SHP - 389
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, SYSTEM COUNCIL NO 34
RE: DISCHARGE GRIEVANCE - HARRY FINLEY
SOLE ARBITRATOR:Hugh R. Jamieson
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
Ken Taylor – Counsel
Josee Ouellet – Sr. Officer Labour Relations
A hearing in this matter was held at Montreal on March 15, 1994.
This matter arises from a discharge grievance taken against Via Rail Canada Inc.(the Employer) by the International Brotherhood of Electrical Workers (the Union), following the dismissal of Mr. Harry Finley (the Grievor), on May 21, 1993. The Grievor had been employed by the Employer (and previously by C.N. Rail), as an electrician for some twenty years. At the relevant time, he was working at the Employer’s Maintenance Centre at Winnipeg.
The termination of the Grievor’s employment came about as the result of an incident which took place at the entrance to the stores room at the Winnipeg Maintenance Centre during the evening shift on May 6, 1993. At that time, there was a difference between the Grievor and a Supervisor, Mr. David Hunt over whether the Grievor should have access to the stores room. A scuffle ensued during which the Employer alleges that the Grievor pushed and verbally abused Mr. Hunt.
According to the Employer’s version of the circumstances upon which it relies to justify the Grievor’s dismissal, the Grievor and Supervisor Hunt apparently had a run in several days prior to the incident on May 6, 1993 over the Grievor being in the stores room without being accompanied by a Stores Attendant. This is apparently not in keeping with the proper procedures set out by the Employer and words were exchanged between Mr. Hunt and the Grievor over this very point. That apparently occurred on or about April 27, 1993 and it was supposedly made clear to the Grievor then by Mr. Hunt that he was not to be inside the stores room unless he was with a Stores Attendant. On the night in question, May 6, 1993 about 10.30 p.m., Supervisor Hunt was just about to exit from the stores room after having assisted some employees to locate a certain piece of equipment when the Grievor approached the entrance to the stores. According to Mr. Hunt, he had just stepped through the small access door of the stores room with this piece of equipment in his hand and was still holding the door open, when the Grievor attempted to push past him to get into the stores room. Holding his position in the doorway, Mr. Hunt claims that he asked the Grievor what he wanted in the stores room. The Grievor continued to attempt to push past him indicating that he wanted to speak to one of the Stores Attendants who was standing just inside the doorway. Mr. Hunt said that he then told the Grievor to follow proper procedure and to go to the nearby stores service window if he required something from the stores. Rather than obey that order, the Grievor continued to push forward demanding that Mr. Hunt get out of his way. The Grievor then put his hand on Hunt’s chest and pushed him backwards against the door frame. According to Mr. Hunt, during this scuffle, the Grievor’s voice was raised and his tone was threatening. Mr. Hunt said that he was not injured, however, the force of the push stunned him for the moment and he was concerned for his safety.
Realizing that the situation was extremely tense and, with the Grievor still jeering at him, Mr. Hunt said that he left the scene and headed for the foremens’ office. The Grievor purportedly followed him most of the way still going on in a loud voice about the system and demanding to know how he was supposed to get things from the stores.
Shortly after the incident, Mr. Hunt reported the alleged conduct of the Grievor to a co-Supervisor Mr. Jim Lennon as well as to his two superiors, Messrs. Bailey and Shaman who were at home off duty. He also took the precaution of contacting the plant security to have them notify him when the Grievor left the plant after his shift that night. He also requested that security keep an eye on his car. On his way home, Mr. Hunt reported the alleged assault to the Winnipeg Police Department. He did not however, request that charges be laid against the Grievor. According to Mr. Hunt, the report was only made for the record in case of further violence.
In any event, the following day, May 7, 1993, the Grievor was suspended from duty pending an investigation which was to take place on May 12, 1993. He was then fired on May 21, 1993 for, " gross insubordination and threatening remarks made towards a Supervisor."
In the meantime, members of the Employer’s management team had interviewed all of the employees who were on shift at the time of the incident in an attempt to determine exactly what had transpired. Notwithstanding that at least three employees were in the immediate vicinity at the time, there was a clear reluctance to get involved and no one was prepared to admit seeing or hearing anything that could substantially support Mr. Hunt’s story or for that matter, the Grievor’s version of the events. When it came to the hearing before me on March 15, 1994, the best the Employer could do vis-a-vis corroborating evidence, was to produce statements from management persons giving their versions of what the employees had purportedly said to them.
