GSB #1391/99
OPSEU # OCC-398
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
United Steelworkers of America (Khadr)
Grievor
- and -
The Crown in Right of Ontario
(Ottawa Congress Centre)
Employer
BEFORE N. Dissanayake Vice Chair
FOR THE Robert Henderson
UNION USWA Staff Representative
FOR THE Jacques A. Emond
EMPLOYER Counsel
Emond Harnden
Barristers & Solicitors
HEARING April 13, July 31, August 24 and August 30, 2000.
DECISION
This is a grievance wherein, the grievor, Mr. Gamal Khadr, alleges that he was discharged without just cause.
When the hearing commenced on April 13, 2000, the parties engaged in discussions as a result of which the grievor signed a statement to the following effect.
On May 29, 1999, JP Miner and I had a verbal argument while working in the corridor in front of the Housemen’s office. I finished my shift shortly afterwards and was met by Miner outside near the parking lot. We resumed our argument, and it quickly became more heated than was the earlier exchange. At one point, a shoving match ensued, and I responded by punching him. A full-blown fight then ensued.
At no time was it my intent to cause JP any injury, and I regret that such an injury may have occurred.
In the 8 (eight) years that I have worked at the Congress Centre, I have never before been involved in such an incident, and I am confident that it will never happen again.
For its part, the employer stipulated at the hearing as follows:
In view of the letter dated April 13, 2000 submitted by the grievor and without admission of any liability with regard to any outstanding issues, the employer agrees to reinstate the grievor in his former position effective April 13, 2000. His name would be placed on the part-time seniority list in the seventh position. He will be entitled to accept available work on the schedule posted on Tuesday April 18, 2000 for work commencing the week of April 23, 2000.
On consent, the Board ordered that the grievor be reinstated in accordance with the foregoing. The employer having complied, the Board proceeded to deal with the outstanding issues which were two-fold:
(1) Whether the Board should find the grievance to be inarbitrable because it did not comply with the time restrictions set out in the collective agreement.
(2) If the grievance was arbitrable, whether there was just cause for any discipline and if so what the appropriate discipline was.
By way of background, the Ottawa Congress Centre is a facility that rents out banquet facilities and provides food and beverages for conventions, weddings, trade shows, etc. The grievor was employed as a part-time banquet waiter. He had approximately 8 years of service with the employer at the time of his discharge, which was effected by the following letter dated June 2, 1999:
On Saturday, May 29, 1999, while on your scheduled shift with the banquet department, an altercation occurred between yourself, Chad Khadr, and Jean Pierre Miner. At the start of the altercation, pushing and shoving was observed between yourself and Jean Pierre. This resulted in a verbal argument between the two of you and Chad Khadr. Other waiters intervened at this point to settle you down and prevent further incidents. Since you were finishing your shift, you punched out and went to change. When you were leaving the building, you were observed by other individuals to again being involved in an altercation with Jean Pierre which resulted in a fight occurring between the two of you. According to witnesses statements and after review of our video footage of the incident, it is our understanding that you instigated the fight and with the aid of Chad Khadr, knocked Jean Pierre to the ground and injured Jean Pierre. Other individuals observing the fight stepped in to break up the incident and you and Chad subsequently left the property.
On Monday, May 31, 1999, you arrived at work and were asked to provide details of the incident to Michael Marko. The union steward, Mario St-Amand, was also present at this meeting. You were then asked to leave the property and told that you would be suspended pending the results of the investigation of the incident.
Several hours later on Monday, May 31, you returned to the Centre with a written statement of your version of the events on Saturday, May 29, 1999. Your statement contradicts the information we have received from the witnesses to this incident.
It is the policy of the Ottawa Congress Centre that employees may be subject to discipline, including discharge, for fighting threatening or verbally abusing, or injuring another employee as per section 26 of the Personnel Policy and Procedure Manual.
We have now completed our investigation of this incident after reviewing your statement, the statements of all the witnesses, and the video tape footage. Effective June 2, 1999, your employment with the Ottawa Congress Centre is terminated. The Centre cannot condone this type of violent incident in the workplace.
