HomeMy WebLinkAboutHodgson 08-05-07
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I~J THE MATTER 0(1' AN ARBITJ~A TION
BI~TWF.F.N
THE COR!ORA TION OF THE TOWN OF IJRACEBUn)CE
~ .
(Th~ "Town")
AND
ONTARIO PUIBLIC SERVICE F.MPLOYERS UNION, LOCAL 305
(The "Union")
IlISCIIARGE GIURV ~~NCE OF WAYNE HODGSON
APPF.A.RANCES F'OR'rrIlE TOWN
Mr. Bini Phcll)S~ Counsel
Mr. Leo Rroert', Directol' of Culture alld RCCl'eation
Mr. Murray Clark
APPEARANCES t'OR 'tHE UNION
Mr. John Rrewin, Counsel
Mr. Rob Kitchcnen-, lllliun StewanJ
Mr, Wayne Hodgson, Grit'\'or
UA TES o.F HEARING
December 4,2006, M.ay 17, .Iuly 4,
August 20, 21, October 1, 2008
.J'aUlutry 7 and 31,2008
HATE OF AWARD
May 7, 2n08
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The grkvor, Wayne Ild!dgson, had heen employed by lht: Town or Bnl(;chrhlg~ Silll'e
-,
November of2001 (IS ttRink Atli;nUal1t in the D(~partmcnt orCulturl' and RCl'n:ution. In
2()()5 he wm; terminated: from his t~mploYlllcllt J(,lIowing alk'gution:i of angry outnursts
~
din:dcd al his eo-work~frs imd the publil:. lie was rctllrn<:d to work pursuant to Minutes
of Scttkllu..:nl (Minutes): dated April 11,2005, suhject to ~cvcra[ conditions which, it is
alleged_ he sllh"l..'qlll..'ntIJ~ did not meet. Inul:cd, hy ktlcr dalt;u March 1.2006, he was
notilicd (hal his l'mploY~lcnt hnd bl~l..'n terminated bl'l~allSe of his tbilul'e to comply with
this "Iast Ch,lnCI: ngn:l'n1cnt". :-:peciCically pnmgrnph 8 which stat('s .\$ JC.,llows:
The llnion and Ij~c Uricvor agree lhat this is a "1 ,ast Chance ^greement" such
that. I'urlht:r disciipl inary conduct by the grievor with rCl'ipt:ct to his behaviour
rdatl.:u 10 his de~~lings or inleraction~ with the public and/or stntf during the 18
monlhs from th~idatc or exccuti(Hl or these Mimltcs will rt:SlIlt in inllTlcdiatc
di~mis~ill f()r jll::1i~ c,aus.: without the right to gricvl~. ~ubjcct to the: Ontario Human
Rights Code and:ror the Griev()J"s right to grieve thl.: alleged bad taith, arbitrary or
dl:>criminatory C1~1..'rcisc ofl1l<lIlagl..'mcnt's rights_ In the ewnt that there are no
further incidentsi:or the ahove described nature during Ihe 18 month p~riocl, the
parties agree thall the di~ciplim: rdating to the Grievanc~s listi;;d in the preamhle
ilboVl' ~hall be rei~ovcd from the Gricvor'~ disciplinary record.
Th,:re arc actually thn:4..i ~rievances bdi..lre me: one regarding allegations of harassment',
ont: unjLl~1 sllspension artd one unjust tL'mlinntiOIl. Tht: parties arc agreed that this
proen:ding will deal only with the termination grievance and Hit: others will be held in
abeYilrH.;C pendinl.: tht: outcome of these rroct:'cdings.
Mr. Terry Curtis was the ,major player in the, events giving rbt: to this termination. He
had bc:cn employeu by th~ T OWIl for 27 years ,il Lhe relevant lime (H1d had acted as
President or lhe LUl'al Ut~ion from t 987 to 2005, On February 16,2006. tht: grievor had
relurned to work Jrom a t~revious suspension I"l' unrclak'u conduct awl, when he came
into the slalr room/oftice,: Mr. Curtis askt:u him how hl' was doing. At f-irst the gricvor
seemed calm nut then he il1skt.~d Mr. Curtis how long he had been President uf the focal.
The "onvers.'uion '"ac\,;l..:le'i~lltcd'\ according to Mr. Curtis, and the grievor would not let
him intqject to respond t<? his questions. The gricvor's voice became louder and he k('pl
telling Mr. CUltis thal he ~1hollld admit that he Was all illegal President and that he should
stand up like a man. Mr. !t'llrtis asked hien \vhy he was so angry und the grievor
rcspondl,..~d by ~aying that I~r. Curtis' ('ould he hell. eVl:n alrer retirement. He did not
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explain what he meant Iput rcpeated it ma.ny Limes. Although he did not have the
authority to do so, Mr. turti~ ask(~d him to collect his things and go home. primarily
becanse of sal'l:ty concelrns for th~ grievol' and th~ public. The grievol' rdused leaw and
asked Mr. Curtis ifhc vlras being disciplined. ML Curtis did not have the authority to
di~dpline the grievur alid so ~uggestC'd he change Lh~ hlade in the ice surfacer at the bm:k
or the building in an attlpmpt to reduce his interauions with others for the rest of the
shift.. The grit:vor retur;jll;U to the building several times to retrieve things and each time
he maue comments LO 1\k Curtis about how they could have this conversatiun because
thcy were both Union 1lcmbcrs. lie also tolu Mr. Curtis that he had $cen a la\NYer and
thal Mr. Cut1is would J'l\robably receive u Icttcr Ii-om him demanding that hl;;' hold a
g~neral meeting of the r~oclll. Mr. Curtis testified thllt the grievor was in and out of the
office several times duriing the shin and it was hard to rcml.:rnbt:r at what was said when.
Mr. Curtis stayed calm throughout these interchanges and, at one time. told the grievor he
~houJd enntact Terry KUjrlicki, the OPSElJ staffrcpl'eSenlalive, with his conccrns.
Mr. Curtis took the grievor's comments as an indic.~tion that he personally int~ndcd tu
make his life hell. The ~IOl11mcnts shook him to the cort.. lie te~tificd that when hl: l:ulled
Mr. KurJicki that day abi~ut other rnattl.:r::;, Mr. Kurlicki heard sOl11cthing in his voice that
Cl:lllSl\! him to ask what '~as wrong. Mr. Curtis told him about these wl1vcrs,1lions with
the gril.:vor and MI'. KUrljlCk i assured him he would consult with Mr. Murray Clark. rhe
Chief Admin istration Oflticer at tlH.~ time. ReCl:lllSl~ of his eXpt.:~rience ::IS a tJniun m~mber
and Lue,al President, Mr. Curtis mad\;.: notes about these conv(,.'l'sations that same day and
gavl.: lhem the following :wcck to Mr. Leo BWt're, the f)ircctur of Culture and Recreation.
That was hi~ last involveirlent WiLh the incident until February 2Rl\ Whl;r\ Mr. Clark
called hi111 at home to vc6(y the exact worus used hy the grievor. He told Mr. CUI1is lhat
he W,tS at a meeting with Mr. Aroerc. Mr. Kir.chen and the grit:vor aL the time and wilntcd
to be sure about what hac! been said. Mr. Curlis aftlrrned that he had said" r could make
YOU!' lite hd)" and tulu M!r. Clark that he would sW(:'i:lI to it on a stack of bibk:s.
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In cross-examination Il,ik Curtis testified that he had not known uf the terms of the last
l.:hance agreement until after the ~'1'ievor had bCt:n tem,inatcd. He expec.ted tht= grievor
would be in some trouble aller the incident hecause Mr. Clark and Mr. 13mc::re were
involved hut: did not think he would be terminated. He also acknowlt:dged that aBer the
gric::vnr's termination, he was told by OPSEU that a general membership meeting had
hcen arr:mged. He rUIl for nftice but "vus ddeated.
I-k acknowledged that Mr. Rrocre was a strong person who sometimes expressed himself
lim.:dully and that he \vas known to develop enthusiaslllS for ::;ome people and a lack of
cnthusiasm for others. He agn:'ed that Mr. Broere had expressed annoyance at the
grievances tiled by thegricvor and saw theIn as a personal criticism of him and his
management style. He: also agreed that he had tailed to proces~ somc of the griev~uH.:es
filed by the grievor. Mr. Curtis explaim:d that the gricvor had told him that he did not.
want to be represented by him rind Mr. Curtis was cOIH;l:med about violating the UPSET r
constitutinn. lle confi~int:d the Union's position that the argulllent started and ended
bdtm~ the start uf their ~hifts, He stated that he W(lS fearful during the exchange and that,
while the grievor had 11:t>t made any threatening physic.al gestures. it was his tone of voice
that caused him to be afraid. Finally, he agreed that, on the day of the griev01" s
termination, he had l.:aUed in ,a Mr. Mitchell to replace the bTrievor at Mr. Broerc's
direction. He did not rCft:all scheduling that rcplacernt:nt for any shifts tOllowing that day
but did not deny that hc::.might have done so.
Mr. J .eo IJroere has hee:r the Director of Culture and Recreation tor rhe Town since 1994
and was involved in the negotiatiun of the last chance Elgrc(~n\(:.'nt between the Town unJ
the grievor. Till: rca..<.;on/or the discipline in till: first instance had been angry outbur~t::;
with lIsers oftht: facility and tht: conditions Il,r a return to work included a medical
assessment. aLtendnne(;;' .tl a COIJrse OIl unger mOllagl.~ment and agreement 01' u protocol
regarding an appropriate! pWl,;t:dure for dealing with ditTil.:ult ~ituatiuns at work.. Within
fWo weeks of the CXQCutl!UIl of the Minutes, thl~ Town circulated a Protocol for Dealing
Wilh DilTicult Situations that: inclW..k'd directions on who to contad in the evellt ora
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probkm. Neither the 'Union nOr the grievor objected to this protocol and tht~ Town took
that silence as assent.
