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HomeMy WebLinkAbout1992-0692.Cheeseman et al.94-07-29 !~. ( " 6 ~'" ONTARIO EMPLOYES DE LA COURONNE "~p- " CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE ~ \ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU ?100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416.) 326-1396 692/92, 735/92 IN THE HATTER OF AN ARBITRATION Under l THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Cheeseman et al) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: A. Barrett Vice-Chairperson J. Carruthers Member M Milich Member FOR THE R Anand UNION Counsel Scott & Aylen Barristers & Solicitors i FOR THE M. Mously EMPLOYER Grievance Aministration Officer Ministry of Correctional Services / ' ') \ , HEARING January 6, 1994 March 21 & 30, 1994 May 13 & 16, 1994 --- \ f (;:"" I ,. .~)t~~ DECISION .' This is a discipline grievance Mr Cheeseman is a caucasian ( Correctional Officer who was suspended without pay for Fen days in ~ November, 1991, for directing racial slurs to a fellow black Correctional Officer at Maplehurst Correctiona~ Centre It is the position of the grievor that no racial slurs were made Tf we find J that racial slurs were made, as' alleged, the union takes the position that the penalty should stand It was acknowledged by all witnesses and both counseJ.r that the employer'S policy of zero toleranci of racial harassment in the workplace is a commendable one and that racial comments create a poisoned work environment and must not be tolerated. Mr Cheeseman and Mr. Hope, the black officer, were working together with a casual Correctional Officer, Ms Angela Thomson, I on the Special Needs Unit on the night of November 3, 1991 Mr Hope and Mr Cheeseman had words because Mt Cheeseman felt Mr Hope was neglecting his duties. He kept leaving the unit, and Mr Cheeseman !had rO have him paged at least twice to get him back to attend to incoming inmates There was name-calling and obscene language on both sides, but the discipline imposed was in no way connected__with the obscene language; just the alleged racial slurs Although Ms. Thomson was in the general area when the heated argument occurred, she heard obscenities but did not hear racial slurs There were no other witnesses to the argument ~.......~. ( ( / f ) 2 '.., ;: Mr. Featherstone, the Deputy Superintendent who conducted the disciplinary hearin9, might have had a difficult time determining who was telling the truth about what words were said in the argument if there had not been support for Mr Hope's allegation , - from two witnesses who allegedly overheard Mr Cheeseman confessing ! \ to making the racial comments later that evening \ l Mr Franklin, a Security Officer, WaS assigned to investigate the incident after it was reported by Mr Hope on November, 6, 1991 He interviewed Mr. w~yne Moody, another Correctional Officer, and asked him: "Did someone tell you Mr. R Cheeseman called Mr. L Hope a 'niger' (sic)?"~In reply, Mr Moody stated "Yes, Mr R Cheeseman He appeared very upset when I entered S N.U on that \ evening. Mr. R Cheeseman stated he had told Mr L Hope he was the , same colour as shit' and was a 'lazy niger' (sic) Mr R Cheeseman went on to say he was so angry he wanted to hit Mr L Hope I talked to Mr R. Cheeseman and settled him down " When Ms. Thomson was interviewed by Mr Franklin, she said "I heard Mr R. Cheeseman call him a 'piece ,of shit', but did not '. hear him say he was the 'same colour'.. Mr. L. Hope called Mr R Cheeseman a 'fucking asshole' \They were really angry at each other; I thought it would corne to blows "When asked if she had heard Mr. Cheeseman call Mr Hope a nigger, she replied that she had not. When asked what action she had taken afterwards, she rt replied "Nothing, I did not say anything to anyone I did overhear Mr R Cheeseman tell someone, I think Mr P Hugo or Mr W Moody \ - - - I 0.. , (".. I ~~ .,' 3 ...?".. I ~. but cannot remember for sure who, that he had called Mr L Hope a 'piece of shit' and that he was the 'same colour' " / ( 'At his discipline hearing Mr Cheeseman denied making the racial remarks, but when Mr Moody's statement was read to him for a second time he responded: "At no time did I use the word (niger) (sic) to Mr Hope I could have expressed it to Mr Moody when I was talking to him." \ f During the discipline hearing, Mr Cheeseman's union representative asked that Mr Moody be called into the meeting to explain his statement. Mr Moody attempted to resile from his statement, in