You will be provided with your final pay, including any outstanding vacation pay and your record of employment on the next regularly scheduled pay.
Timeliness and Arbitrability
The employer argued that the present grievance is inarbitrable because of a number of defects. The relevant provisions of the collective agreement are as follows:
Article 8 - Grievance Procedures
8.01 It is the mutual desire of the parties hereto that complaints of employees shall be adjusted as quickly as possible.
Step 4 In the event the grievance is not settled at step 3, the party having carriage of the grievance may apply within twenty (20) working days of the date the decision was received to the Crown Employees Grievance Settlement Board for a hearing of the grievance.
Article 9 - Discipline/Discharge cases
9.02 A claim by an employee that he or she has been discharged without just cause shall be treated as a grievance and shall commenced at step 2 of article 8.01 provided a written grievance signed by the employee is presented to Human Resources within five (5) working days after the discharge. A union steward or Local Union Officer will be permitted to attend the meeting held pursuant thereto, with Human Resources.
Failure to sign the grievance
Article 9.02 envisages that a claim that an employee has been discharged without just cause shall be treated as a grievance provided a written grievance “signed by the employee” is presented. The evidence is that the grievance herein was in writing but unsigned by the grievor. It was only signed by a union official. The employer submits that in the circumstances there is no valid grievance before the Board.
Assuming, without finding that the employer’s position would otherwise have merit, in light of the evidence I find that in any event such an irregularity has been waived by the employer. The evidence is clear that the objection to an unsigned grievance was not raised any time prior to the commencement of this hearing. In several pieces of correspondence to the union the employer reserved the right to object to the arbitrability of the grievance on the grounds of untimeliness. However, there was no mention whatsoever of any irregularity based on the fact that the grievor had not signed the grievance. This objection therefore is dismissed.
Timeliness of referral to arbitration
The time limits for referral of a grievance to the Grievance Settlement Board for arbitration are set out in article 8.01 - Step 4. The employer did not allege, and there is no evidence to establish that the instant grievance was not filed within 20 working days of the date the employer gave its decision at Step 3.
However, the employer made an argument “by analogy” based on the judgement of the Ontario Divisional Court in Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd. judgement dated April 17, 1997. In that case the court held that the jurisdiction conferred on arbitrators under S. 48(16) of the Labour Relations Act, to grant relief from time limitations regarding grievances did not include jurisdiction to grant relief from time limitations regarding arbitration referrals. As I understand it, the employer’s argument “by analogy” to that judgement is as follows. There was delay in filing the grievance. Had the union filed in a timely fashion, the subsequent steps in the grievance procedure would have occurred in accordance with the collective agreement at dates earlier than what actually happened. Had that been done, the 20 working day limitation in step 4 for referral to arbitration would have expired at a much earlier time. By delaying the filing at the front end, the union breached all of the subsequent time limits including the time limit for referral to arbitration, because the entire process was delayed.
In Re Leisureworld, the court drew a fundamental distinction between grievances and arbitration. It also drew a distinction between delays with regard to grievances and delays in referring to arbitration. It was held that while an arbitrator may extend time-limits under S. 48(16) with regard to the former, there was no such jurisdiction with regard to the latter.
The employer’s argument that by failing to file a grievance in a timely manner, the union in effect failed to meet the time limits for referral to arbitration ignores this fundamental distinction recognized by the court. The collective agreement is very specific about the time limits for referral to arbitration, i.e. 20 days from the date of the Step 3 decision. There is no evidence that the union had failed to meet that time-limit. Indeed the Board has no evidence as to when the referral to arbitration was made. Therefore, the employer’s argument fails. The untimeliness related only to the grievance stage and S. 48(16) applies. The Board should proceed to consider whether it ought to exercise its jurisdiction thereunder in the particular circumstances.
