HomeMy WebLinkAbout1997-2033.MASSA00_02_15_DECI
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 TELEPHONElTELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (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 Uillon
(Massa)
Grievor
- and -
The Crown In RIght of Ontano
(LIquor Control Board of Ontano )
Employer
BEFORE RandI H. Abramsk" Vice ChaIr
FOR THE Lam Stemberg
GRIEVOR Counsel Koskie & Minsk"
Bamsters & SolICItors
FOR THE Micheal Sherrard
EMPLOYER Counsel Ogil~ Renault
Bamsters & SolICItors
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 Involves three gnevances concernIng dIscIplIne Imposed on the
gnevor Joseph Massa - a three-day suspenSIOn, a ten-day suspenSIOn and dIscharge At
Issue IS whether the Employer the LeBO had just cause to Impose these dIscIplInary
measures
A. Background
The gnevor pnor to hIS termInatIOn In January 1998 worked as a Warehouseman 4
at the London warehouse and had held that pOSItIOn SInce January 1977 The London
warehouse receIves, stores and ShIpS lIquor to 135 LeBO stores In the area. The lIquor IS
stored on pallets, by type and brand, In aIsles In 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 In ShIppIng and
ReCeIVIng whIch Involves loadIng and unloadIng trucks as well as In the general
warehouse where he would servIce the aIsles by respondIng to the needs of the
assemblers for replenIshment of stock. The assemblers pIck the stock ordered by the
stores, place them on pallets and transport the pallets to the stagIng area for placement
Into a delIvery truck. A forklIft operator also retneves empty pallets, puts stock away and
maIntaInS the aIsles In both pOSItIOns, the gnevor extensIvely used a forklIft.
2
On a tYPIcal day there are approxImately seven or eIght forklIft trucks operatIng
at the warehouse two on the docks, loadIng and unloadIng trucks, four or five
maIntaInIng the aIsles and one replemshIng stock. In addItIOn, there are approxImately
fifteen electnc pallet trucks, or transporters, operatIng 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
11ft between 3 000 to 4 000 pounds and can 11ft pallets up to 16 feet. AccordIng to the
InstructIOnal matenals for forklIft operators, "[a]n average 11ft 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
machInes 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 In the bargaInIng umt who was recently promoted
to General Foreman, was In charge of the traInIng of forklIft operators at the warehouse
whIch took place In March 1997 The gnevor attended thIS traInIng whIch consIsted of
both classroom and dnvmg InstructIOn.
Ross testIfied that he revIewed WIth the forklIft operators the relevant legIslatIOn,
the pnncIples of forklIft operatIOns and a number of safety VIdeos dunng the traInIng.
3
One of the vIdeos was presented at the heanng. It covered the dangers mherent m forklIft
operatIOns, partIcularly to pedestnans, and the responsIbIlItIes of the forklIft operator to
ensure safety It dIscussed, among other thmgs, establIshmg "rules of the road" and the
Importance of abIdmg by the rules It dIscussed that there was lImIted space contmual
movement, and the need for cautIOn, partIcularly around mtersectIOns and hIgh traffic
areas The courteous use of the horn and when to use the horn such as m blInd
mtersectIOns, corners WIth stockpIles, was also dIscussed. At mtersectIOns, 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 conflIctmg messages sent to
employees about the proper use of the horn, but It was clear that the jomt Health & Safety
eommIttee had sIgmficantly lImIted the use of horns, relymg mstead on vIsual eye
contact and cautIOn. Massa, who had been a member of the Health & Safety eommIttee,
was aware of the change m polIcy but dIsagreed WIth It. Accordmg 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 IrrItatIOn among hIS
co-workers Ross receIved a lot of complamts that Massa drove too fast and used the
horn too much. Ross acknowledged that he, lIke Massa, had been counseled about
dnvmg 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 operatmg
your forklIft truck at an exceSSIve speed m 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 turnmg mto the "B" pIckmg aIsle
forced both the superVIsor and co-worker to jump out of the way to aVOId
contact WIth the pallet load you were carrymg.
McDowell testIfied that on June 3 1997 at approxImately 2 00 to 2 30 p.m he
was walkmg north on the east SIde of the buIldmg WIth the former manager of the
warehouse DennIs Smedley They were approxImately at the mId-pomt between the B
and e aIsles when Massa passed them m hIS loaded forklIft at an accelerated speed. He
stated that Massa had scarcely passed them when he began negotIatmg a left-hand turn
mto the B aIsle As he approached the mtersectIOn, he saw that SupervIsor Ron Kestle
and warehouseman Mike Robertson were talkmg to each near the mouth of the aIsle He
testIfied that Kestle was standmg on the left SIde of the aIsle, facmg north, and Robertson
was standmg alongSIde hIS forklIft, on the nght SIde of the aIsle facmg south. The pallets
were three hIgh, WIth one servIce pallet on the floor empty Smce each pallet IS about 52
mches, the three would be approxImately twelve to fourteen feet hIgh. Instead of slowmg
down or stoppmg, McDowell testIfied that Massa slowed only enough to negotIate the
turn and then proceeded through the aIsle causmg 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 machme" On cross-exammatIOn, 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 machme holdmg
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 dnvmg
west and saId, m hIS VIew "defiantly" "yes, BIll, exactly what dId you see?" McDowell
stated that he cautIOned Massa to watch where he was dnvmg. 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 mCIdent report states m pertment 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" pIckmg aIsle The operator sounded
hIS horn repeatedly and made a left turn mto the left sIde of the aIsle and
forced the SuperVIsor to jump out of the aIsle and the operator of a parked
machme to qUIckly mount hIS fork 11ft 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 standmg m
the "B" aIsle when a FLT approached wIth a load forcmg me to jump onto
my machme to aVOId bemg hIt.
