Grievance Settlement Board
GSB# 0385/01, 0386/01
UNION# OLB155/01, OLB15601
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Brennan)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Richard M. Brown Vice-Chairperson
FOR THE GRIEVOR Glen Chochla
Cousnel
Caroline Engelman Gottheil
Barristers & Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING DATES September 4, 2001; February 1 and 4, 2002.
DECISION
These two grievances by Aaron Brennan arise from two suspensions received by him for alleged misconduct on April 5, 2001 as a casual employee at the Ottawa warehouse. The first suspension was served on April 19 and 20 and the second on April 23 and 24.
I
The grounds for the suspension served first are stated in a disciplinary letter dated April 18, 2001:
On April 5th you failed to follow a direct request from your supervisor. In the presence of fellow employees you displayed a complete lack of respect for his authority by refusing to begin assembling another order while waiting for the additional BRI pallets required to complete your current order.
On April 5, Mr. Brennan was working in the basement of the warehouse where Mike Sabourin was the foreman on duty. Like all foremen, Mr. Sabourin is a member of the bargaining unit with no authority to impose discipline.
Mr. Sabourin testified he observed the grievor sitting on his machine, near the basement office, and asked what he was doing. When Mr. Brennan replied he was waiting for a beer pallet to assemble an order, Mr. Sabourin said he should take a different type of pallet and do another order. Asked in examination-chief exactly what words he had used at this point, Mr. Sabourin answered: “Could you put that one back and do another one?” Asked again in cross-examination about his words, Mr. Sabourin testified he had said: “Do this one instead of that one.” Whatever Mr. Sabourin’s precise words, he testified the grievor did not comply. According to the foreman, this incident happened in the presence of other employees, but he could recall only one of them, Steve Pavlakovic, a fork-lift operator.
Mr. Sabourin testified the grievor was still waiting for a beer pallet ten or fifteen minutes later. The foreman testified: “I told him again and he refused again.” According to this account, beer pallets arrived by elevator soon after.
At 11:15 a.m. on April 5, Mr. Sabourin sent the following e-mail to John Crupi, the operations manager:
This morning when I came back to my office I noticed Aaron sitting down I asked him what he was doing and he said he was waiting for a beer pallet I told him there was no more and they would be coming down later I gave him another pallet to assemble that did not require a bri pallet he refused.
After receiving this e-mail, Mr. Crupi encountered Steve Pavlakovic. The operations manager testified that the fork-lift driver said Mr. Brennan was making his foreman look like a fool by refusing to do what he said. I sustained the union’s objection to the admission of this hearsay evidence.
Mr. Brennan offered a very different account of the beer-pallet incident. According to the grievor, he spent only 3 or 4 minutes waiting for a pallet on April 5. Mr. Brennan testified Steve Pavlakovic was present but Mr. Sabourin was nowhere in sight.
In a notice of intended discipline, dated April 6, Mr. Crupi asked the grievor to submit within three days a written explanation for “the incident of Thursday, April 5 at which time you failed to follow routine direction from your supervisor”. Mr. Brennan did not respond in writing. He testified he told Mr. Crupi that he did not understand the letter and would be seeking advice about it.
II
The grounds for the suspension served second are stated in another disciplinary letter, also dated April 18, 2001:
In the incident of April 5th, you left work early without completing and returning the proper Early Departure Request form as requested by your supervisor. You also failed to advise your supervisor of your intention to leave two hours earlier than originally requested.
This letter sets out two independent grounds for discipline: (1) not “completing and returning” an early departure form “as requested” by the foreman; and (2) failing to “advise” the foreman of the departure time.
The day shift on April 5 ran from 8:00 to 4:00 p.m. and had a half-hour lunch break starting at 12:00. Mr. Brennan worked until noon and left the warehouse a few minutes after 12:30. He quit work early in order to travel to Sudbury to participate in an LCBO hockey tournament the next day.
On March 2, the grievor submitted to the employer a form asking to be absent from work on April 6, the day of the tournament. He testified that also on March 2 he submitted another form asking to leave work at 3:00 p.m. on April 5 to travel to the tournament. The employer is unable to locate such a form and contends it was never submitted.
According to Mr. Brennan, sometime in the week of Monday, April 2, he learned his game was scheduled to begin at 7:00 a.m. on April 6. Given this start time and the length of the drive to Sudbury, he decided to leave before 3:00 p.m. on April 5. He testified that he spoke to Mr. Crupi once or twice that week, prior to April 5, about leaving earlier than he had initially requested. When testifying, Mr. Crupi was not asked about any conversations with Mr. Brennan before April 5.
