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HomeMy WebLinkAbout1982-0132.Jones.82-11-02Between: CUPE (J. Jones) Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD - And - . . Grievor The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing - Hamilton Wentworth Housing Authority) Employer J.W. Samuels Vice Chairman R. Russell Member F.T. Collict Member For the Griejor: T. Edwards National Representative Canadian Union of Public Employees For the Employer: A. Tarasuk, Counsel Central Ontario Industrial Relations Institute Hearing: September 30, 1982 .? t., -2- The grievor is a painter employed by the Authority. He does work on various properties managed or.owned by the Authority. On November 20, 1981, he was suspended for three days without pay and told he would receive only half a day's pay for November 19, because the Authority was of the view that the qrievor had~not worked on the afternoon of November 19. The Authority based its action on the evidence of two of its employees. Mr. R.J. Campbell, a Financial Officer, claims that he saw the qrievor at the market in Jackson Square at 1:15 PM on the 19th; and Mr. K. Kroezen, the Maintenance Supervisor over the qrievor at the time, was unable to find the qrievor at the building where the qrievor was working whenMr. Kroezen went looking for the qrievor from 3:35 to 4:lO PM that day. The grievor claims that he was not at the market and that he was at work in the building all afternoon. Thus, this matter is solely a question of credibility and fact. What did occuron the afternoon of November 19? The only point of law which is relevant is that the employer has the onus of satisfying this Board that there'were reasonable grounds for the disciplinary action. If the evidence is inconclusive, then the employer has not discharged this onus, and the grievance must be allowed. We heard testimony from Messrs. Campbell, Kroezen and Jones. At the outset, I would say that each man was a very credible witness. There did not appear to be any animosity between the qrievor and the two management employees. This makes our deter- mination very difficult because the evidence differs so drastically. Let us look at the salient points: 1. On November 19, Mr. Jones was working on' the senior citizens' high-rise building at 30 Sanford Avenue in Hamilton. He had a few things to complete on a work order he received in October or early-November (Exhibit 3). That morning, he started on a recreation room measuring 20' by 21' 2. At around 11 AM, Mr. Kroezen, who supervises some 10 employees scattered all over the city, paid his regular daily visit to Mr. Jones. By this time, Mr. Jones had nearly completed his second wall in the room. There remained to do the , rest of this wall, a long wall with a large window, and a short 5'6" partition wall separating this room from a neighboring recreation room. At 11 AM, there were electricians working in the room and the furniture was moved away from the wall. 3. On the work order (Exhibit 3), there was yet to be done the adjoining recreation room and a kitchen nearby. 4. It is clear policy that Mr. Jones is to complete one work order before commencing the next order, -4- and that he is to do no ~work without an order. However, Mr. Jones testified that often the supervisor of the building, within which he is working, will ask him to begin a job which will be requisitioned shortly, and Mr. Jones will commence the job, if it is convenient to do so. 5. When Mr. Jones is given a work order, he is left to organize the work himself, and will do the jobs in a sequence which is least-disturbing to the occupants of the building. For example, he.won't paint a laundry-room on a busy laundry day. 6. AfterllAM, Mr. Jones completed painting the recreation room. Mr. Kroezen estimated this to be 1 l/2 hours' work. Mr. Jones testified that he spent another 4 hours (from 11 AM to 12:15 PM, and then from 12:45 to 3:30 PM), during which time he went over areas on the two previously-done walls which had not been covered adequately by the first coat of paint, removed the curtains and track over the window, filled in the plaster under the window, painted the rest of the room, cleaned up and replaced the furniture. In my view, Mr. Kroezen's estimate of time is clearly too little. This means that, if Mr. Jones was at the market at 1:15 PM, he returned to work afterwards. . -5- 1. Mr. Campbell knows the grievor only casually from brief social meetings at Christmas parties and the like during the course of their mutual employment by the Authority over 9 l/2 years. They have never worked together. He testified that, on November 19, he stood 3 to 4 feet from the grievor at the cheese counter in the Jackson