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HomeMy WebLinkAbout1983-0087.Hibbitt.83-10-31INTHEMATTEROFANARBITRATION Under THECROWNEMPLOYEESCOLLEC~VEBARGAININGACT Before THECRIEVANCESETTLEMENTBOARD Between: Before: For the Crievor: For the Employer: Hearings: CUPE (D. Hibbitt) Crievor and The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) K.P. Swan F.D. Collom G.B. Walker Vice Chairman Member Member T. Edwards National Representative Canadian Union of Public Employees Employer A.P. Tarasuk, Consultant Central Ontario Industrial Relations Institute June 6, 1983 June 16, 1983 This is a discharge case, which involves both a culminating incident and a past record. As is the Board’s usual practice, we received evidence relating to the past record subject to the requirement that the Employer show that it had just cause to invoke discipline on the occasion of the alleged culminating incident. There was also an issue as to a difference between the dates in the letter of January 18, 1983 suspending the grievor pending investigation (Exhibit 2) and the letter of discharge dated January 21, 1983 (Exhibit 3). These give different dates for the culminating incident, but we are satisfied that the grievor was aware froin the beginning of the date in respect of which the Employer proposed to prove conduct amounting to cause for discharge, and that the discrepancy between the two letters was resolved at an early stage in the grievance procedure. The only issue which is outstanding in respect of the culminating incident is one of credibility, and we confess that it has given us a great deal of difficulty. The Crievor was dismissed because he was allegedly found, during working hours on January 12, 1983, in a licenced establishment with a fellow employee. There is no dispute that at the critical time he was supposed to have been at work, and that he would have been absent without leave if he were in fact in the bar at the time alleged. The problem is that the Griever denied flatly that he was in the bar, the other employee who was said to have been found with him supports him in his denial, and the only evidence against them is the testimony, uncorroborated and really incapable of corroboration, of Mr. Paul Witzell, I - 3- the Griever’s direct supervisor. The problem for the Board is simply who should be believed, and the validity of the discipline really turns only on that issue. The Griever worked at a site owned by the Metropolitan Toronto Housing Authority at 400 McGowan Road in Scarborough as a Labourer. He did maintenance work in the underground garages, the surface parking areas, the landscaping and the garbage areas for two buildings at 400 and 410 McGowan Road. Mr. Ken Rourke, the other employee disciplined in respect to the same alleged incident, was employed as a Caretaker at 400 McGowan Road. Mr. Paul Witzell is the Maintenance Supervisor in District “C”, responsible for the two McGowan Road buildings and other buildings in the area. Mr. Witzell’s evidence is that on January 12 he reported as usual for work at 8:00 a.m. and went to a building at 1021 Birchmount, which is part of his responsibilities, to ensure that maintenance work there was being properly carried out. He stayed there until the early afternoon, and then returned to the LMcCowan Road site along Eglinton Avenue East. At about 2:50 p.m., he was passing the Knob Hill Hotel on Eglinton Avenue when he saw a car in the parking lot which he recognized as the Grievor’s. Because he recognized the automobile, and because he knew that the Griever should be at work at that time, he pulled into the parking lot and stopped near the car. He checked his watch and waited about 10 minutes to see if anyone emerged from the Hotel. When nothing occurred, -4- he went into the east door of the Hotel and walked from the bar area close to the entrance into an entertainment area separated by a low wall where strip-tease entertainment takes place. According to his testimony, he saw the Griever and Mr. Rourke sitting at a table, drinking beer and watching the live entertainment which was then taking place. He says that he walked up to the table, and was noticed first by Mr. Rourke who said, “Oh fuck, guess who’s behind you”, to which the Grievor replied, “you got to be kidding”. Mr. Witzell then told the two employees to return to work, and followed them back to the McGowan Road site, which is a very short distance away. He went to his office, arriving there at about 3:20 p.m., and after dealing with a few matters waiting for his attention called the two employees into his office at about 3~45. Mr. Witzell says that the two employees acknowledged that they were improperly away from the work site and that they had stopped in the Hotel for a couple of beers, but that they were not gone that long. Mr. Witzell informed them that he proposed to impose discipline, and that the matter would be reported to Mr. Witzell’s immediate supervisor, the District (Manager in District “C”. The employees used the telephone outside the office to telephone a Union Steward to advise him of the events. The next day, the incident was reported to the District !Manager at about lo:30 a.m., who instructed Mr. Witzell to suspend the two -5- employees pending