GSB# 2006-1897

UNION# SG-09-06

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

United Steelworkers (Ghebre-Medhin)

Union

• and -

The Crown in Right of Ontario (Ottawa Congress Centre)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

David Lipton Staff Representative United Steelworkers

FOR THE EMPLOYER

Jock Climie Emond/Harnden Barristers and Solicitors

HEARING

May 25 & 31, 2007.

Decision

The grievor, Ms. Senait Ghebre-Medhin has grieved a five-day suspension imposed on her. As in every discipline grievance, the task of the Board is to determine whether the grievor engaged in any conduct which justified a disciplinary response from the employer, and if so, whether in all of the circumstances the particular degree of discipline imposed was just.

Mr. Akbar testified that on September 22^nd, he was on the 7:00 a.m. to 3:00 p.m. shift. He was picking up garbage in the room called Congress H. At the time the partitioning that separate Congress H, G, C and D had been opened up to form one huge area. He observed the grievor standing in the Congress G area, "just looking around". He called out to her and asked that she come and help him with the cleaning. Mr. Akbar testified that she came over and told him that she was working there and asked why he could not do his own work. According to Mr. Akbar, this led to an argument during which the grievor called Mr. Akbar a "shit-head" and spit on him. The spit landed on his left shirtsleeve. When he looked down at his sleeve, she spit again. This time the spit landed on his head. Mr. Akbar told the grievor that he was going to see Ms. Susan Eccles, their supervisor, to make a complaint, and immediately proceeded to Ms. Eccles' office. Ms. Eccles had not yet arrived. He went down-stairs to the Human Resources Dept. and approached Ms. Allison George, the Manager of Human Resources. He related to her what had occurred, and showed Ms. George the spit on his shirtsleeve and hair. He testified that the spit that landed on the shirt was like water, but the one that landed on his hair like a little chunk about one inch in size. Ms. George asked him to wash out the spit and return to work and he did that.

Mr. Akbar testified that the whole incident between the grievor and himself lasted 2 to 3 minutes. He stated that both "talked loud". He stated that there was no physical contact during the incident and insisted that he did not call her names or swear at her.

Under cross-examination, Mr. Akbar estimated that the incident would have been sometime between 7:30 and 8:00 a.m., because it was shortly after the shift started. Mr. Lipton for the union, put to Mr. Akbar the grievor's version of what occurred, including that he called the grievor "skunt", and that the grievor explained to him that she was going home because she was sick. Mr. Akbar vehemently denied those suggestions. It was also put to Mr. Akbar that the grievor did not spit at him, but that during the argument he had leaned towards the grievor, and with his mouth wide-open made a growling noise. Mr. Akbar denied that also. When asked if he was angry when the grievor spit at him, he replied that he was not, that he did not want to spit back, but instead walked away and made a complaint.

Ms. Allison George testified that Mr. Akbar came to see her shortly after 8:00 a.m.. He told her that within the last five minutes he and the grievor had an argument and that the grievor spit on her. He showed her the shirtsleeve, then leaned and showed his head. Ms. George testified that she observed what looked like watermarks on the shirtsleeve. On Mr. Akbar's head, she observed "a chunk with substance to it, the size of a dime". She stated that it was not just saliva but "looked like something that came further back from the throat". She stated that it did not appear that the chunk of spit had been smeared on. From her observation it was consistent with the chunk of spit having landed on Mr. Akbar's head. At the time Mr. Akbar did not appear to be angry, but was "a bit agitated" and in disbelief. Reviewing the notes she had made during Mr. Akbar's visit, Ms. George confirmed that Mr. Akbar had mentioned that the grievor had called him "a shit-head" and was pointing her finger in his face while arguing. Ms. George testified that she asked Mr. Akbar if he was "OK" to continue working, and when he said that he was, she asked him to clean up and return to work.

Ms. George testified that as soon as Mr. Akbar left, she wanted to call in the grievor for a meeting. However, she had received an e-mail while Mr. Akbar was in her office, informing that the grievor had left work claiming to be sick. Later that day Ms. George met with the President of the Centre and discussed the incident. Particularly because of Ms. George's observation of the spit on Mr. Akbar, they believed Mr. Akbar's story at that point. Ms. George suggested that the grievor be discharged. However, the President was reluctant because he did not wish to risk having to incur significant costs in back wages in the event the grievor is reinstated at arbitration, because of her years of service and discipline free record. As a result, it was agreed that a five-day suspension would be appropriate.