R. Kestle WhIle talkmg 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 machme
6
The IncIdent report also noted that "safety talk #4/97 convened May 29197 wIth
all staff on thIS Issue Employee named In thIS IncIdent report was gIven a wntten Safety
Talk 4/97 relatIng to thIS very Issue on the mornIng of June 3/97" It further noted that
McDowell had "verbally counseled the employee In thIS matter In the past"
Safety Talk #4/97 dated May 29 1997 Involves the "RIght of Way" and states,
In pertInent part, as follows
ForklIft truck operators wIll
I) Yield the nght of way to all pedestnan traffic engaged In Order PIckIng
actIvItIes
11) As a rule turn Into the nght hand sectIOn of all aIsles ExceptIOn beIng
where thIS IS not possIble due to presence of order pIckers
111) Where necessary IndIcate to other traffic the IntentIOn to turn and
speCIfy the lane to be taken
In summary the purpose of the "talk" was to reInforce the expectatIOn of
all Warehouse staff that forklIft operators are dIrected to adopt the "rules
of the road" to most operatIng SItuatIOns, enter aIsles to the nght of centre
as a rule and where not pOSSIble, proceed WIth due cautIOn.
(emphasIs In ongInal) 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 mto 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 conversmg should stand on one sIde of the aIsle Robertson testIfied that
assemblers stopped at the mouth of the aIsle all the tIme placmg or retnevmg stock.
Massa acknowledged thIS although he was cntIcal of the practIce
The record shows that McDowell counseled Massa about aggressIve forklIft
dnvmg on Apnl30 1997 The counselIng log states
8 30 a.m DIscussed WIth Joe that mgmt had receIved a number of
concerns regardmg the aggressIve manner m whIch he dnves the F.L T
Strongly suggested to Joe to follow the establIshed gUIdelInes set out m
the structured FL T Trammg delIvered m March 97
Massa recalled that he had spoken WIth McDowell a "couple of tImes" about thIS,
but McDowell dId not tell hIm who complamed, just that that there were complamts that
he was dnvmg 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 m a counselIng log
Massa was also counseled about "aggressIve dnvmg" on May 9 1997 The
counselIng log states
DIscussed WIth Joe the mCIdent of May 8th where he needlessly sounded
hIS horn when passmg J Henderson. AdVIsed Joe that m the presence of
pedestnans reduced speed & mcreased awareness IS m order not soundmg
8
of horn as means to clear a path. Joe advIsed me that he was m
conversatIOn wIth Ron K. who m fact suggested he use hIS horn. In
summary remforced pedestnan nght of way and extreme care be m place
versus a long & pronounced soundmg of the horn.
Massa recalled a conversatIOn wIth McDowell about thIS mCIdent but was not aware that
It had been recorded m the log.
Kestle testIfied that he was m B aIsle reassIgnIng Robertson to the shIppmg area
when he heard a horn two or three tImes, then looked and saw a forklIft commg around
the corner "faIrly fast" To get out of the way he jumped onto a pallet and saw
Robertson jump onto hIS machme He felt that he was m jeopardy of bemg 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 gomg too fast, and Massa turned to look at McDowell and saId somethmg whIch
he dId not hear McDowell told Massa to "watch where he was gomg." In Kestle's VIew
Massa was dnvmg too fast for the SItuatIOn, commg 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 UnIon steward and member of the Jomt Health & Safety
eommIttee testIfied that he was standmg next to hIS machme talkmg to Kestle who was
approxImately two to three feet away from hIm when he heard a horn blast and notIced a
forklIft commg up turnmg mto the aIsle at a speed faster than he thought It should. He
then heard several horn blasts to mdIcate that the forklIft was commg through and he
jumped onto hIS machme grabbed the handlebars and swung hImself mto the seat. He
9
stated that he pulled hIS left foot m just as the forklIft went by hIm and saw Kestle jump
onto a skId on the other sIde He notIced McDowell and Smedley m 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 gomg.
