HomeMy WebLinkAbout1977-0066.McCarthy.77-10-18CROWN EMPLOYEES 416/964 6<26 Swite 40.5
GRIEVANCE SETTLEMENT 77 2zoor street vest
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IN THE MATTER OF &'j ARBITRATION
Under The
CROWN E?(lPLOYEES COLLECTIVE GARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. J. I?cCarthy
And
Liquor Control Board of Ontario
Before K. P. Swan Vice-Chairman
G. K. Griffin Member
H. E. Weisbach Member
For the Grievor
. . .
Mr. W. R. Angus
L.C.B.O. & L.L.B.O:Employees' Association
Mississauga, Ontario
For the Employer
Mr. R. R. Dunsmore
Hicks, Morley, Hamilton
Toronto, Ontario
Hearing:
July 7th, 1977
Suite 405, 77 Bloor.St. PI.
Toronto, Ontario
2.
Mr. John McCarthy, the grievor, was discharged by the Liquor Control
Board of Ontario by letter dated March 25, 1977 and effective that date.
His grievance was duly processed in accordance with the collective agreement
and came before the Board on July 7, 1977. As soon as possible following
the hearing, as is our practice in discharge cases, the parties were
notified by telegram of our decision, which was that the grievance was
denied for reasons to be given in due course. These are our reasons for
the decision in this matter.
.
The effective cause of the discharge of the grievor was an incident
which took place on March 9, 1977, although the employer also introduced
evidence of a record of discipline in the past. tie heard the evidence
on the usual basis that we would only take it into consideration to
assess the propriety of the penalty imposed once we were satisfied that a
culminating incident had taken place which would justify the imposition
1 of some penalty on the occasion in question.
The incident of March 9, 1977 was.observed by a number of witnesses,
including the grievor, and there is general agreement on the major events.
There is, however, some conflict on certain material parts of the stories
told, and the witnesses draw different conclusions and assign different
motives from what they saw. Credibility is certainly an issue here,
and we shall indicate below the conflicting versions and the one which we
prefer. Just before 4:00 p.m. on the day in question, an altercation
took place in the main service area of Liquor Store No. 140, in the City -.
of Vanier. The grievor and another employee named Rene Lebel had clashed
3.
over whether the latter should come to the counter to assist with
customers. Lebel was acting as shift leader, and he decKned to leave
whatever he was doing. There was an exchange of angry words at this
time; precisely what was said is not important, but the evidence is
clear that the dispute took place loudly and insultingly; and in front.
of a number of customers. This dispute was observed by Brock Rhodes,
then a temporary employee in the store. According to Rhodes, the grievor
then left thee counter area four a substantial period, and Rhodes filled
in at the counter although he was on break at the time. The grievor
denies leaving the counter, and stated that he had asked Rhodes to help,
which he did for only a very short time before leaving. These two
witnesses also disagree about the number of customers waiting for' ~.,
service; Rhodes estimated ~5 or 6, the grievor says there were considerably
more. :.
.
Rhodes then went back to a coffee room, an old office on an upper
level above the bins where liquor is stored for counter service where,
amused at the events below, he related his version of the incident S.
between Lebel and the grievor. There is evidence that the grievor over-
&LLEb
heard this conversation and y.eX-tig from below something to the effect
of "Are you talking about me?", but ,the evidence is not entirely clear.
In any event, the conversation apparently continued.
There is no doubt that Rhodes' comments were uncomplimentary to
the grievor, and that they were the source of amusement among the people
in the coffee room. Once again, the grievor overheard the conversation,
and appeared in the room, visibly angry. According to onlookers and to
4
the grievor, he said words to the effect: "If you have something to
say to me, say it to my face"; we accept this version as the best
evidence, although Rhodes' differs somewhat. According to onlookers,
Rhodes then suggested that the grievor should not talk like that in
front of customers. The employer's evidence is that the grievor then
struck Rhodes in the face with his fist, pulled him forward by the hair
to the point where Rhodes grabbed him and they fell. to the floor. In
the course of the struggle, Rhodes also received scratches on the face
and neck; he accused the grievor of having done this as well, and
thinks it was probably done with his fingernails; other witnesses did not
see any scratching take place but saw more blows struck while the fight
was being broken up. In any event, Rhodes suffered bruising to his face,
cuts by his eye and his chin line, and had a large area of hair torn
from his scalp. Rhodes also testified to a later attempt by the grievor
to renew the fight downstairs in the office, but no other witness could
verify this. The employer's witnesses were all convinced that the attack
was 'immediate and unprovoked, that Rhodes had not in any way responded
physically until he was struck, and that he was never an agressor, and that
the grievor had attacked Rhodes and threatened to continue the attack.
Indeed, the employer's evidence is that Rhodes was sitting with crossed
legs and with a can of soft drink and a bag of potato chips in his lap
. when he was struck.