There was no further communication between the grievor and thl.; Town until St:ptembcr
12. 2005 when Mr. I3nl)t:~re wrote [0 the gricvor reminding him of his obligations lIndl..T
the Minutes or Settlem'cllt, specificully those involving the agreement to attend an angel'
management course and consult a physician about his need for assistance in that regan.l.
The letter advised the f~rievor that Mr. Rrocre had done research on the avai lubi lity of an
appropriate course .mdhad found one offered through the Muskoka/Parry Sound
Community Mental Health Service cmitlt:d Partners Abuse Response Progrrull. He
e.l\.plaincd that the na01lr of the course Was somewhat inaccurate since it was intended to
hdp men understand alld manage their emotions in interac.;ting with others. He advised
the grievor tha.t the TO~~111 would assume the cost of lhl: course flnd wished him success
with th... program. The ,grievor did not respond and two months later; on Novemher 9,
2005. Mr. Broere sent t~e grievor a memo noting thut the Town had recl.:'ived no
<.:onlirl1'lation that he ha;H done anyt.hing in furtherance of his obligatiuns I.lndt,( tht;.:
Minut.es and reminding him that those Minutes stated that the Town was to choose an
appropriate courne and I:t was not open to lhe grievor to ohject. He was told that he had 3
\vC'tks to show Mr. Brol~re that he had enrolled in lhe course suggested. A failure to show
compliance would be c(ifl1sidercd insubordination and a breach ll/'tht~ Minutes.
Additionally. MI'. Broer.~ noted that the grievor had t.aken no 5tcp~ to cornply with
paragraph 3 of the MimJ:res and directed him to conslIlt a physician to dcturmil1c wht:ther
he m:t:ded treatment wit~ respect to anger management, He was given a lhree week
deadline to feport the re~nJlts of the:: asscssrnt:nt and, if IH,:ccssary, the pn:,scrihed t1'L~atmem
plan. Again. ht: was u(hdscd that a failure to comply would he insubordination anLl a
breach of the Minutes sl~fficient to trigger the consequences set out in those Minutes.
On November 14. 200(1, a meeting W~\S held with the gri\,;vor, Mr. Kitl..:hencr. tll(: Union
Steward. Mr. Clark and I\l/r. nrocrc in which thl.~ grievor advisl;.'u the Town's
r("prcscnlutivt.:.~s (hal he htjd consulted McMaster Medical Centre about sl.:'heduling all
appointment to determinl~ his need for tn::alment for angt.:r management iSSUGs. They also
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discllssed the pan.:ntal abuse program suggested hy Mr. Broere. On Nuvemher 24lh, Mr.
Clark sent the grievor 'ill11cmo in which lK~ al:knowledgl;d I:he grievor's assurances thnt h.;:
had tah'n sLeps to fuUHI his obligations under the Minutes. Mr. Clark stah;d that, in lighL
of those clear assuranc,cs, he could disregard the previous (k~adline. As well, Mr. Clark
I,;.oncedcd thatlhe pare:htal abuse course was not the most appropriate in the
ci"cumstances and adv~s4,;d t.he grievor that thcy would cllntinlll' lheir rescan.::h into
finJing II morc suitablt'! COlU'S(.\ In these circumstances he could di~rcgarJ these timi:
limits as welL
The gricvor did not respund to this memu and on January 17, 2006, Mr. Clark wrot.e to
him setting uut the prc'!ious memos and discussions and directing him to pruvide a ll.Ok
fi'om his physician settling out his cftorLs to obtain an a~~essmcnt in acco['(.lanc~ with The
Minutes. If an aSSl'::;smi~nt had b(:l.:n completed, the grievol' was instructed to provide a
wrilkn rcpOlt of that a~'sessl11cnl. I Ie was fllrthl,;;'r advised that a flliltm: ur refusal to
comply with this rcque:,;t within a week ofth~ date ofthc flI~mo would result in a
su~pension wilhuut pay for two wcek~ and, further, a failure to comply within those lwo
weeks would result in his termination.
Three days latcr Lhe gril~vor, in a wri.tten rnemo to MI'. Clark. advised him thm tht,
assessment was ongoing at the time nnd that on January 181h, he had informed his medical
practitioner's rcceptillni;.-;t abuul the il"l1pcrative need for an appointment at the earliest
availahility. Tht: follo\\~ng day he was able to obtain an appointment f()[ Febwary 6 and
he advi~ed Mr. Clark th:)t he would be unable to comply with his n..'l.juests until alleafit
rehnlary 8, 2006. MI'. <'lark replied Lu that memo on January 20th hy noting that the
grievnr had nut respondi~c..l Lo rhe questiun posed in tht: memo of January 17lh and thnt ML
Clark presumed the gricvor had not taken any slI:ps to comply with the Millutes. He
advised the grievor he Was 1:0 provide them with ,l satisfnctory lelter hom his physician
by JanU(1l'y 30th, and thuta failure t() comply would result in a ~usp~nsion wilhout Pl'ly
effective Fehrual'Y I. 20()6. Additionally. if tht, TUVvl1 did nuL receive a report of the
as::;l'ssmeI1T hy February 14, 2006. the gricvor would be terminated. The grievor did 1'101'
resrond to this memo and OIl January 31 S~, Mr. Bf'ol:re advised tIll: grievor thal he W[JS
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suspended for two wel;ks and, if a satisfactory report was not forthcoming within two
t\Jrthcr weeb, he woulc.l be temlinatcu.
On Ft.:bruary 10. Mr. Eirocrc received a feller from Ian McKeniFie. a Psychological
Associate with the HlIJ~lanil)lic EtlCctive Learning Program in Hracebridgc, advising him
the grievor had approal~hcd him with respect to complying with the terms ofl:he Minutes
or Settlement. Mr. McK...~nzie asked for contlnllation of the terms of the Minutes and
inlhrmRtion about whc~hcr his client would he the grievor, the Union 01' the Town. He
asked for a mcctin~ Wilfh reprcscntati ves of all three in orch;r to determine whether he
could provide the nece!~sary assessment.
Mr. Broere ndviscd the gricvor in a memo dated February 13, that I.ffi a<;seSSIl1L'nt from the
HUll1iinist.ic Ef11;<:live r .earning Program would not satisfY the agrC'ement that an
assl;ssmcn1 he cOlllplete:d by a physician. Hi: noted in the: memo the Town's
<.lisappointment in the ti)ct thallhc grievor had advi~ed them that apJ1nlntments had been
made to obtain an (lsscs~ment, which was untrue. The memo went 011 to advise the
grievor thaI: his Sl.lSpL'nS~iOn would he lifted the: /()lIowiIlg day hut that a failure lo provide
lhe naHl~ of the medical practilioner prepared to compete the assessment by l<'t.:omary 241h
would result in another i~uspension. The Town offcrt:d to pay for the assessment.
The gricvor advised Mr. Uroel'e by memo of .F(~bruary 15lh thaI. he had attended at an
appointnH:nt on Februar;y f) with Or. Michael Mazurek, had <.;onsulted with Or. Miriam
Ayi7 nnd had commulliC;tlt:d with Mr. McKeflzie. No dates had heen Sl;.~l tor nn
assessment at thut time tiowevel'.
Mr. Broere was asked ahout his ellhrts to obtain a training course 1[1 l:ompliancc \vith the
Minutes. He testified th4t he had c.onsulted with resources in the community, including
those involved in COlll1llldnity he~l/th. He was tolll. there Wt'r~ no cour:)es availabl~ dealing
specifically with anger m:anagc:ment i$suc~ but wns aclvi.st:d of a course that dealt with
n.-klted matters. "( he gric \lur. when told of the COurse, was oftended, klt it ""US
inappropriate and refused lo attend.
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The grievor filed a grlt:vance regaruing hi~ sllspension, which was taken to Council 011
February Slh, A meml) dated FL:nruary 22, 2006 advised the gricvor t.hat, ~incc :'in
accommodation had been real.:hed regarding his obligation~ under the Minutes of
Sdtkrnent, his sllspcnsion had becn lifted without compensation.
Mr. Brocre bel;iimc aWare of the <lltercalion hetwccn Mt Curtis and tho gricvor through
Mr. Clark. There had he-en a meeting on February 21 sf with Mr. Clark, Mr. CUllis, Mr.
Kurlicki and the grit;vc>r in which the Town had agreed to aHow Mr. McKenzie to
cOlldm:t the assessment and to pay tor his services. After the meeting Mr. Kurlicki told
Mr. Clark about a nrecent problem" between Mr. C1Il1is and the grievor. Mr. Clark sent
Mr. Rmore an e-mail ~~king for dt:tails on the incident. When Mr. Broerc~ asked Mr.
Curtis to du\:ument what had happened and was told that he hod already made notes of
the incident, he asked f~r the notes. Wh~n he read tht.'m he was very disturbt.d and
scheduled a meeting fo.'r h:hnHll'Y 28, 2006 with Mr. Clal'k, lh~ grievnr and Mr.
K itdwne.r. At the IlH:t:I:ing the primary focus was on the comments the gric:vor was
alleged to have made a:j)out making Mr. Curtis' life helL Mr. Clark rcft~rred to ML
Curtis' notes and asked the gricvor directly whether he had m:ldc those remarks, The
grievor said hc hod said no such thing and that it WlIS all lies. He told Mr. Clark that his
sole com:em Wfls the wiiy the UnioIl had bc(,~n managed. He accused Mr. CUl1is, Mr.
Rroen: and 1\11'. Clark of heing liars. He flccus~d Mr. Brol"fe of setting him up to be fired.
At that point Mr. Rrocre and Mr. Clark left the room to consider their optio.ns. Mr. Clark
called Mr. Curtis to con'lirm the won.ls used by the gricvor. They werc satisfied with Mr.
Curtis' version and decfded that lhey had no l:holce hilt to invoke paragraph 8 of the
Minutes ofSettlelllent :ind terminate the gricvor's services.