Having prepared a letter of suspension, on September 25^th, Ms. George met with the grievor in the presence of a union steward. She took contemporaneous notes at this meeting also. The grievor gave her version of what occurred. She told Ms. George that Mr. Akbar leaned towards her, opened his mouth and made a growling sound. When asked if she had spit on Mr. Akbar she stated that she had her arm up and spit on her own arm, but denied that she spit on Mr. Akbar. She insisted that it was not possible that any spit from her mouth could have landed on Mr. Akbar. She also denied swearing at Mr. Akbar. Ms. George testified that having listened to the grievor, she had no reason to change her mind. She was still convinced that Mr. Akbar's version was to be believed, particularly because of her own observation of spit on him. Therefore, she handed to the grievor the letter of suspension.

Ms. George testified that at the stage 3 meeting in the grievance procedure, the grievor basically repeated her version of what occurred. The grievor had reiterated that she had put her mouth on her own arm and made a noise. That resulted in spit getting on her own arm, but she denied that any spit could have landed on Mr. Akbar. Ms. George testified very clearly, based on her memory as well as her contemporaneous notes, that the grievor did not at either meeting mention that Mr. Akbar had called her "skunt" or "cunt" or anything like that. Nor did the grievor mention that Mr. Akbar had spit on her or that any of his spit had even accidentally landed on her.

The grievor testified that when she started her shift on September 22, 2006, she had a headache and her "stomach was not feeling right". By the time she had cleaned two washrooms, her headache was worse. She testified that she went to see the Events Manager, Mr. Richard Claroux and asked whether she could go home and he agreed. When she returned to the Congress room area, she came across a co-worker, Mr. Marcial, and told him that she was going home because she was not feeling well. Then she saw Mr. Akbar walking outside the Congress G carrying a bin and broom. She yelled out to him across the room and said "Ally, I am going home. Bye." He came over and asked, "Why are you going home? The washrooms are not done yet." Then the grievor asked Mr. Akbar why he cared about the washrooms, because he did not do the washrooms anyway. She testified that they stood close to each other and argued back and forth. She stated that Mr. Akbar said things like, "You fucking skunt! Why are you not cleaning the washrooms?" Then she demonstrated how Mr. Akbar opened his mouth and growled at her. She testified that, "Not intentionally, but accidentally, a little spit came out. He didn't mean to spit at me." She testified that when Mr. Akbar made the sound, she turned around but some spit from Mr. Akbar's mouth landed straight on her mouth. The grievor wiped her mouth with her shirtsleeve. Then she went to a washroom and washed her mouth. She proceeded to the housekeeping office to drop off her radio, went from there to the change room on the second floor, changed and went home.

The grievor testified that she did not "even think about what happened" until she was asked to attend a meeting with a union steward on her next shift on Monday. She testified that she related her version of what occurred at the meeting. When union counsel asked if she told Ms. George about Mr. Akbar using the "skunt word", she replied that she mentioned the word "fucking" but may not have mentioned the word "skunt", because she could not pronounce that word properly. The grievor denied that she had called Mr. Akbar "a shit-head". She said that she had no idea how the spit Ms. George had observed on Mr. Akbar's head may have got there, but denied that she spit on him.

Under cross-examination, the grievor reiterated her version of how the conversation began. She testified that whenever the cleaning of the washrooms was not completed, Mr. Akbar got upset and pushed the grievor to complete that cleaning. According to her, this was because Mr. Akbar did not want his two daughters (also employed in housekeeping) to have to clean the washrooms when they came on shift later. She stated that while they had argued many times about this in the past, neither took it seriously, and "everything was always back to normal in 5 minutes". The grievor denied that she spit on Mr. Akbar, or that her spit could have landed on him when she made the noise on her own arm. She stated that Mr. Akbar was lying when he made the complaint to Ms. George, and during his testimony. She insisted that contrary to Ms. George's testimony, at both meetings with management she did mention that Mr. Akbar had spit on her.

