(1) On the morning of January 1, 1981, Patrick Walsh reported for duty at 10:00 a.m., this being late for duty by one and a half hours, his normal shift would have commenced at 8:30 a.m.

(2) The Assistant Housekeeper, Mrs. Smith, instructed Mr. Walsh that he, Mr. Walsh, and his fellow Houseman, Robert Tucker, should clean the Fort William Room and the dining room and set them for dinner immediately.

(3) Approximately one hour later, Mrs. Smith entered the dining room to find Messrs. Walsh and Tucker sitting at a table, having done very little but move a few chairs. They were again told to complete the task assigned.

(4) At approximately 1:15 p.m., the Head Waiter, Mr. Ken Richards, entered the dining room to find that only three tables had in fact been set up. When Mr. Richards asked employees Walsh and Tucker to take up the dance floor, they refused to do so.

(5) Realizing that further discussion with the employees would not achieve results, Mr. Richards called the Assistant Manager, Mr. Fred Steele.

(6) Mr. Steele requested the employees to remove the dance floor and when it became apparent that the request would not achieve results, Mr. Steele then

proceeded to instruct the employees to perform the task in question, at the same time requesting that Mr. Richards advise him when the job would be completed.

(7) A short time later, Mr. Richards advised Mr. Steele that Mr. Walsh had "absolutely refused" to remove the dance floor. Mr. Steele then instructed the Assistant Housekeeper, Mrs. Smith, to suspend Mr. Walsh pending a meeting with the General Manager, Mr. O’Callaghan, on Monday, January 5, 1981.

(8) Unfortunately, because of the unforeseen absence of the General Manager, a meeting was not held as planned on January 5. When the meeting was subsequently held, on January 6, 1981, Mr. O’Callaghan advised Mr. Walsh that he had been made fully aware of the consequences of refusing to carry out a supervisor’s instruction at the time of his previous suspension in September 1980. Mr. O’Callaghan advised Mr. Walsh that it was completely unacceptable to the Hotel to have employees refusing to carry out instructions and, consequently, he, Mr. O’Callaghan, had no alternative but to dismiss Mr. Walsh from the service of the Hotel.

(9) On January 8, 1981, Mr. Walsh submitted a grievance in accordance with the terms of the Collective Agreement to the General Manager of the Hotel, Mr. O’Callaghan.

(10) On January 13, 1981, Mr. O’Callaghan replied to the grievance, denying the employee’s request to be reinstated, pointing out that this had not been the first offence of this nature and that Mr. Walsh, following a suspension in September 1980, had been advised to carry out the instructions of his supervisor following which he could grieve if he thought the work carried out was not his function.

(11) On January 13, 1981, Mr. Hedley Preston processed the grievance on behalf of the employee to Mr. G. Wheatley, Assistant General Manager of CN Hotels, claiming that Mr. Walsh had been too severely punished.

(12) On February 2, 1981, Mr. Wheatley responded to the grievance and advised Mr. Preston that he was supporting management’s decision on the matter.

(13) On February 10, 1981, the Union advised the Company that they intended to proceed to arbitration with the matter.

(14) On March 27, 1981, the Minister of Labour for Newfoundland appointed Professor H. Dyer as arbitrator.

(15) The issue before the arbitrator is whether there was just cause for the action taken by the Company in dismissing Mr. Walsh.

(16) For the information of the arbitrator, the duties of the position of Houseman, while not specifically outlined in a job description, there being no contractual requirement to do so, are well accepted in the industry.

(17) The normal duties of a houseman involve items such as : heavy-duty cleaning, moving of furniture between rooms, heavy lifting, installation of cots in rooms, high cleaning.

(18) Although there is often a routine to the houseman’s normal duties, there are often ad hoc duties which arise from time to time. One of these ad hoc items includes the taking up and laying down of the Hotel’s portable dance floor. This task is normally performed by the maintenance department but it has been the practice over several years for the housekeeping staff to take this responsibility on statutory holidays when the maintenance is normally off duty.

(19) On January 1, 1981, it being New Year’s Day, a hotel general holiday, as many of the staff as possible had been given the day off with pay. As is normally the case, the majority of maintenance staff was absent from the Hotel leaving the housemen as the only staff who could conceivable handle the removal of the dance floor in the normal course of their duties.

