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HomeMy WebLinkAboutHolland 06-08-08 .1 copy In the Matter of an Arbitration BETWEEN Hurley Corporation ( the Employer) And Ontario Public Service Employees Union and it Local 241 ( the Union) Grievances of Colridge Holland ~ Arbitrator: Barry B. Fisher Appearing for the Employer: George Waggott Appearing for the Union: Mitch Bevan Hearing held in Hamilton on December 14,2005, May 10, 2006, May 25,2006, June 2, 2006 followed by written correspondence on June 16 and 23,2006 AWARD 2 The grievor worked as a Night Shift Cleaner at Mohawk College from January 2003 to October 20, 2006 . The subject matter of this arbitration involves three grievances, all involving the imposition of discipline by the Employer. March 14, 2005: Verbal Written Warning Article 23.02 of the Collective Agreement provides that" The Employer will supply uniforms, which must be worn at all times." The grievor was provided with his full uniform entitlement, which includes blue pants and a large sweater. On the night in question Dan Vartanian, Resident Manager of Mohawk for the Employer observed the grievor wearing street clothes while at work. He saw the grievor wearing a sweatshirt and baggy brown pants, neither of which were part of the uniform. Mr Vartanian was not cross examined on this point nor did the Union lead any evidence on this point. This grievance is therefore dismissed. October 17,2005 : Suspension This suspension of one day was for poor work performance. He had previously been disciplined on two earlier occasions for similar issues, namely July 26, 2005 when he received a Verbal Written Warning with respect to numerous complaints about his lack of proper cleaning and again on September 23,2005 he received a Written Warning for failing to carry our assigned cleaning duties. Neither of these warnings were grieved. The evidence leading up to this suspension was presented by Mr Vartanian . He testified that he had observed the area which the grievor was responsible for after the date of the last discipline ( September 23, 2005) and noted that the same problems persisted. Floors were not being swept or mopped, whiteboards were not being cleaned, and garbage cans were not being emptied. He testified that during this post September 23rd time frame he received approximately 12 complaints about the grievor's work. The grievor testified that during this period post September 23rd, he was told by his supervisor, Keith, that he was not doing a good job. The grievor testified that he had more work ever since Keith became his supervisor and that Keith was putting pressure on him I find that the Employer has proven their case so this grievance is dismissed. 3 October 20, 2005 : Termination The Employer alleged that the Grievor threatened Mr. Vartanian in a meeting on October 1 ih when he confronted Mr. Vartanian in an angry and loud voice and said" Do you want to step outside?". The Employer alleges that in the context of the meeting this was an invitation by the grievor to engage in a fight with his senior manager. It is axiomatic that the Employer has the burden of proof in proving that the Grievor made this threatening statement, therefore the credibility of the Employer's witnesses is critical. In essence, if the Employer's evidence is not credible, it matters little whether the Grievor's denial is necessarily credible. The only witness called by the Employer on this issue was Mr. Vartanian. His evidence seemed to be confusing and changing. Some examples will suffice to illustrate this point. 1) On the first day that he testified about this incident (May 10,2005) he said that there were five people present at the meeting when the threat was made; himself, the Grievor, John Edmond, Union Stewart, Nina Melli, Union President and Keith Brewster, Supervisor. However, when Mr Vartanian resumed his direct examination on October 25th, he now said that John Edmund was not present at the meeting but another Union Stewart, John Young was there. He confirmed that he believed that Nina Melli was present at this meeting. He also recounted a conversation with Ms Melli that he said took place directly after the meeting with the Grievor where he said that he and Ms Melli discussed how she was personally scared and intimidated by the Grievor. On cross-examination Mr. Vartanian said that he changed his testimony about Mr. Edmunds being present after reviewing the notes that he had taken at the time. He also admitted that his notes make no mention of Ms Melli being present at this meeting. He then admitted that Ms Melli may not have been present at the meeting where the Grievor is alleged to have uttered the threat to Mr. Vartanian, but he again confirmed that he definitely did speak to Ms Melli after the meeting. Then, in response to questions for clarification from the Arbitrator he said that there were in fact three stages of this meeting, with different people at different stages . He said that at this first part of the meeting, there was himself, the Grievor, John Edmunds, Nina Melli and Keith Brewster. He then said that they left the meeting room and went to look at a sample classroom that the Grievor was responsible for. Present at this time were the same five people as listed above. Then when they returned to the meeting room, (when the alleged threat was made) present in the room was himself, the Grievor, Mr Brewster and John Young. 4 Then upon continued cross examination, he admitted that he could be confusing who was present at the meeting where the threat was made with the termination meeting which took place three days later. The Union called Ms Melli who testified that she was not present at the meeting on the 1 ih , nor did she go on a tour of the Grievor's work, nor did she talk to Mr Vartanian that evening about the Grievor. She was present at the termination meeting on the 20th. Security was called at the end of that meeting on the 20th. She was not cross examined on these points The Union Called Mr Edmunds who also testified that he was not present at any stage of the October 1 ih meeting but he was present at the termination meeting of the 20th.. He was not cross-examined on this point. 