further notice. He therefore called them into his office and at about 11:50 a.m. on January 13 orally suspended them and said that a letter confirming the suspension would be forthcoming. The employees subsequently left. Mr. Witzell says that later that same day , at about 2:00 p.m., the Crievor approached him again in his office, and expressed some considerable concern about what might happen to him. Mr. Witzell says that the Griever did not attempt to deny that he had been at the Hotel during this conversation, and indeed that this discussion suggested that he acknowledged that he had done wrong. The Grievor simply denies flatly that he was in the Knob Hill Hotel on that afternoon, or that he was away from his work site. He says that he had worked successfully for the Housing Authority until February 1982, when he came under the supervision of Mr. Witzell. From that time on, according to the Griever, Mr. Witzell was “always on my back”, and he felt the present incident was concocted by Mr. Witzell in order to “get him”. He says that on January 12 he reported for work at 7:30 a.m. and worked as usual until lunch. After lunch at 12:30, he began work on a clogged sewer in front of tne building at 400 McGowan. He drew equipment out of the stores and worked until about 3:00 p.m. according to his evidence, at which time he handed in his tools to the stores, changed his boots, and went to work in the underground area at 410 McGowan at about -6- 3:15. At about 3~35 he went to his break in the lunchroom and after his break he was called in to Mr. Witzell’s office and accused of being off the work site. He says that he denied that allegation from the beginning, and he has always denied it. On cross examination, the Griever remained unshaken in his story except that he modified his timing somewhat so that he would have turned his tools in between 2:45 and 300, and was out of the stores area by 300 p.m. There is some evidence to corroborate the Griever’s story. Mr. Vincent Kirkoff is the Maintenance man at the McGowan Road site, and gave tools from his stores to the Griever to repair the clogged sewer in front of the site on the day in question. According to his evidence, the Grievor returned those tools to him at about 2:45 - 2:50, and he next saw the Griever in the lunchroom sometime between 3:15 and 3:30. He was able to be reasonably certain of the time because his wife regularly comes to pick up his pay cheque to take to the bank on pay days, and comes at about that time; he recalls that her arrival and the Grievor’s arrival coincided very closely and it is by that event that he calculates the time. The Griever also arranged to circulate a petition among a number of tenants and employees, who signed their names to the effect that they “between the hour of 2:30 p.m. and 3:30 p.m. on the 12th day of January, 1983, did in fact see Mr. David Hibbitt, employee of Metro F-----T Housing, conducting his duties as Labourer”. Finally, Mr. Ken Rourke denies that he and the Grievor were off the site and in the Knob Hill Hotel at the time alleged, and says that when Mr. Witzell suspended them he didn’t give them any reasons for the suspension, nor make any specific allegation that they were off the property and in the Knob Hill Hotel. It will be observed that, apart from the exculpatory evidence of Mr. Hibbitt and Mr. Rourke, the corroborating evidence, even including the petition whose submissibility is in considerable doubt, while entirely consistent with the presence of the Grievor on the premises shortly before he was seen by Mr. Witzell at the Knob Hill Hotel, but not necessarily place him on the premises at the time when he was alleged to be in the Knob Hill Hotel. The Hotel and the site are very close together, and it would have been perfectly possible for the Grievor to see Mr. Kirkoff within the time frame testified to by Mr. Kirkoff and still to be in the Knob Hill Hotel within the time frame testified to by Mr. Witzell, given only the slightest allowance for error in the timing estimated by the two witnesses. It would also be perfectly possible for the Griever to have been in the Hotel and to have been sent back as testified to by Mr. Witzell, and to have seen Mr. Kirkoff in the lunchroom within the time frame testified to by Mr. Kirkoff. The corroborating evidence, therefore, does not really assist the Griever’s case, nor does it assist us in resolving the difficult question of credibility. There are two other issues which are to be considered at this time. One is the Griever’s allegation that Mr. Witzell had, on an earlier occasion, taken him to a licenced establishment to drink during working hours. Mr. Witzell in fact admits that this occurred, but states that he did so for the purpose of counselling the Grievor, who had given Mr. Witzell reason for concern about certain matters which need not be discussed here. In our view, this incident is an unfortunate but immaterial side issue. Were the Grievor claiming that he did indeed go to the bar on the occasion alleged, that he did so because he felt that he would be allowed to get away with it because of the earlier occasion, the incident might take on more meaning. In the face of the Griever’s express denial that he was in the