HomeMy WebLinkAboutMoore 17-06-22AWARD
The Union has grieved that the Employer, Mackenzie Health, terminated the Grievor, Mark
Moore, without just cause. The Hospital denied the grievance and disputes that assertion.
Facts
The Grievor began work at the Hospital on March 10, 2014, as a casual employee in the
Environmental Services Department, also known as Housekeeping. Shortly after his
probationary period ended, an incident occurred on September 4, 2017, which led to his
termination on December 3, 2014. Following an investigation, the letter of discharge states,
in relevant part:
Although your perception is that Don was interfering with your work you did not
have a conversation with him or report it, but you decided to make inappropriate
comments while passing by him, and when confronted, you swore at your colleague
in the presence of others.
Mark, several employees reported that they were scared as you were swearing, yelling
and gesticulating at Don from a close distance. Your behavior was described as
aggressive and violent.
You stated in the meeting that you would not call your behavior aggressive and that
you were just upset because of Don's behavior. From our investigation it was
determined that Don's behavior was in accordance to Mackenzie Health Code of
Conduct. Contrary to that, your behavior was perceived as inappropriate, threatening
and contrary to the Mackenzie Health Workplace Violence and Code of Conduct
Policies.
Based on our findings and due to the seriousness of your behavior in this instance, it
is with regret that I inform you of the decision to terminate your employment with
Mackenzie Health effective immediately for just cause.
There is significant dispute about what occurred on September 4, 2014. According to the
Grievor, on September 3, there was an issue with the keys not working in the dialysis unit,
the location assigned to the Grievor to clean. He worked the night shift, from 1 1:00 p.m. to
7:00 a.m. On that night, the Grievor was eventually given the master key to open the rooms
in the dialysis area.
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The following night, September 4, 2014, the same issue arose. Keys are kept locked in a key
box, located in the sign in area. Not all employees have access to the key box, and keys are
generally issued by the Team Leads for their area of responsibility. Th e Grievor did not have
direct access to the key box, so he was dependent on someone to provide him the keys.
Accordingly, when another employee, Don Last, also an Environmental employee and Team
Lead for project cleaning work, arrived shortly after him, the Grievor asked him for the
master key so he could start his work in the dialysis unit. A master key opens all doors in the
Hospital.
Mr. Last's response is in dispute. According to the Grievor, Last said, "I don't give out
fucking keys." Mr. Last denied saying this. He testified that he told the Grievor that he would
need to get the key from his Team Lead, to which the Grievor replied that Last was a Team
Lead. Mr. Last stated that he told the Grievor that he was a Team Lead for projects only, and
that he then went over to the sign in sheet, looked at it, and told him that the Team Leads for
his area were either Dante Coloma (hereafter "Dante") or Rohan Halbawattege (hereafter
"Rohan"). Team Leads are marked on the sign in sheet. According to Last, the Grievor
appeared upset because he could not start work without the keys.
Last is 58 years old, and has been with the Hospital for eleven years. He is 5'11" and weighs
approximately 170 to 180 pounds. The Grievor is 50 years old, 5' 9" or 10", and weighs
between 230 to 240 pounds. At the time of the incident, Last was a Team Lead for cleaning
project work. He also was generally regarded as a leader in the Environmental Services
group.
The evidence is in significant dispute concerning how the Grievor actually got the keys to the
dialysis area on September 4. According to the Grievor, after waiting "half an hour or more"
to get keys, Dante approached him. He explained the situation to Dante, and Dante went with
him to dialysis unit but did not open the doors, and instead agreed that the keys did not work,
and told him that he would need to get the master key from Rohan at midnight. So they went
back down to the sign in area. He testified that Rohan provided him the master key, so he left
the area to report to dialysis. He had been waiting "forty minutes" to get the key. On cross-
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examination, he denied that he was upset, although he might have been "a little bit frustrated"
as he was "an hour late" in getting started. He was "a little frustrated because no one wanted to
give me the key."
Dante had a different recollection. He works from 4 p.m. to 12:00 p.m., and testified that prior
to the end of his shift, he accompanied the Grievor to the dialysis unit, opened the rooms for
him, but they returned to the sign in area because the Grievor forgot his garbage bin. Rohan
did not testify that he provided the key to Grievor that night.
