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HomeMy WebLinkAbout2015-2798.Paterson.18-12-18 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2015-2798 UNION# 080-15-BFF IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union – Local 1587 (Paterson) Union - and - The Crown in Right of Ontario (Metrolinx – GO Transit) Employer BEFORE Mary Lou Tims Arbitrator FOR THE UNION Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING DATES September 14, 2016; May 3, 19, 23, June 29, July 5, 13, 2017; January 25, 26, March 23, April 18, 25, 27, May 2, 9, 10, June 14 and 26, 2018 - 2 - DECISION INTRODUCTION [1] The grievance before me, dated October 19, 2015, alleges unjust discharge. [2] There were no objections regarding my jurisdiction or the arbitrability of the grievance. [3] After some initial dispute between the parties as to the grounds upon which Metrolinx (“the Employer”) can rely in support of discharge, Counsel agreed that it can rely upon, but is restricted to, the allegations set out in an investigation report dated September 16, 2015 together with appendices (“the investigation report”), and in a September 24, 2015 discharge letter (“the discharge letter”). [4] I quote as follows from the discharge letter: • [I]t was alleged you made a threat of violence and discriminatory comments on July 27, 2015 against a fellow co-worker. It was alleged that you spoke words similar to: . . . why can’t you guys fucken makeup your mind and pick 1 choice. You fucken guys are fucking it up for everyone. . . . I’m going to fuck you up. . . . fuck you you fucken clown; [sic] and . . . fuck you, you fucken paki Arab slum, you fucken stinky ass paki, you guys live in small fucken cockroach apartments you fuckin Paki you want your 20 bucks come here and get it so I can fucken punch you in your mouth. [sic] • After the incident in July you spoke words similar to in reference to the complainant . . . sand niggers come in this country, fuck it up for hard working people like us, fucken Arabs, fuck it up for us. . . . [sic] • It was also alleged that on November 16, 2014, you pushed your co- worker and then stuck your finger in his face after being asked for an autograph from your cousin and spoke words similar to: Why do you keep asking me the same shit. I was a boxer and I will knock your ass out. • Another incident with another co-worker where you spoke words similar to “I got friends, all I got to do is make a call and break his legs” after being asked to clean up after yourself. [sic] - 3 - • Getting upset and punch and kicks the GO buses [sic] [5] I also quote as follows additional allegations included in the investigation report: • Mr. Paterson once had a confrontation with another employee when, after being asked not to smoke in the service truck, he jumped up and said “who the f****** hell do you think you are talking to me like that? You don’t own this truck;” employees intervened to prevent an expected physical altercation. [sic] • (W)e have available photographs of a double decker bus that Mr. Paterson punched and damaged. • Hits DDL bus, I was on the lower part, he was on top, heard a few choice works, and bang, he put a whole in the top. [sic] • I was in the lunch room cleaning, he was sitting watching hockey with his feet on the chair, asked for him to take his feet off the chair, he snapped, said f**k you, don’t f**k with me. I moved the chair with his feet on it, he snapped but realized a Supervisor was behind him and he stopped. [sic] • Told me he has a criminal record for assult [sic] of a taxi driver [sic] • Seen him smoking on the service line [sic] • Got angry and punched the key pad, cause damage [sic] • He brags he’s a boxer, tries to intimidate me [sic] • He walks throught [sic] the shop yelling and screaming for no reason . . . [6] The Employer’s position is that the grievor engaged in serious misconduct, and in particular, threatened physical violence, assaulted a co-worker, hurled racist epithets and made racist remarks, mistreated and damaged Employer property and generally conducted himself in a “volatile and threatening manner which caused trepidation and created a climate of discomfort and fear in the workplace.” The Employer asserted in the discharge letter that any of the alleged misconduct referenced therein constitutes just cause for discharge. It argued here that discharge is justified on the basis of any element of the alleged misconduct referenced in either the discharge letter or the investigation report, and is overwhelmingly supported when the alleged misconduct is viewed as a whole. - 4 - [7] The Union stated that there are a number of competing and often irreconcilable versions of the relevant events offered by witnesses, and that the grievor strenuously denies the allegations against him. In its submission, the Employer “believed the wrong people,” reached conclusions not supported by the evidence, and fails to satisfy the onus of proof that it bears in these proceedings. In the event that I should conclude that any of the alleged misconduct is proven, Counsel suggested that there is a range in the seriousness of that alleged, and that the appropriateness of penalty is to be determined in light of specific findings. The Union does not minimize the seriousness of proven violence or racist language in the workplace. It takes the position, however, that even if I should find such allegations proven, I should exercise my remedial discretion under the Labour Relations Act, 1995 to modify penalty. OUTLINE OF DECISION [8] The evidence before me was lengthy, occupying the better part of some fifteen days of hearing. While it is not all referenced herein, I have considered all that was properly before me. It is the Employer that bears the onus of proof in these proceedings, and the Union left no stone unturned in holding the Employer to the strict proof of each element of its case. I heard and have considered very detailed evidence and argument. In reaching my conclusion that the grievance must be denied, I consider it appropriate to also comment in some detail on matters that the parties have so carefully addressed. [9] I set out the following to assist in navigating this Decision: THE EVIDENCE: I – Background – p. 5 II – Fall of 2014 - Pre-November 16, 2014 A/ The Alleged First Aid Room Incident – p. 7 B/ The Alleged Marijuana Incident - p. 12 III – The November 16, 2014 Incident - p. 13 IV – Fall of 2014 – July 2015 A/ The Aftermath to November 16, 2014 – p. 18 B/ Telephone Communications – p. 19 C/ Alleged Discussion re Convenience Store Encounter – p. 22 D/ Alleged Discussion about Insurance Fraud – p. 23 - 5 - E/ July 1, 2015 Niagara Falls – p. 23 F/ July 2015 – p. 24 V – The July 27, 2015 Incident – p. 24 VI – The Immediate Aftermath to July 27, 2015 – p. 30 VII - Raja’s Complaint – p. 33 VIII -The Initial Investigation – p. 36 IX - Testimony of Employer Witnesses – p. 41 X - The Coffee Truck – p. 50 XI – August 26, 2015 Interview with Grievor – p. 51 XII – The Grievor’s August 28, 2015 Letter – p. 52 XIII – September 3, 2015 Interview with Grievor – p. 53 XIV - Further Investigation – p. 56 XV – The Grievor’s Further Testimony – p. 58 XVI – Investigation Report and Discharge – p. 61 XVII – Post-Discharge – p. 62 SUMMARY OF SUBMISSIONS – p. 63 CONCLUSIONS – p. 73 THE EVIDENCE I – BACKGROUND [10] In July 2015, the Employer received a complaint from a bargaining unit employee, Mr. Shueyb Raja, alleging November 2014 and July 2015 misconduct on the grievor’s part. Ms. Nazia Rahim, Senior Employee Relations Consultant, was assigned to investigate Mr. Raja’s complaint, and in doing so, interviewed a number of bargaining unit employees including Mr. Raja (then a Service Person II, also referred to as a “Fueler”), the grievor (then a Service Person II), Mr. Todd Nesbitt (Plant Service Person I), Mr. Gary Broad (Coach Technician), and Mr. Vince Rochford (Service Person II). Ms. Rahim gave evidence with respect to the Employer’s investigation and decision to discharge the grievor, and Messrs. Raja, Nesbitt, Broad and Rochford also testified for the Employer, under summons. The Union called as witnesses the grievor and his brother, Mr. Andrew Paterson, a Bus Operator also employed by Metrolinx. - 6 - [11] Given the timeframe associated with certain allegations in issue here, the Union reserved its right at the outset of the proceedings to assert undue delay in the imposition of discipline. It explored through the evidence when the Employer became aware of or ought to have become aware of such allegations. While the Union argued that the timing of certain reports of alleged misconduct is significant, it did not in the circumstances assert excessive delay in the imposition of discipline. [12] At all relevant times, Messrs. Nesbitt, Broad and Rochford, and the grievor worked in the Employer’s Oshawa garage, where the events upon which the Employer relies allegedly took place. The parties stipulated that this facility first opened in December 2012. A number of witnesses, including the grievor, described a generally positive work environment in Oshawa, and shared Mr. Broad’s view that “everyone tended to get along.” The grievor described “very pleasant” working relationships, and that he was “friendly” with “everyone” in the workplace. [13] Mr. Raja has been employed by Metrolinx since 2009. He became a Service Person II in 2013. Lincolnville was his home base in that position until September 2015, at which time he moved to Oshawa. He became a Bus Operator in 2016, and continued to hold such position as of the time that he gave evidence in these proceedings. Although Lincolnville was Mr. Raja’s home base as a Service Person II prior to September 2015, he worked overtime shifts on the Oshawa fuel line, usually on Sundays from 8 p.m. – 4 a.m.. He and the grievor generally worked alone together at such times. Mr. Raja testified that the frequency with which he worked overtime in Oshawa varied over time, although he believed he generally did so approximately once per month. He agreed in cross-examination that it “could be in the ballpark” to say that he worked approximately ten Sunday overtime shifts in Oshawa between November 2014 and July 2015. [14] The grievor was 45 years old as of the time that he gave evidence in these proceedings. He commenced temporary employment with Metrolinx in October 2011, and permanent employment in January 2012. He started work in the Oshawa garage as a Service Person II shortly after that facility opened. The grievor worked from 8 p.m. – 4 a.m. in 2014, and from 6 p.m. – 2 a.m. in 2015. [15] The general nature of the Fueler’s duties is not contentious. Mr. Raja described that a Fueler picks up a bus from the area of the facility referred to as the “barn,” drives - 7 - it to the fuel line, fuels it, checks oil and coolant, picks up garbage, mops and sanitizes it, and then, if there are mechanical issues, drives it to the Sign-In Mechanic for attention. [16] Mr. Raja testified that he and the grievor met in early 2013 at a point when Raja was a Plant Service Person, also referred to as a Cleaner, and the grievor a Service Person. Mr. Raja recalled that he and the grievor initially simply said hello to each other when Raja passed by the fuel line to empty garbage bins. [17] Both the grievor and Mr. Raja described that a workplace friendship developed between them over the course of Raja’s overtime shifts on the Oshawa fuel line as a Fueler. The grievor testified that he and Mr. Raja came to have a “very friendly” relationship in 2014 and 2015, that they shared food, took breaks together, played Pro- Line together and enjoyed betting on sports. He described that they had “many conversations,” and were “good friends in the workplace.” Mr. Raja recalled that he and the grievor discussed lottery numbers, and “started to get close.” [18] The Employer’s Workplace Violence Prevention Policy issued in 2005 was entered in evidence. It states in part that “violent, threatening, intimidating, harassing or other disruptive behaviour” is prohibited. [19] The Employer’s Workplace Harassment and Discrimination Prevention Policy issued in 2006 was also entered in evidence. The policy states in part that “Metrolinx considers workplace harassment and discrimination unacceptable and will not tolerate such behaviour.” [20] The grievor’s written acknowledgement of receipt of those policies around the time of hire was entered in evidence, and he confirmed when interviewed by the Employer in September 2015 that he “absolutely” understood that workplace violence, threats of violence, harassment and discrimination are unacceptable. II - FALL OF 2014 – PRE-NOVEMBER 16, 2014 [21] Both Mr. Raja and the grievor suggested that something they viewed as significant took place in the Fall of 2014. They offered very different accounts of what that was, and each disputed the version of events described by the other. A/ The ALLEGED FIRST AID ROOM INCIDENT [22] The alleged First Aid Room incident is not included within the grounds for discharge upon which the Employer can rely. Mr. Raja gave evidence of an alleged - 8 - incident on the Oshawa fuel line one evening (“the alleged First Aid Room incident”) and of related conversations with the grievor’s brother, Mr. Andrew Paterson. His “best memory” was that the alleged First Aid Room incident took place “a couple of months” before November 16, 2014. While Mr. Raja’s evidence as to what took place that night was disputed, his recollection as to timing was unchallenged in cross-examination or by the grievor. [23] Mr. Raja’s evidence was that he reported to work for a Sunday night shift in Oshawa commencing at 8 p.m.. The grievor’s shift had already started, and Mr. Raja testified that the grievor told him upon his arrival that he had partied the night before, had a headache, and was going to take a nap in the First Aid Room. According to Mr. Raja, the grievor asked him not to tell anyone of his whereabouts, and Mr. Raja agreed that he would not do so. [24] Mr. Raja testified that about an hour later, he went to “the barn,” to get a bus. He recalled that he there encountered Mr. Andrew Paterson driving a bus into the barn. According to Mr. Raja, the grievor’s brother opened his bus door and asked where the grievor was. He testified that Andrew Paterson had “snacks” or “treats” for his brother, noting that he carried a “small snack bag.” Despite his alleged promise to the grievor to say nothing of his whereabouts, Mr. Raja’s evidence was that he thought it was nonetheless appropriate to tell the grievor’s brother where he could be found and did so. [25] Mr. Raja testified that he then “grabbed the bus” and carried on with his duties. He testified that the grievor returned to the fuel line “furious,” screaming and yelling, and asking Raja why he told his brother that he was in the First Aid Room. He claimed that the grievor swore at him and told him that he was a “piece of shit.” He described that the grievor, wearing steel toed boots, kicked over a mop bucket, spilling chemicals and soap on the floor, and punched a bus. Raja acknowledged in cross-examination that the grievor did not touch him or threaten to touch him at the time, but testified that he was “shocked” and “terrified” by his alleged outburst. [26] Mr. Raja testified that he again saw Andrew Paterson within days of the alleged First Aid Room incident. He described Andrew Paterson as a very well respected “role model employee,” and gave evidence that he asked him what he had said to his brother on the night in issue. According to Mr. Raja, Andrew Paterson inquired why he asked, and that he thus described what he alleged took place on the fuel line on the night in - 9 - question. Mr. Raja’s evidence was that Andrew Paterson told him not to worry about his brother, and that his “exact words” were that his brother was a “fucking idiot” and that he should “just ignore him.” Raja further testified that Andrew Paterson advised him to tell him if he had problems with his brother or if his brother gave him a hard time. [27] Raja’s evidence was that it gave him “some assurance” that he spoke to the grievor’s brother, that he respected what he claimed Andrew Paterson said to him, and did not report the alleged interaction with the grievor on the fuel line to the Employer. [28] The Union put to Mr. Raja in cross- examination that Andrew Paterson would deny his version of events. Raja suggested that it was of “no benefit” to him to lie about this, and that Andrew Paterson was simply “wrong” if he denied making the comments Raja attributed to him. He testified that the grievor previously mentioned that he had assaulted or punched his brother in a bar, and he wondered if Andrew Paterson was afraid of the grievor. [29] The Union put to Raja that Andrew Paterson would say that he encountered Raja driving a bus in the barn area. In what seemed to be a rather confused exchange, Raja gave evidence that this was not what he recalled, and that it would not have “made sense” for Andrew Paterson to be driving his bus around in circles looking for his brother. [30] Mr. Raja was asked in cross-examination about an alleged encounter with Andrew Paterson on September 14, 2015. While Raja was unable to recall a specific date, he readily accepted that he may well have seen Andrew Paterson and made eye contact at that time, and that it was entirely possible that he also smiled and waved at him. He explained that he had no issue with Andrew Paterson. [31] Other than the alleged contacts with Mr. Andrew Paterson described in his evidence, Mr. Raja had no recollection of further contact with him beyond saying “hello” in passing. [32] Mr. Raja acknowledged in cross-examination that he became aware at some later point that Andrew Paterson was “going around” with a petition “to get the grievor reinstated.” He testified that he contacted Ms. Rahim in Human Resources at such time, and advised that this placed him in an awkward position with other drivers. [33] The grievor too recalled an evening at work when he rested in the “Dark Room” while on break because he had a headache. Although he did not take issue with Mr. - 10 - Raja’s recollection as to when that may have taken place, he offered a fundamentally different account of what transpired. The grievor testified that it was common for his brother Andrew to look for him in the workplace to say “hi” when he finished his shift and was enroute home. He recalled that his brother visited him in the Dark Room that evening, but that he had no food for him. The grievor’s evidence was that he then returned to his duties on the fuel line, where he and Raja were working alone together. He denied that there were any “issues” or “aggression” at that time, and described that they both simply carried on with their work. He denied kicking the mop bucket and gave evidence that he had surgery on one of his feet in or around the Spring of 2013. [34] Mr. Andrew Paterson, the grievor’s brother, also gave evidence regarding his interactions with his brother and Raja at and around the time in question. He testified that he had very little contact with Mr. Raja in the workplace. He recalled that his brother introduced them shortly after the Oshawa facility first opened, and that he recalled no further conversation with Mr. Raja, beyond saying “hello” in passing. [35] Andrew Paterson nonetheless then testified that he did in fact recall speaking with Mr. Raja on one occasion. He initially thought that this may have taken place in August 2014. After consulting a personal calendar on which he recorded his overtime hours, however, he gave evidence that the encounter took place on November 23, 2014, between 8 and 9 p.m.. [36] Andrew Paterson’s evidence was that he noticed a bus leaving the garage at that time as he returned his bus to the facility. He thought it might be his brother driving the other bus, and therefore stopped his vehicle, opened his window, and waited for the other bus to approach. He then realized that it was in fact Mr. Raja operating that bus. He recalled that Mr. Raja stopped his bus and got out, asked if he was the grievor’s brother, and told him that if he was looking for the grievor, he would find him in the First Aid Room. [37] Andrew Paterson recalled then visiting his brother in what he referred to as the “Quiet Room.” He testified that his brother told him that he was not feeling well and that he was on break. Andrew Paterson denied that he had snacks for his brother, or that he told Mr. Raja otherwise. He recalled that he was carrying his equipment bag and his lunch bag at the time. - 11 - [38] Beyond that alleged November 23, 2014 exchange, Andrew Paterson could recall no further contact with Mr. Raja other than saying hello in passing. He acknowledged the difficulty in recalling in 2018 every verbal exchange in 2014. When cross-examined as to whether it was “not impossible” that he had another exchange with Mr. Raja in 2014, he agreed that it was “possible,” but that he did not recall any such further interaction. Andrew Paterson denied, however, that he ever told Mr. Raja that his brother is a “fucking idiot” or that he told him on the evening of the alleged First Aid Room incident to come and see him if he had a problem with his brother. When asked if he ever made such statement to Mr. Raja, his response was that he did not recall a conversation with him other than saying hello in passing. [39] Mr. Andrew Paterson gave evidence as well of an encounter with Mr. Raja in September 2015, after his brother had been suspended pending investigation of the matters in issue in these proceedings. Andrew Paterson testified that he understood even as of the time of his testimony that the “whole investigation” pertained to only Raja and his brother. He recalled making eye contact with Mr. Raja through a window in the Oshawa facility, and Mr. Raja “waving enthusiastically” and smiling. He considered this “odd,” noting that he and Raja had only said “hello” in the past. Andrew Paterson completed and submitted to the Employer a Notification Report dated September 16, 2015. He reported therein that Mr. Raja had “arrogantly smiled and waved” and that this offended him. Andrew Paterson testified that he hoped that he would be interviewed by Mr. John Hand, then Manager, Fleets and Facilities East, as he wanted to “demonstrate” Mr. Raja’s “character”, and how “pleased he [Raja] was” with respect to “how things were going,” with a “sense of arrogance.” He agreed in cross-examination that Mr. Raja’s smile and wave “could mean different things.” [40] Andrew Paterson also gave evidence regarding a petition dated January 19, 2016, indicating that bus operators who signed it “would like to see” the grievor “back at work.” While the Employer objected that such post-grievance evidence was irrelevant and inadmissible, Counsel was content that I hear the evidence subject to such objection and reserve my ruling. Andrew Paterson testified that after his brother’s termination was “announced,” he heard from other drivers about the “little things” that his brother used to do for them, and that one of the drivers suggested a petition. Andrew Paterson acknowledged that a petition may not “mean anything” if it came from - 12 - him, and that it was initially prepared by another driver. As that driver was heading off on vacation, however, it was Andrew Paterson who then “generated signatures” from drivers. [41] Andrew Paterson acknowledged in cross-examination that he wanted to help and support his brother and that his brother, the grievor, thought he could be helpful. B/ THE ALLEGED MARIJUANA INCIDENT [42] During the Employer’s 2015 investigation, the grievor suggested what might have motivated Raja and other bargaining unit co-workers to fabricate allegations against him. One such theory advanced by the grievor and pursued by the Union in these proceedings was that Raja may have been motivated to lie after the grievor allegedly encountered him rolling a marijuana joint at work. Union Counsel stated that the evidence would demonstrate that Raja was henceforth paranoid that the grievor might disclose his alleged wrongdoing. [43] The Union put to Raja in cross-examination that the grievor found him rolling a joint at work, and Raja denied smoking marijuana anywhere, including at work. To the extent that the grievor asserts otherwise, Raja testified that such allegation is a “total lie.” The grievor gave evidence contradicting Raja, and alleging his involvement with marijuana in the workplace and to some extent beyond. There was no objection that the collateral fact rule precluded the Union from adducing such evidence, presumably given the Union’s assertion that it demonstrated motive for Raja to lie. [44] The grievor described an alleged encounter with Mr. Raja that he believed took place three to four weeks before November 16, 2014. He gave evidence that such alleged encounter was in itself preceded by a noticeable “behaviour change” in Raja over an unspecified period of time. He recalled that Raja began heading to his vehicle late in the evening and returning with the “distinctive” scent of marijuana on him. The grievor testified that Mr. Raja “denied this.” [45] The grievor testified that it then all “made sense” one “winter night” when he noticed Mr. Raja in his vehicle in the parking lot as he headed to his own vehicle to go for coffee. He testified that he wandered over to Mr. Raja’s vehicle and tapped on his window. He suggested that “what happened next, confirmed what happens between Raja and me.” - 13 - [46] The grievor’s evidence was that Mr. Raja was startled when he tapped on his car window. He explained that it was “freezing” and “snow was blocking” car windows. He testified, however, that he nonetheless observed Raja holding papers on his lap, marijuana in his left hand and scissors in his right hand, and that it appeared to him that Raja was in the process of cutting marijuana onto the papers. During his testimony in chief, the grievor demonstrated that Raja jumped and threw in an “over the shoulder motion” that which he had been holding. In cross-examination, he demonstrated somewhat differently that Raja tossed what he had been holding to his right, toward the passenger seat of his vehicle. The grievor’s evidence was that there was henceforth “no way around this” for Raja. [47] The grievor testified that he and Raja “decided” that the alleged incident “should be kept between” them, and that he did not report Raja to the Employer because he was a “good friend” and because “Union brothers support each other.” The grievor described that he and Raja were thereafter “content” with each other and that Raja “chose to be light” with him, but that there was “always that cloud over us.” III – THE NOVEMBER 16, 2014 INCIDENT [48] There is no dispute that there was an encounter of sorts between Mr. Raja and the grievor on the fuel line in Oshawa, although they offered very different accounts of what it involved, what precipitated it, and what followed. While Mr. Raja resisted the suggestion that what took place was a “back and forth argument” between them, the grievor characterized the incident that evening as the first of two arguments that he had with Raja. [49] Raja gave evidence that the alleged events unfolded on November 16, 2014 at approximately 8 p.m., and the grievor took no issue with Raja’s recollection of time and date. [50] In cross-examination, Mr. Raja was asked how he was able to recall the exact date of the alleged incident. He explained that he “scribbled” on a piece of paper at the time the date, time, and “some of the details.” His evidence was that he recorded that the grievor shoved him, put a dirty glove on his forehead, and “cursed” at him. He testified that he never provided the note to Ms. Rahim nor told her about it. He recalled that he disposed of the note either when he left the Service Person job in 2016 or when - 14 - he transferred from Lincolnville to Oshawa in the Fall of 2015 and cleaned out his locker. [51] Mr. Raja described that there was a period of silence between the grievor and him after the alleged First Aid Room incident. He variously recalled that this lasted for a few weeks, for a “minimum of a week,” or for at least a few days. Raja’s evidence, however, was that after some period of silence, the grievor approached him one evening and suggested that they “forget the past.” According to Raja, the grievor explained that his brother “looked down” on him, and thought he was like a former Metrolinx employee who Raja understood had been fired. Raja testified that he and the grievor “started having a relationship” once again, and that their relationship was restored to where it had been prior to the alleged First Aid Room incident within about a month. His evidence was that they then resumed having lunch together, playing Pick 4 lottery, betting on sports, and talking on the phone. [52] The grievor described that there was as of November 16, 2014 “discomfort” between Raja and him which he attributed to their alleged encounter in the parking lot a few weeks earlier, when he allegedly found Raja with marijuana in his vehicle. He suggested that Raja was “very secretive and concerned” as he did not want his alleged drug habit to be “exposed.” [53] The grievor and Raja both recalled that their November 16, 2014 encounter took place while Raja was standing at the back of a bus on the fuel line. Raja testified that he was checking oil at the time, and that when he and the grievor spoke, he stood with the bus behind him, the engine compartment doors to his sides, and the grievor in front. The grievor testified that he stood to the front of Raja, but off to one side. [54] There are two lanes on the fuel line in the Oshawa facility. There is no dispute that on the evening in question, a third employee, Marco Kao, was working with the grievor and Raja. Raja recalled that Kao was servicing a bus in the next lane, and that the grievor was wandering in and out of the area checking on Kao’s progress as he was waiting to service the next bus. The Union noted in opening statements its understanding that Mr. Kao had “at least a sense of what was going on,” and commented on the evidence that it expected Mr. Kao to give in these proceedings. - 15 - [55] There is no dispute that the grievor has a cousin who plays in the NHL. Raja gave evidence that he asked the grievor that night to get him a hat autographed by his cousin. I note the following exchange in cross-examination: Q/ The grievor said you had asked him about this before? A/ Yes. Q/ Had you? A/ Yes. . . . Q/ Why ask him again? A/ To remind him. Q/ The grievor was frustrated that you were asking him again? A/ Yes. Q/ Because you had asked him before and he said yes before? A/ Yes – asked before and grievor said yes before. [56] In cross-examination, the grievor “absolutely” denied that Raja asked him for an autograph from his cousin that night. [57] The Union put to Mr. Raja in cross-examination that both the grievor and Mr. Kao would testify that the “argument” on the night in question was about work tasks – and more specifically about who had to clean what was descriptively referred to in these proceedings as two “puker buses.” It was also put to Raja that Kao would say that he “saw an argument back and forth,” but saw “nobody push anybody.” Raja accepted that there were “puker buses” to be cleaned on the night in question, but denied that his encounter with the grievor had anything to do with such task. Given the relative positioning of the buses being serviced on the fuel line at the time, Raja expressed doubt that Kao would have seen what took place. He acknowledged, however, that his “focus” was not on Kao at the time, and that he could not be certain in this regard. [58] As it turned out, Mr. Kao did not testify in these proceedings. Further, although the grievor communicated to the Employer in 2015 that Kao witnessed the events in - 16 - question, he testified in cross-examination that Kao could not see Raja and him during their alleged “argument.” [59] The grievor, like Raja, recalled that there were “puker” buses to be cleaned that night. He did not, however, suggest that this was what gave rise to his “argument” with Raja. The grievor accepted responsibility for that alleged “argument.” He explained that he was frustrated that Raja repeatedly sought reassurance during each phone conversation and at the beginning of each shift that his alleged drug habit had not been revealed to others. While Raja gave evidence that he generally worked approximately once per month in Oshawa, there was no evidence before me as to how often he in fact worked there between November 16, 2014 and the alleged marijuana encounter three to four weeks earlier. [60] Mr. Raja’s evidence was that after asking the grievor for an autographed hat, the grievor approached him as he stood behind the bus in the configuration described above. He testified that the grievor held a cigarette with one hand, and pushed him with the other, although he volunteered in examination in chief that the alleged one-handed push was “not that hard,” and that he did not “fall back.” He testified that the grievor asked, “Why do you keep asking me the same shit?” Raja recalled that the grievor wore work gloves at the time, worn while servicing buses and picking up garbage. He testified that the grievor put a dirty glove or “hit his finger” “on” his “forehead” and said words to the effect, “I used to be a boxer. I will knock your ass out.” When asked in cross-examination to clarify whether the grievor put his finger “in” or “on” his face, Mr. Raja testified that he put his finger “on” his “forehead.” In further cross-examination, Raja’s evidence was that although the grievor stated “numerous times” that he was a boxer, he could not in fact recall if he said so on November 16, 2014. Mr. Raja testified as well that he told the grievor to “get out of my personal space” or to “please get out of my personal space,” and that these were in fact his “exact words,” but that the grievor “kept coming closer.” Raja gave further evidence that with the bus behind him, the doors open to his right and left, and the grievor in front of him, he was “trapped” or “basically trapped” and felt scared. [61] Mr. Raja gave evidence that he nonetheless “squeezed by” the grievor and said he was going to the Supervisor. His evidence was that the grievor ran behind him, - 17 - begged him not to report what happened, and apologized. He recalled that the grievor referred in part to his “past criminal history” and said he could lose his job. [62] Mr. Raja testified that he felt sympathy for the grievor when he heard his apologies. He explained that because they were “Union brothers,” and because he had a young baby at home and was tired, he did not want to go to the Supervisor. He further testified that he was aware that the November 2014 incident had not been witnessed and that he understood that the grievor had a family connection with someone in management. He stated that he wanted to keep his job and to continue making extra money working overtime shifts in Oshawa, and did not want “trouble.” He chose not to take the matter further. [63] Mr. Vince Rochford gave evidence in these proceedings, without objection, that he was approached by both the grievor and Raja at some unspecified time prior to late July 2015 about two alleged prior conflicts between them. Rochford could not recall the alleged timing of such prior conflicts. He remembered that Raja described what Rochford understood to be the second of the two alleged prior conflicts, and told him at such unspecified time that the grievor “pushed” his finger “in” Raja’s face while wearing a work glove. [64] The grievor offered a very different account of what took place on the evening in question in November 2014. He asserted that he simply told Raja that he did not “appreciate” being asked the same question “week after week,” given Raja’s paranoia that his alleged marijuana use would be disclosed. The grievor recalled that Raja asked if he had told any other “Union member” of the alleged marijuana incident in the parking lot, and testified that Raja was afraid that he had informed their Supervisor of such encounter. The grievor’s evidence was that “nothing physical” or “aggressive” took place at the time, and that there was no “racial slander” or threats. The grievor denied saying that he had been a boxer, and testified that he was never a boxer. While he acknowledged that Raja was standing with his back to the bus in between the engine compartment doors, he denied “trapping” him or blocking his exit from the area. He denied putting a finger in or on his face, and asserted that there was nothing more than a verbal disagreement related to Mr. Raja’s alleged marijuana use. According to the grievor, they both “said things back and forth” for thirty seconds, and then, the grievor - 18 - returned to work, and Mr. Raja went to the lunch room. The grievor denied that he chased Mr. Raja as he left the fuel line, asked for forgiveness, or apologized. [65] The grievor was questioned in chief about his alleged criminal background referenced by Mr. Raja. He testified that he confided in Mr. Rochford after he got himself into “a situation” connected with his attendance at a January 2012 retirement party. He testified that he smoked in a cab and got into an argument with the cab driver, who then alleged that he “grabbed his sleeve.” His evidence was that after confiding in Mr. Rochford about the “cab driver situation and criminal charges,” this was then “twisted and exaggerated” into allegations that he punched the cab driver in the face. The grievor testified that the “assault charge was dropped,” and that he was “accused” of but not “charged with assault.” His evidence was that he never discussed this incident or criminal charges with anyone at work other than Rochford. IV - FALL 2014 – JULY 2015 A/ THE AFTERMATH TO NOVEMBER 16, 2014 [66] Mr. Raja agreed in cross-examination that he viewed the November 2014 encounter with the grievor as “significant” and that it soured their relationship and left him “afraid.” He initially testified in examination in chief and repeated in cross- examination that he and the grievor did not communicate with each other for a “few” or “possibly” two weeks after the November 2014 incident, and that it was only after approximately three weeks that they once again “started to talk.” He gave evidence that there was then “huge improvement,” and that they resumed speaking “frequently.” [67] The grievor testified that the November 2014 argument “blew over” quickly. His evidence was that within twenty minutes of their encounter on the fuel line that night, he and Raja were “back to who we were, pleased to be working together.” The grievor testified that he and Raja were “good friends in the workplace” in 2014 and 2015, that they “joked around,” and shared food and conversation. He gave evidence that they spoke on the phone with each other once or twice each week, and that this was the unchanged pattern throughout 2014 and 2015. He confirmed that he and Raja were “very friendly,” that the “smoke cleared,” and that “everything was fine” after the November 2014 incident. - 19 - B/ TELEPHONE COMMUNICATIONS [68] Mr. Raja was cross-examined with respect to telephone communications with the grievor, particularly during the period following the November 16, 2014 fuel line encounter. The Union put to Raja that he and the grievor talked on the phone weekly in the period following their November 2014 fuel line encounter. Although Raja stated that he “did not check times,” he gave clear and seemingly unequivocal evidence that they spoke only monthly, or once or twice monthly, both before November 2014 and after what he initially described as a period of silence following November 16, 2014. He