bar, however, the incident merely tends to cloud the case before US. It may be that Mr. Witzell’s conduct on that occasion constituted bad judgment, although we note that his supervisor gave evidence it the hearing that he did not think so. For our purposes, however, it is simply not relevant to the determination of the issue of credibility. The other issue is of somewhat more importance in assisting us to determine credibility. The Grievor, during his testimony in chief, denied that he had gone to see Mr. Witzell during the afternoon of January 13 at about 2:OO p.m., at which time Mr. Witzell says that he acknowledged his wrongdoing and expressed his concern about what might happen to him. During the course of the hearing, this became a position of doubtful credibility, because Mr. Rourke and the Griever had both circulated petitions relating to their whereabouts between 2:30 and 3:30 on January -9- 12th, and in their version of the events it was only on the afternoon of January 13 that they learned what it was they were accused of, almost certainly at the meeting which’ Mr. Witzell alleged took place between him and the Crievor at 2~00 p.m. Following Mr. Rourke’s evidence, the Grievor was recalled, and withdrew his earlier claim that the 2:00 p.m. meeting had never taken place. Instead, he stated that he had been unwilling to tell the Board about that meeting because it would have appeared that he had “grovelledtl before Mr. Witzell to. get his job back. In the result, therefore, Mr. Witzell’s version of what occurred on that afternoon was ackmwledged, although the Grievor denies that he admitted the absence which was alleged against him. Assessing the credibility of two completely conflicting stories is an extremely difficult job. The best guide to how to exercise the responsibility to assess credibility is found in Faryna v. Chorny, fi954 2 DLR 354, a decision of Mr. Justice O’Halloran of the British Columbia Court of Appeal. In that case, the learned judge said: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of truth. The test must reasonably subject his story to an exami- nation of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident wimesses, and of those shrewd persons adept in the half hidden lie, and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to he true, hut he may be quite honestly mistaken. For a trial judge to say “I believe him because 1 judge him to be telling the truth” is to come to a conclusion on consideration of only half the problem. In troth it may easily he self-direction of a dangerous kind. What the learned judge was really saying is that decision makers should test the evidence, and not the way in which testimony is given. Nevertheless, in the particular case before us, the retraction of part of the Grievor’s story once it had become untenable because of Mr. Rourke’s evidence, and the rather dramatic and emotional way in which the retraction was made, had a significant impact on the Board of Arbitration at the time. So, also, did the fact that the Griever was prepared to lie under oath merely to conceal what he stated to be embarrassment. Using the test from Faryna v. Chorny, however, we think that the only way in which the credibility issue can be resolved is against the Griever. When we test his version of the story against the probabilities, we find that in order to accept his evidence we must also accept the proposition that rMr. Witzell, an experienced and apparently satisfactory supervisor, had enough of a grudge against the Griever to falsify testimony of the incident merely to be able to dismiss him. Moreover, we would have to accept that Mr. Witzell did so in such a way as to involve another employee, thus providing for the additional possibility that one of the two - 11 - employees may have so firm an alibi as to expose his falsification for what it was. Finally, we would have to accept that Mr. Witzell had chosen to falsify an incident involving an absence without leave, which could have been exploded very simply by alibi evidence, when of course he could have chosen to falsify any kind of incident at all, including one which could have taken place in circumstances where 1Mr. Witzell’s version could never be contradicted. In our view, such a version is so improbable that it simply cannot be accepted, and we therefore think that the Griever’s evidence should be rejected and Mr. Witzell’s accepted. The other Issue put before us by the Union was the propriety of the penalty. We have reviewed the material presented to us and the cases submitted in argument, but we do not think that this is a case where we should substitute a penalty. Quite apart f rom the jurisprudence of this Board in cases where it has been found that a griever has attempted to mislead it in the course of testimony, the Griever’s record is not at all good, and includes lengthy suspensions which either have not been grieved in respect of which the grievances have been abandoned. In all of the circumstances, therefore, we think that the discharge of the Griever was proper, and should be upheld; and the grievance is therefore denied. /lb - 12- DATED at Toronto this 31st day of October , 1983. K.P. Swan Vice Chairman _-_- F.D. Collom Member G.B. Walker Member