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HomeMy WebLinkAbout2014-4119.Phagau.20-03-04 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2014-4119 UNION# 2014-0378-0082 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Phagau) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Daniel Harris Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING September 21, October 8, 2015; January 11, 12, 24, 25, February 8, 2017; January 18, 19, February 27, March 20, July 4, 18, 25, 2018 - 2 - Decision The Proceedings [1] This matter involves the discharge of Samuel Phagau (hereafter the “grievor”), from his position as a seasonal warehouse worker at the Durham Warehouse of the Liquor Control Board of Ontario (hereafter the “LCBO” or “the Employer”). The grievor had four and one-half years of service at the time of his discharge. The Ontario Public Service Employees Union (hereafter “the Union”) grieves the discharge as unjust. [2] There were five allegations against the grievor upon which the LCBO relied when it discharged the grievor by letter dated November 20, 2014. They are as follows: 1) Picking without your lanyard attached. 2) Sitting on the control arm with your feet on the conveyor while travelling. 3) Urinating in the tunnel vehicle. 4) Using your electronic device. 5) You were observed to be driving in an unsafe manner in the DRSC parking lot on Sunday November 9, 2014. [3] The grievor worked as an order-filler. He operated a machine known as a tunnel vehicle in the high-bay storage area of the warehouse. That machine is a high- level vehicle, which allows the operator to fill orders that appear on a screen within the vehicle. The vehicle itself can travel on its own to the various bays from which the operator retrieves cases of product. The cases are coded by way of a label printed within the vehicle and loaded onto a conveyor belt within the - 3 - vehicle, which is connected to a series of conveyor belts for delivery to the shipping department. [4] The activities within the cab of the vehicle are video recorded. As will be elucidated below, the material video recordings of the grievor were not preserved. They were, however, seen by a number of LCBO employees before they were inadvertently erased during systems maintenance. The Union sought to exclude such evidence. By a decision dated January 22, 2016 I allowed evidence to be advanced by the employees who saw the videos as to what their observations were. [5] The videos are only reviewed when there is reason to do so. In this matter an employee who used the tunnel vehicle directly after the grievor reported the smell of urine in the vehicle. The videos of that tunnel vehicle were reviewed. In the course of that review, the LCBO concluded that the grievor had urinated inside the cab of the vehicle, had picked cases of product from the storage bays without being tied off by his safety lanyard, had travelled in the vehicle while sitting on the control arm, rather than standing as he was supposed to do and used his electronic device contrary to the rules. These events took place in November 2014. The Facts [6] Christopher Martin testified for the LCBO. At the material time he was an operations supervisor responsible for supervising the picking of cases and pallets for store assembly and shipping. He supervised the grievor. He said that there - 4 - were six tunnel aisles. There were two tunnel vehicles working each aisle, one accessing three upper bays and the other working the three bottom bays. Each vehicle had two windows, one on each side, to permit the operator to pick from each side of the aisle. The tunnel vehicles may be self-propelled to the next pick location, or they may be manually driven. The tunnel vehicles operate in the high bay storage area which is thirteen pallets high (99 feet). [7] Mr. Martin testified that a tunnel vehicle operator, Jason Aubie, reported the smell of urine in tunnel vehicle number 8 (TV8). Mr. Martin was not clear whether it was reported on November 5 or November 6, 2014. However, he reviewed the video footage for one of those days, which he obtained through the security office. On both dates TV8 was operated by the grievor from 6:00 am to 8:00 am and Mr. Aubie took over TV8 at 8:00 am for the shift ending at 4:00 pm. Mr. Martin testified that he saw the grievor, on the video, using what appeared to be a cell phone. In his evidence he reviewed the training and orientation taken by the grievor in which he had been told that use of electronic equipment was not allowed; he also testified about the sign on the door into the warehouse which clearly states that electronic equipment was not allowed in the warehouse areas, and Mr. Martin provided the rationale for not permitting its use. He also said the prohibition was strictly enforced. [8] With respect to the use of the safety lanyard, in his evidence Mr. Martin reviewed various documents and photographs showing its use. He said that its use was mandatory while the operator was picking product or driving the TV and that the lanyard was to be inspected before an operator commenced the use of the TV, - 5 - all of this was said to be covered in the annual training of an operator. He said that the lanyard was a safety feature to prevent falls. He said that he saw the grievor, on the video, working without being tied off. [9] In his review of the video he did not see the grievor urinating. He said that there are washrooms close by, and the operators could get permission to go to the washroom at any time. He said that in the event of any type of a spill the operator would use available sawdust to absorb the spill and sweep it up for proper and prompt disposal in order to avoid slipping on the liquid, which would be a physical hazard. [10] In his cross-examination Mr. Martin confirmed that Mr. Aubie’s complaint was that he smelled urine in TV8. Mr. Martin then reported the same to his boss Mr. Jim McDougal. He said that the videos in the TVs have a live feed to an area called the Tier Deck and a feed that is recorded in the security office. He would observe the Tier Deck Monitor at least five times per day and could not recall ever seeing the grievor with a cell phone nor not tied off; nor sitting on the control arm, not behaving in a way that looked like he was urinating, and he saw no liquid of any form on the video. [11] Mr. Martin testified that some members of Management are authorized to use cell phones in the warehouse. He was not, and he agreed that having his phone clipped to his belt, as he often did, would put him in violation of the rule not to have electronic equipment in the warehouse, which would set a bad example. Mr. Martin agreed that there were radios in the TVs that allowed the playing of - 6 - music, and the use of a cell phone to play music would not interfere with viewing the flashing or emergency lights. The emergency light is activated by the operator. The flashing light, which is outside the TV, is part of the stacker/receiver crane. That is the machine that loads pallets into the bays from their rear. [12] In his cross-examination Mr. Martin agreed that the lanyard must be worn when driving or picking, and he never saw the grievor, on the video, not tied off while driving. [13] Mr. Martin confirmed that Mr. Aubie only complained of the smell of urine. He agreed that if children wet themselves in a car there is the smell of urine from their clothes, which goes