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HomeMy WebLinkAbout1994-1300UPSHAW95_09_17 ONTARIO EMPLOYES DE LA COURONNE /, CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE , 11111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G 1Z8 FACSIMILE /TELE:COPfE (416) 326-1396 GSB # 1300/94 OPSEU # 94G140 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Upshaw) Grievor - and - The Crown in Right of ontario (Management Board Secretariat) Employer BEFORE B Kirkwood Vice-Chairperson FOR THE C DiFranscesco GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 5, 1995 /,t Page 2 DECISION The grievor received a three day suspension for his actions in an incident occurring on October 13, 1994, in which the employer found that he had instigated a physical altercation and inflicted serious injury on another employee by striking an employee several times in the head and abdominal area, actlons for which the griever showed no remorse. The employer asserted that it was a serious breach of conduct expected in the workplace and submitted that in all the circumstances a three day penalty was appropriate. The union claimed that the employer did not prove on the balance of probabilities that the incident happened as alleged. The union conceded that there was some physical contact, but not the degree of severity as alleged by the employer. The union submitted that there was no just cause to suspend the grievor for three days and that at most the grievor ought to receive a letter of reprimand. The board heard evidence from Jack Werdekker, and Abdul Quadir on behalf of the employer, and from the grievor, on behalf of the union. The stories were not consistent in all aspects. Mr. Werdekker is a project Director for the Ontario Realty Corporation He testified that on April 13, 1994 he was sitting in one of the cubicles at the Queen's Park Property Management Office, having just had his lunch. He was not aware that there was anyone else present. The grievor entered, and Mr. Werdekker said "Hi Boy, how's it going?" The grievor mumbled something which Mr. Werdekker could not understand. Mr. Werdekker on cross- examination admitted that he laughed. Before he knew it, the grievor hit him three times on the head, and twice in the rib area. It knocked him down and winded him. He asked him why he had done it to him. Mr. Werdekker said that he got up and moved t Page 3 to the opposite cubicle Five minutes later when he was able to walk again, he left the office He said that he did not report the incident. He wanted the incident to blow over. He was afraid of the repercussions from the incident, and that his use of the word llBoyll might cause problems in an investigation. The grievor was employed with the Ontario Realty Corporation, Management Board, Property Division in Toronto, as a truck driver He testified that on April 13, 1994, he was delivering mail to the Queen's Park Property Management Office, and as usual, as he entered the office, called out I hello' . He did not see anyone and put down his bag by one of the desks He testified that Mr. Werdekker came up from behind him and slapped him on the back and said llHi Boy, how are you doing?" He turned around, knocking Mr Werdekker off balance. He told Mr. Werdekker not to call him not to call him llBoy" In response to Mr Werdekker's comment, he said that they were not friends He helped Mr. Werdekker up and left The grievor testified that Mr Werdekker had called him llBoy" three of four times before and he had told him not to do so The grievor said that as he did not feel that this incident was major, he did not report it to his supervisor He felt the matter was over. Mr Quadir testified that he was in the area, but in his cubicle. He saw the grievor come in to deliver the mail Mr Werdekker was standing by the corridor in the inspector's office. Mr Quadir saw Mr. Werdekker with his arms in a boxing-like like stance. Mr Quadir took a telephone call and while doing so, heard an argument. He stood up as he could not see over the partition and went to a co-worker's cubicle and saw Mr Werdekker bent over, and the grievor punching Mr. Werdekker in his side. Mr. Quadir went to answer another telephone call. By the time that he had completed his call, the grievor had left He asked Mr. Werdekker what had happened. Mr Werdekker told him that he had had said llHi Boy" to the grievor and did not know why the grievor hit him. Mr. Quadir reported the incident to the Operation Manager. t Page 4 The employer investigated upon learning of an incident. As a result of its investigation, Mr Werdekker was not disciplined for his involvement in the incident. He received a non-disciplinary letter of counselling and was instructed to attend a