Delay in Filing
The grievor was discharged on Wednesday June 2, 1999. Article envisages that a grievance will be presented “within five (5) working days after the discharge”. Thus counting 5 working days (week days) the grievance to be timely ought to have been filed on or before June 10, 1999.
Ms. Fiona Livingstone, Controller of the Ottawa Congress Centre, testified that when she returned to work from vacation on July 26, 1999 she first found the grievance (which was undated) along with several other grievances and an undated covering letter from Mr. Chris Proulx, local union chair, addressed to Banquet Manager, Mr. Glen McCallum. On the basis of that evidence, it was suggested that the grievance was filed only on July 26. However, Mr. Proulx unequivocally testified that he personally presented the instant grievance to Mr. McCallum on July 2, 1999 because Ms. Livingstone was on vacation at the time. Mr. McCallum did not testify to contradict Mr. Proulx. In the circumstances, I conclude that the grievance was filed on July 2, 1999.
Given the earlier finding that article 9.02 envisaged that the grievance be filed by June 10, 1999, the grievance was still untimely. The union readily accepted that I note that the union did not argue that the time limit in article 9.02 was not mandatory. Its sole argument was that despite the untimeliness, I should seize jurisdiction in the circumstances. In effect, the union was seeking an extension of time limits under S. 48(16) of the Labour Relations Act.
That provision reads:
Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.
The union led evidence as to the reasons for not filing the grievance in a timely manner. Two explanations were offered. First, the inexperience of Mr. Proulx in handling grievances generally, and particularly in handling discharge grievances. Secondly, the concern Mr. Proulx had that if he grieved on behalf of the grievor, the employer may respond by also discharging Mr. Miner, the other employee who was involved in the incident with the grievor. The evidence was that because of that concern, Mr. Proulx kept postponing the filing of the grievance, and only did so after he was instructed to do so by another union official.
Employer counsel submitted that the foregoing explanations do not constitute ‘reasonable grounds for extension’ within the meaning of S. 48(16). He submitted that the union’s conduct had been so irresponsible that it had probably failed in its duty of fair representation under the Labour Relations Act, and that neither excuse offered had any validity. In addition, counsel pointed out that the employer had in fact been prejudiced by the union’s failure to file the grievance in a timely manner. First, he pointed to the evidence that because no timely grievance had been filed, the employer had not taken steps to preserve a video tape produced by a surveillance camera which had captured part of the altercation between the grievor and the other employee. It was submitted that this tape contained evidence relevant to support the employer’s case and that it was deprived of that evidence because of the delay on the union’s part. Second, it was submitted that as a result of the union’s delay, the employer may become liable to a greater amount of compensation for lost wages, if the grievance succeeds.
Counsel submitted that before an extension is granted under S. 48(16), the union must meet a two-fold test: The Board must be satisfied (1) that there are reasonable grounds for the extension (2) that the opposing party will not be substantially prejudiced by the extension. It was submitted that here neither test was met because the union offered no reasonable excuse and there was evidence of prejudice to the employer. Thus, according to the employer, the union had not met either condition for an extension of time limits under S. 48(16).
I agree with the employer that the explanations provided by the union do not justify the delay. The union was clearly negligent in that regard. Similarly there has been some prejudice to the employer. However, that is not dispositive of the issue. S. 48(16) has not been interpreted as mandating a rigid two-fold test as suggested by the employer. In a recent award in Re Regional Municipality of Sudbury, (Dissanayake) dated August 30, 2000, I reviewed and adopted the interpretation placed on S. 48(16) by arbitrator Burkett in Re Becker Milk Company Ltd., (1978) 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 at pp. 4-5. I wrote:
... when exercising the discretion under section 48(16) in circumstances where a time limit in a collective agreement had been breached, there must be a consideration and balancing of many factors. Specifically, the fact that one party is blameworthy and responsible for the delay, does not necessarily lead to a refusal to exercise the discretion. At p. 219, the arbitrator set out the purpose of the section as follows:
The section is designed to permit a hearing on the merits notwithstanding the terms of the collective agreement, where the conditions precedent to the exercise of arbitrator’s discretion under the section have been satisfied.