What happened in regard to the key that evening is unclear in the evidence. I find it
unnecessary to resolve the conflict in the evidence concerning how, exactly, the Grievor got
the keys on September 4. What is clear, from all of the testimony, is that th ere was an issue
about the dialysis keys on that shift. It is also clear, from the Grievor's testimony, that he
blamed Last for the delay. He testified that after Last refused to give him the master key, he
actively tried to stop the two Team Leads, Dante and Rohan, from providing him the key. He
testified that he saw Last "gesture" to Dante, which he "assumed" was his signaling Dante not
to give him the key. He also testified that he heard, but did not see, Last call Rohan's name,
which he "assumed" was Last telling Rohan not to give him the key. These "assumptions",
however, were not corroborated by either Dante or Rohan. When challenged, on cross-
examination, that he was making a lot of assumptions about Last's actions, he stated that was
"my prerogative" and he was "pretty sure my assumptions were right."
The Grievor also testified that Last had, previously, questioned him about whether he got the
job at the Hospital because of his sister-in-law. The Grievor found this question offensive
because it implied that he did not get the job on his own merits. He could not recall when this
conversation occurred. Last denied ever asking him that question, and testified that he had
never said more than "hello", "how are you" to the Grievor. The Grievor did not report this
comment to management until the investigation into the September 4' incident
The Grievor also testified that one time in the lunch room, when the television showed the
Baltimore riots after a policeman had shot a black man, Last said, "Shoot the bastards." He
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"assumed" Last was referring to the protesters, but did not ask him what he meant. Other
employees were there, but he could not remember who they were. Nor could he remember
when this occurred. The Grievor did not report this to management until the investigation. It
was never reported by anyone else. Last denied ever saying this.
Finally, the Grievor testified that he "repeatedly" heard Last call Phillipino co -workers
"cockroaches." He did not, however, know when this occurred. He did not report it to
management. Last denied ever saying this. No one else has reported hearing Last make such
comments.
When asked, on cross-examination, if he was upset about these three incidents on the night of
September 4, he stated "not on the day of this issue." He was then asked so "they were not on
your mind at all?" He replied "not at all." During the investigation, however, he implied that
they did matter. During the investigation, he stated, "Looking back I should have just ignored
him, but with all of his racist comments about shooting black people...."
Management did follow -up on these allegations, and questioned the Environmental
employees on the night shift, but no one had heard Last say anything improper or
inappropriate, or were aware of any problems between Last and the Grievor.
What happened after the Grievor obtained the keys is what led to his termination. This is also
in dispute, but must be resolved.
The Grievor testified that on the night of September 4th, after he obtained the master key, he
starting walking back to the dialysis unit. He was aware that Don Last was in the far corner of
the intersection between two hallways, which he had to pass. He testified that Last was talking
to Rohan. He knew this because although Last had left the area before, he had now
"conveniently" returned and was calling out to Rohan, which was when he "assumed" Last
was telling Rohan not to give him the key — even though, according to his version of events,
he had already obtained the key from Rohan.
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According to the Grievor, as he passed by Last, he muttered, to himself, "motherfuckers." He
estimated that he was 10 to 12 feet away from Last. He denied that he said it to anyone but
himself and he said it "very low." According to Last, the Grievor paused in his walking,
looked him right in the eye, and said "you motherfucker." Last was talking to Rohan and
Murtaza Moledini, another environmental employee, at the time.
The testimony of the other witnesses varied on this point. Dante testified that the Grievor said
nothing at all; they were walking together to retrieve the garbage bin. Rohan testified that the
Grievor said "something to himself — that he said 'fuck' himself". A written statement by
Murtaza Moledini, when asked to describe what happened, states:
I finishe[d] my shift midnight, I was near the sign in area. Heard commotion. Don was
close to the garbage, by the door to waste. Then I saw Mark. He seemed upset. He said:
mother fucker. He was looking at Don.
What happened next forms the basis of the Grievor's termination. Mr. Last's reaction to the
Grievor's "motherfucker" comment, was, "excuse me? "what did you say/call me?" He
testified that the Grievor, who had already passed by, quickly returned and went u p to him,
within 6 inches, and said, "that's right, I called you a motherfucker, you fucking cunt. And
you can tell whoever the fuck you please that I called you that." He testified that the
Grievor's aims were "flailing." Last testified that he was scared and expected to be punched
in the face. He testified that the Grievor continued to rant, loudly, using vulgar language for
more than a minute, repeatedly saying "motherfucker", "son of a bitch", Ricking cunt" over
and over, then turned and walked away. It is undisputed that Last said nothing and did
nothing in response. Last testified that he looked at his two colleagues during this incident
and both looked terrified.
