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HomeMy WebLinkAbout1984-0056.Sharpe.86-03-2056184 58184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: For the Employer: OLBEU (Thomas Sharpe) and The Crown in Right of Ontario (Liquor Control Board of Ontario) K. P. Swan R. Cochrane P. D. Camp Vice-Chairman Member Member M. Levireon Coumel Koskie d( Minisky Barristers & Solicitors B. Bowlby Course1 Hick Morley Hamilton Stewart Storie Barristers &Solicitors August 13, 1984 Grievor Employer DECISION This matter involves the reference to arbitration by the union of two grievances filed by the grievor, Mr. Thomas Sharp, in respect to an incident which took place on November 22, 1983. The grievance which was the subject of the Grievance Settlement Board File Number 58/84 was formally withdrawn at the hearing; the matter therefore left for resolution is a grievance against a one day slspension imposed upon Mr. Sharpe for conduct which the employer characterized as it-subordination, surliness and boisterous conduct in front of other employees and customers. There is really only a small area of dispute between the parties as to the fact situation out of which the discipline arose. The grievor was at all material times a Clerk 3 at LCBO Store 155 in Thunder Bay. On November 22, 1983, he was working on a 9 a.m. to 6 p.m. shift. Despite a concerted effort by the store management to control abuse of quitting time during the month or so immediately preceding the event, the grievor decided on that day to leave early. Sometime before his quitting time at 6 p.m., about 10 minutes according to his own evidence, and about 20 minutes according to the employer’s evidence, the grievor put on his coat and prepared to leave. He was seen by Mr. William Hurd, an Assistant Manager. Mr. Hurd asked him why he had his coat on and whether he~was planning on leaving, to which the grievor replied that he was not leaving, and that he had his coat on because he was cold. At the hearing, the -3- grievor admitted both of these respomes were untrue, and he in fact intended to leave. Mr Hurd then told the grievor that if he was cold he could go up to the front of the store and”pull bottles” until 6p.m. The grievor reacted angrily to this iespsnse, according to his own evidence because he found Mr. Hurd’s manner condescending and insulting. Both Mr. Hurd and Mr. John Kowalczuk, another Assistant LManager, testified that the grievor then became loud and abusive to Mr. Hurd, and that the remarks which were addressed to Mr. Hurd would be audible to other staff members and customers in the store. In particular, both witnesses testified that the ‘griever called Mr. Hurd “Colonel KlirW more than once, in a manner apparently intended to be imulting. The grievor denies that he used this expression at that time, although he admits that he did use it later on, shortly after 6 p.m. when the confrontation resumed. This resumption of the confrontation occurred when Mr.’ Hurd and Mr.Kowaiczuk were sitting in the office together with the door closed. The grievor threw open the door, and said something to the effect that if the two were talking about him, he wanted to hear the conversation. Both the grievor and the other union witness, IMr. Scott Henderson, testified that it was at this time that the grievor called Mr. Hurd “Colonel Klink”. Apart from this disuepmcy about the timing of the use of the “Colonel Klink” label, there is really nothing between the two versiors presented by the employer witnesses and the union witnesses apart from the normal discrepancies in the stories of different witnesses to thesame event. None of the discrepancies are in any way immaterial. On cross examination, the grievor admitted his tone was surly, that he did not care who heard him, that he gave no thought to whether his comments might be audible to customen, and that hi voice was loud. Indeed, he admitted that he was “extremely irsolent”, and that he threw the office door open twice in an abrupt fashion. The employer argues that there is no plestion that the incident took place, and that there was clearly catae for some discipline to be imposed on the grievor . The employer characterizes this conduct as insubordinate, since it demonstrated defiance of a direct and reasonable order, even though the grievor did in fact comply with the order. The employer also characterizes the conduct as insolent, and argues that conduct of this nature in circumstances where it could be overheard by other employees and by store customers is sufficient to permit the imposition of a disciplinary penalty. In all the circumstances, the employer argues that a one day s-pension is within the range of penalties which may reasonably be The union’s argument basically is that there was no direct evidence that any customer in fact heard the words, and that the public nature of the confrontation is the essence of the employer’s case for a sapension rather than merely a warning. The union characterizes thii as a momentary blow-up, involving relatively mild language and no actual disobedience. assessed. -5- i Having regard to all of the evidence, and in particular to the grievor's own frank admission, we are of the view, that the penalty impased is not SO unreasonable that we should interfere with it. The grievor's conduct was clearly irsubordinate, although it did not involve disobedience to an order. It did involve, however, a direct challenge to that order in a loud and irsulting response to it. It could scarcely be called a momentary blow-up, since the grievor showed his displeasure with Mr. Hurd on two occasions at least ten minutes apart. Finally, we accept the evidence that the grievor's position and volume at the time of making his statements was such that he could be heard by customers as enough to satisfy the primary element of the employer's case. The grievor himself does not deny that evidence; he says that he was in fact careless to whether or not he was heard by customers. We do not think it is necessary to prove that his comments were in fact overheard by any specific customer in order to prove the element of the public nature of the confrontation. We have considered all the cases cited to us by counsel for the union. With respect, it is extremely difficult to abstract any general principles from these cases. They ail turn upon their own facts, and while it is true those facts are generally much more serious than the ones before us, we think that the employer has successfully demonstrated that it had cause for disapline and the disapline imposed was within a reasonable range. The grievance is therefore denied. -6- DATED at Toronto, Ontario this 20th day of March, 1986. ,&A- K. P. Swan, Vice-Chairman R. Cochrane, Member -- P. D. Camp, Member