away. [14] Mr. Martin said that the grievor’s quality of work was good, and he felt that the grievor was a good employee; his view did not change after seeing the video. [15] In his re-direct examination Mr. Martin said that the purpose of the video monitor was not to spy on employees. He also said that his cell phone was supplied by the LCBO to facilitate communications amongst the supervisors/managers. In response to his cross-examination that he would spend time in the tunnel area, Mr. Martin said in re-direct examination that the operators would see him walking around. - 7 - [16] Darrell Mersey also testified for the LCBO. He was the Senior Security Guard at the time. He had access to all the TV videos, in real time and recorded. The recorded videos are meant to be kept 15 days. He said that there is a small area in the cab that could not be seen on the video feed. [17] He reviewed the video from TV8 for all shifts on November 3 and 4, 2014. He testified that he could not see anybody physically urinating on camera. That is, ‘however it looks when someone is urinating’. He said that he saw no individual at any time urinating. He testified that Mr. Edison had told him urine had been found, and the area where he was told it was found was visible on the camera, yet, at no time did he see the grievor urinating there, nor did he see liquid on the floor. As for the “electronic device”, Mr. Mersey said that he just saw the grievor poking it with his finger. He said it could have been music and, at one point, he saw the grievor dancing to something. [18] He also said that if he did not include in his written statement that the grievor was sitting on the control arm, he did not recall seeing it. [19] As to the lanyard, he did not see it disconnected on November 3, 2014, but he did observe that it was disconnected on November 4, 2014, and, although he could not specifically recall seeing the grievor picking cases without his harness, it was disconnected at times while the grievor was working. - 8 - [20] I find that Mr. Mersey gave his evidence with clarity and conciseness. His evidence was consistent with the written statement he gave to Mr. Edison, dated November 14, 2014, which reads as follows: On Thursday, November 6, 2014 at approximately 0925 hrs I, SG D. Mersey was contacted by Charles Edison, General Manager of Operations (DRSC), in regards to reviewing video footage of Tunnel Car 8 from November 3 and 4, 2014. Charles was looking for evidence of someone urinating in Tunnel Car 8. After reviewing video footage from all shifts no evidence could be found of someone urinating in the Tunnel Car. However it was observed while reviewing the video footage from both dates, day shift LCBO employee Samuel Phagau breaking a number of rules while working. Throughout the employees shift on Monday, November 3, 2014 (0745 – 1545 hrs) Mr. Phagau could be observed texting on his cell phone and drinking water. Reviewing the video footage from Tuesday, November 4, 2014 shift (0600 – 0745 hrs); Mr, Phagau is observed texting on his cell phone, drinking water and working without his safety harness on. Also noted on Tuesday, November 4, 2014 at 0741 Mr. Phagau is observed to be sweeping the area to where the urine had been found before leaving the tunnel car. On Friday, November 7, 2014, the video footage for November 4 was viewed by Operations Supervisor Chris Martin. Nothing further was required from me. [21] Jim McDougall gave evidence for the LCBO. He was the Operations Manager at the material time. His evidence-in-chief was mostly limited to the allegation of speeding in the parking lot. He was also asked if an additional employee in the cab of a TV, for example, a trainee, should be tied off. [22] In both cross-examination and re-direct examination Mr. McDougall vaguely recalled being told by Mr. Martin about the smell of urine. In both instances, he said that he suggested that it might have been the smell of wine. [23] Mr. John Lew testified for the LCBO. He was employed as a janitor at the Durham Warehouse. He testified that his supervisors told him to go to the entrance of TV8 to mop it because of a urine smell. That was just after the first - 9 - break. He went to that location. He said that he could smell urine; it was noticeably strong. He mopped it with an all purpose cleaner. He told Mr. Edison that he could smell urine. [24] In cross-examination he confirmed that he smelled urine but did not see any liquid on the floor. It took him ten to fifteen minutes to spray the floor, let it soak in for five minutes, mop it up and leave. His evidence was entirely consistent with his “Tuesday Duties” Summary Report, dated November 4, 2014. [25] Jason Aubie testified for the LCBO. He had been a warehouse worker for twelve years and generally worked in TV8. He was asked if he had been on the day shift on November 4 and 5, 2014, and had he noticed anything unusual on either day. He said that one day there was a strong smell of urine and dampness just before entering the car; that is, on the step where you step up on the platform to go into the cab. That would be at the low level, or at home position. He said that at lunchtime he confronted the grievor and asked him if he had urinated on the step. The grievor was reported to have replied that he had not and that the smell was already there when he entered the cab. Mr. Aubie said that he reported it to his supervisor, Chris Martin, at first break. He said that Mr. Lew came to clean it up, he was not sure what time that was. When Mr. Lew finished the clean-up, the smell was gone. [26] Mr. Aubie said that he could really smell urine at the bottom rung of the stairs. Curiously, he said that sometimes when the line shuts down the smell becomes stronger. He said that it made him mad. He also said that if someone urinated - 10 - out the door, to below, he would have touched it. Although he believed that the grievor was responsible, there was a generalized aspect to his concerns. [27] In his cross-examination he said that he knew that there was a video camera in the cab, which would show the entrance to the TV8 where he saw dampness and smelled urine. He said that the foreperson does not constantly look at the video of the operator. It was put to him that what he reported to Mr. Martin was the smell of urine and Mr. Martin had testified that he had gone to TV8 and did not see liquid. His answer was that he did not remember what he had said to Mr. Martin. He disagreed with Mr. Martin’s evidence and also believed that Mr. Lew had mixed up his timing. That is, Mr. Lew must have cleaned up the area at the lunch break because he, Mr Aubie, had only reported it at the first break. His explanation for neither Mr. Martin nor Mr. Lew not seeing any liquid was that it might have dried up by then. [28] Mr. Aubie testified that he told Mr. Martin that it was damp at the bottom. He also testified that there was no wine in the TV8 and when the car was at the top you could not smell the urine; you could only smell it at the bottom. He also said that he did not see anyone urinate anywhere. [29] Mr. Darrell Hamlyn also testified for the LCBO. At the time he was the Manager of Health and Safety for Logistics and Quality Assurance for all of the LCBO warehouses, including the Durham Warehouse. As such, he was familiar with the LCBO’s policies and procedures relating to Health and Safety and the LCBO’s view that Health and Safety