The Grievor's version of events is different. He testified that after he muttered
"motherfuckers" to himself, and walk past Last, Last "shouted", "what the fuck did you say to
me?" The Grievor kept walking. Then Last said it again, "excuse me, are you calling me a
motherfucker?" So the Grievor "returned to him", saying, "pardon? You called me a
motherfucker? I never said a word to you" and asked Rohan if he called Last a
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"motherfucker" to which Rohan shook his head "no". He did not see Dante in the area. He
also saw Gerard Gratton. He then turned to Last, and said, "if you think I called you a
motherfucker, then you're a motherfucker." He did not say it loudly or aggressively. He then
turned and left, thinking the incident was "over and done." He testified that he was "at least
two metres" away from Last when he said this to him. In his view, Last was "aggressive to
me; he was swearing at me." He denied that he was shouting or loud, but stated that he has a
naturally "high" voice which some "interpret as excessively loud."
The eye-witnesses tell a different story, and largely support Last's description of events. Dante
testified that Last asked the Grievor, "did you say something" and the Grievor "started
swearing" "motherfucker". They were "face to face, 18 to 20 inches apart", and the Grievor
was pointing his finger at Last's face, and he was "very loud." He testified that he was "afraid
and scared."
Rohan testified that at around 11:45 he went to sign in his attendance, and was waiting for
Dante to take the Team Lead phone, and discuss what was left to do. He heard the Grievor say
"something to himself, to 'fuck' himself'. Last heard it, and asked "did you say that to me?" He
testified that the Grievor came back to Last and said, "yes I did. You're the motherfucker."
The Grievor was 1 'A feet or two feet away from Last. He was "loud" and was pointing at
Last, saying "you motherfucker." Rohan testified that he was "shocked" and fearful about
"what is going to happen?"
Murtaza Moledini testified that he had just dumped the last of the garbage in the waste dock
and stood next to Last. He testified that as the Grievor went by, he "got aggressive, loud, and
started abuse and foul language." He used "harsh words, too harsh to say." He stated that "as
an employee, I don't swear on people like that." The Grievor was "very loud" and he said the
"bad word" "several times." He testified that the Grievor's hands were "in the air while he was
swearing." He testified that he was "very upset" by the incident. On cross-examination, Mr.
Moledini was questioned about his written statement, in which he said that the Grievor said,
"you motherfucker cunt" and he confirmed that it was said.
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The following day, September 5, 2014, Mr. Murtaza sent an email to his supervisor about the
incident. He stated that between 11:45 pm and 12:00 a.m., "Mark Moore used words mother
flicker and Don Last said excuse me and said yes and then said to Don motherfucker cunt.
This happen because of one master key was late for Dialysis 2 in CC building..."
Gerard Gratton, another co-worker, testified that close to midnight he was in the area and
"could hear bad words." He saw the Grievor go "back to Last" and he heard the word
"motherfucker" "many times." The Grievor was "still yelling the word" and seemed upset.
Last said and did nothing. Gratton testified that he was "worried a bit" because he "didn't
know what was going on." It was "a bit of a shock." He had "never seen something like that."
Finally, employee Antonieta Giordano testified that she heard two words "mother fucker"
two times.
Don Last reported the incident to Security during that shift. The notes of his report explain
the issue about the key, then state as follows:
Don walked by and Mark said, "you mother fucker"
Don said, "excuse me?"
Mark got in Don's face screaming, "You mot her fucker, you fucking cunt" over and
over.
Don just stood there and listened.
Mark told Don to report it and tell them exactly what I said.
Don said, "I will."...
The following day, September 5, 2014, the Grievor was placed on a paid leave of absence
pending investigation. Bob Footwinkler, then Manager of Support Services, supervised the
Environmental employees. He learned about the incident on the morning of Septem ber 5,
when he received the report about it from Security. He contacted Human Resources and was
instructed to begin an investigation.
Mr. Footwinkler's investigation consisted of interviewing the employees in Environmental
Services who worked on the date and time involved — Antonietta Giordano, Dante, Rohan,
Don Last and the Grievor. FIe used a standard format and questions. Notes were taken by
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Isabella Lupo, a Human Resources Consultant. A Union steward was also present. He also
received a written statement from Murtaza Moledina.