While on the topic of corroborating evidence, this is probably the appropriate time to mention that the Employer made much of the unwillingness of witnesses to come forward in this case. In the Employer’s view, the only inference to be drawn from that is that these employees simply did not want to lie. If it had been Mr. Hunt who been in the wrong, the employees would surely have been glad to support a fellow worker against a Supervisor. According to the Employer’s rationale their unwillingness to come forward is a clear indication of the Grievor’s guilt.
The Employer also raised the spectre of the possibility that witnesses in this case may have been intimidated. This allegation was founded on an anonymous threatening phone call that one potential employee witness had apparently received. This employee had been subpoenaed by the Employer to testify before me but had been released from so doing by the Employer following an appeal from the employee’s physician. For obvious reasons, I will not release this employee’s name, nor will I discuss his medical condition publicly. The only comment I have is that on a close reading of all of the material before me, it is my understanding that this employee was not even a witness to the events of May 6, 1993. Going by the Employer’s brief it appears that if called, this employee would have been asked to testify about a "working life of fear and dread … all of which involved Mr. Finley and his support group." (para 32 - page 6 of the Employer’s ‘brief). If that was so, I rather doubt if that kind of evidence would even have been allowed. In any event, other than for this letter from the employee’s physician which incidentally, I have no consent to use, there is absolutely no evidence before me that witnesses have been interfered with.
That aside, the main thrust of the Employer’s case was clearly that the Grievor had assaulted and threatened Mr. Hunt. Throughout the hearing, the Employer consistently referred to the actions of the Grievor as constituting "an assault on a Supervisor." On that basis, in support of its decision to terminate the Grievor’s employment, the Employer relied upon what it described as the well-established principle of zero tolerance for physical or verbal abuse of supervisory personnel. In this regard, the Employer referred to Re MacDonalds Consolidated Ltd. and Retail Wholesale Union, Local 580, (1990), 14 L.A.C. (4th) 379 (McKee); and in particular to the following passages from page 383 of that award:
In response, I must state that in the very lonely task of being supervisor in the front line of a company, and to the men supervised - "the Company" - it is not necessary, in my view, that a supervisor be hurt or suffer discomfort to be regarded as having suffered an assault from an employee.
The mere laying of hands on a supervisor by an employee is totally unacceptable and warrants severe discipline – basically discharge.
Supervisors at all times must be permitted to carry out their supervisory function without hindrance or threat, whether it be verbal or physical.
Supervisors will naturally on occasion give orders and make decisions that may not necessarily be acceptable to those supervised. Lack of agreement with the order or decision, however, can never be taken as acceptable motivation leading to verbal or physical assault.
Based on those arbitral principles and, in the circumstances presented, the Employer urged me to uphold the discharge and to dismiss the grievance.
Turning now to the Grievor’s version of the events of May 6, 1993 which were of course, entirely different from those related by Mr. Hunt. In fact, the Grievor denied having laid a hand on Mr. Hunt and claimed that it was the Supervisor who had actually pushed him. According to the Grievor, he was heading into the stores to speak to the Stores Attendant before looking on the back shelves for a used part for a steam generator when Hunt blocked his way. Mr. Hunt then pushed him backwards from the doorway to prevent him from entering the stores. He added that when Mr. Hunt had then headed to the office without even an apology, that he had followed only for a short distance, trying to make Mr. Hunt understand that what he had done was unacceptable and that there were more decent ways of reminding an employee not to enter the stores room alone.
After the incident, the Grievor attempted to report the matter to his superiors. Shortly after the events, the Grievor told two other foremen, Messrs. Lennon & Hughes, who were on duty that night that he had been pushed by Mr. Hunt and asked that something be done about it. He was told that nothing could be done and that he should take the matter up with the Union.
In support of the Grievor’s allegations that it was Mr. hunt who had done the pushing, the Union called Mr. Wes Wilgosh as a witness at the hearing. He is the employee who had been standing at the nearby stores service window when the altercation between the Grievor and Mr. Hunt commenced on the night in question. Mr. Wilgosh testified that he had been returning something to the stores when he saw Mr. Hunt exit from the small door. As Mr. Hunt exited, the witness saw the Grievor attempt to enter the stores through the same door. He said that Mr. Hunt had stopped the Grievor from proceeding through the doorway by placing his left hand on the Grievor’s chest. He could not say however, what amount of force was used by Mr. Hunt to stop the Grievor. Nor did he hear anything that had been said by either Hunt or the Grievor, he could only say that their voices were normal when he heard them. The witness testified that at that point he left the window and walked away from the scene.
