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HomeMy WebLinkAbout1984-1085.Muckart.85-07-12IN THE MATTER OF A GRIEVANCE Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (P. Mu&art) Gr ievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer R. J. ROBERTS ' Vice Chairman I~_ I. J. THOMSON Member. D. B. MIDDLETON Member P. Cavalluzzo Cavalluzzo, Hayes & Lennon Barristers & Solicitors G. W. Sholtack Senior Solicitor Ministry of Revenue May 8, 1985 May 13, 1985 I DECISION -------- In the present case, the griever grieves a twenty-day suspension which he received for alleged acts of insubordination -~ and assault upon his supervisor. At the hearing, cause for discipline was not in issue; the sole issue related to the existence of cause for severity of the discipline. For reasons.which follow, it is concluded.that in the circumstances of this case a twenty-day suspension did'not fall within the range of reasonable disciplinary responses to the-qrievor's actions, and accordingly; the suspension is reduced to one of ten days in duration.: The qrievor is a long-term employee of the Ministry, having commenced employment more than twenty years ago in October, 1964. He is classified as. an Assessor 3, and works out of~the Halton-Peel Assessment Office. It seems that in. this office, the grievor is permanently assigned to that section which deals with Brampton. At the time of the events leadinq to this arbitration, however, the griever was temporarily assigned to assist in a project which was underway in the Mississauga section. This project involved "fine tuning" assessements in the Mississauga areas. It included checking on residential properties to determine if there had been any additions to them that would in- crease their assessed value. The griever's initial role in this project required him to spend considerable time in the field actually checking on the properties. In this regard, he formed part of a team of assessors performing this function. 3. On September 12, 1984, however, the qrievor's assignment abruptly was changed. Inthe course of a meetinq~ with the team of Assessors involved in this project, Mr. R. Moore, the Evaluations Manaqer, decided that three or four Assessors would have to come in from~the field to do residential recalculations in the office. (This involved calculating the re-assessed value of various properties which had been identified in the course of the field work as requiring such actions). Mr. Moore told the qrievor that effective immediately he was assigned to the office to do recalculations. In his testimony, Mr. Xoore stated that he also identified by name one or two Assessors who were similarly detailed: however, the grievor testified that he believed that hqwas the only Assessor that Mr. Moore identif~ied by -.'~:-' name. The evidence disclosed good reason to infer that, to Mr. Moore's knowledge, the qrievor regarded this assignment as inferior to field work and resented it. To put it mildly, it seems that for a considerable period of time there head been"a fraqile~ relationshi@"betweer the two. Mr. Moore testified that since April, 1980, when the griever began to work for him, there had been several unpleasant encounters, although none led to imposition of any discipline. Their relationship had deteriorated to the point where the grievor refused to enter Mr. Moore's office without having. a Union Steward present. The qrievor testified that , from his point of view, he felt it was necessary to take along a Union Steward as a witness to anything that might trans- pire. Subsequent to the meeting, certain events took place which ‘, 4. tended to indicate that Mr. Moore anticipated that the grievor would re- act adversely to his new assignment. Mr. Moore testified that immediately after'the meeting, he saGi the grievor standing at the elevators. When he asked the grievor where he was going, the grievor replied that he had some minor amount of clean-up to do in. the field. Mr. P!.oore stated that he told the griever that~ he would give him an opportunity to do this for Wednesday afternoon, but effective Thursday morning he was to stay in the office and do recalculations. Mr. 3. Edmunds, another Evaluation Manager whose office was .beside that of Mr. Moore, testified that shortly after this, Yx. Moore advised him of what he had told the grievor. He stated that Mr. Moore told him that on Wednesday afternoon the grievor was going to clean . . up his work and he would commence his duties on calculations on the following 'day. In this conversation, the griever was the only Assessor that Mr. Moore talked about. Hr. Edmunds testified that Mr. Moore did not tell him about any of the other employees in the course of this