File No. 83241121
IN AN ARBITRATION
CANADIAN BROTHERHOOD OF RAILWAY,
TRANSPORT AND GENERAL WORKERS
- a n d -
Re : Discharge of Nelson Dawe
Hearing : January 17 &18, 1984 at St. Johnís, Newfoundland
Before : Wayne Thistle, Sole Arbitrator
For the Union :
Mr. Barrie Hould
For the Company :
Mr. Gordon Wheatley
Called by the Company :
Mr. Ken Richards, Maître dí
Mr. James Rees, Captain Waiter
Mr. Patrick OíCallaghan, Former General Manager
Mr. Daniel Butler, General Cook
Mr. Arthur Legge, Former Captain Waiter
Mr. Ralph Whiteway, Waiter
Ms. Jackie OíKeefe, First Assistant Housekeeper
Called by the Union :
Mr. Nelson Dawe, the Grievor
Mr. Boyd Lee, Special Representative
At the hearing the parties agreed as follows :
1. The Arbitrator was acceptable.
2. There were no preliminary objections going to jurisdiction to hear the grievance.
3. The grievance procedure had been properly followed or requirements had been waived.
4. The Arbitrator would remain seized of the matter in the event the parties could not agree on the interpretation of this award or in the event there is a question of compensation arising from the award.
5. Witnesses would be excluded until called to give testimony.
6. Time limits for the filing of the award were waived.
The following exhibits were taken into evidence :
Consent 1 : The Collective Agreement
Consent 2 : Grievance Form
Consent 3 : Letter of January 27, 1982
Consent 4 : Step 2 appeal - February 4, 1982
Consent 5 : Step 2 reply - February 16, 1982
Consent 6 : Step 3 appeal - March 5, 1982
Consent 7 : Step 3 reply - March 30, 1982
Consent 8 : Order of the Labour Relations Board
Consent 9 : Letter of November 10, 1982
K.R.1 : Conduct Record - February 2, 1981
K.R.2 : Conduct Record - February 2, 1981
K.R.3 : Conduct Record - February 23, 1981
The Company in its opening statement maintained that the discharge of the grievor in January, 1982 had been for just cause. It would show by evidence that the steps of the grievance procedure had been followed and that the grievor had been properly terminated.
The first Company witness was Mr. Ken Richards, Maître dí. He had hired the grievor approximately two years prior to his discharge and during those two years the grievor had worked as a Busboy, a Room Service Waiter and a Waiter in the Captainís Table. During his employment the grievor had received a few misconduct notices. The first one issued on February 2, 1981 related to something which occurred on February 1, 1981 and related to the grievorís behaviour when told that he had to tidy up the Room Service Room. At that point he used foul language in response to Mr. Richardsí instruction. It was quite common that he would use foul language, particularly around fellow employees. Another misconduct was issued also on February 2, 1981 for an incident which occurred on January 31, 1981. He had been given Room Service orders by the Hostess. He accepted these orders reluctantly using profane language and a misconduct was issued. A third misconduct was issued on February 23, 1981 because on February 21, 1981 the grievor had refused to follow the instructions of the Hostess with respect to clearing out his station before having his lunch. Mr. Richards stated that there were many other occasions when the grievor was reprimanded for using foul language. Unfortunately, these had not been documented by the supervisor.
Mr. Richards also made reference to a fight in which the grievor was involved in the kitchen. This had to do with something that had taken place between himself and another waiter. Because of this incident, Mr. Richards suspended the grievor and the other waiter for approximately two to three days. He assumed he had documented this matter but could locate no record of it in the file.
The grievorís discharge occurred on Monday, January 25, 1982. The previous Friday, January 22, 1982, the grievor had gone to see Mr. Fred Steele, the Assistant Manager, to report that he had $200 stolen from his locker. He did not get to see Mr. Steele. Mr. Richards found out later from Mr. Arthur Legge that it was not money but instead marijuana with a value of approximately $160 that had been stolen. He was selling this marijuana from the property of the Hotel. The grievor had approached an employee to whom he had sold some marijuana out of his locker and asked whether it was he who had stolen it.
On January 25th the staff were talking about the loss of the marijuana from the grievorís locker. Mr. Richards overheard the conversation and told the grievor at that time that if he knew it was there he would have taken it. The grievorís response was that : "If you touched it, I would break your fucking arms and legs". Mr. Richards in response to this threat using foul language told the grievor that he was fired. He then went to see Mr. OíCallaghan, the General Manager, to ask how the misconduct should be prepared. His concern was whether to refer to the marijuana or the foul language. They discussed the fact that if it was a discharge because of the marijuana they would have to call the CN Police and the local Police. It was decided to do up the misconduct based on the use of the foul language.
Mr. Richards was aware that the grievor used marijuana and suspected that he was smoking it while at work. He was not aware that he sold it from the Hotel property. He referred to a section of the Employee Handbook which states that having drugs on the premises is strictly prohibited and may result in immediate dismissal.
The grievor had also been involved in an altercation with Mr. Jeff Parent, the Personnel Manager. This occurred one evening outside a local lounge and although the reason that the grievor had struck Mr. Parent in the head was not related to company business it did indicate the grievorís violent nature. At that time the grievor had threatened he would get Mr. Parent and the grievorís behaviour the next day certainly suggested that he was going to follow through on this threat. Mr. Richards had seen him waiting for Mr. Parent outside the Hotel and after Mr. Richards talked with him a while pointing out the consequences of his action the grievor finally left. A few days later the grievor came back to apologize to Mr. Parent for the way that he had behaved.
