Loading...
HomeMy WebLinkAbout1995-1919GHOR97_06_17 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONfARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (41fS) 328-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (41fS) 328-139fS GSB # 1919/95 OPSEU # 95G274 IN THB MATTBR OF AN ARBITRATION Under THB CROWN BMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIBVANCE SETTLEMENT BOARD BB'l'WBBN OPSEU (Ghor) Grievor - and - the Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE R.H Abramsky vice-Chair FOR THE M. Keys GRIEVOR Grievance Officer Ontario Public Services Employees union FOR THE J. Zarudny EMPLOYER Law Officer Crown Law Office Civil Ministry of the Attorney General HEARING March 20, 21, 1997 April 30, 1997 r AWARD At issue IS whether the Employer, the Ministry of the Attorney General, had just cause to discharge the grievor, Husna Ghor SInce the Employer relies on the doctrine of ',. culminating incident, the first issue is whether an incident occurred which Justified discipline on August 1, 1995, and then, if so, whether based on the grievor's prior record, the penalty of discharge was appropriate. FACTS A. Background Pnor to the grievor's discharge, she had been employed with the provincial government in a secretarial capacity for approXImately seventeen years (17) years. She began worlang WIth the Ministry of the Attorney General in June 1989, as one of several secretaries in the Office of the Chief Judge, ProvIncial Court (Family), providing secretanal duties for the judges at 700 Bay Street, In Toronto Following the 1990 merger of the Family and Cnrrunal court divisions, the .adrrunistratlve support staff for the Offices of the Cluef Judges for both courts were merged into the Office of the Cluef Judge, Ontario Court (Provincial Division) In October 1994, an inCident occurred - which will be more fully explained later - wluch led to a deCISion by management, in January 1995, to transfer the gnevor from the Office of the Cluef Judge to another assignment. Imtlally, the gnevor was aSSigned to the Assessment ReView Board, and when that assignment was completed, both the Umon and 2 Ms. Ghor agreed that it would be better for everyone if she continued in assignments away from the Office of the Cruef Judge The next temporary assignment, as a Judges' Secretary at the Provincial Division "' Court at 311 Jarvis was no longer available after a short penod, and the grievor was assigned, again as a Judges' Secretary, to the Provincial Division Court, Metro North, at 1000 Finch Avenue West. Due to an increase in the number of judges aSSIgned to that court, additional secretanal assistance was needed. Prior to the gnevor's arnval, there had been only one Judges' Secretary assigned to that court, Ms. Ruby DaYldson, who had worked there for the past sixteen years. Before that, Ms. Davidson worked in other secretanal positIons and she has been with the provinCIal government for over forty years. Shortly pnor to her assignment to Metro North, Ms. Ghor met Wlth Roland d' AbadIe, a Human Resources Consultant with the Ministry At this meeting, he explamed to her that she would be working in the Office of the Senior Judge and that there were between five to seven judges at the court. He testified that he told her that she would probably do work for several of the judges during her aSSIgnment. Although he could not recall their conversatlOn verbatim, he stated that it was not likely that he told her that she would be workmg exclusively for the Senior AdministratIve Judge, Judge Marshall, three days a week and the other two days for the remaIning Judges SInce secretaries work for a variety of judges, not Just one. 3 Tlus was confirmed by David Henderson, Executive Coordinator of the Office of the Chief Judge, who testified that It was standard practice throughout Ontano that a judges' secretary works for all of the Judges assigned to a court, not just one judge. This was also confirmed by the position specificatIOn for the position, wluch states that the purpose of the position is "[t]o regularly provide secretarial services to five judges and to vISitlOg judges as required. "(Ex. 6) In contrast, Ms. Ghor testified that It was her recollectIOn that Mr d' Abadie told her that she would be worklOg exclusively for Judge Marshall three days per week and the remalmng two days she could work for any Judge at the court. She further testified that Mr d' Abadie told her that if she had any questions or problems, she should talk to him, but she did not do so Exactly what happened between Ms. Davidson and Ms. Ghor during the week and a half that the gnevor worked at Metro North is in dispute. Clearly, however, there was mounting tension between them. According to Ms. Ghor, Ms. Davidson was angry at her from the outset, particularly after she told Ms. Davidson that she was to work exclusively for Judge Marshall three days per week and learned that Ms. Ghor was an OAG-9 while Ms. DaVidson was an OAG-8 In her View, Ms. DaVidson was rude, abrupt and Impatient when she asked questions. She stated that Ms. DaVidson was "a controlling supervisor" - very bossy, forceful, lOtmudatlOg and nasty to her and that she became IncreaSIngly fiustrated With Ms DaVidson's behaVIOr In fact, she was SUSpiciOUS of Ms. DaVidson from the outset, takIng notes about their mteractlons from her first day on the Job In her View, Ms. DaVidson did not appear to respect the Judges - because she said that the Judges 4 were demandmg about their work and did not understand how busy she was - and therefore was "the kmd of person who would cause problems." She felt that Ms. Davidson "would cause trouble" and noted that Ms. Davidson did not originally want to take her around to introduce her on her first day but eventually did so "- Ms. Ghor's view of Ms. DaVIdson varied sharply WIth the testimony of other witnesses who had worked WIth her for many years. Justice of the Peace James Oates testified that he knew Ms. Davidson since 