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HomeMy WebLinkAbout1991-2519.Yates.95-08-14 ONTARIO EMPLOYS5 DE 1.~ COURONNE ~ '. < ~RO~ EMP~OYEE~' DE L'ONTAR~O GRIEVANCE COMMISSION DE SE~LEMENT R~GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WES~ SUITE 2 ~, TORONTO ON 'MEG lZ8 TELEPHONE/T~L~PHONE : (416) 326-138~ 180, RUE DUNDAS OUES~ BUR~U 21~, TORONTO (ON) MEG 1Z8 FACStMI~EIT~L~COPIE : (416) 326-1396 PU~L~G SEHViCE APPEAL BOARDS '~-h~'-C~N EMPLOYEES CoLLECTIV~ B~RGAINING ACT Before - 9HE GRIEV~CE SETTLEMENT ~OA~ BETWEEN CUPE 767 (Yates) Grievor - and - 'The Cro~n in Right off'Ontario (Ministry of Housing) Employer BEFORe: W..Kaplan Vice-Chairperson E. Seymour Member ,. R. Scott Member FOR THE R. Carnovale GRIEVOR CUPE National Representative FOR THE A. Tarasuk EMPLOYER Counsel Smith, Lyons, Torrance, Stevenson & MaYer Barristers & Solicitors HEARING: February 10, 1993 May 12, 1993 June 26, 27, 1995 July 21, 1995 IntrodUction By a grievance dated December 4, 1~91, Micha~.ei Yates, grieves that he was unj. ustly dismissed,from his.position as a Labourer in the Maintenance Department of the Metro Toro@to .Housing AUthority. The grievance first' proceeded to a hearing, i.n February 1993. A number of early c, ontinuation dates were scheduled, and.. then, at the request. of the parties, adjourned. Eventually, the matter was brought back on for a hearing. In brief, the employer takes the positio?, that the griever was dismissed for just cause given his' activit)_es' on the e.vening of Thursday, November 2_1, 1991. The union takes.the pos!tiqn that a number Of the events 'relied on by the employer were not onlyiunpr?ven, but denied, and that, in any event', the griever, an ~lcoholic, .has .taken steps to deal with his disease and should, in the circumstances .of this case, be reinstated to e'mployment. As the following will make .clear,. the employer and union_l~ave rathe~ different Understandings~of the events that took place. . The Employe?'s Case While the emp!oyer called a.number o.f. witnesses .in support of its case, at the end of the day.the even. ts that. it relies on are fairly straigh'tforward. On November. 21, 199t, the employer held a charity casino evening at l~he Ulster ~emori. al Hall on Gerrar~d Street East. The grievor, arrived at approximately 6:30 p.m., and his arrival was n0ticeci' bY Ms.. Ter~i Lyn Piette, · a volunteer, who, along with her mother, was in' charge of selling tickets and chips for liquor and gambling. Ms. Piette noticed the griever because he was obviously intoxicated; he was red-faced and smelied like liquor. According to Ms. Piette, the grievor, upon arriving, spread out t~is wallet and said that it would be an early night as he only had approxirnately $70. and the admission ticket cost $15. Over the course of the evening, the grievor made many trips to the cash table. On his third trip to the cash table, he literally emptied his pockets, 'and asked Ms. Piette to give him : whatever he could get with the money he had left. At the grievor's suggestion, some small change he had left over was set aside to be donated to United Way. A short while later the grievor returned to the cash table. This was remarkable to Iris. Pierre for two reasons. First of all, she thought that he was out of cash. Second, the grievor had, until that point, been wearing his winter coat."This had made him stand out as no one else was wearing a coat as the temperature in the room was comfortable. This time he was holding his coat, and he asked where he could buy some film for his camera, having previously deposited it with Ms. Piette and her mother for safekeeping. The grievor was directed to a local store, ahd it was also suggested to him that he wear his coat as it was cold outside, The grievor replied that he did not need to do so. When he returned, he was wearing his coat, had more money to buy chips and tickets, and did not appear to have purchased any film. After this trip, the grievor returned several more times for tickets and chips. At no time did he cash in any of his chips. On his t~hird trip, he again literally emptied out his pockets. Ms. Pierre continued to observe the grievor throughout the evening, and.did