The grievor did not receive a misconduct for every time he had used foul language. Perhaps Mr. Richards was not strict enough with him at the time and did not document all incidents involving improper behaviour. When the decision was finally made to discharge him, it was the marijuana and not the foul language that led to that decision. Mr. Richards did not want to have to place the information concerning the marijuana on his personal file. This would obviously affect his chances of getting another job.
Under cross-examination, Mr. Richards was asked whether profanity was commonplace amongst employees. He stated that as a waiter an employee is involved in a lot of stress and at times there are employees who use foul language. The grievor, however, used foul language a lot more than anyone else and, although on paper it was a dismissal for foul language, the actual reason was the
marijuana. He was asked about the fight with the waiter and to the best of his knowledge he had suspended both the other waiter and the grievor because of this fight. Mr. Richards did not have any firsthand knowledge that the grievor was selling marijuana out of his locker. He had learned about it from other employees and if he had been aware of it on a firsthand basis, the grievor would have been terminated much sooner. With respect to the use of foul language, Mr. Richards stated that this had an effect on the supervisorís ability to supervise the grievor. Not only was it the foul language but the tone of voice and to whom it was used that was of major concern. The Hostess who had to work with him felt she could not perform her job because of the way the grievor behaved.
The second Company witness was Mr. James Rees, Captain Waiter in the Cabot Club. He had worked as a Room Service Waiter when the grievor worked at the Hotel. He was aware that the grievor used marijuana but had never seen him sell it. He had heard, however, from other people that the grievor did sell it. He had seen the grievor use foul language against his supervisor, the Hostess. If she asked him to do something he would often tell her to "fuck off". It appeared the grievor did not take his job all that seriously. He would often come in looking as though he were stoned and did not work as a member of a team in the Cabot Club.
Under cross-examination, Mr. Rees stated that the Hostess who was often abused by the grievor did not get along with a couple of other employees. Some resented the fact that she was a woman and was their supervisor. He had never heard other employees use profane language against her.
The third Company witness was Mr. Patrick OíCallaghan, former General Manager. On the day the grievor was dismissed he had a discussion with Mr. Ken Richards concerning the best way to prepare the conduct record. Mr. Richards explained to him about the threat and the use of foul language and also the matter of the marijuana. He was quite shocked to learn of the grievorís involvement with drugs. Mr. OíCallaghan felt it would be reasonable to discharge the grievor because of his threat against the supervisor. There was no need to introduce the drug issue because that would not do the grievor, the Hotel or the staff any good. These factors were considered by the Union when they made the decision not to proceed to arbitration with the grievance. The evidence concerning the drug issue was that drugs had been sold to two employees. They were members of the kitchen staff. They came in and gave information on condition that their names would not be released. They were intimidated and concerned about their well-being outside the Hotel.
Mr. OíCallaghan stated that the grievor had a reputation of being good with his fists. There was a rumor that he had been involved with the Police and that there had been physical abuse of a young lady who worked with the Hotel. The Chief Steward also had an altercation with him.
Reference was also made to the fact that during a Christmas period prior to the grievorís discharge the grievor had been scheduled to work a given period. He told the staff that there was no way he was going to work and in fact did not come in. Mr. OíCallaghan believed that he may have had a medical certificate covering the period in question.
The practice at the Hotel has generally been not to use written discipline unless a serious offence was involved. Usually the staff were called into Mr. OíCallaghanís Office and spoken to. His management style was basically verbal. Union Representatives were generally present during the verbal reprimands.
The grievor generally displayed a sour attitude to both the guests and the staff. He placed himself above the staff in what he was going to do. He did not contribute to the well-being of the Hotel considering his attitude and his disdain towards fellow employees.
Under cross-examination, Mr. OíCallaghan acknowledged that at the old Hotel the practice of supervisors was to deal with a problem and it was not common to record everything. It was an open style of management. During his eight and one-half years he only had to deal with approximately five dismissals of scheduled staff. He considered the manner he operated as being successful and there was no need to formalize the disciplinary process. As far as Mr. OíCallaghan was conerned the grievor had been made aware on a number of occasions that his conduct was unacceptable and the consequences if he failed to improve.
The third Company witness was Mr. Daniel Butler, General Cook. He has worked with the Hotel for approximately eight years and is familiar with the grievor. He had bought marijuana from the grievor. He did not approach him to buy it but had been asked by the grievor on various occasions whether he wished to purchase some. Mr. Butler took him up on it a couple of times. He paid $10 for four joints. The grievor gave it to him in tin foil and he rolled it with papers. He did not know how much the grievor had paid for the marijuana. Mr.Butler had never bought from anyone else in the Hotel and did not smoke it on Hotel property. He also had not seen the grievor smoke on Hotel property. Mr. Butler is a Union employee and was reluctant to come to the arbitration hearing
Under cross-examination, Mr. Butler stated that he normally bought the marijuana from the grievorís locker at 3:00 p.m. at the end of the shift. The grievor was known as the dealer by the staff. He did not think supervisors were aware of this activity. When the grievor went to purchase marijuana he did not check with anyone else to see whether they wanted him to pick it up for them. Mr. Butler had not purchased any in advance but instead bought it from the grievor. This occurred on approximately three occasions. The amount Mr. Butler paid the grievor was exactly the same as he paid when he bought marijuana outside the Hotel. At the time the grievorís locker was broken into he asked Mr. Butler if he could check his locker because someone had stolen his marijuana. Mr. Butler had nothing to hide and let the grievor look in his locker.