was clear that this was so right up until July 2015. Mr. Raja acknowledged in cross- examination that they “would sometimes talk for a while.” He adamantly disputed, however, that their calls generally lasted longer than four to five minutes before or after November 2014, or that they ever lasted longer than six to seven minutes. Raja further testified that although he and the grievor talked on the phone “all the time” by December 2014, he recalled that there were nonetheless “many months” during which they did not talk at all, and some periods in which they spoke on the phone frequently. [69] A May 25, 2017 Consent Order was issued in these proceedings, directing the grievor’s phone provider, Bell Mobility, to produce to the Union “a full account of the incoming call detail records” associated with the phone used by the grievor during the period from November 2014 to July 2015. Upon the reconvening of the hearing, the Union sought to question Mr. Raja with respect to the unproven Bell record which both Counsel acknowledged appeared on its face to be somewhat deficient. The Employer sought and obtained the Union’s undertaking that it would subpoena a representative from Bell to authenticate such document if it sought to rely on it as proof that the calls recorded therein took place. The Bell record was admitted in evidence accordingly, subject to proof, and the Union questioned Mr. Raja with respect to entries recorded therein. [70] The Union also sought an Order directing that Fido, Raja’s phone carrier, produce records associated with Raja’s phone for the relevant period. After hearing the submissions of Counsel, an Order dated September 20, 2017 was issued directing Fido to produce “a full account of the incoming and outgoing calls” between Mr. Raja’s and the grievor’s phones for the period from November 16, 2014 to July 27, 2015. - 20 - [71] When the hearing was next convened, Counsel advised that the parties had not been able to obtain from Fido the records contemplated by the September 2017 Order. They further advised, however, and I heard evidence in this regard from Mr. Raja, that Mr. Raja took steps which included making “multiple calls,” to obtain from Fido the records sought by the Union, and that he then forwarded them to the Employer. [72] Employer Counsel advised at the reconvened hearing that the records obtained by Raja and produced to the Union showed all outgoing calls during the relevant period from Raja to the grievor, as well as all incoming calls to Raja’s phone for the period from 8 p.m. July 26, 2015 to 5 p.m. July 27, 2015, with the source of such incoming calls not identified. [73] The Fido records were put to Mr. Raja in continued cross-examination. Although he accepted that every entry in the Fido records reflected a call that was in fact made, he did not profess to have a specific recall of each and every call noted. The Union sought to admit the Fido records in evidence. The Employer voiced no objection to doing so, and did not take the position that the records were admitted subject to proof by a Fido representative. The records were entered in evidence at that time. [74] During the May 9, 2018 hearing, and prior to the Union calling evidence, Counsel advised that the Union no longer anticipated calling a representative of Bell to authenticate the Bell records. He acknowledged that the Union had undertaken to do so if it sought to rely upon the Bell record as proof that the calls recorded therein took place, and that it would not be open to it to rely upon the Bell record therefore. Union Counsel noted at that time that Raja had been cross-examined on entries in that record. He stated that while the Union would not be able to rely upon the Bell record in the circumstances, it would “cross-reference” Raja’s evidence on entries therein with the same entries found in the Fido record that was “in evidence.” [75] The Union sought in final argument to rely upon the Fido records as an accurate portrayal of calls made by Raja to the grievor during the relevant time period. Whether it could do so proved contentious at that time. While I shall comment on the parties’ positions later in this Decision, I note at this time that the Fido records appear on their face to reflect the following: Mr. Raja initiated 88 calls to the grievor between November 16, 2014 and July 27, 2015. - 21 - 22 of those calls lasted longer than five minutes. The first call from Raja to the grievor following the November 16, 2014 encounter was made approximately four hours later. The Fido record reflects that the duration of that call was one minute. The next two calls from Raja to the grievor reflected in the Fido record were both one minute in duration, and took place on November 20 and 24, 2014. On November 24 and 25, 2015, further calls to the grievor initiated by Raja lasted thirteen and nine minutes respectively. [76] Mr. Raja agreed that in addition to calls he made to the grievor, the grievor called him too during the relevant period. [77] After the Fido records were produced, the Union revisited in cross-examination Mr. Raja’s recollections regarding the duration, timing, and frequency of telephone contacts with the grievor subsequent to their November 2014 encounter. Although it was Mr. Raja who accessed the Fido records produced to the Union, he gave evidence that he reviewed only limited excerpts from those records before the hearing was reconvened. When cross-examination resumed at that time, however, Mr. Raja agreed that it was possible that he and the grievor spoke on the phone more than monthly between November 2014 and July 2015. He agreed as well at that time that it “would not surprise” him if he called the grievor 88 times between November 16, 2014 and July 2015, and if calls sometimes lasted more than seven minutes. He gave evidence that he could not in fact remember in 2018 how many calls he made to the grievor in 2014 and 2015, or the duration of those calls. Mr. Raja testified as well at that time that it did not surprise him that he called the grievor the day following their November 2014 encounter, and suggested that they may have been in touch about work, but not about personal matters. He was asked about a call to the grievor reflected in the Fido record four hours after the alleged November 16, 2014 encounter. He could not remember why he called the grievor then. He resisted the Union’s suggestion in cross-examination that one should infer from such telephone contact that what took place that evening was not “so bad.” He testified that he “believed in forgiveness,” and that he feared that it would affect his employment, as “nobody was around to see it.” Although Raja suggested that at least some of the calls noted in the Fido record may have been - 22 - inadvertent “pocket dials” or return phone calls to the grievor, he accepted in cross- examination that by late November 2014 he was in “fairly regular contact” with the grievor and that this continued to be the case through to July 2015. [78] The Union put to Mr. Raja that his evidence regarding telephone communications with the grievor changed over the course of his cross-examination once the Fido records were produced. Mr. Raja testified that he was nervous giving evidence, and that it was “possible” that he “did not remember” during his earlier testimony. He agreed that nervousness impacted upon his ability to give accurate evidence, and that he was nervous throughout his testimony. C/ ALLEGED DISCUSSION RE CONVENIENCE STORE ENCOUNTER [79] The grievor testified that he and Raja talked, possibly in 2015, about an earlier alleged encounter in an Oshawa convenience store. The grievor suggested initially that the alleged convenience store encounter itself occurred within a couple of weeks after he commenced employment in the Oshawa facility, which he believed opened in late 2013. He also recalled, however, that he started work in Oshawa shortly after that facility opened, and, as noted, the parties stipulated that the Oshawa garage in fact opened in late 2012. The grievor gave evidence as to his place of residence as of the time of the alleged convenience store encounter with Mr. Raja. While initially confused in cross-examination as to when he lived at the address in question, he returned to the reconvened hearing with documentation aimed at providing clarification. That documentation purported to confirm that the grievor lived at the said address in Oshawa between April 2012 and March 2013. It was admitted in evidence subject to certain qualifications, but without objection. [80] The grievor testified that he was having problems with his personal vehicle at the time of the alleged convenience store encounter and took the bus to work therefore. He recalled that he saw Mr. Raja in a store by his bus stop. His evidence was that they did not know each other then, but recognized each other from the workplace. The grievor understood that Mr. Raja was on his break at the time, and he therefore asked him if he could get a ride to the Oshawa garage with him. He recalled that Mr. Raja explained that this was not possible, as his vehicle was full of boxes. [81] The grievor gave evidence that he and Mr. Raja later talked about this alleged convenience store encounter a “couple” of times. I heard evidence of only one such - 23 - alleged discussion. The grievor recalled that this took place “months later,” but also testified that it took place in the Spring of 2015. He recalled that Mr. Raja told him at that time that he could have driven him to work from the convenience store on the night in question, but felt uncomfortable because of the smell of marijuana in his vehicle. The grievor described this as a “humourous exchange,” that they were “comfortable” with each other, and “laughed it off.” He suggested that Mr. Raja “confided” in him, and that they both “understood.” Mr. Raja denied that he ever met the grievor in a strip mall in Oshawa or that he told the grievor that his car “stank of marijuana.” D/ ALLEGED DISCUSSION ABOUT INSURANCE FRAUD [82] The grievor gave evidence that he was involved in a motor vehicle accident and discussed this with Mr. Raja. His evidence was that Raja informed him that he had successfully made an insurance claim for a non-existent neck injury, and that the grievor could have done the same with Raja’s “connections and know how.” Mr. Raja accepted in cross-examination that he discussed with the grievor a March 2015 motor vehicle accident in which the grievor had been involved. He disputed, however, that he told the grievor that it was easy to lie to the insurance company about a non-existent neck injury, and that it was a “total lie” to suggest that he had done so. Raja suggested that it was in fact the grievor who indicated that it was his intention to make a false insurance claim. E/ JULY 1, 2015 NIAGARA FALLS [83] Both the grievor and Mr. Raja gave evidence that they by chance encountered each other in Niagara Falls on July 1, 2015. Raja testified that he was the father of four young children and that he was there with his wife and family. The grievor spotted Mr. Raja in a crowd and approached him. Both the grievor and Mr. Raja testified that they were “pleased” and “happy” to see each other. The grievor recalled that Mr. Raja introduced him to his family, and that the two men shook hands, patted each other on the backs, hugged each other and were “excited” and “comfortable” to see each other. [84] In cross-examination, the Union put to Mr. Raja that the grievor recalled a moment of quiet conversation between the two of them alone in Niagara Falls during which Raja stated that he could not wait to go back to the hotel and smoke a joint. Mr. Raja denied that he made such statement. The grievor did not so assert, however, and testified in cross-examination that Raja did not so much as mention marijuana during - 24 - their Niagara Falls encounter. He testified that Raja said to him in a “joking” and “light hearted” manner and “with a wink” that he “could not wait until everyone was in bed so that he could go out for a walk.” The grievor was emphatic in cross-examination that he and Raja “both knew” that the unspoken message was that Raja was looking forward to smoking “one of his marijuana cigarettes.” He referred to Raja’s “joking manner and winking” and asked “What else would he be referring to?” F/ JULY 2015 [85] Mr. Raja agreed in cross-examination that by July 27, 2015, he and the grievor had been working together from “time to time,” sometimes having lunch together, placing sports bets together, and talking on the phone. He accepted that they were as of that time “getting along pretty good.” [86] The grievor too recalled a friendly working relationship with Raja in 2014 and 2015. He noted that Raja would occasionally bring him “some of his culture’s food” to enjoy, and he was clear that “everything was fine” within minutes of their November 16, 2014 fuel line encounter. While the grievor testified that his July 1 encounter with Raja in Niagara Falls was a happy one, that all was “normal and good,” and that they shared a “good friendship” as of that time, he also testified that there was always “a cloud” hanging over them which he attributed to “everything that happened.” He referred in this regard to the alleged marijuana incident in the Fall of 2014, the “conversations forwards,” and “the sentences that did not put periods to.” [sic] The grievor suggested that there was “discomfort” between the two men as events in later July, 2015 unfolded, that “what had happened” was always on their minds, that there was “no denying it,” and that “it” was “always there.” V - THE JULY 27, 2015 INCIDENT [87] There is no dispute that Raja and the grievor communicated with each other by phone and text in the early hours of July 27, 2015. Screen shots of their texts and call logs from Mr. Raja’s phone for the relevant date were entered in evidence. There is no dispute that such documentary evidence accurately reflects the chronology and timing of the communications set out therein. The grievor too confirmed that he “made those texts” reflected in the screen shots taken from Mr. Raja’s phone. - 25 - [88] Mr. Raja testified that at approximately 2 a.m. on July 27, 2015, he was at home and noticed a missed call and a voicemail from the grievor at 9:14 p.m. July 26, telling him that he was at work, and asking him to call. [89] Mr. Raja testified that he returned the grievor’s call, that there was no answer, and that the grievor then returned his call shortly afterwards. Mr. Raja recalled that such phone conversation was initially friendly, that the grievor greeted him saying, “hi buddy,” and that they exchanged pleasantries. [90] There is no dispute that the grievor and Raja discussed the Master Shift Sign Up process. This is a process by which employees exercise seniority in their choices of where and when to work. The most senior employee gets his “first pick,” and shifts are then assigned by seniority working the way down the list. Mr. Raja testified that the process was to take place shortly after July 27, and that the grievor asked him during their phone call what shift he was picking. He recalled that the grievor told him what he had heard about “who was picking what” and that other people were not sure of their picks. Raja agreed in cross-examination that he told the grievor he had not yet decided what his bid would be. He testified that he told the grievor that he would pick either Lincolnville or Oshawa. Raja was senior to the grievor, and testified that he believed that the grievor was concerned that he would be bumped from Oshawa if that was Raja’s selection. According to Raja, the grievor responded to him saying, “Why can’t you guys fucking make up your minds and pick a shift?” Raja testified that he responded to the grievor explaining that “you pick multiple choices in case you don’t get your first selection.” Mr. Raja claimed that the grievor then “imitated” his tone and “the way” he spoke, and that he, Mr. Raja, responded saying “Ha Ha – very funny.” Raja’s testimony was that the grievor then said, “I am going to fuck you up dog.” His evidence was that he was shocked, and asked “What?” Raja testified that the grievor then said “Fuck you – you fucking clown,” and hung up. [91] Mr. Raja testified that he did not understand what happened, and called the grievor right back. He left a voicemail and recalled saying that he did not deserve to be “talked to like that,” and did not want anything to do with the grievor. There is no dispute that the grievor owed Raja $20 at the time on account of an unpaid bet relating to NHL playoffs. Raja testified that he told the grievor on that voicemail to give his $20 to someone, and to “do the right thing.” Raja testified that he thought that the grievor - 26 - would try to “skip out” and not make good on his bet, and that this was why he said to “do the right thing.” [92] The grievor responded by text at 2:52 a.m., as follows: The only way we can do the RIGHT thing is for you to loose [sic] my number and never contact me in any way again!! [93] Raja then texted the grievor as follows: You threatened me you assaulted me on the fuel line you just called me at 2:00 a.m. I don’t want to talk to you I just want my 20 bucks otherwise im escalating this [sic] And you called me at home at 2:00am curseing [sic] at me And I didn’t even do anything [sic] [94] Mr. Raja testified that he said he would escalate matters because Andrew Paterson had told him to let him know if the grievor gave him a hard time. He stated that he knew that it mattered to the grievor “what his brother would say to him or how his brother would look at him,” and that his threat to “escalate” meant that he would go to Andrew Paterson. Mr. Raja further explained that his assertion that the grievor had “threatened” him was in reference to the allegation that moments earlier the grievor said, “I’m going to fuck you up dog.” He further testified that he was referring to the grievor’s alleged November 2014 “assault on the fuel line” in asserting that the grievor had “assaulted” him. [95] The grievor texted Mr. Raja in response, stating as follows: You called me at 230 in the morning you dope head and I have it on my phone. Don’t like you and want nothing to do with you I’m going to tell you this ONE more time…loose my number and DO not contact me anymore!!!!! [sic] [96] Mr. Raja accepted in cross-examination that although he knew that the grievor wanted to “be done with” the conversation, he “went back in.” He testified that the grievor was “disrespectful all because” of his uncertainty about his shift selection, that he was tired of being bullied, and wanted to speak up. He believed that the grievor was avoiding paying him the $20 he was owed, and did not want him to think he could take advantage of him. He testified that Andrew Paterson had told him to go see him if the grievor gave him a hard time, and he thought that by talking to Andrew Paterson, “things - 27 - could get resolved.” It was for those reasons, Raja explained, that he then texted the grievor as follows: Are you threatening me again You owe me 20 bucks If I dont get this 20 bucks im going to your brother by the end of this week [sic] And tell him your games that your playing [sic] [97] Mr. Raja testified that he then received a telephone call from the grievor. The call logs from Mr. Raja’s phone reflect that this call was made at 3:04 a.m. and lasted just over three minutes. Raja testified that he answered the phone saying, “What the fuck did I do to deserve this?” His evidence was that the grievor then “started with hateful things that bother” him to this day. He testified in chief that the grievor called him a “fucking Paki Arab slum,” and a “stanky ass Paki.” He testified that the grievor also said, “You fucking Pakis live in cockroach apartments,” and “You fucking Paki. You want your $20? Come here and get it so I can punch you in your mouth and kick your teeth in.” [98] Mr. Raja testified that he then told the grievor that he was on speaker phone, that his family heard what he said, and that he was “calling the cops.” His evidence was that the grievor then said, “fucking immigrant,” and hung up. Raja acknowledged in cross- examination that it was not true that the grievor was on speaker phone at the time. He accepted as well that he did not in fact call the police. He explained that he untruthfully so stated, however, “to get the call to end.” He further testified that he told the grievor that he would “call the cops” because he felt threatened and feared for his safety. [99] The Union challenged in cross-examination Raja’s evidence that the grievor said, “fucking immigrant,” used any racist language, or threatened him, and put to Raja in cross-examination that the conversation he described would not have taken three minutes. While the Union asserted in cross-examining Raja that the grievor would offer a “starkly different” account of what was said, Raja’s claim that it was at the end of their call when he told the grievor he was on speaker phone and that he would call the police was not expressly challenged until final argument. - 28 - [100] Mr. Raja agreed in cross-examination that from the time he first started working with the grievor in 2013, he heard no racist remarks from him until he allegedly did so on July 27, 2015. [101] Mr. Raja gave evidence that he was born in Canada, is of Pakistani descent and is a practicing Muslim. The grievor’s evidence in cross-examination was that he understood that Raja is an Arab and “followed” an “Arab religion.” [102] The grievor described a very different exchange with Mr. Raja on the night in issue. He testified that he called Raja late July 26, 2015 to ask him what his picks were for the upcoming Master Shift Selection. He testified that Raja was unsure of his picks, but that he, the grievor, believed that Raja was “leaning toward Oshawa.” The grievor’s evidence was that there was “uncomfortableness” at the time as Mr. Raja was acting like he already knew where he would be placed – despite the fact that the shift selection process had not yet been completed. He denied saying words to the effect “Why can’t you guys fucking make up your minds,” suggesting that this “makes no sense.” The grievor testified that “nobody was fucking up anything for anyone” as “nobody has control” since the shift selection “goes by seniority.” Although he acknowledged that the senior person gets his pick when two employees select the same shift, he resisted in cross-examination the Employer’s suggestion that it is therefore useful to know in advance what shifts more senior employees are picking. He agreed, however, that if he wanted to be in Oshawa and a more senior employee also wanted Oshawa, he would not “get Oshawa” if “all the spots were filled.” He also accepted in cross-examination that if an employee does not get any of his selections, a selection may be made for him, based on seniority. The grievor confirmed that he lived in Whitby at the time, and that the Oshawa garage was the most convenient location for him. He maintained, however, that he was not upset about Raja’s indecision at that time, and that there were no threats. He could not recall imitating Raja’s tone. [103] The grievor testified that Mr. Raja then “mixed into” their conversation that he owed Raja $20 for a bet. He recalled that Raja demanded that he give him his money, and that the grievor insisted that he would give it to him the next time they saw each other. The grievor recalled that a “simple conversation” thereby turned into what he characterized as their “second argument,” with Raja “most interested” in getting the money he was owed. - 29 - [104] The grievor gave evidence that he did not want anything to do with Raja anymore, and texted him telling him not to contact him again. He testified that Raja then responded with the alleged “November incident,” saying that the grievor had assaulted him and been verbally abusive to him. He suggested that Raja was upset about his $20, and that he, the grievor, was upset about Raja’s allegations of “racial slander” and assault. In cross-examination, he was asked what allegation of “racial slander” upset him at the time. He responded that there “have been many racial allegations” against him by Raja “from years ago,” and he referenced in particular the words “dune coon” – words that Mr. Rochford accused him of uttering after the July 27 exchange with Raja. He described as well insulting comments that Raja allegedly made regarding double decker buses and the grievor’s Scottish heritage, but stated that he “did not take this as racism.” He emphasized that “at all times and at all costs any and all racial” allegations were “upsetting.” He agreed, however, that there was not at that moment in his July 27 communication with Raja any reason to suggest he was upset about allegations of racial slander. [105] The grievor also testified that but for the alleged marijuana incident in the parking lot, there would have been “no difficulties” in his “friendship” with Raja. [106] The grievor gave evidence that he responded to Raja by text, called him a “dope head” because of his “difficulties” with marijuana, and told him to lose his number and not contact him again. The grievor testified that he and Raja “both knew” why they were fighting. In his evidence in chief, he explained that he believed that it was Raja’s intention to work in Oshawa, and that it would be “uncomfortable” if the grievor remained there after the Master Sign Up, given “everything that had happened.” In cross-examination, the grievor testified that Raja in fact “threw out” during their July 27 telephone exchange his hope to be placed in Oshawa and his concern that it would be “uncomfortable” if both were assigned to Oshawa. He agreed that Ms. Rahim’s notes of his September 2015 interview with the Employer accurately reflected what he reported to the Employer at the time, and was unable to explain why there was no reference therein to such comments attributed to Raja. [107] The grievor described his final phone call to Raja on the night in question. He testified that he picked up the phone, and that he and Raja had a “full blown argument” in which they both said “choice things.” The grievor described that he was upset about - 30 - allegations of “racial slander and assault” and that Raja was upset and “most interested” in his $20. He recalled telling Raja that he was a “fat, lazy dope smoking piece of shit,” and that Raja insulted him as well, suggesting that he was a “piece of shit” allegedly like double decker buses made in Scotland. The grievor denied that he uttered any threats or racial slurs. He expressly denied saying “fuck you, you fucking Paki Arab slum,” “you stanky ass Paki” or that “You fucking Pakis live in cockroach apartments.” He denied telling the grievor that he would “kick his teeth in,” or that he would “fuck you up dog,” noting that he does not “speak that way.” He noted that he “always had difficulty” in particular with the allegation that he said “You fucking immigrant,” given the fact that he immigrated to Canada from Scotland as a child. He described that he wanted to end his friendship with Raja, and that this alleged second “argument” was “enough” for him. He testified that he did not want to speak to Raja or be part of his life, and that Raja’s allegations were both untrue and “off the wall.” [108] Mr. Raja testified that he was scared, shocked and had a “very horrible feeling” after the July 27 encounter with the grievor as he described it. He testified that he made handwritten notes that same night in which he recorded “things that were very hurting” to him. While he gave evidence that he did not have a “complete recollection” of what he recorded, he initially stated that he could recall “for sure” that he noted that the grievor said “I am going to fuck you up dog,” “fuck you, you fucking clown,” “fuck you, fucking Paki Arab slum, you Pakis live in cockroach apartments,” and “If you want your twenty bucks, come and get it so I can punch you in the mouth and kick your teeth in.” He testified as well that he recalled noting therein that the grievor called him a “fucking immigrant” before hanging up. VI – THE IMMEDIATE AFTERMATH TO JULY 27, 2015 [109] Mr. Raja, Mr. Rochford, and the grievor gave evidence regarding what allegedly took place in the days immediately following the July 27, 2015 exchange between Raja and the grievor. [110] By way of background, Mr. Rochford testified that he “maybe” worked with the grievor on the fuel line in 2014-2015 three to five times per week, and enjoyed doing so. He described that their relationship up until mid-2015 was “great.” He recalled that he occasionally drove the grievor home from work, and that they frequently smoked cigarettes together at the beginning of shifts, and ate lunch together. He recalled no - 31 - arguments or “things like that” with the grievor. The grievor similarly testified that he considered Rochford a friend. [111] Rochford recalled as well that Raja worked occasional weekend overtime in Oshawa in 2014-15. Although Rochford noted that he himself did not work a lot of weekend overtime, he described a positive working relationship with Raja during the relevant timeframe. [112] Mr. Raja testified that Mr. Rochford had previously been a “provincial ticketing officer with some knowledge of the law and Company policy,” and that he sought his advice after the July 27, 2015 interaction with the grievor as to whether he should talk to the Union or to management. He testified that Mr. Rochford advised him to talk to the Union. [113] Mr. Rochford testified as well that Mr. Raja called him before work one day, and told him that he and the grievor had what Rochford understood to be a third argument the night before. Rochford could not recall the relevant date. The Union initially objected that Mr. Rochford’s evidence as to what Mr. Raja allegedly reported to him at that time ought not to be admitted. The Union accepted that evidence of an alleged prior consistent statement may be admitted for the purpose of rebutting a claim that evidence has been recently fabricated. I sought clarification from Union Counsel, having understood from the cross-examination of Mr. Raja that the Union did in fact assert that elements of Mr. Raja’s account of relevant events were “recently fabricated.” The Union withdrew its objection at that time, and Mr. Rochford’s evidence of what Mr. Raja allegedly told him at the time was admitted for the limited purpose of responding to the Union’s claim of recent fabrication by Raja. [114] Mr. Rochford testified that Mr. Raja seemed “extremely upset” and told him that the grievor got “pretty aggressive with words” and made racial comments. He could not recall “the quote” that Raja communicated to him. Rochford testified that he suggested that Raja call the Union for advice. His evidence was that “We are Union and look out for each other.” He noted that he had heard only one side of a story, and believed that Raja should approach the Union and “see what it thought.” [115] Mr. Raja gave evidence that he followed Rochford’s advice and contacted the Union. Phone records in evidence reflect a July 27 call to Union Steward, Chris Beck. - 32 - Mr. Raja testified that he told Mr. Beck “the whole story” and that Mr. Beck suggested that he speak with Mr. Leon Challenger. [116] Mr. Challenger was a Union Executive Board Member. Mr. Raja’s phone records reflect a call placed to Mr. Challenger on July 27, and subsequent texts and voicemails. Mr. Raja testified that he discussed “the incident” with Mr. Challenger and was advised to speak to the Local Union President. [117] Mr. Raja testified that he then called the Local Union President, Dan Harris, on July 27 or 28, and gave him a brief description of what had happened. He recalled that Mr. Harris told him that it was his right “to go to Human Resources.” None of Messrs. Beck, Challenger or Harris gave evidence in these proceedings. [118] Mr. Rochford testified that he went to work later the same day after advising Raja to consult with the Union. He recalled that the grievor’s shift had already started, and that the two of them went outside for a cigarette before Rochford began work. His evidence was that the grievor told him at that time that he and Raja had an argument on the phone the night before, and that the grievor seemed very angry. Rochford believed that the grievor mentioned “something about a bet or wager.” He further testified that he asked the grievor if this was “something they could shake hands on,” at which point the grievor “immediately” became upset. Rochford’s evidence was that the grievor said something to the effect, “No, I hate that guy.” Rochford acknowledged in cross- examination that his memory of 2015 events was by the time of these proceedings “imperfect.” He testified, however, that the grievor made “the most vulgar comments I have ever heard in my life,” and that he clearly recalled “things that stuck out” for him, and specifically, the “exact insults” that he claimed the grievor uttered. He stated that the grievor referred to Raja as a “dune coon,” and used the term “sand nigger.” He recalled that the grievor also said words to the effect, “It is good guys like us that get screwed by people like that who come and take all the good jobs.” Rochford understood the reference to “people like that” to mean immigrants. He testified that he did his best to “deflect” the conversation, but that the grievor remained upset and agitated. He did not report to the Employer at that time what he claimed to have heard. [119] Mr. Rochford recalled that the grievor approached him later that same shift, and told him that Raja was not a “good guy,” that he smoked pot at work, and committed insurance fraud. - 33 - [120] The grievor too recalled a conversation with Rochford a day or two after the July 2015 telephone exchange with Raja. He denied that he complained to Rochford about Raja, and testified that there was “nothing threatening or aggressive” in that communication. He denied using the words “sand nigger” or “dune coon,” and testified that “when these allegations say immigrants ruin it for everyone, this conversation did not exist.” The grievor’s evidence was that he was a “friend speaking to a friend,” and that he had an “emotional” discussion with Rochford, given his “hurt” that he had “lost a friend” in Raja. [121] Mr. Raja gave evidence that he had a second discussion with Rochford shortly after the alleged July 27, 2015 exchange with the grievor. The Union initially objected that I ought not to admit evidence of such alleged discussion. While the Union contested what it understood Rochford’s evidence would be, it did not anticipate at that time that it would assert that Rochford’s disputed account of his July 27 conversation with the grievor was only recently fabricated. Rochford had not yet testified at that point in the proceedings, and I permitted the Employer to lead evidence through Raja of what Rochford allegedly reported to him about an alleged conversation with the grievor in July 2015, noting that I would determine the weight, if any, to be ultimately accorded to such evidence. As the case proceeded, and after Rochford’s evidence was heard, the Union took the position that at least Mr. Rochford’s evidence that the grievor used the term “dune coon” was recently fabricated. Counsel clarified that the Union therefore no longer contested the admission of Raja’s evidence of his second July 2015 conversation with Rochford for the limited purpose of the Employer seeking to rebut the Union’s claim of recent fabrication by Mr. Rochford. [122] Mr. Raja’s evidence was that Mr. Rochford told him a day or two after the July 27, 2015 argument with the grievor that the grievor made “racial remarks” to Rochford. Raja recalled specifically that Rochford told him at the time that the grievor referred to Raja and to “minority people” as “sand niggers” and “dune coons,” and said “something like minority people take all the jobs and ruin things for us.” VII - RAJA’S COMPLAINT [123] Mr. Raja testified that he called Human Resources on July 28, 2015, and explained “the whole situation” to Ms. Rahim. Ms. Rahim too gave evidence that she first heard of an issue between Raja and the grievor on July 28, 2015. She testified - 34 - that Mr. Raja phoned her, and that she made a “quick jot” of the “highlights” of their conversation. She testified as well that Raja told her at that time that Rochford advised that the grievor “said similar comments” the following day. [124] Rahim’s notes of her July 28, 2015 conversation were only produced in these proceedings after Mr. Raja’s evidence was complete. They were entered in evidence and state in part as follows: - Sunday night . . . another ee Paul Patterson – call me Sunday at 10pm - Hey buddy – how’s it going – shift sign up – asked me what I’m going to pick – told him few options . . . – he said why can’t u fucking guys make up my mind . . . – fucking clown - called him back . . . - “fuck you, fucking packie . . . live in slums punch you in the face – when he sees me punch u out – cockroach apartments - Another Vince Rochford - January – assault me – pushed me - criminal record - begged me not to do anything - needs a pardon – said to me - union brother – let it go [sic] [125] Ms. Rahim testified that she asked Mr. Raja to document his allegations as she “could not capture it all in a phone call.” [126] Mr. Raja sent Ms. Rahim an e-mail dated July 30, 2015. He testified that he used handwritten July 27, 2015 notes referenced above in drafting his e-mail. He gave evidence that he told nobody that he had such notes. He believed that he kept them in his workplace locker after composing his July 30 e-mail to Ms. Rahim, but disposed of them when he left Lincolnville and cleaned out his locker. Mr. Raja testified that he also used notes “scribbled” just after the November 2014 incident in drafting his July 30, 2015 e-mail. [127] Mr. Raja’s July 30, 2015 e-mail to Ms. Rahim is set out in full as follows: These racial, ethnic slurs, threatening to assault me, happened over the phone. It all started early morning July 27, 2015 at 2:00am I was at home removing my phone from charger and noticed I had a miss call and voice mail from Paul Paterson from July 26, 2015 9:14 pm. In message he indicated he’s at work and to give him a call when I receive message. I called him back at 2:20 am there was no answer. He then called me back at 2:30am and said hey buddy how are you I’m working overtime tonight. I said I’m fine thank you. Then I asked him how he was, he also replied that he was fine. I asked him why he called. He said I just want to know what shift you are picking for sign up. I said I have a few choices either Lincolnville or Oshawa. He said why can’t you guys fucken makeup your mind and pick 1 choice. You fucken guys are fucking it up for - 35 - everyone. I said I picked a few choices in case I don’t get my first pick. He replied with, I’m going to fuck you up. I said what? He said fuck you you fucken clown and hung up. I called him back it was 2:38 am there was no answer I left him a voice mail why you swearing at me I don’t deserve to be talked to like that just make sure you give my 20 bucks to someone do the right thing I don’t want anything to do with you and then I hung up. I then received a text message from him at 2:52 am that read “the only way we can do the RIGHT thing is for you to lose my number and never contact me in any way again!! I then replied at 2:54am with text and said “you threaten me you assaulted me on fuel line, you called me at 2:00am I don’t want to talk to you I just want my 20 bucks otherwise I’m escalating this, and you called me at home cursing at me I didn’t even do anything”. He then text me at 2:59 am and wrote “You called me at 2:30 in the morning you dope head and I have it on my phone…Don’t like you and want nothing to do with you I’m going to tell you this one more time…lose my number and Do not contact me anymore!!!!! I replied at 3:00am with a text are you threatening me, you owe me 20 bucks, if I don’t get this 20 bucks I’m going to your brother by the end of this week and telling him the games you’re playing.”He then called me at 3:04am and I said “what the fuck did I do to deserve this” he said “fuck you, you fucken paki Arab slum, you fucken stinky ass paki, you guys live in small fucken cockroach apartments you fuckin Paki you want your 20 bucks come here and get it so I can fucken punch you in your mouth “I said you are on speaker phone and my family heard everything you said, I’m calling the cops. He then immediately hung up the phone. I called the union in the afternoon same day I explained my situation and informed them that I wish to take this matter to human resources. They said that this is my right. I then contacted employee relations the next afternoon. I would also like to add that on November 16, 2014 at approximately 8:00pm I was checking the oil at the back of one of the buses on the fuel lines, Paul was on the other fuel line I asked him if he would get my hat signed from his cousin, He got very upset that I asked him this before and came up to my face and shoved me and said “why do you keep asking me the same shit” I said don’t ever touch me. He stuck his finger on my face and said I was a boxer and I’ll knock your ass out” I walked away to complain to supervisor. He ran behind me apologizing and begged me not to say anything because he has a prior offence which he has not been pardoned for, and that he could lose his job. I was very upset but being union brothers I did not file any complaint. After that incident till this recent incident things were fine between us, I can’t seem to understand why, or what I did to go through this again, and I can’t understand why he used such hurting language that not only me, but my family had to hear. I decided to come forward for the sake of our future generations, our children so that they don’t go through what I went through in this beautiful land of multicultural Canada. [sic] [128] Mr. Raja testified that he understood the importance of giving accurate and complete statements to Metrolinx, and knew that “this was a serious matter” that could produce “serious consequences for real life people.” His evidence was that he was nervous and “fearful” when giving statements as the “incident was fresh.” He further stated that he did not know he had to “write everything,” and did not include “complete - 36 - detail” in his July 30, 2015 e-mail. He testified in chief that he was tired when he sent this e-mail to Ms. Rahim, and that he forgot to note therein that the grievor said “I’m going to fuck you up dog,” that he imitated his tone and way of speaking, that he said he would kick him in the teeth, and that he called him a “fucking immigrant.” [129] Mr. Raja acknowledged that he did not previously report the alleged November 2014 incident to management, but testified that he did so in July 2015 after the grievor’s “threats of hurting” him and “racist words” became “more severe” and scared him. VIII – THE INITIAL INVESTIGATION [130] Ms. Rahim received Mr. Raja’s e-mail and was assigned to investigate his complaint. She testified that the complaint was “shocking” and that she found it “very disturbing to read that these allegations had occurred between two employees.” [131] Ms. Rahim, Mr. Hand, and Ms. I. Silina, a Health and Safety Advisor, met with Mr. Raja on August 11, 2015. Neither Ms. Silina nor Mr. Hand gave evidence in these proceedings, and the parties stipulated that Hand retired in November 2015. Ms. Rahim testified that she informed Raja at the beginning of his interview that the interviewers had reviewed his complaint, and that she asked him to “high level anything more he wanted to add.” Rahim made point form notes during that interview, and these were admitted in evidence as proof of what Rahim was told, or the Union suggested, as proof of what she claimed she was told at the time. She was clear that her interview notes were not verbatim transcripts, but that she sought to capture the “highlights” of what was said and all “significant allegations.” Mr. Raja gave evidence that Ms. Rahim’s notes accurately and fully captured what he said during their meeting. [132] Ms. Rahim testified that she deliberately refrained from providing Mr. Raja with a copy of his July 30 e-mail during their August 11 interview so as to see if the account he offered at that time deviated from what he had described in writing. She recalled that Mr. Raja spoke at the meeting without the assistance of notes or other materials. While he had his phone with him, it was turned off until the end of the meeting. [133] Ms. Rahim testified that she asked Raja about the alleged November 2014 incident. She recorded the following: Nov 16 situation – told pp story . . . shoved me, put finger in my face - 37 - he came to me – please don’t say anything retirement party – cab, smoking – told to take it out – he punched cab driver charged w assault (2 yrs ago) [sic] [134] Ms. Rahim noted the following statement from Mr. Raja regarding the alleged July 2015 incident: . . . July 27 – ‘hey buddy how are you?’ . . . wanted to know shift Lin/Oshawa - don’t know Why can’t u f’in guys pick one choice – he started intimidating me – said I will F U up - happened before f’u up - “what’ – F u u f’in clown and hung up . . . $20? Stanley Cup . . . bet whose will win – he owes me $20 I called him back – VM- why swear at me, don’t deserve to be cursed at – give my $20 to some one Texted me back –on complaint . . . he called me back – what the F did I do to deserve this – he said (complaint) (emphasis added) – wife was listening to it – he hung up - call the cops he said a lot more, swearing [sic] [135] Ms. Rahim was asked about her reference to “complaint,” which I have bolded above. Her evidence was that the words attributed by Raja to the grievor during their final July 27 phone call were “exactly similar” to those he alleged in his July 30 e-mailed complaint. She understood Raja to report at the time that the grievor hung up the phone after Raja threatened that his wife was listening to the call and that he would “call the cops.” [136] Other notes made at the time by Ms. Rahim include the following: -punch bus, garage door – said he use to be a boxer . . . 27th shift – Vince Rochford – he mentioned - we need to stick together b/c “sand niggars ruining everything for us” . . . Mechanic – here Paul in lunchroom – Paul got up in front of his face to punch him Gary Broad – earlier this year Jan/Feb - 38 - . . . angry person – I’ve seen him punch buses regular, garage doors . . . lots of connections here. . . . [sic] [137] Ms. Rahim gave evidence that she looked at Mr. Raja’s phone, reviewed texts on his phone, and asked that he send her copies of the relevant screen shots. By e-mail dated August 12, 2015, Mr. Raja sent Ms. Rahim the “snap shots of text messages and call logs” entered in evidence in these proceedings. [138] Ms. Rahim recalled that Mr. Raja advised by telephone on August 5, 2015 that there were “three guys who had experiences with the grievor,” and that he named Messrs. Harte, Rochford and Broad at the time. An August 12, 2015 e-mail from Mr. Raja was entered in evidence in which he advised that Nesbitt wished to speak to her as well about “concerns he also has with” the grievor. Ms. Rahim gave evidence that after interviewing Mr. Raja, she and Mr. Hand arranged to next interview Mr. Harte, Mr. Rochford and Mr. Broad on August 17, 2015. In addition, Mr. Nesbitt came forward on his own volition, and was interviewed that day. [139] Ms. Rahim testified as well that she received notes from Mr. Hand which she understood reflected Hand’s conversation with another employee, Mr. Hernandez. She agreed in cross-examination that according to those notes, Hernandez made allegations of inappropriate conduct against the grievor, but that there was no attempt to contact Mr. Hernandez who has since resigned from Metrolinx. Ms. Rahim gave evidence as well that she met with Mr. Harte, and she recorded the following: Allan Bean on day shift left Paul a note “Pls clean up your mess” Paul was uptight – said knew some street tugs – will send to Allan’s house to break his legs . . . . [sic] Neither Mr. Hernandez nor Mr. Harte gave evidence in these proceedings. Counsel agreed that notes received by or taken by Ms. Rahim were to be admitted only as evidence of what she received or heard. [140] Nesbitt, Broad and Rochford were interviewed by the Employer and each appeared as witnesses in these proceedings. Notes taken by Ms. Rahim during those interviews were entered in evidence on the same basis as the notes taken during Raja’s interview. - 39 - [141] Ms. Rahim gave evidence regarding her August 17 meeting with Mr. Nesbitt, referring to the notes that she took at the time. Although Mr. Nesbitt volunteered to meet with Mr. Hand and her, Ms. Rahim recorded at the time that he expressed concerns about doing so, and indicated that the grievor “flies off the handle real quick, all the time.” She noted that he told interviewers that “Shueyb never asked” him to “come forth,” but that he “called him – heard rumours.” [142] Ms. Rahim recorded in part Nesbitt’s description of an alleged lunch room incident in which the grievor had his feet on a chair. Her notes reflect that Supervisor Mike Gonsalves was present in the room at the time of the alleged incident. The evidence established that Mr. Gonsalves remained a Supervisor with Metrolinx as of the time of these proceedings. [143] Ms. Rahim recorded during her interview with Nesbitt that he described a second alleged lunch room incident involving a television remote control. [144] Ms. Rahim recorded that Nesbitt stated that the grievor is a “loose canon, ready to go.” [sic] She noted that Nesbitt claimed at various stages of the interview that he was “not personally threatened” by or “scared” of the grievor, but also, that he was “threatened” by him and felt “uncomfortable.” [145] Ms. Rahim also recorded at the time that Nesbitt advised that he had seen the grievor “snap and punch a side of a bus,” and that this happened “more often than not.” Ms. Rahim recorded as well that Nesbitt stated that the grievor had informed him that he had a criminal record for assaulting a taxi driver. [146] Ms. Rahim also gave evidence with respect to her August 17, 2015 meeting with Mr. Broad, and referred to her notes made at that time. She recorded that Mr. Broad described the grievor as a “nut job,” and reported the following: use service truck – smell smoke . . . one night – stunk - . . . lunch room – leaned over said “quit smoking in truck” bent over – so no one [sic] Up in my face, who the fucking hell u think u are, talking to me like that, u don’t own fucking truck, lots of swearing fucking lots . . . Vince Rochford try to get in b/w us – go b/w us - loose canon – thought he going to hit you [sic] foot away from my face - 40 - . . . couple of weeks later – may have apologize – have to work together [sic] [147] Ms. Rahim also recorded the following while interviewing Mr. Broad: brags he’s a boxer – trys to initimidate me.” [sic] . . . smokes on fuel line - yes . . . hit bus – DDL I was lower, he was on top – heard few choice words, heard band [sic], put hole in roof . . . . he said hit head, punch hole – told him to report it. . . . [sic] [148] According to Ms. Rahim’s notes, Mr. Broad provided serial numbers which she understood to be possibly associated with the double decker bus allegedly damaged by the grievor. Photographs with which Ms. Rahim was later provided were admitted in evidence, both parties agreeing that they are before me only as evidence that Ms. Rahim received them. She was unable to identify them. [149] Ms. Rahim testified that she and Mr. Hand also met with Mr. Rochford on August 17, 2015. In notes made at the time, she recorded that Mr. Rochford advised that he had seen the grievor’s anger, feared retaliation, and “will have to pay for it from Paul.” She noted that Rochford advised that he was “afraid to cross him” and got up and left the meeting which lasted less than five minutes. [150] Ms. Rahim noted as follows August 19, 2015 communication with Raja: “Vince was afraid came in – call Vince when Paul wasn’t there.” [sic] She testified that Mr. Hand forwarded her an August 25, 2015 e-mail from Mr. Rochford indicating that he was at that time prepared to speak with them. A conference call was set up that same day for the three of them. [151] Ms. Rahim’s notes of an August 25, 2015 conference call with Mr. Rochford were entered in evidence. She recorded therein that Rochford told interviewers that he was “very very terrified” of the grievor, and that the grievor was “a tank waiting to go off.” [152] Ms. Rahim also recorded in August 25, 2015 notes that Rochford described that he spoke to Raja the day after an incident between the grievor and Raja, and that the grievor too raised this when he reported for work on the fuel line the “next day.” Ms. Rahim testified that she “asked about the sand nigger comment,” and she recorded the following: - 41 - Shueyb called me next day. . . go in next day . . . go to fuel line, Paul was there . . . .when I came up, red in face, visible shaken fucking harassment claiming harassment, said a bunch of things, something about $20, pissed off when “sand niggars come in country , fuck it up for hard working pp like us, f’in arabs come to country, fuck it up for us. [sic] [153] Ms. Rahim also recorded that Rochford reported that the grievor informed him that he had punched a driver and been charged with assault two or three years earlier. Ms. Rahim noted that Rochford stated as well during the conference call that the grievor smoked on the fuel line and punched buses, and that he had seen damage to the roof of a bus. [154] Ms. Rahim noted as follows Rochford’s description of an alleged incident in the lunch room: We sitting in lunch room – Gary Broad stop smoking in truck . . . over to him directly [sic] U can’t fin talk to me like that, Paul red in face, charged to Gary, he was 1 inch to his face, who u think you are – said they were fine – 100% thought he would knock him out [sic] [155] Ms. Rahim also noted that Rochford reported the following: Allan/Gary left note . . . clean up – he said I got friends, all got to do make call – he was really “break legs” maybe – all I got to do is make a call to old friends, won’t surprise me. [sic] [156] Ms. Rahim referred as well in her notes to a broken keypad, and noted that Rochford said “heard big bang – plastic chunk – punched it, said it pissed him off.” [sic] IX – TESTIMONY OF EMPLOYER WITNESSES [157] In addition to his testimony regarding alleged November 2014 and July 2015 incidents already referenced herein, Mr. Raja also gave evidence that he observed the grievor punch and kick buses on two occasions, and tip over a dumpster that is hoisted by forklift. He also testified that he “regularly” saw the grievor “shadow box” buses and equipment, and that the grievor told him “numerous times” that he was a boxer. In cross-examination, the Union put to Raja that Kao would testify that he worked frequently with the grievor from 2012-2014, and did not see the grievor kick or punch buses, or knock over garbage cans. As noted, Kao was not called as a witness. - 42 - [158] Mr. Raja gave evidence as well that the grievor talked to him about an incident involving Mr. Broad in the lunch room at the Oshawa garage. He could not recall when such discussion or when the alleged interaction between Broad and the grievor took place. Raja’s evidence was that the grievor told him that he regularly took the “Company truck” and smoked in it while driving. Raja testified that the grievor also told him that after he brought the truck back to the facility one night, Broad came to the lunch room and told him not to smoke in the “fucking truck.” According to Raja, the grievor said that he was embarrassed when Broad “put him in the spotlight,” and that he “got up, went into Broad’s face,” “stuck right by his face,” and was “ready to punch Broad out” or hurt him. [159] The Union noted in cross-examining Raja that he reported in his July 30, 2015 e- mail that the grievor “stuck his finger on” his “face” on November 16, 2014, but that Ms. Rahim recorded that he reported in August 2015 that the grievor put his finger “in” his face. He testified in cross-examination that the grievor put his finger “on” his “forehead” during their November 2014 encounter on the fuel line. [160] The Union also put to Raja in cross-examination that he made no prior suggestion that he ordered the grievor to get out of his “personal space” on November 16, 2014, and that it was during these proceedings in which he first alleged that he was “trapped” behind a bus at that time. Raja testified that he could not explain why he omitted such detail which he viewed as significant. He reiterated that he was “trapped” in his “personal space” at that time with engine compartment doors open on either side of him, the bus behind him and the grievor in front. He acknowledged that he was, however, able to exit by “quickly” walking past the grievor. [161] In cross-examining Raja with respect to his 2015 reports of the July 27, 2015 incident, the Union noted that it was only during these proceedings that Raja alleged that the grievor “imitated” his tone when speaking on the phone. Raja testified that the “most important things” for him at the time were that the grievor allegedly threatened him and “targeted” his “religion and ethnicity.” [162] The Union also put to Raja in cross-examination that although he claimed to have used July 27, 2015 notes in preparing his July 30, 2015 e-mail to Ms. Rahim, and although he claimed to recall with certainty at least some of that allegedly recorded in his notes, some of what he claimed to have recorded was not then reported to the - 43 - Employer in 2015. The Union noted that it was only during his evidence in these proceedings that Raja asserted that the grievor used the word “dog” when allegedly saying, “I’m going to fuck you up.” Despite his earlier evidence, Raja then testified that he was uncertain whether he recorded the word “dog” in his July 27 note. [163] The Union also put to Raja that he did not prior to giving evidence in these proceedings assert that the grievor threatened to “kick” his “teeth in,” or called him a “fucking immigrant.” Despite his earlier evidence, Raja testified that he did not remember if he referred in his July 27, 2015 note to the alleged threat to kick him in his teeth. [164] Mr. Raja acknowledged in cross-examination that there is no reference to the words “dune coon” in his July 2015 e-mail to Ms. Rahim, or in her notes of their August 2015 interview. He testified that he was nonetheless “absolutely sure” that Rochford told him that the grievor used these words. He thought he communicated this to the Employer on August 11, 2015, and was unsure why he would not have done so. [165] Mr. Raja acknowledged as well in cross-examination that he could offer no reason for not telling the Employer about the alleged First Aid Room incident. [166] Mr. Raja stated that he was “fearful,” exhausted, and concerned about what he understood to be the grievor’s family connection with a member of management when reporting the grievor’s alleged misconduct to the Employer. He further testified that there was “so much to tell” Ms. Rahim and Mr. Hand, and that it was not possible to remember everything at the time. He stated that it was not easy for him to come forward and that he did his best. [167] Nesbitt also gave evidence in these proceedings. He testified that he did not see the grievor often in 2014, as he worked from 3 – 11 p.m., and the grievor started work well into his shift. [168] Mr. Nesbitt recalled that he initiated meeting with Ms. Rahim and Mr. Hand. While Ms. Rahim recorded in notes taken at the time that Nesbitt advised that he had called Raja, he testified that he did not remember doing so, and could not explain that notation. He did not believe that he called Raja or specifically discussed this matter with him. Although Mr. Nesbitt testified that he has been a Union Steward since October 2015, he did not have such responsibilities at the time. He described that he learned of a disagreement between Raja and the grievor during the Summer of 2015, and heard - 44 - that the grievor made racist comments. He was not certain where he heard this, but thought that “guys” likely talked about it on the fuel line. He noted that “word travels fast” in the workplace. He recalled hearing that there was an investigation, and he understood that this would be a matter of Raja’s word against that of the grievor. He believed Raja, and went to Ms. Rahim to tell his “story of what the grievor is like.” [169] Despite the fact that he initiated the meeting with Ms. Rahim, Mr. Nesbitt testified that he told the interviewers that he feared repercussions if the grievor learned that he spoke to them, that he has a “bad temper,” “flies off the handle” and is a “loose cannon.” [170] Mr. Nesbitt was asked in his evidence in chief why he so stated. He testified that he witnessed “multiple instances” of the grievor yelling “Fuck” while walking through the bus barn. The Union objected that such allegation fell outside the scope of the discharge letter and investigation report. I heard such evidence, and reserved my ruling on the Union’s objection. Nesbitt testified as well that he remembered twice seeing the grievor punch the side of a bus. He testified that he noticed no dents, and did not report what he claimed to have witnessed. He did not recall the grievor ever mentioning boxing. [171] Mr. Nesbitt described two incidents which he alleged took place in the lunch room in Oshawa. He testified that one night, as he was cleaning the lunch room, he observed the grievor watching television while sitting on a table with his feet on a chair. Mr. Nesbitt testified that he told the grievor to get his feet off the chair, and “basically grabbed the chair and pulled it away.” His evidence was that the grievor jumped to the floor with his fists and jaw clenched and with a red face, yelling, “Fuck. Don’t fuck with me.” Mr. Nesbitt testified that he believed that the grievor was “going to come after” him. His evidence was that Supervisor Mike Gonsalves was present at the time, and said “Paul,” to the grievor. Nesbitt testified that the grievor then backed off, and that he finished cleaning. [172] Mr. Nesbitt also gave evidence with respect to another alleged lunch room incident, involving the television remote control. Such evidence was heard subject to the Union’s objection that this alleged incident was not encompassed within the grounds for discharge set out in the discharge letter and investigation report, with my ruling reserved. Mr. Nesbitt’s evidence was that he and Richard Schenk, then a Coach Technician and now a Supervisor, were in the lunch room watching television. He - 45 - recalled that the grievor entered the room and asked if he could change the channel, and that Schenk said that he could not. According to Nesbitt, the grievor grabbed the remote and changed the channel anyways. Mr. Nesbitt testified that Mr. Schenk then asked the grievor why they had to watch what he wanted every time he came into the lunch room. He described that the grievor immediately went into a rage, “like it turned a switch,” and that he yelled, swore, and slammed the remote on the table as he exited from the room. Mr. Nesbitt testified that he did not report this to management at the time. [173] Mr. Nesbitt testified that he was not “scared” of the grievor, but that he was “intimidated” and “felt threatened” by him, suggesting that this was “part of the reason” that he “went to management.” Mr. Nesbitt commented that “you never knew what will set him off,” and that “the more it happened,” the more he “wondered if something physical would happen.” He testified that it created a “poisoned work environment,” but that it did not “sink in until later,” after he heard rumours about the grievor. [174] Mr. Nesbitt gave evidence as well that he understood that the grievor was on probation and had a criminal record, and that he was “sure” that it was the grievor who so informed him. [175] Mr. Broad also gave evidence in these proceedings. He testified that he worked the 8 p.m. – 4 a.m. shift as a Coach Technician in the Sign-In Repair area of the Oshawa garage at the relevant time. He described that Sign-In Repair was at the opposite end of the Oshawa garage from the fuel line. He saw the grievor when he brought a bus with mechanical issues to his area for work. [176] Mr. Broad recalled meeting with Ms. Rahim and Mr. Hand in 2015. He acknowledged in cross-examination that he was aware by August 2015 that there was “some sort of negative interaction” between the grievor and Raja. He recalled as well that at some point, he asked someone where the grievor was as he was not at work, and that “someone probably mentioned” that he had been “let go.” He could not recall the nature of that discussion, and recalled no discussion about the grievor with Rochford or Nesbitt. [177] Mr. Broad agreed in cross-examination that he assumed that the events leading to his meeting with Ms. Rahim and Mr. Hand were “serious,” and that he understood the need to be accurate in what he reported. He readily acknowledged as well that his - 46 - memory about the events in question was “absolutely” better in 2015 than at the time of his evidence in these proceedings. [178] Mr. Broad was asked in examination in chief to describe what he observed in 2014-15. He gave evidence that on four or five occasions, he observed and/or heard the grievor walking “through the shop” yelling “Fuck,” and that he was “absolutely certain” that it was the grievor who did so in each instance. He did not report this to management at such times. [179] Mr. Broad gave further evidence that the grievor “bragged” that he had been a boxer. He testified that he observed the grievor wandering through the facility “shadow boxing,” and hitting cabinets and doors “a few times.” He did not report this to management at the time. [180] Mr. Broad gave evidence that he was “100% sure” that he once saw the grievor shake a dumpster bin “back and forth” and heard “the bang.” [181] Mr. Broad described an alleged encounter with the grievor on a double decker bus. He testified that this took place in 2015, and probably late in the Spring. Broad’s evidence was that he was on the lower level of a bus checking why the bus had been signed in, while the grievor was upstairs. He agreed that in the normal course there was no reason for a Fueler to go to the upper level of the bus after driving it to the Sign- In line, and that he had “no idea” why the grievor was upstairs. Mr. Broad’s evidence was that he heard the grievor say, “Fuck,” in a “pretty loud and angry” voice, and that this was followed by a “bang.” Broad testified that he went upstairs, saw a 12” X 8” hole in the bus ceiling, and asked the grievor, “What the hell are you doing?” His evidence was that the grievor said that he hit his head and “hit the roof.” According to Broad, the grievor said, “You got to help me out – you got to cover for me.” Broad testified that he told the grievor that he would not “cover” for him and that he would have to report this. Mr. Broad acknowledged that the grievor never said that he punched the roof, but that he assumed in the circumstances that “it was a punch.” He could not recall if the grievor made any gestures. He agreed in cross-examination that someone of the grievor’s height might accidentally hit his head on the upper level of the bus. [182] Broad gave evidence that he never told the Supervisor that the grievor hit the roof of the bus, but informed Mr. Gonsalves the next day without mention of the grievor’s name that he might want to look at damage to the roof of a bus, or at a bus - 47 - roof that “got hit.” He testified that he was unaware of any other incident in which the grievor damaged the ceiling of a double decker bus. [183] Mr. Broad also described an interaction with the grievor in the lunch room sometime during the grievor’s final year of employment. Broad testified that he quite often required the use of the service truck in the performance of his duties. He recalled getting in the service truck after the grievor returned it to the garage, and finding that it smelled of cigarette smoke. Mr. Broad’s evidence was that he “had enough” and was “pretty frustrated.” He testified that he went into the lunch room, leaned toward the grievor and said something to the effect of, “Quit smoking in the fucking parts truck.” [184] Mr. Broad agreed in cross-examination that although the garage work environment is not a “tea party,” and although he swears at co-workers when angry, he would not normally speak to someone in such manner. He accepted that “some reaction” from the grievor might have been expected in the circumstances, but testified that the grievor’s reaction was unexpected. [185] Mr. Broad gave evidence that after he confronted the grievor, the grievor jumped up and “spun around,” and that his face was “beet red.” He described that the grievor was eight inches from his face, “angry and puffed out,” and that he believed he was on the verge of punching him in the face. Broad testified that he started to walk out of the room, but that while he was still in the room, the grievor yelled, or loudly stated, “You can’t talk to me like that. It is not your fucking parts truck.” His evidence was that the grievor “sounded “pissed.” According to Broad, Mr. Rochford was sitting next to the grievor and also jumped up. Broad testified that he (Broad) said to the grievor something to the effect of “If you want to discuss this further, let’s go out in the hall,” and that the grievor then followed him out into the hallway. Broad testified that he told the grievor that he was “tired of this,” and that they went “back and forth.” He further testified that they were at that point one or two feet apart from each other, with Rochford standing sideways almost between them, with arms somewhat extended. Broad’s evidence was that he walked away, leaving Rochford talking to the grievor. He testified that he returned to work, and did not report the incident to management. He agreed in cross-examination that the grievor never hit him nor raised his fists, but explained in re- examination that he thought that the grievor was going to hit him as his fists were clenched and his face was “beet red.” He suggested that he nonetheless thought it was - 48 - “funny” that the grievor reacted as he described and laughed. Mr. Broad testified that the grievor apologized to him within a couple of weeks, and that he accepted his apology. He disputed the Union’s suggestion in cross-examination that he also told the grievor that he should not have sworn at him, and stated that he does not “usually apologize for swearing at people.” [186] In cross-examination, Mr. Broad was referred to Ms. Rahim’s notes of their August 17, 2015 meeting. Ms. Rahim recorded therein that Mr. Broad reported that he had approached the grievor in the lunch room, saying “Quit smoking in the truck,” with no reference to the expletive that he acknowledged uttering at the time. Mr. Broad accepted that he probably left the word “fucking” out of his account as Ms. Rahim was in the room and he “did not know if cursing was allowed.” [187] Broad appeared at one point in examination in chief to misunderstand that he was asked to describe the grievor’s interactions with others in the workplace. He responded that he had “heard stories and stuff,” but could not comment. [188] Mr. Rochford also gave evidence in these proceedings regarding his August 17, 2015 meeting with Ms. Rahim and Mr. Hand. He testified that he was not comfortable talking with them while the grievor was working on the fuel line “100 yards away,” and feared retaliation. He recalled that Ms. Rahim told him at that time that his name had been raised as a potential witness, but that he did not wish to be involved. [189] Mr. Rochford was asked in chief why he feared retaliation if he spoke with the Employer about the grievor. He testified that although he had never witnessed the grievor boxing, he “mentioned all the time” that he used to be involved in boxing, and spoke of the number of wins he achieved by knockout. [190] Rochford testified that he saw the grievor “bench press” a garbage dumpster that sat on a skid for a forklift to pick up. He denied in cross-examination that he and the grievor rocked a bin back and forth together. [191] Mr. Rochford testified as well that the grievor punched buses, walls, or “whatever was around,” but that he witnessed no damage. [192] Mr. Rochford stated that the grievor told him about “his past indiscretions with the law.” [193] Rochford described that there are two lanes on the fuel line, and that a fuel pump keypad used in lane #2 functioned poorly and was the ongoing source of frustration for - 49 - Fuelers. Rochford recalled hearing a loud bang when the grievor was working in that lane, and he noted that a plastic flap on a keypad that had been intact the day before was broken. He testified that he asked the grievor what happened, and that he commented that the pump “upset” him. Rochford acknowledged that he did not see the grievor “hit anything” and did not report anything. [194] Mr. Rochford recalled an incident that allegedly took place within the year before the July 2015 phone call incident, and possibly in 2015. His evidence was that he and the grievor were on break, sitting beside each other in the lunch room. Mr. Broad entered the room, and said in a “low voice” to the grievor, “stop fucking smoking in the truck.” According to Rochford, Mr. Broad immediately left the room. He recalled that the grievor said “He can’t talk to me like that,” and immediately stood up, with his chair flying back behind him. Rochford described that the grievor “made a bee line” for Broad and “stormed out,” with his fists clenched, while muttering. According to Rochford, he feared that the grievor “might do something stupid like strike someone,” and could be fired or face criminal charges. He explained that he too therefore ran out into the hall. He recalled that the grievor and Broad were standing “almost face to face,” maybe a foot apart, and that the grievor’s fists were clenched. He testified that he got in between Broad and the grievor, faced the grievor, and said something like, “Think what you’re doing – don’t do this.” Rochford testified that the grievor did not raise his clenched fists and that he heard no verbal threat from the grievor. His evidence was that he nonetheless “absolutely thought he was going to hit” Broad, given the “way he shot out” of his chair, went after Broad so quickly, said “you can’t talk to me that way,” and clenched his fists. Rochford testified that the grievor appeared to calm down, and that Broad and the grievor began to talk. He recalled that he then “disengaged” and returned to the lunch room. He did not report this alleged incident at the time. Rochford testified that he did not notice if Broad’s hands were clenched. [195] Mr. Rochford described as well an interaction on the fuel line which he believed preceded the lunch room incident described above involving Mr. Broad. His evidence was that Allan Bean, a day shift Service Person, left a note asking the night shift Fuelers to clean up after themselves. Rochford testified that when he reported for work on the fuel line one evening, the grievor showed him the note. Rochford testified that he did not “think much” it, and he denied in cross-examination that he was “agitated” or - 50 - complained to management about it. Rochford recalled that the grievor seemed “extremely agitated” at the time and said that the note really “pissed” him off. According to Rochford, the grievor stated that Bean did not know who he was, did not know who he hung out with in his past, and that he could send people to Bean’s house to “mess with his family and break his legs.” Rochford indicated that he specifically remembered the grievor’s alleged reference to “breaking legs.” He acknowledged that he did not report the alleged incident to management at the time, but testified that he advised Mr. Bean of the grievor’s alleged comments. He noted that Mr. Harte was present at the relevant time. [196] Mr. Rochford testified that he ultimately “reached out” to the Employer by e-mail dated August 25, 2015, because he was aware that the grievor was “spreading allegations” about Raja, and “kept telling people” that Raja smoked dope and engaged in insurance fraud. Rochford gave evidence that he did not know if the allegations about Raja were true, but that it seemed wrong to him that “everyone was hearing only one side of the story.” He described that this was his “line in the sand,” that “ethically” he could not “hold back” and that he thus contacted Mr. Hand. [197] Mr. Rochford could not recall when he spoke to Ms. Rahim and Mr. Hand. He testified that the interviewers asked if he had heard the grievor make racist comments, and that he told them that the grievor used the terms “dune coon” and “sand nigger” and commented “on people coming over here.” He acknowledged in cross-examination that he appreciated the importance of accurately reporting what happened, and that it was “surprising” to him if the term “dune coon” did not appear in Ms. Rahim’s notes. He testified that he was “100% sure” that he reported it to the interviewers. X – THE COFFEE TRUCK [198] The evidence established that during the Employer’s investigation into the matters in issue in these proceedings, the grievor received a three day suspension for unauthorized absence from the workplace on August 17 and 18, 2015. A disciplinary letter dated August 26, 2015 was entered in evidence. It referenced a meeting between the Employer, the Union and the grievor on August 19, 2015, and recorded that a three day suspension was imposed, and served on August 19, 22, and 23, 2015. The grievor testified that each Metrolinx facility has a “couple of super sized trucks” and that employees in Oshawa used to take one of them to go for coffee. He gave evidence that - 51 - as a result of his suspension, use of the truck for coffee was no longer permitted. The grievor testified that fellow employees seemed very upset and that it was “very uncomfortable.” He described that use of the truck for coffee was a “big thing” and “the guys took it very seriously.” He acknowledged in cross-examination that “everyone” drove to work and that other than asking for permission, there was nothing stopping them from using their own vehicles to go for coffee. [199] Mr. Raja agreed in cross-examination that the service truck was used regularly for getting coffee. He was cross-examined about the loss of the use of that vehicle for coffee runs. He testified that he “heard of an incident” but was not working at the Oshawa garage at that time. He believed that coffee runs were still allowed, but did not know if this was in the work truck or personal vehicles. [200] The Union questioned Mr. Raja as well about what was referred to as the Baksi incident, a matter that the Union suggested shed light on the reaction of bargaining unit members to the loss of the service truck for coffee runs. While the Union put to Mr. Raja what it expected Mr. Baksi’s evidence to be in these proceedings, Mr. Baksi did not testify. Counsel stipulated that there was to be no