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HomeMy WebLinkAbout1979-0224.Woods.80-06-20224/79 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 1 Between: Before: For the Grievor: For the Empioyer: Hearinq: Mr. Larry Woods and ~' The Crown in Right of Ontario Ministry of Transportation & Communications .Professor Katherine Swinton Vice-Chairman Mr. Andre Fortier Member Mr. Brian Switzman Member Mrs. Lillian Stevens Ontario Public Service Employees Union Mr. J; E. Clarke, Personnel Services Ministry of Transportation & Communica .tions June 10th. 1980 Toronto, Ontario . I. This case involves a grievance in which Larry Woods claims that he has been unjustly discharged fcr assaulting his supervlsor, Vern Cochrane. At the outset of the hearing, counse7 for the employer raised a preliminary objection to the jurisdiction of the Board. The basis of the objection was the grievor's failure to.file an application for the hearing of the grievance with the Grievance Settlement Board within the time limits specified ifI micle 27 of the Working Conditions Collective Agreement (Ex.1). The grievor was discharged by letter dated February 20, 1979 '1 (Ex.2). He grieved in accordance with the grievance procedure set out in Article 27, commencing at Stage 2, the Deputy Minister or designee level. A denial of the grievance was contained in a letter dated March 3, 1979. The next step in the grjevance procedure.is Article 27.4, which states: .; .- , If the griever is not satisfied with the decision of the Esputy Minister or his designee or if he dces not receive the decision within the specified time the griever may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he< received the decision or within fifteen (15) days of the specified time limit for receiving the decision. The fifteen-day period within which Mr. Woods should have applied to the Grievance Settlement Board ended March 26, 1979. At that date, no application had been received by the Board, although,the union representative z- stated that a request for a hearing had been sent to this Board by James Fawcett, the Staff Representative in Kingston,dated March 7, 1979. This was never received by the,Board. Mr. Woods discovered that the application had not gone forward when he received his superannuation payment. He contacted the union, which immediately filed an application with the Board dated September 18, 1979. The employer argues that this application is of no effect because of ti;cle 27.9 of the Coliective Agreement which reads: Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. By Article 27.12 ~this Board has no jurisdiction to change the time limits in the collective agreement. The union argued that the Board has jurisdiction because of the statutory right of an employee to grieve dismissal found in s.l7(2)(c) of The Crown Employees Collective Bargaining Act, S.O. 1972, c.67, as amended. That section reads: In addition to any other rights of grievance under a collective agreement, an employee claiming, . . . . . . . . . (c) that he has been disciplined or dismissed or suspended from his employment wi%iout just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure~for final deter- mination applicable under section 18. 1974, c-135, 5. 9, part. The union relied on the Keelins case (4~781, decided by another panel of this Board, which held that the time limits in the collective agreement cannot override the statutory right to grieve granted to an individual employee by s.l712)(c). Professor Prichard went on to Say (at p. 20): ~fie first use of the phrase 'final determination under such procedure' in section l?(2) must be given the meaning "final determination under such procedure acceptable to the employee’ in order to dvOid the 1OgiCdlly absurd drgUim2t that d determination dt Stage Two of the gi-ievdnce process iS d final determination under such procedure' and thus exhaustive of the right of grievance. In that case, the griever was a few weeks late in filing an application with this Board. This interpretation of the scope of, s.~~G?)(c) by the Board has been upheld by the Divisional Court on judicial review. I It is difficult to distinguish this case from the Keeling case on the facts. In both cases, we have a situation in which'the grievor has failed to comply with the time limits in the collective agreement in coming before~this Board. Absent any proof that the individuals grievor has knowingly chosen to abandon his right to proceed to the Grievance Settlement Board and that he has accepted management'~s decision at Stage 2, he cannot be prevented from proceeding ,to arbitration under s.l7(2)fcl because of time limits set out, in the collective agreement. That does not mean that an individual has an unlimited right to seek arbitration of a dismissal or djSciplinary action at any time, even years after the event. tie may be met by evidence showing that he had accepted management's action and therefore, there has been a final .determination under the grievance procedure "acceptable to the employee", .~, to use Professor Prichard's words.The onus is on the employer to show that there has been such an acceptance of the decision by the employee. There was no such evidence presented here. Alternatively, a grieVOr who proceeds under s.17(.?