1981, seeing her almost daily between 1981 and 1986 He found her to be a good worker and decent person, with a good sense of humour It was his understanding that all of the judges were quite content with her performance. He had never seen her be aggressive, provocatIve or discourteous to anyone. He had never seen or he~d of her having a conflict with anyone. Court Reporter Marlene Spencer, who filled-m for Ms. DaVIdson while she was on vacatIOn and was trained to do that by Ms. Davidson, testified that she had worked With Ms. DaVIdson for approximately ten years. She testified that Ms. DaVIdson was easy to get along WIth and very patient when she made nustakes. In her VIew, Ms. DaVIdson was polite and never the cause of conflict. LikeWIse, Sam Ali, a Court Officer at Metro North, testIfied that m Ins dealmgs With Ms. DaVidson, winch was daily for the past ten years, she was always cooperative He did not see her being difficult With anyone Smtilarly, Ratan Sidhu, a Metropohtan 5 Pohce employee assIgned to Metro North, testIfied that although she had lirmted deahngs p' With Ms. Davidson, she had no problems with her, nor was she aware of any conflIcts others had with Ms. Davidson. They specIfically denied that they ever told Ms. Ghor that Ms. DaVidson was difficult to get along WIth, as Ms. Ghor churned. Ms. Ghor's view of Ms. DavIdson was also contrary to my impression of Ms. DavIdson on the Witness stand. At the hearing, Ms. Davidson appeared to be a very mild- mannered person who took her professional responsibilities to the Judges very seriously Physically, Ms. Davidson is much smaller than the grievor as well as older She also did not appear to be aggressIve, forceful, or lOtlmidating as suggested by the grievor Instead, she appears to have been very frustrated by the grievor's unwillingness to work for anyone but Judge Marshall and her apparent resentment of instructions. According to Ms. DaVIdson, she was looking forward to getting some secretanal assIstance. While there had onginaUy been four Judges at the court, there were now seven or eIght, if there was a ViSIting Judge, and the work load was very busy Judge Marshall mformed her that she was going to get some assistance and asked her to teach her the new secretary about the job, winch she was willing to do But when Ms. Davidson instructed the gnevor about the reqUIrements of the job, the grievor told her that she had been told by adrmmstratlon that she was to work only for Judge Marshall. AccordlOg to Ms. DaVIdson, the gnevor resented takmg direction from her She felt tIns resentment so strongly that when Judge Marshall gave her work to gIve to Ms. Ghor, Ms. DaVidson told 6 Judge Marshall that the gnevor would not hsten and that she would only listen to Judge ,;/ Marshall. Judge Marshall told her to have patience and that Ms. DavIdson would have to direct her because she had no tIme to do It. Ms. Davidson testified that she felt that she was placed in a "Catch 22" situation with Judge Marshall expecting her to direct the grievor and the grievor not willing to listen to her As to the daily specIfics of what occurred before August 1, 1995, the testimony of the gnevor and Ms. DaVIdson differed markedly m numerous respects. In fact, their testImony dIffered about almost eveI)'thing - the telephone situatIon (one versus two and the length of the cord), what each said and did and when. For the most part, I find It unnecessary to detenmne the details of what happened prior to August 1, 1995 since those events were not the source of the Employer's deciSIon to dIscharge the grievor What is matenal, however, and what IS very clear IS that by August 1, 1995, the grievor had become very unhappy and frustrated and that she blamed Ms. DaVIdson for the difficulties she was expenencing. B. Events on August 1, 1995 Accordmg to the gnevor, the first dung in the morning on August 1, 1995, she went to see Judge Marshall to ask for some tIme to talk With her Her purpose, which she dId not mention to Judge Marshall, was to discuss the fact that she was havmg a dIfficult time deahng with Ms. DaVIdson and to find out what was bothenng Ms. DaVIdson about her Judge Marshall told her that she would speak to her later m the day, after court. 7 Because Ms. DavIdson was leaving the next day to have surgery, she gave the ;;' grievor a list of the secretanal duties she would have to do while she was gone and asked her to review it and ask if she had any questIons. According to Ms. DavIdson, Ms. Ghor appeared annoyed and unhappy with it, saying again that she only worked for Judge Marshall. Also that morning, Ms. Davidson gave the grievor an expense voucher for Judge Lindsay to do as well as a ledger In whIch she kept a runrung balance of the judges' yearly allowance. According to Ms. DaVidson, the grievor could not understand what to do even though she had explamed how to do It three times. Finally, Ms. Davidson asked her "didn't you fill out such forms before", to which the grievor replied "don't tell me what to do You're an [OAG] 8 and I'm a 9" On the mormng of August 1, 1995, Judge Marshall, who was President of the Ontario Judges' AsSOCIation, had a newsletter to send out to approximately 200 other Judges In Ontario for whIch Ms. DaVIdson had done the mailing labels. Ms. DaVIdson then asked the grievor to put the labels on the envelopes and stamp Judge Marshall's return address on them. According to the gnevor, she did thIs gladly, In a normal manner She stated that she was "happy" AccordIng to Ms. Davidson, the gnevor was very unhappy about the assIgnment SInce It came from her, took the envelopes and started bangIng the stamp When she was fimshed, she brought the envelopes to Ms. DaVidson's desk and, 8 according to Ms. Davidson, dumped them With force on her desk, caUSing most of them to ;/ fall to the floor When the grievor did not move to pick them up, Ms. Davidson told her to pick up what she had dropped. She did not do so, but instead, stepped over them