is a core value of the organization. He - 11 - reviewed various policy documents and how they are brought to the attention of warehouse employees, including the grievor. There were approximately 35 procedures that were specific to the Durham Warehouse and underlined the importance of Health and Safety at Durham. New hires receive this information in written and audio/video formats after which they are tested. He said that the fall protection arrangements for the TV operators are a legislated requirement. With respect to the TV operators, there is no danger of free-fall as the length of the lanyard amounts to a travel restraint. That is, the operator can lean out of the cab but cannot free fall from the cab, when tethered. He emphasised the importance of wearing the safety equipment and described a situation in September 1996 when a TV operator fell from the cab to his death because he was not tied off. TV operators are to be tied off when operating the TV, picking cases or cutting ropes. [30] Mr. Hamlyn reviewed the various documents that break down the tasks of a TV operator and assign risk assessments to them provided the operator is utilizing the required safety equipment. [31] Under cross-examination Mr. Hamlyn described the operation of the conveyor inside the cab of the TV. There are two windows through which the operator picks cases of produce. If picking from the “A” window, the operator would turn around and place the case on the straight portion of the conveyor belt. If picking from the “B” window, the case is put on the bend in the conveyor. There is a printer inside the TV, which prints a scannable label which is automatically pasted to the case. If the labels are not properly fixed onto the case, the - 12 - conveyor automatically stops because the scanning equipment cannot read the label. Mr. Hamlyn confirmed that an operator, wearing their lanyard, could not access the area where the printer affixes the label. That is, when the equipment fails to properly affix the label, the operator must disengage the fall protection system, i.e. the lanyard, in order to fix the glitch. The point being that, from time to time operators would have to untether themselves to complete all of the requirements of the job. [32] Mr. Hamlyn was also cross-examined on the operation of the control arms in the cab of the vehicle. He agreed that to sit on the control arms an operator would have to lift themselves up from the floor and that there was nothing in the job description (as outlined in the LCBO Book of Documents, Tab 12) that speaks to sitting on the control arms of the TV. [33] As to the fatality that occurred in September 1996, the employee fell ten feet, but his injuries were more consistent with being crushed between the vehicle and the racking. That employee had over-ridden the TV controls so that the TV would operate when he was not at the operator station. [34] Mr. Neil Lenihan also testified for the LCBO. At the time he was the Acting Human Resources Manager at the Durham Warehouse. Mr. Edison consulted him by email on Saturday November 8, 2014 on this matter. [35] Mr. Lenihan was provided by the grievor with a medical note from the grievor’s physician, dated November 13, 2014 requesting that the grievor be returned to - 13 - work. The grievor had been relieved of duty by letter dated November 12, 2014, from Mr. Edison. [36] He was at the meeting with the grievor and his Union representative on November 14, 2014. At that meeting the grievor told Mr. Edison and Mr. Lenihan that he had wet himself the previous week. He was reported to have said that he had seen his doctor, been given a prescription and had gone for a test. As it turned out in subsequent evidence, the grievor had not gone to the lab for the urine test that his doctor had requisitioned. [37] Mr. Lenihan had no further knowledge of the circumstances regarding the grievor’s use of electronic devices. [38] Mr. Lenihan confirmed in his cross-examination that he had not seen any of the videotapes of the TV8 cab, and did not know which dates were reviewed by others. He also did not recall discussing the videotapes at any point. [39] Mr. Lenihan agreed in his cross-examination that there could have been a misunderstanding at the meeting of November 14 as to whether the grievor was sitting on the control arm or leaning on it with one butt-cheek. At the meeting of November 14, 2014, he was not aware that two individuals who viewed the video-tapes said that they had not seen the grievor sitting on the control arm. Nor was he made aware of that prior to the grievor’s termination. Mr. Lenihan knew at the meeting that the grievor’s family physician had provided a note that the grievor was suffering from a medical condition that was affecting his - 14 - urination. The Employer also knew that the doctor had requisitioned a urine test, but the Employer did not wait for the results before terminating the grievor’s employment on November 20, 2014. They accepted as truthful that the doctor had prescribed antibiotics. Mr. Lenihan acknowledged that the grievor told both him and Mr. Edison, at the meeting, that he had a medical issue, was getting further testing and had been prescribed pharmaceuticals for it. However, they gave no consideration to those facts prior to terminating his employment. Further, the grievor gave the Employer permission to contact his doctor. Neither Mr. Lenihan nor Mr. Edison did so. [40] With respect to the allegation that the grievor used an electronic device, he agreed that the grievor told them both that the radio in TV8 was broken. Mr. Lenihan testified that it was permissible for the employees to listen to music on the radios provided. He agreed that the grievor had not denied listening to music on his phone, did not deny he was not supposed to, said others had done so, which Mr. Lenihan did not investigate further, told Mr. Lenihan that a previous operations supervisor of the grievor had told him that ‘if it was out of sight it was out of mind’; that was not followed up. [41] Mr. Charles Edison testified for the LCBO. At the time he was the General Manager of Operations at the Durham Warehouse. Previously he had been the Manager of Shipping, and prior to that the Operations Supervisor. As the General Manager of Operations he oversaw the entire operation of the warehouse including budgets, monitoring of key performance indicators and their targets, health and safety and employee relations. The purpose of the Durham - 15 - warehouse is to receive product, store it, pick it (fill orders) and to ship it to 270 LCBO retail stores, 198 beer stores, grocery stores and other warehouses. Suffice to say that the Durham warehouse is a large and integral part of the LCBO. [42] Mr. Edison revisited the job description of the Warehouse Worker 3 position. There was a foreperson in the shipping department, who was a member of the bargaining unit. In 2014, there were 7 operations supervisors and 4 operations managers. The supervisors reported to the managers and the managers reported to Mr. Edison. Given the size and complexity of the warehouse operations, Warehouse Workers are under minimal supervision with one supervisor for every 30 to 40 employees. [43] Mr. Edison testified that the video surveillance system in the warehouse is not used to supervise employees. Rather, he said it was for health and safety purposes. [44] Mr. Edison testified that the TV Operators (TVO) were the least supervised employees since supervisors could not enter the tunnel due to the danger inherent in the operation of the TVs. [45] The TVO’s are part of the Order Processing Department. Part of that department is the Tier Deck. There is a video monitor there, which is seldom referred to. - 16 - [46] There were a number of photographs entered into evidence displaying the layout and configuration of the TV, which Mr. Edison explained. The TVO is meant to stand between two large control arms to operate the TV, which is accomplished by pressing down on 2 green buttons, one on each control arm. [47] The tunnel is a row of racks 13 bays high. Product is loaded into the rear of the racks by cranes and the orders are filled by the TVO from the front of the racks by leaning out of a window on either side of the TV. [48] Mr. Edison said he first learned of the urination allegation when Mr. Lew, the Janitor came to Mr. Edison’s office on November 4, 2014 to tell him that he had just mopped up the urine. He described Mr. Lew as disgusted. Mr. Lew’s “Janitorial Routine” report was given to Mr. Edison. It reports that he “mopped entrenct to Tunnel Car #8 Reported Urine smell. [sic]” Notably, it does not say he mopped up urine. [49] Mr. Edison began his investigation by notifying security to review the videos between 6:00 am and 8:45 am. Senior Security Guard Darrel Mersey’s email dated November 14, 2014 to Mr. Edison states that he was asked on November 5, 2014 to review the video of TV8 for the dates of November 3 and 4, 2014. [50] Mr. Edison testified that he spoke to Mr. Mersey before he received the email and that security did not “see what I was looking for”. He also said that he spoke with the Operations Supervisor, Chris Martin, whose email says that he reviewed the video related to 0600 – 0800 for Wednesday November 5, 2014. Mr. - 17 - Edison’s comment about Mr. Martin’s email was that he recalled receiving it on Friday November 7, 2014 since “neither had said they’d seen Sam’s genitals and urinating all over the place. Honestly, that’s what I was looking for.” [51] Mr. Edison viewed the video on Saturday, November 8, 2014 for the period of 6:00 to 7:45 am on November 4, 2014. He testified that he was now looking to see the grievor discreetly urinating in the corner of the TV since Mr. Mersey and Mr. Martin had not. Mr. Edison said that he saw the grievor typing on his phone, sitting on the right side of the console, picking without his lanyard and standing at the gate with his back to the camera and his shoulders hunched, but he did not see the grievor’s genitals or “urine spraying around”. [52] Mr. Edison testified that the grievor appeared to be texting on his cell phone, but agreed that such phones could be used for many purposes. He said that the grievor was on his phone for 1 to 15 seconds multiple times. As to picking without his lanyard attached, he said that it was more than one case on more than one occasion. As to operating the TV8 while sitting on the control arm, he testified that the TV8 was moving, and the grievor had one foot on the white strip in front of the conveyor belt and the other foot turned and on the conveyor itself. The grievor was said to be sitting on the control arm, the one with the joystick, and sitting with one-half of his butt cheek behind the emergency button. Mr. Edison, at one point, took TV8 out of service and testified that he was able to replicate what he said he had seen the grievor do on the video. Mr. Edison said that he had seen the grievor do this one time as he returned to home base. Later - 18 - Mr. Edison testified that if the grievor had finished at bay 90 it would take 1 – 1-½ minutes to return to his home base to start his next run. [53] As to the allegation that the grievor urinated inside TV8, Mr. Edison, in chief, relied on the movement of the grievor’s hands at his private area with his head tilted down. He said that there was no reason for the grievor to be there and after he saw the grievor with his head down and his hands moving the grievor went back to work, picking cases. Mr. Edison’s evidence is that at no time did he see the grievor’s genitals or any urine, as the grievor’s back was turned to the camera the entire time. The actions described would be consistent with the description of the use of his cell phone. [54] Nonetheless, Mr. Edison testified unequivocally that the grievor was standing at the gate, inside the car, urinating on the entrance. On the basis of his evidence that the grievor returned to picking cases, it is unlikely that the grievor was at his home base; rather, it is more likely than not that he would have been at the high level. [55] When asked if any other incidents had been reported to him involving the grievor, he said that it had been reported to him by Jim McDougall, Chris Martin’s boss, that very early on the morning of Sunday November 9, 2014, the grievor had been driving dangerously in the employee parking lot. [56] A meeting was convened on Friday, November 14, 2014 at which the allegations against the grievor were discussed. This was a meeting, which might result in - 19 - discipline. Accordingly, notice of the meeting was given in accordance with Article 27.3 of the Collective Agreement. [57] Mr. Edison’s evidence was that the grievor said that he may have forgotten to reattach his lanyard while taking a break while the conveyor line cleared the backed-up product. To sit down it is necessary to unclip the lanyard. [58] As to the allegation of sitting on the control arm, Mr. Edison said that employees are not specifically told not to do so, but it is contrary to their training in the operation of the TV. The grievor admitted to having his feet on the white part of the conveyor. Mr. Edison characterized this as contrary to what he said he saw on the video. [59] At the meeting on Friday, November 14, 2014 the grievor provided a doctor’s note that said he had a medical condition. He also said that he had been prescribed antibiotics which he had in the car, should the employer wish to see them. [60] Mr. Edison was of the view that at the meeting the grievor admitted to urinating in TV8. In my view Mr. Edison’s note taken at the meeting was far more equivocal. From the summary of Mr. Edison’s evidence set out above, he was anxious that those who viewed the video would report that they saw the grievor’s genitals and urine splashing about. I find that it is more likely than not that the grievor made no such admission. The grievor’s evidence is summarized below and this aspect will be taken up further there. Mr. Edison’s belief that the grievor had urinated in - 20 - the cab was characterized as a safety issue. That is, that the next person coming into the cab might slip in it. Also, the LCBO sells consumable products. He said that the LCBO has a reputational interest to protect. Overall, it is apparent that Mr. Edison had developed an animus to the grievor. [61] The grievor’s evidence was that from time to time he would forget to tie off if he had disconnected his lanyard while fixing the printer or sitting down because there was a backlog of cases downstream on the conveyor system. As soon as he realized he had not connected his lanyard, because he could not feel its tug, he would reconnect it. [62] With respect to sitting on the control arm, he said that he was too short to sit on it, but he did rest one half of his butt cheek