Robertson testIfied that as a result of the mCIdent, hIS nerves were shot, hIS hands
were shakmg 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 complamed
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 mCIdent on June 3 1997 was mtentIOnal and a result of
Massa's learnIng about the earlIer mCIdent report. He conveyed thIS VIew both verbally
and m wntmg to Manager McDowell and also called the polIce to mvestIgate The polIce
dId mvestIgate questIOnIng Robertson, Kestle and Massa, but no charges agamst Massa
were laId. The mCIdents and concerns expressed by Robertson to management m 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 m response to the June 1ih NOID In that response, Massa stated,
m part, as follows
Smce my return to restncted dutIes on a forktruck both m Apnl and June, I
have reduced the speed at whIch I dnve by at least one thIrd. Also at
our meetmg of Apnl 29 regardmg safety Issues you told me there was a
complamt made by a fellow employee regardmg my dnvmg, though you
wouldn't name the employee or specIfic mCIdent related I assured you
then that I would drop my speed even more The workload and constant
calls for drops and complamts by assemblers for havmg to WaIt too long
for servIce m my aIsles, should show that I have reduced my dnvmg speed
consIderably I belIeve most of the employees would agree If surveyed,
especIally Tiny Ross, the forklIft dnvmg mstructor wIth whom I have had
regular dISCUSSIOns wIth concernIng forktruck dnvmg overall and my
restncted dutIes whIle dnvmg. 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 tootmg my horn tWIce as I proceeded through. Mike's
forktruck prohIbIted me from gomg down the nght sIde (parked m 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 gomg through so to let the
pedestnans know that I was gettmg closer and to be aware a practIce that
has come under scrutmy by you m the past, most recently on May 8
mvolvmg Jeff Henderson where you told me not to use my horn when
passmg hIm whIle he was workmg. As I told you then, and am tellIng you
now I would use my horn agam 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 machme and backed up to near where Ron was standmg and
Mike bemg on hIS forktruck. I asked, "dId you see what?" and Ron
replIed "you may have been gomg a lIttle fast." I replIed, "I'm gomg too
fast eh?" I shook my head, dIdn't say anythmg else and proceeded at
creep speed when dnvmg away when I belIeve you saId somethmg about
watchmg where I was gomg. I belIeve It was m reference to turnmg back
to hear you made a statement to me Bemg a certIfied member of the
W.H. S A. I belIeve I was m no vIOlatIOn of any safety rules
11
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
ShIppIng office, where he saw McDowell and Smedley talkIng to a forklIft operator at
Dock 6 He thought he was "probably at hIgh speed when he reached them" although In
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 ShIppIng 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 eXamInatIOn-In-
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-eXamInatIOn, he
acknowledged that as he was dnvIng to B aIsle he "was not lookIng 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 agaIn " When asked what Kestle and
Robertson dId, he first replIed that Kestle stepped onto an empty pallet and Roberston
12
backed up toward hIS machme and got totally out of the way Later on cross-
exammatIOn, he stated that as he went through, he was lookmg at Kestle and he
"belIeve[ d] Mike backed up " That IS "what I thought" that he was "backmg up to hIS
machme " He then added, "now that I thmk about It, he mIght have had hIS hand on the
steenng wheel" SometIme later he testIfied that Robertson was leanIng agamst machme
at the tIme he passed or standmg by hIS machme, "somethmg lIke that." In hIS VIew
Robertson had "so much tIme to just move away Ifhe got onto hIS machme, where IS the
danger?" When pressed, he stated that he "just recall hIm gomg to the nght" that "he
wasn't on hIS machme" although m hIS June 6 response to the NOID he wrote that
Robertson was on hIS machme 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 mCIdent.
Agam, hIS "eye was on Kestle" who was facmg 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." Fmally 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 nothmg 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 laughmg WIth a "gnn from ear to ear"
somethmg whIch was not put to Robertson or Kestle On cross-exammatIOn, 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 thmkmg - left of centre of the
aIsle I would have made eye contact before I got mto 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 gomg too fast" to whIch
he just shook hIS head and drove away Kestle dId not recall saymg anythmg to Massa.
Later Massa was asked If he backed up hIS forklIft to speak to Kestle as he stated m hIS
June 6 response, and replIed "now that I keep thmkmg about It, I thmk 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 movmg
slowly lookmg backward, and McDowell told hIm to watch where he was gomg 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 mCIdent as he was
standmg 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 gomg too fast, "never" The
accusatIOn was a set-up to get nd of hIm In hIS VIew It was "too mcredIble" to belIeve
14
that Robertson had to jump onto hIS machme that would be lIke hIm "leapmg onto tall
bUIldmgs " It was sImply "not possIble" and "ndIculous" that he was dnvmg too fast or
too aggressIvely
After the mCIdent, 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 pomts raIsed by Massa m hIS June 6 1997 reply to the
NOm That letter states, m part, as follows
In reVIew of the pomts made m your response
The assertIOn that the forklIft mstructor wIll support your posItIOn that you
are mdeed dnvmg 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 mto your left turn
mto "B" AIsle was exceSSIve and m 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 agam m
the mIdst of the turn IS not correct. Your first use of the horn was dunng
the completIOn of your turn, and m 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 transportmg
Your descnptIOn of the area m 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 m
fact were not on the left SIde of the aIsle, as you assert, they were m fact
dIscussmg a re-assIgnment across the aIsle from one another There m
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 mIsleadmg.
DISCUSSIOns on thIS Issue have re-enforced but one pomt, 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 gam, unreasonably
access to a common work area. In the example you CIte Mr Henderson
15
was In 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 In speed through the area would have
been more appropnate than a prolonged blast of the horn, whIch as you
wIll recall startled the worker In questIOn unnecessanly
In summary you have faIled to provIde any reasonable explanatIOn of your
actIOns or an accurate accountIng of the InCIdent In questIOn.
We can only conclude that your actIOns In thIS matter were both reckless
and III conceIved As your actIOns contravened both establIshed operatIng
protocol and speCIfic operator traInIng gUIdelInes dIscIplIne IS warranted.
