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HomeMy WebLinkAbout1989-1196.Brown.93-12-21· ~ ' ~*'~ i~~ ON'RIO EMPLO¥~$DELA COURONN£ CROWN EMPL 0 YE£S DE L'ON ~ RIO BOARD DES IEF$ rSO DUNDAS STREET WEST, SUITE 2100, TO~ONTO, ONTAR~. USG IZ8 TELEPHONE/T~fi~PHONE: (415) 326-1388 rSO, RUE DUNDAS OUEST, BUREAU2100; TORONTO ~ONTARiO). M5G IZ8 FACSJMILE/T£LECOPIE : (4't6] 326-1396 1196/89, 1378/89' IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE (Brown) Grievor and - The Crown in Right of Ontario (Ministry of Housing) Employer BEFORE= B. Fisher Vice-Chairpers°n · P. Klym Member M. O'TOole Member FOR THE R. Carnovale GRIEVOR National Representative Local 767 Canadian'.Union of Public.Employees · FOR THE K. Billings EMPLOYER Counsel Miller, Thomson · Barristers & Solicitors HEARING: December 5, 1990 'February 7, I991 February 26, 1992 September 9, 10, 17, 1992 October 6, 1992 November 19, 1992 January 25, 27, 29, 1993 March 25, 1993 April 27, 1993 This grievance involves a tS-day suspension and a discharge. The grievor was employed· as a labourer on the permanent staff from July 14, 1986 to September I4, 1989. 15 DAY SUSPENSION The letter imposing the 15-day suspension is dated May Z5,1989. The relevant portion reads as follows: May 25, 1989 Mr. David Brown 1283 Old Orchard Avenue Pickering,Ontario Dear Mr. Brown: Since your permanent appointment to the position of labourer in District 3 effective July 14, 1986, you have continually had confrontations with man- agement staff, your co-workers and residents. This type of conduct is inappropriate and has 2 resulted in you being suspended for one day on December 29, 1987; three days June 13, 14, 15, 1988; and three days November 9, 10, 14, 1988. On Friday, May 5, 1989 five of your co-workers submitted written statements detailing various incidents where you have either verbally abused them or' threatened to physically assault them to the extent that they refuse to work with you as they are concerned for their safety. Specifically, on Tuesday, May 2, 1989 without provocation you threatened to slap a co-worker , and on Thursday, May 4, 1989 you verbally abused ~ another co-worker. Your continuing inappropriate conduct can no longer be tolerated, and as a result you are here- by suspended for 15 days, this suspension is to be effective on the date you are able to resume your duties. Please be advised that this is your final warning regarding your inappropriate behaviour. 3 Yours t~uly, "D. Ashford" D. Ashford ' Acting District Housing Manager District 3 Furthermore, on July 24, 1989, Mr. Kevin Gaul, General Manager, wrote a letter to the Union following the stage three grievance meeting in which he stated the following: Mr. Brown's behaviour has not .improved, and I feel obligated to emphasize that failure to modify his behaviour will have serious consequences; that any repetition of this type of conduct will lead to his dismissal f~om employment with Metro Toronto Housing Authority. Several co-workers referred to in the letter, of suspension tes- tified at the hearing .However one of them (Carl Mercier) had died in September of 1989. Mr. Mercier had prepared 'a statement on May 5,1989 which'he gave to management at the time and was 4 relied upon by them in the' decision to impose discipline upon the gr~evor. There was no objection to the admissibility of this statement. Mr..Mercier' statement reads as follows: On or about the (blank space) I, Carl R. Mercier seen Dave Brown leaving the building with bottles. I went and checked and found there were mine. When Dave returned I asked why he took them he said it was too bad for me. I told him he was stealing! He said for me to shut up, I said no, then he told me to come down tO the'lunch room and he would make short work of me, he says he's # one and I better live with it. I Carl R. Mercier don't wish to work with Dave Brown because he constantly harasses me. I swear all is true as I remember. "C. Mercier" May 5 89 11:30 A.M. The Employer introduced some co-worker statements without produc- ing the witness to testify. However they were admitted only to 5 prove that complaints were received.by the .Employer, not for the truth of the matter asserted in those statements. The Board has not relied on those statements in this decision. One of the co-workers whom both gave a written statement to the Employer and testified was Armando Nortofonzo. He has been employed with MTHA Since 1974. At the relevant time he was employed as a service person at the same housing project as the grievor. He was shown his statement of May 5,1989 and confirmed that it was true. His statement reads as foilows: May S, 1989' 1. Since Dave' Brown has been working 'at 90 Mornelle Court he has always started arguments with-everybody regarding which chair he sits in in. the lunchroom. It's always his chair,, nobody can sit there. The phone, is his phone. He has a certain area in the lunchroom nobody can touch. He always has to sit by the window. He opens the' window without asking anyone. If the window'is closed when he comes in he starts yelling and gives the other guys shit - as to who closed the window. 