When they rcturned [() tljk room and l1dvi:sed the gricvor of their dl.:dsiol1, he became-
angry and hegan sen.:amjng at them. Mr. Kitchencr trit.'u to. push him out the dour hut the
grj~:..vor continued :ydJinl~ at Mr. Aroerc ,md Mr. Clark OWl' Mr. Kitchener's shouldc;-r. He
accused thein, the Corporation and the Union, of neing cQrrupt. lIe told Mr. Brot:re and
Mr. Clark that tht'ir proli;~ssional careers 'Nl;re ahsoJutdy not safe, Mr. I)roerc- teslj tied
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that he was aghast at "\That had transpired. When it was said [hat the Union would deny
therc was any physica; cuntact between Mr. K itchcner and the grievoT and that the
Town'::; claim that Mr_ K itchener was pushing the grit:vor out tht: door wa::; simply
incorrect, Mr. BWl.:rc ~Itatcd that ht: had a vivid picture uf Mr. Kitchener on the inside of
the; door and the gnevl;lf, from out$idc the door, flailing his [11111 OVer his shoulder whik
scref.lming ohscenities and yelling "its noL over". Mr. Rrocrc al10wed t.hat he might havl.:
had a smirk on his fact; during this incident but denied laughing out loud. He was
shocked and probahly ;Iightly amused at the time.
In cross-examination l\~r. Droere was asked numerous questions ahout the cf1hr/.s by the
Town to enforce the ktms of the Minutes of Scttkment and about the unilateral
preparation of the protocol referred to in the :s~ltlement. The parties hav(;; agreed that the
purpose: of the Town's evidclwc: in this regard was to respond to the gl'icvor's assertion
rhalthe Town acted in '~ad faith by harassing him and that il acted in an arhitrary manner
wh<:n it decided to disc1hargc him pursuant to the Minute;,~:s of SettlcnK~nt. POI' reasons to
be explained lakr, I dO'lot intend including the details orthat evidcm:e.
Mr. Murray Clark testified hy telecunference from Uritish Columbia, where he is now
l~mployed. His cvic.lenc.~ was, in all material ways. consistent with that oj" Mr, Broen~.
He learned about the alt'~rcati()n hetwccll th~ grievor ;;md MI". CUrlis through Mr. Kul'licki
and asked MI'. llroerc td investigntc. He schedukLl a meeting for Febmary 19lh to explort:
the details uf the encoluller. At the meeting he askc:d the griCVOf f()r his vl:.~rsion offhl'
conversation and specifi'eally anOllt the l,;()mmen1 with respect lu making Me Curtis's life
hdI. The grievor denicel having l1l<lde any comlllcnt ofthnt nfltllrt'. Mr. Clark. testified
that he rend Mr. Curti~'~ nole to the gric:vor and he vigorously deuil:d the content oftht:
note and suggested that A-1r_ C'utiis was a lim', H~ described the grievor as ~Igitnted, angry
and hostile;, He retailed the gricvor accllsing them of being liars nnd of l:ngaging in a
conspiracy to lire him. Mr. ('lark did not have ..lilY specifk rt'wlleClioll (It him using the
\\ford corrupt at that tim~ hut did recall the grievor telling him that thc altercation hl..~lw(:'t>n
he <lull Mr. C1II1is involved charges ofthC' corrupt l11anlll.:r in which Mr. Curtis hall
managed the Local. ,
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Mr. Clark made notes of the meeting but at the hearing testiticd that he had a dear
recolk<:tion ofthe ck:t1t.ils of the meeting. He staled that he had Mr. Curtis' notes b~forc
hirn a.nd that he read lh~ portion pertaining to the allegcd thrt:'at directly to the gricvor and
Mr. KitchC:f1cr. lie wail SUft:' lhat the accusation about h~ and MI'. Rrocrc being liars
occurred before the br:;ak and that []O mention was made by him o.bout th~ Minutc~ of
Sctllcrnent until aileI' the break,
Mr. Clark and Mr. Brocre left the meeting to make two phoIlt: call~, one to Mr. Curtis 10
reaffilm his version of the incidt'nt. and the oLher to thcir legal counselli.>r advice. Mr.
Curtis told him hc wOlJd Swear on a stack ol'hiblcs that his description ofthl,' ~vent was
truc. Mr. Clark, atter (:onsidcring Mr. Curbs' comments, and after di~cus~ion with Mr.
Broere and legal l.:ounsel, felt hI;; had no alternative but tu invoke the last chance
llgrel~ment and tcnnim:l.~e his services. Whcn they informed the griL~vor of their decision,
he \,;untended that it hajJ always heen thdr intention to fire him and that thc rneetinA hall.
been 11 sham. Mr. Rl'oc)'c asked him lo retum his keys and an)' uther Town property and
the meeting concluded. As he was kaving, the grievor maut: a commL'nt ahout thdr
future security that Mr. Clark inkrpreted as a lhreat. He said something to the crH.:cL that
though their tlltun.'s wc'~e safe, thdr profcssionul futures were not. Mr. Clark and Mr.
Hroere Were concerned aboul the possibility of (\:'prisals, i.ncluding properly damage and
p~rsonal hann.
The grievor t<.:slified on ,his own behalf. Before h~ began working with tlH.: Town, he had
b\,;cn cmployeJ as an arl~orist in Toronto and in Muskoka, i.llthe film industry ns a mOl
locator and a~ a camp ct)ullselor in a horse riding institute. lie Dt:gan with (he Town at
the arena as an Operator Class 4 and becmuc a permanent <.:lass .1 in Novemher of 200.1.
Tie rcmaillt:d in (hat position lmlil his termination. At the Lime Mr. Hmerc was tht.:
Director tlnd ML Curtis .was manager al the pool anu. Don Camphell \Va::; manager at lhe
:m:ma.ln 2005 rhe two lj1anagl.:[~ traded po~iliol1s find Mr. Call1pbdl ht'caIl1c Class I
rn....mager fit rl1\.' pool and Mr. Curtis bccame Class I m:magcr at the an.'m!. rile 1ll<:1ll;;lgers
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were n:sponsible for assigning duties when necessary hut for the most part, the duties
were fairly routine. varying /i-Olll day to day bm on a set: weekly schedule.
Mr. Hodgson was aski;d whethl;;r he ever conc~ded thl.: allegations in the Minuks. llis
response was Lhat he had not and did not but explained that he had a two year old son at
the timt' and needed hi~ job. He Jell confident he could meet the condillons of the
settlement. He uIHlcrs'lood that he was rl.~l.Juired to see a. physician for a consultation [IS to
whether hl.: needed anger management counseling. lIe suffered an accident shortly
th\:'re.~ncr and was ahsl:~nt from work for two weeks with whiplash and a conclIssion.
Eventually. in June, he. saw Ur. Mazurek at McMaster Hmpital who suggested he arrange
an appointmenL with a psychiatrist. As well, shortly aJler the Minute:) of SctlJ~ment had
blTn signed. he was tol<l by a trusted pl~rson that n physician was nul legally qualified t.o
gi Vf;; an opinion of whether :someone had anger management issue:;. The only people who
could wc/-c qualitied p~ychiaLrists or psychologists. He hclicvcd thaL t.o bl~ tru~ and whcn
nr. MaZlm.:k suggested a psychiatrist, he was of the view that would be u:sdill in helping
him find all appropriate person to pl:.r!om11-he asses"ment cited in the MiIlutes. He also
he! iewtl Ur. Ma7urek would anangt: the nppointment. Howev!::r, he did l10r contal'l Ur.
Mazurek hetween June twos and Januf.llY 20U6. He km:w it would take some time to
make: Lh~ Ilc..~c(~s:sary arrr.,ngcHlcnts and felt secure that Dr. Mazurek would takt: UJT~ 01' il
for him.
Wlwn he received thl.: IT.emo from Mr. Droere regarding his ohligations under thi;.'
MinuLes. he did not n.:spmd because he was disgruntled. insulted and take" aback by the
issue or the spousaJ abU:l~ program. Nothing had been said to him abouL the nsscssment
since the Minutes had bi:cn signed and. Whi::ll lh~ Town did approach him it wa~ to
suggest a totally inappmpriate COurse. In any c:v~nt, he fdl it was in Or. Mazurek. 's hands
although he had begun tn think. he should explore ot11('r avenues. The next memo camt'
two monlhs later. followed [\ wC'ek later by a mc~ling with Mr. Rl'Ol..~ri;;'. Mr_ Clark., Mr_
Kitchcner nnd the grievor in which tl1('}' discLlssed Hw MinutC's. Tht: grievor recnlled
ldling thC'U1 that he had l~t't:n in talh with Dr. Mazurek about setting IIp an iJrpointnH:~1l1
with n pSYl'hiatrist. .Mr. Clark told him that would he HCl.',cptable and :sent hii'll a memo
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Novcmbcr 2glh in whil~~h he advised thc gricvor that, in view of hi~ aSSlImnce~ that he was
taking steps to obtain ;'111 assessment, th~y would no longer apply a rigid time limit flH. till..:
complc-tiun of his ohligations under the Minutes_
Th~ gri\.:vor knew, however, that the Town still expected him to I'neet those obligations.
lIe was told about a IOltal gentleman. Mr. Ian McKcnz.ie, who could assist him in the
aSSCSSllll.:nL He was trild he worked <,;ollllscling individuab ahout anger manUgcm~nt
issue:-;. He approachedMr. McKenzie at the arena in \.:arly Dec,cmbe::r and asked him if he
would be willing help hiIll with an employment problem_ HL' heard nothing from tl,,:
Town until January 17( 2006, whcn he received a memo frOlII Mr. Brocre advising him
that since he hnd not pr;ovided the Town with any fi1l1her inl()mlation about the progress
of the assessment, h\.: h'fld one wcck to provide an asscs:;;ment report or, in the allernativc,
medical proof of his d1hrts to obtainllll a::H:>essment. A failure to provide the aoove
would result ill a twu week suspcnsion withuul pay. A failure to provide the asseSSIll(:nt
Or the: dl()rts to obtain Ihe nssessment during that week would resulL in tenllin,tlion.Thc
gricvor responded thrt:e days later hy advising Mr. Broere that he had m.ade an
appointment with his pllysi~ian for February 6'h and a separate but rela11.:d appointment
/()r the 7'h and that the e:arliest he ('~Ol..dd l:ol11ply with their request: would he February gill.