adverse inference drawn from the Union’s failure to call him in the circumstances. I therefore heard only Mr. Raja’s evidence with respect to that alleged incident. On Raja’s account, an issue arose one night in 2013 when Raja requested that a co-worker heading out for coffee get him a bagel. Raja understood that Baksi told the colleague not to slow down the coffee order by getting the bagel. Raja gave evidence that this was “no big deal” and that he was not angry, but that he told Baksi that he had no right to instruct their co-worker not to get his bagel. This was followed by further discussion with the Union Steward and with Union Executive Board Member, Mr. Challenger, neither of whom testified in these proceedings. XI - AUGUST 26, 2015 INTERVIEW WITH GRIEVOR [201] Ms. Rahim and Mr. Hand met with the grievor and his Union representative on August 26, 2015, and provided him with correspondence of that same date advising that he was suspended with pay pending investigation of a complaint against him “in relation to several matters of concern.” While the Employer had been aware of allegations against the grievor since late July 2015, this was the first time he was told by the Employer that there was a complaint against him. He was advised that the Employer - 52 - would meet with him and his Union representative on September 3, 2015 and would ask a series of questions relating to allegations including the following: • The incident dated July 27, 2015 between you and . . . Shueyb Raja relating to a shift choice during the sign up period and the events that flowed; [sic] • Threats of workplace violence; • Discrimination/Racial comments; • November 2014, pushing Mr. Raja on the fuel line; • Punching GO Transit property, which includes GO buses; • Smoking on the fuel line and work truck; • Swearing and acting aggressively at your fellow colleagues. XII - THE GRIEVOR’S AUGUST 28, 2015 LETTER [202] The grievor testified that he was “overwhelmed and shocked” upon receipt of that letter, and over the next couple of days worked on his own letter to communicate to the Employer his “side of the circumstances.” He stated in that letter, dated August 28, 2015, that he was “saddened” that Raja said “nasty things” about “an old friend.” He referred to “all the illegal things” that Raja did in the workplace and in his personal life. He noted that he had kept these “personal and confidential,” and that it had taken “everything in my heart not to tell . . . other employees” about Raja’s alleged drug use. He suggested that these matters were “always the center of all” their arguments. The grievor noted that Raja was “very glad” to work with him in Oshawa in November and December 2014, and that the two of them were “happy to see each other.” He suggested that this continued regularly “until the third or fourth Sunday” at which time he noted a change in Raja’s behaviour. He described that he observed Raja at that time take his vehicle and leave the property. He stated that the “once happy to see me, talkative person” became “shy, always trying to . . . avoid conversation . . . and [that] he would be consumed with his work.” In his letter, the grievor further noted that “on more than one occasion” he “smelt” what he “thought” was marijuana on Raja. He described that all “came to truth” the “next Sunday” after his “suspicion of him smoking drugs during work hours.” He described the alleged marijuana incident, and noted that when he startled Raja in his car, Raja “spilt everything.” He reported that “shortly after that,” Raja rolled down his car window, and they spoke. He suggested that Raja was thereafter “paranoid” and that this is “why we had our first argument November 2014.” The grievor stated that “Marco” was a witness to that argument, as he “was behind” - 53 - Raja “the whole time.” He suggested as well that Raja revealed to him in March 2015 “how easy it was for him to lie to the Insurance Company about a neck injury that didn’t exist,” and that he planned “on doing this illegal action once again.” He commented in closing as follows: . . . [F]rom my heart to yours, I . . . believe that . . . Raja is very embarrassed that I assumed he was using drugs at the workplace during work hours and had no way out of this when I caught him red handed. He has been paranoid that I would tell . . . . of this and all his other behaviours so this is his way to hurt me, tell lies and take the attention away from him.” [sic] XIII – SEPTEMBER 3, 2015 INTERVIEW WITH GRIEVOR [203] The grievor and his Union representative met with Ms. Rahim and Mr. Hand on September 3, 2015 and he was asked a number of questions. Ms. Rahim’s notes taken at the time were entered in evidence, and the grievor accepted that they accurately summarized what was discussed. The grievor provided the Employer with his August 28, 2015 letter during the September 3 meeting. [204] Ms. Rahim acknowledged in cross-examination that the grievor answered every question asked during the September 3 interview. She accepted that he provided “fairly strong denials of misconduct,” and that there were “no shades of grey.” Ms. Rahim agreed that other than that set out in the Employer’s August 26, 2015 correspondence, he was not made aware in advance of the questions he would be asked, and that he responded to them without notes in front of him. [205] Ms. Rahim recorded the following comments regarding an encounter with Mr. Raja in Niagara Falls on July 1, 2015: . . . July 1st he’s a friend at Niagara Falls, he was very pleased to see me, we spoke. . . ., played with his child he got no help for substance abuse. We were friends. Ask him to get help, he didn’t. [sic] [206] Ms. Rahim noted that the grievor had his phone with him during their meeting, and that he looked at it when he was provided with the screen shots from Mr. Raja’s phone for July 26-27, 2015. She testified, and recorded in her interview notes, that the grievor confirmed the accuracy of the text message record from Raja’s phone. Ms. Rahim also testified, and recorded in her notes at the time, that she asked the grievor several times if she could see his phone but that he declined to permit her to do so. - 54 - [207] Ms. Rahim noted that the grievor denied threatening Raja or using discriminatory language. She noted the grievor’s reference to past “arguments” with Raja about his alleged drug use and false insurance claims. She recorded the following exchange: Q/ You called in relation to a shift selection correct? A/ Yes, just curious. Knowing Gary Hart [sic] planning to go to Lincolnville, wanted to know where he was going he’s my friend. Q/ Why was Shuyeb’s shift selection of importance to you? Wasn’t important to me, we are friends we talk, plan to golf, friendly conv started [sic] [208] Ms. Rahim also noted the following comments regarding July 27, 2015: I phoned Shuyeb. . . to ask him what his shift preference would be. He became cranky said he wasn’t sure if he was going to take all holiday shifts in Oshawa – stat holidays [sic] [209] Ms. Rahim noted that the grievor denied saying “why can’t you guys fucking make up your mind and pick one choice,” and stated: he was being cranky, . . . don’t know if I want to come to Oshawa, take all OT, holiday hours, more sr. he’s embarrassed w situation we had, being cranky with me [sic] [210] Ms. Rahim recorded that the grievor reported that Raja stated as follows: he said I will sue u and fat girlfriend until you are so broke, you will not be able to buy a pack of cigarettes – those double decker buses built in Scotland are pieces of shit, just like your broke fuckin ass. I will deport you back to Scotland and have you lose your job at GO transit. My response: you fat, lazy, insurance scamming, dope smoking piece of shit, sue me for what? . . . end of conv haven’t spoken to him since. . . . [sic] [211] The interview notes also reflect the following exchange: Q/ After that Shuyeb says he tells you that you’re on speaker and his family heard and he will be calling the cops to which you hung up the phone. . . . . . . . A/ not true, beginning of conv. . . . . I find it funny recording call . . . said at beginning not at end [sic] - 55 - [212] Ms. Rahim noted as well discussion regarding the alleged November 16, 2014 incident. She recorded that the grievor denied threatening and assaulting Raja on the fuel line and said “that’s why he [Raja] didn’t report it – waited 1 yr later when his drug use came up.” [sic] She noted the following further comments: we were friends . . . he’s coming to Oshawa constantly asking did you tell anyone about drugs now no choice to bring it up [sic] [213] She recorded that the grievor denied saying “sand niggars come in this country, fuck it up for hard working people like us, fucking arabs come to this country and fuck it up for us.” [214] Ms. Rahim’s notes reflect that the grievor was asked if he smoked on the fuel line. In cross-examination, she acknowledged that he admitted to having smoked in an inappropriate location. She noted that he also commented as follows: “all use to smoke inside by fuel line.” [sic] [215] Ms. Rahim recorded the grievor’s denial that he ever hit, punched and kicked buses or punched Employer property, or that he ever lost his temper with co-workers. Her notes reflect that the grievor denied having “an anger management issue or any other issues” of which the Employer should be aware. [216] Ms. Rahim’s notes reflect as well that the grievor was asked whether he punched a double decker bus. Ms. Rahim recorded that he said that he is six feet tall, that he banged his head and reported this to Mr. Gonsalves, and that Mr. Broad then repaired the damage. [217] Ms. Rahim’s notes reflect discussion regarding an exchange with Mr. Broad regarding smoking in the service truck. She recorded in part the grievor’s response as follows: He [Broad] approached me from behind put head up to my ear, yelled in front of everyone said Don’t fucking smoke in truck . . . . I got up from chair said ‘are you kidding me’ he apologized and sorry man ‘don’t smoke in truck anymore’ . . . are you kidding me or are you fucking serious? I was floored. [sic] [218] Ms. Rahim recorded that the grievor was asked if he said something like “I got friends, all I got to do is make a call and they will break his legs” after a co-worker left a - 56 - note asking him to clean up his work area, and that the grievor’s response was, “Oh my goodness, no.” [219] Ms. Rahim recorded the grievor’s denial that he swore and got upset when asked to take his feet off chairs, or when co-workers told him not to change the TV station. [220] Ms. Rahim testified that the grievor denied that he mentioned to co-workers any “record for assault,” or that he had such record. [221] Further, Ms. Rahim’s notes reflect that the grievor commented as follows: . . . Tell you from my heart. . . . Shueyb and I were very happy to work his OT shifts. We spent most, if not all our time together sharing food, drinks (don’t drink), sports knowledge – ever since suspicion of marijuana use came about Change our relationship as friends – after incident caught him – no way out of this – want clearly noted, I kept this personal and confidential b/w him and I – we have arguments in past – all centered around marijuana use. . . miss him as a friend. . . wish didn’t catch him in parking lot – this wouldn’t come about…. [sic] [222] Ms. Rahim testified and her notes reflect that shortly after the interview concluded, the grievor returned to the boardroom with his Union representative. Ms. Rahim’s notes state that the grievor advised at that time that his co-workers were upset “because not allowed to go for coffees anymore” and that “when upset, don’t have the nicest things to say about you.” [sic] XIV - FURTHER INVESTIGATION [223] Ms. Rahim testified that she asked Mr. Hand to interview Mr. Kao, and to explore the grievor’s allegation of Raja’s marijuana use. E-mails dated September 4 and 8, 2015 from Mr. Hand to Ms. Rahim were entered in evidence as proof of what Ms. Rahim was told by Mr. Hand. Mr. Hand stated by September 4 e-mail that he asked three supervisors if they suspected that Raja used marijuana or if they heard “shop talk” about this and that “All 3 answered NO, Never.” [sic] In the September 8 e-mail, Mr. Hand advised Ms. Rahim that a fourth supervisor said “he never smelt anything on or around” Raja. [224] A further e-mail dated September 8, 2015 from Mr. Hand to Ms. Rahim was also admitted as evidence of what Ms. Rahim was told. Mr. Hand’s e-mail states in part as follows: I called Marco. . . . - 57 - I explained that we were investigating an incident that was claimed to have occurred on the fuel line in Oshawa on November 16, 2014 which he may have witnessed. I asked him if he remembered Paul Paterson and Sheuyb Raja getting into a fight and Paterson putting his dirty gloved hand in Raja’s face and pushing him? Marco replied that he does not remember them fighting however he remembers they had an argument about something. I did not see them push one another. . . . [225] Ms. Rahim testified that she asked Mr. Hand to meet with Mr. Raja with respect to the matters raised by the grievor. Counsel agreed that Mr. Hand’s notes of a September 8, 2015 meeting with Mr. Raja were to be admitted as “an accurate reflection of the meeting that occurred.” [226] Hand’s notes reflect in part the following: Q/ Have you ever used drugs on GO transit property while on duty? A/ Never. Q/ Paul states he caught you about a year ago in parking lot, on duty OT shift, with scissors in one hand, marijuana in another. Is this true? A/ He knows I am practicing Muslim and he is insulting me, my faith, my practice by making allegation against me – 100% lie. Q/ Paul says he has smelt marijuana on you on a regular basis – have you been smoking on duty or prior to duty? A/ Never touched M in my life. Q/ Faulty insurance claims – threaten to sue Paul and his “fat” girlfriend – saying you will be so broke, you won’t be able to buy a pack of cigarettes, DD busses built in Scotland are a piece of shit just like tour [sic] broke ass – was this comment made? A/ 100% lie – Never had any ins claim, ever. Q/ Comment – deport you back to Scotland and have you lose your job at GO – was this comment made? A/ Not even sure he was Scottish. Never said this . . . Q/ Paul says he caught you smoking drugs and this complaint is as a result of your fear that he will tell others that you are a drug addict. How do you respond? - 58 - A/ No such thing. No conversation. None of these things exist. Q/ It’s also alleged that this complaint is all about your 20 owed. If you were paid the 20, would you have filed the complaint A/ . . . This complaint is about the Racial and Religious slurs. I would have still filed the complaint. [sic] [227] The following comments were also noted by Mr. Hand: Shueyb would like it on record that all these allegations, making them up. He knows I am Muslim and he is doing it to paint me as a bad Muslim. He sees me pray and fasting. I think he is doing this to give me a bad name in the Company. . . . . I wish to file a complaint regarding these allegations. [sic] [228] Mr. Raja too gave evidence that he met with Mr. Hand. He acknowledged that he told Mr. Hand that he wanted to file a complaint as referenced in Hand’s notes. He initially testified in cross-examination that Mr. Hand told him it was not necessary to do so as the grievor had been terminated. Later in cross-examination, he recalled that Mr. Hand told him to “hold off” and that the grievor had been suspended or terminated. XV - THE GRIEVOR’S FURTHER TESTIMONY [229] The grievor recalled an incident in the lunch room involving Mr. Nesbitt. His evidence was that he had recently had foot surgery and was resting his feet on a chair while on break. His evidence was that Nesbitt “yanked” the chair out from underneath him, and that he nearly landed on the floor. The grievor acknowledged that he did not appreciate this, and that he understood that Nesbitt, a Cleaner, did not appreciate dirt on a chair. The grievor denied, however, that there was any aggression, anger or clenched fists, and that he and Nesbitt simply went their separate ways after Gonsalves said, “Guys.” He recalled that both he and Nesbitt later apologized to each other. [230] The grievor addressed as well Nesbitt’s allegation of a lunch room incident involving changing the television channel. He testified that he had no direct exchange with Nesbitt regarding changing channels, and that he never went into the lunch room, took control of the channel changer, and slammed it down. [231] The grievor responded to allegations made by Mr. Broad. He recalled that he was in the lunch room with Mr. Rochford when Broad approached him from behind, and in a loud voice said, “Don’t fucking smoke in the rover truck anymore.” The grievor acknowledged that he was the last one in that vehicle, and had been smoking. He - 59 - recalled that Broad immediately walked away, and that he “could not believe what happened.” The grievor testified that he wanted to confront Broad about why he spoke to him in such manner but waited for him to leave the lunch room. He explained that he showed first that he is a “gentleman,” but that he does not just put his “head down.” The grievor recalled that he walked towards Broad when he was outside of the lunch room and said, “Who the hell do you think you are talking to me like that?” He testified that Rochford was present. His evidence was that Broad immediately acknowledged that he should not have spoken as he did, and that he in turn assured Broad that he would never smoke in the truck again. The grievor described that he and Rochford then returned to the lunch room, and Broad returned to work. He denied that he was red in the face, that his fists were clenched, or that he was “ready to fight for my life.” He testified that he in fact never clenched his fists in anger in the workplace. The grievor gave evidence that it was subsequently apparent to him that Broad was uncomfortable because they had not “put a period at the end of the sentence,” but that they got through their “animosity with each other” by both apologizing a couple of weeks later. [232] The grievor addressed as well Mr. Broad’s allegation with respect to a damaged ceiling of a double decker bus. The grievor recalled only one occasion upon which he damaged the roof of a bus, and believed that this took place in late 2014. He described that he accidentally hit his head and damaged the roof of the bus at that time. He denied that Broad was present, or that he asked him to “cover” for him. He testified that he informed Mr. Gonsalves that he hit his head on the ceiling and that Mr. Gonsalves took photos of the damaged area. The grievor was unable to confirm whether photos entered in evidence were those taken by Mr. Gonsalves at that time. He testified that he brought the bus to Broad’s department as instructed by Gonsalves, and carried on with his shift. He recalled no discussion with Broad. [233] In response to Mr. Rochford’s evidence, the grievor denied that he ever hit a keypad cover on the fuel line although he recalled that it was cracked. [234] He gave evidence with respect to the so-called Allan Bean incident. He recalled that although he and Rochford took great pride in their work, Bean nonetheless left three different letters for them. He testified that Rochford felt that he was being blamed by Bean and did not appreciate this. The grievor’s evidence was that Rochford reacted by taking each letter to the Supervisor, and he recalled that Rochford called Bean. His - 60 - evidence was that Bean’s complaints were “simple fixes,” and that there was no anger or threats. He denied saying that he “had friends” and would have “legs broken.” He recalled that he and Rochford laughed, and that he, Bean and Rochford all “got along.” [235] The grievor gave evidence as well that he has never boxed, and never communicated to anyone in the workplace that he was a boxer. He denied that he shadow boxed in the garage, or punched, hit, or kicked buses or any Employer property. He laughed when asked if he walked through the workplace yelling profanities and denied doing so. He recalled rocking a large dumpster once with Rochford. [236] The grievor was cross-examined about his September 2015 interview with the Employer. He could not recall Ms. Rahim asking for his phone or texts, although he acknowledged that he had his phone with him, and that it was possible that Ms. Rahim made such request. He testified, however, that if asked, he “would have given it up.” [237] The grievor denied allegations of assault, racial slurs and threatening conduct. He was cross-examined as to why he believed that a number of bargaining unit co- workers fabricated tales of serious misconduct. In particular, the grievor was asked if he believed that Mr. Raja did so to ensure that his alleged marijuana use and insurance fraud were not revealed. The grievor testified that he “leans more to marijuana” and suggested that this was “one of the strongest reasons” for Raja to lie. [238] In further cross-examination, the Employer put to the grievor that Raja would have recognized that complaining about the grievor virtually guaranteed that his own conduct would also come under scrutiny. The grievor accepted that co-workers would expect that he would stand up for himself “as a gentleman” if falsely accused. He testified that although he is an “easy going gentleman,” nobody would think of him as a “pushover.” [239] The grievor was asked what happened between July 1, 2015 when he and Raja hugged each other in Niagara Falls, and late July 2015 when Raja allegedly made serious false allegations against him. The grievor testified that Raja perhaps sought to discredit anything he might say by accusing him of racism, threats and assault, and ensuring he was fired. [240] The grievor commented as well on Messrs. Broad, Rochford and Nesbitt. He testified that he was friendly with everyone at work. He described Rochford as a friend and noted that he saw Broad for only a “few seconds” each shift. The grievor was at a - 61 - loss to explain why these colleagues would make false allegations against him. He suggested that they had heard false allegations against him of racism and assault, and false reports that he had a criminal record for assault. On top of that, he suggested that they were upset with him about the loss of the service truck for coffee runs. He testified that they perhaps then “took normal incidents” and chose to “amp” them up into something more than they were. He noted that it was “unfortunate that some people hear rumours and join in,” and that he wished his co-workers had been honest. XVI - INVESTIGATION REPORT AND DISCHARGE [241] Ms. Rahim described her observations and perceptions regarding the emotional state of witnesses interviewed, and gave evidence as well as to how the allegations addressed during the 2015 investigation impacted on her. She testified, however, that she kept an open mind in considering and assessing witness accounts offered over the course of the investigation, and that credibility was only assessed after hearing from all witnesses. She testified that she and Mr. Hand considered the “totality” of what they had heard, before forming the view that the allegations against the grievor were credible and that the grievor was not credible in his denial of wrongdoing. [242] Ms. Rahim testified that the grievor’s allegations against Raja were explored and considered, but did not “negate” Raja’s allegations of threats, racism, and violence. [243] She further noted that the grievor’s allegations against Raja did not account for the statements of other bargaining unit witnesses. She considered it a “fair stretch” and “highly improbable” that the loss of the service truck for coffee would motivate fellow bargaining unit members to make serious false allegations against the grievor. [244] Ms. Rahim commented on the evidence that the grievor told colleagues of his criminal record. She noted that whether or not he had such record was “irrelevant” to the Employer, but that what concerned her was that he told staff that he had a record, and that he punched cabinet doors and boxed, and that this all “went to the intimidation factor” in the workplace. [245] She was asked in her evidence in chief about the alleged lunch room incident reported by Nesbitt where Nesbitt pulled the grievor’s chair out from under his feet. Counsel noted that a Supervisor was present at the time, and asked why Ms. Rahim noted this incident in compiling her investigation report. She testified that it went to the “greater picture” of the grievor’s workplace conduct. - 62 - [246] Ms. Rahim testified that the grievor’s disciplinary record was considered. There is no dispute that within his approximately four years of service, this consisted of a March 2015 written warning for “inappropriate use of a corporate vehicle” and the above referenced August 2015 three day suspension for “leaving the Oshawa facility without authorization.” [247] She noted the grievor’s lack of remorse, and suggested that he went to “great lengths” to “bring up assertions about Raja” and to avoid taking responsibility for his actions. [248] Ms. Rahim referenced the Employer’s statutory obligations to provide a safe working environment and one free of prohibited discrimination, as well as the Employer’s Workplace Harassment and Workplace Violence policies. [249] Ms. Rahim testified that she drafted the Investigation Report dated September 16, 2015, and recommended therein that the grievor be discharged. That report addressed in part allegations of November 2014 and July 2015 misconduct. Also specifically mentioned therein were allegations related to the Alan Bean incident, the interaction with Mr. Broad regarding smoking in the service truck, and punching and kicking buses. Ms. Rahim testified that these allegations “stood out” for her, but that she did not believe it necessary to include therein everything in her notes, and did not do so. Ms. Rahim testified that after her recommendation was approved, she prepared the discharge letter dated September 24, 2015. [250] Ms. Rahim and Mr. Hand met with the grievor and his Union representative on September 24, 2015, advised of the Employer’s decision to discharge him, and provided the grievor with the discharge letter. XVII - POST-DISCHARGE [251] The grievor gave evidence that he was “offended” in his heart by allegations of racial slander, and that it was “very hard to live with people thinking” he so spoke. He testified that the allegations against him and his discharge have significantly impacted him physically, emotionally, financially, and spiritually. He stated that he had to “cut corners” financially, but managed “with difficulty.” He testified that it has been very difficult to be accused of “so many wrongful untrue things.” [252] He testified that he attended an Anger Management program after his discharge to assist him in dealing with “such a loss” for “something” he “did not do.” He confirmed - 63 - in cross-examination that he has not otherwise spoken to any doctor, psychologist or therapist, or participated in any program addressing anger issues. SUMMARY OF SUBMISSIONS [253] In the Employer’s submission, the evidence establishes that the grievor “did what he was alleged to have done” in the investigation report and discharge letter. It asked me to find that the grievor pushed, threatened and intimidated Mr. Raja on November 16, 2014, hurled racist slurs at and threatened him with violence on July 27, 2015, and shortly thereafter used further racist language and made derogatory comments about Raja to Mr. Rochford. [254] The Employer referred to the evidence of lunch room incidents involving the grievor and Broad, and the grievor and Nesbitt. Counsel acknowledged the evidence that Mr. Gonsalves, a Supervisor, was present in the lunch room at the time that Nesbitt allegedly had an encounter with the grievor after telling him to remove his feet from a chair. The Employer suggested, however, that such alleged incident is now “something different” than what it was as of that time, and forms part of a “bigger picture of a reign of fear by the grievor.” The Employer addressed as well the evidence of the alleged Alan Bean incident and of Mr. Broad’s alleged encounter with the grievor on a double decker bus. [255] The Employer suggested that the grievor engaged in aggressive and intimidating workplace conduct in a number of other respects as well. It noted evidence before me that he was a “loose cannon” in the workplace, with an “explosive temper.” Counsel asked me to find that he stood with his fists clenched, rolled his shoulders, punched the keypad cover, exhibited a reddened face when in an agitated state, rocked dumpsters, punched buses, punched walls, walked through the facility shouting profanities, and told co-workers that he was a boxer. While Counsel acknowledged that these were not the “central features” of this case, he argued that they go to the issue of cause insofar as they reflect the poisoned workplace atmosphere generated by the grievor. In Counsel’s submission, such evidence must also be considered in assessing the grievor’s credibility. [256] The Employer asserted that its witnesses were credible, and it asked me to accept their evidence whenever it was at odds with that of the grievor. Counsel noted - 64 - that Nesbitt was a Union Steward by the time that he testified in these proceedings, and that bargaining unit witnesses were clear that “Union brothers stand together.” [257] The Employer emphasized that its witnesses had nothing to gain by fabricating stories about the grievor. In contrast, Counsel suggested, the grievor had “every reason” to stray from the truth, and “conspicuously did so.” [258] The Employer commented that the grievor was afforded the opportunity in cross- examination to offer some explanation as to why his fellow bargaining unit employees falsified startlingly similar tales of alleged misconduct. While the Employer acknowledged that it bears the onus of demonstrating just cause, it submits that to the extent that the Union asserts an “alternate explanation” it must “put that forward.” [259] The Employer commented on the Union’s theory that loss of the service truck for coffee runs may have been a factor in bargaining unit employees fabricating serious tales against their co-worker. Counsel argued that it was simply “irrational” to suggest that the grievor’s co-workers were so “incensed” about the loss of this privilege that they embarked upon a conspiratorial plot to bring about the grievor’s downfall. Particularly noteworthy, in the Employer’s submission, was the grievor’s acknowledgement that most co-workers drove their own vehicles to work, and could use them when going for coffee. Counsel suggested that Raja’s “genuine surprise” when questioned about the grievor’s theory was also notable where the loss of the service truck privilege lay at “the heart of the conspiracy theory.” [260] The Employer suggested that the grievor’s position throughout has been that Raja framed him, and invented tales of racism, threats and violence in a misguided effort to cover up his alleged marijuana use and insurance fraud. Counsel argued that such theory simply makes “no sense,” and that Raja was a credible witness. He emphasized that on the grievor’s own evidence, he and Raja were two friends happy to see each other in Niagara Falls on July 1, 2015. The Employer argued that the Union asks me to find that Raja was, however, within the same month then inexplicably overcome by all consuming fear that others would know of his alleged marijuana habit, and thus concocted tales of racism and violence so as to “dispose” of the grievor. [261] In the Employer’s submission, the accusations leveled against Raja by the grievor are nothing more than a transparent attempt to deflect blame and to vilify his accuser. Counsel suggested that it is most unlikely on the grievor’s version of the facts - 65 - that Raja would advance false allegations that would invariably result in the spotlight being shone on his own conduct. The Employer argued that such evidence does nothing to cast doubt on Raja’s account of the relevant events. [262] Counsel reviewed Ms. Rahim’s evidence. He argued that the Employer engaged in a careful and thorough investigation, considered the evidence of a number of witnesses, and reached its conclusions only after assessing all that it heard. The Employer considered and investigated the grievor’s allegations against Mr. Raja. Like much of what the grievor put forward, his accusations were found lacking in credibility. The Employer ultimately concluded that these did not diminish the proven misconduct of the grievor, and that Raja remained a credible witness. It concluded that the grievor engaged in a pattern of misconduct, generated an environment that was intimidating, threatening, potentially violent, and in some cases actually violent. The Employer considered the grievor’s disciplinary record, his lack of remorse, and his complete denial of wrongdoing. [263] The Employer referenced article 2.2 of the collective agreement reflecting the parties’ agreement to comply with the Human Rights Code (“the Code”). It referenced its obligation under the Code to provide a workplace free of prohibited discrimination. Counsel referred as well to the Employer’s obligations under the Occupational Health and Safety Act, and particularly the Bill 168 amendments thereto. Counsel noted the Employer’s obligation to “take every precaution reasonable in the circumstances for the protection of a worker.” He emphasized that under section 1(1) of the legislation, “workplace violence” includes “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker.” Counsel referred as well to Employer policies in evidence in these proceedings, which he suggested reflect its statutory obligations. [264] In Counsel’s submission, the Employer considered its obligations and the evidence in its entirety, and determined “as part of fulfilling its obligations” that it was appropriate that the grievor “be removed from the workplace permanently.” [265] The Employer acknowledged the “phenomenon” that certain Employer witnesses claimed that they were not intimidated at relevant points in time, but rather were “inclined to play it tough.” In Counsel’s submission, irrespective of whether or not a particular individual was intimidated at a given moment, there can be no question that - 66 - the grievor’s conduct was threatening and intimidating, and not to be tolerated in the workplace. [266] Counsel urged me to conclude that the grievor’s proven misconduct in its totality constitutes just cause for discharge, although he suggested that discharge is justified on the basis of any one element of the misconduct in issue here. In the Employer’s submission, not only did the grievor engage in repeated and serious misconduct, but he then failed to take responsibility for his actions, and instead “busied himself pointing his finger at everyone else.” The Employer noted in particular the grievor’s evidence that he attended an anger management program subsequent to his discharge to assist him in dealing with his loss for “something he did not do.” Counsel asked me to take into account the grievor’s disciplinary record, which he suggested reflects past failures to abide by Employer policy. The Employer emphasized its statutory obligations referenced above. It urged me to conclude that the employment relationship cannot be salvaged and that discharge was justified in all of the circumstances. Counsel argued that there is no evidence of mitigating factors here that would justify the substitution of a lesser penalty, and he urged me to deny the grievance. [267] The Employer relied upon the following authorities: Clarendon Foundation (Cheshire Homes) Inc. and OPSEU, Loc. 59 (2006), 2006 CarswellOnt 10804 (Fisher); Peel District School Board and CUPE, Loc. 2544 (2003) 2003 CarswellOnt 10473 (Herman); Mount Pleasant Cemetery Group and CAW-Canada, Loc. 1643 (2010), 2010 CarswellOnt 5361 (Reilly); Canadian National Railway and CAW, Loc. 100 (2013), 2013 CarswellNat 3274 (Monteith); Plastipak Industries Inc. and U.S.W. (2012), 2012 CarswellOnt 7659 (Jesin); GO Transit and A.T.U., Loc. 1587 (2005), 2005 CarswellOnt 8412 (Grievance Settlement Board); Kautex Textron and CAW-Canada, Loc. 195 (2003), 2003 CarswellOnt 9196 (Etherington); TRW Canada Ltd. and T.P.E.A. (2002), 2002 CarswellOnt 3853 (Barrett); and TRW Canada Ltd. and T.P.E.A. (2003), 2003 CarswellOnt 530 (Div. Ct.). [268] Union Counsel posed three questions to be addressed herein. First, I must determine whether the Employer has proven that the grievor engaged in employment related misconduct. Second, if misconduct is proven, I must determine whether discharge is the appropriate penalty. While the Union acknowledged that at least proven workplace violence or racist language is serious misconduct, Counsel suggested - 67 - that there is a range in the seriousness of the various allegations before me here, and that appropriate penalty must be determined on the basis of what alleged misconduct I may find proven. Third, the Union argued that my discretion under section 48(17) of the Labour Relations Act, 1995 should be exercised in the event that I find in the Employer’s favour on the first two questions. [269] In the Union’s submission, the Employer failed to prove that the grievor engaged in the alleged misconduct. The grievor strenuously, credibly and consistently denied the allegations against him. The Union alleges that the Employer embarked upon a “faulty” investigation, and believed the “wrong people” after allowing witness demeanour to “carry the day” rather than a proper analysis of the evidence. [270] Union Counsel noted that I have before me multiple and largely irreconcilable versions of the alleged incidents, and that the assessment of credibility will be key to my determination. Counsel referred to a number of authorities offering guidance in this respect. He cautioned against basing conclusions upon impressions of witness demeanour, and urged me instead to consider the consistency of evidence with the surrounding probabilities. [271] The Union made the point during these proceedings that credibility is not to be approached as if in “watertight compartments.” Rather, if a witness is found to be dishonest on a given point, I must bear this in mind in considering his evidence in its totality. Counsel acknowledged that “being caught in a clumsy lie” may not be fatal to the overall assessment of credibility, but emphasized the need to consider the totality of the evidence before me and to “see how it all fits together.” [272] The Union emphasized that it is the Employer that bears the onus of proof in these proceedings. Counsel stated that the Union need not disprove allegations nor provide an explanation for false evidence upon which the Employer relies. That said, the Union addressed why on the grievor’s version of the facts, multiple Employer witnesses may have been prepared to say things about him that were untrue. Counsel commented on the evidence before me regarding loss of the use of the service truck for coffee runs. While the grievor acknowledged in cross-examination that his colleagues could use their own vehicles to go for coffee, Union Counsel suggested that this was not a desirable option given that employees check oil and fuel, and clean “puker buses” during the course of their duties. - 68 - [273] The Union suggested that “a number of things came together” that impacted on the perceptions of bargaining unit witnesses who testified for the Employer. Counsel noted evidence of workplace rumours of the grievor’s alleged criminal record and alleged racist conduct, and queried whether