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HomeMy WebLinkAbout1992-0435.Williams.93-10-04 ......~--. (- 'ONTARIO \ EMPLOYES DE LA COURONNE ~ '1 CROWN EMPLOYEES DE L'ONTARIO : . GRIEVANCE CpMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONrARIO) M5G 1Z8 FACSIMILE /TELI~COPIF: (416) 326-1396 435/92 ( IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Williams) Grievor - and - The Crown in Right of ontario (Ministry of Government Services) Employer BEFORE: N Dissanayake Vice-Chairperson I Thomson Member b Montrose Member FOR THE G Adams UNION Grievance Officer Ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING November 9, 1992 February 5, 1993 March 15, 17, 1993 May 13, 1993 I ) ( {, "1 .' \;;. "i", 2 DECISION I The grievor Mr. Gerald F Williams, grieves that a 20 day suspension without pay imposed on him by letter dated March 18, 1992 was without just cause The gr ievor had some 13 , years seniority and held the position of Senior Building Systems Operator at the Queen's Park Complex. The suspension arose out of an incident10n February 4, 1992. The employer's position is that on that day the grievor physically assaulted an employee of Schindler Elevator Co Mr "- Paul Rivnie, who had responsibility for maintaining and repairing some of the elevator systems in gover~ent "- buildings. The 'grievor denies any wrong-doing and takes the position that he was going about his legitimate duties when he f was attacked by Mr. Rivnie and that all he did was restrain the .assailant in self-defence Mr. Rivnie and the grievor gave two very different / versions of what occurred on February 4, 1992 Mr. Rivnie's version Mr Rivnie testified that around 11:00 a m on that day he was about to shut down elevator no. 12 in the Hearst Block at the 1st basement level in order to perform some work, when -- --- c;. ( \. l! , 3 someone informed him that the only other elevator that serviced the basements, no 13, was also out of service at the 2nd basement level No 13 was not an elevator serviced by Schindler, while no. 12 was. Mr Rivnie testified' that if he shut down no 12, the two basements would have been lef.t without service He proceeded to no. 13 on 2B level and noticed there was some malfunction since he had no authority to fix no 13, he picked up the telephone inside that elevator. That phone is connected to the central control room, which at the time was manned by the grievor. According to Mr Rivnie, when the grievor answered, he asked the grievor if he was aware that elevator no 13 at the Hearst Block was out of service at the 2B level Mr. Rivnie testified that the grievor's response was "Its not your fucking elevator". Mr. Rivnie then told the grievor that all he wanted to know was whether the breakdown had been reported and whether a call had / been dispatched to Northern Elevator which had responsibility for maintaining no 13. According to Mr. Rivnie, the grievor again stated "Its not your fucking elevator Its not your business". Mr. Rivnie testified that he then responded "Are you some kind of idiot", and when the grievor reacted to that with a barrage of "swear,ing and cursing", Mr Ri vnie hung up. ~ He stated that as he walked away he heard the no. 13 phone ring, and that he did not answer it because he did not want to get into any further arguments Mr. Rivnie stated that he then went from B2 level to B1 level and opened the walk-in ~ - ( ( ( ( i ./ 4 I r elevator pit and looked around to see that everything was in order He testified that after he finished his inspection he closed the pit door and turned around to go to his oft ice when he saw the grievor come around the corner. The grievor J allegedly said "who the fuck do YOll think you are" and rushed forward with closed fists Mr Rivnie testified that he kept backing off, but the grievor "kept on coming and hung a right" which hit him on the left side of the neck. Mr. Rivnie lost his balance and hit the wall with his right shoulder and went i down on his hands and knees According to Mr Rivnie after he I hit the floor, the grievor "kept 0n pounding and punching", i while he was trying to cover-up At this point, Mr. Michael I Chard emerged from the elevator and started yelling Within I seconds, Mr. Chard's supervisor, Mr Tony Liuzza a~rived on the scene and stood between Mr. Rivnie and the grievor, who by then were on their feet. \ J Mr. Rivnie testified that at this point he was "pretty mad" and that he called the grievor names like "id'iot" and "bastard" and that he yelled "I should get a hammer and hit I you over your head and get some bra'ins into you". Mr. Rivnie I j testified that he went to his office and straighteneq out his I clothes and called the grievor's sllpervisor, Mr. Joe wilson, told him that he had been assaulted by the grievor and asked what he was going to do about it. He was advised to prepare I i i I -.... 