-house staff and contractors and overseeIng general operaTIons. Mr Carey was a Heavy EqUIpment Operator 3 at Duff's Comers Yard, some eIght miles away There IS no quesTIon that at approXimately 7 15 a.m. on December 27 1996 there was a confrontaTIon between Mr SmIth and Mr Carey Exactly what happened dunng that confrontaTIon, however IS In sharp dispute between the partIes. Mr SmIth's versIOn of events and Mr Carey's verSIOn dIffer markedly The events wmch led to the IncIdent In dIspute actually began on December 23 1996 That IS when, according to Mr SmIth, Mr Carey placed a naIl under a TIre of ms car I make no findings of fact about thIS and ItS only relevance IS that Mr Smith believed Mr Carey placed a nail under hIS tIre AccordIng to Mr SmIth, he began lOSIng aIr In hIS TIre on December 23 1996 and learned about the nail on December 26 1996 In ms VIew thIS was the tmrd such IncIdent wmch had occurred. 2 Early the next mommg, he confronted Mr Carey Mr SmIth tesTIfied that he knew Mr Carey would pass by Peter's Comers on hIS way to work and so he waIted for illm at the entrance to the facIhty m hIS Mimstry truck, to pass by At approxImately 7 15 a.m., Mr Carey Indeed passed by the entrance to Peter's Comers. At that TIme, Mr SmIth was workmg ills regular sillft, although he tesTIfied that he was on ills lunch break. Mr Carey testIfied that he was dnvIng ills personal veillc1e, a 1987 GMC half-ton pIck-up truck, to work that mommg when he passed Peter's Corners and nOTIced a Mimstry patrol truck parked at the end of the dnveway He slowed down to stop at a stop sIgn and saw Mr SmIth walkmg towards hIm, WIth one hand behmd hIS back. Mr Carey rolled down ills Window about halfway to see what SmIth wanted and saId hello, at willch TIme Mr Srmth began illtTIng ills veillc1e With a wooden broom handle and shouTIng "fuckmg Idiot" "fuckmg goof' "I'm gonna fuckmg kill you" "why did you put a fuckmg nail under my TIre" and that "she had told me" pomTIng to the trailer at Peter's Comers. He tesTIfied that Mr SmIth illt ills veillc1e With the broom handle four TImes, illtTIng the box of the truck, cillppmg the mIrror and SWingIng sIdeways through the Window causmg illm to duck to the nght out of the way At that pOInt Mr Carey drove away He testIfied that he was astounded and dumbfounded by Mr SmIth's actIOns. He drove to Duff's Comers and ImmedIately reported what occurred to Area MaIntenance Manager John Taylor Mr Carey's wntten statement, willch he prepared on December 27 1996 at Mr Taylor's request, IS consIstent With hIS tesTImony at the heanng. The whole IncIdent, he stated, lasted about 30 seconds Mr Taylor testIfied that shortly after 7 00 a.m. on December 27 1996 he saw a Mimstry patrol truck parked, Idhng, at the entrance of Peter's Comers. Although It was unusual, he dId not stop to mvesTIgate but proceeded on to Duff s Comers. He confirmed that at approxImately 7 30 a.m., Mr Carey approached hIm m 3 the lunch room to report an mCIdent wruch took place on hIS way to work. According to Mr Taylor Carey was vIsibly shaken and upset. Mr Carey reported that he observed a patrol truck parked at the gate as he passed Peter's Corners, he slowed to stop at a stop SIgn and saw SmIth eXIt the truck, so he rolled down rus wmdow and SmIth began to swear at rum, accusmg rum of putTIng a nail under rus TIre and causmg a flat, that Tracy had observed thIS on the pnor Monday at ten 0' clock. Mr Carey told hIm that as SmIth swore, he began rutTIng the truck wIth a stIck he was carryIng. In terms of the sweanng, Mr Taylor stated that Carey relayed that Mr SmIth stated "you're a fuckmg goof, you put a nail under my fuckmg TIre, I'm gonna kill you, you fuckmg asshole " Mr Taylor then went to mspect Mr Carey's truck and saw that the mIrror ~s cracked, there were a couple of dents above the door on the roof of the cab a couple of dents at the sIde of the door where the Window rolls up and a couple of dents on the box of the truck. In rus VIew the dents were "extremely fresh" because there was no dirt or rust on them and the paInt flIckered off. Mr Taylor advIsed Mr Carey that he would mvesTIgate the matter Mr Warren Clark, a saltmg and sandmg sub-contractor With the Mimstry tesTIfied that he had worked dunng the mght on December 271996 arnvIng at hIS house-traIler at Peter's Corners at around 6'00 a.m. or 6.30 a.m. He stated that he had coffee, then went to bed, wIth