conversation. Subsequent events were to show that if Mr. Moore sensed that the grievor would balk at his new assignment_, he was right. On Thursday morning, the grievor reported into the office as usual, but he did not stay to do calculations. Eie left and went out into the field. Mr. Moore was not around to check on the griever's whereabouts. As a resuit, nothing was said to the grievor. All remained~calm. The next day, which was Friday, September 14, was a different story. From the evidence, one of the first things on Mr. Moore's mind 5. when he reported in for work on Friday morning was the whereabouts of the grievor on Thursday. Mr. M. Sequeira, a Senior Property : Assessor at the office, testified that when he came in at 8:lO to 8:15 a.m. he joined Mr. Edmunds in fir. I!oore's office. According to Mr. Sequeira, Mr. Moore and Mr. Edmunds were talking about the fact that the griever was supposed to have been in the office doing calculations on the previous day. 0. Sequeira stated that Mr. Moore asked, "where was Paul [the grievorl yesterday? Wasn't he supposed to be in?" IQ. Sequeira added that from these statements, he gathered that Mr. Moore would like to see the grievor that morning. Just before 8:30 a.m., the griever came into the office and sat at his desk. When Mr. Sequeira saw him, he-decided to tell Mr. Moore that the grievor had arrived. At that time, Plr. Moore was in the lunchroom, standing in the doorway with a cup of coffee in his hand. He looked like he was just heading out of the lunchroom,. back toward his office. After Mr. Sequeira advised Mr. Moore of the griever's presence, the two of them walked down the hall, towards the office. When - they entered the main area where the Assessors' desks were located, .inued Mr. Moore turned left to go to the griever's desk. Mr. Sequeira con: on. Several witnesses, including Mr. Moore and the grievor, testified as to-what happened next. While there was some,divergence among the stories of these witnesses upon minor details, the essence of their testimony painted the following picture. Mr. Moore approached the.grievor's desk, stood in front of it, and leaned,over and asked 6. the griever whether he had been off sick on Thursday. The grievor replied that he was in,.but that he still had some field~work left to do. Mr. Moore responded that Wednesday was the last day that the griever had for field work and that he was supposed to be doing calculations. The qrievor replied that he still had field work to-do. Mr . Moore reiterated that the grievor was to stay in and cost. Up to .this point, both Mr. Noore and the grievor'had been using a normal tone of voice; however, as the.confrontation escalated, they both became more heated in their exchanges. The griever told Mr. Moore that he would not stay in and cost. Mr. Moore countered with, '"You are in costing, don't leave the office!" The grievor replied, "fuck you!" Mr. Moore reiterated, "stay in!" The griever replied, "fuck off!" Mr. Moore then said, "you can't speak to me like that!' The grievor countered, "yes I can!" Mr. Moore came back with, "no you can't!" lhe grievor replied, "I just did!" Mr. Moore then told the grievor, "blow it out your ass!" The grievor again said, "fuck off!' At this point, the grievor arose from his chair and began to walk around the desk-toward Mr. Moore. ._. His intention, the griever testified, was to leave the area in order to get away from Mr. Moore. As he was rounding the desk, the griever said to Mr. Moore that he couldn't tell him what to do. Mr. Moore, a much bigger man than the grievor, then moved slightly toward the griever, saying that the two of them would have to go over and see the Commissioner (The Commissioner was Mr. R. E. Seach, the Regional Assessment Commissioner for Halton- il. Peel, who had the authority to discipline staff). As the griever . . kept coming toward him, Mr. Moore backed'up so that he could stay in front of the griever while at the same time facing him. When they reached the corner of the aisle where it was necessary for.the griever to turn right in order to leave the area, he found himself blocked by Mr. Moore who by this time had stopped moving. As Mr. Moore testified, the grievor had to~shoulder past him: The grievor testified that he had to push Mr. Moore out of the way. It Gas~'at this point that the grievor turned and lashed out ..,:;;. : with a short, jabbing punch.' This punch did not make contact with Mr. Moore but knocked the coffee out of his hand onto the floor. Plr . Moore testified that this surprised him. The griever then took another wild ._ swin.g but again missed Mr. Moore. By this time, another Assessor, Mr. LaVictoire, 'interposed himself between the twos, but the grievor attempted to swing around -Mr. LaVictoire to strike out at Mr. Moore once-more. At that point, Mr. Moore told the grievor to leave the office and go home. The griever did so. Mr. Moore then went to the office of the Commissioner and briefly outlined the incident to him. The Commissioner issued the following letter suspending the griever: September 14, 1984 YXMQRANDUM TO: W. Paul Muckar~t FROM: Robert H. Beach Regional Assessment Commissioner SUBJECT: '.. Incident September 14, 1984 8. I was informed ,this morning of a serious offence that you committed against Mr. 