Mr. Broere extendeu th<1 deadlinc to January 11 Sf but warned the gricvor rhat a li.J.ilurc tu
proviut: the necessary d'~ctllllcntation within Lhat time would result in n suspension afld
possihle temlinatiun. The suspension was in fact put into cff("ct on February I ~t and the
grievor filed ~1. grievance:, which was ultimately presented to the Town CounciL A
decision was made to lift the suspension provided he would provide them with ~ letter
uutlining the d'/(lrts he had taken [0 comply with the settkrnent.
While these ~vents wC're unfolding, the grievor :-;pokc to Mr. McKenzie ahOll[ his
ohligations under th(.' Mi ;1lI1.es of Settlement, who agrcl~U to act as a /acilitator and make
Ihe appropriale phone ea: Is to clarity the issues and his rokl he Town inirially touk
I:xC'cpLiol1to Mr. Mc.:Ken;dc's pflrticipation bllllater :)gl'el:~d to accept his qllalilications. It
was during tilt, same' timer trmm.: that thi:.~ gricvor ,",vrole to Mr. Broe::r~ advising him that h('
had s\:.'en Ik Maz.urek and Dr. Aziz and (hat IK~ had consuJt<:d with Mr. Me KCII;r.ic.
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Mr. Hodgson testitied about Lhe spoll:)al abu~e program the Town had arranged for him to
attend. lit-: understood that the MinuLt:s of Settlement required him to attend a wurst:
designed to assist him in leaming skills to deal with situatiuns that might arise involving
I.:ustomcrs and (.;o-worllcr~. It was also his understanding that th<.: lJnion and Lh~ 1'0"".-11
would consult on the appropriate c()urse. Instead he received a memo from Mr. Broere
advising him of his enl'OlImcnt in Lhe Partners Spousal Abuse Program_ [-Ie conLacted the
,ldministrator of the rm~graIlltu inquire about the details and Contl..:nl of the COurse find
was told lhat the majorily of pmticipant.s had been refcrrcc1 by rhe courts or the Muskokn
Mental I lealth Service or was attending as a term of their probation. usually for reasons
relared to spousal abu~I~, He was told it was a I G WCl..:k course with d<lsseg t:very
Wednesday. He was irlsultcd and offcndc:d and advised the administrator he would nul
be attl.::mling. After dis:~\Ission with ML Broere find Mr. Clark, it was Ilgrecu that the
('our~e wa!; not appropriate but the grievor was te1l11inated hcfore more suitable
arrangements could be !lladl..:.
The gricvur was asked ;I.hout his n::laLionship with Mr. Curtis. He st;;tlt=d that they had
always hall a good worlUng relatjonship and had h~el1 able to work Wi;:lI together hdofc
~nd after the February ij,cidcut giving rise: lo this grievance. That same d~\y he: cOl1liflLlt:d
hi::; shift and worked se'\el'al ol:her shifts wilh him between thtm and his krminatioIl, Mr.
Curtis did not mention ~~ny concerns during that time and ~tl;led in H usual and normal
manner. Ilis l Jnionl'dati()n~hip with Mr. Curtis was not so CHSY. Tht: gricvor became
active in the Union shorfly after arriving in Uract:bl'idg~ and hecarne a Union Steward in
2004. HI.: al:-;o became \ery vo(;al in his con(;cm:-; abuut what he considered Lo he the
Illisrnanag~mellt or Lhe L~OCfll, Irom the dCdion of oftlcl.::rs to thl:' munagClrH:.~nt of funds.
l3y February 161", thc day ofthc incident, his (.;onccrn~ had grown lo include lhe lack or
reprt'Sl:'nlalion, lack or aqcollntabiliry and n.:.lusal to provide infonnalion aboullhe affairs
of the l.ocaL He had confronted Mr. Curtis at Il:'a:1l l.wice befort: ilnd was upset abuut the
l;lct that hI.:: had rdllscd L\) respond to his wncerns 01' requesls. On the day in question,
lIw grievor rl..'portcd [() w~rk at 0715 and. when Mr. Curtis asked how he was. h(.~
responded '"how do you think its going?" MI'. Cl.lliis S~tid he did nut knl)W what thM \,vas
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all nhouL which the g/ievor took lo mean hi~ suspension. He rl":-ipol1ded by saying that
maybe till: employer ,,~ollld nutlrem people like that il" they had proper rcprllscntation. It
dCkrioratcd from there. lie asked Mr. emtis abollllhe Loc;:II t:xecutiv(.~ and then accused
Mr. Curtis of holding the position unlawl"ully, He told Mr. Curtis he should do the right
thing and st(.~p down. Mr. Curtis said he was rdiring soon anyway and Ihc grievor told
him if did not malt~1' b~cause he would still be held ;:lCcounlHblc n.)I" the Ilnmncr in which
he had handled the l.oi;aL At thai point Mr. Curtis told him to go hom!.:, The grievor
<lskcd ifhc was heing disciplined and, when Mr. Curtis rtlspondcd thai. he <lid not hav~ the
authority tn do so, the grievor rt:fll:-;cd to kavc. Mr, Curtis told him to rl.'pair t.he blade at
the back ofthc blljklinl~'
f'k insisted Mr. Curtis' notes of thl.' conversatiun were incorrect HI.:' wa~ not angry,
fw.:rely serious, He believed thal Mr. C1JI1is, Mr. Broerc and Mr. Clark had aUed in
l:ollusion regarding Ihl~ interests of other empJuyees and that was the case in this instant
grievnnce. Hl: ad:ll1lun1Jy denied making iJll.~ threatening comment alleged by Mr. Curtis.
The dosest comment wuuld have bc.:l:11 hi::.; remark about Mr. Curtis heing accuuntflbl<:
after reliremcnt. He calegoricully Jenied telling Mr. Curti~ that his IiJ'i~ could h~ IlHtde a
hell.
Wkn he Wi)S called to f~ nweting in the town hall Oil February 281h and l:()ld to bring a
Union r(~pr~scntalivc. h.,;~ had no ill<::a ofthc purpose or the meeting_ Nothing had been
said to him by anyonl,; a(,out Mr. Curtis' concerns, indudin,g Mr. Curti:;. J Ie wa.s told to
bring his lJnion rcprcser'jtntivc and h(~ called Mr. Kitchencr to accompany him to the
mt.~eting. r lowe-vel" on 'lis way to pick him liP, he drove by the arena and notil.:cd Mr.
Mitchdh;' car in the par/:ing lot. He Wl:nt into th\.: arena anu asked Mr. Mitchell how
long he was expecting lo work that: cV('~lling. 'fhe grievor hall been scht=duled to work
that shift and, when Mr. :vfil(,;hell told him he wa::; scheduled I'(lr the full shift and lhat he
had also heC'n schedulcdlo work more shifts during the: week, lhe grievor came 10 the
conclusion that ht: Was g()ing tu he tired. When he picked lip Mr. Kilchener. hI.: told him
ahollt his leal'S,
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Mr. Clark opened the meeting by raising his wncems about the incident on February 16~11
in which Mr. Cllrti~ aUeged the grievor had threatened him. The grievor denied making
any threat and explained to MI'. Clark that thl: exchange between them concerned Union
ac.~tiviti(;s, which weft: not the business o1'managelllcnt. lIe related his version of the
conversation. indudin:g hi::; (;Omment about being aCl:ountablc even after retirement. Mr.
Clark did not advise hlm of the eXUd word:> he was allcgt,u lo havc said to ML Curtis, nOr
the pn.:l.:ise nature oj" tlie thr(~al. He di.d nul know those det.ails until after his termination
when he n'ccivud a cO;.'ly of Mr. Curtis' notes. WlH.:n Mr. Kitchener tTied tu speak on the
grievor's bl.:'half: Mr. h~rucre told him tn be qlliel and let Mr. Clal'k speak. ^.t this point
Mr. Clark and Mr. Bra,ere left the meeting to consider thl;;ir position and rcturne<l,Shonly
to advise the grievor thiat he was being t~nninatcd. Th~ gricvor accused th~m of planning
to fire him bdl)re the 11'leeting and, when Mr. Clark denied the allegation, the grievor I.old
him not to lie, that IK: tjad done it tu too nlany times t.o other employees ill the past. ^
few additlonal commer'lts Wl:re passed bitl.:k nnd fauh and Me. Kitchencr suggested to the
grievor that they leave. The grievoL' made a comment to Mr. Clark ahout nol caring ahollt
hi:-; cmpIOYCl.:1) and said that he would he taking this matter to arbitration. As he was
walking towards the door, he heard boisterous an<llolld laughing from Mr. Rrol"fe.
Wh\;'o a'iked aboul Mr. Rrocrc's and Mr. Clal'ks version nfthc meeting, thL:' grievor
a.llowed that he might have called thl'..:m corrupt bl;:'(.;ause he believed they were in
collusion with Mr. Curtis to the Union member's detriment. I Te maintained that, whik
Mr. Clark did have a pil:e of papers in front of him, he did noL show lhem 10 thL:' grievor or
Mr. Kilchent:r nnd hc <lid not read Liirectly from those papers. He denied heing
argumentalive or aggre~;sivc blll did agree- that he might hHve calIc<l Mr. CUltis a I iar. I Ie
~p("('ilically denied m3k)1g any threats to Mr. Clark Or Mr. Brot're. H~ diJ say t.hat they
should be conc~rncc.l ab(lut their l,;hosen professions but it wns in response 10 what he
described us Mr. Hroere~s childish, tLlunting and uncalled for lallghLer.