The dIscIplIne to be Imposed In thIS case IS
a) A suspenSIOn WIthout pay for a penod of three (3) workIng days July
15 to 17 InclUSIVe
b) A structured reVIew of all operatIng gUIdelInes assocIated WIth fork 11ft
operatIOns WIth Instructor J A. Ross, and
c) A ten (10) day restnctIOn from operatIng powered matenal handlIng
eqUIpment, effectIve Fnday July 18 1997
Please be adVIsed that the LeBO treats the Issue of workplace safety as ItS first
pnonty Future InfractIOns 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 IncludIng dIsmIssal
McDowell, In 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
sIgmficantly past Dock 6 at the tIme He also testIfied that he dIscussed Massa's speed
WIth Instructor 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 In May 1995 and for
approxImately the first year he felt that Massa was "the most capable warehousemen In
16
the buIldmg and probably the most knowledgeable" When he worked m ShIppmg and
ReceIvmg, he dId a "heck of a job" That perceptIOn, however changed m February
1996 after a settlement was reached concermng some thIrty or forty gnevances The
settlement remstated the semonty Massa had lost as a result of a pnor termmatIOn. As a
result, hIS semonty mcreased m relatIOn to several other employees, although not m
relatIOn to Robertson or Kestle Nor dId It mcrease relatIve to the employees mvolved m
the subsequent mCIdents, Jeff Henderson, Ron GeIsbrecht or Mark Walker In
McDowell's VIew Massa became more demandmg as to hIS semonty entItlements, to the
pomt of bellIgerence, and became far less approachable He wanted everythmg
documented, wIth 1's dotted and T's crossed. In McDowell's opmIOn, 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 pomt
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 m McDowell as well After the June 3 1997 mCIdent, he
contacted a JustIce of the Peace m order to have McDowell charged. He told the JustIce
of the Peace what was gomg on at work m 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 complamts hIS co-workers were makmg about hIm after he receIved the addItIOnal
semonty and It was SImply eaSIer to get nd of hIm
17
When asked on cross-exammatIOn If Massa was the target of harassment by other
employees, McDowell responded that he thought It was a "mutual thmg" that Massa
"gave as good as he got." McDowell was aware that Massa alleged that employees were
harassmg hIm, mcludmg 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
mam floor bulletm board. He took It down but dId not further mvestIgate It on the adVIce
of Patnck HoulIhan, Human Resources Manager for the Southwest RegIOn, who adVIsed
hIm that such an mvestIgatIOn would be fruItless ThIS was demed by HoulIhan, who
testIfied that he dId not suggest that the matter not be mvestIgated although agreed that he
may have told McDowell that an mvestIgatIOn was unlIkely to determme who posted the
artIcle
Tiny Ross, who stated that he "got along" WIth Massa, testIfied that he was aware
of a lot of complamts by employees that Massa drove too fast and used hIS horn too
much He was not aware of employees trymg to get Massa to lose hIS temper although
he saw a comment wntten about Massa's wIfe, who IS abongmal, on hIS locker Ross
testIfied that Massa gneved thIS and management mvestIgated the matter Someone from
management came from Toronto to dISCUSS the harassment polIcy Exactly when thIS
occurred IS not clear m 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 warnIng 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 gomg to dIe" "one of these days you're gomg to dIe" He stated
that Massa was dIscIplIned as a result.
In regard to the pool hall mCIdent, Massa testIfied that he was mVIted 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 m, Kestle approached hIm and was
sarcastIc, they had words, and Robertson mtervened 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 mCIdent
As to the mCIdent m 1991 Massa was asked on exammatIOn-m-chIef If he told
Kestle that he was "gomg to dIe one of these days" He ImtIally responded that he "SaId
somethmg along those lInes" and that he was dIsCIplIned for It, but later demed domg 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
eommIttee 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 e 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 bemg 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 mCIdent, a sItuatIOn whIch IS most unlIkely as found m AFG Industries
Ltd and United Steeehwrkers of America, Local 295 (unreported, July 9 1998)
(eharney)
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 m the workplace It pomts 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 L A.e (4th) 252 (Kennedy) and Re
Summit Logistics Inc andRetail Wholesale Union, Local 580 (1998) 72 L.A.e (4th) 289
(Kelleher)
The Umon asserts that no dISCIplIne was warranted It submIts that the eVIdence
establIshed that the gnevor was not dnvmg hIS forklIft dangerously nor that he mIsused
the horn. It contends that the board cannot credIt Robertson, Kestle or McDowell m lIght
of theIr antIpathy towards the gnevor
The Umon submIts that Robertson cannot be credIted. It argues that there was a
group of employees, mcludmg Robertson, who acted lIke bullIes m a schoolyard WIth
Massa as theIr VIctIm ThIS was demonstrated, It submIts, by the postmg 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
eounsel for both partIes urged me to apply the test for credIbIlIty outlIned by the
BntIsh eolumbIa eourt 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 Steehwrkers 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 m recollectIOn, moreover concern cntIcal aspects of the event,
mcludmg the speed at whIch he was travellIng and made the turn, and what he saw Kestle
and Robertson do He testIfied that he was gomg at "hIgh speed" as he passed McDowell
but m 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 pomts and Massa's changmg recollectIOn
leads me to favour the consIstent testImony of McDowell, Robertson and Kestle over that
of the gnevor The gnevor's account was, m my VIew both mconsIstent and Improbable
I further conclude that the dIscIplIne Imposed, a three-day suspenSIOn, a trammg
reVIew and a reqUIrement to be off powered machmery for ten days, was appropnate even
though there had been no pnor dIscIplIne There was substantIal eVIdence of the
Importance of safety m 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 regardmg
aggreSSIve dnvmg and was clearly on notIce to reduce speed and proceed WIth due
cautIOn. On May 9 1997 less than month before the mCIdent m questIOn, he was
speCIfically adVIsed by McDowell that "m the presence of pedestnans reduced speed and
mcreased awareness IS m 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 mornIng of September 15 1997 we receIved a complaInt from a
co-worker allegIng that you engaged hIm and used abUSIve and threatenIng
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 Hams 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 Hams 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 Hams 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 refemng to He then saId,
28
"excuse me?" Massa repeated hImself, loudly angnly leanIng off the truck and shakmg
hIS finger at hIm Henderson stated that he then asked Massa "what are you talkmg about
Joe?" Massa replIed, "Isn't your hIS ass already m enough hot water" Henderson stated
that he agam asked, "what are you talkmg 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 gomg to
put up WIth any more "nonsense" from Massa. He then went to the office to report the
mCIdent to Kestle and McDowell
That same day Henderson proVIded a wntten statement, whIch comports WIth hIS
testImony It also added the followmg "ThIS IS only one m many run-ms that I and
others have had WIth Joe Massa over the past several years I am tIred of bemg
threatened & prevented from domg my job by thIS mdIvIdual "
Henderson testIfied that he was not on speakmg terms WIth Massa at thIS tIme and
tned to stay as far from Massa as he could. An earlIer problem arose m 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 machme and
asked Massa what the problem was and Massa swore at hIm agam, called hIm a "fuckmg
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 erown refused to prosecute
Henderson acknowledged that he was angry and upset wIth Massa over thIS
In January 1998 Henderson reSIgned from the LeBO 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 wOrrIed about what occurred wIth
Massa on September 15 1997 Instead, he stated that he was wOrrIed about a repeat of
the type of false allegatIOns that took place m November 1996 He had "no Idea what
Massa was capable of" He also found Massa's gestures and words mtImIdatmg and
threatemng.
