AH - 203
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CANADIAN TELECOMMUNICATIONS UNION,
DIVISION NUMBER 1
(the ”Union”)
AND
CANADIAN PACIFIC LIMITED
(TELECOMMUNICATIONS DEPARTMENT)
(the “Company”)
IN THE MATTER OF THE GRIEVANCE OF Andre Dyotte
Sole Arbitrator: Harvey Frumkin
There appeared on behalf of the Company:
D. W. Flicker
There appeared on behalf of the Union:
Marcel Rivest
A hearing in this matter was held at Montreal, Quebec, on the 29th day of September, 1978.
The undersigned, Harvey Frumkin, was by agreement of the parties hereto appointed sole arbitrator to hear and decide the above grievance. The hearing was held at Montreal, on September 29th, 1978. Mtre D. W. Flicker acted for the Company and Mtre Marcel Rivest presented the case for the Union. After duly hearing the arguments of both sides, studying the various exhibits submitted, the evidence taken at the hearing and the Collective Agreement, the arbitrator submits herewith his decision.
The grievance before the Tribunal is directed against the dismissal of the Grievor from his employ with the Company on March 14th, 1978, as a disciplinary measure, pursuant to allegations that the Grievor on March 10th, 1978, uttered threats and insults to one Daniel Raymond, supervisor of operations in charge of demenagements for the Company.
At the time of his dismissal, the Grievor had been in the employ of the Company for a period of approximately four (4) YEARS, and was classified as an Installer employed in the Departement d’Installation. At the relevant time, Mr. Raymond towards whom the alleged insulting and threatening remarks were directed was entrusted with the supervision of a department other than that in which the Grievor was employed.
The Collective Agreement at article 25.01 sets forth the procedures which are to be followed in the case of the suspension or discharge of an employee for misconduct. It reads as follows:
25.01 “No employee shall be suspended (except for investigation) discharged or disciplined, until his case has first been investigated, and he has been proved guilty of the offence charged against him. An employee may have the assistance of a co-worker if he so desires. Should no decision be reached within ten (10) days, he shall receive his regular pay until a decision is reached. If an employee is found blameless in the matter under investigation he shall be paid regular rates for all time lost and necessary extra expenses while attending such investigation (if away from his regular place of employment), and reinstated.”
It is evident from the foregoing provision that to justify imposition of discipline in any form, the employer must furnish proof of the guilt of the employee, of the offence charged against him. This would clearly infer that the burden of proving employee misconduct justifying discipline falls to the employer and indeed, the article contains merely an expression of an otherwise generally accepted principle in discipline cases, that it is always encumbent upon an employer who seeks to resort to disciplinary measure, to redress employee misconduct to establish just or proper cause for same.
The standard of proof to which an employer will be subject in this regard, is not however, the burden applicable in criminal cases, namely, that the just cause must be established beyond all reasonable doubt and this principle is universally accepted. Rather, the employer will be subject to the civil burden of proof, in that, it will satisfy its onus by establishing to a balance of probabilities the facts which would justify the imposition of discipline. Re: Julius Resnick Canada Ltd, (1973), 3 L. A. C. (2d) at 247. Some arbitrators have required that an employer satisfy a more stringent onus where it seeks to resort to the impositic of disciplinary measures for misconduct, although such onus will be somewhat lesser than that applicable in criminal cases. Indeed, the momentum of recent arbitration decisions would be to the effect at least, that where serious alleged misconduct imputed to an employee is invoked as justification for a severer from of discipline, the standard of proof to which an employer will be subject, should go beyond mere balance of probabilities and that on the whole, the arbitrator should be reasonably convinced that the culpable acts or omissions attributed to a grievor and forming the basis of a severe from of discipline, did in fact occur. William R. Barnes Co. Ltd., (1973), 2 L. A. C. (2d) 284: Allen Industries Canada ltd., (1971) 23 L. A. C. 121.
Applying these principles, it would remain for the arbitrator in any particular case involving a sever from of discipline founded in alleged serious misconduct, to assess the totality of the proof before him, and to determine whether the employer has succeeded in reasonably convincing him that the serious misconduct did in fact take place. It would not follow, that the arbitrator must be satisfied of such a state of affairs beyond all reasonable doubt, but rather, that strong and compelling proof be furnished in favor of the employer’s position. In this light, it would rest with the Tribunal to embark upon a determination of whether the Company has discharged its burden of proof in the present case.
The factual background giving rise to the grievance, may be briefly summarized. On March 9th, 1978, the Grievor was occupied in his post as installer, working in conjunction with a fellow employee, Gauthier. Close by and occupied in his duties, was a fellow employee Dubord, who was them employed in the departement de demenagement, under the supervision of the supervisor of operations in that department a Mr. Daniel Raymond. It was explained that Mr. Dubord had only recently been assigned to the department de demenagement, having been previously employed in another department.