and walked away, muttering "I'm gOing to see Judge Marshall", leaVIng Ms. Davidson to pick up the envelopes from the floor Ms. DaVIdson testified that she was frightened by the grievor's behaVIOr and not sure what the gnevor would do Given the smallness of the secretarial area and the fact that she had to turn her back to the grievor while she used the computer, she was afraid to do so A few minutes later, she testified that the gnevor came back into the office, stopped four to five feet away from her, and shook her fingers at her face, bared her teeth at her, and Said "you're the cause of everything. You're causing all the problems." Ms. Davidson said she stood up, but did not respond. Then, the grievor asked where the phone directory was, and Ms. DaVIdson pointed to the top of the filing cabinet, next to her desk. The gnevor moved to the filing cabinet and while reaching for the directory caused several of the books on top of the cabinet to fall to the floor It also caused the coat rack, which was next to the filing cabinet, to fall down, along with Ms. Davidson's sweater winch was on a hanger on the coat rack. Ms. DaVIdson said she told the gnevor to pick up what she had dropped, but that the grievor picked up the coat rack and left the books and sweater on the floor and walked away, saying notlnng. Sometime during this exchange, Judge Bassel, whose office was directly outside the secretanal area, closed Ins office door In Ms. DaVIdson's VIew, what happened With the books and coat rack was 9 not an accident SInce the gnevor appeared to be In a rage Ms. DaVidson stated that she was stunned and became very frIghtened and scared for her personal safety She then picked up the books and sweater because the area was a passageway About ten nunutes later, Ms. Davidson testified that Judge Marshall came in, saying that she had heard that there had been a commotion and asked what happened. She told her that Ms. Ghor had been in a rage and went bezerk, dropping all of the books and throwmg envelopes to the floor Ms. Davidson was crytng and told Judge Marshall that she could not take working under these circumstances, with tlus kind of hostility Judge Marshall asked her where Ms. Ghor was now and she told her that she had gone to the Police Office. When Ms. Ghor returned, Judge Marshall met with her in the board room, after which Judge Marshall escorted Ms. Ghor out. According to the grievor, August 1, 1995 was Just a normal day She brought the envelopes with the stamp on top to Ms. DaVidson's desk, and as she was about to put them down, Ms. Davidson told her to put them In the board room. She then asked Ms. DaVidson to take the stamp but she ignored her She then asked agaIn and was ignored, so she tilted the envelopes so the stamp would shde onto her desk, then she put the envelopes in the board room. She was not aware that any fell to the floor She testified that she went Into Judge Marshall's office to dehver an order there, came back in, started lookmg for the phone directory and then asked Ms. DaVidson where 10 It was, and Ms. DaVIdson pomted to the top of the fihng cabmet. She dented that she pointed her fingers at Ms. DaVIdson or said that she was the cause of any problems She denied that she bared her teeth at her She stated that as she reached for the directory, another book fell accidentally, knocking a sweater off of the coat rack. She stated that she ~ picked up the book and put It back on the filing cabinet. She denied that the coat rack fell - only the sweater - but acknowledged that she "did nothing" about the sweater She stated, on direct examination, that she "didn't think about it." She stated that Ms. Davidson, who was at her desk, then stated in a bossy manner "You dropped the envelopes and didn't pick them up You dropped the sweater and didn't pick it up Pick up that sweater or I will tell Judge Marshall." She stated that she walked out, sat down in the board room with her hands on her head and quietly said "I can't take It anymore." She stated that she was there for a few minutes, while Justice of the Peace Oates was there, then she left to go to the lady's room. On the way back she stopped at the Police Office to talk to some employees there - Sam Ali and Ratan Sidhu about Ms. Davidson's behaVIor - and after five or ten minutes, returned to her desk. She then stated that Ms. DaVIdson gave her some additional work to do - the chum form for Judge Lmdsay She asked Ms. DaVidson some questions, then went to the board room to read how to do it when Judge Marshall approached her On cross-exammation, the gnevor adll11tted that she became so frustrated WIth Ms. DaVidson on August 1, 1995 that she had to talk With someone about her behaVIOur, and left to talk With Mr Ali and Ms. Sidhu after the mCldent With the envelopes. She also 11 ---- testIfied that when she returned, she wanted the dIrectory to call Mr d' Abadie about Ms. DaVIdson and the problems she was causmg her She could not recall if she used her right v hand to get the directory or both hands or how many books fell. In contrast to her statement dunng her examination-in-cluefthat she "didn't think" about the sweater on the floor, on cross-examination she stated that she intended to pick up the sweater when she returned but did not say that to Ms. Davidson. She said that she was Just very fiustrated with Ms Davidson, but insisted that she was not angry and that she did not lose her temper at work or lose control. She stated that she kept her fiustratlOn inside. She denied that she raised her voice or used a loud voice at all. In her VIew, it was Ms. Davidson who caused the problems and made a big deal out of the sweater and she could not understand how she could be fired for accidentally causing a sweater to fall and not pickmg it up She could not understand the "big deal" that was being made over this incident. In her VIew, she did notlung wrong and inSisted that August 1, 1995 was just a normal day Ms. Davidson's testimony