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Mr. Footwinlder testified that the Grievor acknowledged, at the interview, he called Last a
"mother-fucker." He also displayed, in his view, aggressive behaviour and at one point was so
loud that another Human Resources Consultant knocked on the door to see if everything was
okay. The interview notes record the Grievor as saying the following:
I told Don [Ole I will know when I call you a MF. But now that you asked I am
calling you a MF. I don't throw punches. Not his business what I do.
I said if you want me to call you a mf you are a mf (MM gesticulated — pointing
arm).
One question advised the Grievor that some parties thought his behaviour was aggressive,
threatening, violent and loud, and asked "Now do you consider your behavior was?" He
replied:
Would not call it aggressive, I was upset because of his behavior.
Looking back I should have just ignored him, but with all his racist comments
about shooting black people.
I don't come here to create any trouble.
Some people put you in a bracket because you are straight forward. Never
touched him.
I have a high tone and they say I am aggressive. Don't come to me because I
don't back down. I am the nicest person.
When asked if there was additional information he wished to share related to the incident,
he replied:
Sad when some people. He expected that I will back down. He said excuse me 3
times.
I am very expressive, accustomed with man being a man. I did not think that he would
make a complaint. For me it was done. But I understand how things are here,
everybody complains. It is the environment.
The remarks he made totally unacceptable, racially insensitive jokes.
He should not have tickled me because I had to respond.
Additional interviews were held about the Grievor's assertions about Last's alleged racist
comments. None were corroborated, nor were they aware of any history between Last and the
Grievor. The investigation was completed on October 24, 2014. It is not clear why the
discharge of the Grievor was delayed until December 3, 2014. For reasons which were not
provided at the hearing, still more interviews took place in January 2015, concerning whether
Last coerced anyone about their statements. No one said that they had been coerced, and there
was no such evidence presented at the hearing.
Mr. Footwinkler testified that he made the decision to discharge the Grievor, with input from
Human Resources. He testified that he based his decision on the severity of the Grievor's
conduct, which scared a number of employees. This mattered to him because of the nature of
the workplace — employees have to work together closely, often unsupervised. The
expectation is that employees will be respectful to one another and abide by the Code of
Conduct. He determined that the Grievor had acted aggressively and inappropriately; he
demonstrated no remorse; he offered no apology. Although he acknowledged that he should
have ignored Last, he tried to justify his behaviour by blaming Last, but that was not
corroborated. The Grievor had just passed his probationary period and had worked 60 shifts in
total, including 10 in training.
The Code of Conduct, issued in June 2010, provides as follows, in relevant part:
Policy Statement
Mackenzie Health is committed to building and preserving a positive working environment
for all employees, volunteers, physicians and other individuals regularly carrying on
activities within out facilities by ensuring that a standard of integrity, equality and
professionalism is promoted and maintained.
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The management of Mackenzie Health does not tolerate discrimination or harassment in
any form and supports an environment that fosters respect for the diversity, self-worth and
well-being of all members of the healthcare team. ... It is expected that all individuals
interact with one another in a manner that is consistent with our mission and values.
Mackenzie Health's Code of Conduct, also referred to as our "Commitment to Caring"
includes a set of principles to guide everyone who works, volunteers, visits or receives
care at the hospital. We are committed to providing a safe, caring and inclusive
environment where we:
Treat one another with compassion, kindness, courtesy, respect and dignity.
Recognize the unique role and contribution of each individual.
Work together.
Listen and communicate responsibly.
Take responsibility for our actions.
Act with integrity and fairness.
Resolve differences and concerns in a sensitive and timely way.
Definitions
Disruptive & Disrespectful Workplace Conduct — Personal Harassment: is any behaviour
that disrupts civility and cooperation in the workplace and creates an unproductive and
unhealthy work environment which may compromise the delivery and quality of health
care services and patient safety.
Also known as Personal or Psychological Harassment, it is hostile or
unwelcome/unwanted conduct, comments, actions or gestures that affect an individual's
dignity or psychological or physical integrity and results in a harmful work
environment for the individual. ...
Although this type of conduct does not violate any of the prohibited grounds outlines in
the Ontario Human Rights Code, it is a direct violation of the Code of Conduct, and has
the effect of generating humiliation, embarra ssment, intimidation or loss of dignity and
is dealt with seriously. ...
