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HomeMy WebLinkAbout2001-0385.Brennan.02-02-27 Decision ~~~ om~o EA1PLOYES DE L4 COURONNE _Wi ii~~;~~T DE L ONTARIO COMMISSION DE REGLEMENT ~_II'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FA CSIMI LEITELECOPI E. (416) 326-1396 GSB# 0385/01, 0386/01 UNION# OLB155/01, OLB15601 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befo re THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO LIquor Boards Employees' Umon (Brennan) Gnevor - and - The Crown m RIght of Ontano (LIquor Control Board of Ontano) Employer BEFORE RIchard M. Brown Vice-Chairperson FOR THE GRIEVOR Glen Chochla Cousnel Carolme Engelman Gotthell BarrIsters & SohcItors FOR THE EMPLOYER Ahson Renton Counsel LIquor Control Board of OntarIO HEARING DATES September 4,2001, February 1 and 4,2002 DECISION These two gnevances by Aaron Brennan anse from two suspenSIOns receIved by hun for alleged mIsconduct on Apnl 5,2001 as a casual employee at the Ottawa warehouse The first suspenSIOn was served on Apnl 19 and 20 and the second on Apnl 23 and 24 I The grounds for the suspenSIOn served first are stated m a dIscIplmary letter dated Apn118, 2001 On Apnl 5th you faIled to follow a dIrect request from your supervIsor In the presence of fellow employees you dIsplayed a complete lack of respect for Ius authonty by refusmg to begm assembhng another order wlule waItmg for the addItIonal BRI pallets reqUIred to complete your current order On Apnl 5, Mr Brennan was workmg m the basement of the warehouse where Mike Sabounn was the foreman on duty Like all foremen, Mr Sabounn IS a member of the bargammg umt wIth no authonty to Impose dIscIplme Mr Sabounn testIfied he observed the gnevor sIttmg on Ius maclune, near the basement office, and asked what he was domg When Mr Brennan rephed he was waItmg for a beer pallet to assemble an order, Mr Sabounn said he should take a dIfferent type of pallet and do another order Asked m exammatIOn-cluef exactly what words he had used at tlus pomt, Mr Sabounn answered "Could you put that one back and do another one?" Asked agam m cross-exammatIOn about Ius words, Mr Sabounn testIfied he had said. "Do tlus one mstead of that one" Whatever Mr Sabounn's preCIse 2 words, he testIfied the gnevor dId not comply Accordmg to the foreman, thIS mCldent happened m the presence of other employees, but he could recall only one of them, Steve Pavlakovlc, a fork-11ft operator Mr Sabounn testIfied the gnevor was stIll waItmg for a beer pallet ten or fifteen mmutes later The foreman testIfied. "I told hIm agam and he refused agam " Accordmg to thIS account, beer pallets arnved by elevator soon after At 11 15 a.m on Apnl 5, Mr Sabounn sent the followmg e-mail to John CnlpI, the operatIOns manager ThIS mornmg when I came back to my office I notIced Aaron sIttmg down I asked hIm what he was domg and he said he was waItmg for a beer pallet I told hIm there was no more and they would be commg down later I gave hIm another pallet to assemble that dId not reqUIre a bn pallet he refused After recelvmg thIS e-mail, Mr CnlpI encountered Steve Pavlakovlc The operatIOns manager testIfied that the fork-11ft dnver said Mr Brennan was makmg hIS foreman look like a fool by refusmg to do what he said. I sustamed the umon's ObjectIOn to the admIssIOn of thIS hearsay eVIdence Mr Brennan offered a very dIfferent account of the beer-pallet mCldent Accordmg to the gnevor, he spent only 3 or 4 mmutes waItmg for a pallet on Apnl 5 Mr Brennan testIfied Steve Pavlakovlc was present but Mr Sabounn was nowhere m sIght In a notIce of mtended dIscIplIne, dated Apnl 6, Mr CnlpI asked the gnevor to submIt wlthm three days a wntten explanatIOn for "the mCldent of Thursday, Apnl 5 at whIch tIme you faIled to follow routme dIrectIOn from your supervIsor" Mr Brennan dId not respond m wntmg He testIfied he 3 told Mr CnlpI that he dId not understand the letter and would be seekmg advIce about It II The grounds for the suspenSIOn served second are stated m another dIscIplmary letter, also dated Apn118, 2001 In the mCIdent of Apnl 5th, you left work early wIthout completmg and returnmg the proper Early Departure Request form as requested by your superVIsor You also faIled to advIse your supervIsor of your mtentIOn to leave two hours earher than ongmally requested. ThIS letter sets out two mdependent grounds for dIscIphne (1) not "completmg and