'R. Moore, Manager of the Brampton and Mississauga area. Pursuant to Section 2211) of the Public Service Act, R.S.O. 1980, I hereby.suspend you without pay immediately pending an investigation. The investigation will take place as soon as possible. R0bert.H. Beach The griever was suspended without pay pending an investigation. The grievor grieved this suspension. On October 9,~ 1984, after a thorough investigation, the commissioner issued~the following letter to the grievor: I have completed my investigation concerning the allegation that you physically assaulted your manager, Mr. R. Moore on the morning of September 14, 1984. I have interviewed a number of staff including 7 witnesses who had given me written accounts of the incident and I find that your behaviour constitutes physical assault, and insubordination. I cannot tolerate such action ~and,thereby suspend you without pay for a period of 20 working days commencing September 14th until October 15, 1985. I must inform you that any similar behaviour or insubordination will result in your immediate dismissal. Robert H. Beach The grievor was suspended for a period of twenty working days for his behaviour on the morning of September 14. The griever grieved this suspension, and in due course this hearing followed. 9. At the outset of its assessment of the appropriateness of the penalty in this case; this Roard recognizes that violence in the work place must be roundly condemned. The point was made in Re Keeling and Ministry of Transportation and Communications, G.S.B. +45/78 (Prichard), as follows: While the severity of the penalties in arbitral awards in the public and private sectors shows some variance, there .is a uniform conclusion that violence in the work place. must be condemned and that very signifi.cant penalties are warranted. Anything less than a very substantial penalty may be insufficient to indicate the severity of the offense and to deter other potential offenders. ._. Id. at p. 33 - It must be recognized that where, as here, the grievor engaged in a violent outburst against his supervisor, he should be subjected to a severe penalty in order to bring home to him the message that~he was wrong. Resort to violence can never be justified. But even where a severe penalty is called for, there are . varying degrees available to the employer. In most cases the degree of severity to be applied would be determined according to an assess- ment of all of the relevant circumstances. ~& helpful checklist of what circumstances might be relevant was set forth in Re Dominion Glass Co. and United Glass & Ceramic Workers, Local 203, (1975), 11 L.A.C. (2d) 84 (Linden), as follows: 1. Who was attacked? [was it the foreman or some other person with whom the grievor would have to continue working?] . . . 2. Was it a momentary flare-up .or a premeditated attack?... 3. How serious was the attack? [did the violence have any serious physical results? . . . 10. 4. 5. 6. 7. 8. Reference Was there any provocation? [did the person who was attacked use any foul language or do anything else in the course of the incident which may have con- ~tributed~ to the rise in the adrenilin level of the griever?] . . . What was the employment and discipline record of the employee? . . . What was the length of service? -The length of service of an employee is one of the most.important factors to.be taken into account in a case such as this. . . . What are the economic conditions? . . . What about an apology? . . . g. at p. 86-88. to these factors in cases~ such as the one at hand has been approved by text writers ,and arbitrators alike. When the facts of the case at hand are considered in light of the foregoing, there emerges the following analysis. First, it must be acknowledged that the grievor attacked his own supervisor, with whom he must work closely. Nevertheless, there can be little doubt that no premeditation was involved. The .attack upon Mr. Moore undoubtedly resulted from a momentary flare-up of the grievor's temper. Ultimately, 'the qrievor regained control of himself and left the premises on his own accord when ordered to do so by