Examples of this behaviour include, but are not limited to: • • • • •
bullying or shouting at another staff member:
using abusive language and /or intimidating behaviour.
•
• •
Procedure
Responsibilities
Staff:
All staff members at Mackenzie Health are required to be familiar with this Policy and are
expected to conduct their work in a way which is consistent with the provisions and spirit
of the Code of Conduct. Employees will treat one another with dignity and respect.
Employees report violation of this Policy as per the defined reporting mechanism.
At the hearing, similar to his interview, the Grievor blamed Last for their encounter and
viewed him as the "instigator." He stated that Last had left the area, returned and "tried to get
the guys not to give me the key. He called me on — what he did." Repeatedly, the Grievor
testified that Last "called out to me", "he came onto me", he "called to me" and he had to
"stand my ground". Last, in his view, was "not a choir boy". In his view, he did not hit him;
he did not assault him; "words were exchanged — how I dealt with it." He affirmed that "I
don't back down." He stated that he was "shocked" that Last filed a complaint. He had not
realized that the "culture" was to "run and complain." On examination-in-chief, he was asked
what he would do if the situation occurred again, he testified: "I'd walk away. Now knowing
the culture there — you can't speak man to man, as he came on to me — without filing a
complaint. Maybe I'll file a complaint." On cross-examination, he insisted that "Last swore at
me; I at him." It was a "simple verbal altercation that went to another level."
Reasons for Decision
The misconduct alleged is that the Grievor aggressively swore and yelled at a co -worker,
without provocation. There is a dispute about what occurred. In large part, determining what
occurred is a credibility issue. As relayed by the Grievor, his "motherfucker" comment was
inappropriate but not egregious. As asserted by Last, and the Employer, it was a serious,
loud, profane verbal attack on a co-worker.
Having considered all of the evidence, and having assessed the credibility of the various
accounts, I conclude that the Employer has established, on the balance of probabilities, that
the misconduct occurred, as alleged — not as reported by the Grievor. I conclude that the
Grievor assumed that Last had wrongfully refused to provide him the master key which
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delayed his ability to start work, and then deliberately tried to block him from obtaining the
key, so he called him a "mother flicker" as he walked passed him. When questioned by Last,
he then returned to confront Last with a stream of profanities and ins ults — very loudly and
aggressively, without any provocation by Last. Last did not, as the Grievor assumed, obstruct
him from obtaining the dialysis or master keys. He was not the Team Lead for the Grievor's
area and had no authority to issue the keys to him, let alone a master key which opens up
every door. He did not discourage either Dante or Rohan from providing him the appropriate
keys, as the Grievor assumed. Last did not "conveniently" return to the area to try to thwart
the Grievor, as he assumed. In the circumstances, Last did nothing wrong. He may not have
been a "choir boy", as the Grievor asserted at the hearing, but he did nothing to provoke the
Grievor. I do not accept that Last's response to hearing the words "motherfucker" as the
Grievor passed by — to say, "excuse me, what did you call me?" — to be a provocation.
There is no corroborating evidence that he said it more than once. But even if he did, Last's
response was a reasonable one, and if the Grievor had truly not said it to him, he could have
simply told him that. He could have said that he was just muttering words to himself. But
that's not what happened. Instead, the Grievor went back to Last and began shouting
"motherfucker", "motherfucker cunt" and other obscenities at him, repeatedly. He also did it at
close range — perhaps not 6 inches, but clearly not two metres. On the balance of
probabilities it occurred much closer to 12 to 18 inches away.
Last's version of events was consistent, straightforward and credible. It was also largely
supported by the eye-witnesses who saw the interaction. None of the witnesses supported the
Grievor's more limited version of what occurred.
In terms of the Grievor's other allegations against Last, I find that, on the balance of
probabilities, they unlikely occurred as the Grievor alleged. The Employer fully investigated
them and there was no corroboration. The workforce, as the Grievor acknowledged, is very
diverse and no other complaints about Last have been raised. I also find that they are
immaterial because the Grievor testified that he did not think of them "at all" on September
4th. As a result, they did not and could not have served to provoke the Grievor's conduct
towards Last that night.