2) In direct examination Mr Vartanian was adamant that he definitely called security at the October 1 ih meeting and that he saw security escort the Grievor out of the office. He indicated that he did this because he took the Grievor's comments seriously and had a real fear that the Grievor would physically harm him. By the time he was cross-examined he was not even sure if he had called security on the 17th. There was no mention in his notes that security had been called. The Employer did not call any security staff as witnesses. The Grievor's version of the 17th is that present at the meeting was himself, Mr. Vartanian, Mr. Brewster and Mr Young. He was told by Mr Vartanian that he was being suspended for one day due to poor work performance. He already knew this because Mr Brewster had told him this before the meeting. He denied that he had done a poor job and said that he was one their best cleaners . They went to examine a classroom, which was dirty, but the grievor pointed out that the room was dirty because he had just started his shift and had not cleaned it yet . When they all went back to the meeting room the Grievor tried to tell Mr Vartanian that it was unfair to judge him about a room that he had not yet cleaned but Mr Vartanian told him to sit down and shut up. He refused to sign the one day suspension notice. He went back to his work station after the meeting and completed his shift . He did not work the next day as he was serving his one day suspension . When he returned to work on the 20tt, he was fired. He denied making any comment to Mr Vartanian about taking it outside or anything like that. So here we have two dramatically different versions of events which was witnessed by four people ; Mr Vartanian, who testified , the Grievor , who testified, Mr Brewster, the Supervisor, who did not testify, and Mr Young, the Union Stewart, who did not testify. Neither party provided any rationale for the absence of these two key witnesses. Normally if I applied the adverse inference rule, the fact that neither side called a relevant witness on the same issue would cancel each other out and no inferences could be drawn either way. However, where one party has the clear onus of proof, I believe that it is entirely appropriate to apply the adverse inference rule against the party with the 5 onus who fails to call a critical witness. I therefore find that had Mr Brewster been called as a witness, that he would not have supported Mr Vartanian's version ofthe meeting. Therefore I find on the balance of probabilities, that the Employer has not discharged its onus of proof and therefore this discharge grievance is allowed. Remedy As a result of this award the Grievor's discipline record consists of two verbal written warnings, one written warning, and a one day suspension. In addition, an event occurred during the hearing which also has an effect on the appropriate remedy. Originally the Employer wanted to lead evidence about an allegation of sexual harassment brought by a female employee against the Grievor. I ruled on the first day that they could not rely on that ground for the discharge as according to their own testimony they had not even completed their investigation into the harassment at the time of the discharge, however it could be let in to provide a context to later events. The Employer then said that they would not rely on the sexual harassment issue as just cause, but if he were reinstated , they would continue the investigation . The Employer had a copy of the statement from the female complainant but was extremely reluctant to provide it to the Union because the complainant had expressed to the Employer the concern that she feared the Grievor. I therefore ordered that this statement was not to be copied and that the Union must retain possession of it at all times and that the Grievor was only to be given access, not a copy.. This order was made around 10:30 am on the morning of May 10. In fact the Union had this document in its possession since about 9:00 that morning when the Employer had first given it to them. Over the lunch break, Mr Bevan for the Union told Mr Waggott and I that he had actually given the document to the Grievor before my 10:30 order and that when he asked for it back after I sued my order the Gnevor had told him that he had given it to a "friend" and did not have a copy anymore. Once Mr Bevan told the Grievor that he had to return it, the Grievor then retrieved it and returned it after lunch on the same day. As there was a real and substantial risk that the Grievor had violated my "no copy" order, he was required to testify under oath as to what he did with the statement. When he testified that he gave it to a "friend" for a few hours, he was asked to identify the "friend". He steadfastly refused to do so. I then ordered him to identify the friend so that the Employer could determine whether or not the grievor's story was true. He refused to comply with my order. I then found that he had breached two orders: 1) He refused my order to answer the question as to the identity of his "friend." 2) In refusing to answer the question regarding the identity of this " friend" he frustrated the Employer from finding out if he had in fact breached my original , ~ 6 order by making and retaining a copy of the statement. Based on the Grievor's refusal to answer the question and the overall evasiveness of his answers to these questions, I found that the Grievor was not being truthful about the existence of this "friend" and in fact conclude that he himself copied and retained a copy of the statement, contrary to my express order. But for this breach of my order, I likely would have reinstated the grievor. However, by improperly copying and retaining this statement in his possession, he has created a situation of legitimate fear in the mind of the sexual harassment complainant, who is still an employee of the Employer and works at Mohawk College. He has also showed utter contempt for the arbitration process through his actions, which gives me little hope that he would return to work with the attitude necessary to have an ongoing relationship with this Employer. I therefore find that the employment relationship is no longer viable. I also take into account his short service and long discipline record. ill lieu of reinstatement, I order the Grievor to be compensated for lost wages and benefits, less any mitigation earnings from the date of discharge to the date ofthis award.. Dated at Toronto this August 8, 2006 / er, Arbitrator