part. When asked at the meeting about his conversation with Mr Cheeseman, he said "Yes, I spoke to Mr. Cheeseman However I do not remember putting in the statement that Mr Cheeseman called him the same colour of shit I guess I did not read this before I signed it. Mr Cheeseman never mentioned to me that he called Mr Hope a piece of shit and the same colour " When asked if Mr. Cheeseman had called Mr Hope a nigger, Mr Moody ( responded: "Somewhat along those lines that he said to me Mr Hope is lazy and expressed his opinion that he was a lazy niger (sic). He did not say that he specifically called Mr Hope a lazy niger (sic) /I After hearing all of the evidence and reading all of the , witness statements, Mr Featherstone concluded that Mr Cheeseman " "l .- I ( ~ I 4 I I I was guilty of the offence, and wrote him the following disciplinary letter \ \ "November 29, 1991 Mr R Cheeseman 421 Woodward Avenue Milton, Ontario L9T 1V6 Dear Mr Cheeseman This will confirm our meeting of Tuesday, November 28, 1991 The purpose of the meeting was to inquire into tbe allegation '()n November 3, 1991, you directed racial slurs towards Mr. L. Hope, Correctional Officer. ' In attendance at the meeting were Mr. J Addison (your representative), Mr P McNabb, Senior Assistant Superintendent, yourself and the writer At the outset, I read my letter dated November 19, 1991, which advised you df the meeting on November 28, 1991 In addition, the statements of Mr L Hope, yourself, Ms A Thomas ( sic) , Mr. D Morgan and Mr W. Moody were read II Dur ing the meeting you had requested Mr. Moody to be present and to explain his statement He was allowed at that time to explain his signed statement During the meet~ng you were questioned if you had made racial slurs towards Mr Hope You stated that you had not, however, you did admit to the use of racial comments about Mr Hope during a conversation with Mr Moody This was confirmed by Mr Moody. Having received all the reports, the witness statements and upon hearing testimony from yourself and Mr Moody, I have concluded that the allegation is substantiated I must impress upon you that it is the policy of the Ontario Government, the Ministry of Correctional Services and this institution that harassment of any type, will not be tolerated There is no room in the workplace of the '90s for discriminatory behaviour, either in the fashion of direct comments to an individual or to a third party Racial comments create a :poisoned work environment' . This will not be tolerated. ( (' ~.. ;"'f,," , '~7 5 ,-- In addition, I have reviewed your employment file and ( have found that you were previously disciplined (removed from duty without pay for olle day) for a similar case in using inappropriate language and phrases towards a superior As a result of your actions, I am imposing a penalty of removal from duty without pay for ten (10) days (a total of 80 hours) You will serve your removal from duty immediately following your return to duty from W C B \ In addition, this letter will constitute a final warning Any further incidents will result in your dismissal Yours truly, J.W Featherstone Deputy Superintendent Maplehurst Correctional Centre" ) -..... Mr. Featherstone testified at the hearing and said that he believed Mr. Moody I s original statement and did not bel1ieve his r partial retraction at the discipline hearing More startling developments occurred a week or two later when Mr Moody telephoned the Superintendent, Mr Commeford, and followed up his telephone call with a letter dated December 16, 1991, claiming that the statement submitted by Mr Franklin was not correct and that it had been altered by Mr Franklin He stated ( that he h~d not heard Mr. Cheeseman say: "You're a piece of shit and you have the colour to back it up II He also accused Mr Franklin of unprofessional conduct in releasing confidential information pertaining to the Cheeseman investigation Then in January"1992J Mr Moody filed grievances with respect to both of these complaints about Mr Franklin In a March, 1992, grievance .-! I ( (..,' I 6 ""t.