Ron GeIsbrecht, an assembler at the London warehouse testIfied that on
September 15 1997 he heard Henderson call for a drop m the E aIsle Then, a lIttle later
on, heard Henderson call agam, "Joe Massa, can I have a drop m the E aIsle" He
estImated that there was approxImately 10 mmutes between the calls A lIttle later on, he
was m 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 m 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 mornmg, whIch was reduced to wntmg, states,
m pertment part, as follows
I hear Jeff call for a drop m "E" aIsle tYPIcally - drop m "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 mmutes later whIle m "G" aIsle I wItnessed Joe dnvmg
down to where Jeff was workmg. I was some 6-8 feet away and heard Joe
m a loud VOIce tell Jeff "I am gomg to have your ass m 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 talkmg
m a very loud manner
31
GeIsbrecht acknowledged that he and Henderson were fnends
Don Hams, a elerk 5 Stock eoordInator 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
DUrIng 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 hearIng
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. lIe 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 nIce 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 1'11 do that"
33
and drove over to speak to Henderson. He stated that thIS was the reqUIred procedure
regardmg 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-exammatIOn, was asked whether at the end of the dIscuSSIOn, Massa
mdIcated where he was gomg or mdIcated that he was gomg to speak to Henderson, and
hIS response was "not that I recall "
Massa testIfied that he pulled up to Henderson m the G aIsle and told hIm, "Jeff, I
don't lIke you abusmg me harassmg me on the P A system" Massa stated that he felt that
Henderson was trymg to show hIm up He stated that Henderson saId, "what are you
gomg to do about It')" Massa told hIm that he would gneve It, and Henderson replIed
"get the fuck out of here or 1'11 break or smash your face" Massa then drove away
saymg, "Isn't your ass m enough hot water as It IS')" Massa demed pomtmg hIS finger at
hIm, raIsmg hIS VOIce or saymg the words "not to push It WIth me" He saId "I don't
thmk I made that statement." In hIS VIew Henderson was a "bully" who "thmks 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 complamed 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
m that manner" Massa stated that hIS aIsles were the best m the warehouse He dId not
lIke to be called for drops because It "looks lIke I'm not domg 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 northlsouth corndor 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
Stemberg, counsel for Massa, that Massa dId not stop abruptly He then vacIllated
between saymg that he could not recall If Massa stopped or not, and saymg that he dId
not stop Walker clearly told dIfferent thmgs to counsel for the LeBO Mr Sherrard, and
to Mr Stemberg about hIS recollectIOn of what Massa dId.
Walker also told Massa, afterward, that he could have stopped hIS machme If he
wanted to but chose to dnve around and that he dId not consIder thIS a near mISS On re-
exammatIOn, he acknowledged that he was gomg "full tIlt" at the tIme and that If he
abruptly stopped, he could have gone flymg off the machme and hIS load would have
toppled. Tiny Ross confirmed thIS
Both Robertson and Henderson asserted that they wItnessed thIS mCIdent.
Robertson testIfied that he was mId-way through the stagmg area commg mto the
warehouse and saw Walker swerve to aVOId bemg hIt by Massa's forklIft. He stated that
Massa stopped abruptly causmg the forks on hIS truck to jump up and down, or "chatter"
Robertson InItIated a health and safety report on the mCIdent. Afterward, Walker told
hIm "thanks a lot" smce Walker had not wanted the report to be filed.
