GSB# 2006-2649
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Labourers' International Union of North America - Local 506 (Ramji)
Union
- and -
The Crown in Right of Ontario (Metro Toronto Convention Centre Corporation)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Elizabeth Mitchell Koskie Minsky LLP Barristers and Solicitors
FOR THE EMPLOYER
Clifford Hart Miller Thomson LLP Barristers and Solicitors
HEARING
July 4 and September 17, 2007.
Decision
Mr. Fred Ramji was terminated from his employment as banquet server in the banquet department at the Metro Toronto Convention Centre. On January 24, 2007, the grievor received the following letter which sets out the facts that brought about his discharge. The letter stated:
On January 12, 2007, you served MTCC with an Application under Section 74 of the (Labour Relations) Act, in which you made a threatening and violent comment. On January 15, 2007, you were suspended pending further investigation into the matter. The matter was also referred to the Police Department.
As part of our investigation, on January 18, 2007 you attended a meeting with representatives of the MTCC and the Union. During the course of that meeting, you expressed your frustration with MTCC and the Union, but, at the same time, suggested that the problems you were facing were as a result of “women”. You were then asked to return home pending the outcome of our investigation.
Our investigation is now complete. While MTCC certainly respects your statutory right to file and pursue your Labour Board application, MTCC has concluded that the subject comment was extremely threatening and violent, and in breach of MTCC’s Violence in the Workplace Policy which is outlined in the MTCC Employee handbook under 21.3(b) on page 23. Indeed, this was not the first time you have uttered threats in the workplace. Moreover, your conduct at the January 18, 2007 meeting was unacceptable.
The nature of your recent actions has left us no choice but to terminate your employment, for cause. MTCC cannot tolerate, or condone, any threats of violence and/or disrespectful conduct.
MTCC also notes that, in recent months, you have been issued 1, 3 and 5 day suspensions for, among other things, abusive and/or disrespectful conduct. While you have been given multiple opportunities to correct your behaviour, you have failed, neglected or refused to do so.
Shortly after receiving this letter, Mr. Ramji filed the instant grievance alleging that he was discharged without just cause. Our first day of hearing into this matter the parties agreed to proceed on the basis of a mediation/arbitration process. Fulsome opening statements were given. The Union said in its opening that the grievor is not a violent man and is not out of control. However, he was frustrated at the time of the incident and his language was stronger than it should have been. The Employer’s response should have been to provide this 64-year-old man with anger management help, not an end to his employment.
The Union asserted in its opening that the grievor should be reinstated with full compensation. In the alternative, if this Board finds that there was a fundamental breach in the employment relationship, significant damages should be awarded to the grievor.
It was apparent at the conclusion of the opening statements that there was no real dispute surrounding the incident that brought about the discharge. Additionally, although the Union did not consent to admission of all the exhibits, a number of documents were put before the Board. Included in those documents was the complaint to the Ontario Labour Relations Board referred to in the letter of termination above.
At the outset the parties agreed to give me to jurisdiction to gather evidence during the course of our mediation session. During mediation I canvassed the salient issues involved in this matter including allegations made by the grievor that he was the subject of race and gender discrimination. Notwithstanding genuine efforts, the parties were not able to resolve the matter.
The Employer is the Metro Toronto Convention Centre which hosts over seven hundred and fifty events a year and has in excess of two million visitors. The grievor has worked in the banquets department for approximately twenty-two years. Much of his employment he worked as a casual employee but in the most years his status changed to part time and most recently full time.
The grievor had been disciplined in the past. According to the Employer, during the fall of 2006 Mr. Ramji received a one day suspension, a three day suspension and a five day suspension for work performance and insubordination reasons. It was the Union’s position that he had only two suspensions on his record. He received a four day suspension and a five day. Further, the status of these matters is at issue. The Employer submitted that no arbitration board has been struck to deal with the grievor’s disciplinary record and therefore any attempt to litigate those earlier disciplines would be rigorously opposed.
At our second day of hearing, the Employer raised a preliminary motion. Mr. Hart, for the Employer said that given the evidence before the Board garnered through the mediation process and supplemented by the various exhibits it is apparent that there has been an irrevocable severing of the employment relationship. In the normal course of events this Board would be asked to address two issues. The first would be to determine whether there was culpable conduct which justified some level of discipline. The second consideration would be to determine whether the level of discipline imposed by the Employer was appropriate in the circumstances. However, in the unique circumstances of this case including the grievor’s conduct which caused his discharge and his years of service, the Employer suggested that an alternative to the usual form of litigation is appropriate. Given the Union’s alternative position taken at the commencement of the hearing, this Board should determine on the Union’s best case scenario whether this would be an instance where I would order reinstatement or agree with the Employer that damages would be the only appropriate remedy. This decision deals with this motion.