so because of his behaviour, and because a member of management, Mr..Clem Pinto, told her to watch him as he was a "troublemaker." Later on 'in the e~;ening, some ~kits were presente~t, and Ms, Piette observed the grievor leaving the 'cl'oakroom where a number of th'e"performers had ~hanged c~iothe:s. The griev0r, n0~V. carrying I~iS"cCj'a't' for 'th~ s'~cOnd' time, inquired where he might exchange 'some American money. When. he came bac~,' he was wearing his coat and had some more 'mor~ey'td buy tickets and chips. At the end of the evening, when the grievor was asked to leave, he cashed in his remaining Chips for appr0ximal~elY ~;17. " ..-;- -.: M~. Piett~;s evidence' was corroborate~l 'by that of-her-mother, Ms. Patricia F;iette, Who also testified in these proceedings, and' wh(~'witnessed, among Other things, the gri~v0.r entering and leaving the cloak~o0m-with his coat over h~s arm. Ms, Patricia Piette ~dvised' the gri'~v6¢, as' h~ Was leaving the Hall, to weaf his coa~ as it wa~'cold 'outside. 'The g~evo~ rebuCfed her ~uggesti°ns,-but Whe~ ~ keturned he was wearing'his ~0'a~ ~hic~'he kept on. Moreover, althOugh the grievd~' had twice indicated'bY em'p~ying his ~ckets that he had ~0 more money, on both occasions afte~ returning to the Rail,' he.had more money' with which'to buy t~ckets agd chips.~ Although the- gdev~r 'only had sixty or'{eventy dollars when he first arrived, MS. Patricia Pierre estimated that he s~nt $120 to $140 over the course bf' the evening. No one else in attendance spent nearly as much. Mr, Daniel Dumas, a member of management, alSo testified on behalf of the e~Ployef. Mr. Duma's,'who had'not previously knowh the grievor; became aware of him because he Was working'that evening as the bartender,, and the grievor came to the bar to bu~ drinks. ' The. grievdr was hoticeable for a n~mber of reasons. He alone :ih t~e'~all was. wearing"hjS wi~ter coat. Also, '~he grievor Rad some cuts on his :mouth that appea~ed to'have been caused '~y a fight. While Mr.' 'Dumas believed that the grievor was' ~nde~ the influence of alcohol when he served him drinks, he did not, however, believe that the grievor was intoxicated, and testified that this is why he continued to serve him. Mid-evening, Mr. Dumas was advised that several purses had been stolen. Then, a short time later, Mr. Dumas could hear the grievor arguing with Mr. 8ill Williams, the local union president. Mr. Dumas testified that the grievor called Mr. Williams, one of the organizers of the event, a "piece of shit.'' The grievor also told Mr. Williams that he was going to "fuck him up." There were approximately sixty people in the room, and there was lots of noise from the music and talking. Nevertheless, Mr. Dumas could overhear this incident, and after hearing the grievor's remarks to Mr. Williams, he intervened and asked the grievor to leave. The ~rievor refused the request and questioned Mr. Dumas's authority to even make it. The grievor then sat down and insisted on staying until the "50-50" draw. Ms. Patricia Piette, who was observing these events, testified that Mr. Dumas spoke respectfully to the grievor. She was also surprised by the grievor's stated reason for remaining as he had not bought a "50-50" ticket. Ms. Patricia Piette advised Mr. Dumas of this, and he again asked the cjrievor to leave. At that point, according to Mr. Dumas, the grievor stood up and told him that he was going to take him outside and "beat the shit out of him." At the same time as he was saying this, however, the grievor began to make his way towards the door, with Mr. Dumas following from behind. The event was held on the second floor of Ulster Hall, and when the two men reached the top landing, the grievor turned around and said "I'm going to stab you, you motherfucker" and begin swinging towards Mr. Dumas. Mr. Dumas, who recounted these events, testified that he could see something metallic and shiny'J in the grievOr's hand that looked like a knife.