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The Grievor's actions on September 4th constitute very serious misconduct. His conduct fits
squarely in the example of unacceptable conduct set out in the Code of Conduct — "using
abusive language and/or intimidating behaviour." It was behaviour which "disrupts civility
and cooperation in the workplace." The Grievor testified that he never read the policy, even
after his discharge based on violating the Code of Conduct, or during the hearing. He testified
that he was only provided a copy by his Union representative during the hearing. There was
no evidence presented about whether the Grievor received a copy while he was working, and
the Union did not argue that he was unaware of the policy, but I do not find that
determinative here. That is because even without a written rule, the Grievor knew or should
have known that directing a stream of abusive profanity at a co-worker is completely
inappropriate conduct. What he did was inherently inappropriate, and he knew or should
have known that even without a copy of the Code of Conduct.
There was no assertion that what occurred was "shop talk". The evidence of the other
Environmental employees shows otherwise — they were shocked at what they heard and
saw, and fearful. As Mr. Gratton testified, he "never saw anything like it."
This distinguishes one of the cases cited by the Union, Re Rolland Inc. and C.P.0 Local 310, 1983
CarswellOnt 2471 (MacDowell). In that case, the arbitrator determined that "the use of
profanity in the work place is not, in itself, grounds for discipline. A factory floor is not a
Sunday school. The reality of the work place is that vulgar language and pithy epithets are
often an ordinary party of everyday conversation...." There may still be some workplaces
where profanity is the norm, but this is clearly not one of them. Also, there is a difference
between the use of foul language and abusively cursing someone out. The Grievor's conduct
falls in the abusive "cursing out" category.
In Re Hendrickson Spring-Stratford Operations and US. W, Local 8773 (Avey, Illman
Grievances), unreported decision of Matthew Wilson, September 21, 2015, the arbitrator
determined, at par. 54:
Acts that can be characterized as bullying, threatening, or intimidation will also not be
excused as shop talk. Employees ought to feel safe and confortable in the workplace
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and should not have to face language that is offensive or threatening. That is what the
grievors did in this case.
The language used by the Grievor in this case was also offensive and threatening.
It is also significant that the Grievor acted in an aggress ive manner. His words and conduct
caused Mr. Last to believe he was about to be struck. It caused a number of the witnesses to
be afraid as well. Unlike the situation in 1983, there is a much higher concern today about
violence in the workplace, as evident in the Bill 168 amendments to the Ontario
Occupational Health & Safety Act, R.S.O. 1990 c. 0.1, as amended, which "brings the issue
of workplace violence within the sphere of occupational health and safety..." Re City of
Kingston and C.UP.E, Local 109 (2011), 201 L.A.C.(4 th) 205, quoted in Re Rheem Canada
Limited and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union (Lofiman), unreported decision of
Arbitrator Elaine Newman, July 3 , 2012), at p. 6. The arbitrator in Re Rheem Canada
Limited concluded at p. 10
[T]his board concludes that when one employee confronts another, with voice angrily
raised, and where the physicality of the speaker intimidates to such an extent that the
recipient is made to feel unsafe, the recipient acts reasonably when he or she interprets
that conduct as a threat. It is my view that the misconduct described constitutes
workplace violence within the meaning of the Occupational Health and Safety Act.
The same conclusion applies here.
The Rheem case also stands for the proposition that even under "zero tolerance" policies, an
employer has the "obligation, in every case of discipline, to consider all relevant individual
circumstances of the case, including the p ersonal disciplinary record of the employee." The
arbitrator continued at pp. 11-12:
Disciplinary responses must be reasonable and proportionate to the office, and
considered in the context of the employment relationship. A solid employee with a
good record, who, for one reason or another loses his temper on a given day and
commits an act of workplace violence, will face a meaningful disciplinary response for
a first offence. But the discipline will not be as severe as that imposed upon a repeat
offender, who does not appear to be getting the message that the workplace will not
tolerate violent misconduct.
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The arbitrator also considered a "second important factor" — the grievor's "candid and
genuine admission of wrongdoing at hearing, and his gentlemanly communication of the fact
that he has, through this difficult process, come to understand the significance and the impact
of his anger. He stands read to apologize to his co-worker...." The evidence established that
after hearing his co-worker's testimony at the hearing, "he feels badly about what happened,
and understands that what he did amounted to having verbally assaulted [the co-worker]." He
testified that he was "sorry for the way I approached [him] but I was angry, and I looked
angry. After hearing his statement today, I recognize that I did verbally harass [him]."