In argument, the Union basically took the position that the Employer had failed to discharge the burden of proof which it unquestionably carries in a discharge case. The Union submitted that the direct testimony of the Grievor which was supported in part by the evidence of Mr. Wilgosh was clearly the more credible and should be believed. According to the Union, there is simply insufficient evidence here to support the allegations against the Grievor. The Union pointed out that aside from Mr. Hunt’s testimony, which the Union suggests is full of discrepancies, the Employer relies wholly on documented hearsay evidence, much of which does not pertain to the relevant events. In these circumstances, the Union submitted that I should disregard this self-serving evidence presented by the Employer and that I ought not to draw any inferences of guilt from it. In support of its position regarding the required standard of proof, the Union relied on several precedents including, Re Canada Post Corporation and Canadian Union of Postal Workers, (1988), 3 L.A.C. (4th) 162 (Bird); which stands for the widely-accepted principle that in situations such as this where discharge is involved and the stakes are so high, the evidence to support a finding of misconduct should be at the very least, clear, cogent and convincing.
The Union’s alternate position was that if indeed there are grounds for a finding against the Grievor, the nature of the offence is quite minor here and it certainly does not warrant discharge. Once again, Counsel for the Union took me through numerous precedents where, in the face of much more serious assaults on supervisors than we have here, arbitrators had reduced the penalty of discharge to a lesser one. For my purposes I am not going to list all of the cases referred to. It will suffice to touch briefly on the often-quoted Re Dominion Glass Co. and United Glass & Ceramic Workers, Local 203, (1975) 11 L.A.C. (2d) 84 (Linden), to highlight the arbitral principles relied upon by the Union:
There is no doubt that violence and insubordination by employees are unacceptable in an industrial undertaking and that employers have the power, in proper circumstances, to discharge employees on the basis of such conduct. However, it is not every case of violence or insubordination that will justify the discharge of an employee, a sanction that has been called, "industrial capital punishment". There are many factors which may mitigate the severity of the offence and these must be considered in each individual case.
… It is, however, in my view incumbent upon the company to demonstrate that the insubordinate or violent conduct of the employee was such as to make it improbable that he would be able to function effectively in the plant again. Discharge is a harsh penalty, and should be utilized only sparingly. It should be used only where it is clear that no other method of discipline will be of any avail. (Emphasis added)
Arbitrator Linden went on in that award to list several factors that were taken into account in mitigating the penalty. I need not reproduce them here.
Before discussing any mitigation of the penalty in this case, I must first decide what really happened on the night of May 6, 1993. This obviously turns on the credibility of the Grievor and Mr. Hunt whose evidence was in such total conflict. This is not unusual though in these situations and it does not necessarily mean that one of the witnesses is outright lying because there are two opposite views of the same set of circumstances. It is only human to reconstruct the facts in the most favorable light for oneself and, as time passes, one comes to believe that their own account of the events is the real one. I am content that both the Grievor and Mr. Hunt were attempting to be accurate in their testimony and that they were relating what each now perceives as being the truth. At the end of the day though, after having observed both the Grievor and Mr. Hunt on the stand, I must conclude that the Grievor did push Mr. Hunt as alleged.
Several factors lead me to that conclusion. First, given all of the circumstances, I prefer Mr. Hunt’s direct evidence. In my estimation, his testimony was slightly the more credible. Although he was obviously confused about a few specifics such as, for example, what hand he was holding the tool in when he opened the stores room door, I do believe that in the overall balance of probabilities, his version of the facts is the more likely to reflect what had occurred on the night in question. Let me say immediately though, that I do not totally disbelieve the Grievor. In fact, in his favour, I do accept the part of his story, that Mr. Hunt physically blocked his entrance to the stores room and in so doing, Mr. Hunt did in fact place his hand on the Grievor’s chest. I am not so sure though that the effect of this was that the Grievor was pushed backwards away from the door.