rus Windows open a crack. He stated that he heard a "ruckus" hollenng and screammg wruch persIsted for a while - some five to eIght mmutes. ImTIally he thought It was the neIghbours, but then he recognIzed Mr SmIth's VOIce and so went to the wmdow to see what was happemng. He tesTIfied that he saw SmIth place a wooden STIck, about four feet long, mto the Mimstry truck and then dnve to the office. He did not hear bangIng or see SmIth do anyth1ng With the STIck except put It m rus truck. He had, however heard some of what SmIth shouted wruch was "you're a fuckmg goof, you put nails In 4 my TIre, I'm gonna kill you, you asshole" On eIther December 28 or 29 1996 he prepared a wntten statement about hIS observaTIons at Mr Taylor's request. That statement IS consIstent With hIS tesTImony at the heanng. Mr SmIth's account of what occurred IS qUIte dIfferent. He acknowledged that he waIted In ms truck at the entrance to Peter's Corners for Mr Carey to pass by to have a "dIscussIOn" With mm "about the agenda that occurred on December 23rd" the flat TIre on hIS car Dunng the conversaTIon, Mr SmIth stated that Carey demed that he was m the patrol yard that day to wmch he rephed that he had spoken WIth Tracy Clark who saw a dark gray pIckup truck parked besIde hIS car Mr SmIth tesTIfied that Mr Carey demed that and then took a fist arm and swung at mm, saymg "fuck off." Mr SmIth tesTIfied that he told Carey that he would pursue thIS vandahsm further at whIch pomt Mr Carey drove off, sweanng "fuck off, you asshole." and Mr SmIth responded "get out of here" He then returned to hIS truck and went mto the patrol yard for a coffee, and then left the yard to do a patrol Mr SmIth demed havmg a STIck or broom handle With mm, demed hItTIng Mr Carey's truck and demed sweanng at mm or even yelhng at hIm, although he did raIse ms VOIce He stated that he was dumbfounded when Mr Carey swore at mm and swung at mm WIth ms fist. He tesTIfied that he was scared, that he IS not a vIOlent person, and that dunng the dIscussIOn WIth Carey he was "cool, calm, collected." In ms VIew both Mr Carey and Mr Clark were lymg about what occurred. The IncIdent, m ms VIew lasted a few mmutes at most. Mr SmIth's account of what happened dunng the mvesTIgaTIon also differs from that of Area Mamtenance Manager Taylor According to Mr Taylor at approxImately 10.30 a.m., he went to see Mr SmIth at Peter's Comers. He asked SmIth what caused the confrontaTIon that mommg, to wmch SmIth responded "he can't prove It, he's got no wItnesses, talk to my lawyer" Mr Taylor then contmued that Carey had told mm about the mCIdent, that SmIth attempted to assault mm, to stnke mm With a STIck, allegaTIons wmch 5 were not demed by SmIth. Instead, SmIth dIscussed that Carey had put a nail under hIS TIre and that Tracy had told rum thIS and had seen hIm do It. Mr Taylor responded that he had already spoken to Tracy who told rum that she had not, at any tIme, seen anyone do anythmg to SmIth's car At that pOInt, Mr Taylor tesTIfied that SmIth's story changed, that It wasn't Tracy who saw Carey do thIS but SmIth, rumself, that he saw Carey do thIS. Mr Taylor stated that he responded by askIng, "you saw thIS, you dId nothmg, you drove over It and got a flat TIre?" to whIch Mr SmIth "got very hot" and the conversaTIon detenorated. He asked hIm to provIde a wntten statement whIch was never done TWIce more that day Mr Taylor tned to discover Mr SmIth's verSIOn of events Without success. Shortly after he had returned to Duff's Comers from rus meeTIng wIth SmIth, Mr Taylor asked Carey to go to Peter's Comers WIth rum to work th1ngs out With SmIth. Carey agreed but when they approached SmIth, he refused to discuss It. Later that day at the end of SmIth's shIft, he agam saw SmIth at Peter's Comers, and thIS TIme, according to Mr Taylor SmIth stated that he would like to resolve the whole problem and that they could discuss It the folloWing Monday He still had not provIded rus verSIOn of events to Mr Taylor Later that day however SmIth called Mr Taylor at home at approXimately 3.30 p.m. to retract what he had saId about resolvIng It, that he had spoken to the polIce to have Carey charged and had spoken wIth rus lawyer but that the courts were too busy to deal WIth It that day SmIth then added that he would drop It If Taylor would guarantee that noth1ng would ever be damaged on rus car Taylor told rum that would be