The Union asserts that the Employer, in this case, did not consider all of the relevant
circumstances. It notes that the Grievor had no prior discipline, and that some of his co -
workers found him to be a good worker. It also submits that the Employer did n ot fully
investigate the Grievor's claims against Mr. Last, or consider how Mr. Last's earlier conduct
impacted the Grievor's actions that night. It argues that the Grievor's response was a
"momentary aberration" that should have warranted only a written w arning or a short
suspension, at most. It argues that the purpose of discipline is to correct, not punish, and that
a lesser penalty would have sent the message that the Grievor acted inappropriately. It
submits that the Grievor stated that if the situatio n occuned again he would not repeat what
occurred.
With respect, the evidence establishes that the Employer did consider all of the relevant facts.
It did investigate the Grievor's claims concerning Last's prior conduct, but could find no
corroboration. In addition, the Grievor testified that he did not even consider that alleged
conduct by Last that night, "not at all."
Further, as I concluded above, based on the balance of probabilities, the Grievor was not, in
fact, provoked by Mr. Last's actions. He got angry at Mr. Last that night based on his
assumptions about Mr. Last — assumptions which were unfounded and yet he continued to
hold during the investigation and at the hearing. In this regard, I am not persuaded by the
Union's "momentary aberration" argument. That defense is usually applied when an offence
is committed on the spur of the moment due to strong emotional impulses. Here, Last did
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nothing other than refuse to provide him the master key, a decision which was appropriate in
the circumstances. Some period time had passed, and the Grievor had already obtained the
key, when he started the confrontation by saying "motherfuckers" as he passed by Last. As
noted, I do not consider Mr. Last's response, "excuse me, what did you sa y?" to be a
provocation.
The Employer also considered the fact that the Grievor was a very short service employee,
with just over six months of service at the time of the incident. He was a casual employee, and
worked only about 60 shifts in total, ten of which were training. On a full-time basis, that is
the equivalent of three months, including two weeks of training. As the Employer stated in its
Reply argument, there was no prior work record to evaluate, and the Employer based its
decision on the Grievor's conduct and actions on the night in question and his response during
the investigation.
The Grievor's very short service distinguishes this case from the cases cited by the Union. In
Re Hendrickson Spring — Stratford Operation and US. W. (Avey, Illman Grievances), supra,
at par. 61, the arbitrator relied on the fact that one of the grievors had 20 years of seniority and
the other had five. In Re Toronto Transit Commission and A.TU., Local 113, unreported
decision of Louisa Davie, Nov. 12, 2013, at p.24, the arbitrator stated: "I do not view the
February 2009 incident as sufficient cause to justify the summary dismissal of an employee
with 10 years service and no discipline on record." The Grievor's seniority, at just over six
months as a casual employee, is not comparable.
The Employer also considered that the Grievor did not demonstrate any remorse or
understanding of his conduct during the investigation. Had he done so, the discipline decision
may well have been different. But he did not do so and maintained his denials and accusations
against Last both during the investigation and at the hearing. This stands in very sharp
contrast to the situation in the Rheem case. Here there was no admission of any misconduct;
no admission that he was verbally abusive to Last, or had engaged in workplace violence as
defined above. There was no offer to apologize. Instead, at every turn he tried to minimize his
actions and cast the blame on Last. His statements that he should have walked
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away and would walk away if it occurred again, do not demonstrate remorse or understanding.
Those comments were due to the "culture" of reporting at the Hospital.
I also find the nature of the work to be significant. The Environmental employees on the
nigh t shift work together, and without much supervision. In that situation, the Employer
must have confidence that employees will abide by the letter and spirit of the Code of
Conduct.
Consequently, I conclude that the Grievor engaged in very serious misconduc t, and I find no
mitigating circumstances here. I have no confidence that the Grievor truly understands what he did
or how he came across to Last and his co-workers. I have no confidence that he won't "assume",
without proof, that others have wronged him, as that is "his prerogative". I have no confidence that
he won't react the same way, if "tickled" again.
Conclusion
Accordingly, after carefully considering the facts and all of the circumstances, I conclude that the
Employer had just cause to terminate the Grievor, and the grievance should be dismissed.
Issued this 22nd day of June, 2017.
/s/ Randi H. Abramsky
Randi H. Abramsky, Arbitrator