The fourth Company witness was Mr. Arthur Legge, a Captain Waiter in the Captainís Table, at the time the grievor was dismissed. On the day the grievor had something taken from his locker Mr. Legge was in the locker room. The grievor was upset and said that someone had taken marijuana from his locker. He said he was going to report to Mr. Steele that he had $200 taken from the locker. Mr. Legge told Mr. Steele and Mr. Richards what he knew about the incident. The following day the staff were in the Dining Room and Mr. Richards was asked about the incident. In the discussion that followed the grievor replied to Mr. Richards using profane language. He said : "If I thought it was you who took the stuff, Iíd break your fucking arms and legs". The stuff he was referring to was marijuana.
Mr. Legge had seen the grievor sell marijuana from his locker. He had never purchased any from him. The grievor used it in the Hotel and there were times when he would disappear and was unable to function when he returned. It was well known by the staff that he had marijuana in his locker. Mr. Legge had actually seen him take it out and sell it to people who came to him. Mr. Legge did not want to work with him because he had jeopardized his position. He would pull a disappearing act with the Dining Room full. He would get on with profane language against the Hostess and upset her.
Under cross-examination, Mr. Legge said that his position in the Hotel was not supervisory. He was only in charge if Mr. Richards was off. He would talk to Mr. Richards about problems he was having only if they were consistent. He was sure that he had discussed with Mr. Richards the problem concerning the grievor and the use of drugs. He could not recall exactly when this happened. When the grievor was selling his drugs it was not as though he was doing an errand for somebody else and picking up drugs on their behalf. He did not have any reluctance to pass information on concerning the grievorís involvement with marijuana.
The fifth Company witness was Mr. Ralph Whiteway, Waiter in the Cabot Club. He had been present on January 25, 1982 when the staff were discussing the loss from the grievorís locker. The grievor said to Mr. Richards : "I would break your fucking legs and arms if you touch my locker". Mr Whiteway learned that this had to do with the loss of marijuana from the grievorís locker. He was aware that the grievor carried marijuana on him and knew friends who had purchased marijuana from his locker. He was also familiar with the fact that the grievor often used profane language against the Hostess. She would become upset because of his behaviour. Mr. Whiteway would not want to work with the grievor if he were to return to his job. It appeared that he was not happy doing his job and did not want to work at the Hotel. He did not want to serve the public and should not be there. He is a Union member and did not want to get involved with the arbitration hearing.
The sixth Company witness was Ms. Jackie OíKeefe, the First Assistant Housekeeper. Her evidence dealt primarily with the incident which occurred between the grievor and Mr. Parent outside a local lounge. She had never seen the grievor sell marijuana but knew that he used it. She also knew that he used foul language against other employees and his supervisor.
In its argument, the Company maintained that the discharge of the grievor revolves significantly around the drug matter, notwithstanding the other issues involving the threats and foul language. The Company representative did not suggest that the Union in its argument condoned the sale or use of drugs on the premises. Although management may have had some suspicions about the grievorís involvement with drugs it was not until January 25th that they had any specific evidence as to what the grievor was doing. It was very hard to obtain the type of evidence necessary to take action. At other CN Hotels the CN Police have been called in and apprehended and charged those involved with drugs. The Hotel Newfoundland is a central part of the business and social life of the City of St. Johnís and this was a consideration of management in determining how to deal with this particular problem.
With respect to the use of foul language, the Company maintained this is much worse when it is used as part of a threat or against a supervisor in response to an order being given. If one simply says it to oneself this is not nearly as serious. The grievor has a violent temper which was demonstrated by the fact that he beat up on his girlfriend and was under court order to stay away from her. He was also involved in an altercation outside a local lounge and a fight in the Hotel kitchen. It is fair to say that the employees of the Hotel would not want the grievor back as an employee. When employees come across a person like him they want him out. The grievor had only been at the Hotel for one year and five months.
One can say that management was perhaps negligent in not recording all the incidents against the grievor. It must be appreciated, however, that the management basically came up through the system, i.e. through the "family" approach to the operation and they were not in the habit of documenting every incident regarding employees who got out of line.
All employees were aware of the rules in the Employee Handbook. The grievor knew that he could be dismissed if he were caught selling marijuana on Hotel property. The fact that the Company chose not to place the marijuana issue squarely on the table in discharging the grievor was as a result of the fact that management did not want to give him a criminal record. It would also have been a cause of embarrassment to the Hotel and to other employees. It was decided simply to go the other route and to dismiss him for using foul language and a threat against a supervisor.
The Company brought two witnesses who stated specifically that they had bought drugs from the grievor. The grievor on the other hand stated that he only bought for employees who asked for it. The evidence, however, establishes that he approached employees to get them to buy drugs from him. In the original grievance the grievor stated that there was a $160 missing. It has been established, however, that it was marijuana not money that was missing and the grievor obviously lied on the grievance form.
The involvement of the grievor with marijuana and the threat he made against Mr. Richards amounted to culminating incidents which led to his discharge. He had been an unsatisfactory employee for a number of reasons prior to that time. There had not been any provocation by Mr. Richards which led to the threat and the Company maintained it had substantiated the reasons for the grievorís discharge. If, however, the Arbitrator were to rule in favour of the grievor he could only find the Company responsible for part of the grievorís unmitigated losses in view of the Unionís initial decision not to proceed to arbitration. The Arbitrator must take into account the fact that the grievor has a very short period of service and did not choose to come and make an apology for saying what he did to Mr. Richards. In conclusion, the Company asked that the grievance be denied.