returnmg" an early departure form "as requested" by the foreman, and (2) faIhng to "advIse" the foreman of the departure tIme The day ShIft on Apnl 5 ran from 8 00 to 4 00 p.m and had a half- hour lunch break startmg at 12 00 Mr Brennan worked untIl noon and left the warehouse a few mmutes after 12 30 He qUIt work early m order to travel to Sudbury to partIcIpate m an LCBO hockey tournament the next day On March 2, the gnevor submItted to the employer a form askmg to be absent from work on Apnl6, the day of the tournament He testIfied that also on March 2 he submItted another form askmg to leave work at 3 00 p.m on Apnl 5 to travel to the tournament The employer IS unable to locate such a form and contends It was never submItted. Accordmg to Mr Brennan, sometIme m the week of Monday, Apnl 2, he learned hIS game was scheduled to begm at 7 00 a.m on Apnl6 GIven thIS start tIme and the length of the dnve to Sudbury, he decIded to leave before 3 00 p.m on Apnl 5 He testIfied that he spoke to Mr CnlpI once or 4 tWIce that week, pnor to Apnl 5, about leavIng ear her than he had InItIally requested When testIfYIng, Mr CrupI was not asked about any conversatIOns wIth Mr Brennan before Apnl 5 In examInatIOn-In-chIef, Mr Sabounn candIdly admItted that he could not recall whether the gnevor on Apnl 5 had said when he would be leavIng In cross-eXamInatIOn, the foreman expressed the same lack of recall He also conceded that he could not dIspute that the gnevor had commumcated hIS IntentIOn to work only untIl the lunch break. Mr Brennan testIfied that, when he arnved at work that day, he Informed Mr Sabounn that he would be leavIng at noon Mr Sabounn gave Mr Brennan an early departure form on Apnl 5, but the gnevor dId not fill out the form Immediately upon reCeIVIng It They offered conflIctIng accounts of what each of them said to the other about the form The foreman testIfied that he said "fill It out and bnng It back to me," and that, when he later asked for the form, the gnevor said he would return It "when he was good and ready" AccordIng to the gnevor, he was first told to "fill out" a form and subsequently was gIven one, whereupon he agreed to fill It out "when he had a chance" John CnlpI testIfied Mr Brennan spoke to hIm tWIce on the mornIng of Apnl 5 AccordIng to the operatIOns manager, the gnevor first said he would be leavIng at 2 00 p.m , but later said he mIght not have to leave early at all Mr Brennan testIfied he had a "hard tIme" recalhng any conversatIOns wIth Mr CrupI on Apnl 5 relatIng to hIS departure tIme Dunng the lunch break, Mr Sabounn told Mr CnlpI that the gnevor had not returned the early departure form, even though he had plugged In hIS machIne so as to IndIcate he was fimshed for the day Mr Brennan was 5 paged to report to the front office He heard the page as he emerged from the lunch-room, havIng showered and changed Into street clothes On the way to the front office, he passed Mr CnlpI and Mr Sabounn, but nothIng was said by any of them Laune Hope-Floyd, one of the front office clerks, asked the gnevor for hIS early departure form He gave her a form requestIng permISSIOn to leave at 12 00 and beanng hIS sIgnature The early departure form submItted by the gnevor on Apnl 5 had not been sIgned by eIther hIS foreman or the operatIOns manager, even though It has spaces for sIgnatures by both The umon placed In eVIdence thIrty-five other forms prevIOusly submItted by the gnevor NIneteen of these forms lack the sIgnature of both the foreman and the operatIOns manage (Some such forms do not have spaces for one or both of these sIgnatures) In VIew of these documents, the employer does not contend the sIgnatures mISSIng from the Apnl 5 form provIde any basIs for dIscIphne Mr CrupI In cross-eXamInatIOn conceded early departure forms are sometImes returned to Laune Hope-Floyd and not to a foreman He also admItted employees sometImes submIt such forms after the date of theIr early departure, because they forget do so before, and they are not dISCIplIned as a result III The umon led eVIdence of a complaInt made by Mr Brennan about comments made by Mr Sabounn In early October of2000, when the gnevor was WaitIng for the forkhft operator to lower some empty pallets from the top of a pIle AccordIng to a note wntten by the gnevor and sIgned by a fellow employee who was present, the foreman pulled a pallet down from 6 the pIle, asked the