HomeMy WebLinkAbout1977-0052.Russell.77-05-30IN THE MATTER OF'AN ARBITRATION
Under The,
CROWId ENPLOYEES CoiLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEWENT BOARD
Between:~ Mr. G. Russell
And
Ministry of Correctional Services
Before: K. P. Swan Vice-Chairman '
Mary Gibb Member
II. Simon Member
For the Grievor: .--
The Grievor for himself
For the Employer: _--
Mr. J. F. Benedict
personnel Branch
Correctional Services, Scarborough
HeariET: ---
may 11, 1977
Suite 405, 77 Bloor St. II.
Toronto, Ontario
;
.; ’ 2.
The (jrievor, v~tio had been employed by the llinistry
of Correctional Services as a Supervisor of Juveniles since
1972, was discharged because of a series of events which were
alleged to have occurred on September 30, 1076 at Pine Ridge
School in Eowmanville. There were no submissions in respect
of the:procedural propriety of the discharge; the grievor's
position was that the events simply did not occur. Although .
the grievor presented his own case, the Eoard attempter! to
extend every assistance to him, including a number of recesses
to consult with a representative of the Union, and an offer,
which was declined, to adjourn to permit him to produce other
witnesses.
The.employer's evidence of the events of the evening
of September 30, 1976 came from two volunteer workers who were
in the school for a social evening with the group of wards who
were then in Victoria House. Victoria House is a locked facility,
and the children lodged there'are disciplinary problems or high
risks for absence without leave. Doth of the two volunteers,.
young'married women who live in nearby communities, told
essentially the same story, and there was no real conflict in
,the versions they gave to the Board. According to their
testimony, they were at one stage of the evening playing cards
with the grievor and one of the wards in the games room. Other
wards, but no other supervisors, were also present. During the
course of the game, there was a great deal of pleasant banter,
and a few good-humoured insults were exchanged. The griever's
participation in this, however, they thought to go too far, and to
be inappropriate to the occasion. Specifically, they complained
that he called.one or the other of them "gook", "meathead" and
"arsehole". He also flicked a fly which Ihc had killed at one of
them, and then made connents about where it had landed on her
~dress which she found embarrassing and insulting.
Finally, ata later stage in the evening, an incident
occurred involving one of the wards. In the evidence~of the
volunteers, the ward had placed a pet guinea pig inside his
housecoat so that it was suspended,over his belt. When he
approached the card table to ask for a light for his cigarette,
the grievor picked up a cigarette lighter and, expressing dislike
for the guinea pig, applied the flame to the part of the housecoat
where the guinea pig was suspended. Thisset the coat on
fire, frightening the guinea pig and causing considerable con-
sternation to the boy involved and to the onlookers. In a
demonstration designed to show the inflarmnability of housecoats
of the type issued at Pine Ridge School, Mr. Benedict was able
tom satisfy the Board that the risk of a dangerous fire was very
great.
s The employer's position was that the conduct of the
grievor was abusive, insulting and dangerous, was counter-
productive to the effectiveness of the volunteer program, and
was a poor example to the wards in his charge. On the basis of
the ineident,,and on the basis off a past record of unsatisfactory
conduct, the employer considered discharge to be the appropriate
I response.
The gricvor's version of the evening's events was,
quite simply, a denial of the employer's, evidence. t!e admitted
to some good-natured exchanges at the card table, and agreed
that he had used the word "meathead". He flatly denied the use
of the other, two words, and denied that the incident with the
fly occurred. Walso denied totally the event involving the
fire on the housecoat.
The.Eoard is thus faced with a complete conflict of
evidence, and it might be appropriate for us to observe that we ,,
find this kind of conflict the most distasteful aspect of
disciplinary arbitration cases. The conflict is so complete that
both stories cannot be'believed, and the Board is thus forced to
make its decision on the grounds of credibility.
The credibility of witnesses is always extremely difficult
to assess, and we have even less to assist us in the way of surrounding
objective evidence than is usually the case. The law does not clothe
us "with a divine insight into the hearts and minds of the witnesses"
as Mr. Justice O'Halloran of the British Columbia Court of Appeal
put the problem in ~aryna V. chorney <1521 2 D.L.R. 354, at 358.
We must therefore attempt to come to our conclusion on the basis
of all of the evidence and in accordance with the preponderance
of probabilities in the case.
In our view, it is simply impossible to believe that the
two volunteerworkers could have concoctoc! the story they nrcsentcd
/
tc their co-ordinator'the following day, set out in written
statements within aweek, and gave to us as testimony under oath
at the hearing. They were, of course, directly involved in the
events which they described, and were not viewing it as detached
bystanders. Nevertheless, they appear to have nothing to gain or
lose in this case. There was no sujgestion of any animosity toward
the grievor; indeed, they had only met him that evening for the
first time. Their story is'coherent and believable, despite the
bizarre events which it chronicles. In.the result, we believe
their story; it follows that we cannot believe the grievor's.
9e are thus of the view that the employer had just cause
to discipline the grievor.for the events of September 30, 1976.
Given the serious view which the employer took of the incident, and',
given the evidence of unsatisfactory conduct in the past, we cannot
conclude that discharge was,a completely unwarranted penalty. This
Board does have, however, a wide remedial power under s.18(3) of
the Crowc EmployeesCollective Bargaining P.ct to relieve against ---
harsh penalties in appropriate cases, and the Board has used that
authority on.many occasions. In this case, we do not co.ncede the
specific language used by the grievor to be terribly serious,
although it wa; certainly ill-adiised in the circumstances. Even
the~incident with the cigarette lighter might be susceptible of an
explanation as a thoughtless prank which went badly wring. Because
of the position taken by the grievor, however, any evidence which
night have gone to mitigate the penalty imposed was not available
:
i ,. 6.
to us.
Finally;of course, as the Board clearly stated in
me Ilarris 7175 at p. 21, we are unwilling to exercise our remedial
authority on' behalf of a grievor in a case where rre are unable to
believe the griever's testimony. This position.of the Doard is a
firm one, although it is one which ought to be exercised carefully.
It is not every conflict of evidence which will give rise to its
operation, since people see events from.such differing perspectives
that they may quite honestly give differi~ng accounts of those
events. Nevertheless, where a'grievor's evidence cannot'be believed
in circumstances which amount to a disregard for the quasi-jud.icial
nature of the proceedin& before the Board and for the vital
importance of sworn testimony ,in such proceedings, the Board will not
use its discretionary power to interfere with the penal'ty imposed.
We consider this to be such a case.
The grievance is accordingly denied.
Dated at Toronto this 30th day of Flay 1977.
I .-I
K. P. Swan
Vice-Chairman
I concur
Mary Gibb
Member
I concur
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Ii. Simon
Member