about what occurred was partly confirmed by Justice of the Peace James Oates. He testified that he passed through the secretanal office shortly before 1000 a.m., stopped to chat with Ms. DaVIdson for a few nunutes, and then went into the ante room and sat down. While there, he noticed Ms. Ghor get up and walk past him 1Oto the Pohce Office. In a few minutes, she returned and asked Ms. DaVidson where the phone book was and Ms. DaVIdson pomted to the top of the filing cabmet. He testified that the grievor grabbed the phone book and other books fell to the floor and the coat rack and a sweater (possibly two) fell down. He stated that Ms. DaVidson asked Ms. 12 - Ghor if she was going to pIck up the books and coat rack and that Ms. Ghor pIcked up the rack. Ms. DaVIdson then asked If she was gomg to pick up the sweater and Ms. Ghor left, saymg, loudly, "No, I can't stand it." Then, she walked past him mto the Police Office and he went into the courtroom. Justice of the Peace Oates did not see the grievor shake her fingers at Ms. DaVIdson or yell at her other than when she swd "I can't stand It" In his view, the books falling off the cabinet might have been accidental and what struck him about the mcident was the grievor's refusal to pick up the sweater In his VIew, her actions were "childish." Ms. Ghor, according to Justice of the Peace Oates, appeared to be very agitated and very upset. Her tone, especially when saying "I can't stand it", was raised. In his written statement, Justice of the Peace Oates further stated that Ms. Davidson "appeared to be upset by what had taken place." In a written statement proVIded by Judge Bassel, he stated that he was in Ius office Wlth the door partially closed and heard some conversation between Ms. DaVIdson and Ms. Ghor He stated. "The next tlung I knew, I heard Husna['s] voice soundmg extremely agItated and loud and there was almost a lussmg sound." The only words he recalled pnor to Husna's raised VOIce was Ms. Davidson saymg "that is lOgICal just get on with the work." He then stated. "Husna got Increasmgly more agItated and the nOIse 13 level from her mcreased and I closed the door" His statement further confirmed that Ms. Davidson was "still shakmg and upset" when Judge Marshall was showing Ms. Ghor out. Judge Marshall, who also proVided a written statement, confirmed that she came out of court "to find Ruby literally shakmg like a leaf and in tears saying she can't cope." Ms. Ghor was "nowhere to be seen." She saw that a number of books on top of the filing cabmet were askew and that Ruby's sweater was lying on the floor Judge Marshall left and then returned approximately ten minutes later, where she found Ms. Ghor SItting at the table in the ante room. After a brief discussion, Judge Marshall stated that it was unfortunate that there was an interpersonal problem but that they could not have two people 10 the office with tlus upset and suggested that she go home and that she would hear from the Cluef Judge's office. She then suggested that Ms. Ghor return her keys, and then showed her out of the office On August 8, 1995, ExecutIve Coordinator Henderson suspended the gnevor, WIth pay, pursuant to Section 22(1) of the Public Service Act, pending an investigation into the mcident on August 1, 1995 Thereafter, Mr Henderson received wntten statements from Judge Marshall, Judge Bassel and Ms. DaVIdson and had heard from JustIce of the Peace Oates regardmg what occurred. On August 15, 1995, Mr Henderson met with the gnevor and her union representatIve to discuss the allegatIOns surroundmg August 1, 1995, 10 order to proVide 14 her with an opporturuty to explain, from her perspective, what had occurred. In that meetmg, Ms. Ghor derued droppmg or throwmg any envelopes on the floor and derued that the coat rack fell over She acknowledged that she went looking for the phone directory and that a book fell when she was reaching which inadvertently dislodged a sweater He stated that she told him that she was upset at the time and Just wanted to get out of there, so she left, looking for Judge Marshall. C. Prior Discipline 1. October 7,1994 Assault On January 24, 1995, the gnevor was given a two-day suspension for assaulting her supervisor, Maureen Murphy, on October 7, 1994 in the Office of the Chief Judge. In pertment part, the discipline letter, signed by Executive Coordinator Henderson, states as follows. Based on the investigation and due to the serious nature of this inCident, the assault agamst your supervisor, I am removing you from employment Without pay m accordance with Section 22(2) of the Public ServIce Act, for a penod of2 days. January 25 and January 26 have been selected and the two day pay deduction will appear on your February 9th pay I would also adVise you that any further incidents of this nature will be dealt With more severely, up to and including diSmIssal. In addition, because of Mr Henderson's view that the gnevor's Violent behaViour had a slgruficant adverse Impact on many staff members, he deCided that It would be mappropnate for the grievor to return to duties m the Office of the Cluef Judge 15 Accordingly, Mr Henderson, m consultation with the Union, arranged for the gnevor to have a temporary assIgned to the Assessment ReVIew Board. ,/ By agreement of the partIes, the details pertairnng to tlus assault were not included m the record. The two day suspension was not grieved by Ms. Ghor 2. Absent Without Leave On January 27, 1995, via letter by couner, the gnevor was advIsed that she would be temporarily assigned to the Assessment Review Board, commencing on January 30, 1995 The letter noted that the Ministry had made several attempts to contact her by telephone during the past week. Ms. Ghor did not report for work until February 1, 1995, m the afternoon. Consequently, for the period of January 30 to February 1, 1995, she was on an unauthorized leave for three days and was not paid for those days. Later, that was reduced to a 21/2 days