The grievor's story follows similar lines but, as already noted, he
disagrees with the emplcyer's version of the Lebel incident. According
to the grievor, he overheard Rhodes talking upstairs, and was angered.
.
..:
5.
As a result, he returned to the front counter, served a few more
'customers and, by his own evidence, resolved to have it out with Rhodes
in a reasonable way. He asked Lebel to mind the counter, went up to the
coffee room;and told Rhodes, as noted above, that whatever he had to say
should be said directly to him, the grievor. At this point the stories
diverge again. The grievor says that Rhodes moved up from his seat
towards him, and that he struck him only in reaction to that movement.
He explains the pulled hair by saying that he was knocked down by the.
grievor and grabbed his hair while falling. He denies any deliberate
scratching, although he admits he might ihave caused the injury in another
way. ?e does not recall any renewal of the dispute dcbinstairs in the
office.
It is based on this evidence that we were left to determine the
facts upon which we would decide this case, and we were clearly left
with a question of credibility. We had the opportunity of.seeing the
demeanour of all of 'the witnesses, and we have judged their evidence
in light of that demeanour and in light of the probability of the
evidence bwhich they gave based on the-context in which it was given.
In any case where material conflict arises, we prefer the evidence of
'~ the employer's witnesses .to that of the grievor.~ Rhodes no longer
works for the employer, but was in any event so much a participant that
his evidence might be thought to be of somewhat diminished value. He
is, however, supported in every material particular by two other eye- '-.
witnesses who have no intent and reason not to tell the truth. We
might add, in passing, that evidence presented to us concerniqthe
6.
disposition of certain criminal charges against the grievor did not
appear to us to be relevant to thiscase, or at least to be of far less
weight than the oral testimony presented to us; that evidence therefore
did not enter into our decision.
lie therefore find that the assault on Rhodes took place after
only a momentary exchange of words, that Rhodes did not move towards
the grievor or physically provoke the assault, that the grievor showed'
a desire to continue the assault and that, however he may have done
it, he caused serious' injury to Rhodes. Ne therefore find that the
grievor invited some discipline for'the occurrence, a proposition
which we did not understand the union to contest very seriously in
any,event.
Me turn now to the question of the appropriate penalty, and to the
evidence of each party, on the past record of the grievor and concerning
the instigating factors in operation. The grievor was hired by the
L.C.B.O. in 1967, and had reached the Clerk 3 grade at the time of his
discharge. Although his work record was quite good in his early years
of employment, problems occurred in more recent times. In Xarch,
1974 he was suspended for one day because of an incident in which
he used profane and abusive language to a supervisor, in the hearing
of other employees and one or two customers. In August, 1975 he was
suspended for one day for failing to return to work in the middle of
the day. At that time, his attendance record and a problem with alcohol
were al~sb alluded to in the letter confirming the suspension., in addition
to problems with his work performance. Other evidence
;_.
. . 7.
of each of those allegations was also made available. The~grievor clearly
had a very poor attendance record, and had used up all of his sick leave
credits for 1977 by the time of his discharge in March. He admitted to
an alcohol problem closely linked to this absenteeism. Finally, his
periodic performance appraisabshow some deteriorationin his performance,
particularly as related to attendance and dependability.
Mr. Angus, for the union properly pointed out that the appraisals
were in fact not unflattering;and could scarcely be used to show poor
performance. On the face of these documents, we agree; they.are scarcely
useful to anyone as a record of employment for the grievor. Nevertheless,
they clearly document, along with the proof of the disciplinary sanctions,
a course of action by the employer which ought to have been sufficient to
put the grievor on notice thathe was in jeopardy if his conduct did not
improve. There were other pieces of evidence of isolated acts by the
grievor which we shall ignore, since they were never the subject of any
discipline. Nevertheless, tie are of the view that the grievor's past
record cannot entitle him to any favourable consideration.
Finally, we turn to the evidence of mitigation presented by the union,
almost entirely through the evidence of-the grievor. Reduced to its basic
elements, the union's case is that the grievor had suffered,personal set-
backs of such an order that the conversation by Rhodes was a "last straw",
that being laughed at by his fellow employees was ultimately more than he
could stand, and that the assault on Rhodes was an isolated act provoked,
at least subjectively, by Rhodes' own conduct. There is no doubt that the
grievor has not had an easy time of the last few years. The alcohol
problem is here already alluded to. There were other personal difficulties
as well which, out of respect for the grievor's privacy, we shall not set
out here. Suffice it to say that we accept that he was under some consider-
able stress over a period of some years because of these difficulties. We
.-
a.
of the incident itself and of the past record, on the appropriateness of
the penalty imposed.