Then at pp. 220-21, he went on to explain the considerations involved in exercising the discretion under S. 48(16) as follows:
The exercise of the equitable discretion vested in an arbitrator under S. 37(5a) of the Act requires a consideration of at least three factors. These are (i) the reason for the delay given by the offending party; (ii) the length of the delay: (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time-limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time-limits. In so far as Re Pamour Porcupine Mines Ltd. (Schumacher Division) and U.S.W. (1976), 1976 CanLII 2174 (ON LA), 12 L.A.C. (2d) 122 (Dunn), stands for the proposition that the only factor to be considered is the “reasonableness of the excuse” for the delay, I respectfully disagree. The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its processing of the grievance but the delay has been of short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account, in deciding if there are reasonable grounds to extend the time-limits. One arbitrator has gone so far as to state that in a discharge grievance,
... there would have to be a very clear case of unexcused, unreasonable delay and prejudice to the employer before it would be proper to deprive the grievor of the right to a hearing on the merits.
See Re Lincoln Place Nursing Home and Service Employees Union, unreported, July 8, 1977 (Rayner). The term “reasonable grounds for the extension” as found in S. 37(5a) of the Act is not synonymous with the reasonableness of excuse advanced by the offending party. Having regard to the purpose of the section the term carries a broader signification which requires the arbitrator to weigh a number of facts, including but not necessarily restricted to those which have been set out above.
(Emphasis added)
In the present case there are some relevant facts which weigh in favour of not exercising the Board’s discretion. The issue is whether the Board should refuse to exercise its discretion, when balancing these factors with other factors that favour extension as suggested in the case law.
The union’s conduct was clearly unjustified. There is no getting around that. The Board does not attach much weight to the fact that the employer was deprived of the video tape evidence. The evidence is that as a matter of routine the surveillance videos are kept by the employer only for 30 days. If a tape contained evidence relevant to an incident which led to the discharge of two bargaining unit employees as was the case here, it was not prudent for the employer to have destroyed that evidence despite any representations and delays on the part of the union in filing a grievance. It should have known that despite the delays, the union may change its mind, file an untimely grievance, and seek relief under S. 48(16) from the Grievance Settlement Board. Besides, the Board does not find that the loss of that tape resulted in any real (or to use the language of S. 48(16) “substantial”) prejudice to the employer. On all accounts the video showed the grievor and Mr. Miner arguing and shoving as they moved out of the camera range. Mr. Horace Roxborough, a Security Officer, testified clearly that he viewed the tape several times and that it did not show the grievor punch Mr. Miner. He testified that had he seen that, he would have included that in his occurrence report and taken steps to preserve the evidence. Even if the Board is to prefer Ms. Livingstone’s testimony, that was to the effect that the tape showed the grievor take a swing but that the intended victim was outside the range of the camera. The fact is that at arbitration the union did not deny that the grievor punched Mr. Miner, cutting his lip. Nor did it dispute that the two men were shoving and arguing. Therefore the admission of the taped evidence would have added very little.
The prospect of additional liability is a potential prejudice. However, it is not a real or insurmountable one because it can be dealt with by the Board taking into account the union’s delay in determining the quantum of damages if the grievance were successful. See, Re British Columbia Institute of Technology, (1986) 1986 CanLII 6703 (BC LA), 27 L.A.C. (3d) 56 (Kelleher).
On the other side of the ledger, there are several factors which favour an extension of time limits. First, the delay is very short - approximately 3 weeks. Most significantly, this is a discharge grievance.
On balance the Board concludes that in all of the circumstances it ought to exercise its discretion and extend time limits. S. 48(16) does not refer to any prejudice. It envisages that the employer will be “substantially prejudiced”. The evidence does not support of finding that the employer will be substantially prejudiced because of the absence of the tape. The only real prejudice to the employer will be addressed in assessing damages if the union’s grievance is successful.
It follows from all of the foregoing that the employer’s objection to arbitrability is denied.