Without pay Ag8.1n, no gnevance was filed. D. The Decision to Discharge the Grievor The deCISIon to dIscharge the gnevor was made by ExecutIVe Coordmator Henderson, after he completed IDS mvestIgation of the August 1, 1995 mCldent. It was lus view that Ms. Ghar had agam engaged In intemperate and VIOlent behaVIour In the 16 workplace Without provocatIon or Justification. The August 30, 1995 letter of discharge states, In pertInent part, as follows. Tills is further to my letter to you dated August 8 and our meetIng on August 15 WIth Nick DISalle and Roland d' Abadie concerrung allegations of your misconduct in the judges' secretarial office at the Metro North Court House on August 1 Based on findings of the InvestIgation, I am satisfied that you engaged in senous misconduct Including threatemng a co-worker and behaVIng In a violent maru1er You have been informed on previous occasions that such behaviour is not tolerated in our workplace. On October 7, -1994 there was a similar incident involvIng an assault agaInst your supeTVlsor In the Office of the Chief Judge whtch resulted In your removal from employment Without pay for 2 days. In my letter of January 24, 1995, I Indicated to you that any further incidents ofthts nature would be dealt WIth more severely, and could lead to dismissal. As tills type of behaVIour poses a nsk to the health and safety of others In the workplace, I have no alternative but to dismiss you for just cause, effectIvely immedIately, pursuant to Section 22(3) of the Public Service Act. Mr Henderson testIfied that he conSIdered the totality of what occurred on August 1, 1995 - the gnevor's knockIng books off the file cabInet, knockIng over the coat rack and sweater, the grievor's shakmg her fingers at Ms. DaVIdson, her rage and loud VOIce, her refusal to pick up the envelopes, the books or the sweater The ImpreSSIOn he had was that the grievor lost her temper, let her anger loose and that her actIons had a very negatIve Impact on Ms. DaVIdson, who felt threatened and Intllntdated. Her behaVIOur, In hts VIew, was mappropnate in any workplace and for any employee, but espeCIally a judges' secretary Mr Henderson also conSIdered the Mimstry's oblIgatIon to ensure a 17 health and safe workplace for Its employees, mcluding those who were reqUired to work closely with the gnevor In Mr Henderson's view, the August 1 incident constituted serious misconduct, wluch, in light of her pnor disciplinary record, Justified discharge. Given the gnevor's demal of any wrongdoing, he determined that there was no hope that the grievor could be encouraged by further suspensions without pay to refrain from engagmg in mtemperate and violent conduct m the workplace. ARGUMENTS OF THE PARTIffiS The Mimstry argues that the evidence clearly establishes that the grievor engaged in rmsconduct on August 1, 1995 Specifically, It asserts that she engaged in intemperate, abusive conduct towards a co-worker which was wholly mappropnate to her work as a judges' secretary It contends that there was no provocation for the grievor's misconduct and no justification for it. Nor, the Ministry subrmts, has the grievor even recognized or acknowledged her misconduct. Instead, it pOints out that she demes that she did anytlung wrong, a conclUSIOn which IS contrary to the eVidence. The Mimstry subrmts that the eVidence establIshes that the grievor's demals about what occurred and her mSlstence that August 1 was Just a normal day are patently incredible. It contends that the eVidence shows that she was very angry at Ms. Davidson, and that after less than two weeks on the Job, she "couldn't stand It" anymore She 18 wanted to discuss the matter with Judge Marshall and sought to call Mr d' Abadie, and in her frustration and anger dropped the envelopes on the floor, yelled at Ms. DaVidson, knocked books and the coat rack down, and flew 1Oto a rage, Without any regard for Ms. Davidson's feelings. The Ministry further asserts that the grievor's attempt to sluft the blame to Ms. Davidson - that It was Ms. Davidson who was rude, 1Otimidat1Og and provocative - is not supported by the evidence, and indeed, IS contrary to the evidence regarding Ms. Davidson's nature and temperament provided by all of the other witnesses, 1Oclud1Og Mr A1i and Ms. SIdhu. The evidence further establishes, the Ministry subnuts, that there are no nutigat10g circumstances to modify the penalty of discharge. It argues that there IS no credible eVidence that Ms. Ghor was provoked into a rage, nor was there an absence of harm. It subnuts that Ms. DaVidson was clearly harmed by the gnevor's actIons, wluch caused her to become upset, shaken and cry as a result of the grievor's nusconduct. It po1Ots out that Ms. DaVidson was still traumatized by It almost two years after the event. It further subnuts that the gnevor's actions were not nutigated by her prior record. Indeed, 10 Its View, the gnevor's pnor record, particularly the gnevor's pnor assault on her superVIsor, clearly Justified the diSCiplIne Imposed. Finally, it argues that 10 light of the gnevor's lack of acknowledgment or understand10g of her nusconduct, It would be inappropriate for me to exerCIse my discretion to substitute a different penalty It asserts that the gnevor was given a second chance to correct her behaviour after the assault on her supervisor, and argues that there IS no baSIS to proVIde the gnevor WIth yet a tlurd one 19 In support of Its contentions, the MinIstry cites to Re OPSEU (Ross) and The _-,r Crown in Right of Ontario (Ministry of the Attorney General), GSB No 356/96 (April 1997)(Verity, Vice Chair) and Re University of Manitoba and C.A.I.MA.W (1991), 21 L.A.C (4th) 168 (Bowman). The Union contends that the Ministry failed to establish that rmsconduct occurred on August 1 and consequently argues that no discipline was appropriate. It argues that what occurred was greatly exaggerated by Ms. Davidson who, It contends, is not a disinterested witness. It submits that the