such rumours, together with the friction associated with the loss of the service truck, resulted in “group behaviour” with “everyone jumping on the band wagon.” The Union pointed out that a number of the allegations in issue here are dated, and that in all of the circumstances, it may be that bargaining unit members were not “untruthful”, but were “incorrect” in “misremembering” the events of the past as more “nefarious” than they in fact were. [274] Counsel suggested that the Employer’s witnesses changed, added and deleted details from their accounts of relevant events, and that such alleged inconsistency in what they have reported reflects adversely on their credibility. He noted what he characterized as an internal inconsistency in the position advanced by the Employer. While the Employer asked me to find that the grievor’s co-workers “lived in fear” of him, the Union suggested that such assertion makes no sense where the evidence established that Nesbitt felt free to “yank” a chair out from underneath the grievor, Broad “yelled in his ear,” and Raja phoned him within hours of the alleged November 2014 fuel line incident. [275] The Union saved its strongest criticism for Mr. Raja. It asked me to consider the grievor’s evidence that he encountered Raja with marijuana in his vehicle during working hours, and that this produced “friction” in their subsequent relationship, from which “issues arose.” Counsel suggested that if I accept the grievor’s view of the facts, this “could ground a desire for Raja to silence the grievor.” [276] The Union took the position in final argument that even if I am not satisfied that motive for Raja to fabricate tales about the grievor is established through evidence surrounding the marijuana incident, I must nonetheless consider such evidence in assessing Raja’s credibility in these proceedings. [277] The Union asked me as well to consider the evidence of alleged communications between Raja and Andrew Paterson surrounding the alleged First Aid Room incident. While Counsel acknowledged that Andrew Paterson testified as the brother of the grievor, he suggested that he was clearly an honest witness. The Union commented on Andrew Paterson’s recollections with respect to the relevant date, and acknowledged - 69 - that his evidence in this regard was irreconcilable with that of Raja. The Union argued that it is nonetheless apparent that Raja and Andrew Paterson were speaking of one and the same incident during their testimony, and that there is no reason to believe that there may have been a second incident of the same nature. [278] What is most significant in the Union’s submission is Raja’s claim that Andrew Paterson had food for his brother, and that he later called the grievor a “fucking idiot” and told Raja to contact him if he encountered problems with the grievor. While the Union acknowledged that Andrew Paterson was not absolutely certain as to whether he had any further contact with Raja, Counsel suggested that there is a “world of difference” between uncertainty on that point and his outright denial that he referred to his brother in such manner. In the Union’s submission, if I accept Andrew Paterson’s view of the facts, the Employer is in “a world of trouble” insofar as it seeks to rely upon Raja as a credible witness. [279] The Union further suggested that Raja struggled throughout his evidence to provide a consistent account of alleged events, and repeatedly showed an inclination to “turn up the volume” so as to “make allegations bigger than they were.” This, in Counsel’s submission, is fatal to his credibility and must lead me to reject his evidence on contentious points. The Union reviewed in detail Raja’s accounts given at various times regarding the alleged November 2014 and July 2015 events, and suggested that these were “ever changing” not simply with respect to peripheral details, but in relation to the “key allegations.” [280] Devastating to the assessment of Raja’s credibility, in the Union’s submission, was his evidence that there was a “chill” in his relationship with the grievor and a period of silence between the two men following the November 2014 fuel line incident. The Union sought to rely upon the Fido records entered in evidence, suggesting that they clearly demonstrate that Raja was wrong. [281] The Union referred as well to the evidence of the text messages exchanged by Raja and the grievor on July 27, 2015. Counsel asked me to note that it was the grievor who sought to deescalate what clearly became a heated argument, while Raja who regarded himself as always a “victim” chose to “double down” and “keep going back in.” [282] The Union referred to the evidence that Raja told the grievor on July 27, 2015 that his wife was listening to their call. Counsel argued that the evidence proves that - 70 - this was an outright lie, and that Raja’s lack of honesty in so stating must be considered in assessing his credibility on other points here. The Union further suggested in final argument that Raja so commented at the beginning of the final call with the grievor that night. In Counsel’s submission, it was most unlikely that the grievor would then have chosen to “unload” on Raja with alleged racist language after being falsely informed that there was a witness to the call. [283] The Union addressed the Employer’s allegation that the grievor used racially offensive language in speaking to Rochford shortly after July 27, 2015. Counsel emphasized that the words “dune coon” are not reflected in Ms. Rahim’s notes of her interviews with either Raja or Rochford, despite Rochford’s evidence that he communicated those words to her. The Union suggested that it is highly unlikely that words of that nature would not have “stood out” and been recorded at the time. Counsel asked me to find that Rochford’s evidence that the grievor used the words “dune coon,” and Raja’s evidence that Rochford reported to him at that time that the grievor used such language must be regarded as “late breaking allegations” undermining the credibility of both Raja and Rochford. [284] The Union commented on the Employer’s allegations that the grievor “rolled his shoulders” and said he was a boxer. While Counsel accepted that the grievor’s denial of such conduct may be properly considered in my assessment of credibility, he argued that such alleged behaviour does not constitute workplace misconduct even if proven. [285] The Union addressed the Employer’s allegation that the grievor punched a hole in the ceiling of a double decker bus. Counsel noted that there was no evidence before me of a “report” or of steps taken by Metrolinx Supervisor, Mr. Gonsalves, who was not called as a witness and did not contradict the grievor. [286] The Union acknowledged allegations that the grievor hit buses, broke a keypad cover and rocked dumpster bins, but suggested that there was a “complete lack of concrete detail” associated with such claims. [287] The Union argued that the grievor provided an accurate and complete version of what transpired in all circumstances relevant in these proceedings. Counsel suggested that the grievor, unlike Employer witnesses, was consistent in what he reported throughout. He argued as well that unlike Raja, the grievor was honest when he could not remember something, was focussed on getting at the truth, and readily accepted - 71 - responsibility for his role in the November 2014 and July 2015 incidents. In the Union’s submission, Raja in contrast refused to accept that he was ever at fault, and instead regarded himself as “always a victim.” The Union suggested that the grievor did not “attack anyone” but was forthright in simply reporting what happened. [288] In response to my question, Counsel addressed how I should approach the evidence should I conclude that both the grievor and any Employer witness were in some respects not credible. He acknowledged that “what is good for the goose is good for the gander” and accepted that I will consider any errors and/or “mistruths” I may find in the grievor’s testimony in assessing his evidence as a whole. Counsel emphasized, however, where the onus of proof lies in these proceedings, and argued that if I find the Employer’s evidence unbelievable, the “tie goes to the grievor.” [289] In the Union’s submission, the Employer failed to establish conduct on the grievor’s part warranting discipline. Counsel asked me to therefore uphold the grievance, void the discharge, reinstate the grievor, and make him whole, while retaining jurisdiction. [290] Should I find any alleged misconduct proven, Counsel noted that there are varying degrees of seriousness in the allegations in issue. The Union accepted that proven workplace violence and use of racial epithets constitute serious misconduct. Counsel impressed upon me, however, that the determination of whether discharge is justified must be made in the context of my specific findings. [291] Should I conclude that the grievor engaged in misconduct for which discharge is justified, the Union asked that I take into account all mitigating factors in the exercise of my discretion under section 48(17) of the Labour Relations Act,1995, do what is “just and reasonable in all the circumstances,” and return the grievor to work. [292] The Union relied upon the following authorities: Brown & Beatty, Canadian Labour Arbitration, 4th ed., Toronto (Canada Law Book Inc.) at 3:5110; Faryna v. Chorny, 1951 CanLII 252 (BCCA); Phillips et al. v. Ford Motor Co. of Canada Ltd. et al, 1971 CanLII 389 (ONCA); Waste Management of Canada Corp. and LIUNA, Loc. 493 (2017), 286 LAC (4th) 133 (Misra); Yellow Pages Group Co. and Unifor Loc. 6006 (2017), 285 LAC (4th) 333 (MacDowell); Metro Ontario Inc. and Unifor Loc. 414 (2017), 275 LAC (4th) 384 (Luborsky); and Brampton (City) and Brampton Professional Firefighter’s Assn., Loc. 1068 (2016), 273 LAC (4th) 333 (Stout). - 72 - [293] The Employer took the position in Reply that the Fido records relied upon by the Union are not before me as proof of what is set out therein where the Union failed to call a Fido representative to attest to the accuracy of the documents. In any event, even if I do rely upon such records as proof of that set out therein, Counsel noted that Raja acknowledged that he attempted to “make things work” with the grievor after the November 2014 incident, and that it is far from surprising and not at all significant that he may not have accurately recalled details of phone calls years later. [294] Employer Counsel further stated in Reply that the evidence before me established that Raja told the grievor that his wife was listening to their July 27, 2015 call, not at the beginning of the conversation as suggested by the Union in final argument, but at the end of the call, and that Raja noted in his July 30 e-mail to Ms. Rahim that the grievor “immediately hung up” after he was so advised. [295] The Employer addressed the fact that the words “dune coon” are not recorded in Ms. Rahim’s notes of 2015 interviews with Mr. Rochford or Mr. Raja. Counsel noted that Rochford was adamant in his testimony that he communicated those words to Ms. Rahim. Ms. Rahim was not asked about this, and was clear that her notes were not a verbatim transcript. Counsel argued that Mr. Rochford’s evidence on this point must be accepted. [296] The Employer commented as well on Mr. Gonsalves’ failure to testify with respect to the damage to the ceiling of a double decker bus which the Employer asserts was caused by a punch by the grievor. Counsel noted that there was no evidence that Mr. Gonsalves was ever advised by Mr. Broad or by the grievor that the damage in issue resulted from anything but an accident. [297] The Employer asserts that the fact that Mr. Raja did not report “every word said” each time he spoke about the events in issue does not diminish his credibility. [298] The Employer noted that evidence of Raja’s alleged marijuana use was admitted without objection given the Union’s argument that it established motive for Raja to fabricate tales about the grievor. In Counsel’s submission, the Union’s theory “made no sense” and cannot be accepted. It is not open to the Union to then rely upon the grievor’s evidence of Raja’s alleged marijuana use in an attempt to attack Raja’s credibility. The Employer raised concerns about the policy implications of permitting - 73 - that sort of attack on the alleged “victim” here, and also argued that it would offend the collateral fact rule to consider such evidence solely for purposes of assessing credibility. [299] Union Counsel was afforded the opportunity to respond to the Employer’s position that the Union cannot rely upon the Fido records as proof of their content. He argued that it was open to the parties to agree that documents may be admitted in evidence without formal proof, and that they were so admitted without objection and without conditions. While Bell records were admitted subject to the express condition that they were subject to proof, this was not the case with the Fido records associated with Raja’s phone. The Union argued that it was open to the Employer to require the Union to call a Fido representative to prove the records, and that it would have done so had the Employer taken that position in a timely manner. In the circumstances, it would be unfair to permit the Employer to raise this matter only in final argument. The Union noted as well that Raja did not dispute the content of the Fido records, and that this was sufficient in the circumstances to prove the content of the document in any event. [300] I also asked Union Counsel to respond to the Employer’s position that evidence of Raja’s alleged marijuana use cannot in the circumstances be relied upon to challenge Raja’s credibility. In the Union’s submission, the collateral fact rule contemplates that a party cannot call evidence of a fact collateral to litigation, but that once the evidence is properly admitted as was the case here, I cannot disregard it in assessing credibility. CONCLUSIONS [301] The Employer asked me to find that the grievor engaged in the misconduct alleged in the discharge letter and investigation report, and that it had just cause to discharge him on the basis of such conduct proven in whole or in part. [302] The grievor admitted during his September 2015 interview with the Employer that he smoked on the fuel line. He also testified that he and Rochford rocked a large dumpster on one occasion. He denied all other allegations made by the Employer. [303] I heard from witnesses fundamentally different and irreconcilable accounts of each of the alleged events in issue. The Employer bears the onus of proving its case on the balance of probabilities. In determining whether or not it satisfies its onus, much of my task will be to decide who should be believed in considering the varied accounts of each contested incident. - 74 - [304] As noted by the Union, credibility cannot be assessed as though it falls in “watertight” compartments. To the extent that I find any witness dishonest in some aspect of his or her evidence, such lack of candour must be regarded as somewhat of a red flag to be noted in assessing other contentious evidence. I must be alert to the possibility that a witness who lies outright or who manipulates or shades the truth on a particular point might be inclined to do so in other areas of dispute as well. A finding that a witness was less than honest in any instance does not of course mean that the evidence of that witness is invariably to be discounted as dishonest in its entirety. How a finding of dishonesty on one point factors into the assessment of credibility more generally is a determination to be made only after considering the evidence in its totality. While the Union argued that it is the credibility of Employer witnesses, and particularly Raja, that is suspect here, Counsel acknowledged that “what is good for the goose is good for the gander,” and that the considerations set out above apply in assessing the evidence of every witness. [305] I have considered the authorities relied upon by Counsel. I note in particular the decision in Faryna v. Chorny, supra, in which the British Columbia Court of Appeal articulates as follows the accepted approach to the assessment of credibility: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried 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 recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. (para 11) [306] In considering the evidence, I recognize that witnesses in these proceedings were faced with the unenviable challenge of recalling in 2017 and 2018 the detail of events and encounters that in some cases allegedly took place in 2014 and 2015. While poor recollection or confusion must be noted and considered, it may reflect - 75 - nothing more than the unavoidable frailties of memory and may not in and of itself suggest a lack of credibility. [307] This is a case, however, in which I heard starkly different versions of the relevant facts. Despite the passage of time and the lack of specificity with respect to dates of some alleged misconduct, I heard detailed accounts of what did or did not take place by the various witnesses who gave evidence. The differences between the parties were not for the most part matters of perception, subtle nuance, or as Union Counsel expressed it, shades of grey. As he observed, it is hard to imagine in the circumstances of this case that witnesses were simply mistaken in their opposing accounts of what took place. [308] The Union asserted that Ms. Rahim allowed her perceptions of witness emotion to “carry the day” during the Employer’s 2015 investigation. While Ms. Rahim testified that the Employer reached its discharge decision on the basis of the totality of the evidence, she also described what she viewed as the emotional state of witnesses she interviewed and her own emotional response to what she heard from witnesses. I agree with the Union that my decision here is not to be based on displays of emotion or on Ms. Rahim’s observations or views in this regard. I must decide whether the Employer proves the alleged misconduct, and that is a determination to be based on a proper analysis of the evidence before me in these proceedings. [309] Both Counsel commented, however, on evidence as to whether Employer witnesses feared the grievor. I recognize in this regard that Ms. Rahim confusingly noted that Mr. Nesbitt stated in August 2015 both that he was “not personally threatened” by or “scared” of the grievor, but that he was “threatened” by him and felt “uncomfortable.” The Union emphasized as well what it characterized as a fundamental inconsistency in the Employer’s position. Counsel argued that although witnesses claimed to fear the grievor, their own actions belie such assertion. The Union referred in this regard to evidence that Broad “yelled” in the grievor’s ear, Nesbitt “yanked” a chair out from underneath his feet, and Raja allegedly contacted him within hours of allegedly being assaulted on the fuel line. In deciding whether the Employer establishes on the balance of probabilities that the grievor engaged in alleged misconduct, I will consider the totality of the evidence and “see how it all fits together.” - 76 - [310] Despite my comments above, I consider it nonetheless appropriate to remark briefly on the grievor’s demeanour in these proceedings. The grievor gave quite lengthy evidence and was subject to a probing cross-examination. He remained calm, controlled and courteous at all times. At no time during these proceedings did he display anything remotely resembling the sort of volatile or explosive conduct of which he is accused. He described himself as an “easy going gentleman.” He testified that he spoke from his “heart and soul,” and described his devastation due to what he characterized as false allegations against him. He noted his eagerness to “tell his story” and to get at the truth. [311] While the Union emphasized that it is the Employer that bears the onus of proof in these proceedings, Union Counsel acknowledged that I will invariably grapple with the question of why, on the grievor’s version of events, a number of bargaining unit co- workers in the Oshawa garage made false, and often strikingly similar, allegations in 2015 when interviewed by the Employer, and then again when testifying in these proceedings. [312] I note in this regard the grievor’s evidence that he was “friendly with everyone” in the workplace, “friends” with Rochford, and “good friends in the workplace” with Raja. He lamented what he suggested was a lack of honesty and/or a willingness of bargaining unit members to “jump on the band wagon” when rumours were heard. He offered thoughts during the 2015 investigation and again during his testimony as to why bargaining unit colleagues may have shown an inclination to fabricate tales of misconduct about him, or to at least “amp up” innocuous events into something that they never were. The Union too carefully explored why the grievor’s co-workers may have at the very least been “incorrect” if not “untruthful” in what they reported. [313] I have considered in this regard evidence relating to the loss of the service truck for coffee runs. Such evidence established that employees in the Oshawa garage regularly used the service truck when heading out for coffee. An August 26, 2015 disciplinary letter in evidence states that the grievor was suspended for three days, that the suspension was imposed for unauthorized absence from the workplace on August 17 and 18, 2015, and that it was served on August 19, 22, and 23, 2015. The grievor’s undisputed evidence was that loss of the service truck for coffee resulted from such suspension. - 77 - [314] I heard no evidence as to what specifically was conveyed to bargaining unit employees affected by this change or when any such information was communicated. The grievor was clear, however, that “the guys” were not happy about this. I heard no evidence of what specifically “the guys,” and particularly those who testified against the grievor here, communicated to him at the time. [315] Mr. Raja was apparently not one of “the guys” who expressed to the grievor unhappiness about the loss of the service truck for coffee runs. The grievor accepted that Ms. Rahim’s notes of his September 2015 interview accurately summarized their discussion at that time. Ms. Rahim noted therein that the grievor advised then that he had no communication with Raja after July 27, 2015. Raja testified as well that he was not working in the Oshawa garage at the time. When questioned in these proceedings about the loss of the service truck for coffee, he acknowledged that he “heard of an incident,” but was less than clear whether use of the service truck for coffee runs was or was not allowed. [316] The grievor reported to the Employer on September 3, 2015 and testified in these proceedings that co-workers were upset that they were “not allowed to go for coffee anymore.” This was somewhat of an overstatement. The grievor accepted in cross- examination that pretty much “everyone” who worked in the Oshawa facility in fact drove to work, and that other than having to seek permission to leave the facility to go for coffee, there was nothing stopping them from using their own vehicles to do so. While Union Counsel suggested a number of reasons in final argument as to why this was not an attractive option for employees, I heard no such evidence from affected bargaining unit members. Notably in this regard, the grievor described two alleged incidents when Raja used his own vehicle during working hours. The grievor testified as well that he was headed toward his own vehicle to go for coffee when he allegedly encountered Raja with marijuana in the parking lot in October 2014. [317] The Union pointed to Raja’s evidence regarding what was referred to as the Baksi incident, and suggested that it shed light on just how seriously matters of this sort were taken in the Oshawa garage. Mr. Baksi did not testify in these proceedings, and Counsel agreed that no adverse inference should be drawn from his failure to do so in circumstances that they described. The evidence established that two different Union officials became involved in the matter, and neither of them gave evidence. The most - 78 - that can be said on the evidence that I heard was that Raja’s bagel order on a particular night in 2013 generated much discussion in this workplace. [318] The timing of relevant events is important. The grievor was suspended for three days in August 2015 for August 17 and 18, 2015 misconduct. Bargaining unit witnesses were involved in the investigation of the matters in issue here before the imposition of the disciplinary suspension that the grievor testified resulted in the loss of the service truck for coffee. The grievor was then suspended pending investigation into the matters before me here, and was thus absent from the workplace as of August 26, 2015. [319] Mr. Raja gave undisputed evidence that he contacted Union officials almost immediately after the July 27, 2015 encounter with the grievor, and offered at least one Union official the “whole story” at that time. After speaking with Union officials, he spoke to Ms. Rahim on the telephone on July 28, 2015, filed a written complaint two days later, and met with the Employer on August 11, 2015. All of this preceded the grievor’s misconduct for which the August 2015 disciplinary suspension was imposed. [320] Nesbitt and Broad were interviewed by the Employer on August 17, 2015, the first of the two days of unauthorized absence for which the grievor was later suspended. Rochford initially met briefly with the Employer on August 17, 2015 and communicated less than positive comments about the grievor at that time. He spoke with the Employer at greater length on August 25, 2015. Rochford convincingly explained in these proceedings that he chose to do so at that time as he found it disturbing that the grievor was broadcasting in the workplace allegations of misconduct on Raja’s part. [321] The Union suggested that the grievor’s colleagues were not happy with him when use of the service truck was lost due to his suspension, and that when “approached by Raja,” chose to “play along.” The evidence was clear that there was “talk” in the workplace in or around late July and August 2015. Notably, Raja was in touch with Ms. Rahim on August 5 and 12, 2015, and it was he who directed the Employer’s attention to Messrs. Broad, Rochford, Harte and Nesbitt. [322] Such evidence, however, does not establish that bargaining unit witnesses “played along” when “approached” by Raja, and certainly does not substantiate the “theory” that they concocted blatant lies about the grievor because of presumably rather intense anger about the loss of the service truck for coffee runs. I agree with Ms. Rahim who viewed this suggestion as a “fair stretch” and as “highly improbable.” Indeed, the - 79 - so-called theory makes no sense when viewed in light of the evidence that Raja, Broad, Nesbitt, and to some extent Rochford voiced complaints about the grievor on or before August 17, 2015 - prior to the second day of the grievor’s unauthorized absence from the workplace for which the disciplinary suspension was imposed. [323] The Union and the grievor suggested as well, however, that even if bargaining unit colleagues did not deliberately fabricate false tales as some form of retaliation about loss of the use of the service truck, it may well be that they perceived innocuous past events as something more than they were. Counsel argued and the grievor testified that co-workers perhaps became enmeshed in a group dynamic of sorts, arising out of the service truck issue and other workplace rumours about the grievor. The Union suggested that with that mindset, co-workers then reported grossly exaggerated and inflamed versions of what had in fact been rather unremarkable and somewhat distant events, their perspectives being “incorrect” rather than “untruthful.” [324] I note in particular in this regard Mr. Nesbitt’s evidence that although he believed that the grievor “poisoned” the work environment, “everything” did not “sink in” until he heard workplace rumours. I recognize as well that despite the fact that the grievor denied having a criminal record, Raja, Nesbitt and Rochford at least somewhat understood otherwise. Further, the evidence was clear that at least Nesbitt and Rochford were aware at or around the time of the Employer’s 2015 investigation of allegations that the grievor used racist language with Raja. Broad too was aware at the time that there had been some sort of “negative interaction” between the grievor and Raja. [325] There was undoubtedly workplace talk at or around the relevant time, and in determining whether the Employer satisfies its onus of proof here, reliability and credibility will be assessed accordingly. Insofar as the Union suggests, however, that an alleged group mindset arising in part from the post-August 17, 2015 loss of the service truck for coffee runs collectively robbed Employer bargaining unit witnesses of their ability to distinguish between fact and fiction, the evidence does not support such conclusion. [326] The Employer makes a number of allegations against the grievor. While Employer Counsel was clear that the Employer relies upon all alleged misconduct in seeking to establish just cause for discharge, he characterized certain allegations as - 80 - “not central” in the context of these proceedings. I start by considering the evidence of Rochford, Nesbitt and Broad as it relates to such “non-central” allegations. [327] Broad and Nesbitt gave unequivocal evidence that they heard the grievor walk through the Oshawa facility yelling out expletives for no apparent reason. While the Union objected that such allegation fell outside the scope of that addressed in the discharge letter and investigation report, I find that it is captured in the claim that the grievor “walks throught [sic] the shop yelling and screaming for no reason” as set out in the investigation report. The grievor denied that he so behaved. [328] Nesbitt, Broad and Rochford all described that they saw the grievor punch or hit the side of a bus, cabinets, doors and/or walls. The Employer alleges in the discharge letter that the grievor punched and kicked buses. The grievor denied punching or kicking Employer property of any kind. While there was no evidence before me documenting repairs, nor was there evidence that repairs were in fact required. [329] While the grievor gave unchallenged evidence that he was never a boxer, both Broad and Rochford testified that he spoke or “bragged” about an alleged background as a boxer. Rochford recalled that he referred to his wins by knockout. The grievor denied talking about a background in boxing. [330] Broad recalled seeing the grievor “shadow box” at work, and the grievor denied doing so. [331] Broad and Rochford both testified that they saw the grievor rock or bench press a garbage dumpster that was large enough that it was generally moved by forklift. The grievor acknowledged that he did so once, and testified that Rochford participated at that time. Rochford denied doing so. [332] The grievor denied that he had a criminal record and the Employer was clear that whether he did or did not have such record was not in itself a consideration for it. The grievor referred in examination in chief to a “cab driver situation and criminal charges.” He gave further evidence that Rochford was the only co-worker with whom he spoke about such issue, and that Rochford then spread false gossip in the workplace. Nesbitt, who was not hesitant to acknowledge that he never heard the grievor speak about boxing, insisted that he was certain that the grievor communicated to him that he was on probation and had a criminal record. - 81 - [333] In reviewing the evidence, I note that witnesses, including the grievor and Raja, voiced loyalty to fellow bargaining unit members. When Raja approached Rochford in late July 2015, Rochford suggested that he speak to the Union. Rochford testified in these proceedings that “We are Union and look out for each other.” Although there is no suggestion that such sentiment compromises integrity, it forms part of the context in which both reports of alleged misconduct and failure to report alleged misconduct must be viewed. [334] While the onus of proof in these proceedings lies with the Employer, there was no evidence that Broad, Nesbitt or Rochford stood to gain or had reason to believe that they stood to gain by falsely accusing the grievor of misconduct. I recognize that Nesbitt came forward on his own volition during the Employer’s 2015 investigation. While Nesbitt became a Union Steward in October 2015, he was not in that position at the time in question. He made no attempt to hide the fact that his sympathies lay with Raja. He explained that in the context of what he understood to be an Employer investigation regarding two bargaining unit employees, he felt it important that he communicate the facts as he understood them. There was no evidence before me suggesting that any of Broad, Rochford or Nesbitt acted to further a self-serving agenda. [335] While clearly there was “talk” in the workplace around the time of the Employer’s 2015 investigation, there was no evidence even hinting at collaboration, conspiracy or any sort of concerted plot to bring about the grievor’s downfall in the workplace. Broad notably could recall no discussion about the grievor with Rochford or Nesbitt. [336] Although there was significant overlap and striking similarity in the evidence of Rochford, Broad, and Nesbitt, the detail in their accounts was not identical. Witnesses were ordered excluded in these proceedings. Broad and Rochford testified that the grievor spoke of a background as a boxer, while Nesbitt had no such recollection. Nesbitt recalled that the grievor told him he was on probation, while no other witness gave that evidence. Rochford recalled that the grievor spoke of his wins by knockout when boxing, and no other witness referred to this. While these three bargaining unit witnesses gave very similar evidence, there was at least no appearance that they were reading from an agreed upon script. - 82 - [337] Where Broad, Rochford and Nesbitt offered similar or the same accounts on a number of points, there was no evidence that they sought to “back” each other or had any reason to do so – even if I presume awareness of what colleagues claimed to have observed. Rochford certainly did not jump to the defence of his co-accusers. When Raja approached him in late July 2015, he recognized that he had at that time heard only one side of the story. Similarly, when asked whether Broad had clenched fists during an encounter with the grievor regarding smoking in the service truck, he did not blindly rush to Broad’s defence, but testified that he did not notice. [338] I note as well evidence of the interaction at the relevant time between the grievor and Nesbitt, Rochford and Broad. Nesbitt gave evidence that he had only limited contact with the grievor in the workplace at least in 2014 when they worked different, albeit overlapping, shifts. Broad, a Coach Technician, worked on the opposite side of the building from where the grievor worked. He and the grievor both gave evidence that they had little workplace interaction. Rochford worked with the grievor fairly regularly, and both he and the grievor described a friendly past relationship. [339] Mr. Broad notably showed no apparent eagerness to supplement his testimony with rumour. While he stated that he had heard “stories and stuff,” he was quick to note that these were not matters upon which he could comment. [340] Each of Broad, Nesbitt and Rochford similarly described alleged workplace conduct denied for the most part by the grievor, and in some instances, what they claimed to have observed or heard can only be characterized as peculiar. The evidence that the grievor allegedly walked through the Oshawa facility calling out profanities for no obvious reason is noteworthy in this regard. Witnesses such as Rochford noted that the punches to buses that he allegedly observed were not “hard” – a surprising comment if he was intent on painting a bleak picture of the grievor. Each of Messrs. Nesbitt, Broad and Rochford impressed me individually as credible and reliable in reporting what they saw and heard. Their evidence was unshaken in cross- examination. While the Union suggested that inconsistency in the reports of Employer witnesses must factor negatively in my assessment of their credibility, the evidence reflects substantially consistent reports over time. The striking similarity in the evidence of three credible witnesses is also inescapable – where there was no evidence of - 83 - reason to fabricate such odd tales, of a conspiratorial plot, or of any self-serving agenda to be served by making false allegations. [341] I have considered the grievor’s denial of most of these allegations, and acknowledge the absence of evidence documenting repairs or the need for repairs – although note that witnesses such as Rochford were clear that punches to buses that he claimed to have observed were not “hard.” I recognize that the grievor was prepared to acknowledge to the Employer in 2015 that he, and allegedly others, smoked on the fuel line. I note as well his admission that he and allegedly Rochford rocked a garbage bin together once. Where the grievor’s evidence on these “non-central” matters differed from that of Rochford, Nesbitt, and Broad, however, I prefer and accept the evidence of three very credible former bargaining unit colleagues. While such allegations were lacking in detail, the grievor’s pointblank denials, and his attempt to implicate Rochford in the garbage bin shaking, were not believable when viewed in the context of the evidence in its totality. I find that the Employer has proven on the balance of probabilities that the grievor punched buses, walked through the Oshawa garage indiscriminately shouting profanities, and smoked on the fuel line as he acknowledged – all misconduct alleged in the discharge letter and/or investigation report, and all misconduct upon which the Employer can rely in seeking to prove just cause for discharge. Insofar as the grievor denied punching buses or walking through the facility shouting profanities as described by former co-workers, he was not credible. [342] The parties both referenced evidence in these proceedings that the grievor at times had a reddened face, and that he rolled his shoulders, there being some debate as to whether he did so like a boxer or a baseball player. The Employer did not prove that having a reddened complexion in and of itself or rolling shoulders constitutes disciplinable conduct, and nor do I find such evidence of any assistance in assessing credibility. I find, however, that the grievor referred to an alleged boxing background, shadow boxed, shook or tipped a garbage dumpster without the involvement of Rochford, and spoke of an alleged criminal record. While I am not satisfied that this was conduct proven in the circumstances to warrant discipline, Counsel accepted that my conclusions with respect to such allegations may at least be relevant to my assessment of credibility. Insofar as the grievor denied such allegations, and to some extent sought to implicate Rochford, I found him not credible. - 84 - [343] While I need not rely upon Raja’s evidence in reaching these conclusions, it bears noting that he too testified that he saw the grievor punch buses beyond the occasion of the alleged First Aid Room incident, shadow box, and tip a dumpster. He also testified that the grievor told him on “numerous occasions” that he was a boxer. I accept Raja’s evidence on these points. [344] The Employer alleges