against it and rest his feet on the frame of the conveyor while travelling back to rack 90. [63] The grievor denied urinating in the cab of TV8. He said that he was trying to get to the washroom but was caught short and urinated in his pants. He said that he was having difficulty with incontinence and could only urinate in “dribbles and drabbles”. He said that there was no urine left on the floor of the cab. [64] The grievor admitted to using his cell phone to check the time and listen to music. The latter was because the radio in TV8 was broken. It was his evidence that a previous supervisor had told him if his electronic device was out of sight, it was out of mind. He also testified that he believed that other employees did the same. - 21 - [65] It should be noted that a fifth allegation, in the termination letter of November 20, 2014 was that the grievor had reported to or had been at work under the influence of alcohol and/or illegal drugs. This allegation was abandoned by the Employer and was not relied upon as grounds for the termination. [66] Another ground that was relied upon was that the grievor drove unsafely in the employee parking lot early on the morning of Sunday, November 9, 2014. The grievor said that he drove his cousin’s BMW, which was low slung. He reported that the parking lot was said to have speed bumps, pot-holes and sewer grates that necessitated careful and slow driving and therefore he would have been unable to drive in an unsafe manner. [67] In his cross-examination the grievor confirmed that he knew that there was a camera inside the TV and one outside that could see the TV going up and down. He agreed that the supervisor, Chris Martin, was not able to view all the TV operators all the time, nor were the security officers. [68] The grievor disagreed with Mr. Lenihan’s notes of the November 14, 2014 meeting that he may have not worn his lanyard one or two times per day. He thought this was more likely to have occurred one or two times per week. He said that it was a mistake to not reattach the lanyard, but that did not make it okay to not do so and that not wearing it was contrary to his training. [69] The grievor’s physician, Dr. Lawrence Lerner testified for the Union. He carried on his family practice as part of the Malvern Medical Centre. He said that the - 22 - grievor had been his patient since 2003. He saw the grievor on November 13, 2014. He identified a letter dated November 13, 2014 as one he composed. It says: To whom it may concern: This letter is written in support of Samuel Phagau. He is suffering from a medical problem which is amenable to treatment and further investigation. I would request that he be reinstated for work forthwith. Sincerely, Lawrence Lerner M.D. [70] That day he also prescribed antibiotics for the grievor for a urinary tract infection that he diagnosed. He also provided the grievor with a Lab Requisition for a urinalysis. His clinical notes were entered as an exhibit. He testified that the antibiotics prescribed are effective nine times out of ten for an uncomplicated urinary tract infection. [71] He said in his evidence that he did not have the results of the urinalysis, and that the probability was that the grievor did not go for the test, which, in his experience happens. He also said that he expected that it would be a short-lived problem and that the grievor should be able to return to work. He believed the grievor’s subjective account of his incontinence problem. [72] In his cross-examination he said that it would take one to two days for a patient to get in to see him. At times, the staff would try to squeeze patients in earlier. His practice also included availability in a walk-in clinic. - 23 - [73] He said that incontinence was an uncommon complaint in someone of the grievor’s age. He also said that an inability to get a full urine stream was consistent with a urinary tract infection and that a urinary tract infection causes urinary incontinence. He said that a person with such an infection would urinate very quickly after getting a signal that he had to urinate. [74] Dr. Lerner said that he wrote the above note at the grievor’s request since the grievor needed a note because he was absent from work. He assumed that once the grievor started his course of medication he would be well and not require accommodation; he thought that it was a temporary thing. [75] In his re-direct examination Dr. Lerner testified that the grievor’s age did not make the diagnosis of a urinary tract infection improbable or unbelievable. He stood by his diagnosis and said that the medication prescribed would usually clear up the infection and the incontinence within 24 hours. The Submissions of the Parties [76] The Employer submitted that the evidence supported that the grievor took out his penis and intentionally urinated at the entrance of TV8 on November 4, 2014. [77] Secondly, the Employer submitted that the grievor leaned out of the window of TV8 and picked cases without being attached by his lanyard, again on November 4, 2014. - 24 - [78] Thirdly, the Employer submitted that the grievor sat with one-half of his butt- cheek on the right control arm, with his feet on or near the conveyor while driving TV8. [79] Fourthly, the Employer submitted that the grievor used his cell phone in TV8 on November 3 and 4, 2014. [80] Finally, the Employer submitted that on Sunday November 9, 2014 the grievor drove in the employee parking lot above the posted speed limit of 20 KPH. [81] The Employer says that these are examples of serious misconduct and serious safety violations that establish that termination of his employment was an appropriate response. [82] It also submitted that the grievor was not honest in the investigation nor the hearing. It said that there were not sufficient mitigating factors and that the discharge should be upheld. [83] The Employer reviewed the evidence, and it relied on the testimony of Mr. Aubie, who, it was said, saw dampness and smelled urine at the entrance to TV8 on November 4, 2014. [84] It said that Mr. Lew mopped up the entrance to TV8, but was uncertain of the time. The Employer said that the evidence established that someone had urinated there. It said that the standard of proof was not that there was clear and - 25 - cogent evidence that it was the grievor who had urinated. Rather, circumstantial evidence may support the civil standard that it is more likely than not that it was the grievor. The Employer’s submissions rest on the fact that there was urine, or as Mr. Aubie put it, “dampness”, on the step. [85] The Employer reviewed the video evidence and submitted that the only explanation for the grievor’s position in TV8 was that he was urinating in a spot that the camera could not capture. It asks that I find that the grievor was urinating in the manner and position that Mr. Edison acted out at the hearing. [86] The Employer submitted that at the meeting of November 14, 2014, the grievor admitted to urinating on the floor of TV8 at the entrance, but he lied at the hearing by saying that he had only wet his boxer shorts and his long underwear. The Employer also submitted that his written apology filed as exhibit 19, is also an admission that he urinated inside the cab of TV8 when he said he “had the urge to urinate within my work area”. [87] The Employer submitted that there was insufficient evidence that the grievor had a medical condition that caused