Square market at 1:15 PM. The grievor, he says, was with a woman and engaged in conversation with her. He couldn't hear what was said though hardly anyone else was around and the grievor was only a little more than an arm's length away. He said nothing to the grievor, Andy there'was no sign from the grievor of recognition of Mr. Campbell (though the grievor was busy talking to the woman). The grievor says he was not at the market at this time. I am not satisfied that he was there. The grievor is ,a fine looking man, but not remarkable. He has no special distinguishing features. Mr. Campbell could well be mistaken. He saw the man from the side and some of the front of his face, there were no words of recognition spoken. Having experienced numerous embarrassing occasions of mistaken identity, I know how easily it is to think the person before you is someone else. 8. Mr. Jones testified that he had his lunch in the building from 12:15 to 12:45. I am prepared to accept this evidence. -6- 9. Later in the afternoon, having been told of the sighting in the market, Mr. Kroezen returned to 30 Sanford at around 3:35. As he drove into the garage, the first thing he noticed was that Mr. Jones' car was not in its usual spot, and was not to be seen in the garage. It had been there in the morning when he came on his regular round. He went to the paintshop in the basement and noticed that everything seemed to be put away for the night--brushes and rollers were clean, paint trays, drop sheets were folded, and there were safety shoes and work clothes in the locker. He went up to the recreation room and saw only the caretaker and some tenants in the room. He did not check at that time to see how much painting had been completed, though he noticed that all the furniture was back in place, and he did not speak to anyone to ask where Jones might be. He went to a phone in the nurse's office and called his super- visors to see what should be done. He was told to speak to the grievor in the morning, and to suspend him for three days if he was not satisfied with the reason for his absence. He went back to the paint- shop to wait for Jones and was there from around 3:50 to 4:lO. He then left 30 Sanford. 10. Mr. Jones' testimony concerning this period of time is as follows. Around 2:00, his daughter and son- in-law came to get his car for the afternoon. This was a regular practice. He finished the recreation room around 2:30, and was approached by some of the senior citizens and asked if he could leave the adjoining unpainted room for the rest of the after- noon because they wanted to use if for card-playing. By 3:00, he had cleaned out all his tools and drop sheets. He took coffee for 15 minutes. He went back to the room to see if it was fine for the tenants and put up WET PAINT signs. Then back to the paintshop where he cleaned up his brushes and rollers. This was finished around 3:25. He then went across the street to a key shop to have a key made for the door from the parking garage to the basement in the building. He had been having trouble with his key. The new one cost some 85C, and he did not think of putting in a claim for reimbursement. He returned to the paintshop shortly thereafter, and decided that, rather than sitting around for the next hour (because he couldn't start the next job on the work order in that time), he would go up to the 11th floor and touch up some fire doors with yellow paint, in preparation for full painting which he was told would soon be requisitioned by the super- intendent of the building. In fact, this work was later requisitioned and was the subject of his next work order. He took with him to the 11th floor a . i can of paint and a 2" brush. He was wearing a second set of clothes that was at 30 Sanford at the time. Mr. Kroezen acknowledged that there may have been some yellow paint left in the paint- shop from the fire doors in the basement which had already been painted. Mr. Jones returned to the paintshop around 4:15, cleaned up, and was picked up in front of the building by.his daughter at around 4:35. 