Henderson testIfied that he was standmg m front of the shIppmg office after
pIckmg up an order He heard a senes of horn blasts, looked up and saw Massa eXItmg
the E aIsle and Walker along the corndor "on a collISIOn course" He stated that Massa
was commg out of the aIsle "at a pretty good clIp" that Walker was able to swmg around
and that Massa tned to stop hIS machme commg 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 eommIttee 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 learnIng about
the IncIdent. Although Massa stated that McDowell InItIally 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
eastle 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 maIl 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 dnvmg for whIch Massa had been gIven the three-day
suspenSIOn and It demonstrated that the message that management was trymg 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 mtImIdated 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 m 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 m a loud VOIce, that he leaned over hIS machme 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 complamed 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, combmed WIth the manner m 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 L Ae (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 A.e (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 remtegrate 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 bemg sent by regIstered maIl to
the gnevor In support of Its contentIOns, the Umon relIes on Re University of Ott([l1,a and
International Union of Operating Engineers, Local 796-B (1994) 42 L A.e (4th) 300
(Bendel) Re Brun~ ick Bottling Ltd and Retail, Wholesale and Department Store
Employees Union, Local 1065 (1984) 16 L A.e (3rd) 249 (IwamckI) Re COlporation of
the Borough of North York and Canadian Union of Public Employees, Local 373 (1979)
26 L A.e (2d) 289 (SchIff) Re Air Canada and CAW Local 2213 (1993) 34 L A.e
(4th) 13 (Frumkm) Re Manitoba Pool Elevators Brandon Stockyards and United Food &
Commercial Workers Union, Local 832 (1993) 35 L A.e (4th) 276 (Peltz
In the Umon's VIew McDowell's actIOns m regard to the ten-day suspenSIOn go
beyond not gIvmg Massa the benefit of the doubt but amount to IgnOTIng anythmg he had
to say WhIle the letter of dIscIplIne states that management receIved no response to
eIther NOID m fact, a wntten response was filed m 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 dIsmgenuous for McDowell to say m hIS letter of dIscIplIne that the
employer receIved no response and argues that thIS constItutes another reason the
dIscIplIne cannot be sustamed
The Umon further contends that the JOImng the two mCIdents together for
dIscIplInary purposes demonstrates that the Employer was, m realIty attemptmg to use
44
anythmg and everythmg to get nd of the gnevor ThIS was also demonstrated, m ItS
VIew by ItS mclusIOn of the mCIdent report by Steve Senese, an mCIdent 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 mtImIdated. In ItS
submISSIOn, the mCIdent 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 wIthm the defimtIOn of
"IntImIdate" or "threaten."
The Umon further asserts that the employer cannot attempt to dIscredIt Walker
smce 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
mconsIstencIes Nor It submIts, should Henderson be credIted about what occurred on
September 30th. ThIS was two weeks after Massa had called the polIce m to mvestIgate
Henderson's threat and Henderson was upset about that. SImIlarly the other wItness,
Robertson, had called the polIce about Massa m June What IS left, It argues, IS very
sketchy eVIdence of what occurred and the eVIdence IS msufficIent 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 makmg It look lIke he was not domg 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 remamed calm to be mherently 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 m 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 Accordmg to
Brown and Beatty Canadian Labour Arbitration at 7 2100 It IS a "matter of general
arbItral pnncIple" that "the employer must sanctIOn an mdIvIdual for behavIOur It regards
as mappropnate m a reasonably expedItIOUS fashIOn " The case law CIted by the Umon
supports thIS conclUSIOn. For example, m 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 m Imposmg dISCIplIne was determmed 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 dependmg
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 m mformmg the gnevor about thIS
mCIdent. 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 meetmg 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 smce Massa was at work at least part of the
tIme It also could have sent a NOID to hIm by regIstered maIl There was no valId
reason why a NOm was not sent to hIm An employee's mstructIOns not to be
"harassed" at home cannot overnde 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 mam problem wIth the delay IS that Massa could not recall the
mCIdent. As a result, he was prejudIced. He was not able to offer any explanatIOn or
response because he could not recall the mCIdent.
The SItuatIOn IS somewhat sImIlar to what occurred m Re Air Canada and
Canadian Automobile Workers, Local 22]3 (1993) 34 L A.e (4th) 13 (Frumkm) 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 mformed 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 daIly 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 eonstable 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 LeBO as a courtesy to let them know that they had an Irate
employee
eonstable MaIdens, now DetectIve eonstable, 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 arnved there about ten mInutes later and spoke WIth SupervIsor Bonme Suhr who had
called the polIce, and InVestIgator Ellenor eastle 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 refernng. Suhr told MaIdens that she
was taken aback and concerned about the comment. eonstable 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 LeBO regardmg what was saId She dId not want the officer to
contact Massa for fear of more problems at her office He explamed to her that It was hIS
duty to mvestIgate whether any cnmmal 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 erown Attorney He was advI sed
that the comment was not a vIOlatIOn of the cnmmal code smce 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 learnmg thIS from
MaIdens, he "speed dIaled" Human Resources MaIdens also adVIsed the Mimstry of
Labour about the outcome of hIS mvestIgatIOn. As requested by Suhr he dId not speak
WIth Massa as part of hIS mvestIgatIOn
On cross-exammatIOn, MaIdens demed not contactmg Massa because the matter
was not senous In hIS VIew It was senous enough or he would not have called the
LeBO
54
It should be noted that pursuant to an earlIer rulIng, the testImony of eonstable
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 In R. v Khan [1990] 2 S.Re 531 (S e e ) and In R. v Smith [1992] 75 e e e 257
(S e e ) were met.