(20) On New Year’s Day, a busy time in the hotel and restaurant business, the Hotel was expecting as many as three hundred to four hundred people to attend a New Year’s Day buffet, commencing at 5:00 p.m. It was, therefore, essential that the room be properly made ready in time for the dining room staff to prepare the tables for dinner.

(21) Mr. Walsh reported for duty one and a half hours late on the day in question and, in spite of the fact that no complaint was made by the Head Housekeeper, he had not completed any appreciable amount of work following three and a half hours of duty.

(22) As has already been recorded, two of the Hotel’s supervisors asked Mr. Walsh and his colleague to remove the dance floor and finally when it was clear that no move was being made by the housemen to perform their duties, the Acting Manager, Mr. Steele, was obliged to issue an instruction to the employees in question.

(23) It can be appreciated that by refusing to carry out their duties, the housemen had unnecessarily occupied the time of the Assistant Housekeeper, Head Waiter and Acting Manager, taking them away from other responsibilities on a busy day when they could least spare the time. Such conduct is, on the quietest of days, totally unacceptable to the Company and should not be tolerated, if order and discipline are to be maintained in the Hotel.

(24) Mr. Walsh had on a previous occasion been suspended for five days for a similar offence. In reducing the suspension to two days, the General Manager of the Hotel, Mr. O’Callaghan, recognized that it was a first offence of that nature and reminded Mr. Walsh that he had an obligation to carry out a supervisor’s instruction and that future conduct of that nature would result in more severe disciplines.

(25) It is obvious that the first discipline assessed against Mr. Walsh, and the reduction of the suspension, had no affect on Mr. Walsh’s future conduct, inasmuch as he again blatantly refused to carry out a reasonable request. The evidence indicates that he not only refused to carry out a request, he also refused in an antagonistic manner which must have had a negative effect on his fellow employee. "He further indicated that three other supervisors had tried to have him fired but had failed".

(26) The Company cannot continue to tolerate such behaviour on the part of Mr. Walsh or any other employee. The supervisors of the Hotel Newfoundland whose task is quite difficult under often stressful circumstances must be supported in matters of this nature, in order that order can be maintained in the Hotel which will ensure that the Hotel guests are served in a satisfactory manner.

(27) The Company believes that it has acted in the only reasonable manner it could following the initial suspension assessed against Mr. Walsh. It fully believes that continued suspensions of this employee can lead to no useful conclusion and can only serve to demoralize those supervisors whose responsibility it is to ensure that the work is carried out.

(28) The Company is entitled to receive a reasonable amount of work in return for the wages paid to its employees. In refusing to perform his duties, Mr. Walsh destroyed this unwritten agreement between himself and his employer and, for this reason, the Company urges the arbitrator to deny this grievance and support it in its action.

" . . . . in assessing the reasonableness of a sanction imposed on an employee, arbitrators have regarded the penalties imposed by the employer in similar circumstances in the past as tending to reveal the actual concern that managment has for such behaviour. Accordingly, when an employee is able to prove that other employees who engaged in the same conduct for which he was disciplined were either not disciplined at all, or suffered much less severe disciplinary sanctions, arbitrators generally will find the employer to have discriminated against that employee even though it may be established that the employer did not act in bad faith or did not intend to discriminate against him personally. To the contrary, in the former circumstances arbitrators would likely completely exonerate the employee of any wrongdoing, while in the latter, the penalty imposed would be reduced to conform to that which was or had been traditionally imposed in the past". Re Canadian Labour Arbitration, Brown and Beatty, pp. 379, 380. The reported awards in which arbitrators have reduced the penalty imposed on the grievor to conform to that received by other employees who had been found to have engaged in the same misconduct in similar circumstances are legion. (see footnote 574, p. 380, Brown and Beatty".

"Where it can be established that the failure of the employer to advise an employee that it would not longer tolerate certain less obvious forms of misbehaviour which had been engaged in by that employee, actually lulled him into a false sense of security, that may, in certain circumstances, be relied on by an arbitrator to ameliorate the discipline imposed by the employer. Indeed, on that same premise, some arbitrators in more recent awards, have expressed the view that not only must the employer apprise its employees of the unacceptable nature of their conduct, but, as well, must precisely inform them of the likely consequences which will result if such behaviour persists. In part, it is this arbitral recognition of a duty to fully apprise an employee of both his failure to conform to an acceptable standard of behaviour and the likely disciplinary sanctions that will be imposed should that behaviour persists, which supports and underlies the principle of progressive discipline enunciated in some of the more recent awards". Canadian Labour Arbitration (supra) pp. 380 and 381.