It would appear that during the course of the day, Mr. Raymond delivered to Mr. Dubord a disciplinary demerit notice, issuing from Dubord’s former supervisor and apparently resulting from an incident which had occurred sometime previously. Later, during the same day, the supervisor Raymond again approached Dubord who was still posted in the vicinity of where Gauthier and the Grievor were working and assigned to him certain work functions on another piece of equipment. Dubord refused the assignment. Following some discussion between the supervisor Raymond and Dubord, the Grievor and Gauthier intervened, allegedly berating Mr. Raymond’s treatment of Dubord and in the words of Mr. Raymond, were verbally abusive and somewhat threatening in their language. Thereupon, Mr. Raymond reported the incident to his superiors with the result that both the Grievor and Gauthier were summoned before an official of the personnel department and warned that repetition would result in serious measures being taken.
The incident provoking the dismissal of the Grievor occurred on March 10th, 1978. The evidence as to precisely what transpired at that time is contradictory.
According to the witness Mr. Raymond, early that morning, he approached Dubord with some inquiry concerning the latter’s assignment in the normal course of his supervisor duties. As he was leaving the vicinity of Dubord, the Grievor, who was working at a distance of some five to seven feet from Dubord, is alleged to have again directed insulting, abusive and threatening remarks to Mr. Raymond. These remarks, according to Mr. Raymond, were not uttered in the context of a discussion, argument, or confrontation, but were rather spontaneous and terse. The alleged incident was immediately reported by the supervisor with the result that the Grievor was immediately removed from his duties, suspended pending an investigation, dismissed.
The Grievor for his part, flatly denies having uttered any insulting or threatening remarks to Mr. Raymond, and even denies having addressed any remarks of any nature whatsoever, at him at that time. Dubord, having since been dismissed by the Company for disciplinary infractions unrelated to the incident, testified that although in the immediate vicinity, he heard nothing.
While the tribunal would discount to a large extent the apparently corroborative testimony of Dubord, which under the circumstances would be somewhat suspect, it nevertheless remains that what confronts the Tribunal, are two diametrically opposed versions of what transpired at the critical moment, on the morning of March 10th, 1978.
The Grievor was an otherwise competent employee with the Company whose record over four (4) years is unblemished. As the testimony revealed, the Company in accordance with the provisions of the applicable Collective Agreement, employed a demerit system to deal with disciplinary infractions of one sort or another and the Grievor’s record during his four (4) years with the Company did not reveal a single demerit point. While the Grievor acknowledged that he had pointed out to Mr. Raymond, during the incident of march 9th, 1978, the chain of authority through which Dubord should have received demerit points, he denies having insulted or threatened Mr. Raymond at that time as well. On the basis of the evidence there would appear to have been at least a moderate degree of noise in the immediate vicinity where the incident is alleged to have taken place and there was at least one other employee in the area.
On the whole, the Tribunal is unable to conclude with any conviction whether or not the Grievor in fact, addressed to Mr. Raymond the threats or insults on the morning of March 10th, 1978, for which he was dismissed, and while the Tribunal would not concluded that such threats and insults were not uttered by the Grievor at the time, it nevertheless remains unsatisfied that the employer has established in a reasonable convincing manner that the Grievor did in fact utter the language and threats imputed to him. Accordingly, the onus resting on the employer, the Tribunal must concluded that the employer has failed to discharge the burden that was encumbant upon it.
As it was the obligation of the employer under provisions of article 25.01 of the Collective Agreement to prove that the employee was guilty of the offence charged against him, an obligation that has not been satisfied, the Tribunal must find that the grievance is well founded.
At the hearing the parties indicated to the Tribunal that the latter should reserve jurisdiction on the question of (word?). In the event that it (word?) it to maintain the grievance and order reinstatement, insofar as in such an event the parties wished to submit evidence on this question. The Tribunal in compliance with this request will receive jurisdiction on the question of compensation.
For the foregoing reasons the grievance is maintained, the discharge of the Grievor is set aside and ordered stricken from the Grievor’s record: the company is ordered to reinstate the Grievor with full rights and benefits and with seniority uninterrupted on the first working day following receipt of the present award; in respect to the question of compensation, the Tribunal reserves jurisdiction for a period of sixty (60) days following the dates of this award, during which period it will reconvene at the instance of either of the parties, to determine the question of damages to which the Grievor may be entitled as a consequence of the unjustified dismissal, in the event that they are unable to resolve this question on their OWN.
Montreal, October 4,1978
Harvey Frumkin
Arbitrator