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SlJRMISSIONS OF THE PARTIES
Me Bill Phelps, cuumiel tor tht: Town, began hy reminding the Uoard thallhis is not a
case orprogr~ssiVI;; di(;ciplinc and the quesLion for the Board I::; not whether the gricvor's
conduct waTl'anlcd disl~ipline and, if ~o. whetlK~r the discipline was appropriate. l'ht: only
issue for this Uoard to uetenninc is whether the grievor taileu 10 comply with the terms of
the last I.:hance agrC'clni~nt dated ^pril 13,2005. Tfthe Board finds that the grievor was
guilty or somc~ ~onduc'~' descrving of disdpline, the only inquiry th~ Board can lIm..lertake
is whether the Town ai:tcd in an arhil:rary 01' discrill1im1lory li1unn\:'r or was motivat.ed by
bad faith.
It was !>ubmittcd that tIle Union has allegc::d the Town Wf.lS arbilrary in its decisiolllo
t\.:rminate the gri~vor. ro some cxtmt that is the very question this Board is asked to
answer. Iflht're wa.<.\ disciplinary conduct, the Town could nol he S(Tn to he arbitrary if it
uecided to cllJ()rce the lerms ofthc Ia.-;l chane-I; agreement. The evidenl.:e. it was said.
ckarly indicate~ lhe Town acted in a r<::asollf.lbk manner when it reachl.:u its dccil;ion.
It was stated that, if the gri~vor's all~giltions that the TO'WTI wns out tu get' him "vere tru\.:,
the Town could have re!Jicd un the Minutes of Settlement before the events of Fi;.~bruary,
1006 to accomplish thnf end. The gI'ievor acknowl~dged lhat it was hi~ rcspoLll:iibility 10
ohtain a Illcdil.:uIIlSSCssfnt:nl: about his anger rnanagement issues and yet, for almost five
months aIler the Minukti were signed, he took no steps to satisfy tho~e obligations. The
Town could have acku (m his failure to do so, hut did not.
Additionally. wht'n he was pre1\sed to obtain the assessment, nol only did he rake no st~ps
to do so. he also misled 1'he Town about the eftorl~ he claimed he had made. The Town
could have acted On this breach of the Minute~ of Scttlement, buL did not. Then, on
Novemb~r 5,2005. he was given a warning for lateness. Jrthe Town was intending to l:l<:l
ill an arhi Lrary manner. i1 could haw tak.en action lo terminate' the gri~vor Lhel1_ t:vl.:n in
January of 2006 when he: was sllsp(:nded for tailing to document his Cm)rts to obtain thl:
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required ass~ssment, tbe Town did not ael in an abrupt ur precipitous manner. It gaVl::
him every oppo11unity to comply,
The grievor's failUft: to provid(;; an assessment after that. date: has heen documented in
ffit!mos dated Septemb.er 12, November 9, Novt:mhcr 28~ 2005 and January 17, January
25, Jl'Inllary 31, Pebn13ry :2 awl FehnJary 13,2006. It cannot be said, it was SUhlllitkd,
that the Town seized the first oppollunity to rid itself of the gl'icvor.
The Town acknowledged that it had tht~ onus to prove the grievor wa::; guilty of
disl,;,iplinary conduct, thereby triggering its right to t\:ffi1inate his services. It relic:~ on the
threat the grievor mad~ to Ten'y Curtis as the tirst example of conduct prohibited hy thl:
last chance agreement. It also relies on the grievor's angry outburst at ML ('lark und Mr.
Rroerc during the meeting to discuss this incident, d~u'ing which he accused them or
heing corrupt and of being liars, all part ofa l,;onspil'acy to get rid ofhirn. Finally, the
grievoI' thl'eakn~u that their futures careers of Mr. Clmk's and Mr. Hrocre were not sale.
There can be nu doubt this conduct evinces thn:t: distinct examples of unsalisfactOl'Y and
di5c.iplinary \.:onuuct. IITCSpc\:tive of any argument thl;~ Union might m;;IKe anout thl.:
severity of the:: miscondLlct, [he only qUl.:stion for this Buard is whether the actions of lhe
gri~vor warranted any l.l:iscipline. lethe answer to that question is ycs~ the Town wa~
cntitled to enforce the hL"t chance agreement and tem1inate his service~.
It was submitted that, ill assessing whcth\.:r the gricvor's denials should he prefcITl:d to
the cvitkm:c of the Town's witncssl.:s, [he Board llt'(;.'U only review the cvidctl('c to
l~on(,:lude that the grievo.r mi:-;Ied thl: Town at the time of the incid\:Ilts giving ris!,; to this
termination and hc conhnucd to mislt:ad the Board Lluring th("St~ proceedings. the most
obvious eXfl11lpk is fourlu in his I.:vidence concerning his effort~ to ohtain an assessment
pursuant to the Minutes of Sctlkment. On Novemher 9,2006, he \vas i.\dvis~Ll hy Nlr.
I1roere that he had three wc~ks to arrange an tJsscssmt'nt regarding his anger nHUJ;:lgem~nt
issll\::s. In ill11eeting a w.eek later 11(: advised the Town that. he had consulteu wilh a
physician at McMaster ~:!1edical Centre. In fact. he h,i(i se~n Ur. Ma/::urck at McMasl~r
but not for any asseSSn10,nt Al,;wrding to Ur. Ma7urck, he had seen th\:.' grievor in Jun~
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for a Gonc\Jssion and had not seen him again until Fennlary 6, 2006, And yet, in a memo
to Mr. Clark in JanuaI)' he stated that the aSSt~:ssment was ongoing. That was a total
fabrication. Dr. Mazurek clearly stated that he had not sc~n the grievor lor angt:f
management conCcm!oi :md did not arrange tor any cOI1::>ultation with ~myone else /()r that
reason.
Not only did he lie abqut his appointments and lreatl'nent with Dr. Marurek, he was also
dishonest about his de~~lings with Dr. Roseoush, Dr. Aziz Hnd Ian McKenzie. Dr.
Mazurek had suggested he see Dr. Roscoush regarding post (:oncu~sion lrt~alment. not
anger management. At the time the grievor was assuring the Town that he was making
c1Torls to arrange an at,pointmcnt with Mr. McKenzie, thc evidence has shown he had
only run into him at th(~ rink and had done nOl,hing tuwards beginning treatment wil'h him.
I Tis evidence On this p(\int was vflgU\;.~ and evasive.
His attempts tu mislead the Town continued. On February 151\ he wrote to Mr. RrOl:re
stating that he had. seen Dr. Mazurek, I:unsulted with Or. Aziz and commllnicat~d with
Mr. McKcIlLil.:. The fflt:t is his appointment with Dr. Mazurek was unrelated to any
issues of nngl:c manage.tncnl; he had a casual conversation with Dr. Aziz while he \Vas at
McMaster, and his cunlact with Mr. McKcmje was limited to a casual inquil'yabllul
wh\::lher Mr. McKenzie could perloml the assessment lhe Town was ~eeking. When lw
was ask~d in cxuminati()n~in-chicf why he did nOl obtain the assessment, he claimcd he
was comfortable and hupeful that Df- Mazurck would lake care of it In (;ross-
t,'xamination it hecame dear that the real reason ht: did nOllry to ohtaill .m a!;SCSS!lIent
wns because he had bee) insulted by the Town's proposal he take fl. course in spousal
abuse and was di~grunt1~d at being asked to undergo any treatment f()f somvlhing he
bdieveu wns not a prnhtem.
His evidence n.'garding Hll~ untounded inferences that Mr. Clark and Mr. Uroere wen: part
ora c~mspiraL'Y to gct ritt of him and his alkg~llions that Tt.:ITY Kllrlicki and management
\\('n; in l..:olIl.lsion Wefe all, he admitted, suppositions OIl his pan withollt nny foundation.
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I Ie wants this Roard b aCl.:ept his cvidtmce over thal of ML Curtis bt~eau~e of this
conspiracy theory nnd yet olTered no proof of its existence.
Hi.s choice of words hI describe the events or Febntary 6th ~hows his freedom from
prcci:>ion in his langui;lge. He accused Mr. Curtis or violating the hy-laws or lhe Union
bullater conceded he "nighl have meanl the constiLulion. He told Mr. Curtis dming the
disagreement lhat eve(ything he knew he Icarned from him but could not explain what he
intended to convey with that remark. His recollection or what he said changed during his
I.:yiuence, depending oj1 the questions pul. to him. Mr. CUJii~, on the other hand, maue
notes immediately after the disagreement and his oral teslimony was dear and precise.
The grievor~s evidclll;(: about thl,; Febmary 2Sth meeting with Mr. Clark and Mr. Rroere
was ~qllfllly ulll'diahlc. He claimed in his eviden~c-in-chiefthal no onc told him the
~pecit1c~ aboul Mr. Curtis' allegations and never told him of Or showed him Mr. Curtis'
note~. In cross-~xan1i11ation. he admitted that Mr. Clark read irom sonu.\ notes on his
desk and sp<:(~ifjcally r(:ad out the tlu-cat he i~ ~lljd lo have mad\:. "e denil.:d misillg his
vuice or lhrcall~ning MI', Clark and Mr. Rroore, notwithstanding the ekar evidcnet' of
both, il'\cJllding their WriUl,;n version o/' the events which Sl~lLes he did both. FWII his own
wil.ness did nul contrad[ct Mr. Bruere or Mr. Clark on this point. Till:: gricvor slat~d that
he gav(," Mr. Clark an e'lplanatiun 1'01' his comment to Mr. (\1I1i::; about being accountable
but Mr. Clark, Mr. Rro(!rc and Mr. Kitchener did not recalled any such explanation. 'rne
grievor simply denied lllaking any threat
In his disl,;ussion with J\rlr. Brol:fe:: 3001lt corning in late in Nowmbcr, he claimed that Mr.