as well misconduct on the grievor’s part relating to an incident in the lunch room after Broad told him not to smoke in the service truck. Both Broad and Rochford gave evidence about such alleged incident which Broad recalled took place during the last year of the grievor’s employment. [345] The evidence demonstrated that Broad used the service truck in the performance of his duties, and that he was frustrated and “had enough” on a particular evening when the grievor returned the truck to the garage smelling of cigarettes. There is no doubt that Broad approached the grievor in the lunch room in a less than friendly manner, and said something to the effect, “Quit smoking in the fucking parts truck.” [346] Broad notably communicated a toned down version of his own language when he described this alleged encounter to the Employer in August 2015. At least in these proceedings, he did not sugar coat his own conduct though. He readily acknowledged the manner in which he approached the grievor on the night in issue, accepted that he swears at colleagues when angry, and unabashedly stated that he would not likely apologize for doing so. [347] There is no dispute that Rochford too was present at the relevant time, and both he and Broad described the grievor’s reaction to Broad. It bears noting that Rochford was clear that it was his concern for the grievor that prompted him to follow Broad and the grievor into the hallway. He feared the ramifications for the grievor, someone with whom he was friendly, should he choose to strike Broad. As previously noted, Rochford demonstrated no apparent blind allegiance to Broad in his description of the events in question. When asked if Broad had clenched fists at the time in issue, an assertion not made on the evidence before me, Rochford did not speak as Broad’s ally, but responded that he did not notice if this was so. [348] As already noted, there was no evidence that either Broad or Rochford stood to gain anything by complaining about the grievor, and of course neither of them did so until interviewed by the Employer in August 2015. There was no evidence of an axe to - 85 - grind with the grievor. There was no evidence that Broad and Rochford colluded as dishonest cohorts. Broad testified that he could recall no discussion with Rochford about the grievor. Broad and Rochford nonetheless told strikingly similar stories of how the grievor reacted to Broad on the evening in question. [349] The grievor suggested that Rochford sought to discredit him in the workplace by broadcasting false or exaggerated tales of the grievor’s interaction with the criminal justice system. He was adamant that Rochford was the only co-worker in whom he confided about such issues. As already noted, however, Nesbitt gave evidence otherwise which I accept. [350] The grievor testified that he “could not believe” what happened when Broad approached him, and that he responded to Broad with words to the effect, “Who the hell do you think you are talking to me like that?” At least from that point of the narrative, however, the accounts of Broad and Rochford markedly differ from that described by the grievor. [351] Broad recalled that the grievor “sounded pissed,” was “beet red,” and followed him into the hall with clenched fists. While he claimed to find the grievor’s reaction “funny,” he also testified that he believed that the grievor was going to hit him. [352] Rochford testified that the grievor shot out of his chair, and “stormed out” of the lunch room after Broad, with fists clenched and muttering. Rochford interjected himself between the grievor and Broad who were “almost face to face” in the hallway, and he believed that the grievor was “absolutely” going to strike Broad. [353] Both Broad and Rochford described a physically threatening response by the grievor on the night in issue, and their accounts were unshaken in cross-examination. I have considered the Union’s position that fundamental changes and inconsistency in the accounts of Employer witnesses over time reflect negatively on credibility, and I acknowledge Broad’s willingness to downplay his own aggressive language when he met with the Employer in 2015. The evidence before me of largely consistent witness accounts, however, does not reflect the ever changing narrative which the Union suggested must factor negatively in my assessment of credibility. [354] If in fact Broad and Rochford were on a joint mission to discredit the grievor, they both notably resisted the urge to embellish their stories with missing details. Broad readily acknowledged that the grievor did not hit him, and did not raise his fists. - 86 - Rochford too described no express verbal threat from the grievor, and saw no fists raised. [355] The grievor offered a fundamentally different account of what transpired after Broad confronted him in the lunch room on the evening in question, both when he met with the Employer in September 2015 and in his evidence here. While the grievor acknowledged that he was “floored” by Broad’s approach on the evening in question, he maintained that he nonetheless responded as a “gentleman.” Further, although he described that the hallway encounter dissipated when Broad immediately acknowledged his fault and he in turn promised not to smoke in the truck, he noted “discomfort” and “animosity” in the days that followed. The grievor’s insistence that he chose to remain “gentlemanly” when confronted by Broad seems unlikely in the context of even his own evidence. Similarly, his claim of subsequent discomfort between Broad and him is difficult to reconcile with his evidence that the incident blew over on the basis he described. [356] Broad and Rochford were credible individually in their accounts of what took place on the night in issue. The similarity in their evidence was striking. Their testimony, viewed in the context of the evidence in its totality, was believable and “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” While I found the grievor not credible in denying most of the “non-central” allegations already decided, I have considered his denial that he engaged in the misconduct alleged by Broad and Rochford here, and his description of his “gentlemanly” response. I find his account of the incident not believable. The Employer has demonstrated on the balance of probabilities that the grievor reacted to Broad in the manner alleged in the investigation report, and that such proven misconduct warranted discipline. [357] In so concluding, I have considered what the Union characterized as internal inconsistency in the Employer’s position in these proceedings. Union Counsel noted that although the Employer seeks to portray the grievor as someone that co-workers feared, there is no dispute as to how Broad approached the grievor in the lunch room on the night in issue. I note as well Broad’s evidence that he found the grievor’s reaction “funny” and that he in fact laughed. - 87 - [358] I have accepted the accounts offered by Broad and Rochford as to what took place at the time in question, and have been persuaded on the basis of the evidence in its entirety that the grievor reacted to Broad at the time in question by “shooting” out of his chair, “storming” out of the lunch room, and muttering, and that he stood with clenched fists in close proximity to Broad. Broad and Rochford were both clear that they believed that the grievor was about to strike Broad. I accept on the basis of what they observed that this was a reasonable belief in the circumstances. Whether or not Broad personally felt intimidated or admitted to feeling intimidated, the Employer has demonstrated on the balance of probabilities that the grievor engaged in physically threatening conduct at the time, and that Rochford “intervened to prevent an expected physical altercation” as alleged. Broad’s laughter when confronted or his own approach to the grievor in the lunch room did not detract from the credible accounts of Employer witnesses which I accept. [359] While I so conclude even if I pay no heed to the evidence of Mr. Raja, I note as well his unchallenged evidence that the grievor described to him at an unspecified time an incident involving Mr. Broad in the lunch room. Raja recalled hearing from the grievor that Broad told him not to smoke in the “fucking truck” in the lunch room one night, that the grievor was embarrassed when Broad did so, and that he “got up” in Broad’s face and was “ready to punch him out or hurt him.” I accept Raja’s evidence that the grievor so characterized an interaction with Broad, and such evidence merely bolsters the conclusions already reached on the basis of Rochford’s and Broad’s evidence. [360] The Employer alleges as well that the grievor punched and damaged the ceiling of a double decker bus. Broad and the grievor offered irreconcilably different accounts of what, if anything, took place. [361] On Broad’s evidence, he was on the lower level of a double decker bus in his work area, likely in the Spring of 2015, checking to see why the bus was signed in. The grievor was upstairs. Broad’s evidence was that he heard the grievor say “Fuck” in a “pretty loud and angry voice,” and that this was followed by a “bang.” Broad claimed that he went to the upper level of the bus and saw a large hole in the ceiling. He testified that he confronted the grievor who pleaded, “You got to help me out – You got to cover for me.” He recalled that the grievor said that he hit his head and “hit the roof.” - 88 - [362] Broad readily acknowledged that there was no reason in the normal course for a Fueler to do anything but drop off the bus in the Sign-In area. He had no idea why the grievor was upstairs on the bus in Broad’s work area. He accepted that he did not see the grievor punch the bus, and that the grievor did not tell him he punched the bus. He recalled no gestures by the grievor at the time. He acknowledged that a person of the grievor’s height might accidentally hit his head on the ceiling of the upper level of the bus. [363] The grievor not only denied punching a hole in the bus ceiling, but more fundamentally, denied that he interacted with Broad at all on a double decker bus. On the grievor’s evidence, and on his account communicated to the Employer in 2015, Broad has described an encounter that never happened and is presumably a liar or horribly confused. The grievor testified that he accidentally hit his head on a bus ceiling once and only once in 2014, that Broad was not there at the time, and that he immediately reported such mishap to Supervisor Mr. Gonsalves and followed his instructions. [364] Mr. Gonsalves did not testify in these proceedings. While Ms. Rahim testified that she was provided with possible bus serial numbers and with photographs, I heard from no witness who was able to identify the latter. There was no documentary evidence before me reflecting damage or repairs to a bus ceiling at the time in question. Beyond hearing that Fuelers, in the course of performing their duties, take buses in need of repair to the Sign-In Mechanic with identified problems noted, there was no evidence before me as to if and how the alleged matter here might typically be documented. Nor was there evidence that Gonsalves or anyone in management was made aware at the time in question of alleged deliberate damage to a bus. [365] Mr. Broad readily accepted the limits on that which he claimed to have seen and heard, and on that which he could explain. Although I have considered the Union’s argument that Employer witnesses have told ever changing stories detracting from their credibility, Ms. Rahim’s rather sparse point form notes of the interview with Mr. Broad do not reflect such alleged inconsistency. [366] While I have found the grievor’s testimony not credible in certain instances already addressed herein, I have carefully considered his denial of that alleged by Broad. Having considered the evidence in its entirety, however, I accept and prefer - 89 - Broad’s account of an interaction with the grievor on a double decker bus over the grievor’s evidence that what Broad described simply did not happen. I am persuaded that Broad’s evidence reflects what most probably took place on the night in issue. While Broad was clear that he saw a hole in the bus ceiling when he joined the grievor on the upper floor of the bus, he neither witnessed, nor claimed to witness the grievor punching the bus. The grievor did not explicitly tell him that he did so. I accept Broad’s evidence, however, that the grievor asked him to help him out and “cover” for him, allegations denied by the grievor. The grievor gave evidence that he advised his Supervisor when he allegedly accidentally hit his head on a bus ceiling in 2014, and was merely instructed to take the bus to Broad’s department for repairs at that time. Having accepted Broad’s evidence that the grievor did, in the circumstances described, ask that he “cover” for him, I find it most probable that he did so for reasons other than an accidental hitting of the head with which the grievor claimed to have had unremarkable experience. I note as well that Broad was clear and emphatic that the “bang” he heard followed, not preceded, the grievor’s loud utterance of expletives. In all of these circumstances, I find that the Employer has proven on the balance of probabilities that the damage that I accept was observed by Broad was wilfully inflicted by the grievor. [367] The Employer has satisfied its onus of proving that Broad interacted with the grievor on a double decker bus in the manner he described, and that the grievor “hit DDL bus” as alleged in the investigation report. This constituted misconduct warranting discipline. Insofar as the grievor denied not only that he “hit” a bus, but that he was even on a double decker bus with Broad, his evidence was not believable and I reject it. [368] I have considered as well Mr. Rochford’s evidence of the grievor’s alleged reaction when Mr. Bean left a note asking evening shift Fuelers to clean up after themselves. [369] Rochford and the grievor offered completely different accounts of what took place at the time. Mr. Rochford testified that the grievor said that the note “pissed” him off, that Bean did not know who he was, did not know who he hung out with in his past, and that he could send people to Bean’s house to “mess with his family and break his legs.” Although Rochford did not claim in 2018 testimony to quote verbatim the grievor’s - 90 - alleged verbal response in its entirety, he was adamant that he specifically recalled the grievor’s alleged reference to “breaking legs.” [370] The grievor contested such allegations, and denied that there was any anger on his part. While he gave evidence that it was Rochford who did not “appreciate” Bean’s notes and phoned Bean, he also recalled that he and Rochford laughed at the time. Rochford denied that he was agitated by Bean’s notes, and his evidence was that he called Bean to advise of the grievor’s alleged comments. [371] The evidence established that Mr. Harte was present on the fuel line at the time. Ms. Rahim’s notes of the Employer’s 2015 interview with Harte are in evidence, not as proof of the truth of the statements recorded therein, but only as proof of what Ms. Rahim was told or at least claimed to have been told. She recorded that she was told by Harte that the grievor commented in part that he knew “street tugs” [sic] and would send them to “Allan’s house to break his legs.” Neither party called Harte as a witness. [372] The Employer bears the onus of proving on the balance of probabilities the alleged misconduct. Rochford gave evidence about someone with whom he had a past friendly workplace relationship, with no apparent agenda to be served through fabricating stories of events that did not take place. He readily acknowledged the limits of his memory when describing what he alleged occurred when Bean left a note on the fuel line. He was precise in differentiating between that which he purported to paraphrase and that which he claimed to be a verbatim quote. He was adamant that he specifically recalled that the grievor referenced “breaking legs.” [373] The grievor too acknowledged a past friendship with Rochford, and described an emotional discussion with him in late July 2015 as a “friend speaking to a friend.” [374] While I have again considered the Union’s submission that Employer witnesses offered inconsistent accounts over time, that is not what the evidence of Rochford’s 2015 reports reflects. While I have found the grievor not credible in his evidence relating to a number of matters already decided herein, I have considered his denial that he uttered the words attributed to him by Rochford. [375] Having considered all of the evidence, however, I find Mr. Rochford’s testimony of what took place credible and persuasive, and I prefer it over the grievor’s account. The Employer has on the basis of Rochford’s testimony proven on the balance of probabilities that the grievor “spoke words similar to ‘I got friends, all I got to do is make - 91 - a call and break his legs’ after being asked to clean up,” as alleged in the September 2015 discharge letter. Such proven misconduct warrants discipline. Again, insofar as the grievor described a very different exchange with Rochford on the night in issue, he was not a credible witness. [376] I have also considered Mr. Rochford’s evidence of a broken fuel pump keypad cover. Rochford’s evidence was simply that he heard a bang in the grievor’s lane on the fuel line, and that he noticed that a plastic flap on the keypad that had been intact the day before was broken. He did not observe the grievor break the plastic flap, and nor did he suggest that the grievor expressly or implicitly told him that he did so. The grievor testified that he remembered that the keypad cover was cracked, but denied breaking it. The Employer has not proven on the balance of probabilities that the grievor broke the keypad cover. [377] I have considered as well Nesbitt’s evidence surrounding the grievor’s alleged response when Nesbitt pulled a chair out from underneath his feet in the lunch room. There is no dispute that Supervisor Mr. Gonsalves was present in the lunch room at such unspecified time and observed whatever took place. The grievor was not disciplined at the time. While Nesbitt’s apparent comfort in aggressively approaching the grievor that night must be considered in assessing the Employer’s evidence in its totality in these proceedings, I disagree with the Employer that the grievor’s alleged response to Nesbitt in the lunch room at the time should in the circumstances be considered “part of a bigger picture” in assessing now whether there is just cause for discharge. [378] Nesbitt also gave evidence that the grievor yelled, swore, and slammed a remote control down in the lunch room when his desire to change the television channel met with resistance. The Union objected that it is not open to the Employer to rely upon such alleged incident in seeking to establish just cause for discharge. Counsel agreed in these proceedings that it is only the allegations set out in the discharge letter and the investigation report upon which the Employer can rely. While the alleged incident was addressed in Ms. Rahim’s interview notes of both Mr. Nesbitt and the grievor, I agree with the Union that it is not encompassed within the grounds enumerated in the investigation report and discharge letter. It is not sufficient that the Employer alleged therein that the grievor was a “loose cannon” who “flew off the handle.” The Union’s - 92 - objection is upheld. The Employer cannot rely upon such alleged incident in seeking to prove cause for discharge. [379] The Employer alleges as well that the grievor engaged in serious misconduct on November 16, 2014 and July 27, 2015. It relies on Raja’s contentious testimony in seeking to satisfy its onus of proof with respect to those alleged incidents. While the Union took issue with the evidence of Messrs. Broad, Nesbitt and Rochford, it saved its most strident criticism for Raja who it suggested had motive to lie, and with or without motive, did lie. The Union argued that Raja was a dishonest witness who cannot be believed, and that the Employer fails to meet its onus of proof where it relies on his evidence. [380] In his August 2015 letter to the Employer, the grievor alluded to “all the illegal things” that Raja allegedly did in the workplace and in his personal life. He alleged insurance fraud and drug use on Raja’s part, and reiterated in these proceedings that Raja was “paranoid” that he would disclose his marijuana use and “all his other behaviours” and thus told lies. [381] Raja denied such allegations in these proceedings. He similarly denied them when interviewed by Mr. Hand in September 2015, and reacted at that time to the grievor’s allegations by expressing the desire to file his own complaint. [382] While the grievor maintained throughout examination in chief that Raja’s alleged insurance fraud in part motivated him to lie, in cross-examination he backed off from advancing such serious allegation first raised in 2015, and suggested that he “leans more to marijuana” as an explanation for what he characterized as Raja’s false allegations. [383] The Union did not submit in final argument that Raja fabricated allegations against the grievor so as to suppress disclosure of alleged insurance fraud, and the evidence did not substantiate any such claim. [384] The “marijuana theory” raised initially by the grievor in 2015, and addressed by the Union in these proceedings commanded much attention however. In final argument, the Union referred to the grievor’s evidence of Raja’s alleged marijuana use, and of resulting “friction” in their relationship. It suggested that on the grievor’s view of the facts, Raja had reason why he might wish to “silence” the grievor by raising false allegations against him. - 93 - [385] The Employer suggested that on the Union’s theory, it was most unlikely that Raja would fabricate allegations against the grievor and virtually guarantee that his own actions would become the focus of attention as well. I agree with the Union that I cannot presume in the circumstances that Raja would necessarily have appreciated that his July 2015 complaint might invite a spotlight on his own conduct as well, although it perhaps bears noting that allegedly paranoid Raja did not hesitate to bring to Ms. Rahim’s attention on July 30, 2015 that the grievor dubbed him a “dope head” in their July 27 communications. The evidence established as well, however, that Raja advised Mr. Hand in September 2015 that he wished to file a complaint in response to the grievor’s allegations, and at least at that point seemingly invited the Employer to turn its attention to such matters. [386] The grievor gave evidence that he found Raja rolling a joint at work. He described as well what preceded and followed such alleged encounter. In his August 2015 correspondence to the Employer, the grievor suggested that he had, up to that point in time, kept “all the illegal things” that Raja allegedly did “personal and confidential” and that it “took everything” in his “heart not to tell . . . other employees about the drug use….” He commented that as of that time he no longer had any choice but to “expose” Raja’s alleged wrongdoings. Similarly, Ms. Rahim recorded in her September 2015 interview notes that the grievor wanted it “clearly noted” that he had previously “kept this personal and confidential.” Mr. Rochford recalled, however, that the grievor told him on or about July 27, 2015 that Raja smoked pot and was involved in insurance fraud. Rochford also described his discomfort that prompted him to come forward to the Employer in late August 2015 as the grievor “kept telling people” that Raja smoked dope and committed insurance fraud. I accept Rochford’s evidence and can only conclude that the grievor was misleading in choosing to convey to the Employer that he previously kept Raja’s alleged “illegal” conduct “personal and confidential.” [387] The grievor testified in these proceedings that he had two “arguments” with Raja – one in November 2014 and one on July 27, 2015. He gave evidence that Raja’s paranoia that his alleged marijuana use would be disclosed was at the root of the first of those two “arguments.” His characterization of the July 2015 “argument” was less focussed, although he suggested in part, including during his September 2015 interview - 94 - with the Employer, that Raja was “only after his $20.” In his August 2015 correspondence, the grievor offered what reads as at least a more inflated version of facts, stating at that time that “all” of Raja’s alleged illegal activities were “always the center of all” their “arguments.” [388] I heard evidence of various alleged encounters between the grievor and Raja, said by the grievor to be related to Raja’s alleged marijuana use. The grievor described that he ran into Raja at some point at an Oshawa convenience store, an allegation denied by Raja. The grievor was confused about timeframe. He initially recalled that the Oshawa garage opened in late 2013, and believed that he and Raja met at the convenience store shortly afterwards. As stipulated by the parties, however, the facility in fact opened in December 2012. The grievor also recalled his residential address at the time in question, and produced documents ostensibly proving that he lived at that address between April 2012 and March 2013. [389] While the grievor’s confusion regarding timing of the alleged convenience store encounter was arguably resolved on the basis that it allegedly took place between late 2012 and March 2013, the grievor then suggested that he and Raja later talked about such encounter “a couple” of times. I heard evidence of only one such alleged discussion however, and the grievor was confused as to when that took place. He suggested that he talked to Raja about the alleged convenience store encounter “months later,” but then also recalled that such alleged discussion likely took place in the Spring of 2015. [390] The grievor testified that on a “winter night” three to four weeks before November 16, 2014, he witnessed Raja rolling a joint while sitting in his vehicle on Employer premises during working hours. He also gave evidence about and described in his August 2015 letter to the Employer what allegedly preceded that encounter. [391] While the grievor testified in these proceedings that he encountered Raja with marijuana in his car in or around late October 2014, he reported in August 2015 that Raja was “very glad” to work with him in November and December 2014, “until the third or fourth Sunday” [sic] when he became suspicious that Raja was using marijuana. [392] In the grievor’s August 2015 correspondence, he claimed that he kept to himself what he then characterized as his “suspicion.” When testifying, the grievor expressed certainty that what he detected in the past was the distinctive smell of marijuana on - 95 - Raja. Although he was clear in August 2015 that he kept what he then described as his “suspicion” to himself, he seemingly suggested otherwise in testifying that he recalled that Raja “denied it.” [393] In his August 2015 correspondence, the grievor reported that he startled Raja by tapping on his car window on the night of the alleged marijuana incident. He testified that it was “freezing” and that the car windows were covered with snow that October night. Despite such snowy windows, the grievor’s evidence was that he saw Raja holding papers, marijuana and scissors, and that it appeared to him that Raja was in the process of cutting marijuana onto the papers. He offered varying accounts of what he observed at the time. In his August 2015 letter, the grievor asserted that Raja “spilt everything,” [sic] and he noted therein that it was only “shortly after” that Raja rolled down his window. In his evidence in chief, he recalled somewhat differently that Raja tossed what he had been holding on his lap over his shoulder, and in cross- examination, he demonstrated somewhat differently yet again that Raja tossed what he was holding toward the passenger seat. [394] The grievor described as well what followed his alleged encounter with Raja in the parking lot. He testified that Raja became paranoid that what the grievor characterized as his “substance abuse problem” would be disclosed to “Union members,” to his Supervisor, or to his “church” and friends. In cross-examination, the grievor described a “cloud” hovering over their friendship from that time forward. Ms. Rahim similarly noted that the grievor reported in September 2015 that his relationship with Raja changed “ever since suspicion of marijuana came about.” [395] On the other hand, the grievor described in these proceedings that he and Raja were “good friends” in the workplace throughout 2014-2015. He recalled that they enjoyed taking breaks together, shared food and conversation, and talked on the phone regularly, with no change in that pattern before or after November 2014. He was clear that even the November 2014 fuel line encounter which the grievor asserted was all about Raja’s alleged marijuana use “blew over” within minutes and they remained “pleased to be working together.” In September 2015, he explained to the Employer that he called Raja on July 27, 2015 to inquire about his shift selections, explaining that “he’s my friend,” “we talk,” and “plan to golf.” He recalled an emotional discussion with Rochford in late July 2015 where he lamented the loss of his friendship. - 96 - [396] Interspersed in the grievor’s evidence of Raja’s alleged paranoia surrounding his alleged marijuana use, the grievor recalled that Raja nonetheless revealed further information regarding alleged illegal activities. As previously noted, the grievor claimed that despite Raja’s alleged paranoia, Raja chose to advise him of alleged involvement in insurance fraud. As also previously noted, the grievor recalled as well a “humorous” discussion with Raja, possibly in the Spring of 2015, at which time Raja explained that he had in fact declined to give him a ride from the convenience store at some point in the past because of the scent of marijuana in his vehicle. [397] The grievor’s evidence of what took place in Niagara Falls on July 1, 2015 was notable. On both Raja’s and the grievor’s accounts, this was a happy encounter. Raja introduced the grievor to his wife and children. The two men hugged each other and were pleased to unexpectedly meet. While the Union put to Raja in cross-examination that the grievor would give evidence that Raja quietly communicated to him at the time that he was eager to get back to the hotel to smoke a joint, the grievor in fact testified that Raja did not even mention marijuana at the time. His evidence, put at its highest, was that when Raja told him with a wink of his eye that he looked forward to a quiet walk after a day in Niagara Falls with his young family, they both “knew” that what Raja really meant was that he looked forward to “one of his marijuana cigarettes.” [398] I have considered the evidence in its entirety of the alleged marijuana incident at work, including the evidence of what allegedly preceded and followed it. The grievor’s account was extraordinarily confused and plagued by inconsistencies throughout. His demonstrated desire to mislead the Employer with insistence that he had not previously disclosed Raja’s alleged illegal activities bears noting. His testimony regarding his interaction with Raja in Niagara Falls was nothing short of bewildering. He did not, of course, give anything resembling the evidence put to Raja in cross-examination, but rather remarkably conflated something as innocuous as Raja’s expressed interest in going for a quiet stroll with alleged “illegal activities.” [399] Particularly confused was the grievor’s account of his relationship with Raja after the alleged marijuana incident, a theme that permeated much of his testimony. Notably, in disputing Raja’s assertion that something significant took place on the fuel line on November 16, 2014, the grievor was adamant that what he suggested was a thirty second “argument” directly related to marijuana use “blew over” within minutes, and all - 97 - was well. Juxtaposed on this evidence was his assertion that Raja’s alleged paranoia loomed over their friendship from the time of an alleged parking lot encounter on a snowy night weeks before November 16, 2014, and ultimately prompted Raja to concoct tales about his “old friend” not in November 2014, but months later, days after they exchanged hugs in Niagara Falls. While Raja did not complain to the Employer in November 2014, despite the grievor’s insistence that their “argument” that night was all about alleged marijuana use, the grievor claimed in his September 2015 interview with the Employer that Raja alleged November 2014 misconduct in July 2015 “when his drug use came up.” The grievor expressed regret to the Employer in September 2015 that all changed when he allegedly found Raja with marijuana in his vehicle. The Union sought to reconcile the grievor’s evidence that his friendship with Raja remained a happy one as of July 2015, despite having been consumed in a dark cloud of Raja’s intense paranoia that was “always there” from October 2014. The Union suggested that what I should take from the grievor’s divergent accounts was that he found a way to continue with difficulty in his workplace relationship with Raja after the alleged marijuana encounter, but that the relationship was henceforth marked by points of friction. Despite Union Counsel’s able efforts to assemble the puzzle pieces that emerge from the grievor’s inherently contradictory testimony, those pieces remain scattered. [400] I have considered the grievor’s allegation of marijuana use by Raja and the surrounding evidence. Such evidence does not establish motive for Raja to lie. [401] In final submissions, the Union argued that even if I so conclude on the issue of motive, I should nonetheless find that Raja was not credible in denying that he used marijuana. The parties differed in final argument as to whether it would be contrary to the collateral fact rule to consider the grievor’s evidence that Raja allegedly used marijuana in assessing Raja’s credibility despite my decision on the issue of motive. [402] The Employer’s position in these proceedings as to what gave rise to a November 16, 2014 encounter and July 27, 2015 telephone communications between Raja and the grievor was contested, the grievor giving evidence that friction in their relationship associated with Raja’s alleged marijuana use was at least a factor in what transpired on both dates. While it will be for the Employer to establish on the balance of probabilities the misconduct it alleges on both those dates, I accept that it is nonetheless appropriate in these circumstances to address, as requested by the Union, - 98 - whether Raja’s denial of marijuana use reflects adversely on his credibility. Having assessed the evidence in its totality considered thus far, Raja’s denial of that alleged by the grievor does not reflect negatively on his credibility. [403] Mr. Raja gave evidence that he was on the receiving end of a volatile verbal outburst on the grievor’s part when the grievor returned to the fuel line one evening after Raja advised Andrew Paterson that he would find his brother in the First Aid Room. Such allegation is not encompassed within the grounds for discharge upon which the Employer can rely in these proceedings, and is not relied upon for that purpose. Raja’s allegations regarding his interactions with the grievor on the night in question were disputed, as were key aspects of his evidence of alleged communications with Andrew Paterson at and around that time. The Union urged me to find that Raja concocted a story, and that his alleged dishonesty in doing so is “devastating” to the Employer’s claim that he was a credible witness. [404] A number of facts are uncontested. The grievor visited what I shall refer to as the First Aid Room at some point during an evening shift while Raja was working with him on the fuel line. Andrew Paterson and Raja had little to do with each other in the workplace, but spoke that night. Andrew Paterson then visited his brother in the First Aid Room, and the grievor subsequently returned to the fuel line. [405] The date upon which this took place was not clearly defined. While Andrew Paterson and Raja referred to two different timeframes, I share the view of Union Counsel that it seems most probable that they were nonetheless speaking of one and the same alleged sequence of events. [406] Mr. Raja recalled that the alleged First Aid Room incident took place “a couple of months” before November 16, 2014. The grievor took no issue with that recollection. Andrew Paterson was less than certain in his recall, initially suggesting that the interaction in question took place in August 2014, and then correcting himself with the suggestion that November 23, 2014 was the relevant date. I prefer Mr. Raja’s evidence on this point, and accept that it is most probable that the alleged incident took place several weeks before November 16, 2014. [407] Both Raja and Andrew Paterson described an encounter in the bus barn on the night in question. Andrew Paterson’s evidence was that Raja was driving a bus when he first spotted him in that area of the facility. Raja denied that this was so in a rather - 99 - confused exchange in which he insisted that it would not make sense that Andrew Paterson would drive his bus around in circles looking for his brother – where there was no such suggestion put to him. In any event, both Raja and Andrew Paterson recalled that they spoke to each other, and that Raja was not sitting in a bus at that time. Raja testified that Andrew Paterson had “treats” for his brother. Both Andrew and Paul Paterson denied that this was so. Beyond his evidence that Andrew Paterson was carrying a lunch bag at the time in question, there was no evidence as to the basis upon which Raja believed or surmised that Andrew Paterson wished to deliver food to his brother. I accept Andrew and Paul Paterson’s evidence on this point, and find that Raja was incorrect in asserting, and perhaps in assuming, otherwise. [408] There is no dispute that Raja told Andrew Paterson where he could find his brother, despite allegedly promising the grievor that he would not do so. Raja and Andrew Paterson differed, however, as to whether Raja volunteered such information or provided it only in response to Andrew Paterson’s query. The grievor testified that it was common for his brother to say “hi” to him when he finished his shift and was enroute home, and that he did so that evening. While Andrew Paterson routinely visited his brother in those circumstances, he was clear that he had little interaction with Raja in the workplace, and that Raja in fact asked him on the night in issue if he was the grievor’s brother. In such circumstances, I consider it most probable that it was Andrew Paterson who asked Raja where he would find his brother, and not Raja who was apparently not part of Andrew Paterson’s regular visits with his brother. [409] Raja described a conversation with Andrew Paterson, within days of the alleged First Aid Room incident. He suggested that Andrew Paterson referred to his brother at that time in less than flattering terms, and invited Raja to contact him if he encountered difficulties with his brother. Whether or not that discussion took place is contentious. [410] In assessing the competing versions of evidence offered by Raja and Andrew Paterson, a number of points should be noted. First, Raja did not report the alleged First Aid Room incident to the Employer at the time, or indeed ever prior to giving evidence