BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

E. Forzley

B.H. Noble

A hearing in this matter was held in Montreal on June 13, 1979.

The joint statement of issue in this matter is as follows:

* * * * *

From the statement of all the employees concerned, it is clear that there was a fight between the grievor and another employee, and that as a result the other employee was injured (his hand was cut) by the grievor's utility knife. What is not clear is the degree of responsibility of the various persons involved.

The grievor did participate in a fight and for that (except in clear cases of self-defence) some discipline would be warranted. He did, as well, draw from his pocket (and from the pouch protecting the blade) his utility knife. The use of any weapon, or the use of a tool as a weapon (even if its blade was very short) is obviously wrong, and for that too the grievor would be subject to discipline. I do not consider that the grievor was deliberately attacked by another employee or employees, so that he was in reasonable fear of serious injury. I do not consider, then, that there was that degree of justification which would excuse resort to such a weapon in the circumstances. Thus, for his participation in the fight, and especially for his use of a knife, I consider that the grievor would be liable to severe discipline.

It is necessary, however, in assessing the penalty imposed on the grievor to consider all the circumstances of the incident, as well as the a grievor's disciplinary record. In this case the grievor, an electrician, had relatively short seniority, but had a clear disciplinary record and was regarded as a good employee. He was considered by his supervisor to be cooperative and of a good disposition. It appears that he immigrated to Canada from the Philippines a few years ago, and is of relatively slight build.

On the evening in question the grievor had been speaking to his wife on the telephone, mounted on a pillar just outside a foreman's office, with respect to their sick child. Several other employees, carmen and carman apprentices, were nearby, and one of them was anxious to use the telephone. The group considered that the grievor bad been too long on the telephone and began to make noise, sing songs and, it seems, beat on a garbage can. While the evidence is conflicting on the point it seems most likely that one of the employees, Mr. Kleyh actually threw a garbage can against the pillar on which the telephone was mounted. The grievor thought, perhaps not entirely without reason, that it was aimed at him, although I doubt that it really was.

Finally, the grievor hung up the telephone and some conversation took place between him and Mr. Kleyh. Mr. Kleyh, a carman apprentice, is a younger man than the grievor and is taller and heavier. The accounts of the matter differ, but it appears to me that the most probable account of what occurred is that Mr. Kleyh taunted the grievor and invited him to fight. I have no doubt, from the material before me, that whatever the particular incidents may have been, Mr. Kleyh was the overall aggressor, and that the grievor's conduct was provoked by the actions of the younger man and by the taunts of his companions. That the grievor was in fact frightened is, I think, the case, although obviously his reaction to the situation was an improper one.

As to the severity of the penalty imposed on the grievor, it is to be noted that there were six persons involved, to some extent, in the incident: the grievor on one hand and five other employees. Of those five, two would appear not to have been substantially implicated, and were not disciplined. Two others were assessed ten and twenty demerits, respectively, for unnecessary harassment of a fellow employee. These penalties would appear to reflect the involvement of the employees concerned. The fifth member of the group which was harrassing the grievor was Mr. Kleyh, who was assessed thirty demerits and was suspended for ten days. That is a substantial penalty and was, it would appear, merited. None of the penalties just described were appealed and they are not before me for determination.

While the grievor was not, as I find, the aggressor, band while his improper conduct was provoked, his reaction went beyond what might be excused, particularly with respect to his use of his knife. Had he been the aggressor, in the matter, the fact that he produced a knife would, I think, be sufficient justification for discharge. Even though he be regarded as the victim of an attack, resort to the knife was not excusable in the circumstances, and calls for a severe penalty. Taking into account the grievor's record and the circumstances of the incident, however, I do not consider that there was just cause for discharge.

The grievor's conduct was, insofar as it appears from the material before me, in the nature of a momentary flare-up albeit an extreme, one. He is a good employee with a clear record. He was the victim of aggressive behaviour by a younger, bigger man, accompanied by a group who were evidently supporting him. In these circumstances I consider that the grievor's penalty should be reduced.

It is my award that the penalty imposed on the grievor be reduced to the assessment of thirty demerits, and that he be considered as having been suspended for the balance of 1978. He is entitled to be reinstated in employment forthwith, without loss of seniority, or other benefits, but with compensation for loss of earnings from and after January 1, 1979.

DATED AT TORONTO, this 18th day of June, 1979.

Arbitrator