ministry run seminar on workplace discrimination and harassment. Mr. Werdekker never attended the seminar and testified that he had no intention of doing so. The employer suspended the grievor for his participation for three days and directed him to attend a seminar on dispute resolution. I heard no evidence as to whether the grievor attended the seminar that he was directed to attend The employer's counsel argued that Mr Werdekker gave his testimony in a forthright manner and ought to be believed Employer's counsel submitted that it had proved that the grievor instigated a serious situation and inflicted several blows to Mr Werdekker's head and ribs, although it was not clear whether there was provocation. However, he argued that even where it has been found that there was provocation, the board in Re Douglas Aircraft Co. of Canada Ltd and united Automobile Workers 2 LAC. (2d) 56 (Weiler) did not reduce a grievor's penalty for insubordination Employer's counsel argued that a three day penalty was not extreme in the circumstances and was commensurate with the penalty given in OPSEU(Johnson) G.S.B. 847/89 (Stewart) in whlch the board reduced the penalty of discharge to a three day suspension for a grievor harassing a female employee by striking the employee on the face. He argued that Mr. Werdekker's failure to go to the training course ought to have not effect on the grievor's penalty. Hitting a co-worker is a serious offence and the employer cannot countenance such behaviour. It has to ensure a safe workplace for all its employees Union's counsel argued that the circumstances did not warrant discipline, or alternatively, if the board were to find that some discipline were warranted, a letter of reprimand would be sufficient in light of Mr. Werdekker's provocation. Union's ,/ t Page 5 counsel argued that the grievor's evidence ought to be preferred Mr Werdekker was not forthright and there were inconsistencies in his evidence. Mr. Werdekker did not admit he was laughing in direct examination and denied he was standing when the grievor arrived. He argued that Mr. Werdekker was attempting to minimize his role thereby eroding his credibility. He argued that in the circumstances there was no just cause for the employer not to discipline Mr. Werdekker, but discipline the grievor. In this case I am of the view that neither Mr Werdekker nor the grievor were forthright in their recollection of the incident, but it is not a matter of accepting the evidence of one over the other in its entirety I must first determine, what, on the balance of probabilities, happened, before determining if there was just cause to suspend the grievor for three days With respect to the incident, I do not accept the attempt by the grievor to pass off his actions as knocking Mr. Werdekker down with his shoulder, notwithstanding the grievor's size, and nor do I accept the suggestion of Mr Werdekker that the grievor may have bruised his ribs. Mr Quadir's evidence where it differed from both Mr. Werdekker and the grievor's, was of assistance Mr. Quadir was confident that Mr. Werdekker was standing and not sitting when he first saw him and was not coming from the inspector's room. He saw him with hls arms raised. He also was emphatic that the grievor was not grabbing Mr Werdekker but was punching him. I accept Mr Quadir's evidence in its entirety. Mr Quadir had no direct involvement in the incident and has no interest in putting forward any particular position. The effect of accepting Mr. Quadir's evidence is that grievor's testimony that would have me believe that it was almost accidental that Mr Werdekker was knocked over, cannot be believed The context which the grievor gave to the incident also shed light on his reaction and supports my finding that the grievor did punch Mr. Werdekker and did not merely hit shoulders with him, knocking f page 6 him down and then helping him up The grievor said that Mr Werdekker had begun to call him names in the preceding month to the incident He had told him not to do so, but it had no effect At the same time another inspector had begun to call him "Sunshine" After taking up the issue with that inspector, the grievor received an apology from that inspector and said that inspector no longer calls him I Sunshine' . The grievor said that he felt that it was a conspiracy that both inspectors began calling him names around the same time. There was also another incident, which explains in part the grievor's reaction Another employee called him a "handicap" The grievor reported that incident to a supervisor, but his perception was that his complaint was not taken seriously. He was told that the offender was a "good guy". On the balance of probabilities, I accept the