in these proceedings. He suggested that his alleged conversation with Andrew Paterson within days of the alleged First Aid Room incident gave him “some assurance.” [411] Raja offered a noticeably fluid account of what followed the alleged First Aid Room incident. While he suggested that there was a chill in his relationship with the - 100 - grievor afterwards, and that he was “terrified” by the grievor, his evidence of how long that allegedly lasted fluctuated over the course of his evidence. [412] I note as well Raja’s evidence that he respects Andrew Paterson, and views him as a “role model” employee. It is not at all clear in the circumstances what Raja might have gained or hoped to have gained from implicating Andrew Paterson in a fabricated story pertaining to his own brother. Despite vigorous cross-examination, Raja stuck to key elements of his recollections surrounding the alleged First Aid Room incident, and maintained that Andrew Paterson was simply wrong if he denied having the conversation that Raja described. [413] I note also in considering the competing accounts of what took place, Raja’s ready acknowledgement that the grievor neither touched him nor threatened to touch him on the night of the alleged First Aid Room incident. If a desire to vilify the grievor was at the heart of Mr. Raja’s allegedly fabricated tale, he exercised some restraint in the story he chose to concoct. [414] Also noteworthy, was Raja’s ready acknowledgement that he may well have waved and smiled at Andrew Paterson in September 2015 – despite Andrew Paterson’s evidence that they previously had nothing but a passing encounter in the bus barn when Raja asked if he was in fact the grievor’s brother. [415] I have also considered undisputed evidence before me pertaining to the July 27, 2015 text exchange between Raja and the grievor. The screen shots of text messages exchanged that evening demonstrate that in the midst of what both accept became a heated argument at least in part about an unpaid $20 bet, Raja responded that he would “escalate” matters to Andrew Paterson. On Andrew Paterson’s account, it is at least curious why Raja threatened to involve him in an argument with the grievor many months later, if in fact he and Andrew Paterson had nothing but an innocuous exchange in the bus barn on the night of the alleged First Aid Room incident when Raja was apparently unsure who he was. Raja’s texted threat to involve Andrew Paterson in late July 2015 is more easily understood if viewed in light of Raja’s evidence that Andrew Paterson invited him to contact him if he encountered problems with the grievor. [416] I have considered Andrew Paterson’s denial that he ever referred to his brother as a “fucking idiot.” While he was notably not quite so unequivocal in addressing Raja’s allegation that he told him to contact him if he had problems with the grievor, he did not - 101 - recall communicating with Raja in circumstances beyond what he described in his evidence. I, like Union Counsel, question how likely it is that one would forget the sort of discussion that Raja alleged took place. Further, I recognize that there is a “world of difference” between Andrew Paterson’s acknowledgement that he could not say with absolute certainty that he had no other past communication with Raja and his unequivocal denial that he referred to his brother in the derogatory manner alleged. [417] I am also mindful, however, that Andrew Paterson, who understood even as of the time that he gave evidence that the “whole investigation” related to only Raja and his brother, wanted to help his brother, and tried to do so through his involvement in a petition signed by bus drivers. [418] I have considered the evidence in its entirety. In doing so, I reject Raja’s evidence that Andrew Paterson had food for his brother, and I note his fluctuating description of a chill in his relationship with the grievor which he claimed followed. I have considered as well findings that follow in this Decision pertaining to Raja’s credibility in certain areas of his testimony. Having considered all of the evidence, however, I find that Raja’s testimony pertaining to the First Aid Room incident and related discussions was at least predominantly truthful and should be accepted. I conclude on the basis of the evidence that it is most probable that Raja and Andrew Paterson had a discussion along the lines described by Raja within days of the alleged First Aid Room incident. I find that Andrew Paterson at that time, in part, invited Raja to contact him if he had problems with the grievor. [419] Mr. Raja testified that such discussion took place when he asked Andrew Paterson what he had said to his brother on the night of the alleged First Aid Room incident, after the grievor returned to the fuel line and engaged in a volatile outburst. [420] I have considered the grievor’s evidence that he and Raja simply carried on with their work in the usual fashion upon his return to the fuel line. I find it most probable on the evidence before me, however, that Raja later approached Andrew Paterson and asked what he said to his brother on the night of the alleged First Aid Room incident not after a return to “business as usual” when the grievor emerged from the First Aid Room on the night in issue, but after something of note took place at that time. I accept Raja’s evidence and find that it is most probable that the grievor engaged in an abusive verbal tirade at that time. I find as well that he punched a bus and kicked over a mop bucket, - 102 - presumably with his uninjured foot. I do not rely upon such conduct in determining whether the Employer established just cause for discharge, but I reject what I view as the grievor’s unbelievable account of what took place on the night in issue. [421] The Employer bears the onus of proving that the grievor engaged in alleged November 16, 2014 and July 27, 2015 misconduct, and it relied upon Raja’s evidence in seeking to satisfy such onus. The Employer argued that Raja was a credible witness who I should believe, while the Union suggested that the Employer cannot satisfy its onus where it has relied upon an “utterly unbelievable” witness. Raja gave lengthy evidence in these proceedings, and was subjected to intense cross-examination lasting several days. His evidence was not free of problems. Notably, he gave at times what appeared to be unequivocal evidence, only to backtrack somewhat when challenged in cross-examination. An example was in his evidence that Mr. Hand told him in September 2015 that he need not file a complaint against the grievor as he had already been terminated. Only upon further questioning did he correct himself, stating then that what Mr. Hand in fact told him was to “hold off” filing a complaint as the grievor had been either suspended or terminated. [422] In certain instances, Raja professed to recall details from the distant past. On more than one occasion, it became apparent that what was initially presented as a memory of some distant detail was not in fact so clear. By way of example, although he initially suggested in 2018 cross-examination that he could specifically recall portions of what he allegedly recorded in a note made on July 27, 2015, he acknowledged in further cross-examination that he did not in fact have the clear recollection he initially described. As noted above, Raja also described a chill in his relationship with the grievor after the First Aid Room incident, but offered noticeably different accounts of how long that allegedly lasted. [423] Most troubling was Raja’s account of telephone communications with the grievor after November 16, 2014. He accepted in cross-examination that he viewed the November 2014 fuel line incident as “significant” and that it “soured” his relationship with the grievor and left him “afraid.” He was initially unequivocal in describing that a period of silence followed the alleged incident, suggesting that this lasted for two or possibly a few weeks. He readily accepted that after such alleged period of silence, he and the - 103 - grievor then spoke regularly on the phone and that they in fact talked on the phone “all the time” by December 2014. [424] Raja was closely questioned in cross-examination about the frequency and duration of calls with the grievor once communication was, on his evidence, reestablished. He was clear at the outset that he “did not check times.” At least initially in cross-examination, however, Raja was adamant that although he and the grievor sometimes talked “for a while,” they never did so, before or after November 2014, for more than six or seven minutes. Similarly, while Raja readily acknowledged that he and the grievor spoke regularly by December 2014, he initially gave what appeared to be unequivocal evidence in cross-examination that they did not speak weekly, but did so only once or twice per month. [425] There were two sets of phone records ordered produced in these proceedings. The first were Bell Mobility records associated with the grievor’s phone during the relevant timeframe. Both Counsel accepted that these were deficient on their face. The Employer had no objection to the Union cross-examining Raja on those unproven records, but first sought and obtained an undertaking from the Union that a Bell representative would be called to authenticate them if the Union sought to rely on them as proof of the calls recorded therein. The Union did not call a Bell representative, and the Union acknowledged that such records cannot be relied upon as proof of their content. [426] A contested Order was issued in September 2017 directing that Fido produce records associated with Raja’s phone for the period November 16, 2014 – July 27, 2015. In a somewhat odd twist, when the hearing was reconvened, I was advised by Counsel that they were unable to access the records from Fido, but that Raja made his own efforts to obtain them and was successful in doing so. [427] Employer Counsel advised at that time that he understood that such records showed in part all outgoing calls from Raja to the grievor during the relevant period. The records were put to Raja in cross-examination, and he accepted their accuracy. The Union sought to admit the records in evidence. The Employer raised no objection to doing so in the circumstances, and the Fido records were entered in evidence without qualification. - 104 - [428] At a later point in the hearing, and before the Union called its case, Union Counsel advised that although the Union would not call a Bell representative to testify, it would cross-reference Raja’s evidence relating to entries in the unproven Bell records with the same entries in the Fido records that were “in evidence.” There was no objection raised at that time to the Union doing so. [429] An issue arose in final argument, however, as to whether the Union could rely on the Fido records as proof that the calls referenced therein took place. It was open to the Employer to take the position that the Union was required to prove the records through calling a Fido representative as a witness when the Union sought to have them admitted in evidence. It was also open to the parties, however, to agree to admit the document without the need for formal proof, particularly where Raja was the one to obtain it and where he accepted its accuracy. The Fido records were admitted in evidence without objection and without qualification. I accept that they are before me as proof of their content. [430] The Fido records demonstrate that Raja in fact called the grievor within hours and again within days of the November 2014 fuel line incident, and that his recollections regarding the frequency and duration of calls in the months that followed were understated. In reconvened cross-examination once the Fido records had been obtained, Raja testified that he could not in fact recall the frequency or duration of his telephone conversations with the grievor between November 2014 and July 2015. He testified as well at that time that it would not surprise him that he called the grievor the day after the alleged November 2014 incident despite his earlier description of a period of silence. [431] I agree with the Union that Raja’s apparently certain evidence given prior to the production of the Fido records transitioned to something different after those records were produced. Raja was asked in cross-examination to explain that change. Despite the fact that it was Raja who obtained the Fido records, he was adamant that he barely looked at them before the hearing was next convened. He was unable to explain what did account for the change in his recollections. [432] As argued by the Employer, the inability to recall in 2017 and 2018 details regarding telephone calls in 2014 and 2015 would not in all likelihood have been particularly surprising. At least initially, however, before the production of the Fido - 105 - records, Raja described a period of silence after the November 2014 fuel line encounter, and offered a fairly specific and understated version of the frequency and duration of telephone communications once they resumed. It is clear from the Fido records that Raja was wrong in what he initially purported to remember. His willingness to offer as clear recollection that which he did not remember was troubling, as was his inability to explain the change in his testimony part way through cross-examination, after he obtained and produced the Fido records. I agree with the Union that this must be considered in assessing Raja’s credibility in other contentious areas of his evidence. While I so conclude having considered the Fido records, my determination would be no different even if I accepted the Employer’s position that they should be treated as unproven. Raja accepted their accuracy and his apparently unequivocal recollections changed after the Fido records were produced and put to him in cross-examination. [433] It is important in commenting on Mr. Raja’s evidence regarding telephone communications, however, to note some context. I recognize that it was Raja who voluntarily produced the very records which proved problematic for him. While I accept that he was caught in somewhat of a “clumsy lie” particularly in his initial assertion of a post-November 16, 2014 period of silence, the circumstances in which this unfolded belie any suggestion that he acted as a cunning or calculating liar. [434] Further, while Raja’s evidence regarding post-November 2014 communications changed once the Fido records were produced, the difference in what he described was nowhere near as stark as the Union perhaps suggested. Although Raja initially painted a picture of silence in the two to three weeks following the November 2014 fuel line incident, and although he understated the frequency and duration of telephone communications outside of that alleged period of silence, he acknowledged as early as July 30, 2015 in his e-mail to Ms. Rahim that “things were fine” between the grievor and him between November 16, 2014 and July 27, 2015. In these proceedings too, he readily accepted that after what he at first suggested was a period of silence, they communicated regularly. Further, although he initially understated the frequency and duration of such telephone conversations, he accepted that after the alleged period of silence, they spoke “frequently.” [435] As I turn to the evidence pertaining to a November 16, 2014 encounter on the fuel line and consider whether the Employer satisfies its onus of proving the alleged - 106 - misconduct, I recognize that Raja’s credibility and his contentious testimony must be assessed mindful of such issues referenced above. The Union sought to contrast Raja and the grievor, and suggested that the grievor has been truthful and consistent throughout, quick to accept responsibility where it belongs with him, and not inclined to blame others. At least in a number of instances already addressed and decided, the evidence demonstrated otherwise. In considering the evidence of what took place on November 16, 2014, I am also therefore mindful of what I have thus far found to be the grievor’s lack of candour in these proceedings. [436] Both Raja and the grievor recalled an encounter of some sort on the fuel line. While the grievor took no issue with Raja’s evidence that November 16, 2014 was the relevant date, what transpired, and what preceded and followed such incident is in dispute. I have before me only the evidence of Raja and the grievor as to what in fact took place. [437] There is no dispute that Raja and the grievor worked on the fuel line with Mr. Kao on the night in question, and the Union initially suggested in these proceedings that it expected to call Kao as a witness. The grievor informed the Employer in 2015 that Kao witnessed at least some of what took place on the evening in question, and noted in his August 2015 correspondence that he had “a witness that was behind [Raja] the whole time that he was unaware of.” [sic] Ms. Rahim paid heed to what the grievor said, asked Mr. Hand to interview Mr. Kao, and received what she understood to be Hand’s report in that regard. The Union put to Raja in cross-examination that it expected Kao to give evidence that in part contradicted his testimony. [438] While Raja expressed doubt that Kao witnessed what took place on the night in issue given his location on the fuel line at the time, he readily accepted that he could not say with certainty what, if anything, Kao observed. Despite vigorous cross-examination surrounding contradictory evidence that the Union suggested would be given by Kao, Raja notably stood by his account of what took place. [439] Kao was then not called as a witness, and I heard no explanation for his absence in the circumstances. Although the grievor communicated in August and September 2015 that Kao was a witness to at least some of what took place, he testified in cross- examination that he did not believe that Kao witnessed the relevant exchange. - 107 - [440] Raja described in these proceedings an encounter with the grievor as he stood at the back of a bus checking oil. He gave evidence that he asked the grievor for a cap autographed by the grievor’s NHL player cousin. He alleged in part that the grievor reacted to his request by pushing him, by asking, “Why do you keep asking me the same shit?,” by putting a dirty gloved finger “on” his forehead, and by threatening him saying, “I used to be a boxer. I will knock your ass out.” The grievor denied such verbal exchange and denied assaulting Raja, and testified that there was nothing more than a brief verbal exchange at the time arising out of Raja’s paranoia associated with his alleged marijuana use. [441] What precipitated the November 2014 encounter is in issue. The Union suggested that Raja struggled to tell a consistent story, and that his alleged inability to do so reflects negatively on his credibility. While I have considered the Union’s assertion that Raja’s account of what took place changed over time, Raja’s 2015 reports were very much in line with his testimony in these proceedings that his request for an autographed hat gave rise to the encounter that allegedly followed. Despite the Union’s suggestion that Raja invariably negated his own role in troubled circumstances, he readily accepted the proposition put to him in cross-examination that he had already asked the grievor for a signed hat, had already been told that the grievor would get him a signed hat, and that the grievor became frustrated when he raised the matter yet again. [442] There is no dispute that the grievor has an NHL player cousin, and the Union did not contest in cross-examination Raja’s evidence that he asked the grievor for an autographed hat. It did challenge his claim that it was such request that gave rise to what he alleged then followed. The Union put to Raja, seemingly in accordance with the rule in Browne v. Dunn, that Kao and the grievor would describe a rather non- descript exchange between Raja and the grievor on the night in question about cleaning two “puker” buses. Raja was unequivocal in his denial that this was the issue on the night in question when vigorously cross-examined on this point. As noted, Kao did not give evidence. Neither did the grievor attribute the fuel line incident to a disagreement about cleaning buses. Raja’s steadfast insistence that cleaning of buses had nothing to do with what took place on November 16, 2014 went notably uncontradicted. - 108 - [443] The grievor in cross-examination, however, “absolutely” denied that Raja asked him for an autographed hat on the night in issue. He testified that what he described as a brief “back and forth exchange” between Raja and him related to Raja’s alleged marijuana use. The grievor similarly suggested in his August 2015 correspondence to the Employer that he and Raja had their “first argument” in November 2014 because of Raja’s alleged paranoia that the grievor would disclose his alleged drug use. Ms. Rahim’s September 2015 interview notes also reflect that the grievor denied assaulting Raja on the fuel line, and that he stated at that time, “he’s coming to Oshawa – constantly asking did you tell anyone about drugs?” [444] While the “marijuana theory” was notably not put to Raja in cross-examination where he testified that it was his request for an autographed hat that sparked what he claimed followed, he denied elsewhere in his testimony the pre-November 2014 marijuana encounter alleged by the grievor. [445] In describing what allegedly took place on the fuel line on the night in issue, Raja raised a number of points for the first time during his testimony in these proceedings. He stated in July 2015 that he was standing at the back of a bus checking oil at the time in question. In these proceedings, he elaborated that the engine compartment doors were open on both sides, the bus was behind him and the grievor in front of him. While the grievor was clear that he stood somewhat to the side, Raja’s more detailed description of positioning offered only during his evidence was not particularly contentious. [446] Similarly, although there is no dispute that Kao worked on the fuel line on the night in issue, Raja appears not to have mentioned that in 2015. Further, while Raja alleged in July 2015 that the grievor pushed him on the night in question, it was only during these proceedings that he volunteered that such alleged push, denied by the grievor, was not hard. I note as well that Raja testified that the grievor wore dirty work gloves at the time in question. Although not apparently mentioned in 2015, such allegation was not contested. [447] While the fact that such points first emerged in Raja’s testimony in these proceedings may not be significant, the Union argued that what does matter, and what is fatal to the Employer’s reliance upon Raja as a credible witness, is that he sought to bolster an unbelievable story with the ongoing interjection of new, critical and - 109 - sometimes inconsistent allegations of misconduct. Such distinctions highlighted by the Union and reflected in the evidence deserve careful attention. [448] As the Union pointed out, Raja testified in these proceedings that the grievor put a dirty gloved finger on his “forehead,” but reported in his July 2015 e-mail that the grievor stuck his finger on his “face.” I see nothing noteworthy in the interchanging use of the words “face” and “forehead.” [449] I recognize as well that it was only during these proceedings that Raja first alleged that he was “trapped” or “basically trapped” behind the bus at the time of his encounter with the grievor. Clearly, he was not “trapped.” He walked away from the back of the bus, and reported that he did so in his July 30, 2015 e-mail to Ms. Rahim. While Raja’s suggestion that he was “trapped” was somewhat overstated, it must be viewed in the context of his undisputed evidence that he stood at the relevant time in an area with the bus behind him, engine compartment doors open to both sides, and the grievor at least somewhat in front of him. Considered accordingly, his claim that he was “trapped” is neither inconsistent with that previously reported nor a fundamental new element interjected into his story. It does not amount to a changed story reflecting negatively on credibility. [450] Ms. Rahim recorded in her August 2015 point form notes which Raja accepted as accurate, that he reported then that the grievor put a finger “in” his face, a comment mirrored in what Rochford described hearing from Raja at some unknown point in time prior to July 2015. That is what is reflected in the Employer’s discharge letter. As emphasized by the Union, what Raja described at least in his July 2015 e-mail was somewhat different, that being that the grievor stuck a finger “on” his face. This is reflected in the appendices to the investigation report also relied upon by the Employer here. It does not appear from Ms. Rahim’s interview notes that the specific point was raised with the grievor during his September 2015 interview, although the grievor denied at that time assaulting Raja. In these proceedings, the grievor denied putting a finger “in” or “on” Raja’s face. While I recognize that preposition use has been inconsistently noted in Raja’s complaint, Ms. Rahim’s interview notes, the investigation report and the discharge letter, I do not in the circumstances view this as significant given Raja’s clear and unequivocal evidence here that the grievor put a finger “on” his “forehead.” - 110 - [451] More notable in the assessment of Raja’s evidence was his lack of clarity as to whether the grievor threatened on November 16, 2014 that he was a boxer. He reported in his July 30, 2015 e-mail to Ms. Rahim that the grievor so stated on the night in issue, and he initially reiterated that in cross-examination. He later acknowledged, however, that he could not recall if those specific words were uttered by the grievor on the night in issue. [452] I also find noteworthy that although Raja asserted in his July 2015 e-mail that he told the grievor “don’t ever touch me” on the fuel line on the night in issue, he claimed in these proceedings that he also ordered the grievor to get out of, or even to “please get out of” his personal space, and recalled that these were his “exact words.” It seems implausible that Raja so precisely remembered using the word “please” three to four years after the fact. [453] I have also considered Raja’s account of what took place on the fuel line in the context of what followed. While Raja alleged that he was assaulted and threatened by the grievor that night, he did not report any such incident until July 2015. Despite his initial suggestion of a chilly period of silence, the evidence established that Raja reached out to someone he claimed to fear within hours, and continued to do so frequently over the next several months. Notably, of course, he reported to Ms. Rahim in July 2015 that “things were fine” after the alleged November 16, 2014 incident. [454] Raja’s response or lack thereof to the encounter as he described it must of course be viewed in light of the evidence of the surrounding circumstances. He testified that after his alleged interaction with the grievor on the night in issue, he headed toward the Supervisor’s office, but felt sympathy for the grievor and chose not to pursue the matter when the grievor apologized, mentioned his “past criminal history,” and expressed fear that his job might be jeopardized if Raja were to report him. While the Union argued that “late breaking allegations” in Raja’s evidence reflect adversely on his credibility, the evidence of Raja’s 2015 reports demonstrates that there was no such “late breaking allegation” at least on this point. The grievor not only denied such exchange alleged by Raja, but maintained that he did not speak to anyone in the workplace other than Rochford about an alleged “criminal history.” As already noted, I have accepted Nesbitt’s evidence of what the grievor told him in this regard. - 111 - [455] Raja’s response to the alleged November 16, 2014 incident must also be viewed in light of his evidence that he was aware that there were no witnesses to what took place at the time, that he wanted to continue making extra money working overtime shifts in Oshawa, and that he in fact worked approximately ten Sunday overtime shifts in Oshawa between November 2014 and July 2015. The evidence established the reality that Sunday night overtime in Oshawa generally meant working alone with the grievor on the fuel line. [456] In considering Raja’s failure to report an alleged November 2014 incident at or around that time, I acknowledge as well the grievor’s evidence that “Union brothers support each other.” Raja too expressed this same sentiment. Notably, Raja chose to speak to Rochford and a number of Union officials in late July 2015 even in the context of the alleged misconduct then in issue, and only reached out to the Employer after doing so, and after his Union representative conveyed that it was his right to do so. While the grievor denied that he engaged in “racial slander” in November 2014, Raja did not allege otherwise. Raja in fact agreed in cross-examination that prior to July 2015, he heard no racist language from the grievor. He testified that he chose to speak up in July 2015 after not having complained in November 2014 when, on his version of the facts, alleged “threats” and “racist words” became “more severe.” [457] I have considered the grievor’s evidence as to why he believed Raja only raised in July 2015 what he characterized as false allegations regarding the November 2014 encounter. As addressed herein, the grievor described that he and Raja remained “good friends” after a brief and unremarkable November 2014 verbal exchange related to Raja’s alleged intense paranoia that his alleged marijuana use would be disclosed. The grievor was clear that such incident as he described it “blew over” within minutes. He went on to describe their happy chance meeting in Niagara Falls on July 1, 2015, and reported to the Employer that they shared a “good friendship” in July 2015. As already noted, however, the grievor also described that a black cloud of sorts arising out of Raja’s paranoia associated with his alleged marijuana use permeated that “good friendship” and was in fact “always there” since a point in time prior to November 2014. The grievor suggested that Raja nonetheless chose to be silent in November 2014 when the very issue of his alleged marijuana use directly arose, but made false - 112 - allegations about November 2014 months later, and days after the Niagara Falls meeting. [458] It is the Employer that bears the onus of proving the alleged November 16, 2014 misconduct, and it seeks to do so on the basis of Raja’s contentious evidence. I have assessed the evidence in its totality, and have considered how it all fits together with the surrounding probabilities. [459] I first consider Raja’s clear and unequivocal claim that he asked the grievor to get him a hat autographed by his cousin that night. His evidence on this point was not challenged in cross-examination, and he in fact accepted the Union’s characterization of his verbal exchange with the grievor surrounding such request. The grievor then denied in cross-examination that Raja requested a signed hat. Raja’s evidence in this respect was credible and I accept it. I conclude that it is most probable that Raja asked the grievor to get him a hat autographed by his cousin on the night in question. [460] Raja accepted the proposition put to him in cross-examination that the grievor was frustrated on the night in question by his repeated requests for a signed hat, and I find that this was so. [461] Raja was credible, clear and convincing in testifying that it was his request for an autographed hat, frustrating to the grievor, that then sparked his disputed version of what followed. When challenged in cross-examination with the suggestion that the encounter that night related to the cleaning of “puker buses,” he was adamant in maintaining that his request for the signed hat was the issue. The grievor, Kao, and indeed no witness contradicted Raja’s insistence that the encounter that evening did not relate to the cleaning of buses. I have considered the grievor’s evidence that what prompted his exchange with Raja that night was Raja’s ongoing paranoia associated with an alleged marijuana encounter some weeks earlier, despite what he also maintained was a positive relationship with Raja in 2014-2015. Having considered all of the evidence, I find that it is most probable that Raja’s request for a signed hat gave rise to what followed. [462] Raja’s account of what in fact took place on the fuel line was uncategorically denied by the grievor. While the Employer argued that Raja’s evidence was credible and should be accepted, I recognize, as addressed above, that his testimony in these proceedings was in some instances not believable. I note as well his equivocation as to - 113 - whether or not the grievor threatened on November 16, 2014, that he was a boxer, and what I view as his unlikely claim that he could recall as of the time of his testimony telling the grievor to “please” get out of his personal space. I have considered the Union’s argument that Raja struggled to tell a consistent story, and have carefully noted distinctions between that described in his testimony and that reported in 2015. Having considered the evidence in its totality, however, and having assessed what is most probable in all of the circumstances, I find that Raja’s account of the November 2014 encounter was predominantly truthful and should be accepted. While the Union suggested that Raja’s ever changing narrative reflects adversely on his credibility, the fundamental elements of Raja’s account were not part of an evolving story as asserted by the Union. Notably, while Raja was cross-examined at length and in great detail, he was steadfast and unshaken in critical respects in what he described took place on the night in issue. Raja was, in my view, largely credible in the evidence he gave in these proceedings, and in the context of my findings that he frustrated the grievor by requesting an autographed hat on the night in question, his account of what then took place was “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable.” I have considered the grievor’s denial of that alleged by Raja, and his description of a brief verbal exchange related to Raja’s alleged marijuana use weeks earlier. I find the grievor’s account simply unbelievable. I prefer and accept Raja’s evidence that the grievor approached him behind a bus, frustrated by his request for an autographed hat, asked, “Why do you keep asking me the same shit?,” pushed him, put a dirty gloved finger “on” his forehead, and threatened him with words to the effect, “I will knock your ass out.” [463] In so finding, I have considered the evidence of what followed. Raja did not report the November 2014 incident until July 2015. Raja testified, however, that he was dissuaded by the grievor from reporting their interaction on the night in issue when the grievor implored him not to do so, apologized and referenced in part an alleged criminal history. While the grievor denied not only that the exchange described by Raja took place, but that he spoke to any co-worker other than Rochford about criminal law issues, I find that he was not credible in so asserting. I find Raja credible in his evidence of his interaction with the grievor as he left the fuel line on the night in - 114 - question, and Raja’s failure to report the November 2014 encounter at the time was understandable when viewed accordingly. [464] I have considered Raja’s initial assertion of a period of silence following the fuel line encounter proven wrong through the Fido records entered in evidence, as well as the evidence that he in fact almost immediately initiated contact with someone he claimed to fear, and continued to frequently do so in the months that followed. I acknowledge the evidence of such continued communications, however, in light of Raja’s evidence that he wanted overtime shifts in Oshawa – and the reality that this generally entailed working alone with the grievor. While Raja chose to report the November 2014 encounter only months later in July 2015, he convincingly explained, at least on his account of what later took place in July 2015, why he then did so. I have also considered the grievor’s account of a positive yet troubled friendship with Raja after October 2014, and his suggestion that Raja chose in July 2015 when his “drug use” allegedly arose, to concoct a story of November 2014 misconduct. I find credible and persuasive Raja’s evidence as to why he only raised the November 2014 encounter months later, and his continued communications with the grievor between November 2014 and July 2015, when viewed in the context of all the circumstances, do not diminish what I find to be his largely credible account of what took place on the fuel line on the night in issue. [465] I have considered the evidence in its totality including that of what followed the November 2014 fuel line encounter. While I have carefully assessed Raja’s credibility in reaching my conclusions, and while I have considered the Union’s submission that a “tie” in my assessment of the evidence must “go to the grievor,” should I find the Employer’s evidence unbelievable, there is nothing close to a tie here. While Raja’s lack of candour in certain instances in his lengthy testimony has been noted and considered, the Employer has satisfied me that he was for the most part a credible witness, and, gave largely credible evidence with respect to the fuel line encounter. On the basis of such evidence, the Employer has established on the balance of probabilities that the grievor engaged in fuel line misconduct on November 16, 2014. I prefer Raja’s evidence over the grievor’s account, which I found unbelievable. [466] The Employer alleges in its September 24, 2015 discharge letter that on November 16, 2014, the grievor pushed a co-worker, stuck a finger “in” his face after - 115 - being asked for an autograph from his cousin, and spoke words similar to ”Why do you keep asking me the same shit? I was a boxer and I will knock your ass out.” As noted, the investigation report upon which the Employer can also rely encompasses Mr. Raja’s July 2015 e-mail in which he alleged that a finger was stuck “on” his face. On the basis of Raja’s testimony, viewed in the context of the evidence in its entirety, I conclude that the Employer has proven on the balance of probabilities that on the date in question, the grievor pushed Raja and stuck a finger “on” his face after being asked for an autograph from his cousin, asked, “Why do you keep asking me the same shit?” and threatened, “I will knock your ass out.” The Employer did not prove on the evidence before me that the grievor said, “I was a boxer.” The misconduct proven by the Employer clearly warrants discipline. [467] The Employer alleges as well that the grievor made “a threat of violence and discriminatory comments” to Raja on July 27, 2015. [468] On a number of points, there is no dispute. Raja and the grievor communicated with each other by telephone and text in the early hours of July 27, 2015. It was the grievor who initiated contact with Raja, calling him late July 26. It was early July 27, however, before the two men spoke and both accepted that their initial telephone exchange was friendly. [469] Raja and the grievor both accepted that their communication that evening quickly dissolved into something acrimonious. There is no dispute that screen shots from Raja’s phone entered in evidence accurately reflect the substance of text messages exchanged that night. [470] There is also no dispute that