incontinence. If he had, it was said that he ought to have had more examples to share. It said that Dr. Lerner’s evidence did not establish, unequivocally, that the grievor had a urinary tract infection. It said that the grievor could have seen the doctor sooner if he was having such difficulties and should have provided a more complete explanation of his symptoms to Dr. Lerner. It suggested that the grievor’s visit to Dr. Lerner was a smokescreen, which is why he did not go for the urinalysis test. Further, the grievor’s - 26 - description of Dr. Lerner’s examination was said to be at odds with that described by Dr. Lerner. [88] The Employer submitted that, on the balance of probabilities, the grievor intentionally urinated at the entrance of TV8 and was not suffering from any medical condition. He could not be bothered to go to the washroom so just urinated in the cab of TV8. Further, even if he had a medical condition, there is an expectation that he would report it, clean up the mess, go home if sick and get an accommodation. It said that a message needs to be sent by upholding the discharge. [89] With respect to working without being tied off by his lanyard, the Employer said that the grievor had been trained in the importance of doing so and knew he was expected to do so. It said that this was a serious health and safety violation that might result in serious injury or death. It said that there was no ten second grace period, and the grievor had been previously disciplined for failing to remain tied off. There is not an “honest mistake” defence in this instance. [90] As to the allegation that the grievor sat on the control arm with his feet on the conveyor, it said that the grievor’s account is not credible, because, as he described it, it would be uncomfortable. The grievor was in an unstable position while driving TV8. He had an increased risk of falling and hurting himself. Operators are not allowed to use equipment in a way that might endanger themselves or others. The Employer says that the grievor knew this was wrong and that this was another safety infraction worthy of discipline. - 27 - [91] As to the grievor using electronic devices the Employer says the evidence shows that he appeared to be texting. On the video he could be seen looking at the phone while moving his fingers. The sign on the warehouse door clearly prohibits the use of electronic equipment and the employee orientation kit also makes it clear that Employees are not permitted to take electronic equipment into the warehouse. His evidence that a previous supervisor told him that if his phone was out of sight it was out of mind was not authorization to bring it into the warehouse. He knew this because he had received a letter of counselling, dated February 3, 2011, telling him electronic devices were not allowed in the warehouse. [92] Finally the grievor was seen, on Sunday November 9, 2014 driving in excess of the 20 KPH speed limit in the employee parking lot. Three credible witnesses saw the speeding and the Employer submitted that their evidence should be accepted. [93] The Employer relied upon the following authorities: F.H. McDougall, [2008] 3 S.C.R. 41; Sudbury Integrated Nickel Operations (a Glencore Company) v. Sudbury Mine, Mill & Smelter Workers’ Union Unifor, Local 598, 2015 CanLII 32018 (Surdykowski) (ON LA); Assn. of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of Government and Consumer Services) (Bhattacharya Grievance) (2017), 276 L.A.C. (4th) 394 (Anderson) (ON GSB); Re X and Y, [1992] O.L.A.A. No. 542 (Gorsky) (ON LA); Canadian Forest Products v. Industrial R Wood and Allied Workers of Canada, Local 10424 (Gargus Grievance), [1994] B.C.C.A.A.A. No. 27 (Albertini) (BC LA); - 28 - Re X and Y, [1996] O.L.A.A. No. 847 (Tims) (ON LA); X (Re) (2001), 99 L.A.C. (4th) 65 (Hamilton) (MAN LA); X v. Y (Z Grievance), [2002] B.C.C.A.A.A. No. 292 (Taylor) (BC LA); X v. Y (Termination Grievance) (2012), 221 L.A.C. (4th) 429 (Sanderson) (BC LA); X v. Y (P.K. Grievance) (2014), 249 L.A.C. (4th) 372 (Tims) (ON LA): Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, ss 25, 28 and 66 to 69; R.R.O. 1990, Reg. 851: Industrial Establishments at s. 85; Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 364T v. Imperial Tobacco Canada Ltd. (Lambert Grievance), [2001] O.L.A.A. No. 565 (Lynk) (ON LA); Re Dupont Canada Inc., Kingston Site v. Kingston Independent Nylon Workers Union, 1989 C.L.A.S.J. 558679 (Kilgour) (ON LA); Stelco Inc. v. United Steelworkers of America, Local 1005 (O’Neal Grievance), [2003] O.L.A.A. No. 566 (Luborsky) (ON CA); Kingston Independent Nylon Workers’ Union v. Invista Canada Inc. (Walsh Grievance) (2006), 152 L.A.C. (4th) 121 (Jesin) (ON LA); Winners Merchants Intl. LP v. Workers United Canada Council and its Local 152 (Lewis Grievance), 2013 CANLII 74235 (Hayes) (ON LA); Vale Canada Ltd. v. United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 6500 (Denny Grievance), [2014] O.L.A.A. no. 287 (Hayes) (ON LA); International Brotherhood of Electrical Workers, Local 636 v. Utilities Kingston (Gamble Grievance) (2017), 273 L.A.C. (4th) 369 (Nyman) (ON LA). [94] The Union submitted that I am required to answer the three questions set out in William Scott Company Limited and Canadian Food and Allied Workers’ Union (1977) 1 Can LRBR: 1) Has the grievor given cause for some discipline? - 29 - [95] The Union here says that he has. 2) Was the discipline imposed excessive? [96] Here the Union says the discharge was excessive. 3) If it was excessive, what discipline should be substituted? [97] The Union said that the standard of proof is a balance of probabilities with clear and cogent evidence. Further, the grievor’s disciplinary record consisted of three letters of reprimand and a non-disciplinary letter of counselling. The Union said that discipline is warranted here, but that it should be progressive. [98] The Union emphasized in its submissions that the complaint at the time was of the smell of urine. Mr. Martin received that complaint from Mr. Aubie, the employee who used TV8 after the grievor. Mr. Martin went to see TV8. He testified that he did not see any liquid. [99] Mr. Edison said that he was advised on the morning of November 14, 2014 of the “smell” of urine. It was not until November 6, 2014 that Mr. Edison asked Darryl Mersey, the security guard, to review the video from TV8 from November 3rd and 4th, 2014. Mr. Mersey carefully did so. He testified that he did not see anyone urinate in TV8 on either day, nor did Mr. Mersey mention that the grievor drove TV8 while sitting on the control arm. [100] Mr. Mersey set up the video of November 4, 2014 for Mr. Martin to review. In his review Mr. Martin saw the grievor working without his lanyard and using his cell phone. There was no mention of anyone urinating in TV8, nor of the grievor sitting on the control arm while operating TV8. Mr. Martin testified that Mr. Aubie - 30 - only reported the smell of urine. The Union submitted that all of the contemporaneous reports were just of the smell. It was not until Mr. Aubie gave evidence here that he did say there was dampness. The Union also submitted that Mr. Edison’s evidence here was put higher than his email of November 8, 2014 to Mr. Lenihan in which Mr. Edison said that one of the concerns was “possible urinating in the vehicle”. In his evidence here he acted out what the grievor did. The Union said that this was not clear