The Union in its opening statement maintained that the grievor had been dismissed without just cause and that certain basic requirements where a discharge takes place were not met by the Company.
The first Union witness was the grievor. At the time of his discharge he was a Busboy at the Hotel. On Friday, January 22, 1982 he had gone to the locker room and discovered that his locker had been vandalized. Payday had been the Wednesday before and he still had a few dollars left in the locker. This was gone. He confronted Mr. Art Legge, the Captain Waiter, who said he would look into it. The grievor was upset and decided to take the matter further. He attempted to see Mr. Steele but he was too busy. He confronted the General Manager, Mr. OíCallaghan, who said he would check into it.
When the grievor returned to work the following Monday he confronted Mr. Richards and told him what had happened, that he had $160 stolen from his locker. Mr. Richardsí response was : "It looks quite good on you". The grievor could not believe Mr. Richards would make such a response. It appeared that he wanted an opportunity to provoke the grievor a little further. The grievor said to Mr. Richards that if he could not do anything about it then the grievor would try to do something himself. He said that if anyone was trying to get into his locker he would ensure they would not do it again. Mr. Richards commented that he could be at the grievorís locker and the grievorís response was that he would not be at it anymore if the grievor caught him. At that point Mr.Richards said : "Thatís all I needed - youíre fired". Mr. Richards gave no reason at the time why he was dismissing the grievor. The reason the grievor had approached Mr. Richards was to see if he could recover his money. He could not recall whether he used any profane language in his conversation with Mr. Richards. He did recall saying he would break someone up if he saw him in his locker. He told Mr. Richards that he would break him up if he was caught there. He acknowledged that it was possible that he might have used foul language.
Since his discharge he has not met with any representatives of management. He has kept in touch with the Chairman of the Grievance Committee to see what has been happening. He is still upset about the incident and would like to recover his money.
At the time of his discharge the grievor stated that he was using marijuana occasionally. He did not use it at work very often and fellow workers with him were also doing it. He denied being a dealer and did not sell drugs directly. He used to ask fellow workers if they wanted him to pick up marijuana for them. On occasion he would ask them if they would pick it up for him.
The grievor explained why he had disobeyed the instruction given by the Hostess with respect to cleaning up his section prior to having lunch. He could not recall using foul language against the Hostess. The incident involving the fight in the Hotel kitchen was the fault of another Waiter. That Waiter was
suspended for two days but the grievor was not. He did not even receive a reprimand. Mr. Richards had spoken to him about the use of foul language and told him to keep his voice down and not use it around employees and guests. He said he would get further reprimands if he kept it up. He has not received a reprimand because a guest overheard him use foul language. He has heard Mr. Richards and the Assistant Manager use profanity.
The grievor explained what he has been doing since the discharge. He received Unemployment Insurance for awhile and worked with Filter Queen for approximately four months. He earned a total of $1,800 at that job and a total of $1,000 painting houses. He registered at the College of Trades and Technology in September, 1983 and has no income at present. While he was with Filter Queen there were no complaints from customers about his work. He did receive a few good comments.
Under cross-examination, the grievor explained further his behaviour in connection with the incident involving Mr. Parent. It was a personal matter that did not affect his work. The reason he left Filter Queen was because the business closed down for a two-month period. Thegrievor had applied to other Hotels since his discharge but has not gotten any work. He explained how it was that he had money in his locker on January 22, 1983. He was in the habit of leaving money in his street clothes when he changed into his uniform. He had no marijuana at the time although on occasion he might have a few joints there. He did not go to employees unsolicited to sell marijuana. He would not make money on what he bought on their behalf. He denied ever having any marijuana stolen from his locker.
The grievor did acknowledge that he may have told Mr. Richards he would break his arms and legs if he were to open his locker without his consent. He is aware of the Hotel rules about having liquor and drugs in your locker. The grievor proceeded with the grievance because he wanted to clear his name and to prove he was right. He felt that he had changed over the past two years and has learned to control his temper. He acknowledged that before he was fired he perhaps had a bit of a temper and that may have made it difficult for some supervisors. He acknowledged that he was not the best person to get along with.
The grievor was asked by the Arbitrator to state his understanding of the reason for the discharge. As far as he was concerned, it was mainly "because of a dispute about the pot". He also suggested it may have something to do with the fact that there was inadequate action being taken to recover the money. He had gone to Mr. OíCallaghan about the matter, "i.e. to challenge the charge with respect to the drugs".
The second Union witness was Mr. Boyd Lee, Special Representative with the Union. He had been indirectly involved with the grievance procedure of this case. Under the prior Agreement the Chairman of the Grievance Committee, Mr. Frank Rowe, would handle it through the three steps. When the reply was received at Step 3 the Union weighed the evidence and decided not to proceed to arbitration. They were led to believe from management that management had a strong case which would make their own case doubtful. The rumour was that it was not money involved in the locker theft. Management had told them the real reason was that there was marijuana involved. The Grievance Committee accepted managmentís word that there was marijuana involved.
Mr. Lee referred to the Labour Boardís ruling with respect to unfair representation. Mr. Barry Hould had told Mr. OíCallaghan that if the Company would not produce the evidence with respect to the marijuana, then the Union would probably be forced to go to arbitration with the case.