gnevor If he was" a member of the mJured club" and said hIS daily output of 500 cases dIdn't "mean ShIt anyway" The gnevor dehvered hIS note about thIS mCIdent to Mr CnlpI who told Mr Sabounn that hIS comments were mappropnate and dIrected hIm to apologIze Mr Brennan testIfied no apology was receIved, but he conceded the foreman had acknowledged actmg mappropnately The gnevor subsequently told the operatIOns manager that the Issue had been resolved. IV DId Mr Brennan dIsobey a dIrectIOn from Mr Sabounn whIle waItmg for a beer pallet on Apnl 5? Counsel for the umon argued the employer's failure to call Mr PavlakovIc as a wItness should lead me to draw an "adverse mference" that hIS testImony would not assIst management In support of thIS argument, counsel rehes upon the decIsIOn m Great Canadzan Od Sand~,' Ltd. and McMurray Independent Od Workers (1973),3 L.A.C (2d) 245 (Sychuk) where an mference unfavourable to the umon was drawn because the gnevor dId not testIfy The subject of adverse mferences IS revIewed m Sopmka, Lederman and Bryant, The Law ofEvldence zn (1anada (2nd ed.) In cIvIl cases, an unfavourable mference can be drawn when, m the absence of an explanatIOn, a party lztlgant does not testrIY, or falls to provIde affidavIt eVIdence on an apphcatIOn, orfads to call a wltness who would have knowledge of the facts and would be assumed to be wlllzng to asslst that party In the same vem, an adverse mference may be drawn agamst a party who does not call a matenal wltness over whom he or she has excluslve control and does not explam It away Such a failure amounts to an Imphed admISSIOn that the eVIdence of 7 the absent wItness would be contrary to the party's case, or at least would not support It (page 297, emphasIs added) ThIS recItatIOn of the law of eVIdence supports the decIsIOn m Great Canadzan Od Sand~,' The gnevor who dId not testIfy m that case mIght be consIdered a party htIgant At the very least, he was a wItness wIlhng to assIst the umon or one over whom the umon had exclusIve control In thIS case, Mr PavlakovIc clearly IS not a party htIgant As a member of the bargammg umt, he IS not a wItness who would be more wIllmg to assIst the employer than the umon or one whom the employer controls to the exclusIOn of the umon Accordmgly, I draw no adverse mference from the fact he dId not testIfy On the other hand, as already noted, I have rejected as hearsay Mr CrupI's testImony concernmg Mr PavlakovIc' s comment that the gnevor had made a fool of the foreman I determme, on the balance of probabIhtIes, that the foreman dId speak to the gnevor when he was waItmg for a beer pallet on Apnl5, even though he claims the foreman was not present Mr Brennan's earher complamt about Mr Sabounn does not lead me to conclude the foreman mvented a story about what the gnevor dId on Apnl 5 The e-mail sent by Mr Sabounn to Mr CrupI on Apnl 5 shows the foreman's testImony IS not the product of a memory dImmed by the passage of tIme between the mCIdent and the heanng When Mr Brennan receIved the notIce of mtended dIscIphne allegmg he had dIsobeyed a dIrectIOn, he dId not claim no dIrectIOn had been gIven, as he now asserts HIS delay m makmg thIS claim undercuts ItS credIbIhty Counsel for the umon contends the foreman's own account of what transpIred demonstrates that he faIled to gIve the sort of "clear order" whIch, 8 If not obeyed, would warrant dIscIphne for msubordmatIOn Counsel cItes Hunter Rose Co and Graphlc Arts InternatlOnal UnlOn (1980),27 L.A.C (2d) 338 (McLaren) as authonty for the proposItIOn that a 'clear order" IS a prereqUIsIte for msubordmatIOn In that case, no such order was gIven The supervIsor made a smgle "plea" for assIstance, and the gnevor's failure to assIst was held not to constItute msubordmatIOn Mr Sabounn's testImony mdIcates he began by askmg Mr Brennan If he could do another pallet The foreman's words were more m the nature of a questIOn than an order If Mr Sabounn had said no more, there would have been no msubordmatIOn on the part of the gnevor However, the foreman agam spoke to the gnevor several mmutes later, telhng hIm to do another pallet At thIS stage, It should have been abundantly clear to the gnevor that he was expected to load another pallet and that he was not bemg gIven a chOIce between domg that and domg nothmg By contmumg to Wait for a beer pallet, he dIrectly challenged the foreman's authonty m an