11. The next morning, at 8:00, Mr. Kroezen went to 30 Sanford,to meet with Mr. Jones. They met in the garage and proceeded to the paintshop. Mr. Xroezen's version of what occurred is as follows. He asked for the grievor's time-sheet for the previous day and Jones made it up showing 8 hours painting walls (Exhibit 5). He then asked when the grievor took lunch and was told 12:15 to 12:45. He told Jones he had been seen at the market at 1:15. Mr. Jones replied he never went to the market. Mr. Kroezen asked when Jones quit work and was told 4:30. He told the grievor~ he'd been at 30 Sanford from 3:35 until 4:lO and saw no sign of Jones. Mr. Jones replied that he went to have a key made and that the electricians were working in the room so he couldn't paint any more and it was too late to do something else so he left early. Mr. Kroezen then said he'd have to suspend him for three days. . -9- 12. , It is importantto note that Mr. Kroezen testified he didn't believe the "key" story and didn't even know whether there was a key shop across the street. In fact, he said under oath that he didn't think there was a key shop. I accept Mr. Jones' evidence that there is in fact a key shop. The way in which Mr. Kroezen conducted this interview leaves much to be desired. He asked a prepared question with no follow-up and made no effort to verify whether or not what was said was true. He gave Mr. Jones no opportunity for clarification or further explanation. Mr. Jones' version of this meeting is different. He testified that Mr. Kroezen seemed uneasy, as if he had to do something which he didn't want to do. The first thing Mr. Kroezen said was "Don't bother changing into your work clothes because you're suspended for 3 days. You were seen at the market at 1:15." This upset Mr. Jones. He then recalls some conversation about events later in the afternoon, but is unclear on this because he says he was so bothered by the allegation concerning the market. He recalls'saying that the electricians were in his way in the morning on the 19th, but they had left the recreation room in the afternoon, and he wouldn't have said they were.working in the room in the ,i - 10 - afternoon. He says that he was asked to make up the time-sheet after he had already been suspended. 13. Mr. Jones was asked by the employer at the hearing about several previous disciplinary actions related to leaving work. His responses were unclear and it appears that some may have been withdrawn, others contested successfully. The documents were not introduced in evidence, nor proven by the employer. In this situation, I think it is clear that their brief introduction in cross-examination without an unequivocal acceptance by the grievor, is not relevant. The result of all of this leaves us in the situation of either believing Mr. Jones (and he was a very credible witness), or concluding he is a consummate actor with a great story. The one problem is that it does appear he never mentioned painting the fire doors to Mr. Kroezen. However, Mr. Kroezen's approach left little opportunity to fully explain one's actions. At the least, I remain unsatisfied that it is proven the grievor was not at work until 4:30. At the most, I tend to believe Mr. Jones' version of his activities. Thus, the employer has not satisfied the onus of showing just cause for the suspension and I must allow the grievance and order full compensation to the grievor. This Board will remain seized of this matter if the parties are unable to agree on the amount of compensation. . ‘. - 11 - DATED at London, Ontario, this 2nd day of November, 1982. R. Russell Member "I dissent" (see attached) F.T. Collict Member 7:3130 1. Grievance Form 2. Collective Agreement 3. work Order 4. Drawing of recreation room 5. Time sheet 6. Notes of meeting on November 20th 7. Letter of Suspension - 12 - LIST OF EXHIBITS DISSENT The Employer Representative is in dissent with the majority decision in this case. Very simply put, the nature of the problem is one associated with thebalance of probabilities and the preponderance of evidence. The following is a numerical summary of the significant evidence in this case and the responding position of the grievor and/or his representative: 1. The grievor was not at work and could not be found by his supervisor between 3:30 P.M. and 4:10 P.M. on November 19, 1981. Grievor's Response (a) He wanted to get a new key for the basement garage door. He had come downstairs at 3:20 P.M. He had then gone across the road for a new key and had returned to the locker area between 3:30 and 3:35 P.M. Apparently the two had missed seeing each other at this time. (b) After taking about 5 minutes to mix yellow paint, the grievor went to work on the 11th floor and returned to the basement at wash up time - 4:20 P.M. 2. On November 20 at approximately 8:00 A.M., the grievor was confronted by his supervisor, Mr. Kroezen, who informed him that if he had returned from obtaining a new key at approxi- mately 3:25 P.M. that he would have seen him. Where was he? Grievor's Response Mr. Kroezen's testimony was that Mr. Jones said "I left early, so what:? I could do no more work because the electricians were up there". Comment Mr. Edwards, counsel for the grievor, conceded in his open- ing remarks that the grievor "....left a few minutes early" Vice-Chairman J. Samuels asked for clarification - "A few m utes before 4:30?". Mr. Edwards' response was, - "Yes". lin- Exhibit VI was prepared by supervisor Xroezen on November 20, 1981, subsequent to his conversation with the grievor. It supports the Employer's position that the grievor stated he had left early and that no discussion took place concerning work to be performed on ae 11th floor or the need to vacate the recreation room because of a card and/or cribbage party. 