~ meeting he finally alleged that his signature on the statement had been forged! r ( Now the Ministry launched a full scale investigation into this alle,gation and went so far as to have Mr Moody's signature examined by a forensic handwriting examiner who found that it was his signature. In March, 1993, Mr Moody was dismissed from his employment for making a false accusation against a manager of the Maplehurst Correctional Centre and for providing false and misleading information to a Ministry inspector At this point Mr Moody had finally admitted that his allegations against Mr Franklin were false, and that he had attempted to resile from his \ statement because of pressure from Mr Cheeseman and another " officer whom he thought were trying to have him deposed as a union executive Next Mr. Moody grieved his dismissal and after negotiations ,during the grievance process, he was returned to work at another correctional institution subject to a lengthy suspension and subject to him providing Mr. Franklin with a letter of apology Mr Moody was summonsed to the hearing in this matter by the r employer and testified that he could not recall the specifics of his talk with Mr. Cheeseman; only that Mr Cheeseman was angry and voicing opinions about Mr. Hope in a derogatory manner He di'd say, however, that he had given a statement to Mr Franklin and told him what he knew. I "- -. (" \ ~ 7 In another surprising development at the hearing, Ms Angela Thomson resiled from part of her statement given to Mr Franklin She testified that she did not say to Mr Franklin "I did overhear Mr R Cheeseman tell someone, I think Mr P Hugo or Mr \w Moody ( but cannot rememQer for sure who, that he had called Mr L Hope a 'piece of shit' and that he was the 'same colour'" Ms Thomson testified that not only did she not say this to Mr Franklin, but that it was not in her statement when she signed it in November, 1991 Mr Hope's credibility was seriously challenged at the /said ) hearing In his statement to. Mr Franklin, he that Mr Cheeseman "called me a '_piece of shit' and said I was the 'same colour' ,; , and he also called me a "lazy niger (sic)" In his testimony at the hearing, he embellished these statements somewhat by'saying that the words spoken were "you smell like shit, all you guys you niggers smell like shit", in addition to the comment about being the same colour as shit Mr. Hope was also confused about whether the argument had taken place before or after he was twice paged to return to the unit Mr Hope was challenged about why he l had waited three gays to report the incident and why he had not reported it to a supervisor on duty the very night it happened Mr I Hope explained that he did not report the incident immediateJ,.y because he wanted to consider his response and consult the Human Rights Commission the next day, which he did. On the second day after the incident, he consulted his union representative (Mr ... . ( L 8 ,;.;f'~ Moody) who made an appointment for him to see Mr Commeford the ) following day In cross-examination Mr Hope was asked if he had I ever been involved in a wrestling incident with I a fellow Correctional Officer, Mr Romus, and he denied it Mr Romus wa's then called to give evidence and testified about a wrestling incident with Mr Hope in 1991 Several Correctional Officers, including Mr Cheeseman, Ms \ \ Thomson, Mr. Romus, Mr Bergin and a Shift Supervisor, Mr Morgan, testified that Mr Hdpe had a "chip on his shoulderi. about racial J issues and that he treats black inmates better than white 'inmates He is said to be very race conscious and very outspoken about race Witnesses said that they would have expected him to react immediately and aggressively if faced with a racial slur, although it was acknowledged that he sometimes responds to aggravation by becoming sullen and quiet The Shift Supervisor, Mr Morgan, saw Mr Hope about an hour after tWe argument and found him to be in a fairly cheerful mood, making no mention of any racial slurs \ Witnesses testified that Mr. Hope spent an inordinate amount of time on the telephone during working hours and that he evaded duties \if someone else was around to take up the slack Mr Hope denied both of these allegations and testified that he has never been accused of not doing his job, even though that is what the I argument was all about i ( ~~-.r:-"""''''''~;''h~' (~~ 9 ( Mr Cheeseman characterized himself as a non-racist and asserted that the word nigger is not in his vocabulary The other Correctional Officers who testified described him as a good officer~ even-handed, very professional an~ not th~ type of person to utter racial slurs to or about a visible minority That evidence of course is contradicted by his admission that he may have used the word nigger in his conversation with Mr Moody Of his conversation with Mr Moody, Mr Cheeseman testified that Correctional Officer Hugo was present as well for the entire conyersat~on He testified that