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HomeMy WebLinkAbout1990-1773.Bradley.91-12-02 ONTA RIO EMPL OY'~S DE LA COURONNE CROWl,/ EMPL 0 YEE$ DE L ',ON TA GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPNONE/T£LEPHONE: [.476.~ 326-~388 180, RUE DUNDAS OUEST, BU/~EAU 2100, TORONTO t. ONTARtO]. tvfSG IZ8 FACSIMILE/T,~.!.r~COP~E : (4 ~6) 326-1.396 1773/90 IN THE NATTER OF ~ ~RBITI~TION Under THE CROWN EMPLOYEES COLLECTIVE B~G&ININ(~ Before THE GRI.EV~NCB SETTLE~NT BETWEEN CUPE (Bradley) Grievor The Crown in Right of Ontario (Ministry of Housing) Employer BEFORE: N. Dissanayake Vice-Chairperson J. Carruthers Member H. Roberts Member FOR THE R. carnovafe GRIEVOR National Representative CUPE Local 767 FOR THE A. Tarasuk EMPLOYER Counsel Smith, Lyons, Torrance, Stevenson & Mayer Barristers & Solicitors HEARING: February 18, 1991 April 9, 1991 DECISIO~ This is a grievance dated June 12, 1990 filed by Mr. Dave Bradley, alleging that he was disciplined without just cause. Mr. Bradley was suspended without pay for four working days following 'a complaint by a supplier that he was subjected to abusive language and racial slurs by Mr. Bradley. The Ministry of Housing operates a number of subsidized housing projects in the Metro-Toronto area through the Metro- Toronto Housing Authority. The grievor was employed as a handyman, classified as Serviceman General, and was responsible for carrying out maintenance and minor repairs at the Metro-Toronto Housing Authority buildings located on Edgewood Road, Queen Street East and Easte:~n AvenUe. The evidence is that Metro-Toronto Housing Authority obtains some of the hardware and supplies required for the repair and maintenance of the buildings from contractors. Maintenance workers such as the grievor provide a requisition of required supplies to the maintenance supervisor, who in turn prepares an order, has it approved by an authorized manager, and sends it to a supplier. The supplier delivers the order to the building designated in the order. Mr. Manny Snyder has been a supplier for the Metro- Toronto Housing Authority for many years. In 1990 a new 3 corporation, HMMDistributdrs, was incorporated by Mr. Snyder, his daughter and his son-in-law to be, Mr. Steven Cartoon. HMM operated as a wholesale distributor. About 70-80 percent of its orders came for Metro-Toronto Housing Authority. The alleged misconduct that led to the disciplining of the grievor occurred when Mr. Cartoon visited Metro-Toronto Housing Authority buildings in the course of his work for HMM. Mr. Cartoon and the grievor provided their own versions of what transpired. Mr.'Cartoon testified that on May 7, 1990, he went to the Metro-Toronto Housing Authority building at Edgewood Road to deliver an order. The order received by HMM. included 10 units of,Waltec Basket" at $ 3~95 per unit. Mr. Cartoon was met bY the grievor. Mr. Cartoon had never met the grievor before. He introduced himself to the grievor and stated that he was Manny Snyder's son-in-law to be Mr. Cartoon testified that the grievor replied "So you work for that short-fat pig do you?" Mr. Cartoon did not respond. The grievor proceeded t~inspect the order, looked at the Waltec baskets (the trade name for kitchen sink stoppers) and said "this is a piece of shit". A~cording to F~r. Cartoon, the grievor then went into a rage and hurled one of the items against the wall; Mr. Cartoon testified that the grievor continued to condemn the company and the products delivered by it and that "every second word" be used was a foul word. Mr. Cartoon did not retaliate, but managed to ascertain that 4 the grievor wanted a different type of sink stopper and that he was upset because the stopper delivered was not what he had wanted. Mr. Cartoon took back the order of Waltec baskets and undertook to deliver the kind the grievor wanted. Mr. Cartoon testified that he was astonished and deeply hurt by the grievor's conduct. However, he did not wish to make an issue out of it. On May 9th he 'went to the Metro- Toronto Housing Authority building at Queen street with the other type of sink stopper because he had been asked to meet the grievor there. The grievor checked the goods, made reference to their encounter on May 7th and said "You work for that short fucking Jew. No wonder you are rich. You supply us with shit. I want the right fucking things." Mr. Cartoon drew to the grievor's attention that he was himself a Jew and that he did not appreciate the grievor's reference to Jews. Mr. Cartoon mentioned the incidents of May 7 and May 9 to Mr. Snyder. Mr. Snyder in turn made a complaint to the Metro-Toronto Housing Authority management; On March 16th Mr. Cartoon made a report of the incidents. Ms. Clare McMillan, was the District Manager responsible for the district in which the grievor worked. When Mr. Cartoon's complaint came to her attention, she met with the grievor. ~He was provided a copy of Mr. Cartoon's written report and inquired if the alle~ations were true. The grievor admitted that he was angry because the wrong items were delivered. He also admitted that he swore, but said that he could not recall the exact words he used. However, he categorically denied that he made any reference to Jews or that he referred.to Mr. Snyder as "a short fat pig". He suggested that Mr.'Cartoon had fabricated those .allegations because he was a friend of Metro-Toronto Housing Authority