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HomeMy WebLinkAbout1991-1354.Horner.92-09-02 ONTARIO DE LA COURONNE EMPLOYES CROWN EMPL 0 YEES DE L 'ON TA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG IZB TELEPHOIN'EzTELEP~,O,'..,'E. (4 IG] 326- 1.788 ~80~ RUE DUNDAS OUEST. BUREAU 2100. TOF~ONTO (ONTARiOJ MSG tZ8 FAC$I~',41LE,'TELEcoPIE (4 :Si 326- 2396 1354/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Horner) arievor - and - The Cro~n in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: E. Marszewski Vice-Chairperson W. Rannachan Member D. Montrose Member FOR THE R. Davis GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE W. Zachar EMPLOYER Staff Relations Officer Liquor Control Board of Ontario HE~RING April 7, 1992 This matter arises from the grievance of Tammy Horner, a casual employee at the LCBO's Durham warehouse. On June 16, 1991, she grieved a one day suspension which the Employer imposed on the basis that the Grievor had been smoking in the washroom on the Employer's premises, during her work day, contrary to company policy. The Grievor maintained that she had not been smoking on the day in question, and sought to have the suspension lifted from her record and to be compensated for the time and money lost. The parties were in agreement that the main issue in this case revolved around the factual question of whether or not the Grievor had been smoking in the washroom on June 3, 1991, as alleged by the Employer's contract security person, Litlian Porte/Ii. For approximately one year prior to January 1, 1991, employees at the Durham warehouse were permitted to smoke in the cafeteria. However, since January 1, 1991, the warehouse has been smoke free and smoking has not been permitted anywhere on the premises, including the cafeteria or the washrooms. The smoke free workplace policy was printed on a letter size sheet of paper and posted around the warehouse, including the bulletin board by the employees' punch clock. The text of.this policy read as follows: SMOKE FREE WORKPLACE POLICY In line with Ontario Public SerVice directive as of January 2, i990-12.01 a.m. SMOKING WILL NOT BE PERMITTED THROUGHOUT THE DURHAM WAREHOUSE FACILITY. SMOKING IN ANY AREA OF THE; WAREHOUSE WILL LEAD TO DISCIPLINARY ACTION. THE NON-SMOKING POLICY WILL BE STRICTLY ENFORCED. CO-OPERATION OF SMOKERS AND NON-SMOKERS ALIKE WILL HELP CREATE A HEALTHY AND SAFE WORKING ENVIRONMENT. In keeping with the smoke free workplace policy, the Grievor had attempted to quit smoking, and had in fact quit on April 1, 1991. She testified that she had refrained from smoking between April and August of 1991. The Grievor also testified that the casual employees seniority list was made up according to the number of hours worked by each casual employee. On the list filed at the hearing, the GrJevor was 26.25 hours ahead of the next casual employee. The one day suspension meant that in addition to the disciplinary record, the Grievor felt further back in her seniority ranking on the casual employees list. Portelli, a licensed security guard and an employee of Paragon Securities, had been assigned by Paragon to provide security for the Employer at its Durham warehouse premises, and had been working at that location and in that capacity for approximately two years. Portelli also testified that she had never been instructed with respect to the procedure she was to follow in her capacity as security person, when she was about to accuse an employee of breaking the Employer's rules. Moreover, she had never taken any courses towards accreditation as a security guard. Portelli testified that on June 3, 1991, while patrolling the receiving area, she was walking in the direction of the women's washroom. As she proceeded in that direction, she happened to be following another employee, Kathy Peterson, who called out "security" as she entered the washroom. When Portelli entered the room, the Grievor, who had been standing to the right of the entry door, took several steps across the room towards the sink, where she put a cigarette butt under a tap with running water, and then put the butt with her left hand, in the garbage container directly across the room from Portelli. She described the bathroom as being approximately 3' by 6' or 7' in size. She testified that the cigarette must have been small, but could not describe it in any other way than to say that she did not see a filter tip. Moreover, Portelli did not check the garbage in order to retrieve the item. She testified that she smelled cigarette smoke when she entered the bathroom. She did not speak to anyone present, but proceeded to write down some notes as to her observations, and the names of the people who were present in the bathroom. The entry in her notebook, as filed in evidence at this hearing, read as follows: 9:15 ...T. Horner smoking - saw mc and, put cig. out and threw it away, (9.19 a.m.) (S. Tilling witness, M. L. Aldsworth in stall. (sic) Portelti was asked why the phrase "saw me" had been crossed off, and she answered that the Grievor would have seen her in the mirror. Nevertheless, according to Porteili's version, the Grievor made no attempt to hide the butt, but rather approacl~ed the sink put the butt under the running water, and then threw it in the garbage in full view of Portelli. Portelli left the washroom and prepared a report for Brian Andrews, the Manager of Security. This report was in the form of a note, and read as follows: "Monday, June 3, 1991 -4- At 9:19 a.m. - T. Homer saw me enter N.end rec ladies rooms - she put out her cig. under running water and then threw in garbage. - No words were spoken. S. Tilling - witness. M. L. Aldsworth also in washroom but did not see incident - was in stall area. LAP Apparently, Andrews asked her to report the incident with further detail, in her book. Consequently, about 2:34 that afternoon, at the end of Portelli's