SHP 459: WASYLENCHUK, C.

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY

(the "Employer")

AND:

CANADIAN AUTO WORKERS, LOCAL 101

(the "Union")

(Grievance of Engine Attendant C. Wasylenchuk)

ARBITRATOR: Vincent L. Ready

COUNSEL: G. Pepin

for the Company

Brian McDonagh

for the Union

HEARING: March 26, 1998

Vancouver, B.C.

PUBLISHED: April 21, 1998

1934.2

This case involves the dismissal of Engine Attendant Chris

Wasylenchuk from the Edmonton Mechanical Facility, Alberta. The

parties filed the following Joint Statements of Fact and Issue:

©b34r JOINT STATEMENT OF FACT:

On December 11, 1996 by way of a letter to the Union C.

Wasylenchuk was dismissed from service for, firstly:

"...that you have been assessed forty (40) demerit

marks for your inappropriate and unacceptable behaviour

as evidenced by your verbal threats and physical

assaults against a fellow employee, at South Edmonton,

November 26, 1996. (Third incident)

and, secondly:

"...that you have been dismissed for accumulation of

demerit marks in excess of 60 demerits."

©b34r JOINT STATEMENT OF ISSUE:

It is the position of the union that:

- the Company has acted in an arbitrary, excessive and

discriminatory manner with respect to the dismissal of

C. Wasylenchuk.

Therefore, Engine Attendant Chris Wasylenchuk should be

reinstated forthwith, without loss of seniority, with full

redress for all lost wages, benefits and losses incurred as

a result of his dismissal, including, but not limited to,

interest on any moneys owing.

The Company denies the Union's contentions and claim.

As noted in the Joint Statements of Fact, the incident giving rise to

the grievor's dismissal occurred on November 26, 1996. The

information shows that on this day the grievor was asked to work

overtime after his regular 2400-0800 night shift. At this time the

grievor was assigned to work with Engine Attendant Albert Larson on

the day shift. Mr. Larson was the alleged victim of the grievor's

verbal threats and physical assault.

The evidence shows that at some point in the morning of November 26,

while the grievor and Mr. Larson were in the fuelling shack, they

became engaged in a disagreement over the performance of certain snow

and ice clearing work. The two participants in the conversation

disagreed on the nature of their argument. Mr. Larson testified that

the grievor was complaining about clearing the running boards. On

the other hand, the grievor alleges that the discussion became heated

with Mr. Larson berating the grievor's work performance.

The parties also disagree on the degree of severity of physical

contact between the two. Mr. Larson testified that he got up to

leave when the grievor stood up and stated "You're going to stay

right here", grabbed him by the throat and continued with words to

the effect "we are going to settle this argument right here, there

are no witnesses." Mr. Larson added that after a moment the grievor

appeared to settle down only to grab Mr. Larson by the throat a

second time stating "we are going to settle this once and for all."

The grievor then settled down again, and the two got up, left the

fuelling shack, and resumed their duties. Both individuals

subsequently reported this incident to Lead Hand Marcel Esposito, as

there was no Supervisor on duty at the time.

The grievor's account is essentially that Mr. Larson was being

uncooperative, and that Mr. Larson verbally abused him in the

fuelling shack. During the course of the investigation into this

matter, the grievor made the following statement on December 2, 1996:

He (Mr. Larson) said I don't need you here, you do

nothing on your shift, you sleep all night and you

leave me all this work to do. I don't know nothing

and I shouldn't be here with him. As he was saying

these things he was yelling and his face turned beet

red, foaming at the mouth. I just asked him once

again I am here to help you with this power and once

again he started yelling and screaming again, I don't

need your help I can do it myself. At this point I

was getting scared...

The grievor's December 2, 1996 statement indicates that he asked Mr.

Larson to leave him alone, but that he continued to "yell and scream"

at the grievor. The grievor stated he responded to the grievor by

saying, "if you keep this up I'll put you into next week." In his

statement the grievor got up and pushed Mr. Larson so he could exit

the fuelling shack.

In a supplementary statement given on December 6, 1996 the grievor

agreed with the contents of a memo written by Assistant Operations

Coordinator, Milton Nordstrom. Mr. Nordstrom wrote his memo on

December 3, 1996 setting out the contents of a conversation he had

with the grievor on November 27, 1996. According to Mr. Nordstrom's

memo, the grievor indicated that Mr. Larson had given him a verbal

admonishment for not doing his job properly and that he was tired of

following the grievor around and doing his work for him. During his

conversation with Mr. Nordstrom, the grievor stated he shoved Mr.

Larson against the wall of the fuelling shack because he was tired

and had resented Mr. Larson's remarks.

On December 11, 1996 the Company assessed the grievor with 40 demerit

points and terminated him as he had accumulated in excess of 60

demerits under the Brown System of Discipline used by the Company.

©b9rDECISION

There are essentially three questions to be decided by an arbitrator

in dismissal cases. The first is whether the grievor's conduct gives

rise to just cause for some measure of discipline. Secondly, having

regard to all of the circumstances surrounding the situation, was

dismissal an appropriate response. If not, what penalty should be

substituted.

In ©b16rFaryna v. Chorny (1952) 2 D.L.R. 354 (BCCA) the British

Columbia Court of Appeal had opportunity to comment on how

credibility issues are to be resolved by a trier of fact. In that

case the Court stated:

...The credibility of interested witnesses, particularly

in cases of conflict of evidence, cannot be gauged

solely by the test of whether the personal demeanour of

the particular witness carried conviction of the truth.

The test must reasonably subject his story to an

examination of its consistency with the probabilities

that surround the currently existing conditions. In

short, the real test of the truth of the story of a

witness in such a case must be its harmony with the

preponderance of the probabilities which a practical and

informed person would readily recognize as reasonable in

that place and in those conditions...