and cogent evidence. [101] The Union submitted that the grievor knew that he should wear his lanyard. He would unclip it from time to time when it restrained him from a task that was out of reach with it on and, when he did not feel the tug of his lanyard, he would quickly clip it on. The Union reviewed pictures and documents of the TV with respect to its proximity to the product racks. It submitted that the gap between them was minimal and falling out is not possible. It said that if the failure to wear a lanyard is so serious, then the Employer’s response on April 26, 2013 to the grievor not wearing his lanyard should have been more than the letter of reprimand which was given. [102] The Union noted that Mr. Mersey and Mr. Martin testified that they did not see the grievor sitting on the control arm. Mr. Lenihan agreed that the allegation that the grievor was sitting on top of the control arm was not clarified at the November 14, 2014 discipline meeting. Accordingly, there could have been confusion in the mind of the grievor. Only Mr. Edison said he saw this behaviour; no one else did. The Union said there is no evidence to support any discipline with respect to this allegation. - 31 - [103] As set out above, the Union submitted that no one saw the grievor, on the video or otherwise, urinating in TV8. No one saw any liquid in the cab. The smell of urine was all that was reported. [104] The Union submitted that the evidence of the grievor and Dr. Lerner is sufficient to establish that the grievor had a urinary tract infection that was cleared up with a course of antibiotics. [105] The Union relied on the following authorities: Ontario Public Service Employees Union (Goden) v. Ontario (Ministry of Community Safety and Correctional Services, GSB 20016-004 (Watters); Ontario Public Service Employees Union (Beltrano et al.) v. Ontario (Ministry of Community Safety and Correctional Services), 2008 CarswellOnt 8757, [2008] O.G.S.B.A. No. 143, 177 L.A.C. (4th) 1, 94 C.L.A.S. 326 (Petryshen); Ontario Public Service Employees Union (Phagau) v. Liquor Control Board of Ontario, GSB#2014-4119, (Harris); Mainroad Contracting Ltd. and B.C. Government and Service Employees’ Union (Rowlands), 2009 CarswellBC 3972, 182 L.A.C. (4th) 253, 97 C.L.A.S. 252, (Jackson); Ontario Hydro v. Power Workers’ Union, Local 1000 (Fox Grievance), [1998] C.L.A.D. No. 887, (Stewart); Honeywell ASCA v. National Automobile, Aerospace, Transportation, and General Workers Union of Canada (CAW- Canada), Local 89, 2001 CarswellOnt 6153, [2001] O.L.A.A. No. 772, 66 C.L.A.S. 215, (Etherington); Chemtura Canada Co. v. U.S.W. (Douglas) (Re), [2006] O.L.A.A. No. 809, 156 L.A.C. (4th) 428 (Reilly); Cargill Ltd. v. United Food and Commercial Workers Canada, Local 175, (Than Ros Grievance), 2011 CarswellOnt 607, [2011] L.V.I. 3946-1, [2011] O.L.A.A. No. 27, 104 C.L.A.S. 329, - 32 - 204 L.A.C. (4th) 102 (Chauvin); Tenant Hotline v. Peters and Gittens, 1983 CarswellOnt 2389, 10 L.A.C. (3d) 130, (MacDowell); United Steelworkers of America, Local 3257 v. The Steel Equipment Co. Ltd., L.A.C. vol. 14, (1964), (Reville). Analysis and Decision [106] The grievor testified that he had been having incontinence issues for the period just prior to the complaint raised by Jason Aubie that he smelled urine in the TV8 when he took over its operation. [107] The evidence is somewhat equivocal with respect to which day is in issue regarding the incident. Mr. Edison asked Mr. Mersey, the Senior Security Guard, to review video from specific days, that being November 3rd and 4th, 2014. Mr. Edison also asked the grievor’s supervisor, Mr. Martin, to review video from a specific day, that being November 5, 2014. Evidence indicates that Mr. Mersey provided Mr. Martin with video surveillance footage from November 4, 2014. As well, Mr. Edison himself reviewed video footage from November 4, 2014. Thus, while it appears that there is some discrepancy regarding the date of the incident, it is most likely that it occurred on November 4, 2014. What is clear is that none of these people who saw the video say that they saw the grievor urinating in the cab of TV8 on any of the videos reviewed. [108] As far as the date of the incident, Mr. Lew’s “Janitorial Routine” report of November 4, 2014 is a reliable indicator of the date of the incident, and I so find. - 33 - [109] The grievor was observed by all viewers of the video footage to be picking product without being tied off on November 4, 2014. Neither Mr. Martin nor Mr. Mersey saw the grievor sitting on the control arms while operating TV8. But it is possible that they may have reviewed video footage from different dates. Previously, on April 26, 2013, the grievor had received a written reprimand for similar behaviour. [110] Mr. Edison, at the hearing, pantomimed what a man would look like, from behind, while urinating. Mr. Edison’s actions, while he gave his evidence, included representing the grievor as being hunched over, looking down and shaking his shoulders as set out above. Those actions would also be consistent with movements made by the grievor while using his cell phone. Mr. Edison’s evidence of what he said he saw of the grievor included reporting that when the grievor was finished, he went back to picking orders. That is contrary to the grievor’s account as recorded in the minutes of the meeting of November 14, 2014, in which he admits that he had urinated in the cab of TV8 as he exited, at home base, on the way to the washroom, but did not make it. [111] It is not at all clear to me, on the evidence, that the grievor purposefully urinated, either prematurely in his pants or otherwise, en route to the washroom. It is possible that Mr. Edison’s version of what he saw on the video footage involved the grievor using his cell phone and returning to pick product while, in fact, the grievor did urinate, but at a different time. This would account for the discrepancy in the grievor’s testimony that he urinated as he left TV8 while trying to reach the washroom. That is, the grievor reported going to the washroom - 34 - immediately after urinating while Mr. Edison observed the grievor returning to pick product after the incident he observed on the video footage. [112] Mr. Aubie’s, (who started his shift directly after the grievor’s shift) evidence is consistent with the smell of urine being strongest at the low level home position, dissipating as TV8 went to the higher levels. This corroborates the testimony given by the grievor, which describes the urination happening as he exited the TV8 while trying to get to the bathroom. [113] There is no evidence before me to establish that the grievor intentionally urinated in TV8. No one who viewed the videos reported that they saw this on the video footage. [114] The highest the evidence gets is from Mr. Lenihan and his notes of the discipline meeting of November 14, 2014. Those notes, and his evidence, disclose that the grievor was candid in disclosing his incontinence problems at that meeting. His evidence undermines Mr. Edison’s evidence and assumption of seeing the grievor urinating in TV8 on the video. In addition, we have as evidence, the grievor’s testimony, supported by his doctor, that he had a urinary tract infection. The grievor described urinating in his clothing as he exited the TV8 cab on the way to the washroom. [115] This is not to excuse the grievor’s responsibility to disclose his problem to management and to have dealt with it on his own, by sweeping it up using sawdust, as he should have done. - 35 - [116] The grievor provided a note from his attending physician at the meeting of November 14, 2014 and offered an opportunity to management to see his medications, and as well as offered an invitation to management to speak directly with his attending physician; the LCBO did not follow up on any of these offers. These offers were all implicit requests for accommodation consideration. [117] As previously outlined the Employer relied on five allegations upon which it based its determination of discipline: 1) Picking without lanyard attached. 