'y..-~ i c c ~ 5 a written statement of what occurred. Mr. Ri vnie did that immediately , Mr Rivnie testified that the same day he went to a doctor because he had injured his right shoulder when he hit the wall and had a bruise on the side of his neck He was given some pain-killers and asked to visit again for referral to a physiotherapist Subsequently he received physiotherapy every third day for approximately 2 months He was away from work on weB for 3 weeks, and took a further 2 weeks off because he was upset and "not feeling right to work" The grievor's version The grievor testified that he was aware that around 7.00 a m. on February 4, 1992, another operator had received a call that someone was stuck inside elevator no. 13 at a building in Downsview. Around 10 30 a m when he was in the control room he received a call from the telephone in elevator no. 13 in ~he Hearst Block. Mr. Rivnie identified himself and started to mention about a problem with "the no 13 elevator". The grievor testified that since he was aware of the problem with the no 13 elevator in Downsview, he assumed that Mr. Rivnie was calling about the same elevator, and he interrupted Mr Rivnie. According to him, Mr .1 . screamed "idiot, Rl.vnl.e pay attention and stuff like that" a,nd hung up The grievor was concerned that Mr Rivnie may have called to report another --- ( c " 6 emergency on the no 13 elevator in Downsview He called the n0 13 elevator back, but it was not answered. The grievor I \ asked the junior operator to take over the phones and left to look for Mr. Rivnie to find out what problem he was calling about. He testified that he had a great concern that someone may be stuck again in the no 13 elevator at Downsview The grievor walked across the parking lot to Hearst Block When he first saw Mr. Rivnie, he was near the open pit door. He approached Mr Rivnie and asked "whats 'the problem Paul" He testified that to his amazement Mr Rivnie swung a back hand at his face with a big flash light Although there was no contact made, he was "scared to death" by Mr. Rivnie's action The grievor testified that he grabbed on to Mr. l Rivnie's right arm and that the momentum carried both men across the hall. Mr. Rivnie lost his balance and went to his knees. The grievor claim~d that with his left hand he grabbed hold of Mr Rivnie's collar and with his right hand he was trying to grab hold of his shoulder When asked what he was attempting to do, the grievor stated that he was attempting to hold on to Mr Rivnie because he was scared that he will get up and start swinging again. The grievor testified that he was very relieved when he heard someone get off the elevator and scream. Then Mr. Liuzza arrived. According to the grievor, Mr. Liuzza stood ---- - - --- - (' (, \,,,,~ y, 7 between the two of them with outstretched hands to stop Mr Rivnie from getting near him He testified that Mr Rivnie was still swearing and cursing and trying to get at him Mr Liuzza told the grievor to get back to work and he returned to the control room Shortly thereafter, Mr Wilson, his supervisor arrived and instructed him to provide a written statement which he did The grievor testified that he suffered no injuries as such, but his 11ledical problems including hypertension were aggravated as a result of this incident. Despite strenuous cross-examination, the grievor denied --' that he used any swearing or foul language at any time .prior to, during, or after the altercation He insisted that while Mr. Rivnie was swearing and screaming, he did not at any time raise his 'voice or say anything harsh. The most he admitted ---- was that at one point he may have said "are you out of your mind" in a louder thaI) normal voice He explained that ~e did not get angry or frustrated as a result of Mr Rivnie's conduct because it was part of his job to deal with angry people. He specifically denied the abusive language ( attributed to him by Mr. Rivnie and insisted that he did not punch or strike Mr Rivnie at any time There were no eye-witnesses to the beginning of the incident However Mr Michael Chard, an employee of the 0' ( ''I;'' ~ 8 Ministry of Economic Development and Trade who worked in the same building arrived at the scene after Mr Rivnie had gone down on hiS\ hands and knees. He had never spoken to Mr Rivnie or the grievor before, and did not know their names. However, he had seen Mr Rivnie around and knew he was an ~ elevator repair man He testified that when the elevator stopped at B1 he heard an~ry voices and that when he looked - into the hallway he saw Mr Rivnie crouched on the floor and , saw the grievor on _ top of him He said that his first # impression