Mr. Moore. Turning to the seriousness of the attack, the Board must agree that the grievor's outburst did not have any serious physical results, although it could have. There was some pushing, swearing and swinging but nothing connected. Mr.. Moore acknowledged in his testimony that the grievor did not touch him. The most that happened 11. &as that the coffee cup was knocked out of -his hand. At the same time, the incident was viewed by a large number of employees, which certainly aggravated the situation, but then Mr. Moore swore at the griever within ear-shot of some of the same employees. As to provocation, it must be concluded that while the violent outburst of the griever was inexcusable , a degree of provocation was present -- particularly when Mr. Moore apparently made some attempt to prevent the griever from moving by blocking his access to the corridor leading to the exit. On all of the evidence, it was this action which led to the most violent part of the confrontation. This,it seems, was the "straw that broke the camel's back" and provoked'the grievor into taking his swings at Mr. Moore. While this action on the part of the griever was in- excusable, it would seem unfair to ignore that a degree of provocation helped trigger the violence. Before this incident, the grievor had~a clean disciplinary record. Despite the evident deterioration in his relationship with Mr. Moore, none of the grievor's previous encounters with the latter had led to imposition of any formal disciplinary sanction. Moreover, the grievor was a long-service employee, having in excess of twenty years of service with the Ministry. From the record, it would appear that in all those twenty years, the griever never engaged in any similaract of violence.‘ This tends to lend great weight to the conclusion that in the single instance leading to the present arbitration, the griever made a terrible, but isolated mistake which 12. is highly unlikely,to.be repeated. while the Board is mindful that it should not disturb the disciplinary sanction assessed by management, if it falls within the range of reasonable disciplinary responses to the situation, see Re Gillies and Ministry of Correctional Services, G.S.B. 129/73 (Prichard), at pp. 10-12; Re Boucher and Ministry of Correctional Sefvic,es G,,S.B.. Nos. 465/81 and 76/82 (Verity), at p. 13, we must ;.<; AL. conclude that in light of the above circumstances, the twenty-day suspension which was assessed in this case was too harsh. While the griever was inexcusably insubordinate and ultimately became violent, the incident was the result of a momentary flare-up of temper. No premeditation was involved. Certainly, there appeared to be some provocation which helped trigger the assault. Even though the working relationship between the qrievor and Mr. Moore had been poor for some time, no similar incident appeared on the griever's record. In light of the griever's more than twenty years of service, it must be concluded that the incident was an isolated one and is. not likely to be repeated. Accordingly, it is the conclusion.of the Board that it would have been a reasonable disciplinary~response on the part of management to impose a suspension of ten days, with perhaps some other requirement directed toward improving the re- lationship betweenthe two participants. It is the view of the Board that a positive step toward this improvement would be to .direct the grievor to submit to Mr. Moore a written letter of apology acknowledging that he was wrong in defying Mr. Moore's legitimate instruction to remain in the office and do .., i 13. calculations,and subsequently attacking him. When he testified, the griever indicated to the Board that upon our determination in this matter, he would be willing to apologize if it were .found that he was wrong. This certainly is the conclusion of the Board. Regardless of the poor nature of his relationship with Mr. Moore, the grievor, as an employee, was obligated to respect his legitimate instructions. Hewas not entitled to refuse to~follow them and he certainly was not entitled to resort to violence, even in response to some degree of provocation. Perhaps the submission of a written letter of apology will act as a first step towards the production of a satisfactcry~ working relationship between these two persons. The grievance is allowed in part. The twenty-day suspension is reduced to ten days, with a concomitant requirement that the griever submit to Mr. Moore a letter of apology aldng,the lines set forth above. 'We will retain jurisdiction pending implementation of the terms of this Award. DATED at London, Ontario, this 12thday of July 1985.. Vice-Chairman J. Thomson, Member D; B. Middleton, Member