The parties have referred us to a number of cases, and we have care-
fully reviewed them. We do not think it necessary to discuss them all here,.
except as set out below; on the basic issue of the appropriateness of penalty
we,shall continue to follow the practice of this Board as set out in a number
of earlier cases. Specifically, the.Board adopted, in Re .vaw l/75, its
fundamental agreement with the principle for assessment of the appropriateness
of discipline Set out in Re Steel Equipment Cp. Ltd. (1964), 14 L.A.C.
356 (Revilk):
It has been held, however, that where an arbitration
board has the power to mitigate the penalty impwsed
on a qrievor, the board should take into consideration
in ariivinq at its decision the following factors:
1.
2.
3.
The previous good record of the griever.
The long service of the griever.
Whether or not the offence was an isolated incident
in the employment history of the qrievor.
4.
5.
6.
7.
8.
-z
9.
10.
._ -
Provocation.
Whether the offence was committed on the spur
of the moment as a result of a momentary aberration,
due to strong emotional impulses, or whether the
offence was premeditated.
Whether the penalty impsed has created a special
economic hardship for the griever in the light of
his particular circumstances.
Evidence that the company rules of conduct, either
unwritten or posted, have not been uniformly enforced,
thus constituting a form of dis&imination.
Circumstances negativing intent, e.'g.. likelihood
that the qrievor misunderstood the nature or intent
of an order given to him, and as a result disobeyed
it.
The seriousness of the offence in terns of company
policy and company obligations.
any other circumstances which the board should properly
take into consideration, e.g., (a) failure of the
qrievor to apologize and settle the matter after being
given an opportunity to do so; a griever was discharged
for improper driving of company equipment and the company,.
for the first time, issued rules qoverninq the conduct
9. I
of drivers after the discharge, this was held
to be mitigating circumstance:
(cl failure of the company 50 permit the griever
to explain or deny the alleged offence.
Both parties argued their respective interpretations of these factors
,. for us at the hearing, and we have come to~our own conccl;usion as to those
factors which are applicable.here. First/as we have noted, we cannot
find that the grievor's past record is particularly good, especially during
the last few years. Although he is a long service employee, his absenteeism
record in recent years also tends to'diminish the value of long service.
Second, it is difficult to characterize the present case as an isolated
incident, as a result of provocation, or as a momentary aberration. The
testimony of the employer's witnesses was to the effect that angry out-
bursts were a-part of the grievor's pattern of behaviour. He had been
disciplined for verbal abuse. of another employee in 1974, he was verbally
abusive to Lebel earlier, and he was finally physically abusive to Rhodes.
We are also unprepared to find provocation in any reasonable sense of the
,'-. POti word from the present circumstances. In the words of the quit? in me U.A.W.
Local 776 and Mccord Corp. (19661, 17 L.A.C. 321 (Hanrahani, which qUOteS
from the award:~
The company would be derelict in (its duty to protect its
employees from undue hazards) if it knowingly retained an
employee "who, when he thought he had been insulted, would
.,. injure'another employee." :
In addition, the grievor's own evidence that he deliberately went back
~ to the coffee.room to get things straightened out with tw, pttoDc,5
coupled with the denial ~by all other witnesses of his claim of a preliminary
assault by Rhodes, and in light of the viciousness of the attack raises a
strong inference of premeditation and detracts from the union's claim that
this was a momentary m. +~BERPATJ~P~
We accept that the grievor will probably suffer relatively more economi-
tally from the discharge than someone who had not suffered from the bad
10. I
fortune which he has encountered, but we must weigh this one mitigating
factor,against all of our other findings, and,in particular against the
final relevant factor - the seriousness of the offence in terms of the
employer's policy and obligations.
We consider this final point to be, in many ways, the most important
pRwmEnr
one. Mr. Angus advanced the aqreerrrwrt that most of the awards on fighting
sustain discharge only where there has been an assault, such as on a
supervisor, which threatens the symbolic authority of the employer. We
have read the cases cited, and are not prepared to agree that the trend
has been in such a direction; in any event, we would be unwilling to follow
such a trend if one were clearly demonstrated. 'Individual employees have
as much of a right to expect protection from attack and deliberate injury
,as do any members of society, and they have in addition a right to a
reasonably harmonious and pleasant workplace. It is always opento employees
to seek redress in the courts if they are assaulted by fellow workers, but ,
this only protects the ~first right and may even be counter to the second.
Physical or evenverbal assaults are scarcely conducive to harmonious
relationships at work, to productivity, or to the*~employer's reputation.
This Board has always taken a strong position against the use of
violence, and it shall continue to do so-in this case. In the result,.
given the severity of the assault, the gravity of the offence, and the
failure of the grievor to demonstrate mitigating factors which might have
assisted him, we are unwilling to interfere with the penalty imposed on the
griivor.
Therefore, aswe have already announced to the parties, the present
grievance is denied.
Dated this 18th day of
October 1977
11. I
K. P. Swan
Vice-Chairman
I concur
G. K. Griffin
Member
I concur
H. E. Weisbach
Member