(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

A hearing in this matter was held at Montreal on April 9, 1984.

The Joint Statement of Fact and Issue in this matter is as follows:

It is apparent from the Joint Statement that there are three questions to be decided in this case. First, did the grievor fail to carry out his instructions on the day in question? Second, did he use physical violence? Third, in the light of the answers to the first two questions, was the penalty imposed justified?

As to the first question, it is my conclusion, from all of the material before me, that the grievor did in fact fail to carry out his instructions on the day in question. The grievor’s shift on June 15, 1983, began at 1600. He performed the work initially assigned him, and at about 1800, was assigned by the Area Supervisor to assist other employees in cleaning pits. It is the Company’s evidence that the grievor was assigned to assist with respect to only one pit, pit no. 3. In any event, it was the grievor’s evidence that he began work in one of the pits. No one else, he said would work with him. At about 1830, when the Area Supervisor came by, the grievor says that he asked him where the others were, and that the Area Supervisor screamed at him and told him he had to clean all three pits. Another employee, however, was in fact working in pit no. 2, and heard the Supervisor tell the grievor to clean a pit. In my view, that was a reference to pit no. 3, and it would appear that the grievor had done no work with respect to that. Certainly the grievor was standing by the welding screen and not working when the Supervisor came by, and it seems clear that nothing had been done in pit no. 3, where the grievor had been assigned to work.

From all of the material before me, I conclude that the grievor was assigned to work in pit no. 3 only. He did not perform that work, and was subject to discipline on that account. With respect to the first question, then, the answer is "yes".

As to the second question, there is no doubt that the grievor did use physical violence, although there is some difference in the evidence as to the circumstances.

At about 1830, when the Area Superintendent came by the grievor’s work area the grievor (having, as he says, come out of the pit), was standing beside a welding screen. When the Superintendent directed him to work the grievor, perhaps believing that he had been directed to clean all three pits by himself (although this was not the case), either struck the Superintendent directly, or struck the screen so that it fell on the Superintendent, knocking him over. He then approached the Superintendent, who was on the ground, and kicked him, twice. The grievor was restrained by another employee, but after walking away, returned to strike the Superintendent. He then walked away, picked up a broom handle, broke it against a pillar, and apparently walked back toward the Superintendent, carrying the broken broom handle. He was again restrained, this time by a number of employees.

Clearly, in the circumstances, the charge of using physical violence has been made out. The grievor committed a deliberate assault against the Superintendent. While the grievor states that he lost control of himself because of the continued harassment and discrimination which the Superintendent had directed against him, the evidence simply does not establish that any such provocation took place. Certainly any such feelings which the grievor may have harbored as a result of his own perception of any past incidents (which may well not have been as the grievor says he perceived them to be), would not excuse his attack on the Superintendent on the occasion in question.

The answer to the second question is thus clearly "yes".

As to the third question while I consider that, in all of the circumstances, a greater penalty would not have been justified, the assessment of ten demerits for failure to perform assigned work was proper in the circumstances. In any event, it is my view that for his use of violence against the Superintendent, sixty demerits was justified in this case. The grievor, who had approximately three years’ service at the time of the incident, had a record clear of formal discipline, and had apparently been a good employee for the first two years of employment although the evidence suggests that his attitude had deteriorated in the months preceding the incident.

The case, however, is not really comparable to that of Burcevski (15 November 1982), decided between, the same parties. There, it was found that the grievor’s conduct,

Having regard to the circumstances of that case, and to the grievor’s seniority (ten years), and work record, it was considered that it was not a case in which the assessment of sufficient demerits to lead to the grievor’s discharge was justified. A period of suspension was imposed (no compensation was awarded) and the number of demerits was reduced. The assault involved in that case was of a different and less serious nature than that in the instant case. Even there, a very severe penalty resulted.

In the instant case, having regard to the findings set out above, and considering the circumstances of the matter, it is my view that there was just cause for the assessment of sixty demerits against the grievor for the use of violence, and for his subsequent discharge. Accordingly, the grievance is dismissed.

DATED AT TORONTO, this 7th day of May, 1984.

Arbitrator