The first issue for determination is that of credibility as to whether or not the grievor spit on Mr. Akbar. On a review of the totality of the evidence before me, I prefer Mr. Akbar's testimony over the grievor's in this regard for several reasons. First, no one questioned the fact that a mere five minutes after the incident, spit was observed on Mr. Akbar's person. While the spit on his shirt sleeve was described only as resembling water marks, Ms. George had no doubt that what she observed on his head was substance that came from someone's mouth. She also confirmed that from her observation, that "chunk" she observed appeared to have landed on Mr. Akbar's head, rather than smeared on. In any event, during the cross-examination of Mr. Akbar, it was not put to him that he had smeared on his own spit or some other substance on his own head in order to get the grievor in trouble. Secondly, I find that while Mr. Akbar has been consistent in relating what occurred throughout, the same cannot be said of the grievor. I accept Ms. George's testimony which was corroborated by her own notes made contemporaneously, over the grievor's, where they conflict. I also note that at both meetings there were union officials present. None of them testified to contradict Ms. George's testimony as to what the grievor related at these meetings. Thus I conclude that the grievor has made allegations at arbitration which she had not made any time previously. For instance, if Mr. Akbar's spit landed inside her mouth, it is reasonable to expect that the grievor would have in very clear terms informed Ms. George of that. The same is true about her allegation at arbitration that Mr. Akbar called her "skunt". Those are significant allegations which would have been reflected in Ms. George's notes and which she would have remembered. She was very clear that the grievor did not make those allegations and her testimony is uncontradicted, except by the grievor.

Also, the grievor testified that it was not uncommon for arguments to occur between Mr. Akbar and herself, especially about washroom cleaning not being completed. By her own testimony Mr. Akbar's concern was that his daughter's will have to do the cleaning of the washrooms. It was the same concern he had on this occasion according to the grievor. She testified that while these arguments occurred regularly, previously neither participant took to seriously. In her own words, "In five minutes we are friends again." Given that evidence, it is quite illogical what motivation Mr. Akbar would have had on this occasion, when the very same argument occurred, to go to the extent of fabricating a story about the grievor spitting on him, and to manufacture false evidence by putting his own spit on his head and complaining to management. It is logical that unlike on past occasions, this time Mr. Akbar took the matter seriously and acted upon it because something unusual happened, namely he was spit upon by the grievor.

The union conceded that spitting on a fellow-employee is a very disgusting act which usually would justify a serious disciplinary response from the employer. Union counsel accepted that, absent mitigating circumstances, a five-day suspension without pay would not be excessive. However, the union submitted that it was open for me in this case, to reduce the penalty on one of two grounds. First, it was argued that even if I conclude that the grievor spit on Mr. Akbar, I should find that Mr. Akbar was also culpable to some extent. Citing case law including Re S.K.D. Manufacturing Ltd. (1969) 1969 CanLII 1509 (ON LA), 20 L.A.C. 231 (Weiler) and Re Etobicoke General Hospital, (1977) 1977 CanLII 2899 (ON LA), 15 L.A.C. (2d) 172 (Brandt), it was argued that the employer had treated the two participants in the altercation in a disproportionate manner, by not disciplining Mr. Akbar at all while imposing a five-day suspension on the grievor. Secondly, it was submitted that the grievor was provoked by Mr. Akbar and that such provocation should be treated as a mitigating circumstance.

In order to give credence to these mitigation defenses advanced by the union, I would have to conclude that while the grievor was not truthful about not spitting on Mr. Akbar, her evidence is to be preferred over Mr. Akbar's on everything else. This includes her claim that Mr. Akbar called her "skunt", and that his actions resulted in his spit landing on her mouth. These allegations were denied by Mr. Akbar. I have for the reasons set out above, concluded that the grievor's testimony in this regard is not credible. Therefore there is no factual basis for the mitigatory circumstances asserted.

The grievor had been employed with the employer for almost 18 years and had a clean discipline record. It is also in evidence that despite this incident, the grievor and Mr. Akbar have subsequently got along well at the workplace without holding any grudges. Had the grievor taken responsibility for her act, which appears to be an isolated departure from her normal behavior, I would have considered whether a penalty less severe than a five-day suspension would have been adequate to achieve the corrective purpose of discipline. However, with the employer, as well as before the Board, the grievor continued to deny any wrongdoing on her part and showed no remorse whatsoever. Nor had she apologized to Mr. Akbar at any time. I am confident that the grievor's conduct on September 22^nd was not typical of her character and that she will continue to get along well with Mr. Akbar, as well as her other co-workers, in the future. However, in circumstances where she was not forthright with the employer, or with this Board, and did not in any way accept responsibility for any wrongdoing on her part, it is not appropriate to substitute her penalty.

For all of those reasons, the grievance is dismissed.

Dated this 14^th day of June, 2007 at Toronto, Ontario.