the grievor initially reached out to Raja that evening to ask about his selections in the upcoming Master Shift Sign Up process. Raja and the grievor both recalled as well that the grievor owed Raja $20 at the time on account of an unpaid bet relating to the 2015 NHL playoffs, and that this became the subject of a heated discussion at some point in their exchange that evening. [471] The context in which the grievor contacted Raja should be noted. The two men had their unexpected but pleasant encounter in Niagara Falls approximately four weeks earlier. There was no evidence of any intervening event. Raja agreed in cross- examination that he and the grievor were “getting along pretty good” as of late July 2015. The grievor too was clear that the November 2014 encounter as he described it - 116 - had blown over within minutes, and that he and Raja shared a “good friendship” as of July 2015. Ms. Rahim’s September 2015 interview notes reflect that the grievor advised at that time that he was “curious” about where Raja “was going” in the shift selection process, that he was his friend and that they planned to golf. The grievor also described however, as already addressed herein, a cloud looming over his friendship with Raja which he attributed to the alleged pre-November 2014 marijuana encounter. [472] Raja was senior to the grievor. The grievor testified that he lived in Whitby at the time and that the Oshawa garage was the most convenient work location for him. He was reluctant to accept in cross-examination that it at least might be useful for a junior employee to be aware of the selections of someone senior. He ultimately agreed, however, that he would not “get Oshawa” if a senior employee selected Oshawa and “all the spots were filled.” [473] Raja testified in these proceedings that he told the grievor when they first spoke on July 27 that he had not yet decided on his shift selections, and that he would pick either Lincolnville or Oshawa. [474] The grievor too initially testified that Raja was unsure of his picks when they first spoke on July 27, 2015. Ms. Rahim similarly recorded in her September 2015 interview notes that the grievor told interviewers that Raja did not know if he wanted to work in Oshawa, and that Raja was “embarrassed with the situation we had.” In these proceedings, the grievor denied that the indecisiveness of Raja, a more senior bargaining unit member, bothered him. His evidence was that although there was “uncomfortableness,” this was due to Raja acting like he already knew where he would be placed. [475] The grievor gave evidence that despite Raja’s indecision about his shift selection, he believed that Raja was “leaning toward Oshawa.” He suggested that it would have been “uncomfortable” if both he and Raja remained in Oshawa, and he attributed such alleged discomfort to the proverbial storm cloud looming over their friendship since the alleged pre-November 2014 marijuana encounter addressed herein. Raja, on the other hand, testified that he believed that the grievor feared that he would be bumped from Oshawa if Raja selected that location. There was no evidence that established whether or not the grievor and Raja would likely have ended up in Oshawa together if that was Raja’s bid. - 117 - [476] While the grievor initially gave evidence that Raja communicated that he was uncertain of his shift selection, in cross-examination he asserted that Raja in fact “threw out” during their telephone exchange both his hope that he would end up in Oshawa, and his concern that it would be uncomfortable if they were both assigned to work there. Such allegation, only raised during the grievor’s cross-examination, was not put to Raja in cross-examination. Further, the grievor was referred to Ms. Rahim’s notes of his September 2015 interview. While he accepted that those notes accurately summarized his meeting with Ms. Rahim at that time, they make no reference to the statement first attributed to Mr. Raja in cross-examination. The grievor was unable to explain why he apparently failed to mention this in 2015. [477] Raja testified that the grievor told him what he had heard about “who was picking what,” and that others too were not sure of their picks. As noted by the Union, that part of the alleged exchange was not described by Raja in 2015. Raja testified that when he told the grievor that he had not made up his mind, the grievor responded saying, “Why can’t you guys fucking make up your minds and pick a shift?” He further testified that he explained to the grievor the need to pick “multiple choices,” and recalled that the grievor “imitated” his tone. Raja gave evidence that the grievor then said, “I am going to fuck you up dog,” and ended their call saying, “Fuck you, you fucking clown.” [478] As noted by the Union, while Ms. Rahim recorded in August 2015 that Raja reported that the grievor “intimidated” him, there is no mention in Raja’s 2015 e-mail or in Ms. Rahim’s 2015 interview notes that the grievor “imitated” him. Raja explained that he was focussed at the time on alleged threats and conduct targeting his “religion and ethnicity.” [479] More significantly, however, there appears to be no mention in Raja’s 2015 e- mailed complaint or in Ms. Rahim’s notes of his August 2015 interview that he referenced the word “dog” which Raja attributed to the grievor during his testimony. Raja initially testified that he specifically remembered noting the word “dog” on July 27, 2015, and that he referred to that July 27 note in drafting his July 30, 2015 complaint. When confronted in cross-examination with the omission of the word “dog” in his July 30, 2015 e-mail, he testified that he did not in fact remember if he included the word “dog” in his July 27 note. - 118 - [480] There is no dispute that Raja quickly turned their discussion on July 27 to the subject of the unpaid bet. I have considered their text exchange in this regard. As emphasized by the Union, there can be no doubt that at this point in their interaction, the grievor made efforts to put an end to their communication, but Raja persisted in going back for more. While the Union suggested that Raja saw himself as forever blameless, he in fact readily acknowledged in cross- examination that it was he who “doubled down” and “went back in,” when the grievor implored him to contact him no further. [481] The evidence demonstrates that Raja was persistent in addressing the unpaid bet. He alleged by text that the grievor had threatened and assaulted him, and in turn threatened to involve the grievor’s brother if he did not get his money. The grievor responded to Raja, but with no denial or expression of incredulity about his serious allegations. The grievor referred to Raja as a “dope head” in his final text that evening. [482] The text exchange between Raja and the grievor was followed by a final phone call from the grievor to Raja – their last communication according to the grievor. Although Raja is not an Arab, he testified that the grievor called him a “fucking Paki Arab slum.” He testified as well that the grievor called him a “stanky ass Paki,” and said, “You fucking Pakis live in cockroach apartments,” and “You fucking Paki. You want your $20? Come here and get it so I can punch you in your mouth and kick your teeth in.” Raja also gave evidence that he told the grievor, untruthfully, that he was on speaker phone and that he was “calling the cops.” He testified in these proceedings that he so commented to the grievor as he “wanted to get the call to end,” and felt threatened. His evidence was that his alleged attempt to so end the call worked, insofar as the grievor then said, “fucking immigrant,” and hung up. [483] As noted by the Union, although Raja reported in his July 30, 2015 e-mail to Ms. Rahim that the grievor allegedly threatened him with words to the effect, “You fucking Paki you want your 20 bucks come here and get it so I can fucken punch you in your mouth,” [sic] it was only during his testimony in chief that he also recalled that the grievor threatened to kick his teeth in and called him a “fucking immigrant.” Mr. Raja testified initially that he specifically recalled that he noted on July 27, 2015 that the grievor both threatened to kick his teeth in and called him a “fucking immigrant.” When challenged in cross-examination as to why the alleged threat to kick his teeth in did not - 119 - make its way into his July 30, 2015 e-mail, Raja acknowledged that he did not in fact specifically remember whether he noted that alleged comment on July 27. [484] Although Raja is of Pakistani descent, the grievor testified that he believed he was an Arab. He unequivocally denied making the alleged threatening and racist comments. He suggested in cross-examination that he was upset by Raja’s allegations of assault and of “racial slander.” The grievor was cross-examined about what allegation of racial slander was upsetting to him. Initially he referred to allegations that he used the term “dune coon” – although it was Mr. Rochford who alleged such comment was made by the grievor only in a later discussion. Notably although Raja agreed in cross-examination that he at no time prior to July 27, 2015 heard racist remarks from the grievor, although the evidence demonstrated that the grievor and Raja met only in or around 2013, and although the grievor was clear that his friendship with Raja was marred only by Raja’s alleged marijuana use, he alleged in cross-examination that Raja made “many racial allegations” against him “from years ago.” No such allegation was otherwise raised in these proceedings, and nor was it put to Raja. The grievor ultimately agreed in cross-examination that there was no allegation of racial slander made by Raja during their July 27 exchange. [485] The grievor testified as well that Raja was “most interested in,” or as recorded by Ms. Rahim in September 2015 “only after his $20” on the night in question – an allegation denied by Raja when he met with Hand in September 2015. He also asserted, however, that he and Raja both “knew” at the time why they were fighting, and suggested that but for the alleged marijuana incident in the parking lot, there would have been “no difficulties” in their “friendship.” [486] The grievor described a final argument on the telephone with Raja in which they both allegedly said “choice things.” He adamantly denied the vile racist tirade and threatening language alleged by Raja. Ms. Rahim recorded that the grievor alleged in September 2015 that Raja only complained in July 2015 “when his drug use came up.” He testified that he told Raja that he was a “dope smoking piece of shit,” and Ms. Rahim recorded in September 2015 that he reported at that time that he also told Raja that he was “nothing but an insurance scam.” The grievor testified that Raja insulted him as well, suggesting that he too was a “piece of shit,” and making less than flattering comparisons to Scottish made buses. - 120 - [487] There is no dispute that Raja told the grievor at some point during their final phone conversation that the grievor was on speaker phone and that Raja would call the police. Raja testified that he so claimed because he wanted the call to end and felt threatened. He testified that once he told the grievor that he was on speaker phone and that he was going to call the police, the call came to an end. Despite the Union’s characterization of Raja’s story as ever changing, there was no such inconsistency in his reporting on this point as is evident from Raja’s July 2015 e-mail to Ms Rahim. Raja’s evidence as to the timing of that comment was unchallenged in evidence. Ms. Rahim recorded in September 2015, however, that the grievor advised at that time that Raja so commented at the beginning of their phone conversation, and not at the end. Union Counsel questioned in final argument the likelihood that the grievor would proceed to hurl threatening and racist language at Raja after being told that he was on speaker phone. [488] The Employer bears the onus of proof in these proceedings, and relies upon the evidence of Raja in seeking to satisfy its onus. While I do not share the Union’s view that Raja’s admitted “outright lie” in telling the grievor he was on speaker phone reflects in the circumstances on his credibility more generally, I have considered what I have found to be his lack of candour in his testimony relating to matters such as a post- November 2014 period of silence. I have noted as well his addition of significant new allegations of July 27, 2015 misconduct in his evidence in chief, and his fluctuating evidence as to what he could recall noting on July 27, 2015. Again, I accept the Union’s submission that credibility is not to be assessed as if in watertight compartments, and that a lack of candour in any area of Raja’s evidence must be considered in assessing the credibility of his other contentious testimony. As also previously noted, I have found the grievor not honest in his outright denial of much of the misconduct alleged by the Employer, and in his descriptions of what took place in a number of instances. I must consider the totality of the evidence before me and “see how it all fits together” in determining whether the Employer establishes on the balance of probabilities the misconduct alleged in the discharge letter and investigation report. [489] I start by considering the evidence of the initial telephone communication between Raja and the grievor on the night in issue. Raja was clear that he told the grievor during that first phone call that he had yet to make up his mind with respect to - 121 - his bids in the upcoming shift selection process. While the Union suggested that Raja told an ever changing story of what took place on July 27, 2015, there can be no suggestion that his narrative at least on this point fluctuated over time. While the grievor offered a fluid account of what he recalled in this respect, he initially agreed that Raja told him he was unsure of his picks when they first spoke on the night in question. In cross-examination, he asserted for the first time something quite different - that Raja in fact communicated that he hoped to end up in Oshawa but was concerned that it would be uncomfortable if he and the grievor were both placed there. I find Raja’s evidence that he communicated uncertainty about his shift selections credible. I find the grievor’s “late breaking allegation” in this respect unbelievable, and find it most probable that Raja in fact told the grievor that he was not certain about his shift selections as Raja described, and as the grievor described in 2015 and initially accepted in his testimony herein. [490] Raja was senior to the grievor, and the grievor “believed” that Raja was “leaning toward Oshawa,” the most convenient work location for the grievor. Raja alleged that the grievor reacted negatively to his uncertainty about his shift selection. The grievor was reluctant to accept what seems obvious – that the selections of a senior employee might be useful information for a junior employee. His suggestion that “uncomfortableness” between Raja and him resulted from Raja acting like he knew where he would be placed made little sense in the context of his initial testimony that Raja was not certain about his shift preference. [491] While the grievor denied the negative reaction to Raja’s indecision alleged by Raja, suggested that there was discomfort between them due to Raja acting as though he knew where he would end up, and testified that Raja in fact “threw out” that he hoped to be placed in Oshawa, I find it most probable on the evidence that the grievor’s response to Raja’s uncertainty was largely as described by Raja in these proceedings. I am satisfied that the evidence demonstrates on the balance of probabilities that the grievor responded to Raja with words to the effect, “Why can’t you guys fucking make up your minds and pick a shift?” While the grievor could not recall imitating Raja, I accept that he did so although this was not previously reported by Raja. I accept as well Raja’s evidence that the grievor further stated something to the effect, “I am going to fuck you up,” and “Fuck you – you fucking clown” before hanging up. I am not - 122 - satisfied that the word “dog” was used at the time. In assessing Raja’s credibility, I have considered his evidence that he did not recall what he recorded on July 27, 2015 after initially suggesting otherwise. While I have considered the Union’s characterization of Raja’s evidence as ever changing, I conclude on the basis of the evidence in its totality that it is most probable that the first phone call that evening between Raja and the grievor was in all critical respects as credibly described by Raja. [492] The screen shots of text communications exchanged by the grievor and Raja reflect that Raja pursued quite doggedly the $20 he was owed by the grievor and threatened that he would involve the grievor’s brother if he did not get his money. Raja referenced an alleged threat therein, and testified that he was speaking of the grievor’s alleged threat to “fuck you up.” He mentioned as well an alleged assault on the fuel line, which he explained in these proceedings was in reference to November 2014. The grievor testified that Raja was “most interested” in his money. [493] The grievor ultimately phoned Raja at 3:04 a.m.. He and Raja offered irreconcilably different accounts of what was said during that final call. Raja alleged that the grievor threatened him and used racist language, denied by the grievor. As emphasized by the Union, there are notable distinctions between what Raja reported in 2015 and his evidence in these proceedings. While such “new allegations” are not included in the discharge letter and investigation report upon which the Employer can rely, they must be considered in the assessment of Raja’s credibility. Raja testified that the grievor in part threatened during the final call to kick his teeth in and called him a “fucking immigrant” before hanging up. [494] The grievor denied making the statements alleged by Raja, and offered a confused account of their communication at the time. While he suggested that he was upset by Raja’s allegations of racial slander on that evening, when challenged, he withdrew that claim. He suggested in cross-examination, however, that there had been “many” allegations of racial slander from Raja “years ago,” a claim that I find patently unbelievable when viewed in the context of the evidence in its entirety. Notable as well was the grievor’s evidence that his friendship with Raja was clouded only by their alleged October 2014 marijuana encounter in the parking lot. While he suggested that the unpaid $20 bet was Raja’s focus, he also communicated to the Employer in 2015 that he wished he had not “caught” Raja with marijuana in the parking lot, as “this - 123 - wouldn’t have come about” then. He described a heated exchange during the final phone call in which he and Raja both exchanged insults, and he called Raja a “dope smoking piece of shit.” [495] There is no dispute that Raja threatened during that final phone call that the grievor was on speaker phone and that the police would be called. Raja gave clear evidence that he so stated at the end of their call, and such evidence was unchallenged in these proceedings until final argument. The final phone call that evening followed a text exchange relating largely to an unpaid $20 bet. Although I have considered the fact that the grievor in September 2015 communicated to the Employer that Raja threatened that he was on speaker phone and that the police would be called at the beginning of their final call, I consider it most probable that such threat was made not at the beginning of a phone call that followed an exchange about an unpaid bet, but after the conversation moved beyond the subject of the unpaid bet. On either Raja’s or the grievor’s evidence, it did so during that final call. [496] Raja testified that he told the grievor that he was on speaker phone and that the police would be called as he felt threatened and he wanted to end the call. I have carefully considered Raja’s contentious account of what the grievor said during that final call, and have assessed his credibility in light of all of the evidence. [497] Having considered the evidence in its entirety, I am satisfied that Raja’s testimony as to what took place on the night in issue is in critical respects credible and “in harmony with the preponderance of the probabilities.” I am persuaded that the final phone call that night came to an end when Raja told the grievor that he was on speaker phone and that the police would be called. I accept Raja’s evidence and find it most probable that Raja made such comment as he felt threatened at the time. I further conclude that it is most probable that he felt threatened and stated that he would call the police because of an abhorrent racist tirade and threatening language hurled at him, and not because of an exchange surrounding his own alleged illegal activities as described by the grievor. [498] I have so concluded mindful that Raja was not believable in certain aspects of his evidence, including in initially claiming to recall specific notations made on July 27, 2015. While I have rejected Raja’s evidence that he remembered the use of the word “dog” in the initial phone call that night, I find believable his claim that he remembered - 124 - that the grievor threatened to kick his teeth in, and called him a “fucking immigrant.” While those allegations were not referenced in Raja’s 2015 reports, and are not included in the discharge letter and investigation report upon which the Employer can rely, I accept that such comments lingered in Raja’s memory although not previously referenced. Raja’s interjection of such added allegations during his testimony does not detract from what I accept as his largely believable account of what took place. [499] The Employer has satisfied its onus of proof and has established on the balance of probabilities that the grievor made a threat of violence and discriminatory comments against Raja, as alleged in the discharge letter and investigation report. Specifically, it has established that the grievor “spoke words similar to ‘why can’t you guys fucken makeup your mind and pick 1 choice. You fucken guys are fucking it up for everyone. . . . I’m going to fuck you up . . . . fuck you you fucken clown,” and “fuck you, you fucken paki Arab slum, you fucken stinky ass paki, you guys live in small fucken cockroach apartments you fuckin Paki you want your 20 bucks come here and get it so I can fucken punch you in your mouth.” I have no difficulty in concluding that Raja was a victim that night, of threatening language and of a vile and reprehensible racist attack by the grievor. [500] I note again the Union’s argument that a “tie” in my assessment of the evidence “goes to the grievor.” While I have considered all the evidence and all that the Union argued, there is again nothing close to a tie here. On the basis of Raja’s evidence which I found largely credible, persuasive, and in accordance with the surrounding probabilities, the Employer has proven on the balance of probabilities July 27, 2015 misconduct. The proven misconduct clearly justifies discipline. [501] In so concluding, I find notable as well the evidence of Raja’s reaction to his July 27, 2015 interaction with the grievor. The grievor was asked in cross-examination to explain what happened between July 1, 2015 when he and Raja hugged each other in Niagara Falls, and late July 2015 when, on the grievor’s evidence, Raja made serious false allegations against him. The grievor testified that Raja perhaps sought to discredit anything he might say with false accusations and by ensuring he was fired. The evidence, however, demonstrated that Raja did not rush to “discredit” the grievor after their July 27, 2015 communication, but chose to confer with his bargaining unit colleague Rochford, and then on Rochford’s advice, with three Union representatives. It - 125 - was only after he was advised by the Union that it was his right to reach out to the Employer that he did so. [502] In the September 24, 2015 discharge letter, the Employer also alleges the following: After the incident in July you spoke words similar to in reference to the complainant . . . sand niggers come in this country, fuck it up for hard working people like us, fucken Arabs, fuck it up for us. . . . [sic] [503] There is no dispute that the grievor and Rochford spoke about the grievor’s July 27, 2015 interaction with Raja shortly afterwards. What the grievor said at that time is contentious, and the Employer bears the onus of proving that which it alleges. It relies upon Rochford’s evidence in seeking to meet that onus, and he and the grievor offered diametrically different accounts of what was said by the grievor at that time. [504] Rochford gave evidence in these proceedings that the grievor referenced an argument he had on the phone with Raja the night before, and became upset when Rochford asked if this was “something they could shake hands on.” Rochford did not purport three years after the fact to provide a full verbatim quote of the words he attributed to the grievor. He was clear, adamant, and unshaken, however, that the grievor made the “most vulgar comments” he had ever heard, and that these “stuck out” in his memory. He testified in that regard that the grievor referred to Raja as a “dune coon,” and also used the term “sand nigger.” He recalled as well that the grievor said words to the effect, “It is good guys like us that get screwed by people like that who come and take all the good jobs.” [505] The grievor uncategorically denied such allegations, and testified that there was “nothing threatening or aggressive” in what he communicated to Rochford at the time. He described that he had an “emotional” discussion as a “friend speaking to a friend,” given his “hurt” that he had “lost a friend” in Raja. [506] Rochford was interviewed by the Employer in August 2015. Ms. Rahim recorded in her notes taken at that time that Rochford reported that the grievor stated that “sand niggars come in country fuck it up for hard working pp like us,” and that “f’in arabs come to country, fuck it up for us.” [sic] Although Ms. Rahim testified that her notes are not verbatim records, she was clear that she sought to record at least the “highlights” of what was said during interviews, and to capture all “significant allegations.” There can - 126 - be no doubt that Rochford’s evidence in these proceedings that the grievor allegedly referred to Raja as a “dune coon,” is a “significant allegation.” It is not reflected in Ms. Rahim’s notes. [507] The Union asked me to find that Rochford sought to bolster his account of his alleged conversation with the grievor by fabricating during his testimony the new allegation that the grievor used the words “dune coon,” and that this is fatal to his credibility. [508] Rochford was adamant and “100% sure” that he reported the words “dune coon” to Ms. Rahim in August 2015. There was no evidence that he at any time prior to these proceedings reviewed Ms. Rahim’s notes. Ms. Rahim was not questioned in these proceedings with respect to the omission of the words “dune coon” from her interview notes, and recalled that she asked Rochford about “the sand nigger” comment. [509] In addressing the Union’s claim of recent fabrication by Rochford, I consider as well Raja’s evidence of what Rochford allegedly communicated to him in late July 2015. Raja gave evidence that Rochford told him a day or two after July 27, 2015 that the grievor made “racial remarks,” referred to Raja and “minority people” as “sand niggers” and “dune coons,” and stated “something like minority people take all the jobs and ruin things for us.” [510] The words “dune coon” were not recorded by Ms. Rahim during her August 2015 interview of Raja and the Union argued that Raja’s evidence that Rochford referred to “dune coons” is also a recent fabrication adversely reflecting on Raja’s credibility. While Raja gave evidence that he “thought” he communicated those words to the Employer, he stated that he was “absolutely sure” that Rochford conveyed to him in July 2015 that the grievor had used those words. [511] Rochford, who I have found credible and measured throughout his testimony in these proceedings, was adamant that he was “100% sure” that he reported the words “dune coon” to Ms. Rahim. While Ms. Rahim testified that she sought to capture all “significant allegations” in her notes, her point form notes were not a verbatim record of what was said. She testified that she asked Rochford “about the sand nigger comment” after interviewing Raja, and she was not specifically asked about the omission of the words “dune coon.” I accept Rochford’s evidence that he communicated the alleged “dune coon” comment to Ms. Rahim. I accept as well Raja’s evidence that he was - 127 - “absolutely sure” that Rochford advised him in late July 2015 that the grievor used such language, despite the fact that it is not in the circumstances reflected in Ms. Rahim’s notes. I conclude that Rochford’s evidence that he heard such words from the grievor was not recently fabricated and does not cast doubt on his credibility. [512] Only Rochford and the grievor were present during their contentious discussion, and it is on the basis of their evidence alone that I must determine whether the Employer has proven that the grievor spoke the words to Rochford alleged in the discharge letter and investigation report. [513] As previously noted, when first approached by Raja in late July 2015, Rochford recognized that he had, as of that time, heard only Raja’s side of the story. He jumped to no conclusions, but suggested that Raja seek the counsel of the Union. In all aspects of his evidence in these proceedings, Rochford was careful and precise in reporting words he purported to recall. He was quick to acknowledge the limits of his observations and/or memory, and clear in differentiating between that which he claimed to specifically recall and that which he acknowledged formed part of only a more general memory. I find his evidence credible. [514] The grievor denied that he made the racist remarks alleged by Rochford, and described an “emotional” discussion with his friend Rochford, given his “hurt” over the loss of Raja’s friendship. On even the grievor’s own account of what transpired on July 27, 2015, which I have rejected, this seems most unlikely. The grievor described a heated and hostile discussion with Raja, someone he characterized as a “dope smoking” insurance fraud. He communicated to Raja by text on July 27 that he did not like him and wanted nothing to do with him. He testified that Raja made allegations on July 27 that were “untrue” and “off the wall” and that he did not want Raja to be part of his life. I have already addressed and accepted Rochford’s evidence that the grievor conveyed to him in late July 2015 that Raja was not a “good guy,” that he smoked pot at work, and committed insurance fraud. Further, on my findings of what took place on July 27, 2015, the grievor’s description of a somewhat heartsick chat with Mr. Rochford is fundamentally at odds with what I have found to be his threatening and racist tirade directed at Raja. - 128 - [515] Having considered the evidence in its entirety, I prefer and accept Rochford’s account of his exchange with the grievor in late July 2015, over the grievor’s suggestion that he merely lamented the loss of his friendship with Raja. [516] The Employer seeks to justify discharge here on the basis of its allegation set out as follows in the discharge letter: After the incident in July you spoke words similar to in reference to the complainant. . . sand niggers come in this country, fuck it up for hard working people like us, fucken Arabs, fuck it up for us. . . . [sic] [517] The Employer alleges in the discharge letter that the grievor used the words “fucken Arabs,” as referenced in Ms. Rahim’s August 2015 interview notes, and as was put to the grievor during his September 2015 interview. There was no evidence before me establishing that the grievor so commented, and that specific allegation was not therefore proven. [518] I conclude that the Employer otherwise established on the balance of probabilities that which it alleged in this regard in the discharge letter, and specifically that after the July 27, 2015 incident, the grievor “spoke words similar to in reference to the complainant. . . sand niggers come in this country, fuck it up for hard working people like us….” [sic] On the basis of this proven misconduct, discipline was warranted. [519] In conclusion, for all of the reasons set out herein and to the extent addressed herein, I find that the Employer has satisfied its onus of proving on the balance of probabilities numerous instances of misconduct as alleged in the discharge letter and investigation report. Included in that proven by the Employer is the grievor’s physically threatening response to Broad when told not to smoke in the service truck, his threatening language when Bean left a note asking evening Fuelers to clean up after themselves, his assault of Raja and use of threatening language on the fuel line in November 2014, his threatening and vile racist language directed at Raja on July 27, 2015, and his racist language communicated to Rochford in late July 2015. The Employer has proven on the balance of probabilities serious and repeated misconduct. [520] The Employer noted, as do I, its obligations under the collective agreement, the Human Rights Code, and the Occupational Health and Safety Act. The Union was in no way dismissive of those obligations. I acknowledge in particular the definition of - 129 - “workplace violence” under the Occupational Health and Safety Act as referenced by the Employer herein, and quote as follows from the decision in Plastipak Industries Inc., supra: . . . I am mindful of the arbitration decision in . . . [Kingston (City) v. C.U.P.E. Local 109, [2011] O.L.A.A. No. 393 (Ont. Arb. (Elaine Newman)]. Arbitrator Newman in that case stated . . . that: 232. The Bill 168 amendments tell us that a “statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force, in a workplace, that could cause physical injury to the worker” is workplace violence. . . . 234. The workplace violence is the utterance of the words. There need not be evidence of an immediate ability to do physical harm. There need not be evidence of an intent to do harm. No employee is required, as the receiver of words, to live or work in fear of attack. [521] While workplace violence and the use of abhorrent racist language are among what has been proven by the Employer, and while I have considered the Employer’s significant statutory obligations, my determination of the appropriate disciplinary response here nonetheless remains one to be made only after considering all of the specific circumstances established by the evidence before me. [522] I agree with Arbitrator MacDowell’s commentary in Redpath Sugar Ltd., supra, as follows: 378. This is not to say that a finding of . . . workplace violence leads inevitably to discharge. It does not. In this respect, I agree with Arbitrator Newman’s comments in the City of Kingston case (which involved a “threat” and not actual violence): . . . Nor is this to say that termination of an employee found to have committed an act of workplace violence may be “automatic.” The union is correct when it rejects that potential interpretation of the Bill 168 amendments. There is nothing in the Occupational Health and Safety Act that requires that an employee, found to have committed an act of workplace violence, be automatically terminated. This is not legislation of zero tolerance. It is not legislation that expressly restricts arbitral discretion in assessing the appropriateness of penalty. . . . - 130 - After the Bill 168 amendments to the Occupational Health and Safety Act, it remains good law that discipline must be determined on the facts of each case, guided by the usual criteria referred to in the arbitral jurisprudence, and must be reasonable and proportionate. It would be a mistake for any employer to assume that the Bill 168 amendments make termination automatic or necessary if the conduct amounts to workplace violence. [523] I have considered the specifics of the misconduct proven by the Employer herein, and have noted in particular the nature of proven physically threatening conduct, the nature of the proven fuel line assault, and the nature of the threatening language and the repulsive racist language which the Employer alleged and proved was used by the grievor. I have considered the litany of all proven misconduct, and the grievor’s disciplinary record accumulated within his nearly four years of service. I have no difficulty in accepting the Employer’s argument that discharge was in all of the circumstances justified. [524] I have considered whether on the facts before me it is appropriate to exercise my discretion under section 48(17) of the Labour Relations Act, 1995 to substitute for discharge the penalty that “seems just and reasonable.” I have reviewed the arbitral authorities relied upon by the parties and have considered all relevant factors noted therein. The grievor was 45 years old when he gave evidence in these proceedings. His service, his disciplinary record and the misconduct proven here are noted. While the grievor acknowledged that workplace violence and discrimination are unacceptable, and while he expressed dismay that he was alleged to have engaged in such misconduct, he expressed no remorse and in fact acknowledged no wrongdoing. He was asked during the Employer’s 2015 investigation if he had “an anger management issue or any other issues” of which the Employer should be aware, and answered in the negative. He testified in these proceedings that he attended a post-discharge anger management program but was clear that this was to assist him where he had been accused of “so many wrongful untrue things.” He continued in the final hours of this lengthy hearing to suggest that he was the victim here. He was clear that other than the anger management program which he attended post-discharge to assist him in dealing with the perceived injustice perpetrated against him, he has not otherwise sought medical assistance, received counselling, or participated in any other program - 131 - addressing anger issues. The grievor gave evidence that his discharge for “something” he “did not do” has significantly impacted on him physically, emotionally, financially and spiritually. I heard no evidence of any special economic circumstances resulting from discharge. The grievor not only denied almost all allegations against him, he attacked his co-workers and pointed the finger of blame at them suggesting that they were either delusional in reporting events that did not take place, liars, or in Raja’s case, motivated by fear that his own alleged illegal activity would be disclosed. I see no basis in the evidence upon which my statutory discretion to modify penalty should be exercised here. [525] Having considered the evidence in its entirety, the submissions of Counsel, and the authorities upon which they relied, I conclude that the Employer has proven misconduct for which discharge was justified, and that there is no evidentiary basis upon which it would be appropriate to exercise my statutory discretion to substitute a lesser penalty. [526] For all of these reasons, the Employer’s September 2015 discharge decision is upheld, and the grievance is denied. [527] I thank both Counsel for their assistance throughout these lengthy proceedings. Dated at Toronto this 18th day of December, 2018. “Mary Lou Tims” _______________________ Mary Lou Tims, Arbitrator