~ (c) of the Act may still be metwith an argument that the arbitrator should declare the matter inarbitrable because of undue delay. This is not an argument going to the jurisdiction of the arbitrator, as were the earlier arguments. Rather, this is a decision on the merits of the case, taking into account evidence of prejudice to the employer's case caused by the delay. It was argued here that the employer has been prejudiced by the delay of six months in filing the application in the following ways: the buildup of backpay if reinstatement is ordered; interference with its ability.to ) . organize and assign staff; interference with its ability to secure supporting evidence; and~the lack of a vacancy on staff at present. The union, in response, agreed-to take responsibility. for any financial costs to the employer caused by thti delay. At the hearing the Board dismissed the preliminary objection to jurisdiction, for the employer's objection appears to have been settled by the Keeling case, as discussed above. However, we agreed to consider the argument with regard to delay as an aspect of the merits of the case. In doing so, we haves failed to find that there is adequate evidence to lead to a conclusion that the matter is inarbitrable because of delay. The employer failed to show that presentation of its case was in any way prejudiced by the delay, for all key witnesses were available. Furthermore, the~delay of six months does not have appeared to have clouded memories significantly. While the employer might be prejudiced financially, that aspect of the case is settled by.the union's undertaking of liability for any added costs. Weighed against management's claims must be the griever's ! competing interest. The grievor here iS an individual with a long service record who seeks the return of his job. This is an important right which he seeks to protect, as recognized by statutory provisions such as s.l7(2)Ic) of the Cram Employees colbctive Bargaining Act. There would have to be much greater evidence of prejudice than that presented here to lead the Board to find the matter in.arbitrable because of delay. Therefore, we must now turn to-a,consideration of the merits of the ~ case. There was little dispute as to the details of the assault, which occurred February 6, 1979 between 11:30 and 12:OO p.m. The grievor is anEquipment ! Operator 3 with the Ministry of Transportation .and Communications. He has worked for the Ministry since July 7, 1965. At the time of the Incident, he was assigned to Patrol 3 at the Barriefield Patrol Garage near Kingston. In "the winter he drove a snowplough and in the Sumner worked on road crews. His personnel record indicates that he has anaverage employment history and that he has no formal record of disciplinary action. On the night of.February 6, Vern Cochrane, a Night Patrolman and the supervisor on the night shift, entered.the garage office. Cochrane was a full-time supervisor in winter and reverted to employee status in surmner. The grievor, Larry Woods, was sitting behind the desk. Also present was Terry Nuttall, another Group I Operator. Nuttall and Woods had been discussing an incident involving loss.of their coats from the garage that fall. Both Nuttall and Woods had left coats at the garage in the spring. Woods' coat'was especially important to him because it was a gift from his parents. There were no lockers in the garage, so coats were kept on hooks in the garage and in the lunchroom. On October 25, 1978, Vern Cochrane and John Gates, his supervisor. cleaned out the lunchroom. Cochrane claims that all he threw out was an old bed and mattress, some socks, and an oil-stained coat of Nuttall's (for which Nuttall had been reimbursed). Woods had been lent to the patrol next door on that day, although he returned October 26. He noticed his coat missing sometime in November, and decided that Cochrane had thrown it out. He~spoke to Cochrane on December 1, 1978, accusing Cochrane of throwing out the coat. Cochrane denied this, saying he only threw out old rags. Cochrane testified that Nuttall did not mention his coat.until t&night of the 1 incident, although.Nuttall said he raised the matter earlier. Nothing further was said about the coats until the,night of February 6, 1979. Woods had talked to another supervisor Andy his union steward in the interim. The latter told him to get Cochrane to sign a paper saying that the coats had been thrown out on the orders of Gates, the supervisor, and the employees would be reimbursed. When Cochrane entered the office on February 6, Nuttall asked him what he was going to do about their coats. He replied, "What coats?“. Woods then asked him to sign a paper that Gates had ordered the coats thrown out so that the employees could be reimbursed. Cochrane said that there was no way he could do so. Woods then got up from behind the desk and punched Cochrane. Nuttall said that he was swearing as he cameo around in front of the desk. Both Cochrane.and Nuttall said that the punch was totally unexpected. Cochrane fell to the floor, striking his back on the leg of a metal chair and hitting his head: He was wedged in a comer against a cement wall and a cabinet. Woods jumped i, on him and began to punch,him. Nuttall yelled at him to quit and tried to pull him off. Unable to do so, he called for help from two other employees, Chase.and CcFadden. The three pulled Woods off. At no time was Cochrane hitting or striking back, according to his evidenoeand huttall's, although Woods testifiec that he was kicked Cochrane then got UP. Woods hit him agafn, shoving him into the wall. He then stopped and went to sit a$ the desk. Cochrane said that he would look into~this and Woods stated, "Ifyou make any trouble, I'll kill you." Cochrane finished some bookwork, taking about five minutes,and then went home, feeling upset and shakey. He went to the doctor the next / day. He- suffered a bruised face, wrenched back and damaged kidney'from the event and was off work for four weeks as a result. The grievor does not deny that the incident occurred. However, he argues that the penalty is too harsh because he was provoked into attacking Cochrane. The grievor testified that Cochrane called his coat garbage and rags, both in the first discussion and on February 6. He also testified that Cochrane smirked when he said this, "as if to say we got one on you.II The grievor