RrC/cn:: ::;wore at him bu11atcr was vague about what was actually said and ::;lated itw(ts
"Sollldhing like tllaC". ~.(fr. Broer!:: denks the grievor'~ version and Mr. Campbell
supported his version. The grit'vor's can:.~h:::;s llse of words was ddiheratcly inl.ended to
mislead the Board.
The- Board should uisn:gard th\,; grievor's (.;videncl: wht're it contradicts the l.:vidl.~n('c of
the Town's witnesses. Ii had h~en inconsistenl, imprecise and contrary to the cvidl:nce of
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Mr. Clark, Mr. Broen:, Mr. CUJlis, Mr. Campbell and even Mr. Kitchcn~r. If1:he Board
a~l:cpls the evidence of the Tuwn's witncs~es, it must conclude that the Town has proven
that the grk~vor engaged in conduct des\:rving of discipline and that i I. was entitled to r~ly
on the lust chanl:e agreement to tcnninatc his sCl"vi<.;es. The gdcvancc ~hOlllu he
dismissed.
Tn support of its posilion the Town relied on the tollowing cases: Ri! Kd/o~g Canada
/.imifeel llnd Americafi Fed(!ratio1'l o/e,'rain MWers, l.ocal/54 (] 99R), 74 L.A.C. (4111)
276 (1).1 ..Cocker); Re 71u1I1lf.'s r,:tl"-'y f)fsf,.icf S,;/um/ Board and Canadian (Inion vf
Public F:mployel!s, LOI~'al 90 (19YX), 71 LA.C. (41h) 418 (Chamey); Re De Havilland l1u:.
und Canadian Auto Wprker.\', focal J 12 (1997),68 L.A.C. (4Ih) 426 ( RE. Palmer'); Re
D(! lIavill"nd fne and C"nadian Auto Workers. Lvcal //2 (199g), 74 L.AC. (4Ih) 124
(Rayner) and Re Zehr,s Markets and Rerail Clerk.. Union, Local 1977 (I9R4), 14 L./\.C'.
Chi) J7q (Uarton).
Mr. .Iohn Urewin, (;uuf,seI1or the Union, took the position the only question this lJoard
must cunsider i~ whl"lh~r the conduct of the gricvor during the exdIaoge with T~rry
Curtis On fo"ebruary ] 6, :2006 .i ustilics his di:-;l:harge pursuant to paragr~-\ph 8 of the
Minutes ofSctrkment. That paragraph provides that "fiIrther disCiplinary conuuct by the
grievor with respect to his behavior related lo dealings or intcral~tions with the puhljr
and/or stall' during the 18 months [rom the dak uf the execulion of these Minutes will
rcsuIL in imnlcdiak disll1i~sal H)r j list cause without the right to grieve, subjccllo the
Olltario Human Rights Code and/or a grievor's righllo grieve the alleged bad faith or
arbitrary or discriminutory t.:xerci~e of managellll~lll'~ rights.
Even if tht:' Board should dcdde that the answer to that question is yes, it was suhrnitled
there arc strong and clIn,1pelling reasons not to apply parngmph eight. I'h\.: second
question fur the Hoard b whether the Town aCl~u in an arbitrury m~nncr, discriminatory
IllUlllll..:r or actt:'d in bad laith.
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The Union ass~rted that thcre is no evidence bdon; me anout previous disl~iplinary
conduct. The Min\Jtc~l o[Settlemcnt n..:fbr to sOllle inLemctioll WiLh lIsers ofthl=: nlcility
that promptt.:d the disc,iplinary oe.lion leading to be grievor's tCl'minufiOlL The gricvor
settled that grievance !)ut never conceded that he was guilty uf misconduct The parties
arc agreed Lhat the MiJ1utes of St.:tllement were only t<) be rderred to for purposcs or
cnlurcenlcnt and therefore the word "further" adds nothing to this Board's ass~ssment or
Lhe Town's decision t(1 terminate. All we know is that there had heen intCl'adions with
Lhe public but there is {lU evidence tht'y involved Lhreats. And, in any evenL, it was slated,
the alLel"{:ation bctwcer.i Mr. Curtis and the grit:vor did nut have flny impact on the ruh1ie
directly or the Town's interest indire,~t1y. It W<lS enLirely nn internal Union malter and the
cvidem:t: was elenr tha~ it had no el'lcd on their work relationship following the
LlrgumcnL. It occurn;tl betore the arena was upen to thc public and 110 uther staff
members were present. Thc Tuwn ha.<.; no jurisdiction tu impose discipline 1~)r conduct
rdat~d to membership in the Union. Mr. Curtis should have sought ~l remedy through the
inL~mal Union process, which he chose to ignore.
Il was suhmitted that 1\1;1". Curtis' actions immediately 11.,lIowing the argun1l~lIl are proof
that he did not take the gricvor's words seriously. Whatever OCCUITt'U between the grievur
and Mr. Curtis did not ~~frcct his work assignment lilr I'hnt day Or t'lr several shifts
ti.)llowing Lhat day. l'h~; onus is on the Town to show by ckar and convincing cvidt'n<.;c
that the rcquisite rniSCOllduct occurred. Ifth(,.Te is any doubl. the Roanl must I1nd /()f the
gncvor.
In order to detellllinc whether the alleged mise~H1uuct violated the Minutes of Settlement
and/or Lo detcllll i nc wh~ther the Town ncted in un arbitrary manner, the Board must
consider the 3ctual eOCH..Iuct at issue. By both accounts, the alleged thrci:tl wa~ vague,
remote awl ll()n-phY$ica~. Even irthere has been a technical hreach ofparagrnph S orth,~
Milluks of Settlelllent, i; was a.roiLr;.HY for tht:: Town to enlilrcc this term in thl,;::;1;:
circumstanc.es. Since: thl~ fown relied un this one inl:ident' tl.1l' its d~cision to krl11ilHltc, if
l.;unnot point to othl:.'r COf:uuct to buHn:ss its grounds. 011 that "'asis, the grit:vor shoulJ ht~
reillsLated with full compensation.
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In ~llppon ofits position the Union rdied on the following cases: N.e Bul/moose
()peratinp Corporati()'~ and Cmnrnunicanons, Energy &- Papf!rwurkcrs' l Jniun. Local
./43 (2002), 110 L.A.('. (4th) 385 (Greyell); Re York Region DislricJ School Board and
Canadian Union ofPI1:hlicHmp/o.v(!(!S" Local 1190 (2004), 128 L.AC'. (4th) 317 (P_
Craven); Ri: Canada Fost Corporation and ('wwdian Union oj Postal Workftrs ('~no 1 ),
96 L.A.C'. (4Ih) 299 (K, Norman); Re Ministry l?lJhe Allorl1ey-Cieneral Lind OPSEU
(2004). 124 I..A.C. (4th) 382 (Abramsky); Re Bell Canada and Communicatitms. J:.'tU!rp'Y
and Papt~f'H'!(}rker.\' Un/on o..{Canada (l996), 57 L.A.C. (4\h) 289 (Olssanayake); Re
R('gional Municipali(yof Hamillrm-Wenlworth and In/ernu/ional Union ofOpaaring
t,'ngineers. Local 772 (Hockin~) (1993),15 LAT. (4th) 425 (R_ L~vison); Re Nicholson
and Haldimand-NorjiJlk Ref!.hmal Board ofCmnmissirmers (!IPf/(!/ (197R). S~ D.L.R.
Chi) 671 (Sec).
RF.ASONS (.'OR DRCISION
J:kl(m: considering thl.: ladunl issues I'aise:d in this grkvance. it would be useful to s~t ()ul
this UUiinl's view on it:; jurisdiction in the face oftht;.~ last chance agreement bctwl:en the
ruwn and the gricvur.
Last chance ag.reern~nt~j are generally the result of negotiatiol1.s bctwt;;en the pUlti\.:s
cuncerning the return to work of an employee who has heen discharged for a discipl inary
offence. These agrecnwnts allow an empluyee one Inst opportunity to show the employ\::r
th<:tl he/she can be a pw.juctive and trusted employee and for the (.~mployer to H::>ses~ lhe
empJoyet"s ability to fil,nction within the workplace wilhout the risk and UnCl.:Ttajnty of
the adversarial process. They involve concc::;~iuns and p"omises that future I.:onduct wi II
(;OnfOn'll to thl: w:cepted !-\tandards of the workpla(;e and, failing lhat, (lllow for c~ltl'lin
detined const.:4uenccS. [t is Ull.: parties themselves who lktcrmine what lh~ <.:onseqllc'IlCl.:S
should be for a breach of a last chance agreement. Once they have dom:' so, an arbitrator
should not intertcrl' witt, their <.kcisions :ibsenl compelling reasons. Olher\Yis~.
C'lllpltlyers will be unwilling to extend Lhis las! chance to filtun:." cn]ployee~ and" ~lS a
polil:Y, thm wuuld not hj~ in tht: best interests or either pmty Or lanour relations gCI1('ndly,
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The parties must have faiLh that whcn they enter into these agreements, they will he
honoured not only by the partie:) themselves but also hy 11 Hoard of ArbitraLion convcIll;:u
Lo determine whether !t hreach had occurred.
III the Kellogg cas<.~ (slJpra), the Buard referrccllu the case of Re !.t{jiJrge ('anada and E.
C W. [/, l.ocr.l1219 (Krog11'um) summarized in 14 C'.L.A.S 15 a::; follows:
Whether our dt.~cision can be regarded as one of cnllm;ing the scttlement of the
previous grievtinc.e or as a flnding thaL the parties, hy that agrt:ement of
scttk~ment, have in \,'(1ect amended the collectiv~ agreement in its application to
the grievor, by providing a specitic penalty for the breach of the provisions of the
sc.lllement, the result is the same.