grievor's evidence that Mr. Werdekker had addressed the grievor by "Boy" several times in the four to six weeks prior to the incident, that Mr. Werdekker had been warned or told not to do so by the grievor, but had not heeded the warning. This finding is also consistent with Mr Werdekker's approach and views Mr Werdekker admitted that it was possible that he may have used the term previously, but claimed that he did not understand from the grievor that he had been told by the grievor not to do so on previous occasions. Mr Werdekker considered the use of the word "Boy" in this context as acceptable. Although Mr Werdekker said that he now recognizes that the use of the word "Boy" to the grievor who was black, "may" have been offensive, he admitted that he used the term frequently while in the company of many black co-employees, although he said he did not mean anything negative by it. In the context of the preceding occasions which Mr. Werdekker admitted that he it was possible that he called him "Boy", I find that the grievor was angry Mr Quadir heard an argument and his ,; t Page 7 actions were consistent with being angry. Management's failure to respond to the grievor's earlier complaint and Mr Werdekker's continued use of the word "Boy" accounts for the grievor becoming upset and deciding to resolve the issue himself In my view however, the grievor was not the instigator Mr. Werdekker was. I accept the grievor's opinion that the use of "Boy" was offensive to him. As the grievor stated, Mr. Werdekker was an inspector/director and he was a truck driver He was 53 years old, and not a young boy. The comment had implications of subservience to it. At best the comment was demeaning and undignified, and at worst it has negative racial connotations to it. Notwithstanding the negative comment, the comment does not merit the grievor's response, even though the assault was not a severe as Mr.Werdekker would have me believe. I do not find that he was sitting and Mr. Upshaw pounded him on the head. It was much more consistent that his arms were raised as seen by Mr Quadir. Mr. Quadir continued to respond to the telephone call and therefore the assault could not have been as serious as Mr Werdekker implied. Regardless of the severity of an assault, any assault in the work place is a serious breach of conduct and cannot be tolerated. A message has to be given by the employer that the maligned cannot go around and take matters into their own hands The grievor was able to resolve the "Sunshine" incidents with the offender to his satisfaction. Although he was successful with Mr. Werdekker who has not called him names again, he should have pursued the matter with his supervisor and should not have taken matters into his own hands. Therefore, I find that the employer had just cause to discipline the grievor The issue is then are whether a three day penalty is excessive in the circumstances. In light of the seriousness of an assault of an employee in the workplace by another employee, a three day penalty is in itself not an unreasonable penalty. However the f Page 8 penalty must be looked at in the context of the incident and the involvement of Mr Werdekker. I am critical of both Mr Werdekker and the grievor for not being forthright in the hearing As far as the grievor's penalty is concerned, the failure to be straight forward and truthful mitigates against any change in the penalty. The grievor also showed no remorse for what he had done The only mitigating factors to the grievor's penalty is the employer's assessment of the instigation of the incident and the employer's response to the incident Although the grievor's actions require a greater penalty than Mr. Werdekker's, the employer did not discipline Mr. Werdekker, but directed Mr. Werdekker, a co-worker to go to on a course on workplace Discrimination and Harassment Prevention, which Mr. Werdekker arrogantly viewed as unnecessary and which he has and had no intention to attend. Although the hearing was over a year since the incident, the employer has not insisted that Mr Werdekker attend. Although I am not here to address Mr. Werdekker's response, the employer's response is such that it did not treat Werdekker's actions seriously and in light of its response has treated the grievor unduly harshly. On the basis only that the employer found that the instigator of the incident was the grievor and not Mr. Werdekker and then did not treat its own decision with respect to Mr Werdekker's participation seriously, I hereby find the penalty excessive in the particular circumstances of this case and reduce the grievor's suspension to two days. Dated at North York, this 17th day of August, 1995. A 4 - w \,. Belinda Kirkwood, Vice-Chair