~Acco~dingly. Mr: Dumas grabbed the grievor's hand and attempted to hold on'~t'o it.' ~ The' two men struggled, and eventually Mr. Dumas pinned the grievor to the stairs. Ms. Patricia Pierre, hearing the commotion, went to' investigate'and could clearly' see the g~iev0r Pinned down 6n the stairs holding'{~ ~,'nif~ Mr. Dumas cried out'for someone to c I the'polici~, ~nd someone else came and took the knife from th;9 griev0r, s ha'n&' A~l~er it aPPeared that~h(~ grievor was subdued, M~.:~'Um~;s released him. Shortly:'thereafter ~the police arrived and took 'the grievo~ away.' " One of the police 'officers whO' ~e~p0nded was Officer JoSeph Ol'szevski who testified in these proceedings. He took possession of a small folding pocket kr~ife, i(:Je~:ti~ied' as b(Jl°nging to'the grievor, ~nd 'also tooE'the gdevor into cUs~°dy'. V~hen extended, the knife blade was approximately'?_ .1/2 inches long. 'According' t'o Officer Olszevski, although int'oxicated, the grievor cooperated With him When'placed under arrest'. ' in 'addit~ion~ tO ~h'~ e~ents 6otlined "'; ' above, the empioy6r' als~ ~elied, in s. upport of the discl~arge, 'on 'evidende indicating, in the employer's · sub~nisSion, that t'h'e'griev'~ was responsible for' two thefts. It'"was determined mid-evening, and prior'to the altercation 'involving the grievor, 'that'two purses Were missing. Th~ pa~ties agreed 't.hat it woUid.'not be necessary to 'call the two Women Wl~0;~had their 'l~urses s"tolen 'to testify tha~ ~money was missing 'a'ft~r the purses were found 5y'a' member of manageme~,'k4r. Clem Pinto,~-and another employee', wh° conducted a search for '~he PurS% outside df the Hall. 'One of tl~e purses had contained a substantial arr{'0Un~ of American money~ On his Way back from finding the purses, Mr.'Pinto'observed the gr-i'evor' being held down on the stairs by Mr. Dumas. He could also see, and later took possession of, what he took to be the grievor'.s knife. The Ui~ion's Case The gdevor testified on his own behalf, and claimed the protection of the Canada Evidence Act for each question asked and each answer given. According to the grievor, approximately ten days prior to the events outlined in this award he was robbed by 'some teenagers who smashed him in the face with a skateboard. As a result of this assault, the grievor lost two front teeth and required 'seventeen stitches. He was also put on various medications to assist him with pain. The grievor told the Board that his pain ,was significant and, as a result of it, he decided not to go into work on Thursday, November 21, 1991. instead, first thing that morning, the grievor, who is an alcoholic, took some pain killers and then began drinking. He consumed approximately twelve beers by noon. He then began to hit the bars, and had at least twelve more beers that afternoon. This was not entirely unusual as the grievor would frequently drink twelve beers in the morning and more in the afternoon. Indeed, he testified that he often did so on the job. On November 21st, however, the drinking was combined with drugs. Eventually, the grievor made his way to Ulster Hall, where he testified he spent the evening drinking and gambling. He arrived with more than $100, and over the course of the evening, both won and lost, eventually, he testified, breaking even. At some point during the evening, the grievor became aware that Mr. Dumas was following him; he did not understand the reason for him doing so, and did not like it. The grievor could recall having a profane conversation with Mr. Williams, and testified that the two men regularly spoke to each other in a profane fashion. In',any event,.lvlr.'Dum'as then asked him to leave, and would not ailbw i~im to remain behin~i to await the'outcome bf'the ".50-50" draw.' I~s~adi' M~. t~umas'es'corte'd him'to the stair's and,"Completely ~ unprovo~.ed,' i~Unch~ci him ih the head.' 'While the gri~v°r does car~y a Pocket knife to assist him at work,' he did ~ot'open his I~if'e"°n Nbvember 21st, " explaining that he cOUld do[ do so beca'use he has. bad'nails. Eater. that :' e~ening", the 9rievor 'was a'rre~e~ll' it was his knife tha't' was given' to the police" office~[ He eventually Plea:deal g~Jil;~y to common assault, was · sentenced to thirty hours'of community work, 'and one year's probation. The grievor was asked' a number of questions about his recollection of events. In bribf," f. he grievor remembered'very little' about what took place. 