was that the grievor was assaulting Mr Rivnie and that Mr. Rivnie was about to be punched. Mr Chard testified that when he saw the two, men, the grievor was holding Mr Rivnie's collar or upper shoulder with one hand, and his other arm was "raised with a clenched fist" He yelled words to the effect "stop it get off of him" and ran towards the:m. When he ) .startled the men with his yelling, the grievor released his grip and Mr. Rivnie got up and started to take a swipe at the grievor Mr. Chard yelled for aelp qnd 3 men including Mr Liuzza from the mail-room across the hall aFrived Mr. Liuzza stood between the two men who continued to swear at each other . .. y and instructed Mr. Chard and the grievor to leave the area. Mr Chard and the grievor started walking in the same direction. According to Mr Cha~d, after taking a few steps the grievor turned around and started taunting Mr. Rivnie again. Mr. Chard testified that he was so concerned that the grievor was "going to start over again", that he told the ~-~ ( ~~~.1-- 9 grievor IIfuck off before I bash your head inll He also confirmed that at this time Mr Rivnie was also taunting the grievor. The same afternoon Mr Chard provided a written statement of his observations to the employer In that he wrote inter \ alia, liThe elevator man was on his knees against the wall sheltering his face and body from being hit by the other .man who had his legs parted over the elevator man's back and holding him by the scruff of his collar and punching him " During his examination-in-chief Mr Chard stated that having thought about it since, he could not honestly say that he actually saw any punching He went on to explain that from the raised arm and clenched fist he saw, he got the impression that Mr Ri vnie had just been punched or was about to be \ I punched, but he could not honestly say that he actually saw Mr. Rivnie being hit. Mr. Chard was cross-examined at length about his IIchange of testimonyll It was clear that he had changed his statement to the extent that he was no longer prepared to state confidently that he observed any actual blows However, he remained unshaken in his testimony that he was still of the impression that Mr. Rivnie was being assaulted When union counsel repeatedly asked him if it was possible that the grievor was holding Mr Rivnie by the collar with one hand and ~ 10 "trying to gain control with the other", Mr. Ch~rd replied sarcastically "Its possible, anything is possible. They could have been engaging in a homosexual act also " The foregoing is the evidence before the Board. Both parties agree that an allegation of assault is one of a I criminal nature and that ,the Board must be satisfied on a balance of probabilities on the basis of clear and cogent evidence that the alleged assault took place. Counsel for the union points out that there are two I different versions of what occurred, one consistent with an I I assault on the part of the grievor and the other not. In his I opinion therefore there is no c]ear and cogent evidence. I We disagree with that logic There is hardly a case I involving alleged serious misconduct, such as thefts, I assaults, sexual misbehaviour etc. where the evidenc~ only points only in one direction. Invariably the employer's ! I evidence points to guilt, while the grievor's evidence is " consistent with an innocent explanation or an outright denial of the alleged misconduct Under these circumstances, the Board is required to engage in the difficult task of attempting to decide credibility issues and determine if on the totality of evidence whether it can be satisfied that the alleged offence occurred The "clear and cogent evidence" --- [ (- \.: "IJ} 11 test only goes to the nature of the evidence that it will take to lead the Board to conclude that the misconduct took place. The mere fact that the alleged offender and the alleged victim provide two different versions does not necessarily mean that the offence cannot be established. C, , There are of course some rare cases where the Board on a review of the totality of the evidence may not be able to decide whether or not the alleged offence took place Then, , since the onus is on the employer, the grievance will succeed However, that result will follow only as a last resort in the rare cases where the Board simply cannot decide whether or not the offence was committed Thus the Board in Re Khan, 1610/84 (Swan) at pp 122 points out . we think it is important to observe that no tribunal should. be reluctant to admit that it does not know the answer, in those rare cases where that is in fact the clear outcome of the evidence. To impose a clear answer where one is not justified is more inimicable to the interests of justice tpan, occasionally, simply