grievor's knocking the books over was accidental and that her failure to pick up the sweater may have been childish, as Justice of the Peace Oates suggested, but it was not menacing. The UnIon submits that if the gnevor behaved as Ms. Davidson claimed, both Justice of the Peace Oates and Judge Bassell would likely have come to her rescue, not go about their bUSIness. The UnIon further notes that Justice of Peace Oates' testImony did not confirm the most damagtng accusatIons by Ms. Davidson - that the gnevor shook her fingers at her or yelled at her or bared her teeth. In ItS View, the only thIng that the MinIstry proved was that the gnevor failed to pick up Ms. DaVidson's sweater and walked out of the room. Tlus, It argues, IS not grounds for dlsclphne. The UnIon further contends that even If mIsconduct occurred, at worst It Involved a rmnor loss of temper by walkIng out of the room. It did not constItute, In its View, 20 senous mIsconduct. It asserts that the gnevor did not physically assault Ms. Davidson and made no threat to do so Based on the lack of any senous misconduct, the Union contends that discharge was excessive. DECISION 1. Did misconduct occur on August 1, 1995? On the balance of probabilities, I conclude that the gnevor engaged in misconduct on August 1, 1995 For a vanety of reasons, I credit the testimony of Ms. Davidson about what occurred over the versIOn set forth by the grievor In Re University of Manitoba and C.A.I.MA. W (1991), 21 L.A.C (4th) 168 (Bowman), the arbitrator described the task of assessing credibility as follows at pp 180- 181 As has been discussed by countless judges and arbItrators over many years, there are numerous factors which go into the assessment of the credibility of any witnesses. For only the most obvious, one must consider the degree of disinterestedness, or to put In another way, the degree of personal motivation to distort, exaggerate, or even lie. Then one must analyze the capacity of the witness to observe, to note, and to remember and the further capacity to recount with accuracy and clarity One must look for circumstances which might be considered corroborative or confirmatory Assessment of credibility can never be a SImple matter of countIng heads on one SIde of a story or another There must always remaIn an element of basic human reaction, the frequently unspoken and unformulated sense on the part of the tner of fact that a witness IS, or is not, to be belIeved. It need not relate to honesty or the possibihty of IntentIonal mIsstatement. But It is there. Louis Nizer referred to it as the "law of probabihtles', the difficult to express, but none the less clearly understood companson between the evidence and that which IS probable and reasonable according to the expenence and even mstmct of the hstener 21 In this case, almost all of these factors apply The eVidence, in my VIew, clearly establIshed that August 1, 1995 was not a normal day, as asserted by the grievor The tension between Ms. Davidson and the grievor had been mounting since her first day on the job The gnevor felt that Ms. Davidson was unhelpful, abrupt, intimidating and bossy, and by August 1, 1995, the grievor "couldn't stand it anymore." The eVIdence, including the testimony of the grievor, established that on August 1, 1995, she was very upset about Ms. DaVIdson. Indeed, at the very start of the day, she sought time from Judge Marshall to compl8.1n about Ms. DaVIdson, and tlungs worsened from there. From the grievor's perspective, Ms. Davidson gave her a long lIst of responsibilities (which would appear to have been inconsistent With her posItion as working mostly, If not exclusively, for Judge Marshall) and had Improperly criticized her for not knoWing how to complete Judge Lindsay's expense cl8.1m form. As the gnevor testIfied, Ms. Davidson was "impatient" with her about this and "didn't listen to my questions" From her perspective, Ms. Davidson had Ignored (tWice) her request to take the stamp from the pile of envelopes, requiring her to slIde the stamp onto her desk. Specifically In terms of the envelopes, however, I find Ms. Davidson's verSiOn of what occurred to be more probable than the gnevor's. GIVen the clear tension between Ms. Davidson and Ms. Ghor, I find It more likely than not that Ms. Ghor was unhappy 22 with the envelope assignment and dropped the envelopes on Ms. DaVidson's desk, causmg some to fall to the floor, and when Ms. Davidson told her to pick them up, she refused to ~ " do so, and mstead, left, muttenng about gomg to find Judge Marshall. That action is consistent with the grievor's own testimony on cross-examination that she was "so frustrated that she had to talk with someone" about Ms. Davidson's behaviour after the mCldent With the envelopes. The gnevor's testimony that she was "glad" to do the envelopes and was "happy" is completely contrary to her later adInlssion that she was terribly frustrated with Ms. DaVidson. Instead, it would appear far more likely that, as Ms. Davidson testified, the gnevor left the secretarial office m a state of high agttation and anger at Ms. Davidson and was still angry when she returned. The grievor's lugh level of frustratiOn and inabihty to meet with Judge Marshall explains her deciSiOn, when she returned, to call Mr d' Abadie to voice her complaints. It also explains her anger, when she returned, accusmg Ms. Davidson of "causmg all the problems." Notably, Ms. Davidson's testimony on this point - the words that she stated that the gnevor satd to her - corresponded almost verbatim to Ms. Ghor's testimony that she felt that Ms. DaVidson was the type of person who would "cause her problems." The gnevor's view - and testImony - that Ms. Davidson was the type of person to cause problems corresponds too squarely With Ms. Davidson's testimony regarding what the grievor said to her to be coincidental or fabncated by Ms. DaVidson. Further, the eVidence too clearly establishes that the gnevor genumely beheved that