scheduled rounds, she made the further notation: "2:34 Further information on smoking incident reported at 9:19 a.m. I followed a female employee into the N.end (REC) ladies rm. I heard her say "security". I watch (sic) T. Homer walk to the sink, turn on the water and put a cig. butt under the running water and then put it into the garbage. She then returned to where she had been before. - Her back was toward me and did not see me enter. - There was S. Tilling and M. L. Aldsworth in the ladies room. Plus the female employee who said security. I do not know her name. M. L. Aldsworth did not see what happen as she was in the stall. - S. Tilling was leaning against the wall to the left of the door - the unknown female was between the sink and the garbage/paper towel unit. Cig. smoke could be smelt (sic). I was requested by the Security Manager, B. Andrews, to write a more detailed report on the events. Portelli went off duty at 3:30 that afternoon. When Andrews provided Portelli's report to the Manager of Shipping, Ron Graves, the latter called the Grievor into his office and told her that she had been observed -5- smoking in the ladies room. The Grievor denied that she had been smoking. She also told him she had determined some time earlier, after she had received a written warning for smoking, that she would never smoke again on company premises. Moreover, the Grievor advised Graves that she had witnesses who were able to tell him that she had not been smoking. Subsequent to their meeting, on June 4, 1991, Graves wrote to the Grievor as follows: Re Notice of Intended Discipline The purpose of this letter is to advise'you that as a result of your smoking in the washroom on Monday, June 3, 1991, disciplinary action may be taken against you. Within three (3) calendar days from receipt of this letter, you are asked to submit the written statement to myself explaining the matter mentioned above which has prompted this letter. Should a meeting be scheduled following the receipt of your , written statement, please be advised that you are entitled to Union representation, and discipline may result from this meeting. Should you choose not to respond as requested, you should understand that management will act on currently available information. The Board's decision concerning this. matter will be made known to you in due course. The Grievor responded with the following written statement in her June 6, 1991 letter in response to Graves: ! j ! In response to the letter I received from yourself on June 4/91, I would like to say that I was not smoking, which I also told you in our meeting in your office on the morning of June 3/91. My explanation to this incident is that I had the water on in the sink and,was washing my right hand and wiped it with a piece of paper towel that I had in my left hand and then deposited the paper towel in the garbage. I would also like to add that Kathy Peterson, Mary-Lou Aldsworth and Sharon Tilling were also in the same bathroom and did not observe me smoking. Thank you, Tammy Horner Each of the three witnesses referred to in the Grievor's letter signed her letter at the bottom of the page. TWO of them, Kathy Peterson and Sharon Tilling, testified at this hearing in support of the Grievor's evidence and confirmed that the Grievor had not been smoking in the washroom, but rather that she had been in the process of washing and drying her hands. The Grievor gave detailed evidence with respect to the washing of her hands. She testified that her job at the warehouse was that of a manual loader, that she'was required to take boxes off the roller line and put them on a skid. In addition to the usual dirt on the boxes, the boxes also had a layer of glue on top so that when they were shipped in a container, the boxes would stick to each other rather than move around. The employees were required to wear gloves, but most of them cut off the finger tips of the rubber gloves in order that they might be able to use their finger tips to tie the ropes. -8- He indicated that despite her three witnesses, the Employer chose to believe the security guard's version of the events in question. Consequently, by letter dated June 11, 1991, Graves wrote to the Grievor as follows: This letter is in reference to the Notice of Intended Discipline of June 4, 1991 relating to your action of smoking within the facility. As a result of all the information and facts available to me, including your comments, I must conclude that you chose not to follow a direct Board procedure. In light of the seriousness of the offence and the fact that you are in a position of trust, I feel that I have no other choice then (sic) to suspend you without pay for one (1) working day to'be served on Monday, June 17, 1991. ~. Please be advised that any future incidents similar in nature, will attract a far more severe disciplinary response. Although this letter does not make reference to the Grievor's prior disciplinary notice, at the hearing, the Employer justified the imposition of a one day suspension on the basis that the Grievor had a letter of warning dated April 18, 1990 on her record. The text of. the previous letter of warning read as follows: Letter of Warning This letter will confirm our discussion on Tuesday, April 17, 1990, concerning the reported incident of your smoking within the ladies washroom on April 5 at 9:12 a.m. as observed by a security guard. [n conversation with you, you admitted to the incident and asked on (sic) information on the reimbursement allowance. provided to you by the Board for entering into a "Stop Smoking" session. -9- ! emphasized very strongly that violations :of the No Smoking policy are subject to disciplinary action. This letter will serve as written disciplinary warning. Please be advised that further violation of this policy may attract a more severe disciplinary response. The Grievor had no other disciplinary