Upon beIng Informed about thIS InCIdent, management tned to meet WIth Suhr
and eastle, but they were not avaIlable untIl December 8 1997 On that date, Patnck
HoulIhan, along WIth Employer counsel, Michael Sherrard, met separately WIth eastle
and Suhr AccordIng to HoulIhan, Suhr and eastle 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 eastle 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 mtentIOn ofharmmg any co-worker eonsIder thIS permISSIOn to contact Dr Prakash
and have hIm release to you any pertment mformatIOn regardmg myself and work related
seSSIOns, under the understandmg you keep thIS mformatIOn confidentIal" He
concluded
Please accept my apology for the alarm that the mCIdent has created My
mtentIOns for the meetmg were m good faIth and I assure you that I dId
not nor have any mtentIOn of harmmg anyone I do regret that a genenc,
off the cuff remark made by me was taken and mIsunderstood by others as
havmg a meamng or Import, never mtended.
McDowell testIfied that, m 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 thmk he would have anythmg to offer although he demed
tellIng McDowell not to contact hIm, as McDowell had testIfied. On cross-exammatIOn,
he acknowledged that, m hmdsIght, It mIght have been prudent If the gnevor had been
exammed by an mdependent psychIatnst to determme If he posed a threat. He
acknowledged that the results mIght have Impacted the Employer's deCISIOn. Instead, he
determmed, based on the concern expressed by the Mimstry of Labour offiCIals and the
employer's expenence WIth Massa m 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 referrIng 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 In
January 1998 after hIS termInatIOn, Massa expressed a wIsh to harm McDowell and Mike
58
Robertson, but agam, he felt that thIS was not a dangerous threat, partIcularly smceMassa
agreed to contmue treatment
Massa testIfied that he met wIth Mimstry of Labour supervIsor Bonme Suhr and
Ellenor eastle on Monday December 1 1997 at 1000 a.m He stated that he "kept
pushmg them to help me wIth my problems" at work and on the pnor Thursday they
suggested havmg a meetmg Massa tned to have a representatIve from the Employer and
the Umon attend the meetmg, 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 somethmg along the lInes "I feel lIke kIllIng someone" He saId It was not dIrected
at anyone and that he was "also referrIng to myself' smce he was "depressed over
everythmg." He stated that he saId It "under my breath" and he receIved no reactIOn at all
from Suhr or eastle The meetmg lasted approxImately a half hour to 45 mmutes, and
ended wIth eastles repeatmg that there was nothmg further the Mimstry could do to assIst
hIm He tned to convmce her otherwIse thmkmg that she mIsunderstood the SItuatIOn to
no avaIl He also called eastles agam a few hours later and agam was told that there was
nothmg the Mimstry could do for hIm and that he should go to the Umon.
The first mdIcatIOn that a problem eXIsted about the December 1 1997 meetmg
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 mformed 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 eonstable 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 "takmg my own lIfe"
that "thIS IS how these guys make me feel and you guys can't do anythmg"
The gnevor mSIsted 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 nothmg wrong. His conduct was
"above board." The dIscIplIne and assertIOns agamst hIm were "all nonsense" and any
assertIOn that he played a role m what occurred was "ndIculous " He was the "scapegoat
for everythmg." 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 m two days what It took others to do m five
On January 7 1998 Massa was dIscharged by letter whIch states, m part
ThIS letter IS m response to the NotIce ofIntended DIscIplIne Issued to you
by Mr W McDowell Manager of the London Warehouse on December
8 1997 relIevmg you from duty WIth pay effectIve December 8 1997
pendmg an mvestIgatIOn mto your conduct on or about December 1 1997
After revIewmg all the mformatIOn avaIlable to me, mcludmg your
response I VIew the mCIdent as descnbed m the December 8 1997 NotIce
of Intended DIscIplIne as a very senous matter On ItS own, It agam
demonstrates your mabIlIty to work WIth your fellow employees When
VIewed m conjUnctIOn WIth your past dIscIplInary record, It leaves the
LeBO WIth lIttle chOIce
Based on the avaIlable mformatIOn, I regret to mform you that, effectIvely
ImmedIately your servIces WIt the LeBO are termmated.
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 m 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 Ott([l1,a-Carleton and Canadian
Union of Public Employees Local 503 (1994) 44 L A.e (4th) 95 (Folley) Re Toronto
Western Hospital and Canadian Union of Public Employees Local 1744 (1989) 6
L A.e (4th) 150 (Mitchmck) Re Dartmouth Ambulance Ltd and Canadian Union of
Public Employees, Local 3264 (1994) 39 L A.e (4th) 236 (Haynes) Re Mad([l1,aska
Hanbtood Flooring Inc and I WA.- Canada, Local 1-1000 (1995) 51 L A.e (4th) 18
(Y oung)
The Employer argues that It fully InvestIgated eonstable 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 L A.e (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 Steehwrkers of America, Local 12998 and Liquid Carbonic Inc (1996) 20
O.R. (3d) 468 (Ont. DIV et) Re Doughty Concrete Products Ltd and Communications,
Energy and Paper)1, orkers Union, Local 294(b) (1996) 59 L A.e (4th) 289 (Hunter) Re
Fox Ready- Mix Co and Teamsters Union, Local 880 (1991) 22 L A.e (4th) 156
(Bartlet) Re Rockcliffe Nursing Home and Service Employees International Union, Local
204(1997) 62LA.e (4thp16(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 A.A. No 400 (eraven)
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
64
along wIth others, partIcularly General Foreman Tiny Ross, the Umon submIts that there
IS a real possIbIlIty ofre-establIshmg 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 m Re Dehavilland Inc and Bombardier
Regional Aircraft Division and CAW Canada, Localll2 unreported decIsIOn dated Sept.