to admit that the adjudicative process cannot provide an answer. In circumstances like this, the burden of proof exists specifically to resolve the outcome of a case The burden of proof is oft~n misused by adjudicators to avoid hard decisions, and we have been concerned not to fall into that trap. After careful consideration, however, we think that the only proper resolution that can be made of this case is to say that the Employer has failed to meet the burden of proof upon it, which is to show that the grievor committed the acts alleged against her, and to do so upon a standard of proof which requires clear and convincing evidence of criminal conduct ~ {c;. \ ~ \ 12 See also, Re Daggitt (513/85) (Delisle). The issue therefore is, is the Board, on the basis of the .- totality of the evidence before it, in a position to decide whether the grievor assaulted Mr. Rivnie. In resolving issues of credibility between two interested witnesses a number of factors have to be taken into account. The most important .is that the Board must ask whether a witness' t~stimony is consistent with the preponderance of the probabilities under the specific circumstances that existed. Also the Board must consider whether there is any independent evidence which tends - to corroborate the evidence of one witness or contradict that of the other. We have come to the conclusion that the totality of the I evidence establishes Ithat the grievor did assault Mr. Rivnie I I I \ on the day in question. We find the grievor's testimony to be not credible in several respects. Mr. Rivnie testified that he called the grievor "an idiotG/ and hung up, that after the physical altercation he swore at, cursed and taunted the grievor. He further admitted that he even stated that he should get a hammer and hit the grievor on the head. The grievor on the other hand testified that he had not been impolite on the phone, 'that he was going abQut his duties when Mr. Rivnie suddenly took a swing at him with a flashlight. He admits that Mr. Rivnie was swearing but wants the Board to ( I: - , , 13 believe that throughout the episode he did not swe~r, curse or taunt Mr. Rivnie at all. That, we find to be not credible. t ;. In addition, that evidence is contradicted by the grievor's .- own evidence givert- at the criminal trial where he admitted that "garbage" was corning out of his mouth. When confronted with that testimony during cross-examination he still denied that he engaged in any swearing and explained that he meant "impolite words" when he used the word "garbage". Mr. Chard's testimony was that after the two got up, they were both swearing and taunting He went to the extent of detailing that in order to stop the grievor's taunting be threatened to - bash the grievor's head in if he did not stop. Also, the grievor testified that during the initial telephone call, he did not use any profanities or harsh language but politely interrupted Mr. Rivnie. According to the grievor, Mr. Rivnie's reaction to his polite interruption i was to call him an idiot and hang up and then take a swing at his head with a flashlight when he saw him the next time. That in our view is not a cred~ble story The evidence is that immediately after the incident, Mr. Rivnie informed the grievor's supervisor that the grievor had "- assaulted him and asked him what action will be taken. The next day he contacted the police. That is conduct consistent with a perso~ who felt aggrieved. On the other hand, the \ - --, - t- J (- 14 I grievor testified that he simply went back to work after I leaving the scene. There is no evidence that he took any inform ;, steps to anyone that he had been assaulted by the \ elevator repairman He did nothing until his supervisor asked him to prepare a statement fOllowing Mr. Rivnie's complaint \ Nor did he contact the police He counter-charged Mr Rivnie for assault, but only after Mr Rivnie had filed charges \ against him. We are also troubled by th~ grievor's testimony as t9 the object with which Mr. Rivnie allegedly took a swing at him. - During the investigation he appeared to have no doubt that the object was a 9 volt flashlight. So much so that he produced such a flashlight at the investigation hearing to demonstrate r the type of flashlight that Mr. Rivnie allegedly used as a weapon. Then at the hear ing , Mr. Rivnie's uncontradicted evidence was that he - never possessed or used a 9 volt flashlight in his work. The only flashlight he had was of the penlight variety. Also the employer's evidence was that no large flashlight or similar objlect was seen at the scene of the altercation by any of the people who arrived momentarily. In the face of this evidence, when the grievor took the stand he testified that while he still thought it was a large flash light, if no one saw such a flashlight, it could have been some other object. Given the certainty with which the grievor described the alleged weapon and produced a flashlight during --- .....,"". r ~ l. ! , ! 