(1) The previous good record of the grievor.

(2) The long service of the grievor.

(3) Whether or not the offence was an isolated incident in the employment of the grievor.

(4) Provocation.

(5) Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong personal impulses, or whether the offence was premeditated.

(6) Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances.

(7) Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination.

(8) Circumstances negativing intent, e.g. the likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it.

(9) The seriousness of the offence in terms of company policy and company obligations.

(10) Any other circumstances which the arbitrator should properly take into account, e.g. the failure of the grievor to apologize.

Now applying the foregoing to this case :

(1) As to the grievor’s previous good record, he had been suspended for two days for a similar offence just four months before the incident in question.

(2) The grievor had been working with the Hotel for only two years.

(3) As pointed out in (1) above, the offence was not an isolated incident.

(4) The grievor did not produce any evidence indicating that he was provoked into taking the action that he took, i.e. refusing to remove the dance floor.

(5) The offence did not take place on the spur of the moment. A period of several hours passed during which the grievor was directed four times to carry out the instructions of management.

(6) The penalty does impose an economic hardship on the grievor. At the time of the arbitration hearing he was unemployed and drawing unemployment assistance.

(7) In its brief the Union challenges the justification of the Company imposing the maximum sentence of dismissal on the grievor while his co-worker, Mr. Tucker, who also refused to take up the dance floor, was given only a relatively short suspension. However this was Mr. Tucker’s first offence, while the grievor had had a previous suspension.

(8) There is no likelihood that the grievor misunderstood the nature of the orders given him. The orders were given by three different people on four different occasions. The grievor in giving his evidence did not indicate that he had any difficulty in understanding what was required of him.

(9) The offence was very serious. It was New Year’s Day and the hotel was expecting between three hundred and four hundred people to attend a buffet. It was therefore of the utmost importance that the dining room be prepared. The hotel would have been placed in a very difficult and embarrassing position had it not been for the fact that the work was ultimately done by two other workers.

(10) Other circumstances :

a) The removal of the dance floor was not a long and difficult job. It could be done by two people in 10 minutes.

b) As already stated in this report the grievor should have carried out the assigned work and then submitted his objections through the grievance procedure. The grievor had been suspended in September,1980. At that time, following his suspension, he had been advised by management that in cases such as this the aggrieved person should carry out his instructions and then grieve if he so desired.

c) In its submission the Union stated that the meeting of January 6, 1981, between management, union representatives and the grievor, ended abruptly and as a result the grievor was not given the opportunity to apologize. Had the grievor wished to apologize there were a number of avenues open to him to do so. Firstly he could have sought a meeting with the manager or any of the manager’s representatives, at which meeting he could have apologized. He could have sent an apology to management through one of the Union’s representatives. Finally he could have written a letter of apology. The grievor did not see fit to use any of these channels of communication.

a) The grievor was given instructions, which he refused to carry out, by the Assistant Housekeeper, the Head Waiter, and the Assistant Manager. Nevertheless the Union’s brief states that the grievor’s conduct was not a direct challenge to the employer’s authority. At what level then would the grievor have to refuse to carry out work in order for it to be considered a challenge to the employer’s authority ?

b) The Union’s brief attempts to excuse the behaviour of the grievor on the grounds that apparently he had refused to carry out orders on other occasions and in these instances there had been no recriminations, warnings, or discipline. This is not true in all cases since he had been given a suspension period in September, 1980. At that time he had been made aware of the consequences of not carrying out a supervisor’s instructions.

c) The Union refers to the incident as being relatively minor. As already pointed out had the other employees refused to carry out the required work the hotel would have been in a serious situation with several hundred guests expected.

"It is of cardinal importance to note that in any grievance in which the employee ultimately challenges the propriety of the penalty imposed, it is incumbent on him to affirmatively prove the existence of such mitigating factors".