also testified (and Cochrane corroborated) that the grievor apologized after the first grievance meeting,one week after the incident, saying that he was sorry that he had hit Cochrane. He said that he had not apologized earlier because he felt.it was a "fifty-fifty thing." At the hearing he was asked if he thought that he would repeat this type of conduct and he said that he didn't think so. He added in cross-examination that he didn't think "Cochrane would pull it again." This is a difficult case to decide. On the one hand, we have clear evidence of a serious and violent assault on Cochrane by Woods. Assault on a supervisor has usually been held to be automatic grounds for discharge, for two reasons. Such an assault is regarded as a challeng,e to the employer's symbolic authority. Equally important is the interest of the individual employee who has been attacked, whether or not he is a member of the supervisory staff, for every employee has a right to expect protection from physical assault and to be accorded respect for his physical integrity. No employee should be expected to work in a situation where he fears attack from a fellow worker. This Board has frequently expressed the view that assault on fellow employees must be viewed as an extremely grave offence: McCarthy, 66/77; Keeling, 45/78 Here, we have a situation where Woods attacked Cochrane unexpectedly and, despite the union's argument to the contrary, without provocation. There is no doubt that the incident about the coats had ,been simmering in Woods' mind and that he believed that Cochrane had thrown out the coats and called his coat garbage on two occasions. We have some doubts about the truth of the latter statement, as Woods was not a completely satisfactory witness, contradicting himself several times and alleging that Cochrane called the coat garbage again on February 6, when Cochrane denied this and Nuttall did not remember it. More importantly, even if Woods was upset about the coat and blaming Cochrane, that does not constitute provocation nor excuse what he did. There was a three month gap since the coats were allegedly thrown out and over two months since Cochrane had been consulted. If Woods was still upset about his coat, he had other ways to settle such a dispute with management than through the use of force. There can thus be no justification for excusing Woods' attack on Cochrane, and his conduct warrants severe disciplinary action. The question _! . ‘) in the circumstances and exercise its discretion under 5. 18(3~ of The crown Employees Collective Bargaining Act. In doing so, this Board in the past has considered the often quoted list of. facton in the Steel Equipment case which should be weighed in deciding whether dismissal should be upheld. (see McCarthy, supra, p. 8). tie facts must be assessed in light of the concept of corrective discipline. Itmust be determined whether the enPlOYe@, if returned to his job with a penalty such as a lengthy suspension, will learn from the disciplinary action and correct his behaviour in'the future. Whereas 1 arbitrators once regarded assault on a supervisor as automatic grounds for dismissal (See, for example, Consumer's Glasi (197OJ, 21 L.A.C. 78 (BrownJ),~ 1.; there are several cases in which such grievors have.been reinstated because of surrounding circumstances (Re Davis Lumber co. (1975J, 9 L.A.C. (2dJ 391 (Shime); Re Ford Motor Co. Ltd. (1974J, 7 L.A.C. (2dJ 199 (Palner);Canadian Carborundum (1973), 5 L.A;C. /2df..29 (Arthurs). On the one hand, we are faced with a very serious assault. The attack was completely unexpected - a "sucker shot" to use Nuttall's words. It was not an isolated punch, but several blows. It was even more serious in light of ,a large weight differential in Woods' favour betweenWoods and Cochrane. Finally, Cochrane was.injured and off work for a significant period. Weighing in the grievor's favour are two important factors: his lengthy period of 'seniority (I3 years) and his clear disciplinary record. He has a great deal to.lose because,of one incident. One might also be concerned the union led no evidence in this regard. Consideration must also be given to the likelihood of correction. This does not appear to be a momentary flareup, provoked by the employer,but a deliberate and unprovoked,attack directed at a supervisor. The griever made no effort to explain why he reacted so violently and in a manner totally out of proportion to the stimulus of the lost coat, except for a passing ccmment about marital troubles. In circumstances like those of the present case, where the assaul~t was so serious, it is difficult for an arbitration board to decide on the likelihood of correction or the risk of repetition of the assault without some explasation or sincere indication of regret and acknowledgement of wrongdoing by the grievor. The grievor did apologize in this case, but a week after the incident. The sincerity of his apology may be open to question, for he still seemed to believe that Cochrane was partly at fault at the time of this hearing. This is troublesome, for if the grievor were to be reinstated, he would likely be working with Cochrane again, and it is questionable whether they cculd work together harmoniously. The decision in this case is difficult, in light of the griever's seniority and record. However, in light of the severity of the assault, the fact that it was directed at a supervisor, and in the absence of sufficient '. evidence to show mitigating circumstances and an ability to avoid this behaviour in the future, we are not prepared to interfere with the employer's decision to discharge in this case. The grievance is therefore dismissed. Dated at Toronto this Mth day of June, 1980. Katherine Swinton: Vice Chairman I concur Andre Fortier, Member I dissent(n0 Paper) Brian Switzman, Member lbq -.