EMPLOYER SUBMISSIONS
The Employer submitted that given the nature of the Employer’s business it is essential that it ensures a safe workplace. The grievor was an angry man who had repeated incidents of his inability to manage his temper. He was a threat to the safety of the workplace. This is not a case where there has been just one incident. The record clearly indicates that the Employer can no longer trust the grievor to work without incident at the convention centre. There has been a complete breakdown of the employment relationship and even if this Board were to find that there was not sufficient cause for discharge, reinstatement would be the wrong arbitral response. While it might be an exceptional remedy, there can be no doubt, given the evidence that the Board has seen and garnered during the mediation process, that it is appropriate in this circumstance.
In this regard the Employer relied upon Re Livingston Distribution and I.W.A. – Canada, Local 700 (2001), 2001 CanLII 62024 (ON LA), 94 L.A.C. (4th) 129 (Stewart); Re Toronto Transit Commission and A.T.U., Local 113 (Collins) (2005), 2005 CanLII 94220 (ON LA), 145 L.A.C. (4th) 139 (Springate); Re City of North Bay and CUPE, Local 122 (2006), 2006 CanLII 29928 (ON LA), 151 L.A.C. (4th) 236 (Slotnick); Re DeHavilland Inc. and C.A.W. – Local 112 (1999), 1999 CanLII 35895 (ON LA), 83 L.A.C. (4th) 157 (Rayner); and Re Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Massa Grievance) GSB#2033/97.
In conclusion the Employer asked the Board to find that the grievor should not be reinstated but damages should be awarded in the amount of $25,000.00, given all of the circumstances including his seniority.
UNION SUBMISIONS
Ms. Mitchell, for the Union had no objection to this motion being put before the Board, given that there had already been a day of mediation wherein the Vice-Chair had a full opportunity to speak with the grievor and canvass the various allegations. Given the many days of hearing that would be necessary for the litigation of this matter, the Union understood why the Employer elected to put this motion before the Board. However, the Board should deny the motion and hear the evidence in total.
The Union does not take issue with the Employer’s obligation to provide a safe working environment. However, anger management assistance should have been the Employer’s response. While the two earlier disciplines were not made the subject of arbitration hearings, if returned to the workplace the grievor could be a productive employee again. Mr. Ramji explained during mediation that he did not use any improper language during the incident for which he received the four day suspension and he was not at fault for the circumstances that brought about the five day suspension.
If the Board were to agree with the Union that this matter should proceed to a full hearing, the Union might be able to persuade the Board that even though the threat made by the grievor in the Section 74 complaint was serious, discharge was excessive.
In the alternative, if this Board agrees with the Employer that an award of damages is appropriate, $25,000 is significantly low. The Union relied upon Re Ajax Pickering Transit Authority and CUPE, Local 129-01 (2003), 2003 CanLII 89645 (ON LA), 123 L.A.C. (4th) 51 (Craven).
DECISION
As noted above, there was very little in dispute regarding the incident that brought about the discharge of the grievor. In my view, the facts as presented in the documents provided by the parties and as ascertained during the mediation process reveal that there was cause for discipline. The grievor’s actions were wrong. He made a significant threat to the safety of the workplace. I disagree with the Union that this threat constituted off duty conduct.
Notwithstanding the lack of dispute between the parties regarding salient facts that gave rise to the discharge, during the mediation process I found that the grievor had very little understanding for the significance of his actions. I found this complete lack of appreciation most disconcerting.
As noted by the Employer, the grievor had discipline on his personnel file for “attitude/behaviour/inappropriate conduct”. He was said to have “violated standards of conduct by making derogatory remarks about women” and was ‘discourteous in front of client” and made “negative comments/accusation against management”. In discussions with the grievor during mediation he said repeatedly that he was not at fault for these incidents. Mr. Ramji was of the view that he was either misunderstood or what he said was taken out of context. Indeed, I heard about the misdeeds of others at his expense. Again, he had little insight into why the Employer has taken various disciplinary actions.
I also had the opportunity to ask the grievor about his allegations of discrimination. I repeatedly asked for specific examples of how he was discriminated against. Mr. Ramji did not provide one example that would constitute discrimination.
As set out in Re Liquor Board (supra) by Vice-Chair Abramsky, there are relevant factors in considering whether to award compensation in lieu of reinstatement. They are:
The refusal of coworkers to work with the grievor.
Lack of trust between the grievor and the employer.
The inability or refusal of the grievor to accept responsibility for any wrongdoing.
The demeanour and attitude of the grievor at the hearing.
Animosity on the part of the grievor towards management or coworkers.
The risk of a “poisoned” atmosphere in the workplace.
Having regard to these factors, I must uphold the Employer’s motion. Even if I were to find that there was not just cause for discharge this is not an instance where I would award reinstatement. However, I disagree with the amount of compensation suggested by the Employer. Given other factors including his seniority, I am of the view that $30,000 is a proper amount of damages to be paid to Mr. Ramji in lieu of reinstatement and I so order.
I remain seized in the event there are difficulties implementing this decision.
Dated in Toronto, this 5th day of December 2007.