2. , Mr. Kroezen's further testimony was that the grievor threw his work shoe across the locker room at the beginning of the shift (approximately 8:00 A.M.) on November 20 when he was informed that he would be suspended. 3. The grievor was asked why he had left his work area early. Grievor's Response At the hearingthe grievor stated that senior citizens had approached him at 2:30 P.M. and informed him that they wanted to have a card party. At approximately 3:30 P.M. he stated that there were a dozen people playing cards and cribbage. Comment Supervisor Kroezen states that there was noone playing cribbage or cards at 3:30 P.M. in the recreation area where the grievor was assigned to work. lrloreover, no comment was made to super- visor Kroezen concerning cribbage or a card party when the grievor was questioned on the morning of. November 20, 1981. 4. The grievor's work shoes and work clothes were in his locker between 3:30 P.M. and 4:lO P.M., his paint brushes and trays had been cleaned and his drop sheets had been neatly folded. ~The light in the locker room was out. Generally it is on while the grievor is at work. Grievor's Response The grievor has two sets of work clothes and he did not need the drop sheets and trays on the 11th floor where he states he worked between approximately 3:20 and 4:20 P.M. on November 19. Comment The grievor offered no explanation for the fact that his work shoes were in his locker between 3:30 and 4:lO P.!?.; notwith- standing the fact that all other paints, brushes, drop sheets, and work clothes had been put away. 5. Why would the grievor perform work on the 11th floor when he is assigned to work by work order only: and he had no work order for the 11th floor fire doors? Grievor's Response The superintendent, Mr. McKay, had asked him to do this. ,C .i . 3. 6. Why would the grievor take on this extra assignment when he specifically had been instructed by supervisor Kroezen to take on assignments and report work on his time sheet only on a work order basis. Grievor's Response The superintendent had asked him to do the work. Comment The grievor conceded that he had been instructed not to perform work without a specific work order. The grievor saw his supervisor once each day. He had ample opportun- ity to review with him the requests of the superintendent of 30 Sandford if he were being pressured to perform various extra work assignments. He had seen his supervisor at approxi- - mately 11:00 A.M. on November 19, 1981. 7.~ When approached by his supervisor on November 20, 1981, con- cerning his whereabouts between 3:30 and 4:lO P.M. on November 19, why had he not mentioned that he had been on the 11th floor painting? Grievor's Response Apparently he had not thought of it at the time. He stated that he was upset because his supervisor had suspended him. Comment Exhibit VI, prepared by supervisor Kroezen on November 20, 1981, has no record of x comment by the grievor concerning painting on the 11th floor. Surely the logical comment to have been made by the grievor to explain his absence on November 19 was to state that he had been painting on the 11th floor!? Additionally, Exhibit V, which is the Daily Time Sheet super- visor Kroezen states was prepared by the grievor prior to the suspension, records that 8 hours had been spent to "Paint walls" - presumably in the recreation area. There is no Work Order to require the painting of fire doors on the 11th floor and it would seem reasonable that the grievor would have re- corded the work on his November 19 Daily Time Sheet had he done it. 8. Why had the matter of the 11th floor painting only come to light at the arbitration hearing? .~ 4. Grievor's Response Apparently he had not thought of it at the time. He states that he was upset because his supervisor had suspended him. 9. Why was the grievor's car on late afternoon of November 19, not in the underground gargage in the same place he usually parked and where he had parked over the past 5 to 6 months since assigned to the work location at 30 Sandford in Hamilton? Grievor's Response His daughter and her husband had wanted his car and had picked it up during the day. His son-in-law had picked him up after work on November 19, 1981, after 4:30 P.M. Comment The grievor conceded that he usually parked in the same place in the underground garage. 