15 the investigation, his willingness to backdown in the face of ! adverse testimony casts doubt on his story in total The fact I I I ) is that a number of people arrived moments after the .. , altercation The only objects found were Mr. Rivn'ie's penlight flashlight and his pager which was about 3"X4". No large object rese~bling a 9 volt flashJight was to be seen. Mr. Chard was a stranger who happened to arrive at ~he scene by accident. He has no vested interest and did not know ! either Mr. Rivnie or the grievor. We found him to be a very credible witness who showed no bias toward either Mr. Rivnie ; - or thel grievor. He did not hesitate to divulge the swearing ! ! and tauntinq by Mr. Rivnie and his attempt to take a swipe at the grievor after the break-up of tl:1e altercation Union counsel attempted to depict Mr Chard as witness who was not I credible on the basis of his "change of testimony" as to whether he observed any actual blows,. Mr. Chard testified that while he first wrote that he saw the grievor punching Mr. Rivnie, on reflection he realized that he had not seen any I actual blows, although he was still of the impression that ! there was an assault. The important point is that Mr Chard's change of testimony was not undertaken in the face of being \ i I ! exposed by contrary evidence He decided to qualify his statement on his own after reflection Thus at the criminal trial and before this Board, he test.ified that he could not honestly say that he had seen any actual blows. In our view - (~ ( -. ""{<.1\) " \. 16 that is very logical and reasonable conduct, and rather than ) impeach his credibility it goes to confirm Mr Chard's impartiality and objectivity as a witness. .- , Based on all of the evidence we find that the grievor did assault Mr Rivnie as alleged. We do not accept the grievor's story that he was the victim of an attempted assault by Mr Rivnie and that he was merely an innocent and scared victim ! attempting to protect himself. Much evidence was led about the criminal charges laid by Mr. Rivnie against the grievor and the grievor's counter- - charge laid against Mr Rivnie These charges were resolved without the court making any findings, on the basis of peace bondS entered into by both parties. In our view those criminal proceedings are of no significance except as it may relate to the consistency of the testimony given at the trial and at this proceeding by the various witnesses The union also proposed a theory that Mr Rivnie was attempting to bolster his chances of success in a civil suit he had subsequently launched against the grievor, by "winning" his case before this Board Even if we assume that a court of law will be influenced by the outcome of this arbitration, we cannot see how that possibilit~ can have any b,aring on our decision. Mr. Rivnie's criminal charges and civil action ) /'-' ( ,. l-:,_ ~. 17 followed his .ini,.tial complaint that the grievor had assaulted him. No matter what other proceedings may be ongoing or pending, the Board's mandate is to determine on the basis of " the evidence whether the allegations are substantiated. That ~s the Board's role whether or not there were other collateral proceedings on-going. The Board has to decide Mr. Rivnie's credibility, whether or not a civil-suit Wps pending. Having concluded that the assault took place as alleged, the Board must consider whether the 20 working day suspension imposed was a reasonable response. We have considered the approximately 13 years of seniority possessed by the grievor - and his discipline free record in that period However, militating against him is the fact that he had engaged in a very serious act of misconduct. violence in the workplace is I not to be tolerated. To make matters worse, the grievor refused to admit to any wrong-doing, but rather) painted a picture of absolute innocence. The grievor had previously been put on notice in a letter of counsel that the employer ! viewed physical altercations in the workplace seriously. A penalty which serves as a deterrent on the workforce generally and the grievor/specifically i,s warranted. In all of the circumstances we find that the level of discipline imposed falls within the reasonable range. Therefore, we are not prepared to disturb that. ./ I \."";: ~r' . ~,~ ~ -- ':r~t:'~ " \.! rt~J,n:{( , 18 For all of the above reasons this grievance is'dismissed. , ( Dated this 4th day of October, 1993 at Hamilton, ontario "- ~~~~ N. Dissanayake Chairperson ;' ~ ( ~homson "- mber r c j-- ~~5L' s . D Montrose Member I I