msubordmate manner The dIscIplmary letter refers to a wntten warnmg, dated June 8, 2000, receIved by the gnevor for not followmg dIrectIOns relatmg to pIckmg orders By movmg dIrectly from a wntten warnmg to a two-day suspenSIOn, the employer skIpped a step m the progressIOn of dIscIphne The events of Apnl 5 do not provIde any JustIficatIOn for bypassmg a one-day suspenSIOn, and I determme that to be the appropnate penalty As the gnevor served a two-day suspenSIOn on Thursday, Apnl19 and Fnday, Apn120, I dIrect that he be paid for Apnl20 Due do hIS suspensIOn, he was not called mto work on Saturday Apnl 21 At the heanng, the employer undertook to pay hIm, at the regularly hourly rate, for seven and 9 one-half hours of work on Apnl21 ThIS undertakIng was made on the understandIng that such payment would be "wIthout prejUdICe and precedent" V Is the gnevor gUIlty of faIhng to "advIse" hIS foreman of hIS departure tIme? Mr Brennan testIfied he told hIS foreman when he would be leavIng, and Mr Sabounn dId not deny reCeIVIng thIS InfOrmatIOn The fatal weakness In the employer's case resIdes In the foreman's admIssIOn that he cannot recall whether he was told by the gnevor when he would be leavIng GIven thIS admISSIOn, I must conclude the employer has not proven that the gnevor faIled to advIse hIS foreman of hIS departure tIme The only wItness called by management on thIS pOInt cannot remember what happened! Is the gnevor gUIlty of not "completIng and returnIng" the proper form as dIrected by hIS foreman? The completed form was returned to the office before Mr Brennan left the premIses and wIthIn mInutes of the resumptIOn of work after the lunch break. Even If Mr Sabounn asked for the completed form ear her that mornIng, he dId not gIve any clear dIrectIOn as to when It should be returned. The foreman testIfied he dId tell the gnevor to return the form to hIm Mr Brennan dId not mentIOn thIS InstnlctIOn In hIS testImony, but he dId not deny reCeIVIng It In the absence of such a demal, I conclude the dIrectIOn was gIven The InstnlctIOn to return the form to Mr Sabounn was not obeyed. To thIS extent, and only to thIS extent, the gnevor dId not complete and return the early departure form as dIrected. If the gnevor returned the form to the office Inadvertently, hIS failure to dehver It to hIS foreman as dIrected mIght not be very Important, 10 especIally gIven Mr CnlpI' S eVIdence that such forms are sometImes returned to the office However, the eVIdence leads me to conclude Mr Brennan's failure to return the form to hIS foreman resulted from hIS uncooperatIve attItude In partIcular, I accept Mr Sabounns' testImony that he asked for the form sometIme after provIdIng It and the gnevor rephed he would return It "when good and ready" Mr Brennan's earher complaInt about Mr Sabounn does not lead me to conclude the foreman Invented a story about what the gnevor said on Apnl 5 Mr Sabounn's eVIdence about the gnevor's comment IS supported by a contemporaneous record, made by Ms Hope- Floyd, of the comment as reported to her by the foreman ThIS record shows that Mr Sabounn' s testImony on thIS pOInt IS not the product of a poor memory Almost ten months elapsed before the gnevor testIfied, and there IS no contemporaneous record to support hIS verSIOn of what he said about returnIng the form For thIS reason, I conclude Mr Brennan dId say he would return the form "when good and ready" ThIS Insolent comment IS IndIcatIve of an attItude whIch explaIns the gnevor's failure to comply wIth hIS foreman's dIrectIOn to return the form to hIm Mr Brennan IS gUIlty of some, but not all, of the mIsconduct alleged In the dIscIphnary letter That letter refers to a wntten warnIng, dated Febnmry 16,2001, receIved by the gnevor for refusIng to complete an early departure form when requested to do so Beanng In mInd thIS warnIng, I determIne the appropnate penalty for the gnevor's mIsconduct on Apnl 5 IS a one-day suspenSIOn, not the two-day suspenSIOn levIed by the employer As Mr Brennan was suspended wIthout pay on Apnl23 and 24, I dIrect that he be paid for Apnl 24 As agreed by the partIes on the last day of 11 the heanng, such a dIrectIOn means that Mr Brennan IS entItled, not only to straight-tIme pay for seven and one-half hours on Apn124, but also to over- tIme pay for four hours on the same day Dated at Toronto, thIS 2ih day of Febnmry, 2002 RIchard M. Brown, VIce-Chair 12