6 2. Ail the time at the lunch table he has this large butcher knife that he stabs' at the table. The table's all chewed up. 3. He told me-many times that' I'm not to go and eat lunch there because i don't work there. 4. He is always swearing at me, verbally abu- sing me'saying go do some work your lunch hour is so long, he embarrasses.me in front of my supervi- sor and the Iother guys saying "Paul tell Armando to go do some work." 5. He is always saying I'm an old man mY hand shakes when I pick up my pay'cheque. 6. When he comes in the lunchroom he always turns the radio up very loud. He will come in the back door, turn it up and go out the front door. If anyone touches the volume and lowers it he screams and yells ~at everyone or anyone in the room. 7 7. If I'm on the phone he turns~ the radio very loud. Same goes for the other guys. 8. On each occasion he tries to pick a fight and he keeps up the verbal abuse until I walk away. 9. He is always saying I'm too old to work for housing and should retire and that I'm a gut- less wonder. 10. Yesterday in the lunchroom, while I was sitting there he threw a coffee cup lid at me from behind. He hit my head with the lid. I didn't even know or see it coming. At the same time, he .is yelling and complaining about the bathroom basin drain-being too slow. I was very shaken by this because it could have been anything else, heavier or more dangerous. 11~. I don't feel safe or comfortable working in the same area with him. He could have had the knife in his hand or who knows what else he could have thrown. 8 12. There has been so many verbal threats and statements like "I don't like you; you stink; I don't like your smell" that I again do 'not feel safe working in the same area. "A. Nortofonzo" On cross-examination Mr. Nortofonzo testified that he had seen the grievor verbally abuse another co-worker named~ Ed Dufour, particularly on May 4,1989, the day before he gave his statement to the Employer. He also testified that he had seen the grieuor threaten physical injury to another co-worker named Erik Culliton by inviting Mr. Culliton. outside to settle a dispute. The Boards' assessment of Mr. Nortofonzo's' testimony was that he was an honest .and sincere witness. He seemed to have a genuine fear of the grievor not only in terms of concerns about his phys- ical safety but also in relation to the verbal abuse that he was subject to. It seemed to the Board that the insulting comments about Mr. Nortofonzo's' age were what affected him the most. Mr. Nortofonzo seems to be about 60 years of age while the grievor was 32 at the time. The next co-worker to testify was Ed Dufour , 'a 21-year veteran · of the MTHA. At the relevant time Mr. Dufour was employed as a ) Maintenance Superintendent, which is a bargaining unit position. The first time Mr. Dufour met the grievor was on April 17,1989 when he was transferred to the same housing project as the griev- or. on that occasion the grievor called him a "prick" and told him "I don't have to do what you asked me to do." On another occasion the grievor approached Mr. Dufour while he was perform- ing another job. The.grievor wanted to.give a work ticket to Mr. Dufour for work that Mr. Dufour was to do, Mr. Dufour asked the' grievor to take the ticket to the lunchroom as he was busy at the time~ which was.'the usual place to put work tickets. The grievo- rs' reaction to this was to throw the ticket in Mr'. Dufour's face and tell him "that is your job, not mine." Mr. Dufour also testified that he had witnessed the grievor hav- ing a heated argument with Erik Culliton. The grievor threatened to slap Mr. Culliton's face and dared him to step outside for a fight. Mr. Dufour also spoke of the grievors' habit of turning the lunchroom radio uolume uD loud every time he entered the lunchroom, his insistence that a certain lunchroom chair belonged only to him and his particular habit of repeatable stabbing a inch kitchen knife into the table. Mr. Dufour said that he felt· intimidated by this behaviour. 10 'Mr. Dufour's testimony confirmed Mrj ~ortofonzo's testimony about the negative'comments that the grievor made about Mr. Nortofonz- o's age and about, the incident when the grievor threw an object (Mr. Nortofonzo testified it was a coffee cup lid) at Mr. Nortof- onzo head and hit him. It was this. incident that caused Mr. Duf0- ur to fi~e a formal complaint against the grievor as he feared that there would be an escalation of violence. In 27. years' With the MTHA he had never filed a complaint about a co-worker'before, but he felt that he should not have to work in a state of fear. He confirmed that his statement was true. His statement reads as .follows; Having recently transferred to 90 Mornelle Ct., I have been subjected to harassment and verbal abuse since first meeting Dave Brown on the 18th day of April 1989. I had