Under cross-examination, Mr. Lee stated that the Union was not satisfied that a discharge could be sustained based on the use of profane language in a threat made to a supervisor. Even if this were combined with the other misconducts which occurred one year prior to the discharge, the discharge could not be sustained. The Union made the mistake of accepting in good faith the evidence the Company was passing on about the marijuana issue. If the Union had known that Mr. OíCallaghan would not release the information concerning the names of the individuals involved in the marijuana issue, then it would definitely have proceeded to take the case to arbitration. After Step 3 of the Grievance Procedure Mr. Lowe was led to believe by the Company that it had witnesses to prove definitely there was marijuana in the grievorís locker. This has not been proven by the evidence submitted at the hearing.
In its argument, the Union stated that on Friday, January 22, 1982 the grievor had gone to a washroom adjacent to the locker room. He noticed that his locker had been broken into and upon investigation he found that something had been stolen. The grievor states it was money that was stolen whereas others say that it was marijuana. The Union representative suggested it could have been both or one of these two items. The grievor was upset and went to inform the Captain Waiter, Mr. Arthur Legge. Mr. Legge could not do anything about it and informed the Maître dí. The grievor also went to see the Banquet Manager, Mr. Fred Steele, who was unavailable. He eventually saw the Hotel Manager, Mr. OíCallaghan. Nothing was done about the problem that day. The grievor thought about it over the weekend and on Monday he approached Mr. Richards at the change of shift and informed him that his locker had been broken into and that he had lost money. Mr. Richardsí response was : "It looks good on you". The
grievor became upset with him and said : "Iíll break your arms and legs if you were the one who was into the locker". Mr. Richardsí response was : "Thatís all I need, youíre fired".
Because of the friendly relationship between empoloyees and supervisors, when someone says : "Iíll break your arms and legs", it would not be reasonable to take it as a serious threat. You also have to consider the offhand remark by Mr. Richards which constituted a degree of provocation. The grievorís statement was not really a challenge to Mr. Richardsí authority.
The key point in this matter is the fact that Mr. Richards had dismissed the grievor for using foul language. He did not even mention the threat. There is no information in the submitted documents other than that which relates to the language used. The Union even acknowledged that the language may have warranted some discipline such as demerit marks or a short suspension. The first reference that occurred to threats was in the letter of March 30, 1982 from Mr. Emblem to the local chairman of the Union. Much was made of various incidents for which conduct records were issued to the grievor. These cannot be considered serious items.
The only matter the Arbitrator can really consider is whether the Company could dismiss the grievor based on what it considered a culminating incident, that is, the use of profane language combined with the three records of misconduct which had previously been issued. In the absence of reference in the file to other incidents referred to in the witnessesí testimony, we must assume his behaviour was normal by Hotel standards. The use of profane language was really a result of a momentary flare-up in response to an offhanded and provocative statement by a supervisor.
In deciding on what discipline should have been issued, an Arbitrator must consider the issue of rehabilitative potential and the principle of progressive discipline. This certainly was ignored by virtue of the discharge which was imposed. The grievor had been given no indication of what would be the result if he continued to receive misconducts. With reference to the altercation outside the local lounge and the fight in the kitchen, they really have no relevance to the present dispute.
The Union referred to the issue of altering grounds for discharge. It suggested that if the Company chooses to raise the issue of drugs it is only permitted to be considered at arbitration if it was unknown at the time of the discharge. The Union representative had some knowledge during the grievance procedure that drugs had some consideration. There were allegations by the
Company that drugs were involved. On the basis of the information from management, the Union looked at all the evidence it could gather. The Company had indicated that it had conclusive evidence that the grievor was trafficking. The Union was told that there would be two people who would come and give evidence under oath that the grievor was trafficking in drugs. After hearing the evidence the Union representative indicated he is not sure that the Union has not been misled to a degree. Thus, if it had all the information at the time the decision was made not to proceed to arbitration the Union would likely have made a different choice. It appears that the drug issue is not as conclusive as was suggested. If drugs had been a relevant matter at the time of the discharge, then the evidence could have been presented in camera. Alternatively, if it had been presented to the Labour Relations Board things may have proceeded differently. The immediate consideration by the Company when the discharge occurred was the foul language. If that had not occurred the Company would have been prepared to live with the drug issue and the discharge would not have taken place at that time. The Captain Waiter had obviously seen the drugs and Mr. Richards knew the grievorís involvement with drugs. He was prepared to live with it. The Union referred to a number of arbitration cases dealing with the use of foul language by employees, fighting and assault on the job, insolent remarks by employees, insubordination, provocation and mitigating factors which should be taken into account by an arbitrator. It also suggested that estoppel should be considered in this case to prohibit the Company from asserting any claim that the Union shares liability in view of the fact that the matter was not originally taken to arbitration.
The Union requested that the grievor be reinstated in his position without loss of seniority and benefits and that he be compensated because of the unjust discharge. The Arbitrator may have to consider the issue of who is responsible for the case not proceeding to arbitration earlier. The Union maintained that it had accepted the Company evidence and should not now have to bear any liability because of that.
In summary the Union stated that it had no indication that the issue of marijuana would be before the Arbitrator. It maintains the Company should be held to the face of the record, that is, a discharge for the use of abusive language. The Union suggested that this is not sufficient grounds for discharge and that the grievance should therefore be upheld.
CONSIDERATIONS AND DECISION OF THE ARBITRATOR
The Union filed a grievance on January 26, 1982 alleging that the grievor had been unjustly dismissed from his position as Busboy with the Hotel Newfoundland. The details of the grievance were stated on the grievance form which was submitted into evidence :
"Mr. Dawe discovered that there was $160.00 missing from his locker. He asked other staff members if anybody knew anything about it, but nobody seemed to know anything about it. In the process of inquiry Mr. Dawe encountered Mr. Richards and informed him that if he (Mr. Dawe) caught anybody at his locker he would cause bodily harm. This would include any supervisor or other staff, if they entered his locker without his consent. Then Mr. Richards told him (Mr. Dawe) he need not return to work anymore, because he considered this a threat. Employee feels he was dismissed without just cause".