This line of cases hold; that onCe an arbitrator has dctcrmint:t.1 there has been a breach of
l.h~ settlement, iL is without jurisdiction to th~hioll its own remcdy lur that breach. lts
jurisdil,,'lion is limited tl> the tenns oj' Lhe last chance agreement. I adopt this reasonillg. If
Iflst chance agreements are to have any meaning, they mllst btJ honored so that hoth sidc~
understand Lht: seriolls nature of the obligations llIujer the agrC'Grnent and, more
signitk,mtly, the consc,tjuence~ of tailing to meet those obligations. Arbitrators should be
hesitant to interfere wifh Lhose agl"ccIlIt:nts exc.cpt in exceptional circl11l1sttlIlct=s. Tn my
vi('w, no such exccptioflal cirClImstances exist in the instant l,,~ase to warranL a depnliur~
from the accepted jurisprudence.
In dCLt;;ffi1ining whethc::' the gril::vor oreachedthe Minutes or SettlemCnL as alleged, the
I1rst stef) would bt, to de:termine what the parties intended when they dralled the ltTmS of
that agrccmt:nt. The relevant paragraph, J()]" purposes ofrhis grii:vance, rcad~ as follows:
rhe Union and (he Grievor agree that this is a "Last Chance ^grC'clllt.:nl" such
that rurther disciplinary condud by the gdevor with n..'~pect to his behaviour
related to his dealings Or interactions wiLh the publi\.: <:1nd/or statT uuring the I X
months tt'orn the date of execution uf these Minllt(;:~ "viII result in immediali':
di:-imissal lor just C8USL' without the right to grieve, suhject to the Ontariu llum.:m
Rights Code and/or th~ Urievnr's right to grieve the alleged bad faith, arbitrary Or
discriminaLory e:,<ercisc ormanagcml.:'nl's rights. I rJ Ihe cvenllhllt there are 110
f\.lrthi:f incidents or the ahove dl:scrihed nature c..Iuritig the 18 mOlith period, rhe
pfU1ks agree tha, till.: discipline rdating to the Grjev11nc(,~s listed in tlit, preamble
above shall be removed from Lhe GrievoJ"~ disciplinary record.
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Both sides have agreed thut any discil1linary condu<.:t by the grievor involving improper
interaction.s with the pclblic Or his co-workers will result in imrnedintc dismi~sal fix C:~lUse
with very limiLed righrs to grit.::ve. The Union hw, argucd that there is nuthing in th\:~t:
Minutes to identify tht: prohihit.ed conduct and, Illorc specifically. th\:re is no din:cL
rdl:rcnce to threats. thi'~rd()re the Hoard cannot determine what was meant by a "further
im:idcnt". It also uS:;l:rLed that the grie;:vor never :.-tdmitted to participating ill any c.onclllct
descrving of dis(.~ipline and dcni\.~d any I1rohlems with anger management. WiLh respect
to the first mgullIenl., tbe Minutes rder to intcral:Lions with the puhl Ie or staff that could
be churul.:lt:rized as disdplinary. That does not require a detailed description of what the
I..'unduc( would include If I ~Ind thall:he grievor was engaged in an interaction with
another staff memher that justilied discipline that would bt: sut'ticient to lrigger paragraph
eight. With rt::spect to (he grievor's denial of any unacceplable hehaviour or ..U1Y anger
managt.'ment issues, I c\mnot look behind these Minutes, The document spl.:aks tor itself.
lrLhe grievor wunt~d hi challenge the allegatiuns and prove his innocence he should have
UOflC: so at the time. Since he signed these minules. he Cllnnot repudiate the tenns of thl:
document by claiming i;nnoeenct.:.
The Town relics on the events of February .I(jth and 2R1h as grounus for terminaLion. It
has asscned that the gri,wor's actions on those two occasions wm~ in ckar breach or the
settlement. ThaL requirciS an analysis of the grievor's aClions on those days. There is no
doubt that on Fehruary ; Olh, the gricvor and Mr. Curtis had words about the gricvor's
frustrations concel11ing }he Union administration. There is, how(.~ver, a murkL'd dittercnc\.'
or opinion over what w(::s actually said. Mr, Curtis testified that the grievor threnlencu
hil11, whi\.:h the grievor dcni~s. The evidence had shown lhaL, after the argument. the
grievor returned to his \.llork assignment und there were no further incidents on that day or
on any other day folluwing (he llI'gtlInL'nt. Nevel11wk'ss, Mr. Curtis said he felt threatened
hy (he gricvor's words and the fact (hal he continued to drop into his onic(;~ pcriouil,;ally
uuring that' shift. l-It: mack notes ul"the convl.Tsation spoke lu Mr. Kurlicki ;;lbolit his
t:ollcerns. For n~asons to be (.~xplained fl.lfthcr, r accept Mr. Curtis' vcrsion of the inl..:iJent.
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The Union's position ,is Lhut the c.li:;cus!';ion between them took placl: hef(m~ the shill
started and was solely about internal Union maLters, matters thaL are of no interest or
concern lo Lhe Town. The incident however Look pla(:\.: at the workplace, not al H Union
meeting Or oulside the arena. [t might have he en abouL matters unrelated 10 work bUll:hat
is noL the test a.<:; to wh~lher it was descrving of discipline. The Minutes clearly refer to
intera<.;Liolls with other sLatY members. No matter what the reason for the arguIIIl;nl. the
grievor broughL it ont<1 the Town's propcl1y and must nccept Lhe consequclH:eS li)T having
done $0_
rhe conduct ofthl.: gri4:vor dnring the February 28th meeting was also relied on as a
hreach of the MinuLes imd was also described in a contradidury and corr1licting n'lanJH:r.
Aecording Lo Mr. Clarl~ and Mr. Brocre, the grievor was read the dirl:cL quote from Mr.
Curti!';' nOles. The grievor statcs that did not happen and that he Jill not know the actual
details ofthc allt:ged t~!cat until he was given the notcs alkr hi!'; termination. ML
Kilchencr was called tel giw t'vidence ahoutthis meeting but, surprisingly, was unable lo
recall with ~ny precisi~l1 what actually tmnspir<.;d. He recalled ML Clark looking at' some
papers hut did not rt:call specifically if he ml~nLiunc:d the remark ahout: making Mr.
Curtis' life hell. lie did not ckny it wn.~ ~aid, simply that he did not recnll. He was n$kl::t!
about: rhe gricvor's cOll\iuct at Lhe conclusion or Lhe meeting and agrccclthar he had
attempted to push the grievor out of the ruom tn defusl~ the situation. He said the grievor
was sp<::aking in a loud vuice in response to Mr. Brocre's taunting laugh. For thl:: most
parL however, his cvidei'lce did not assist me in detemlining what had Occurred at. that
meeting. His lack ofrc::all on the actual cv\;;nts neither confirmed l'he grievor's version
nor con Lnldictcd the cmployer'!'; witnesses.
While there is litth: disagreement about the fact or a disclls~ion between Mr. CurLis ond
tb\.~ grievor and of the meeting between M.r. Clark, Mr. I)roerc aut! Lhe grievor on
rehnlnI"y 2801, thdr des(riptiOfl of these events differs considerahly. I have decidC'eJ 10
al.:c~pj the evidence of the witne!';se~ for the Town ovcr that of the gl'il.:'vor hased on i.t
cOI1~ideration of the entilT tesLimony and t.Il::meunour of Lhe grkvor.
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In his communicatioll!l wiLh the Town concc:ming his dforls to obtain a rnt:dical
asseSSlllent in accordance with th~ Minutes of Settlement, he purposely mi81~d the
employer abouL his vi5its to various physicians anu. in particular, the reasons for those
visits. He nev\:r spoke with Dr. Mazurek about anger 11lanagcml,~nt issues and the
appuintmt:nts he referred to with Dr. Aziz were unrelated and misleading. HI.: daimC'd
the a~sessment was on'~oing when. it wag Hon-existent. At the hearing h~ continued tu
avoit.lthe truth by plaYing with word~. For eXaJnpk, he testified that he did not set: any
need to follow up with Dr_ Mazurek about the delay in obtain.ing an appointment to see a
psychiutrist hecause he felt conlldent he would fhllow thl'Ough. And yet. in cross-
examination, he agr('e~ that Dr. Mazurek wai;j seeking a consultation to lkal with issues
arising from his acLidej'lt <lnd not aboul anger Ilumagement cone.ems. In tact, ht' never
mcntioned thost: issues to him ami t.Iid not Sl,'.e any need to do so since Dr. Mazurek was
his l1(:llruJogist. He the ught any appointIllent Dr. Mazurek rnadt~ would give him an
opporLunity to discuss (he issues raised in the Minutes of SeUlelllcrll. lle wa.. on the righr
tri:l.ck and would wait tl} see what Ut~veloped_ He tt~~tined that he diJ not ask Dr. Ma:/Ilrek
lor a Icll.er outlining his; attempts to ohtain <In assessment but did tell him his empluyer
wanted some verificatil'm. When asked whethcl he lea that. appointment helieving a letter
would j()llow, his answer was "l couldn't say". Whm asked whether he had proviued the
Minules to Mr. MeKl,;n:'~ic:. he said "I may have". in cross-examination, when pressed
ahout his etlorts, he maintained that he was moving ~(Hward in meeting his obligations
under the last chance 3I1f'1.:cment. It was only after he was kd lhrough his letters to the
employer and the physij~ian's letters abouL his appointrnt:nts that he tinally coneellt-d that
he had taken no steps i:l.rid sought no rden-als between April and Decemher of 2005. lIe
was asked aboul a comr:'\ent he had made that hc took no steps to ohtain an aSSl:ssmcnt
hecause he was upset 4ltout being asked to take a l6 week course on spulIsal ahuse. He
dt>nied having made the cOlllmcnt but agreed that it was an accurate J\;'sl:ription of his
fe'dings at the time.
lhe Minutes were signe4) in April of2005 and he did not comrnunicate with Mr. Clark
until Novcmbcr. l:ssenliillly bt:i:l;lUSe he: had nothing to report Ire acknowkuged 11.., hall
taken no sLeps towards armnging an assessment bul only after he h,lu been confronlt:'d
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with the evidence oULllning his medical appointments. He c1aiJlH:d to have l11at.le efforts
10 secure an assessmeiH through Mr. McKenzie hut grudgingly admitted that h~ heard
abuut him in Novembi~r and approached him casually ill O~(;elllbcr but did not have any
formal discussion aboJt his employrrl(:nt prohlems until JanuaJ')' of 2006. He did not
recall whether he rnet with Mr. McKenzie face to lace or talked to him over the phone.