Impossible to guarantee unless he stood guard over hIS car 24 hours a day and the conversatIOn ended. AccordIng to Mr Taylor at no t1me thereafter, Including the dIscIphnary meeTIng on February 21 1997 did SmIth ever tell management hIS sIde of what occurred dunng the mommg of December 27 1996 Mr 6 SmIth refused to partIcIpate m the discIphnary meeTIng when rus request to audiotape the meeTIng for use m related legal proceedings was demed. Mr SmIth, m contrast, ImTIally tesTIfied on exammaTIon-m-cruef that he told Mr Taylor about what occurred that mommg. He testIfied that Mr Taylor approached rum to ask what caused the confrontatIOn wIth Carey that Carey had told rum that he had struck rus verucle, bashed hIS truck and damaged It. SmIth stated that he rephed "dId you ask hIm about the flat?" that he had seen Carey's truck In the yard and that Tracy Clark had also seen a dark gray pIckup truck there SmIth then saId that Taylor stated that he had already spoken to Tracy and that he then told hIm what happened earlIer that day With Carey Just as he tesTIfied at the heanng. He stated that he was "calm and collected" dunng trus meeTIng. He demed that Mr Taylor asked rum for a wntten statement smce he had receIved a verbal one On cross-exammatIOn, Mr SmIth acknowleged that he did not explam what happened that mommg to Mr Taylor statmg mstead that he tWIce told hIm that he would consult With a lawyer He was asked several TImes whether Mr Taylor asked hIm about what occurred on December 27 and although he rephed yes, he stated that he explamed "bItS and pIeces" provIded "some InformaTIOn" but that Taylor was not mterested, that he was more Interested m what Carey had saId and that he had already made up rus mmd. In rus VIew Mr Taylor was "trymg to put me m a trap" and "cut me off' Dunng tills exchange at the heanng, Mr SmIth became qUIte agItated and loud, but mSIsted that he was still "calm, cool and collected" and was Just "ensunng you hear what I say" 7 SmIth tesTIfied that at approxImately 11.20 a.m. on December 27 Mr Taylor returned to see hIm wIth Byron Carey to resolve the Issues and concerns He refused, staTIng that what occurred to hIS car was senous, that It had happened twIce before, and he wanted to consult a lawyer Mr Taylor and Mr Carey then left. SmIth further tesTIfied that at approXimately 12 10 p.m., Mr Taylor returned to Peter's Corners and agaIn asked If he would resolve hIS Issues With Carey to willch he responded that he would reVIew the cIrcumstances and concerns. He then tesTIfied that at 3 15 p.m., he called Mr Taylor at home, tellmg illm that he was gomg to pursue the Issue further WIth a lawyer and the polIce In fact, Mr SmIth did pursue the matter of ills tIre, through a lawyer In Small ClaIms Court. He succeeded there on December 1 1997 the Judge rulIng that on the balance of probabIllltes, Mr Carey had placed a nail under ills TIre on December 23 1996 ImTIally Mr Carey had filed a counterclaIm for damage to ills vehIcle caused by the gnevor and for lost wages, but dropped that claIm smce he had not had the damage repaIred and had been advIsed that he therefore could not recover for It. DECISION As IS apparent, there are credibilIty Issues m tills case. For the followmg reasons, I find Mr Carey and Mr Taylor to be sIgmficantly more credible than Mr SmIth. Mr Carey struck me as an mdivIdual who was genuInely astounded by what Mr SmIth dId on December 27 1996 His recollecTIon was clear and consIstent. The only mOTIve suggested for Mr Carey to he - that he beheved that Mr SmIth had sometillng to do With ills pnor transfer from Peter's Comers to Duff's Comers - was purely speculaTIve GIven all of the cutbacks and reassIgnments WItilln the Mimstry and the enTIre provmcIal government at that TIme, It seems unlikely that Mr Carey would blame Mr SmIth. 