In examination-in-chief, Mr. Sabourin candidly admitted that he could not recall whether the grievor on April 5 had said when he would be leaving. In cross-examination, the foreman expressed the same lack of recall. He also conceded that he could not dispute that the grievor had communicated his intention to work only until the lunch break. Mr. Brennan testified that, when he arrived at work that day, he informed Mr. Sabourin that he would be leaving at noon.
Mr. Sabourin gave Mr. Brennan an early departure form on April 5, but the grievor did not fill out the form immediately upon receiving it. They offered conflicting accounts of what each of them said to the other about the form. The foreman testified that he said “fill it out and bring it back to me,” and that, when he later asked for the form, the grievor said he would return it “when he was good and ready”. According to the grievor, he was first told to “fill out” a form and subsequently was given one, whereupon he agreed to fill it out “when he had a chance.”
John Crupi testified Mr. Brennan spoke to him twice on the morning of April 5. According to the operations manager, the grievor first said he would be leaving at 2:00 p.m., but later said he might not have to leave early at all. Mr. Brennan testified he had a “hard time” recalling any conversations with Mr. Crupi on April 5 relating to his departure time.
During the lunch break, Mr. Sabourin told Mr. Crupi that the grievor had not returned the early departure form, even though he had plugged in his machine so as to indicate he was finished for the day. Mr. Brennan was paged to report to the front office. He heard the page as he emerged from the lunch-room, having showered and changed into street clothes. On the way to the front office, he passed Mr. Crupi and Mr. Sabourin, but nothing was said by any of them. Laurie Hope-Floyd, one of the front office clerks, asked the grievor for his early departure form. He gave her a form requesting permission to leave at 12:00 and bearing his signature.
The early departure form submitted by the grievor on April 5 had not been signed by either his foreman or the operations manager, even though it has spaces for signatures by both. The union placed in evidence thirty-five other forms previously submitted by the grievor. Nineteen of these forms lack the signature of both the foreman and the operations manage. (Some such forms do not have spaces for one or both of these signatures.) In view of these documents, the employer does not contend the signatures missing from the April 5 form provide any basis for discipline.
Mr. Crupi in cross-examination conceded early departure forms are sometimes returned to Laurie Hope-Floyd and not to a foreman. He also admitted employees sometimes submit such forms after the date of their early departure, because they forget do so before, and they are not disciplined as a result.
III
The union led evidence of a complaint made by Mr. Brennan about comments made by Mr. Sabourin in early October of 2000, when the grievor was waiting for the forklift operator to lower some empty pallets from the top of a pile. According to a note written by the grievor and signed by a fellow employee who was present, the foreman pulled a pallet down from the pile, asked the grievor if he was “ a member of the injured club” and said his daily output of 500 cases didn’t “mean shit anyway”. The grievor delivered his note about this incident to Mr. Crupi who told Mr. Sabourin that his comments were inappropriate and directed him to apologize. Mr. Brennan testified no apology was received, but he conceded the foreman had acknowledged acting inappropriately. The grievor subsequently told the operations manager that the issue had been resolved.
IV
Did Mr. Brennan disobey a direction from Mr. Sabourin while waiting for a beer pallet on April 5?
Counsel for the union argued the employer’s failure to call Mr. Pavlakovic as a witness should lead me to draw an “adverse inference” that his testimony would not assist management. In support of this argument, counsel relies upon the decision in Great Canadian Oil Sands Ltd. and McMurray Independent Oil Workers (1973), 1973 CanLII 2079 (AB GAA), 3 L.A.C. (2d) 245 (Sychuk) where an inference unfavourable to the union was drawn because the grievor did not testify.
The subject of adverse inferences is reviewed in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd ed.):
In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such a failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. (page 297; emphasis added)
This recitation of the law of evidence supports the decision in Great Canadian Oil Sands. The grievor who did not testify in that case might be considered a party litigant. At the very least, he was a witness willing to assist the union or one over whom the union had exclusive control. In this case, Mr. Pavlakovic clearly is not a party litigant. As a member of the bargaining unit, he is not a witness who would be more willing to assist the employer than the union or one whom the employer controls to the exclusion of the union. Accordingly, I draw no adverse inference from the fact he did not testify. On the other hand, as already noted, I have rejected as hearsay Mr. Crupi’s testimony concerning Mr. Pavlakovic’s comment that the grievor had made a fool of the foreman.
I determine, on the balance of probabilities, that the foreman did speak to the grievor when he was waiting for a beer pallet on April 5, even though he claims the foreman was not present. Mr. Brennan’s earlier complaint about Mr. Sabourin does not lead me to conclude the foreman invented a story about what the grievor did on April 5. The e-mail sent by Mr. Sabourin to Mr. Crupi on April 5 shows the foreman’s testimony is not the product of a memory dimmed by the passage of time between the incident and the hearing. When Mr. Brennan received the notice of intended discipline alleging he had disobeyed a direction, he did not claim no direction had been given, as he now asserts. His delay in making this claim undercuts its credibility.