Ms. DaVidson was the cause of her problems. GiVen her level offrustratlon by August 1, 1995, I find it more 23 likely than not that she vOiced that view to Ms. Davidson. I also find It more likely than not that she shook her finger at Ms Davidson as she did so While it IS clear that Ms. Davidson and Ms. Ghor did not get along, I find no motive for Ms. Davidson to have hed at the time (creating a story about the gnevor) and then lYing about It to management and under oath. Further, there was evidence corroborating her assertions, specifically the testimony of Justice of the Peace Oates about the books, coat rack and sweater and Judge Marshall who also saw the sweater on the floor In addition, the tears that Ms. Davidson shed on August 1, and the fact that she was truly shaken by the grievor's actIOns was confirmed by Judge Marshall, Judge Bassel and Justice of the Peace Oates. Further, In my View, Ms. Davidson's testimony about what occurred on August 1, 1995 appears to be far more consistent With the type of frustration and anger that the grievor felt that day than the gnevor's version of what occurred. If the gnevor IS to be believed, August 1 was a "normal day" and she did nothing more than childIshly refuse to pick up Ms DaVidson's sweater Not only IS It doubtful that mere childish behaVIOur would have caused such a shaken response In Ms. DaVidson, It IS inconsistent With her own testimony that she was "so frustrated" that she had to talk With someone and that she Just "could not stand It anymore" It IS inconsistent With the fact that at the very start of the day, she sought to complam about Ms DaVidson to Judge Marshall, and then later to 24 call Mr d' AbadIe. These are not the sentiments and actIons of someone who was merely being childish. They are the sentIments and actions of someone who IS frustrated to the i'" breaktng pomt. I also found that Ms. Ghor's descnptIon of what occurred after the sweater fell to the floor and she left to be Implausible and contrary to the eVIdence, further undermimng her general credibility The gnevor testIfied that when she returned, she went to her desk and was assIgned more work to do by Ms. DaVidson, specIfically, the expense voucher for Judge Lmdsay She testIfied that Ms. DaVIdson told her what to do and gave her matenal to read, which she did. This was at approximately the same tImes, however, that Judge Marshall stated that she went mto the secretanes' office and found Ms. DaVidson "shaktng like a leaf' and saying that she could not cope, and that the grievor was nowhere to be found. It hardly seems likely that Ms. Davidson, who Judge Marshall, Judge Bassel and JustIce of the Peace Oates all stated was upset and shaken, would be dIscussing another assIgnment WIth the gnevor Rather, it is far more likely, as Ms. DaVIdson testIfied, that she had no further contact with the gnevor after the coat rack fell and the grievor left. Finally, the negatIve pIcture pamted of Ms DaVIdson by Ms. Ghor IS so contrary to her nature, as described by all of the other Witnesses, that It truly leaves the remamder of Ms. Ghor's perceptions and testimony open to questIon. Also relevant IS the fact that none of the gnevor's testimony was corroborated, mcludmg her testimony that she complamed about Ms. DaVidson to Mr All and Ms. Sidhu. In fact, Ms. Sidhu could not 25 even recall Ms. Ghor and neIther had any recollectlOn of such as discusslOn. Further, both dented that they every told the grievor that Ms. DavIdson was a difficult person. In addItIon, I found the gnevor's testImony that she was frustrated, but not angry, to be not believable. Clearly, the eVIdence showed that she blamed Ms. DavIdson for her problems at work and her frustratlOn had reached a CriSIS pomt on August 1 Finally, I found Ms. DavIdson's recollection of events to be very good and much better than that of the gnevor With some discrepancies (partIcularly as to tllrung rather than substance), her testimony was also largely conSIstent with her written statement wInch was completed only a week after the inCIdent. In credItmg the testImony of Ms. DaVIdson, I note that a portIOn of Ms. DaVIdson's testImony was not confinned by Justice of the Peace Oates - speCIfically, that she came 10, pomtmg her fingers at Ms. DaVIdson, and the only words that he heard being loud was "I can't stand It anymore." But just because he was not aware of some of what occurred - and therefore unable to confinn or deny It - does not mean that it did not occur In additIOn, the statement of Judge Basse} confinns that Ms. Ghor became increasmg loud and agItated. I further conclude, on the balance of probabihtIes, that the gnevor, 10 her rush and anger to obtam the dIrectory, knocked over several books that were on the file cabmet and 26 knocked over the coat rack and Ms Davidson's sweater, and then refused Ms. Davidson's request to p1ck them up and left, statmg that she "could not stand 1t." Consequently, on the balance ofprobabihties, I conclude that on August 1, 1995, the gnevor lost control of her temper at work. I conclude that she dropped envelopes on Ms. Davidson's desk and then refused to pick them up, that she engaged m an angry outburst at Ms. Davidson accusmg her of causmg all of her problems at work, and m her anger, knocked over books and the coat rack along with Ms. Davtdson's sweater and then refused to pIck them up On the balance of probabihties, I conclude that the gnevor engaged In nusconduct, as alleged, on August 1, 1995 2. Was there just cause for discharge? The Mimstry clearly treated the grievor's actions on August 1, 1995 as a culminatmg mCident which, pnmarily because of her earher assault on a supervisor, JustIfied dIscharge Under the facts and Circumstances of this case, I am compelled to agree Without questiOn, the gnevor's actiOns on August 1 constItuted senous nusconduct. In any workplace, angry outbursts of the nature which occurred on August 1, 1995 cannot be tolerated. Management has a statutory as well