no sooner met Dave Brown for the first time. when I was called a "Prick." since then and until May 4 he could not pass me in the hall or in the lunchroom without swearing at~ me and taunting me by calling me an old man and a gutless wonder because I would not answer him 11 back. At approx. April 24 he began playing with a butcher knife 'with a 10 or 12 inch blade by jam- ming it. into the' table in the lunchroom while continually taunting and cursing different members or,the staff. We, and I mean myself and others are afraid to say a word to Dave Brown for fear he may stab one of us with this knife. He ,has threatened to slap Eric in the face and has "invited" Eric outside for a fight. They cooled off because Eric would not on company time fight with him. This incident took place on May 2/89. Armando has taken verbal abuse every day for' the past ten days at least, He has been called a fat lazy 'bastard and told repeatedly that he has no business with the housing and that he cannot sit in a particular' chair and all of this with a very threatening attitude. Whenever myself or Armando enter the lunchroom 12 Dave Brown will turn up the volume on "his" stereo as high as it will go. When we wish to make a phone call up goes the stereo and if we say any-, thing all we get is more cursing and verbal abuse and harassment. On May 3rd,I was loading fire extinguishers on the elevator at 90 Mornelle Court where~ Dave Brown approached me with a work ticket. -He wanted me to take this ticket and w~en I asked him to leave it in the lunchroom where all work tickets for him 'are usually kept he remarked it was my job and threw the' work ticket in my face. On May 4/89, I was out for the morning'and when I returned I was sitting in the lunchroom with Arma- ndo. Dave Brown came in and immediately attacked Armando with another tirade of verbal abuse call- ing him a number of very abusive names as well as telling him he was too old to work that his hand should shake whenever he collects his pay cheque. Armando had not~' said a single word before Dave Brown started in on him. As Dave Brown was going out the door he turned on 13 me and called me a gutless son of a bitch and that both Armando and I should retire "as we were too old to have any guts. He has also stated on sev- eral"occasions that either he.or I must go. I feel that with Dave Brown playing with his knife and the verbal and threatening attitude of his ways that serious trouble of a violent nature will soon take place. The situation at 90 Mornelle court has become completely intolerable and some- thing must be done as soon as possible. "Ed Dufour" During cross-examination Mr. Dufour agreed that both' the grievor and Mr.' Cuiliton were swearing at each other during the argument. With respect to the coffee lid incident Mr. Dufour agreed that he had not in fact seen the .grievor throw the coffee lid but he had seen it hit Mr. Nortofonzo on the head. He assumed it was the grievor who threw it because there was only he, the grievor and Mr.' Nortofonzo in the room at the time. As with Mr. Nortofonzo, the Board was impressed with Mr. Dufour's honesty and the straightforwardness of his testimony. He also seemed to have a genuine fear of having to work with the grievor. 14 Eric Culliton also testified,-however he was called as a witness by the Union as the Employer said they could not locate him. When shown a copy of the statement that he allegedly gave to the Employer in May 1989, he testified in chief that he didn't remem- ber signing any such document. Mr. Culliton also said that he couldn't read or write although he could sign his name. It should be noted that a previous witness, Mr. Paul witzell, had testified that he had prepared Mr. Culliton's statement because he knew that Mr. Culliton could not read or write. Mr. Witzell also tes- tified that he had read the document over to Mr. Culliton before he signed it. Mr. Culliton's testimony about the signing of the statement was extremely confusing ~and contradictory as he went from denying making the statement to not remembering if he signed it, and finally saying that Mr. Witzell forced him to sign it. This'could partly be caused by the' fact that Mr. Culliton, by his own' admission, at the time was an unreformed alcoholic which seemed to adversely effect his memory. We have trouble accepting any of his testimony because other witnesses,, including the grie- vor himself, testified about the altercation between Mr. Culliton and the grievor . There were other witnesses called by the Employer with respect to the incidents giving rise to the suspension but they did not generally have first hand information of the actual incidents. 