Issue of just cause
While this is a discharge grievance, as a result of the parties' agreement the grievor has been reinstated. The dispute about just cause has therefore changed. The employer no longer asserts just cause for the grievor’s discharge. Rather, its position is that the grievor’s conduct on May 29, 1999 constituted just cause for treating the period between the grievor’s discharge on June 2, 1999 and April 13, 2000 when he was reinstated as a period of suspension without pay. The union on the other hand submits that the Board should find that there was no just cause for any discipline.
The grievor’s discharge followed an incident which occurred on May 29, 1999 between the grievor and a co-worker Mr. J.P. Miner. The union’s position is based on an allegation that the employer had treated the grievor in discriminatory fashion in that he was discharged, while Mr. Miner received no discipline at all. It is the union’s position that both men were equal participants in a physical and verbal altercation and that the grievor deserved no harsher treatment than Mr. Miner.
The Board agrees with the general proposition that if two employees were equally blameworthy and if other relevant considerations are equal, they ought to be disciplined equally. The issue here is whether that was the situation here.
I do not review the evidence in any great detail. It suffices to observe that following the incident the employer conducted an investigation which included the obtaining of witness statements from the grievor and Mr. Miner, as well as from several other employees who were in the vicinity at the time of the altercation. Mr. Miner’s statement substantially mirrored the testimony he gave before the Board on critical areas. The grievor did not testify. However, he had provided a written statement to the employer in which he had essentially portrayed Mr. Miner as the aggressor who initiated the whole altercation and himself as the victim reacting in self-defence. Ms. Livingstone testified that of all of the statements received, the grievor’s statement was the only one that contradicted Mr. Miner’s version. It concluded that in fact it was the grievor who had been the aggressor who had initiated the altercation, and that Mr. Miner was a victim who was defending himself. Therefore, the employer decided to discharge the grievor but took no disciplinary action against Mr. Miner.
Mr. Miner was a casual employee with approximately 3 years of service. His testimony as to the incident was to the following effect. The employees were clearing a banquet hall following a function. He was carrying a tray in one hand and a tray jack in the other, and proceeding out of the banquet hall. The grievor was following behind. Some people were obstructing the hallway which caused Mr. Miner to slow down. When this happened, the grievor pushed Mr. Miner from behind. Mr. Miner laid down what he was carrying and pushed the grievor back. The grievor started to call Mr. Miner names, which were described as “not very nice”. Mr. Miner replied in kind, calling names at the grievor. At this point a co-worker, Mr. Chad Khadr, who was the grievor’s nephew, joined in and warned Mr. Miner not to “mess with us or else”. The grievor invited Mr. Miner to step outside. Mr. Miner testified that at this point he was agitated also, but not as much as the grievor. His immediate reaction was to accept the grievor’s challenge. He decided that he should clock out if he was going outside. He did so and followed the grievor out. According to Mr. Miner as he went out he realized that it was foolish for two adults to behave this way. He also became concerned about what the consequences would be on his job if he engaged in a fight. He decided to calm the grievor down once he got outside and to ‘make peace’. He tried to tell to the grievor that they should resolve their dispute like adults and tried to calm him down. However, the grievor continued the verbal abuse and again started to push and shove him. He pushed back the grievor also. Then the grievor punched him, cutting his lip and causing it to bleed. Mr. Miner testified that at this point he “really got mad” and decided that he should “attack back to protect myself”. He grappled with the grievor until they both ended up rolling on the ground. At this point Mr. Chad Khadr joined in the fray and kicked at Mr. Miner, hitting him once on the head and twice on the back. Some people intervened and broke up the fight.
The union conceded that the grievor initiated the incident but argued that it was irrelevant. Its emphasis was on the fact that both employees had equally shoved, pushed, hurled verbal abuse, thrown punches and grappled. Therefore, according to the union, both men were equally guilty and equally blameworthy.