as moral responsibihty to ensure a safe work enVironment for its employees which mcludes protectmg employees, 27 when necessary, from one another Further, In most office settIngs a level of decorum and profeSSionalism IS expected and that is particularly true for a Judges' secretary Cf, Re OPSEU (Ross) and The Crown in Right of Ontario (Ministry of the Attorney General), GSB No 356/96(ApriI1997)(Verity, Vice Chair), at p.27-28 In tlus regard, the gnevor had engaged In a similar mCldent less than a year before in wluch she assaulted her supervisor Assault on a supervisor is usually conSidered one of the most senous offences, often resulting In munedlate discharge. In the gnevor's case, however, the Mimstry Imposed a two-day disciplinary suspenSIon, but she was warned, in wntmg, "that any further mCldents of tlus nature will be dealt WIth more severely, up to and mcluding distnlssal." In addition, the gnevor was removed from the Office of the Chtef Judge to other locations. In part, the purpose was because of management's concern that the gnevor's actIOns had an adverse Impact on other staff members, but It was also to give her a fresh start. Consequently, the Ministry gave the grievor a bona fide second chance, a chance to show that she had learned from the first Incident. But she clearly did not learn from it. Less than a year later, the gnevor agaIn lost her temper at work. Although her conduct on August 1, 1995 did not nse to the level of an assault on a supervisor, It Involved a snnilar loss of temper and control at work. In determInmg the appropnate level of disciplme for the August 1, 1995 mCldent, the fact that she recently engaged In smular misconduct is a Significant factor and demonstrates, as the Mimstry concluded, that further suspensions were not likely to change her behaVIOur Also relevant, although to a less slgmficant degree, IS the gnevor's 2 1/2 day suspension In 28 January 1995 for bemg absent wIthout leave. Consequently, despIte the grievor's lengthy servIce, her last year mcluded two discIplinary suspenSIOns, mcludmg a specIfic warmng ~/ that engagmg in another vIOlent mCIdent at work would not be tolerated and could result m dIscharge. r. Consequently, unless there is a basis to mItIgate the penalty of dIscharge, the grievor's misconduct on August 1, 1995, commg shortly after a prior suspension for smlilar nnsconduct, constitutes just cause for dIscharge. Under the facts and CIrcumstances of tlus case, however, I find no basis upon wluch to substitute another penalty First, it cannot be concluded that there was any provocatIon for the grievor's actions. The eVIdence does not support Ms. Ghor's testImony that Ms. DaVIdson had been rude, bossy or controlling with her, although, at the end, Ms. DaVIdson may have lost some patience wIth her inabilIty to do some of the assIgnments and her apparent resentment. Judge Marshall had directed Ms. DavIdson to instruct the gnevor about the Job and that IS what she did. Further, as the semor secretary who had been there for many years, It would be only natural and expected that Ms. DavIdson mstruct the gnevor on her responsibilItIes. There is notlung that Ms. DavIdson did on August 1, or before then, that IS contrary to tlus role or would have served to have provoked the gnevor's reactIOn. 29 Second, although Ms. Davidson was not physically assaulted by the gnevor and although the words used by the gnevor did not constitute a threat of physical vIOlence, Ms Davidson was clearly harmed by the gnevor's actions and her actions were certainly viewed as threatening by Ms. Davidson. Further, a reasonable person In the position of Ms. DaVidson would also feel threatened by someone angrily accusing them of being the cause of their problems After the week of nsing tenSion between them, Ms. Davidson's fear for her personal safety as a result of the grievor's words and actIons was understandable. In addition, the grievor's refusal to acknowledge what occurred and to accept any responsibihty for her actions demonstrates that she still does not accept or understand what occurred. Instead, she continues to blame Ms. DaVIdson whIch, unfortunately, mdIcates that her conduct will not change should she be remstated. Thus far, two employees of the Mimstry - the gnevor's former supemsor and Ms. DaVidson - have suffered as a result of the grievor's displays of temper Without some acknowledgment by the grievor of her actions and that her conduct was mappropnate, the likelihood is that it may well happen agam. That IS a nsk that the Ministry, having suspended and prevIously warned the gnevor that such conduct would not be tolerated agam, need not assume In additIOn, because of the gnevor's refusal to acknowledge what occurred or that she clearly has a problem With her anger, I find that I cannot order that she be reinstated WIth condItIOns, such as seekmg employee aSSIstance. In many cases, gIven the gnevor's 30 I many years of semonty, that would be a faIr approach. But where, as here, the gnevor completely denies her role in what occurred, requmng counseling would appear to be an exerCIse in futihty Finally, there is no eVIdence that the gnevor was suffenng from some personal or emotIonal problems at the tIme whIch would have caused her misconduct. LikeWIse, there IS no eVidence that what occurred was a momentary flare-up or aberratIon. In fact, the grievor, from her first day of the Job, was suspIcious of Ms. DaVIdson, taktng notes of theIr mteractIons. From her first day on the Job, her frustratIon WIth and anger at Ms. DaVIdson mounted -- until the outburst on August 1, 1995 What occurred on August 1, 1995, therefore, cannot be VIewed as a momentary flare-up Accordingly, I find no baSIS to mitigate the penalty that was Imposed. I conclude that the Ministry had Just cause to discharge the grievor, based on the mCIdent of August 1, 1995 and her prior disciplinary record. Accordingly, the grievance IS dIsmissed. Issued this -1.1.ti1day of June, 1997 31