In this regard, my real problem with the Grievor’s claims to a passive role in the incident is that I saw the signs of underlying belligerence in the Grievor when he was under cross-examination before me. I saw that look on his face and also heard him raise his voice and argue back when there was really no call for it. I can therefore well imagine the Grievor pushing past Mr. Hunt on the night in question. I can also readily imagine him raising his voice to make his point and persisting in speaking to the Stores Attendant who was standing just behind Mr. Hunt at the time.
In addition, Mr. Hunt’s post-incident conduct was certainly in keeping with someone who has just been pushed around. When he went back to the foremen’s office where he almost immediately told fellow Supervisor Jim Lennon that the Grievor had pushed him against the door frame, he must surely have known that the incident had been witnessed by at least three employees who were standing close by. At that time, he obviously did not know what these employees were going to say and he certainly could not have anticipated then that they would not get involved. In the circumstances, I simply cannot see Mr. Hunt fabricating this whole story on the spur of the moment particularly in the face of all of the potential witnesses against him. Furthermore, the two phone calls that he made to the homes of Messrs. Bailey and Shaman late that night reporting the incident, and then reporting the matter to the police on his way home, were consistent in my view with the actions of someone who had just been wronged.
Granted, the Grievor also reported that Mr. Hunt had pushed him to Messrs. Lennon and Hughes shortly after the events. However, I see his post-incident behavior in a different light. It seems to me that what the Grievor tried to do that night by reporting that it was he who was pushed by Mr. Hunt, which was not altogether untrue, was to attempt to turn the tide in his |avour by aggressively focusing on that point and making noises about doing something about it.
Having found that there is some foundation to the allegations against the Grievor, the next task is to determine the appropriate penalty. In this regard, I agree wholeheartedly with the Union, dismissal is certainly not called for. While I do not wish to diminish the severity of any kind of physical or verbal abuse of a supervisor, one could hardly call this an assault in the literal sense of the word. What the Grievor did here was to simply lose his cool, raise his voice and aggressively try to barge past Mr. Hunt. I am sure he had no intent to injure him.
Also, the Grievor was not entirely to blame for the confrontation in my view and he should not therefore carry the full brunt of the consequences by receiving the maximum penalty. It appears to me, that the physical barring of the stores room door by Mr. Hunt was the spark that ignited the flame. Had he simply stepped aside, he would soon have seen if the Grievor was going to speak to the Store Attendant. If he had not, then he could have taken the appropriate action. Moreover, the uncontradicted evidence before me is that the breach of the supposed rules committed by the Grievor on or about April 27, 1993 when he was cautioned by Mr. Hunt, was being in the stores room alone, it had nothing to do with going to the service window. Here, the Grievor was purportedly heading for a Stores Attendant when Mr. Hunt intervened. In the circumstances, I can see where there could have been some frustration on the Grievor’s part. Furthermore, I am not altogether convinced that the strict rule that the Employer insists is in place, i.e., that all employees must go to the stores service window before being permitted to enter the stores room, is as strict in practice as the Employer would have me believe. I saw nothing in writing to that effect and, the evidence from the employees certainly did not support the rigidity of such a rule.
In any event, the Grievor was given a direct order to go to the stores service window to conduct his business and he ought to have complied rather than having tried to barge past the Supervisor. After twenty-years of railway service, one would have thought that the Grievor would be aware of the protection of the golden rule, "work now grieve later." If not, it is time he learned. More importantly, he must also learn that violence of any kind has no place in the work environment and that one cannot abuse a supervisor with impunity. In the circumstances, I would reduce the penalty from dismissal to a two month suspension without pay. Seniority will also be forfeited for the period of the suspension. The Grievor must also apologize to Mr. Hunt. The grievance is therefore allowed in part and it is hereby ordered that the Grievor be reinstated in his employment immediately. His record of employment is to be amended accordingly. The suspension will be deemed to have been served commencing on May 7, 1993 when the Grievor was first held out of service. Upon his return to work, or as soon as possible thereafter, the Grievor will personally deliver a written apology to Mr. Hunt.
In keeping with my commitment made at the hearing, I will not discuss any other form of compensation for the Grievor to allow the parties time to discuss the impact of the lack of reference to compensation in the Joint Statement of Issue and Facts. Should the parties wish me to rule on this aspect, they will inform me as to how they wish to proceed. In the meantime, I shall retain jurisdiction over this matter and in particular the remedy and its implementation.
Dated this 29th day of March, 1994
(signed) HUGH R. JAMIESON