Mr. Hugo mentioned the argument to him and suggested that Mr Cheeseman and Mr Hope should go outside and settle the argument like men Mr Cheeseman said he replied that that would be nice but you could get in trouble and lose your job doing something like that )He testified that he never said the word nigger or talked about Mr Hope smelling or looking like shit or being the sarne colour as shit in that conversation This was the first mention of Mr Hugo f s presence during the conversation Surprisingly Mr. Hugo was not called to testify about what he heard said in the conversation. Mr Cheeseman testified that no one had ever asked him before about Mr Hugo and that is why he had not mentioned him. He also said that since his discipline hearing he ~ has not discussed the matter with Mr Hugo and that he has never suggested to him that he come forward and testify ! ( It is obvious that we as a Board have received different evidence than that relied upon by Mr Fbatherstone when he made his , (" 10 \ / decision to discipline ~he grievor for making racial slurs It is therefore important for us to clearly comprehend our role in reviewing management's decision We must be guided by the Ontario Court of Appeal which discussed our role and jurisdiction in The Queen in riqht of Qntario represented by the Ministry of Conununity . . and Social Services et al. v. Ontario Public Service Employees' Union [1992) 11 0 R (3d) 558 At page 567 of that decision, the ) Court said ) " ~he task of the Board was to determine if the Ministry had just cause to dismiss the grievor It was not its function to consider whether the facts of the case, as found by the Board, would have been a reasonable basis for the Ministry discharging the grievor when the Ministry had proceeded on Superintendent Renwick's findings of much graver misconduct In performing its duties under ss 18 and 19 (1) of the Act, the Board should not have looked at the issue of just cause de novo It should have determined whether the facts relied upon by the Ministry were established in the evidence before the Board, and as established, constituted just cause for the action of the Ministry in discharging the grievor .. The Court described a two-stage process of reviewing a management decision to discipline First the Board must make a determination whether just cause for (discipline) exists. Then if just cause is C found we must determine if the penalty was excessive In our case the penalty is not in issue and we must simply determine whether just cause for discipline existed at the time management made its decision Furth~rmore where serious br reprehensible misconduct is alleged, arbitration boards generally require that the allegations ./ ( ~ ~ 11 be established on the balance of probabilities by clear and cogent ) evidence (Kulmatyckv, GSB #418/84 (Verity)) In the Kulmatycky \ ) case, as in this case, credibility determinations are crucial In attempting to assess credibility, we are guided by the oft-quoted I \ passage in Faryna v. Chorny [1952] 2 D L R 354 (B C C A ), at page 356 "The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely ! by the test of whether the personal demeanour of the particular witness carried conviction of the truth The test must reasonably subject his story to an examination II of its consistency with the probabilities that surround the currently existing conditions. In shore, the real test of the truth of the story of a witness in such a case must be its harmony with the pr~ponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place a~d in those conditions Only thus c~n a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and or long and successful experience in combining skilful (sic) exaggeration with partial suppression of the truth Again a witness may testify \ what he sincerely believes mistaken For a trial Judge to say 'I believe him because I judge him to be telling the truth', is to. come to a conclusion on consideration of only half the problem. In truth it may easily be self- direction of a dangerous kind." Our first finding of fact is that we do not believe Mr. Franklin altered, amended or forged the original statements he took from Mr )Moody or Ms Thomson He was fully exonerated in the investigation that followed the Moody allegation, and in fact Mr Moody admitted that he had falsified his charge against Mr Franklin No motive was ever hinted at as to whyMr Franklin would conduct anything other than a straightforward investigation Ms Thomson's statement about over-hearing