2) Sitting on control arm with feet on the conveyor while travelling. 3) Urinating in the tunnel vehicle. 4) Using personal electronic device in the warehouse. 5) Driving in an unsafe manner in the DRSC parking lot. [118] I find that the allegation of picking without a lanyard attached is sustained. Even the grievor, in his own evidence, established that from time to time he would work without his lanyard attached. He described it as a human error, which it is not. It is a fundamental requirement of the job to employ the fall restraint equipment. He knew this, in part at least because he had previously received a letter of reprimand for the same behaviour. Given that he had received this letter of reprimand previously, a progressive discipline approach would require an escalation of the discipline imposed in this instance. In my view a one week suspension would be appropriate in order to drive home to the grievor the importance of using this safety equipment. - 36 - [119] It is difficult to find that it is more likely than not that the grievor sat on the control arm. However, even on his own evidence he was not standing between the two control arms as he operated the TV8. Further, he admits to travelling with at least one of his feet on the frame of the conveyor. On any account this would be an unsafe practice. Safety in a highly mechanized workplace like this one is of the first importance. In my view this behaviour should attract some discipline and being safety related, it is a serious infraction, and in my view should attract a further one week suspension. [120] In my view it has not been established that the grievor intentionally urinated inside the TV8 itself. Mr. Edison took notes at the grievor’s disciplinary meeting of November 14, 2014. At page two Mr. Edison’s notes state, “He urinated as he was leaving the car. He tried to make it to the washroom but couldn’t. Once done he went right back to work, no sawdust in car, was embarrassed to tell anyone. Didn’t request any sawdust. Urinated on steps to vehicle in/out. “Mr. Lenihan also took notes at the meeting. His notes, at page four, attribute to Mr. Edison asking, “Is it telling me its OK to urinate in the tunnels?” A[nswer] from the grievor: “No its not. I can’t hold it.” [A] #2 “I’m a young man with these problems. Have peed myself at work before. Hard to talk, especially to another man.”… At page five Mr. Lenihan asked “How many times did you do it?” [A] “Once or twice. One in vehicle. One in pants.” … Mr. Edison asked at page six, “Tell me how it happened?” [A] “I tried to make it to the washroom.” Mr. Edison then asked, “So you’re in tunnel unit and it comes on. Where did you urinate?” [A] “Right in the front as I was leaving, leaving car to make it to the washroom and I couldn’t make it.” Mr. Edison asked, “What did you urinate on?” [A] “Metal.” - 37 - … Mr. Edison asked, “So on the ground where you came out, in and out, you just left the liquid?” [A] “Yes, I didn’t see it. I thought it was all gone.” In my view, these notes do not establish that the grievor intentionally urinated in the TV8. The grievor does admit that he urinated outside the car as he tried to get to the washroom and he believed that the urine was all gone. He does admit that he did not acknowledge or report what had happened at the time. He does admit that he did not clean up or put sawdust on the urine at the time. The appropriate discipline in this case should take into account his candour at the November 14, 2014 meeting. Some degree of discipline is appropriate to reflect his failure to advise his supervisor of what had transpired and his failure to ensure that the urine had properly been cleaned up. However, termination for a medical condition is not appropriate. I would substitute a one week suspension for these failures. [121] The grievor testified that he used his phone to check the time and to listen to music. The TV’s are equipped with radios but the radio in TV8 did not function. Nonetheless, he was aware, by way of a letter of counselling dated February 3, 2011, that wearing an MP3 player while working in TV8 was strictly prohibited. He also knew of this prohibition because of the sign posted on the warehouse door which clearly states, “No cameras, electronic equipment, food or drinks allowed in warehouse areas.” Having been counselled, which is non- disciplinary, the next step in progressive discipline would be a letter of reprimand. I declare that the grievor should be given a letter of reprimand for this behaviour. - 38 - [122] The allegation of driving in an unsafe manner in the employee parking lot on November 9, 2014 was witnessed by a bargaining unit Supervisor, the grievor’s Management Supervisor, and the Manager to whom the latter Supervisor reported. Their attention was brought to the vehicle as it drove through the lot because of the loud exhaust note of the BMW being driven. The car was driven around the perimeter of the parking lot at a time when there were few people present in the parking lot. None of these Managers made any attempt to determine who was driving the car. Mr. Jim McDougall, the Order Processing Manager, Durham Operations, prepared an e-mail dated Wednesday, November 12, 2014 to Mr. Edison outlining what he had seen which included the following observations: …"At the time of this incident there was (sic) no other cars or pedestrians around … Sam’s driving did not put anyone in harm’s way at this time but did prove he does not follow safety procedures with speed in the company parking lot.” These Managers assumed that it was the grievor who was driving the car and Mr. Edison said that they ought to have taken steps to deal with and react to the situation, but they did not do so. This incident cannot form part of the discipline that led to his termination due to the fact that there was no positive identification made. [123] Having reviewed the evidence before me, the submissions of the parties and the cases relied upon I determine that in all of the circumstances the discharge grievance is allowed. I exercise my discretion to substitute the disciplinary sanctions set out above. That is, a one week suspension for picking without a lanyard attached, a one week suspension for safety violations in the control of the TV8, a one week suspension for failing to report and cleaning up his - 39 - unintentional urination, and a reprimand letter for using a personal electronic device in the warehouse. The Union did not seek compensation. There will be no loss of seniority. It is clear there was reason for discipline. However, discharge was an excessive response. [124] I remain seized with respect to the implementation of this award. Dated at Toronto, Ontario this 4th day of March, 2020. “Daniel Harris” Daniel Harris, Arbitrator