15 The next relevant ·witness was the grievor himself. The grievor felt that there was a personality conflict between himself and Mr. Dufour but that he was not the cause of it. The grievor attributed this personality conflict to the fact that Mr. Dufo- ur Was aware of the grievors' reputation and discipline record before they even met. He further felt ·that Mr. Dufour was an "agent "of Ms. Eva D'Ornellas, the Senior Property Manager for the district in which the grievor worked. The grievor seemed to feel that there was some question to what degree he,as a labourer had to take instructions from Mr. Dufour, a Maintenance superin- tendent. He recalls a verbal discussion with Mr. Dufour in which he said there was mutual name calling. He coUldn't recall if he called Mr. Dufour a "prick" but does recall calling him an "ass- hole" in response to-which Mr. Dufour called him a "bully" or a "tyrant." He said he didn't recall calling Mr. Dufour "a gutless wonder" or an "old man" but admitted he may have. He denied that he threw a work ticket in Mr. Dufour's face, rather he said he handed it to him. ~ The grievor admitted that he had a nervous habit-of picking at the lunchroom table with a knife, but he denied that he, was stab- bing the table. The' grievor seemed not to understand how this behaviour Could be interpreted by some~ of his co~workers' as intimidating., In relation to the incident With Eric Culliton , the'grievor said 16 that he noticed that Mr. Culliton was upset. The grievor made a comment intending to be jovial and sarcastic, to which Mr. Culli- ton took offence and then threatened the ~grievor. The grievor said that he suggested to Mr. culiiton that they discuss this matter off site and after work. The grievor said his only inten- tion was to talk to him, not fight with him. In respect to Mr. Nortofonzo ,the grievor denied that he com- mented on his age but agreed' that he had made comments about Mr. Nortofonzo being lazy and that if he did as little work as Mr. Nortofonzo "his hands would shake when he picked up his payc- heck.'' ~e remembered~ throwing a coffee lid but denied that it hit Mr. Nortofonzo, rather he said it hit the table. He admitted that he had a certain chair in the lunchroom that he. considered his own but he said that everyone did so. He also admitted that 'once he walked into the lunchroom and saw that all the places were full. Mr. Nortofonzo was in "his" chair so he told him to get out of "his" seat. Mr. Nortofonzo told the grievor that .it wasn't his seat, then the grievor called him'a "silly old bas- tard.'' He also admitted he may have called a "gutless wonder." The Union called several witnesses to testify that they ~had no problem Working with the grievor in the past and that they could do so if he were reinstated. Michael Johnsgn Worked with the grievor for one to two years but 17 at a different location than.'Messrs. Nortofonzo, Culliton and company. He never had any'problems with the gri~vor. Ed McCaul worked with the grievor at the same location as Mr. Nortofonzo did. Although he had never had a problem with the grievor, he had heard that other employees had. He also knew Mr. Nortofonzo and Mr. Dufour and said that they were both fine men. David Ashton worked with the grievor at the same location as Mr. Johnson. ~e newer had any problems with the grievor. Mr. Ashton said that the grievors' reputation was that of a "tough guy." Buddy Bower worked with the grievor at various locations. He relate'd one incident in which another employee, Ian Holmes, Dlayed a practical joke on the grievor by banging on the Wash- room door while the grievor.was inside. The grievor came out of the washroom very 'mad and upset, demanding to know who had done the dastardly deed. Mr. Bower recalls being intimidated by the grievors' reaction. Mr. Bower also recalled an incident where the grievor got into a loud and abusive argument with a tenant who had thrown garbage off her balcony. On cross examination, Mr. 'Bowers admitted that the grievor lost his temper often, sometimes without reason. Renee Quenneville Worked with the grievor at the same location as 18 Mr. Norto'fonzo. He never had any problems with the grievor no~ did he see him have any problems with any other employees. Ian Holmes never had any problems with. the grievor except the time Mr. Holmes banged On the bathroom door when the grievor was inside. G6rd Pendlebury worked with the grievor for a few months and got along with him fine. He'also knew Mr. Dufour and was not aware of any conflict between the grievor and Mr. Dufour. Bob Cook only had contact with the grievor in the lunchroom but at a different location than the one the grievor worked at .the relevant time. He had no problems with the'grievor. on the whole we found the testimony'of the co-workers who pre- pared statements to be truthful and sincere. The co-workers called by the Union were also honest, (except Mr. Culliton whose testimony we have discounted) however all. they proved was that the grievor got along with some workers, it did nothing to' take away from the fact that he had serious problems With other -workers. Furthermore, the grievor admitted the bulk of the accu- sations against him, although he usually had a'different perspec- tive on it. For instance, it matters not whether the grievor was "stabbing " a 10-inch knife into the lunchroom table or if he 19 were "picking," the point is that his behaviour could reasonably' be interpreted by others as an aggressive and intimidating. His inappropriate remarks about a co-workers age were not only rude and cruel but could easily be construed as a for/~ of harassment under the Ontario Human Rights Code as a discriminatory remark based on age, which, is of course a protected ground in the Code. At times his testimony seemed to be based on the premise that the Board was either quite naive or stupid. His explanation that in telling Mr. Culliton that he wanted to' deal with their dispUte off site and after hours meant that he simply wanted to talk about it rather than fight about it defies common sense. If all he wanted to do was talk about it with Mr. Culliton then why do it off site? The grievor knew that to fight on company property or during working hours would lead to his immediate, dismissal, but he figured he could make Mr. Culliton sweat a little by mak- ing these veiled threats. We have no doubt in our mind that the grievors' intention was to intimidate not only Mr. Culliton but also the other co-workers present as this would continue his reputation as the Clint Eastwood of MTHA (the grievor testified that he believed himself to be perceived in that fashion by his co-workers). In conclusion we find that the grievors' behaviour as outlined above warranted discipline. 2O APPROPRIATENESS OF 15 DAY SUSPENSION Before this incident the grievor had a lengthy discipline record , which is set forth below. 1. March.27, 1987, letter of caution regarding actions toward a resident. 2. March 30, 1987, letter of caution regarding fighting~with co-worker. 3. September 4, 1987, disciplinary letter regarding shouting at the Senior Property Manager. 4. October 7, 1987, verbal warning regarding' 'threatening and insulting co-workers. 5. November 9, 1987, cautionary letter regarding 'threatening and insulting behaviour towards co-workers. 6. December 29, 1987, one day suspension for threatening and insulting behaviour towards a co-worker. 7. June 8, 1988, three day suspension for insubordination and violation of health and safety rules. 21 8. November 7, 1988, three day suspension for inappropriate Conduct with tenants and co-workers. Since the grievor had a lengthy discipline work record and rela-. tively short service, .absent special circumstances the Board would have no hesitation upholding a 15-day Suspension. However, the grievor raised the issue of the grievors' mental health as a mitigating circumstance both for the suspension and the terminaL tion. As such I will deal with this issue after considering the termination. TERMINATION There were three incidents relied upon by the Employer in the termination letter. 1. Insubordination towards G. Harrison, Senior Maintenance Supervisor. Mr. Harrison was the grievors' supervisor in September of 1989. He testified about an incident that took place on September 5, 1989. As his testimony was virtually identical to a report that he prepared for management at the time, it is easier to reproduce his report Memorandum 22 To: E. D'Ornellas D a t e : September 7, '89 Senior Property Manager District '3', Area 'B' Re: D. Brown, Labourer On September 5, 1989, D. Brown, labourer approached me and enquired whether he will be paid for time lost.because of his lateness through the T.T.C. strike, I told him as far as I know, no concessions were made as this would effect all employees, and so far everyone else has been on time. ~. .I took this opportunity to remind him that the flower bed at the south end of 2190 Elle~mere is still to De done. He took objection to this and raised his voice saying that he'had other prior- ities e.g. the sand box and glass removal;/ I agreed with him that the sand boxes were his first priority but pointed out that the other labourer has equal responsibilities and he has gotten all the flower beds turned over and weeds removed. He replied that he (the other labourer) was a tempor- 23 ary employee and had to prove himself to get a permanent job.. I walked the grounds with Mr. Brown and pointed out a number of deficiencies and visited the flower bed. It was agreed that most of the shrubs were beyond salvaging, but nevertheless I instructed him to till the soil. Mr. Brown complained that he was being 'harassed. I assured him that I was only bringing to his attention'his failure to carry out his duties. At approximately 1:20 pm the amount of litter on the grounds caught my attention. I looked for Mr. Brown and could not locate him. I then entered . the building at 2190 Ellesmere and requested 'Mr. John North 0.'S. Caretaker to open the'lunch room for me. I found D. Brown with a can 0f Pepsi standing by a chair.. I enquired what he was doing at 1:24 pm in the lunch room when there was litter all over the grounds. He became abusive, screamed at me and left the lunch room slamming the door. 