'He was, he t~stified, completely stoned. 'He.remembered a'lady screaming that her purse"h'ad been stolen; the grievo'r, however, thought that this was · 6ne of ;d~e skits' paYt of the evening's entertainmer{t", and so laughed. At · :' no point, did he steal any money, 'nor~:ould he~'tecail ever going into the cloak~o°m. Why would he do so, he asked? After all, I~e' was already wearing his coat. He received-so'me"American· money ih change when he went to purchase some chips. AcCording to th~ grievor, he' received. this money from k4r. Pin~°:'who, for some reason, has always had it in fbr him. Indeed, the grief;or testified that both Messrs. Pinto and' Dumas were lying When they , gave-evidenc'e in ~hese Proceeding~J SPecifically, Mr. 'Pinto; wh0'denied ever ma~ing~(~hange, and ~iving the grievor'American mc~ey, was not telling the 'truth. 'Mr. DUmas· was' lyingl 'the grievor testified, when 'he said that the g~ievor assaulted him instead of admitting that he, Mr: Dumas, had hit the grievo¢ first. Moreover, the'two Piette witnesses were'also Lintruthful. The grievor testified that he only left the Hall once, to go and-buy some cigarettes and film. In the aftermath of these events the grievor completed a program put on by Concern, a substance abuse agency. As part of that program, the grievor understands some of the underlying problems that led to his substance abuse. He received an 87% on his final exam. From time to time, the grievor attends AA meetings, but testified that he has not found this type of activity helpful. Recently the grievor has been working for a family friend, and a reference letter was introduced into evidence. The grievor testified that he is sorry that everything happened explaining that he was "in the wrong place at the wrong time." The grievor testified that he has learned from his mistake. Mr. Paul Weitzell testified as a union witness under subpoena. Mr. Weitzeli knew the gri'evor and, from time to time, socialized with him. He knew the grievor was intoxicated on November ?_1st, and spent some time with him over the course of the evening. His real involvement in this affair came when he accompanied Mr. Pinto outside to search for the missing purses, which were successfully found. On his way back into the Hall, he came across the grievor and Mr. Dumas in the throes of a fight. While Mr. Weitzell had a somewhat different version of events as to where the two men were in the stairway at certain relevant times, given the passage of time, we attach no relevance to some immaterial contradictions in Mr. Weitzell's account as compared to that of Mr. Dumas. What is important for our purposes is that ~lr. Weitzell testified that after the grievor was restrained, a process that Mr. Weitzell assisted with, he dropped a closed pocket knife which Mr. Weitzell secured and which was later turned over to the authorities. The evidence having been completed, the matter turned to argumeni:~'. Employer-Argument .... in the emPi0yor's submission,'it' had more than established just cause for discharge in thi~ case. 'Ve* simPly, ~he e~'p~6~er t~ok the po~itioh~ that the evidence established that the.~devor ha0 stolen two purses, and had also at~cked a member o~ mana0emen~ With a knife. in these ~ircUmStances, which counsoi revlewod in somo the empl0ye~~ was entitled to diScharfle an employee, and urfled th~' ~oard to uphold that discharge. E~ploger counsel alsO'attired, in support bf this Submi~si°fi, th~a~ the ~rievor was not a believ'abl'0~ witness. "c0~nsel noted that that ;riev°r's memo~ was SeleCtiVe,- to 'say the'iea~, an0'he contr~te0 the evidence with t'hat of all the witnesses' called to testify on gehaff of the employer. ~either ~iette witness, counse. I pointed out, had any interest this matter one way 0~~ r~ B~her, and counsel su~flested that b~th of these Y'cr lhe s~me could also be said witnesses were completel edi i. ": respect to Messrs. Dumas and ~into. Counsel note~ that ~hey ~testi~ie strai~ht~'om'ard and c~edible.fashion, and argued tfiat their" ~ evidence should ~e be[ievbd beCause it'was ~he truth. Counsel' also took the position ~hat ~here were no mitiOatin~ factors 6f any real Si~n'ificanCe in this case, and that