I have no reason to not believe the uncontradicted evidence by Mr. Miner as to what occurred. In fact, I found him to be a credible witness. He did not attempt to exaggerate the conduct of the grievor and candidly admitted that he retaliated in kind. Particularly in view of the grievor’s failure to testify, I accept Mr. Miner’s version of events. That version establishes that the grievor was clearly the aggressor and the initiator of verbal abuse and physical violence. The employer’s conclusion in that regard was the correct one. The Board disagrees that that fact is irrelevant as the union suggests. To illustrate, X is going about his business when y punches him once. X retaliated by punching Y back once. It is ridiculous to suggest that the blameworthiness is equal on both parties merely because each had thrown one punch. The fact is that had it not been for the grievor’s conduct, there would have been no cause for Mr. Miner to react. There would have been no incident at all. Based on his own evidence, Mr. Miner was not totally blameless. He was not an innocent and passive victim at the hands of the grievor. Once the grievor initiated violence Mr. Miner was provoked. He lost his temper and fought back not necessarily in self-defence. Had the employer elected to do so, it would have had cause to impose some discipline on Mr. Miner also.
However, that is a far cry from the union’s position that since Mr. Miner received no discipline, the employer was not entitled to impose any discipline on the grievor also. The employer’s obligation is only to treat equal culpability in similar fashion. The level of culpability attributable to the grievor far exceeds that attributable to Mr. Miner. The employer was entitled to tolerate an employee’s conduct in reacting to a violent attack by responding in kind, but treating as much more serious the individual who precipitated the whole episode by initiating violence.
It is trite to state that violence in the workplace is a serious and intolerable offence. The grievor not only engaged in such serious misconduct but has since shown little or no remorse. I find the written statement he provided to the employer soon after the incident to be a total fabrication. That is a clear indication of an absence of a willingness to accept responsibility for his actions. His first and only expression of regret came when he provided a statement after this hearing commenced. He cannot be given much credit for that because it came after it became very clear that his reinstatement hinged squarely on his preparedness to express some regret. Even in that statement his expression of regret appears to be very reluctant. He had the opportunity at the hearing to accept full responsibility for his conduct and to assure the employer and the Board that his conduct would not be repeated. He did not take that opportunity.
The union submitted that at the time of the fight both men had clocked out. It was also argued that the fight occurred outside the employer’s premises. On that basis the union attempted to depict the misconduct as off duty conduct occurring outside of the workplace, which is less serious. The Board disagrees. ‘The off-duty’ and ‘off-premises’ considerations are not technical requirements. The rationale for the distinction is that if misconduct is engaged in by an employee while he is off duty and in a location away from the workplace, it is unconnected to his work and less of a concern to the employer. This would be the case for example, where an employee engages in a brawl at a bar on his off day. That rationale does not apply here. The whole incident commenced while Mr. Miner was clearly working. The grievor was at the workplace at the time and therefore presumably also working. The Board has no evidence about that. Even if both men had clocked out before the final fight took place that does not make it off duty conduct for purposes of assessing its seriousness. Similarly, even if the union is correct that the exact spot where the final fight took place was not legally part of the employer’s property it is irrelevant. The altercation clearly started inside the employer’s building before it continued outside. Regardless of who owned legal rights to the exact spot where the fight took place, the evidence is that that area was right outside the employer’s building and used exclusively by the employer’s employees. The fact that technically, on a legal survey, it may have been just outside the employer’s premises is irrelevant. It does not make the fight “off-premises” for purposes of assessing culpability.
I have considered the grievor’s discipline free service of some 8 years. However, I do not find that sufficient reason to order back wages in his favour. I find that considering the seriousness of his misconduct and the grievor’s apparent lack of willingness to accept responsibility for his misconduct, a substantial penalty was justified. Also considering the need to provide a general deterrence against violence in the workplace, I find that the employer is justified in treating the period from June 2, 1999 to April 13, 2000 as a period of suspension without pay and without accumulation of seniority.
In the result, this grievance is hereby dismissed.
Dated at Hamilton, Ontario, this 7th day of September, 2000.