'As I crossed the. parking lot towards building 2180, he walked beside me swearing and pointing 24 his finger in my face. I warned him not to do so, but he continued swearing and said he was going to get his shop steward. His swearing was so loud that it attracted the attention of Mr. B. Campbell, Asst. Maintenance Supervisor, and Mr. L. Bower - Truck Driver who .was standing in the parking lot. In his testimony Mr. Harrison explained that the' words used by the grievor in the parking lot were as follows : "I'm going to fucking get this settled, once and~ for all, and I am going to call the shop steward" The Employer also called Bruce Campbell, an Assistant Maintenance Supervisor. Mr. Campbell testified that he saw and heard the argument between the grievor and Mr. Harrison in the parking lot. He prepared a report at the time which on examination he con- firmed was accurate. His report~reads as follows : To: Eva D'Ormellas From: Bruce Campbell 25 On 5th September 1989, approximately 1330 hrs., 'I was standing at the front of 2180 Ellesmere in the presenCe of Mr. J. M (illegible) and Mr. Bi Bauer. I observed Mr. D. Brown~ and Mr. G. Harris- on (S~M.S.) approaching. They stopped about' 20 feet and I observed Mr. BrOwn (labourer) making gestures, pointing in Mr. Harrison's'face and speaking loudly. I also heard Mr. Brown make several statements, ~"I'm going to smash your face" and "i am going to file a griev- ance." The above is for your information. "B. Campbell" A.M.S. In his oral testimony he said the actual words spoken by the grievor were " I am going to smash your fucking face." He explained his reason for not including the word "fucking" in his report as he was not in the habit of using such words. The fact that there' was a verbal argument between the grievor and Mr. Harrison was also confirmed by Mr. Bowers, a witness called by the Union. Mr. Bowers could ~ot make out the details of 26 ~ who said what in this argument. The grievor also testified regarding this incident. He recalled the incident but denied that he was abusive to Mr.~ Harrison in the lunchroom or that he screamed at Mr. Harrison or that he slammed the door to the lunchroom. With respect to the parking lot encounter, he said that he did not follow~ Mr. Harrison, rather Mr. Harrison followed him. He didn't recall if he swore at Mr. Harrison but.he.denied that he pointed his ~inger in Harriso- n's face. We found Mr. Campbell to be an honest and uninvolved witness to the events. As his testimony is.consistent with that of Mr. Harr- ison's and contrary to the grievor's, we prefer Mr. Harrison's version of the incident where there is a conflict with that of the grievor's.~ We therefore find that the Employer has proven, this element of the case. 2. Verbal abuse of a tenant. The case here involves an incident between the grievor and a tenant, Ms. Reid, and witnessed by another, tenant, Ms. Gibson. The Employer became aware of an allegation of misconduct because of a complaint filed by Ms. Reid. The complaint involved an alle- gation that the grievor had demanded that she give him a ciga- '27 rette and whe~. she refused, he knocked a cigarette out'of her hand and swore at her. However Ms. Reid did not testify as the Employer was unable to locate her following her departure from MTHA. As this is a very serious incident involving the dismissal of an employee, the Board ~s not willing to allow this clearly hearsay ~vidence to be presented as evidence of the truth of the matter asserted but only as evidence that a complaint was made by a tenant which the grievor was advised of at the time. However there was a witness to the encounter, Ms. Gibson and she did testify. Although she had no recollection of who said what, she clearly remembered that the grievor and Ms. Reid had an argu- ment on the day in question about borrowing cigarettes. The grievor testified that on the day in question he encountered Ms. Reid in the lobby. She asked him .for a cigarette to which he responded "I'm not here to supply you with tobacco, you can'go to hell." We find that the Ms. Gibson was a believable witness, in fact the Union did not attack her credibility. 'Her testimony makes it clear that there was a verbal argument with Ms. Reid who,' as a customer of the MTHA, deserVed proper respect from 'MTHA employees, including the grievor. On its face, arguing with a tenant is improper conduct for any MTHA employee, however it is 28 open to the employee to justify his or her actions by explaining the unusuaI circumstances of the case. However the grievors' own explanation, shows that he used abusive language-in response to a simple request for a smoke. The proper response would have been a polite or even a firm "no," but telling, a customer of your employer "to go to hell" shows a marked disregard for ones' job responsibilities to say nothing of common decency and respect. We therefore find that the grievors' conduct in a~guing with a tenant and telling her "to go to hell" is proven and conduct worthy of discipline. 