10. The grievor did not submit an expense charge for the cost of the new key he states that he purchased some time after 3:20 P.M. on November 19. Grievor's Response The amount was so little (approx. 8OC) the grievor didn't feel it necessary to file a claim. Comment' It is the usual and normal responsibility of supervisor Kroezen to purchase such items. Inasmuch as supervisor Kroezen sees the grievor each day, it would seem reasonable for the latter to discuss with him a need for a new key for the garage in the building. No complaint concerning the garage door lock had been made to supervisor Kroezen and no request for a key had been made. Based upon the above, one is clearly into the frustrating area of credibility, the balance of probabilities and the question of preponderance of evidence. The witnesses were forthright and believable; and, indeed, it is even possible that supervisor Kroezen @ have missed the grievor between the hours of 3:20 and 4:lO P.M. when the grievor claims he was obtaining a new key, was mixing paint, and was travelling to and,working on the 11th floor. Supervisor Kroezen himself stated that he looked for the grievor in the garage, the locker room, in the recreation room where he was supposed to be painting on the first floor and that he went to the nurse's office to make a phone call. All of this he stated took place between 3:30 and 4:lO P.M. 5. In review, however, that which is probable certainly must be possible; but that which is possible is not necessarily probable. In view of the seriousness of this situation, this Member would agree with the majority and dismiss the grievance owing to the nature of the issue before us. That is, this situation is not one which warrants a three day suspension. Rather, management is alleging that an employee, Mr. J. Jones, has committed a fraudulent act of being absent without permission and of sub- mitting a time sheet to ensure that he will receive wages for the time he was not at work. This is an action which does not warrant a three day suspension. It is one which warrants a much more severe penalty, up to and including possible discharge. The standard of proof, therefore, is one which demands something more than, say a 50 - 50 probability that the grievor was not at work when he should have been. Rather, it requires, as is well established in arbitral jurisprudence, a higher standard of proof, but falling well short of the standard of proof "beyond a reason- able doubt", keeping in mind the gravity of the consequences that might have obtained. As chance would have it, however, in this case there is another witness. Mr. R. J. Campbell, Financial Officer of the Hamilton Housing Authority, testified that he saw the grievor in the Hamilton market at approximately 1:15 P.M. on November 19, 1981.. The grievor testified that his lunch period was approximately 12:15 to 12:45 P.M. on this date. He also denies that he was in the market. Mr. Campbell states that there were very few people in the market, that his view was unobstructed, and he looked at the grievor two or three times from a distance of three to four feet. He testified that he saw the grievor from an angle which enabled him to see about two-thirds of his face. He also had been at an awards night affair approximately one week before when the grievor had received a ten year award and Mr. Campbell had re- ceived a five year award. The undisputed testimony was that Mr. Campbell was no no more than two feet away from the grievor at the time the long service pins were awarded, they had "rubbed shoulders", and during the evening he had spoken to the grievor for about one minute. In total approximately 50 people were at the awards meet- ing in a room 50% larger than the G.S.B. hearing room. In response to a question from the Vice-Chairman, Mr. Campbell stated that the awards session lasted two to three hours. Grievor Jones testified that "If he (Campbell) talked to me on Awards Night, I don't re- member". . The grievor, Mr. Jones, had been with the authority ~for about 16 years. Mr. Campbell has approximately 9.5 years of service. There are only approximately 130 employees in the Hamilton Housing Authority. Mr. Campbell's testimony was that he had had about 12 to 15 hours of contact with Mr. Jones over the 8 to 10 times he had met him over his 9.5 years of service. The one occasion prior to the awards night affair was when the two had acknowledged a simple recognition when Mr. Campbell had passed through a room where Mr. Jones was involved in a grievance meeting. Kc. Jones conceded that this had happened. The latter also acknowledged .