record. Mr. Zachar submitted on behalf of the Employer that although the quantity of evidence at this hearing favoured the Grievor's version of the events in question, the quality of the evidence suggested that Portelli was an impartial and credible witness, and that her evidence ought to be preferred over the evidence .. of the Grievor and the other two witnesses. He submitted that Portelli was the most objective of all the witnesses, and was neither a member of management nor of the Union, and had nothing to gain from her evidence. Moreover, he submitted that Portelli's evidence was internally consistent. Finally, he submitted that it was improbable that Portetli would have been mistaken as to her observation of the Grievor given that the observations were made at a distance of somewhere between 3' to 8'. Finally, he took the position that the discipline imposed in the circumstances, a one day suspension, was at the proper level of discipline given the Grievor's prior record. Counsel for the Union agreed with the Employer that the issue in this case revolved around Portelli's observations with respect to the identity of the object in the Grievor's hand. However, he argued that Portelli merely saw what she expected to see when she entered the washroom and smelled cigarette smoke. Her recollection was not suffi.ciently specific as to enable her to describe the cigarette butt in any way. It was equally possible that Portelli saw the tip of a rolled up piece of brown paper towel. It was pointed out that the security officer's observations were sufficiently brief that Andrews asked her for more detail. It was also alleged that she was not an impartial witness, but rather it was in her professional interest to maintain the integrity of her professional judgment. While there was no allegatior~ that there was any animosity involved in her original observations, at some point in writing out her notes, Portelli crossed out the phrase which had indicated that the Grievor had seen her, and wrote in that the Grievor had not seen her enter the washroom, for it was only on the premise that the Grievor had not seen Porteili that it would be believable that the Grievor held out her hand with a butt in it. Counsel for the Union also pointed out that if the Gr£evor had actually been smoking, the witnesses who had been standing in the washroom and waiting for their turn to go to the stall, would surely have observed the Grievor smoking. In the alternative, counsel for the Union argued that in the event that this Board found that the Grievor had indeed been smoking in the washroom, the imposition of a one day suspension in the circumstances was excessive, particularly given the effect on the Grievor's seniority. This Board was referred to the Divisional Court decision in Re The Queen in Right of Ontario and the Grievance Settlement Board et al (1980)i 27 O.R. (2d) 735 (Osier, Van Camp and Cory, JJ.). - 11- Having heard and considered all the evidence and submissions in this case, this Board concludes, on the balance of probabilities, that the Grievor's evidence, as supported by the evidence of Peterson and Tilling sets out the events that actually took place on the day in question. We find that on the whole of the evidence before us, the Grievor did not see Portelli when she entered the washroom. This is supported by Portelli's own notes first written shortly after 9:15 on June 3, 1991, which indicated that "T. Homer smoking". It is entirely unlikely that if the Grievor saw Portelli, that She would have clearly and obviously held her left hand out holding the cigarette butt and put it slowly and deliberately into the garbage can. This Board believes that it is much more likely that if the Grievor was smoking, she would have held the wet cigarette butt in her hand and put her hand in her pocket in an attempt to conceal it, rather than disposing of the cigarette butt in the garbage in such an obvious fashion. The Grievor's story is much more consistent both within itself and with the version of the events as presented in the evidence of the other two witnesses. Unquestionably, the Grievor's two co-workers would have had some sympathy towards the Grievor. However, they were credible and forthright witnesses. Each of the Grievor, Peterson and Tilling demonstrated the hand motions involved in washing off the glue and dirt from their fingers. Moreover, the Grievor testified that she had specifically requested permission from her foreman to go to the washroom to wash her hands off. It is altogether possible that what Portelli did see was the Grievor's' left fist with the protruding tip of a "scrunched up" brown paper towel which was disposed of in the garbage bin. Portelli made no effort to search the garbage or to retrieve the item from the garbage. 't The Board is of the view that in the absence of any evidence tipping the balance in favour of Portelli's version of the facts, there is sufficient doubt in this case which must be resolved in favour of the Grievor. This being a discipline case, the onus is borne by the Employer to demonstrate, on the balance of probabilities, that the Grievor was indeed smoking in the washroom at the time in question. The onus resting upon the Employer in this case has not been discharged. Accordingly, this Board finds that the grievance must succeed, that the one day suspension which has been entered on the Grievor's record must be removed from the Grievor's file, and that the Grievor's proper ranking on the causal employees seniority list must be restored to its position prior to the imposition of this discipline. Moreover, the Grievor is to be compensated [or any loss in wages and benefits involved. This Board remains seized in the event of any issues arising respect to the implementation of this Award. DATED at Toronto, this 2nd day of September, 1992. EVA E. MARSZEWSKI, Vice-Chairperson W. RANNACHAN, Union Member