K would not, therefore, b0 'an'appropriate one for the 8oard to exercise its judsdicUon to reinstate tho ~rievor, evefi~'°~' std~t' terms. conclusion, and for the fore~oin~ reasons, counsel asked that the ~doVance In the union's submission, some discipline might have' been ~appropdate in this case, but discharge was clearly an excessive response. Mr. Carnovale pointed out that the evidence of theft was circumstantial at best and failed to meet the "clear and convincing" standard required in cases of this kind. The fact of the matter was that no one ever saw the grievor steal a purse, and there was nothing tying the grievor to those thefts. A person, Mr. Carnova~e argued, should not lose their job because they happened to prefer wearing their winter coat. With respect to the evidence of the alleged assault, Mr. Carnovale noted that there were a number of contrac~ictions in the evidence, and these contradictions, re~ating in large part to what happened on the stairs, erodecl the employer's case because the type of probative evidence necessary to support a discharge was absent. Mr. Carnovale emphasized that what little evidence there was about the presence of'~ knife indicated that it was closed, and this was another important fact for the Board to bear in mind. The union also took the position that the grievor's evidence was entirely credible. It was true enough that there were gaps in his memory. These gaps could, however, be explained by the fact that he was very intoxicated on the evening in question having consumed more than a case of beer, several mixed drinks, and some prescription drugs. What was surprising, in these circumstances, was that the grievor remembered anything at all, and the fact that he.could not recollect some things should hardly, Mr. Carnovale argued, be held against him. It was also the union's submission that there were a number of mitigating factors present in this case supporting reinstatement of the grievor. Carnovale noted that the grievor was a long-service employee with a good record. The grievor had made a number of efforts to deal with his alc'ohol ,problem, ~and to get.his life back in order. The consequences of discharge to the grievor were extremely serious. There was no chance, the union argued, of any of the events outlined in this award reoccurring given that the -. ;*. ,i . ~' ,~, - . grievor now had his..a,!cohol prob!em under control. While some discipline may have been. appropriate, discharge, the union argued, was excessive, and · gr..Carnovale u.rged the Board to give the grievor a se.cond chance by :"~ ~_ . .. . ,,.,.. ; reinstating him to en~Ployment subject ~o'whatever strict conditions.the Board might consider fit.to impo, se. Decision · 2 ~ '~ ' Having .carefully consi~.~[._ed the eyide~ce and arguments i.n this proceeding, we are of the view that the grievance should be dismissed. In our view, th..e evid.epce _clearly and_.cogently est.ablishes that the grievor was resPonsibl,e fo.r the theft .of the two purses on November 21, ~ 991, and proves, without any dqubt whatsoever,.that h~ pulled a knife on Mr. Dumas, , , _~., .". '.' ,~ ~ · .~ ~ .' threatened him,-and assaulted him. in these circumstances, we can only find. that.the employer did have ju.s~t cause to terminate. '-While'~o~e of the evidence .relating .to the theft~ of the two,purses is circumstantia. I, considered as a whole, that evidence leaves us with little doubt about the fact that the grievor did take the two purses, His behaviour, particularly with respect 'to his winte? coati,his .com, ings.a.nd goings.from, the.. · .. cloakroom, and the fact that at ~ertain points he did not have money to spend but at other poi,nts was.again flush, admits of no other explanation and .satisfies us .that re.s, ponsibi!.itY..for,., those thefts is appropriateiy attributed to him: We can think of no other rational explanation for the . grievor's activities other tha'n ,direct involvement in those two thefts. Even if we had any doubt about the grievor's responsibility for the thefts, we would have still upheld the dicharge because of the grievor's assault on Mr. Dumas. The evidence of that assault is not, as is the case with the thefts, circumstantial. In