The Maître dí., Mr. Ken Richards, was approached on January 27, 1982 by Mr. Frank Lowe, a representative of the Union, with a request that the grievor be rehired. Mr. Richards informed him this was impossible. He confirmed the discharge.
On February 4, 1982, Mr. Lowe wrote Mr. P.J. OíCallaghan, General Manager, in accordance with Article 14.2, Step 2 of the Collective Agreement. His letter stated as follows : (see next page)
"February 4, 1982
Mr. P.J. OíCallaghan
St. Johnís, Nfld.
In accordance with Article 14.2, Step 2 of the present Agreement I am writing to you on behalf of Mr. Nelson Dawe, Busboy, SRB 809252.
Because of the theft from his locker, Mr. Dawe was quite naturally upset and vented a lot of his anger on Mr. Ken Richards the Supervisor. A short time later Mr. Dawe regretted his statements and wished that he had never said them. There are probably several misconducts on Mr. Daweís personal file but to have him dismissed (in the Unionís opinion) is much too severe a penalty whereas maybe Demerit Marks or even a short suspension would have been more in order.
Trusting that after reviewing and investigating this case against Mr. Dawe you will see fit to have the discipline reduced.
Mr. OíCallaghan responded by letter dated February 16, 1982.
"February 16, 1982
Mr. Frank Lowe
Local Chairman, C.B.R.T. & G.W.
Local No. 550
Site 63, Box 12
St. Johnís, Newfoundland
Dear Mr. Lowe :
Re : Grievance - Mr. Nelson Dawe, Busboy, SRB 809252
I have for acknowledgment your letter addressed to me dated February 4, 1982 re the above former employee.
In investigating the cause of his dismissal, I had reason to review his file, and as you suggest, he has had a number of misconducts. Also, on each occasion that these misconducts were issued, it is interesting to note that he has signed for each one of them.
It was on each occasion failure to respond to Supervisorís instructions. It is also not the first time he has been known to use profane language to a Supervisor, not all of which is on file, so that I find no reason to change the decision of his Supervisor in dismissing him from the employment of the Company.
Furthermore, in checking with the Hostess who was his immediate Supervisor on the morning shift over the last 18 months, I have found that on many occasions he has refused to carry out her instructions, and in addition, used vulgar language.
As mentioned above, she has not recorded this for various reasons, one of which is the fact that she is a fellow union employee. I mention this only from an information point of view.
A further letter was written by Mr. Lowe on March 5, 1982 to Mr. Gordon Wheatley, General Manager of Hotels :
"Local No. 550
Site 63, Box 112
St. Johnís, Nfld.
March 5th, 1982
Mr. Gordon Wheatley
General Manager of Hotels
1253 McGill College Ave.,
Dear Mr. Wheatley :
In accordance with Article 14.2, Step 3 of the present Agreement, I am writing you on behalf of Mr. Nelson Dawe, Busboy, SRB 809252. This appeal has been handled at Step 1 and Step 2 without success so therefore I am appealing to you under Step 3.
I have studied all the information available concerning this case and the Union feels that Mr. Dawe was penalized too severely. I am sure that if he was reinstated to his former position using the past six weeks as a suspension he would show a marked improvement in his job performance. There have been many cases where a suspension proved to be a deterrent and the employees involved proved to be worthy of the second chance they received.
Trusting after reviewing the file and investigating this case against Mr. Dawe you will agree with the Union and have him returned to work.
The response from Mr. Kevin Emblem confirmed that the decision to dismiss the grievor could not be reversed :
"March 30, 1982
PERSONAL & CONFIDENTIAL
Mr. Frank Lowe
Canadian Brotherhood of Railway,
Transport & General Workers
Local No. 550
Site 63, Box 12
St. Johnís, Newfoundland
Dear Mr. Lowe :
Thank you for your letter of March 5 to Gordon Wheatley wherein you have lodged a grievance in accordance with Article 14.2, Step 3 of the Collective Agreement in connection with the dismissal of Mr. Nelson Dawe which took place on January 25, 1982.
I have now had the opportunity of examining the facts surrounding this case and it would undoubtedly appear that Mr. Dawe has had a problem in maintaining good relations between his supervisor and fellow workers throughout his employment period. On different occasions, Mr. Dawe had been warned via written and verbal communication, and with this, I am satisfied that he has been given the opportunity of fully realizing both his moral obligations and job responsibilities.
As you are aware, Mr. Lowe, Management take a great deal heed in creating an environment among employees that is positive and developmental and it becomes difficult to ignore those few who attempt to destroy that which has been so well maintained over the past several years.
Mr. Daweís "threatening behaviour" and "profane language" of last January, to his Supervisor, Ken Richards, is a clear indication that he is either unable or unwilling to modify his behaviour to a much more mature and respectful manner. I would also submit that a light disciplinary approach on Managementís behalf would place the Hotel Newfoundland in a position of condoning this kind of abuse among its employees ; such a position, to say the least, would be extremely risky and hazardous for both the Company and the Union.
Given the foregoing, I am unable to reverse the decision of dismissal and I hope you will continue to recognize Managementís sensitivity towards our mutual responsibility in upholding a healthy climate throughout employee ranks.