3. Intimidation of a temporary employee Maria DeFlaviano in September 1989 was a temporary caretaker. On September 12, 1989 she was performing her duties at 90 Mornelle Ct. when she was approached by the grievor who was in the company of an outside tradesman. The~ grievor asked her to hand over her keys'so he could let the contractor into a room. She refused because,she had. read a mem~ posted on the bulletin board that all contractors were to get their keys from the area office only. The grievor then told her to give him the keys as he was a full time employee. She still refused because she recalled that When she was first hired she was told that if she gave out her keys she could be dismissed. The grievor.then demanded for a third time that she give him the keys. By this time she felt intimi- dated and frightened so she reluctantly gave him the keys. As she 29 was concerned that she had broken a rule she immediately reported the incident to Joan Morning a superintendent, and later to Mr. G Harrison, a member of management. The grievor testified that he had been~ transferred to work that day at 90 Mornelle Ct." under protest" and that he did not wish to be there. He did not ha~e any keys with him when he met a tradesman whom 'he knew who needed access to the electrical room for which a key was required. He came up to Ms. DeFlaviano and the following conversation took place: Grievor: "Give me your keys." DeFlaviano: "No." Grievor: "Give me the keys." DeFlaviano: "No, I was instructed not to hand over keys" Grievor: "Give me the keys, I am a full time employee, I was instructed by Campbell to help out this guy. I wili take full responsibility." She then handed over the keys. The grievor admitted that Ms. DeFlaviano looked shocked when he asked for the keys for the third time. He admitted that he "insisted" that she hand over the keys. The grievor had no explanation for why he didn't, simply contact a supervisor to obtain the keys. The grievor said he was unaware of any policy that precluded Ms. DeFlaviano from .giving him keys. 30 There are no important differences in the two versions. If we accept the grievor's evidence that he was not aware of any policy preventing Ms. DeFlaviano from passing over her keys then he was clearly aware Of such a policy when, in response to his second demand, she replied "No, I was instructed not to hand over keys." The proper thing to do at that point would be to either ask for an explanation of the policy or to seek out a supervisor. Instead the grievor bullied Ms. DeFlaviano into handing over the keys by implying that as a full time employee he had more power than her because she was a temporary employee. We find that the conduct of .the grievor as alleged is proven and that it is conduct deserving of discipline. APPROPRIATENESS OF PENALTY OF TERMINATION Absent any mitigating issues, it appears that termination was'the appropriate response for the following reasons: 1. The grievors' dismal discipline record. The grievors' short service,. 3.- The repetition of similar offenses, namely insubordination and abusive conduct towards co-workers and customers. 4. The grievors' total lack of remorse, or understanding that his. aggressive behaviour is his problem, not the problem of otherS. 31 The Union presented extensive evidence from two distinguished medical doctors'about th'e grievors' mental Condition. The medical evidence explained, in part why the grievor conducted himself in such an aggressive and anti social manner at work. However nei- ther of the doctors could say that in their professional opinion that .the grievor had worked out his problems so that he could rejoin the MTHA with a reasonable assurance that his aberrant behavio~r would not manifest itself again. In fact the .grievor has undergone little if any treatment for his personality dis- order in the four years since his dismissal. Rather it seems the grievor thought he could get away with simply agreeing to. undergo treatment as a condition of reinstatement. Unfortunately for the qrievor 'sadly misunderstood the arbitral jurisprudence on this issue, if a grievor is going to rely on a medical defense like mental illnes's or alcohol addiction to excuse his behaviour , he has to satisfy the Board that he has already taken decisive steps to cure himself before his case gets to a hearing. Both the do¢- to~s called by the Union agreed that the grievor needed treatment ( although they disagreed on the form of treatment, naturally ) and both confirmed that the grievor has not sought such treat- ment. Therefore the grievors' medical condition cannot act as a miti- gating circumstance in this case. Both grievances are therefore dismissed. 32 The Board would be remiss if we did not express our appreciation to both Messrs. Billings and Carnovale in the professional and competent manner in which they presented this most long and com- plex case. DATED this 21st day of December , 1993 ~B - VICE CHAIR PETER KLYM - UNION NOMINEE MICHAEL 0 ' TOOLE - EMPLOYER NOMINEE