In the present case I accept that Mr. Larson's account of what

happened in the fuelling shack on November 26, 1996 is to be

preferred over the version given by the grievor. Mr. Larson was a

credible witness with no motive to manufacture an account that the

grievor had seriously threatened and accosted him. Mr. Larson's

account of the grievor's assault on him has been consistent since he

first complained of the incident after it occurred on November 26.

On all the evidence, his story is in harmony with the "preponderance

of probabilities" as to what occurred on November 26, 1996.

The grievor, on the other hand, possesses a past record for having

verbally and physically accosted a co-workers and, to this extent,

has some motivation to manufacture an account that downplays his

violent actions. Further and based on the fact that he has

essentially given two separate accounts, his version of what happened

must be viewed with a high degree of circumspection. It will be

recalled that at this hearing the grievor testified what he told Mr.

Nordstrom on November 27, 1996 (but that did not come to light until

December 3, 1996) was correct. In this version the grievor was tired

and resented remarks made by Mr. Larson. This account conflicts with

the grievor's December 2, 1996 statement wherein he made no mention

of being tired but rather stated he was "getting scared". At this

hearing the grievor again stated he felt both "scared and frustrated"

towards Mr. Larson.

Having determined that Mr. Larson's account be preferred over that of

the grievor I also accept that the grievor's conduct did give rise to

some measure of discipline. Two physical accostations, coupled with

verbal threats, are not incidents that can be taken lightly. These

matters are serious and, I accept, warrant some measure of

discipline. Even if there existed some element of provocation as a

result of the heated exchange between Mr. Larson and the grievor, I

do not accept that physical violence was in any way an appropriate

response. The grievor is a large powerfully built man who, at age

46, is in very good physical condition. Mr. Larson at age 58 is much

smaller in physical stature and it is easy to accept he felt

extremely intimidated and threatened by the grievor's actions.

The next question is whether, having regard to all of the

circumstances of the case, dismissal was an appropriate response. On

this matter, it is well established that any threat to the security

of a fellow employee must be viewed as unacceptable conduct

warranting a serious disciplinary response. In ©b21rVia Rail Canada Inc.

©b69rand Canadian Brotherhood of Railway, Transport and General Workers

©b7r(1987), unreported, (CROA No. 1701) Arbitrator Michel Picher stated

as follows:

Boards of Arbitration have long recognized that the

working place is not a tea party, and that momentary

flare-ups may occur between fellow employees, both on

and off the job. When an altercation between employees

takes place off the job, and is apparently not linked to

anything that is work-related, arbitrators may question

the imposition of discipline, particularly where the

interests of the employer are not affected. On the

other hand, where such conduct is job-related, and can

be seen to impact negatively on the legitimate business

interests of the employer, discipline may well be

justified, depending on the circumstances of the

particular incident. Plainly the threatening of a

fellow employee in a way that threatens the peace of

mind and well-being of that person in his job, and the

physical acting out of such threats, is prejudicial to

an employer's interests and will justify the imposition

of serious disciplinary measures.

(citations omitted)

I agree that these comments have application to the case at hand.

Violence and/or the threat of violence between employees constitutes

unacceptable conduct. Employees need not attend work in fear of

being accosted or threatened by co-workers. The Employer has every

right, and indeed has a responsibility, to intervene and take action

to ensure this does not occur.

In the present case, the grievor, who possesses about ten years of

seniority with the Company, has a recent prior record of similar

serious physical and verbal accostations for which he has accumulated

40 demerits under the Brown System of Discipline. These two earlier

offenses, which were not grieved, took place within 14 months of the

incident currently under review, and raise serious questions about

the grievor's rehabilitative potential.

In many ways, the present case is not dissimilar to that before

I turn to the question as to whether the penalty

imposed on the grievor was just and reasonable under

the circumstances or whether I should exercise my

statutory discretion so as to substitute a lesser

penalty. I have concluded that I should not exercise

my discretion in favour of substituting a lesser

penalty. In arriving at that conclusion, while there

was no actual fight in that Guzman did not react with

violence, the unprovoked assault by the grievor must be

considered as an equally serious offence. While it was

argued that the assault was a relatively minor one

involving no physical injury that, in itself, cannot

change the seriousness of the offence in the context of

the industrial work place. The difficulty with such

altercations is that they possess a great capacity for

escalation from verbal abuse, to pushing and shoving,

to blows being struck, to weapons being introduced. In

the incident of January 28, 1991, which can be

considered as neither provoked or the result of a

momentary flare-up, the grievor has demonstrated an

ingrained reaction that conflicts are best settled by

violence. That is a philosophy which he will have to

revise if he is to successfully work with others. The

most troubling aspect of the instant case is that it

was the grievor's second similar offence in a six-month

period. In June, 1990, he received a five-day

disciplinary suspension which was not challenged in the

grievance procedure. By now being involved in a repeat

offence he demonstrates a propensity for resorting to

violence toward fellow workers and, as is said in

Palmer and Palmer at p. 332:

The repeater, though, indicates that he has a

dangerous inability to control his temper and the

Company should be entitled to discharge him to

preserve the future safety of the plant and its

employees.

Because of the grievor's record and his relatively short seniority

(some 16 months at the time of the incident) this tribunal determines

that the sanction of discharge in all circumstances is just and

reasonable.

Having regard to all of the circumstances of this case, I conclude

that the Employer's response was appropriate and that the dismissal

of the grievor must be sustained. The grievance is, therefore,

denied.

It is so awarded.

Dated at the City of Vancouver in the Province of British

Columbia this 21st day of April, 1998.

_________________________

Vincent L. Ready