Mr Cheeseman's confession ~ \ ,_-...."CTry., ( ( ( ~ 12 to Mr Moody was made one day before Mr Moody told Mr Franklin the same thing At the hearing we caretully examined the original statement signed by Ms Thomson, and the impugned sentence is I perfectly aligned with the rest of the text M:t Franklin testified - \ as to the manner in which he conducted the interviews with questions written out in advance and answers recorded verbatim Each witness was asked to read the later typewritten version carefully and make any amendments before signing Ms Thomson - testified that she read her statement twice and made one amendment before signing it We simply do not believe that Mr Franklin kurreptitiously added in a fabricated sentence after Ms Thomson signed the statement Put another way, we believe Ms Thomson _made the statement to Mr Franklin and that it was true Further corroboration for the truth of Ms Thomson 1 s statement is the fact that one day later Mr Moody told Mr Franklin the same thing, yet Ms. Thomson said that she 'did not ~ay anything to " anyone' after th~ incident The remark about Mr Hope being the " " same colour as shit is not something two people could separately fabricate. Nor is there any reason on the evidence why these two people would want to harm Mr Cheeseman When the conversation took place between Mr Cheeseman and Mr Moody, Mr Hope had not yet \ told anyone about the 'colour of shit' remark So how cou ld Ms Thomson and Mr. Moody know that that is what the allegation would , \ \ 1 be? I ( ( . I 13 ,-\.lj;' I ~ With respect to Mr Cheeseman's credibility, we find it impossib~e to believe that Mr Hugo was present during the I conversation with Mr Moody and could corroborate the version of I I the conversation given by Mr Cheeseman at the hearing If so, he \ would have been summonsed to testify by the union, for his evidence would have been pivotal Even if Mr Hugo had corroborated Mr Cheeseman's version of the conversation, we would still have been left wondering where Mr Moody and Ms Thomson dreamed up the 'colour of- shit' remark Furthermore, although Mr Hugo did not testify at the hearing we received some hearsay evidence from him in the form of a statement made by him to the investigator in the Moody/forgery investigation He was asked "What do you know about the situation between Mr. Wayne Moody and Mr Cheeseman?" He replied: "All I know is that they are not getting along well now Mr Cheeseman has made a statement what had happened concerning Mr. Layton Hope and himself Mr. Cheeseman had apparently spoken to Mr Moody about what had happened. Mr Moody told Mr Commeford what Mr Cheeseman had told him " That do"es not sound to us like a man who was present during the Cheeseman-Moody conversation Mr Hope was not the most forthright witness at the hearing. He exaggerated the remarks made by Mr Cheeseman to include a reference to all niggers smelling like shit He denied he spends a lot of time on the telephone when all other witnesses said he did. He denied giving preferential treatment to black inmates, although it appears that he does The chip on his shoulder was evident Nevertheless, we do not think he made up the racial slurs 7 ; I , - I {~~;t. ( :- 14 I I We did not find Mr. Moody a credible witness when he claimed \ at the 'hearing that he could not recall the specffics of his conversation with Mr Cheeseman That conversation and. his reports of it have haunt~d his career ever since We did nqt allow employer counsel to cross-examine his own witness when Mr Moody claimed amnesia, but this does not mean that we cannot give weight to Mr Franklin's evidence as to what Mr Moody said during the investigation It is hearsay evidence, but with respect to this witness we think it is the best evidence of what he witnessed In result, we find that Mr_ Cheeseman called Mr Hope a nigger and made a remark about him being the same colour as shit We find corroboration for Mr Hope's allegation in the confession made by \ Mr Cheeseman to Mr Moody, in the presence ofMs Thomson. We think the employer correctly relied on, the statements of Ms J Thomson and Mr. Moody in finding that the racial slurs were made ~ I / 1 ( ( '\ (' J ~ \. .. I: C \~~,~)i \ . 15 There was just cause for discipline The penalty is not in dispute Therefore the grievance is dismissed ( \ Dated at Toronto this 29th day of July, 1994 L~- . ) .._~ - ,-- . A Barrett, Vice-Chairperso~ I Dissent (Dissent to follow) --r-'--- ) J Carruthers, Member LLf~LtY M Milich, Member N ,! J .., , / (