Counsel for the union contends the foreman’s own account of what transpired demonstrates that he failed to give the sort of “clear order” which, if not obeyed, would warrant discipline for insubordination. Counsel cites Hunter Rose Co. and Graphic Arts International Union (1980), 1980 CanLII 4100 (ON LA), 27 L.A.C. (2d) 338 (McLaren) as authority for the proposition that a ‘clear order” is a prerequisite for insubordination. In that case, no such order was given. The supervisor made a single “plea” for assistance, and the grievor’s failure to assist was held not to constitute insubordination.
Mr. Sabourin’s testimony indicates he began by asking Mr Brennan if he could do another pallet. The foreman’s words were more in the nature of a question than an order. If Mr. Sabourin had said no more, there would have been no insubordination on the part of the grievor. However, the foreman again spoke to the grievor several minutes later, telling him to do another pallet. At this stage, it should have been abundantly clear to the grievor that he was expected to load another pallet and that he was not being given a choice between doing that and doing nothing. By continuing to wait for a beer pallet, he directly challenged the foreman’s authority in an insubordinate manner.
The disciplinary letter refers to a written warning, dated June 8, 2000, received by the grievor for not following directions relating to picking orders. By moving directly from a written warning to a two-day suspension, the employer skipped a step in the progression of discipline. The events of April 5 do not provide any justification for bypassing a one-day suspension, and I determine that to be the appropriate penalty.
As the grievor served a two-day suspension on Thursday, April 19 and Friday, April 20, I direct that he be paid for April 20. Due do his suspension, he was not called into work on Saturday April 21. At the hearing, the employer undertook to pay him, at the regularly hourly rate, for seven and one-half hours of work on April 21. This undertaking was made on the understanding that such payment would be “without prejudice and precedent”.
V
Is the grievor guilty of failing to “advise” his foreman of his departure time? Mr. Brennan testified he told his foreman when he would be leaving, and Mr. Sabourin did not deny receiving this information. The fatal weakness in the employer’s case resides in the foreman’s admission that he cannot recall whether he was told by the grievor when he would be leaving. Given this admission, I must conclude the employer has not proven that the grievor failed to advise his foreman of his departure time. The only witness called by management on this point cannot remember what happened!
Is the grievor guilty of not “completing and returning” the proper form as directed by his foreman? The completed form was returned to the office before Mr. Brennan left the premises and within minutes of the resumption of work after the lunch break. Even if Mr. Sabourin asked for the completed form earlier that morning, he did not give any clear direction as to when it should be returned. The foreman testified he did tell the grievor to return the form to him. Mr. Brennan did not mention this instruction in his testimony, but he did not deny receiving it. In the absence of such a denial, I conclude the direction was given. The instruction to return the form to Mr. Sabourin was not obeyed. To this extent, and only to this extent, the grievor did not complete and return the early departure form as directed.
If the grievor returned the form to the office inadvertently, his failure to deliver it to his foreman as directed might not be very important, especially given Mr. Crupi’s evidence that such forms are sometimes returned to the office. However, the evidence leads me to conclude Mr. Brennan’s failure to return the form to his foreman resulted from his uncooperative attitude.
In particular, I accept Mr. Sabourins’ testimony that he asked for the form sometime after providing it and the grievor replied he would return it “when good and ready.” Mr. Brennan’s earlier complaint about Mr. Sabourin does not lead me to conclude the foreman invented a story about what the grievor said on April 5. Mr. Sabourin’s evidence about the grievor’s comment is supported by a contemporaneous record, made by Ms. Hope-Floyd, of the comment as reported to her by the foreman. This record shows that Mr. Sabourin’s testimony on this point is not the product of a poor memory. Almost ten months elapsed before the grievor testified, and there is no contemporaneous record to support his version of what he said about returning the form. For this reason, I conclude Mr. Brennan did say he would return the form “when good and ready.” This insolent comment is indicative of an attitude which explains the grievor’s failure to comply with his foreman’s direction to return the form to him.
Mr. Brennan is guilty of some, but not all, of the misconduct alleged in the disciplinary letter. That letter refers to a written warning, dated February 16, 2001, received by the grievor for refusing to complete an early departure form when requested to do so. Bearing in mind this warning, I determine the appropriate penalty for the grievor’s misconduct on April 5 is a one-day suspension, not the two-day suspension levied by the employer.
As Mr. Brennan was suspended without pay on April 23 and 24, I direct that he be paid for April 24. As agreed by the parties on the last day of the hearing, such a direction means that Mr. Brennan is entitled, not only to straight-time pay for seven and one-half hours on April 24, but also to over-time pay for four hours on the same day.
Dated at Toronto, this 27th day of February, 2002.