Personnel & Labour Relations
cc : Mr. P.J. OíCallaghan
The grievor sought to pursue the matter to arbitration. The Union, however, initially determined that it would not proceed to arbitration on behalf of the grievor. He then filed a complaint of unfair representation against the Union. The Labour Relations Board in a decision dated October 20, 1982 upheld that charge. It ordered that the Union "proceed to arbitration with the applicantís grievance against Hotel Newfoundland".
A hearing was held in St. Johnís on January 17 and 18, 1984 at which time the Company introduced evidence which it felt justified the disciplinary action it had taken against the grievor. The facts of the case with the exception of exactly what was taken from the grievorís locker on January 22, 1982 are not basically in dispute. On that day the grievor had occasion to go to the locker room where he noticed his locker had been broken into. Upon investigation he found there had been a theft from his locker. The evidence on exactly what that was is in conflict - the grievor maintaining a sum of money of $160 was missing ; other witnesses
testified that it was a quantity of marijuana that the grievor had told them had been taken. The grievor reported a loss of money to Mr. Arthur Legge, the Captain Waiter, and that same day he told Mr. OíCallaghan what had happened.
The grievor was off work the next two days, Saturday and Sunday. On Monday, January 25, 1982 he along with other members of the staff were in the Dining Room around the change of shift. Mr. Richards was also there and, although there is some disagreement as to what exactly was said, there was conversation concerning the theft from the locker. Mr. Richards testified that the discussion was about a theft of marijuana from the grievorís locker and that he told the grievor if he had known it was there he would have taken it. The grievorís response was : "If you touched it I would break your fucking arms and legs". The grievorís version was that he had confronted Mr. Richards about his missing $160 and Mr. Richardsí response was : "It looks good on you". (This was later explained as an expression meaning : "It couldnít happen to a nicer fellow".) This further upset the grievor who then told Mr. Richards he would see that he would not be at it anymore if he caught him. The grievor upon cross-examination admitted he was so upset that he could have told the Supervisor he would break his arms and legs.
Mr. Richards responded to the grievorís threat by telling him he was fired. He went to see Mr. OíCallaghan to discuss the type of misconduct record that should be prepared to support the dismissal, i.e. whether reference should be made to the marijuana incident or simply to the threat against a supervisor using foul language. Mr. Richards, at that point, had been told that the grievor was in the practice of selling marijuana from his locker. He had always suspected the grievor used drugs while at work. Mr. OíCallaghan and Mr. Richards agreed that to bring drugs into the matter would require that the CN Police and the local Police be contacted. This would have serious repercussions for the grievor and would have an adverse effect both on the Hotel and other employees. It was decided that the record would indicate a discharge for threatening a supervisor and using foul language in that threat.
The Company had also considered a number of other factors when it decided on the grievorís discharge. His personal file contained three records of misconduct. The first prepared by Mr. Richards on February 2, 1981 referred to an incident which occurred January 31, 1981 when the Hostess approached him to take some room services. He did this reluctantly using profane language. The second was prepared that same day and referred to the grievorís unacceptable behaviour when on February 1, 1981 he was asked to tidy up the room service room. Then on February 23, 1981 Mr. Richards prepared a misconduct record because of the grievorís refusal to follow the Hostessí instructions on February 21, 1981.
Mr. Richards also made reference to other incidents that influenced his decision in terminating the grievor. There was an altercation which occurred between the grievor and a Waiter and involved a chase around the kitchen. He did not write up that incident. The grievor had struck another Hotel employee, Mr. J. Parent, outside a local lounge. This arose out of a personal issue and was not work related. Finally, Mr. Richards had seen the grievor waiting outside the Hotel one day for Mr. Parent and it appeared that he intended to do harm to Mr. Parent. Mr. Richards talked him out of this action.
On a general issue, Mr. Richards was not satisfied with the grievorís excessive use of foul language particularly in his dealings with fellow employees and supervisors. One Hostess became particularly upset because of the way she was treated by him. There was also every indication that the grievor used drugs while at work although no direct proof could be adduced.
The issue relating to the sale of drugs from Hotel property was obviously one that was very much in the mind of Mr. Richards and Mr. OíCallaghan when the decision was made to terminate the grievor. I shall deal later with the question of whether the Company is entitled at arbitration to rely on this ground as one which can be used to substantiate the discharge. For the moment, I shall consider whether the evidence as adduced satisfactorily demonstrates the grievor was in fact selling marijuana from his locker at the Hotel. The grievor testified that he had bought marijuana for other employees who had placed an order with him before he went to pick it up. He denied ever having made direct sales from his locker. The evidence of Daniel Butler, General Cook, was that he had bought marijuana from the grievorís locker. He stated the grievor was known as the dealer by his fellow employees. Mr. Butler would pay the grievor $10 for four joints, the same as he paid outside the Hotel. Another witness, Mr. Ralph Whiteway, stated that, although he had not bought marijuana from the grievor, his friends had.
The grievorís evidence on the sale of drugs from his locker was of a self-serving nature. The other witnesses had no reason to fabricate the fact the grievor was in the practice of selling drugs from his locker and I have to accept that the Company has produced convincing evidence of this activity. It is therefore my conclusion that the grievor had on a number of occasions engaged in a practice of selling drugs on Hotel property.
Even if I were not convinced of this activity there is demonstrable proof and even an admission by the grievor that he kept marijuana in his locker. At the hearing he stated : "On occasion I might have a few joints in my locker". The Company has a specific rule in its Employee Handbook dealing with this matter :
"Gambling, drugs and alcohol on the premises is strictly
prohibited and may result in immediate dismissal".