I Ie could not fecalI wt ether he provided him with a copy of the Minute~ at tl141tlime and,
when asked whether Mr. McKenzie had begun the asse~smcnt, his response was "not to
my knowll:dge". When asked whether he unt.lerstood that tht; t.::mployn was looking for
some proof of the assc'Ssrncnt., he rcpliet.l "r helievl.~ that I did". When asked why he did
not n:spond din:ctly to the employer's request tor proof of his cflhrls to obtain iln
assessment, he sLaled 6.at his IdLer settil"lg out the appointments he had set up was
sllffici~nt. HI;; helievc<l an appointlllent within a week uf receipt ofthl~ letter should have
si:ltisfied the Town'::; CGncerns,
When asked direl::tly about cumments he was alleged to have made to Mr. Bf(K~re ::md Mr.
Clark, he was nul always c1eaf in his responses. fIe denied making 1111)' COlllmcnt$ (lflU
then allowed that hl,; might have sait.l what Mr. Clark alleged he had ~llid. In cross-
examination lw wa~ aslted wlwther Mr. Clark n:terred to documentc:; he had hrought to the
mecring 011 February 2~;'11. He replied that he might have glam.:ed at them ant.ltappcd
them a few times hut 1"1(: did not helicvc Mr. Clark mentiuned the Ilctualthreat he was
alleged to hav~ made. Later he said that Mr. Clark apPl:ared to he I'catiing from till..:
paper's in front. of him. I (e stated that he might have called Mr. Clark ilnd Mr. I:3roere
(';OITIJpt based 011 his su:::pieions thallhey and Mr. Cur1is wnt: involved ill i:l conspiracy
against Union members~ He (ater added Mr. Kurlicki to that list. again based solely on
his slIspieions. Finnlly.n re-direct, he ksLificd that Mr. Clark told them lhat Mr. Curtis
had matil..: notes of the h::bruary 161h incident and "led us to heliev!: he was reading from
(hl'n"', notwithstanding hi~ enrlicr ll:slimony to the contrary.
In summary. ll(mnu the grit:-vor"s evidClH':~ to he l:vasivl" sdf-serving and inconsisLent.
He \-vas vagll~ "",hen it st)itcd his purpose hut precise when he Watlll.:u Lo stress a point.
Ilis continued evnsion al Lhe hearing with r~Sp(Ttlo his efforts lo obtain nn at;s~ssment do
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not favour his positioljL Arhitmtors have consistently held that a gricvor who tries TO
misl~ad the Board at Lhe hearin.g cannot expect any assistanc.e from that Hoard. In this
CElse, I accept the evidl;m:e of the Town's witnesses and find that thl.: alleged c.OInments or
the gricvor towards 'Mr. Curtis, Mr. CJark and Mr. l:Jl'Ocre: were proven.
Hilving determined t1u~t question, the issue t.hen become whether that conduct was
d~serving of disciplinc The Union rdit:s on the case law that hokls that not ..tlJ last.
chance agreements require automatic terminatiun for a breach hut rather prder ajust and
reasonablc approach.; have already stated my views on this isslle but note that, in the
RlI/lmooSf! case, supra~ the Board found stmng and compelling rc~asons to return lhe
grievor Lo work, such :;,S a long :service record, the fact that his outblu'st was not
disrespectful, loud or abusive and that it was rdated to met.lical probk.'ms the gricvor was
suffering at the time. 1\0 such compelling reasons exist in the instanL case_ In nol:h
i nstaIlC'es the grievor made threats against co-workl;lrs and, more importantly, was
dishone~t about his part in the event:'!. Thc York Region Distrk/ School Bourd and Bidl
('wu.rda cusc, supra, dealt with accommodatiun issues in which distinct ant.l special
circumstances appJy. L1 this caSl", the grievor threatened Mr. Curtis, ML Clark I1nd Mr.
Brone_ It is irrelevant whether those threats involved physkal harm or whdher the
grievor c.;ould make gocd Oil those threats. Inlhe nonnnl course of progrcssive
disciplinary action. the~e altercations would b~ dest~rving or some discipline_
The- Union has argtu::d 1.1at the dceision to terminate the grievol' was arbitrary. I disagree.
If the Town had dcl'ided to rid itsd (' of this employee, as charg~d, it could have invoked
otht:r provisions or the h1inutes. Clearly the gricvOl' undl.~rstood il' was his duty to obLain
an assessment for anger management concerns. He was asked repeatedly about his
effol1s and threatened with and 1I1timatdy suspended hn his failuft: [0 do so. 11' the
employer had harbour~cj intclllions to fire hilI! at the llrst opportunity. it ('oukl have dOlll.:
so during thuse discussions_ l rejcet the Union\i m-gl.UllcnL on this point. Rnsed on these
I~u.:ts, There is also no ev~d\:'nc<.: of had faith.
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Having tound thal the gri~vor engaged in ;;disciplinary conduct with respl:ctto his
b~~haviollr relat.ed to his dealings or inkractions with thl;: puhlic or stan" I must give
dlt:cll.o the agrccmcfl. of the parties. I rely on and adopt the eomrn~nts of Arbitrator M
Picher ill Air ('unada (lase cited in the flosal Canada Inc. case, supra, at page 4:
When the parti(~s have thcm!:'clves cxccuL~d u Mcrnorandulll of Agreement the
t(,~rms of whiclH~ontcmplate that the railure of certain conditions shall result in th~
discharge ofthl.~ employee, it is, ab:;cnt any qualifying Lerms, the obligation ura
board of arbitn!,tiun to interpret and apply the ternls of a memorandum, and /lolto
substitute its o\.\1'n vit;;w as to what should be th~ appropriate outcome in the ev~nt
the conditions ~In: not satisfied.
in the case the parties l\nve said thal any disciplinary conduct will result in Jischargc. It
is not up to me tu dctcr'mine whether tlu: actions of the grievor were dcservit1g of a verbal
Or written warning or any other lesser degree of di$Cipline. The parties have detcm,incd
that Lhe penalty is lcrm' nation.
^1: thL' last Jay ofhenriug lhe (Inion sought an adjouflUllcnt of these prot::cedings because
it had bCi:n advised lhal Mr. Curtis had been charged with theft and rnisarpropriation of
I Inion funds. The ChafJ:~l;s were dated January of 2008 and were based on a complaint
t1Ied in 1006. It was thl~: Union's positiun Lh.it the Hoard should delay hearing ,trgument
until those charges h<.\d bCi:n de(11t with by the courts. At the tillle J J~nicd the Union~s
request and Ihe Uniun i:lsked that my reasons be inc..:luded in this award.
Jt was my ruling thaL the: issue of Mr. C1lf1is' guilt or innocl"nL:e was n collaLt"rIll mattcr
nut t.Iclemlillativt' ofthe'i~sucs before me. I rder to se(.:tion 16.166 of Hl'Own ilnd Beatty,
Canadian I.ahour Arbiira/ion, fOlIrth J:c:dition, which staLes as follows:
There is a general rule that answers given by a wltness to questions pUL Lo him Ot
her in eross-exar1ination concerning collaLerul facts are Lreated a~ final, and
cannot be cOI1t:rwdiet~d by extrinsic, ~vidence. Without: such n l'ule, thefe- is the
dangl.:r that litigrttion will otherwise bC;.~ prolong~'d and hecom\; sidetracked ;mu
involved in num{:rolls subsidiary isslle~_ The fU1c do~s permit the lIse or cxtrin,sic
evidence to c,onlJ'at.lict a wilness who has made a stHten1\.~nl in cross-exam inntiOI1
which i~ rclevanUO the substantive issuC'. However, with r~spcello qucstinns
which arc directeu snlcly to impeaching i.1 witness' cl'l"uihility, the answers rnust.
save I'or certain c;pmmon law ;md st~ltlltory exceptions, be i1CCCplI:J as t'inal.
MAY-15-2008 15:16 From:RWBH
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To:416 443 8618
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l"hc:: Union took lhe p()sitiL:lll thi;lt a finding of guilt would undcrrnin~ Mr_ Curtis'
credibility ant.l have a direct impact on thc Hoard's dcliberatiollS_ First, the issue of the
gril.:vor's allcgation of mismanagement and theft were raised in Mr. Curtis' cross-
examination and the gtievor's direct evidence. They are not new luets or information (h~1L
was unavailahle at the time oCthe hearing. In any cvcnl. the allegations. or the actll<lI
tinding of the \';uurt, will havl: no impact on my ttndings ur tact on the issues hefore Ille.
Wit.h r'cspl:(.~tto the issllc of credibility, I rejl::d the Union's argument that the mere Illet of
a criminal conviction would rendcr all of Mr. Curtis' t::vidence Illlrclii;lbJe and
lIntl'u~tw()r1.hy. Tht;re ,vere no gruunds upon which [ could allow this motion to dtday the
conclusion of this matt(~r by waiLing for a decision from the Courts that will have no cffcc.:-t
on the (;a:se before me.
nECJSION
For tht: reasons ~et om ;ibove, the grievance is dismissed.
Dated this 7111 day ur May, 2008.
? II ~
/ ..~ tJLt.. t1c} /t (I[ Aa /
(orelta Mikus, Soli: Ari')irrator