8 Further Mr Carey's account was consIstent WIth the testImony of Mr Clark, an mdependent Witness. While there are some holes m Mr Clark's tesTImony - such as how far away the trailer was from the entrance, exactly when he fimshed hIS work and returned to the trailer - he was very clear about what he heard and saw The fact that he saw Mr SmIth place a long wooden STIck mto ills truck at that TIme IS cnTIcal. It comports With Mr Carey's account and refutes Mr SmIth's tesTImony that he did not have a wooden stIck WIth hIm. There IS no eVIdence or even suggesTIon of any collusIOn between Mr Carey and Mr Clark. Mr Clark further heard Mr SmIth yell and use profamty His tesTImony comports WIth Mr Carey's account and fundamentally refutes Mr SmIth's tesTImony that he never used profamty or yelled at Mr Carey Mr Taylor venfied that there were dents on Mr Carey's veillcle consIstent WIth Mr Carey's account of what occurred. The type of dents and damage described appear to be consIstent With a STIck hItTIng the car and m Mr Taylor's VIew they looked "extremely fresh" because there was no dirt or rust m them. He also testIfied that Mr Carey appeared shaken and upset when he reported what occurred. The fact that he was upset and shaken further supports Mr Carey's tesTImony If the IncIdent occurred as Mr SmIth stated, It seems far more hkely that Mr Carey would have been angry not upset and shaken. Overall, I found Mr Taylor to be a forthnght, rehable and credible Witness. I further credit Mr Taylor's tesTImony that Mr SmIth did not relay hIS verSIOn of what occurred that mommg but Instead, when questIOned, stated "he can't prove It, he has no wItnesses, talk to my lawyer" That approach - not offenng any explanaTIon and a directIOn to talk to ills lawyer - appears to be consIstent WIth Mr SmIth's general approach to tills whole matter and undercuts ills mITIal testImony at the heanng. Further even though Mr SmIth ImTIally testIfied that he did explaIn what occurred to Mr Taylor on cross-eXamInatIOn, Mr 9 SmIth's account of what he told Mr Taylor dunng the mvesTIgaTIon changed. He admItted that he did not explam what occurred even though he was repeatedly asked. Instead, he focused on December 23 and would not answer Mr Taylor's quesTIons about the mommg of December 27th. Instead, he had to consult ills lawyer Finally I also find that Mr Taylor requested a wntten statement from Mr SmIth, as he tesTIfied, and was not saTIsfied With Mr SmIth's response as the gnevor stated. Requestmg a wntten statement IS consIstent WIth Mr Taylor's pracTIce WIth Mr Carey and Mr Clark, even though they had gIven hIm verbal statements. Moreover and qUIte fundamentally I dId not find the gnevor to be credible Although he appears qUIte mild maIlllered, throughout Mr SmIth's tesTImony It was abundantly clear that he was very very angry about what occurred to ills TIre, and that he remaIns angry to tills day years later His anger the day after he learned about the nail m ills TIre must have been far greater His enTIre focus dunng the mvesTIgaTIon by Mr Taylor and at the heanng, was about the TIre and what he asserts Mr Carey dId. At TImes dunng hIS testImony he sounded very angry and became qUIte agItated, all while InSISTIng he was "calm and collected." He acknowledged that he waIted for Mr Carey to pass by on December 27 1996 to dISCUSS "the agenda of what occurred on December 23rd." GIven the fact that he had Just learned about the nail and that tills, m ills VIew was the tillrd TIme tills type of tillng had occurred and gIven ills level of anger about It, I find ills tesTImony that he was "calm and collected" dunng the exchange With Mr Carey and that he dId not use profamty and nor even yell at Mr Carey to be patently mcredible The fact that he changed ills story about what he told Mr Taylor dunng the mvesTIgaTIon further undermmes ills credibihty Consequently gIven the credibihty of Mr Carey Mr Clark and Mr Taylor the physIcal eVIdence of damage to Mr Carey's veillcle, the fact that he was shaken and upset, and the lack of credibilIty of the gnevor 10 I conclude, on the balance of probabIhTIes, that there IS clear and convmcmg eVIdence that the gnevor verbally and physIcally attacked Mr Carey on ills way to work, as alleged. GIven tills conclusIOn, there was cause to Impose discIphne on the gnevor Tills was not a pnvate altercaTIon between two members of the pubhc, but occurred while Mr SmIth was on work TIme He waIted for Mr Carey m a mImstry veillcle on mmIstry property Further even If It IS accepted that Mr Carey put a nail under Mr SmIth's tIre as found by the Small ClaIms Court that could not and dId not JUSTIfy or excuse Mr SmIth's conduct on the mommg of December 27 1996 Under all the cIrcumstances, parTIcularly the senousness of what occurred, the penalty Imposed - a three day suspenSIOn - was not exceSSIve Accordingly the gnevance IS dismIssed. Issued thIS 22nd day of July 1999 In Toronto, Ontano H, r4brn1lElO Randi Hammer Abramsky Vice-ChaIr 11