IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY
CANADIAN AUTO WORKERS, LOCAL 101
(Grievance of Engine Attendant C. Wasylenchuk)
ARBITRATOR: Vincent L. Ready
COUNSEL: G. Pepin
for the Company
for the Union
HEARING: March 26, 1998
PUBLISHED: April 21, 1998
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)
"...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
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.
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
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
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.
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
Arbitrator Davis in ©b49rA.F.G. Glass Inc. and Glaziers and Glass
©b46rWorkers, Local 1487 (1991) 20 L.A.C. (4th) 340 wherein it was stated:
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
©b42rCollective Agreement Arbitration in Canada, 3rd ed. of
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
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
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,
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