~ 6. that there would be no reason for animosity between himself and Mr. Campbell: and he conceded further in cross-examination that he II.... might have said Hi: to Mr. Campbell as I've moved through the office". One final matter to consider is that the grievor agreed that he had several disciplinary notations on his record from June 1978 to November 1980 concerning the same issue of being "off the job". In the words of the grievor, acknowledgment of this fact was - "I'm not denying that!". Supervisor Kroezen had visited the grievor on the morning of November 19 at approximately 11 A.M. When he examined the amount of work that had been performed by the grievor after 11:OO A.M., he found that approximately only one more hour of work had been performed for the balance of the day. The grievor stated in testimony that he had worked through until 2:30 P.M. There was a large'window in the wall to be painted. The grievor alleged that he had a lot of plastering to do around the window and that this is what took most of his time. In review of this case it is apparent that the Company had various concerns with reference to the apparent absence of the grievor on Novhnber 19, 1981. The grievor has responded to them. In the view of this Member, these responses have been too "neat". Notwith- standing this view, the "neatness" of the grievor's responses might have been acceptable - had there not been a witness who had no animosity towards him and who appeared as a witness to state that he had seen him in the Hamilton market at 1:15 P.M. on November 19. Testimony by supervisor Kroezen is that the griever stated he 'left early on November 19 - "so what?". Counsel for the grievor in his opening remarks, and in response to a question from Vice- Chairman Samuels, stated that the grievor had left early on November 19. The grievor, intestimony and under oath, stated that he had not left work on November 19, 1981, until 4:30 P.M. at the termination of his shift. Surely when evidence conflicts in this fashion, whether a question of - leaving work early? - how much work was done after 11:OO A.M. on November 19? - whether or not there were people playing cards cribbage in the recreation room at 3:30 P.M. on November 19? - whether or not the grievor was seen by witness Campbell at 1:15 P.M. in the Hamilton market on November 19? the Board has no choice but to accept the evidence of witnesses Kroezen and Campbell in preference to grievor Jones? 7. It is the position of this Member that the Employer has proven its case. The civil standard of proof is the basic standard to be met. However, this Member would not rely simply upon "the balan,ce of probabilities" to rest his case. As stated earlier in this dissent, one might give the grievor the benefit of a 50 - 50 probability. However, as stated in Spruce Falls Power & Paper Co. Ltd. (1971) 22 LAC 406 (Johnston) at p. 411, "We are satisfied not only that the circumstances are consistent with the offence but that the facts are such as to make it reasonably probable having due regard to the gravity of the suggestion (theft or appropriating property without valid excuse), that the act was in fact committed." (underscoring added) and further, as set out in general terms in Brown & Beatty at page 290, "One school of thought holds that . . . . the employer is only obliged to prove its case on the balance of proba- bilities. On the other hand, a significant number of recent decisions appear to require the employer to prove its case on some standard which falls between the criminal and civil burdens of proof. This school of thought sub- scribes and holds to the view that the more serious or reprehensible the alleged misconduct, the more stringent the.standard of proof that is required to be satisfied. Thus, it is said that an allegation of criminal mis- conduct must be proven by 'clear evidence' or on a standard of 'reasonable probability'. The consequence of this case involved a suspension to the grievor of three days. It was not an allegation that he had involved himself in "criminal misconduct". It is the position of this Member, however, that based upon the testimony of all witnesses, the critical extremes of this testimony, ‘(seen or not seen at the market, leaving or not leaving early, card playing or no card playing at 3:30 P.M.), the statement of counsel for the grievor that he had left early on November 19, and the prior record of the grievor on several separate occasions for the same offence, that the Employer has proven its case. It is "reasonably prob- able" that the grievor was not at work during the afternoon of his shift on November 19, 1981. Hence, the three day suspension was for just cause. In view of the above, this Member would have dismissed this grievance. October 25, 1982