The grievor was "aware of the Hotel rules about liquor and drugs and having it in the locker". He acknowledged the Company is "perhaps stricted about marijuana". He therefore exposed himself to the potential danger of immediate dismissal by simply having drugs in his locker much less selling drugs from his locker.
The issue in a case such as the present is whether the Company had just cause to terminate the grievor. The Company obviously has the onus of adducing sufficient evidence to demonstrate on the basis of "clear evidence" or on a standard of "reasonable probability" that the termination of the grievor was justified. In the context of this case the determination of whether this onus and standard of proof is satisfied is somewhat complicated by the question of whether the Company at arbitration has attempted to alter the grounds for the discharge by relying on, amongst other things, the grievorís involvement with marijuana possession and selling.
The Union has objected to what it undestood to be an alteration of the grounds and argued that I must restrict my assessment of just cause on the grievorís use of foul language towards Mr. Richards on January 25, 1982. This argument raises two separate considerations. Was the incident on January 25, 1982 a culminating incident thereby permitting the Company to take into account the grievorís prior record in assessing an appropriate measure of discipline ? Secondly, am I permitted to refer to the grievorís activity involving marijuana when the ostensible reason for the discharge was his use of foul language against Mr. Richards ?
With respect to the first question, I have no difficulty in accepting that the grievor did in fact commit an act of misconduct on January 25, 1982 which warrants the Company introducing his prior checkered and blameworthy employment record and relying on that record in determining the sanction that is appropriate for the final incident. Thus, the prior records of misconduct and the grievorís habitual use of foul language in dealing with fellow employees and supervisors are of relevance.
The more difficult question to answer is whether there has been an altering of the grounds for the discharge. It is generally agreed that an employer, at arbitration, must support the action it has taken on the same grounds upon which it originally relied in invoking the disciplinary sanction. There is no written
record of what Mr. Richards told the grievor was the grounds for the discharge at the time it occurred. The first written statement appears to have been on February 16, 1982. At the hearing, reference was made to the misconducts present on his file, his failure to respond to a supervisorís instructions, his use of profane language in refusing to carry out instructions and his occasional disappearing for ten to fifteen minutes when there was every indication he was smoking marijuana during these disappearances. These matters were taken into consideration in conjunction with the threat using foul language issued to Mr. Richards.
The alleged alteration of grounds relates to the evidence concerning the marijuana. It was made abundantly clear at the hearing that all concerned were aware of this issue at the time the discharge occurred. The Company, for reasons relating to the grievorís interests as well as the interests of the Hotel and other employees, chose not to refer to that issue in the correspondence which took place during the grievance procedure. Mr. Richards stated : "It was the marijuana not the foul language that led to the discharge - but I didnít want to have it put on his file ; it would only hurt him in terms of getting another job". The grievor was well aware that his drug activity was one of the prime factors in the discharge. His response to my question as to what he understood as the reason for his discharge was : "because of the dispute about the pot and because there was inadequate action on the matter of money being taken". The Union definitely was of the view that the marijuana issue was central to the reason for the discharge since it was because of its understanding of the evidence the Company said it could produce on this matter that it chose initially not to proceed to arbitration.
The evidence of Mr. Richards was that at the time he told the grievor he was fired he did not state any reason. The Companyís decision not to specify the marijuana issue as a reason for the discharge in its initial correspondence was intended to do the grievor a favour. He was not prejudiced in any way by the fact it was only at arbitration that the evidence was introduced. He was aware it was a crucial factor in his discharge and was not surprised by reference to it at the hearing. There was no request for an adjournment to provide additional time for the Union to respond to this evidence. In fact, I would have to conclude that this case does not fit a normal situation where there has been an alteration of the grounds, since both the grievor and the Union were fully aware that the grievorís possession of marijuana on Hotel premises, irrespective of the selling issue, was an established fact and an important consideration when the Company decided to terminate him. Thegrievor was also aware this activity could serve as the basis for immediate dismissal.
It is my conclusion that the grievorís possession and sale of drugs on Hotel premises was a matter upon which the Company could rely to substantiate its discharge. This taken in combination with the grievorís threat against Mr. Richards, his fairly regular use of foul language and his consistent refusal to follow instructions warranted his termination.
I should also add that even if I were not to consider the marijuana issue I would still find the grievorís attitude towards his supervisors as manifested in his foul language and disobeying of orders combined with the culminating incident on January 25, 1982 would have been sufficient to warrant his termination. In reaching such a conclusion, I have considered whether there are any mitigating circumstances which would lead me to ameliorate the disciplinary sanction that was imposed. The grievor has a relative short period of service. His misconduct was of a serious nature when one considers the service aspect of the Companyís business. There is no evidence of a previous good record of the grievor. The grievor did not take any action to apologize to Mr. Richards for his behaviour on January 25, 1982. Finally, I am not satisfied there was sufficient provocation to warrant the type of outburst that occurred on that day.
In summary, I must conclude that the Company has discharged the onus of establishing there existed grounds for disciplining the grievor. Upon a review of all the evidence and argument, I am satisfied that the penalty of discharge was an appropriate sanction and there are no mitigating circumstances which would warrant my interference with that penalty. The grievance is therefore denied.
Respectfully submitted as the decision of the Arbitrator.
St. Johnís, Newfoundland
February 2, 1984
Wayne Thistle, Sole Arbitrator