BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

A. Y. deMontigny

M. M. Yorston

And on behalf of the Union:

E. Tandy

J. W. Asprey

A hearing in this matter was held at Montreal on November 12, 1982.

The grievor, a Carman, was hired by the company on August 28, 1972. He was dismissed on May 12, 1982, for accumulation of demerit marks as a result of his being assessed 40 demerit marks following an incident which, occurred on May 4, 1982. The issue is whether or not there was just cause for the assessment of 40 demerits and thus for the discharge of the grievor.

The forty demerits were assessed because the grievor struck his supervisor on the day in question. There is no doubt that he did that, and of course such action would, as a general rule, subject the employee to severe discipline. In many cases involving assault on a supervisor, it has been held that discharge is the appropriate penalty. Each case, however, turns on its own facts.

In the instant case, it seems clear that bad feelings had developed between the grievor and his supervisor. The supervisor had been assigned to the area in question only a few weeks prior to the incident. It was the grievor's feeling that the supervisor had been discriminating against him on account of his national background, and that he had indulged in racial slurs against him. While I would not, on the material before me, make any finding that the supervisor had in fact discriminated against the grievor or engaged in racial slurs, nevertheless I think it is the case that the grievor believed that such discrimination and slurs were taking place.

Some foundation for this appears from the fact of the grievor's having been frequently assigned to less-desirable work, while junior employees were not. Whether or not the company was properly exercising a right of temporary assignment, the grievor felt that he was not being fairly treated.

On the day in question, the grievor, who had become exercised over an assignment of this source, went to the supervisor and requested a pass out. The foreman refused to issue a pass and directed the grievor to return to his work. The two men left the office and proceeded toward the work area. As they went, the grievor continued to remonstrate with the foreman about his assignments. He asked why he was being picked on. The supervisor leaned toward the grievor and replied (according to the grievor) saying, "Why not you! Why not you!", and as he did so is said to have "pushed" the grievor with a card he was holding in his hand. The grievor reacted to this by striking the supervisor.

I do not consider that the supervisor's touching of the grievor should be described as an assault, and the grievor does not suggest that he hit the supervisor in self-defence. The grievor, for his part, hit the supervisor on the side of the face, knocking him down. He did not pursue the matter, and there was no fight in the usual sense. Although directed to report to the office, the grievor then went and carried on with his work.

The grievor, who has some ten years' seniority, would appear to have had a generally good work record, although in January, 1982, he was assessed a total of 30 demerits for matters relating to safety glasses. Striking a supervisor without justification would, in most cases, justify the assessment of at least 30 demerits. Thus, even if the discipline in question were to be reduced to that level, the grievor would still have been subject to discharge. In some cases, a more severe penalty, including discharge, would be appropriate.

In the instant case, I find, on the material before me, that the grievor's conduct was a momentary flare-up, resulting largely from pent-up frustration and a sense of injustice which the supervisor appears to have done little to dissipate, whether or not he was in fact its cause. Certainly the supervisor's manner toward the grievor at the time of the incident was not a conciliatory one.

While the supervisor's conduct did not, strictly speaking, amount to provocation of an assault, its effect was certainly to increase the grievor's frustration, and to bolster the feeling he had that he was the victim of discrimination.

Having regard to these circumstances as well as to the grievor's seniority and work record, it is my view that this was not a case in which the assessment of sufficient demerits to lead to the grievor's discharge was justified. In circumstances such as these, a period of suspension would be proper, as well as the assessment of a lesser number of demerits. This is not to say that suspension should be resorted to in general where a demerit system of discipline is in effect. There may, however, be special circumstances where such a penalty is appropriate, and I consider this to be such.

Having regard to the foregoing, and to all of the circumstances of this case, it is my view that the penalty assessed the grievor be one of 20 demerits, and that he be reinstated in employment forthwith, without loss of seniority, but without compensation. It is a condition of reinstatement that the grievor return to his former or equivalent work (or, if it has become unavailable, such other work as his seniority entitles him to), and that he undertake to work under the direction of whatever supervisor be in charge thereof.

DATED AT TORONTO, this 15th day of November, 1982.