contrast, that evidence is direct. We find that the grievor not only threatened to assault Mr. Dumas, he did assault Mr. Dumas, and he pulled a knife on him in that process. It is not entirely clear whether the knife blade was exposed or nOt. Certainly, the state of the knife does not concern us. What is material in this proceeding is that the grievor, upon being asked to leave by a member of management, pulled a knife on that person and assaulted him. In these circumstances, one can only conclude that the employer acted with just cause in discharging the grievor. When the thefts and assault are considered together, this conclusion i~ only reinforced, As noted in the body of the award, there was some contradictory testimony during these proceedings with respect to What exactly occurred in the stairwell when the grievor and Mr. Dumas were embroiled in their fight, in our view, none of these contradictions in accounts, given many years after the event took place, are at all material to the disposition of' this case. What matters, again as noted above, is the fact that the grievor did have a knife and used it in his assault of Mr. Dumas. It is conceivable that in some circumstanc'es a case like this might result in the reinstatement of a grievor on strict terms. Certainly, to have done so in this case we would have required a frank admission of responsibility on the part of the grievor for the thefts, instead of his categorical denial, as well as an admission of responsibility for the assault on Mr. Dumas, instead of his claim that it was Mr. Dumas who initiated the attack. On the · whole, we flrid';':;~hat'the'~'grie'vor did have a.' Very Selective recollection of event.~/' " '~'::' '~'~" ' "':' ' ' In contrast; the~wil~n~sSe~ called I~y'the'-~ml~loyer w~e cOmPletely credible.,. Neither piette witnesS:'had, any reason tO' lie, an~l '~Very r~ason't~o tell the truth..The 'other witnesses presented by'manag~mer~t were also Credible. It shOuld be note~"that a r~umbe'~'of Written st~ateme~ts Were'taken 'after these events. The statements of the'witnesses who testified' on behalf of the employer were .consistent with the evidence given in this proceeding. The ) grievor did no't sign 'a sl~atem~nt, 's° it Would not be i~roper'to 'solely rely on management's notes of its interview with the grievor to impeach, his credibility, although 'those notes do indicate that the griey, or presented a somewhat Afferent version of events to the 'employer in-the aftermath of this incident than that he testified before the Boar_d.. Obv_iously, the passage of time could have much to do with this. However, what was particularly noteworthy to us was the grievor's denial'of+ some things, his inability to remember certain things, his reco!lection of othe~s, .. with crystal 'Clarity, and his position that ali of'the wi~tn.e, sses .who testified on behalf of the employer were lying and that he alone was telling the truth. At the end of the day, we have reached the opposite conclusion. A number of other mitigating factors' which might have assisted the grievor, and convinced us to exercise our discretion and reinstate him on strict terms, would have been some more substantial evidence of his attempts to deal with the underlying problem that led to the events outlined in this award. The evidence which was presented was neither conclusive nor persuasive. The remaining mitigating factors are simply insufficient,, when considered in the ,context of the grievor's activities and his evidence in these proceedings, to warrant the discharge being set aside. Moreover, while there was some evidence that the grievor could be reinte§rated into the workplace, Mr. Pinto, his former supervisor testified that he was afraid of the grievor.. N1r. Pinto did, however, feel 'that he could, in the event of reinstatement, reestablish an appropriate supervisor-employee relationship. Nevertheless, this evidence, when considered in the context of .the entire case, is insufficient to merit reinstatement. Accordingly, and for the foregoing reasons, the grievance is dismissed. DATED at Toronto this z4th day of AUgust, 1995. William Kaplan Vice-Chairperson E. Seymour Member R. Scott Niember