supervisors, .Mr. Lee.and Mr. Ca~r. Ms. McMillan informed the grievor that an investigation will be conducted because the allegations were quite serious. In the days following interviews were conducted with Mr. Cartoon and two employees who were in the vicinity at the time · of the Queen Street incident. Mr. Cartoon essentially confirmed his story. The employees could only confirm that they heard the grievor raise his voice and that he appeared to be angry. However, they claimed that they had not heard what was said. Ms. McMillan testified that she had to make "a tough call" on who to believe - M~. Cartoon who was a stranger to her, or an employee with l0 years service. Considering all of .the information at her disposal, she concluded that Mr. Cartoon's complaint is to be believed. One of the factors she took into account was the fact that the grievor had' been disciplined just a month earlier for racial slurs'against two supervisors and for smashing.a glass table top in an act of 6 rage because the supervisors questioned his practice relating to punching in. He was suspended without pay for the balance of the shift for that misconduct.. The grievor testified in chief that on May 7th all he said by way of swearing is "this shit is no good" and that he may have said to himself, something like "Jesus Christ! Why can't I get the correct stuff". He testified that on many occasions previously, he had received wrong items from this supplier. He had complained to Mr. Carr his supervisor and Mr. Cart always brushed him off by saying "leave it to me". The significant conflict in the evidence is that the grievor denies the "short fat pig" stat,ement and the reference to Jews attributed to him. He also. denies that he threw anything against the wall. He testified that absolutely nothing unusual happened on May 9th. In the face of this conflict, the Board is called upon to make a judgement on credibility. There were other areas of conflict in the evidence which need not be resolved for the purpose of this proceeding. However, an observation is warranted on the question of whether Mr. Cartoon had delivered the wrong type of kitchen sirnk stopper~ Without getting into detail, suffice it to observe that the evidence indicates that the term "Waltec basket" is an ambiguous term, and that based on the specified union price of $ 3.95, Mr. Cartoon reasonably 'concluded that the-order called for the item he delivered. If there was an error on Mr. Cartoon's part, it was caused by confusing specifications in the order form prepared by the Maintenance Supervisor. Having said that, we are of the~view that even if Mr. Cartoon was to be blamed for a wrong.delivery, it will have no bearing on our decision as to the appropriateness of the grievor's alleged conduct. If we conclude that the grievor made the statements as alleged, it is no defence that he was upset as a result of a wrong delivery of a product. It is preposterous to suggest that an employee is entitled to swear at and make racial slurs against a supplier, merely because a wrong item was delivered. Ms. McMillan 'did not have the benefit of hearing the witnesses~ being examined and cross-examined under oath. Therefore, it is understandable that she found it to be "a tough call" on who to believe. This Board on the other hand had the benefit of a judicial-type inquiry. At the end of this proceeding, we have absolutely no hesitation in accepting the evidence of Mr. Cartoon over that of the grievor. Mr. Cartoon was a refreshingly objective witness. He spoke candidly and without exaggeration. There was no 8 inconsistencies in his evidence. The grievor on the other hand initially testified that the only title he said anything untoward was when he uttered the word "shit" on May 7th. However, he admitted after strenuous cross-examination, that he continued to use foul language, but !exp2Lained that he used that language no matter who he spoke tO. we did not find the grievor to be a credible witness. For exa~ple he agreed that he had a preconceived idea that Mr. Snyder's company was always ripping off the government by supplying goods of inferior quality and that on many occasions the wrong or inferior product had been delivered. Yet,~it took the grievor a long time to admit under cross-examination that he was upset and frustrated that Mr. Cartoon had once again delivered the wrong product. Also, the grievor insisted that there was no incident at all at Queen Street on May 9th. This is inconsistent with the evidence that two other employers had informed management they observed the grievor to be angry that day and heard his voice raised. In the circumstances, we findl that Mr. Cartoon's allegations have been established and that constituted just cause' for discipline. As to the appropriateness of of the penalty, if anything, the employer has been overly generous with the grievor. Racial slurs simply cannot and should not 9' be tolerated, p~rticularly by a public employer such as' the Metro-Toronto Housing Authority. The grievor should consider himself fortunate that the employer did not respond more harshly because we would have been prepared to uphold a penalty much more severe than a four day suspension for a second offence of racial intolerance. For all those reasons this grievance is dismissed. Dated this 2n4 day of ~ecember 1991 at Hamilton, Ontario N. Dissanayake vice-Chairperson Carruthers bet H. Roberts Member