10 1999 (Rayner)
2. Decision
There IS no questIOn that on December 1 1997 at a meetmg wIth the Mimster of
Labour the gnevor m the context of complammg 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 mmutes after Massa left the
meetmg
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 meetmg
WIth the Mimstry of Labour offiCIals to mvestIgate what occurred, but could not meet
WIth them untIl December 8 1997 At that meetmg, 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 Ott~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 threatenIng 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
gIvmg that dIrectIOn. In my VIew allowmg the gnevor to return to work undermmes the
employer's assertIOn that It senously feared that the threat made on December 1 1997
would be carned 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 eounsel for the
employer at the outset of the heanng, acknowledged that the gnevor's threat on
December 1 1997 standmg alone, was not sufficIent grounds for dIscharge but mstead,
was a culmmatmg mCIdent. I agree that, standmg alone, the gnevor's statement on
December 1 1997 IS not grounds for dIscharge but It IS clearly cause for dIscIplIne
eonsequently gIven what occurred on December 1 1997 m 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, m 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
unIonIzed 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 Steehwrkers 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 eourt 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 plagumg the
employment sItuatIOn m the past. Without that, rem statement wIth
condItIOns IS generally conSIdered an exerCIse m futIlIty and an mVItatIOn
to further problems and an mevItable further dIscharge and arbItratIOn.
The gnevor's demeanor and attItude dunng hIS testImony at the heanng
effectIvely stnpped me of any addItIOnal basIs for remstatmg hIm, even
wIth stnngent condItIOns wIth respect to hIS future conduct. The UnIon
representatIve presentmg thIS case made a tenacIOUS effort to salvage the
gnevor's employment, but, m the end, he was unable to save the gnevor
from hImself I have some dIfficulty m recallIng another gnevor who was
so smgle-mmdedly unwIllIng to accept even a modIcum of responSIbIlIty
or fault m anyone of the several mCIdents revIewed over the course of thIS
heanng Although the gnevor's credIbIlIty was called mto questIOns wIth
respect to vanous of the mCIdents, he appears more as an mdIvIdual who IS
sImply mcapable of consIdenng even the pOSSIbIlIty that he may be wrong
on occaSIOn. He steadfastly refused to accept that pOSSIbIlIty at any pomt
about anythmg no matter the CIrcumstances, and It would appear that thIS
IS a classIc case of someone bemg absolutely convmced that he IS the only
member of the band m 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 m determmmg whether to award compensatIOn m
lIeu of remstatement
1 The refusal of coworkers to work wIth the gnevor
2 Lack of trust between the gnevor and the employer
3 The mabIlIty or refusal of the gnevor to accept responSIbIlIty for any
wrongdomg
4 The demeanor and attItude of the gnevor at the heanng
5 AnImOSIty on the part of the gnevor towards management or coworkers
6 The nsk of a "pOIsoned" atmosphere m 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 eompany 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 eompany 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 eompany 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 anImOsIty toward
Massa from many of the wItnesses - Robertson, Henderson, Kestle and, to a certam
extent, McDowell But what Massa overlooks entIrely IS the role he played m creatmg
that anImOsIty - dnvmg aggressIvely and endangenng hIS co-workers, Ignonng the
Health & Safety eommIttee's rules about the use of the horn, threatenIng 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
protagonIst and the cause of hIS co-workers legItImate anger
In my VIew many of the same factors CIted m Liquid Carbonic supra, and
Dehavilland Inc supra, are present m thIS case The gnevor completely refuses to accept
even the possIbIlIty that he dId anythmg wrong. He belIeves that all of the dIsCIplIne
Imposed on hIm was based on management's attempt, WIth some cooperatIOn by the local
UnIon, to get nd of hIm He demonstrated no remorse He clearly harbors great
anImOsIty and was dIsparagmg 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 mconsIstencIes m hIS testImony reveal I have no
doubt, however that the gnevor truly belIeves he testIfied truthfully that he played no
role m what occurred, that he dId nothmg wrong and that none of what occurred IS hIS
72
fault. As m Liquid Carbonic the gnevor appears to be "absolutely convmced that he IS
the only member of the band m 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, dIsparagmg reference to both management and fellow employees to conclude
that rem statement was mappropnate The board determmed that rem statement "would be
both unproductIve and hazardous to harmomous labour relatIOns" and that "It would be
dIsruptIve of productIVIty and morale m the workplace" See also Re Fox Ready-Mix
Co and Teamsters Union, Local 880 (1991) 22 L A.e (4th) 156 (Brent) The same
conclUSIOn may be reached m thIS case
For these reasons, the fact that a number of the mdIvIduals mvolved m thIS
matter no longer work for the LeBO does not change the result McDowell and Kestle
have retIred and Henderson has resIgned. But WIthout any recogmtIOn of hIS own role m
the events that led to dIscIplIne there can be no reasonable expectatIOn that the gnevor IS
"wIllIng or capable of adjustmg hIS behavIOur and attItude to permIt the contmuatIOn of
the employment relatIOnshIp free of the behavIOural problems plagumg the employment
relatIOnshIp m 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 regardmg the use of the
horn. There may well have been, as the Umon asserts, some conflIctmg 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 semorIty 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 eompensatIOn when rem statement 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 bemg a member of a bargammg 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 bemg a member of a
bargammg umt.
In thIS case, m lIght of the gnevor's substantIal semonty there can be no doubt
that the loss to the gnevor IS great. As m 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 fTInge 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, smce 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-ehaIr
76