GSB#2007-3507

UNION#2007-0164-0028

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (MacLeod)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Ron Lebi Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Gordon Fitzgerald Counsel Liquor Control Board of Ontario

HEARING

June 18, August 6 and September 12, 2008.

Decision

1This proceeding arises from the Employer’s decision to terminate the grievor’s employment for threatening and intimidating a fellow employee, namely Mr. Tim Goulden, on November 8, 2007.

2Hearings were held in this matter on June 18, August 6 and September 12, 2008 in London, Ontario. At the conclusion of closing argument on the last day of hearings, both counsel agreed that, if possible, this Vice-Chair should provide a bottom line decision on the grievance with detailed written reasons to follow.

3By way of a Decision dated October 17, 2008, the parties were informed of my conclusion that the grievor had, in fact, threatened and intimidated Mr. Goulden on November 8, 2007. They were further informed of my decision to reinstate the grievor to his former position, subject to a number of listed conditions, and that the time period between the grievor’s termination of employment to the date of reinstatement was to be considered as an unpaid suspension. What follows below are the reasons for the Decision.

4The letter of termination dated November 23, 2007, which was issued by Mr. Steve Marshall, Director of the London Retail Service Centre, reads in part:

“I am writing to you further to the Notice of Intended Discipline (NOID) issued to you dated November 8, 2007 in which it is alleged that “you verbally threatened a fellow employee, namely Tim Goulden on November 8, 2007………..”

………………It is also alleged that you stared at Tim Goulden on November 8 and then came down Mr. Goulden’s aisle and accused him of staring at you. Mr. Goulden said that he was not staring at you. Instead, he was lifting up his head to see if you were continuing to stare at him. You responded by saying words to the effect, “You’re going to get yours” and “what comes around goes around”, statements which Mr. Goulden interpreted as being threatening and intimidating given your history with him.

……………………………………………………………In a Grievance Settlement Board decision dated August 9, 2004 Vice-Chair Gerry Lee reinstated you to employment following your termination for being “observed on three different occasions of intimidating, verbally and physically assaulting employees of the London Retail Service Centre”. While the discipline that was imposed in that decision is no longer active and is not being relied upon by the LCBO, one of those employees, Mr. Goulden, was the employee you physically assaulted in 2004 and whom you have again threatened.

Further, since your reinstatement in 2004, the LCBO has introduced a Workplace Intimidation and Violence Protection Policy, a zero tolerance policy, to eliminate threatening and intimidating behavior in the workplace. This policy has been rolled out to all employees including you. You have been trained on this policy as indicated by your sign-off on February 22, 2007. Despite this you have again engaged in threatening and intimidating behavior to your co-workers, including Mr. Goulden.

I have considered the information available to me and have determined that you exhibited threatening and intimidating behaviour with ………and Tim Goulden on November 8, in violation of the LCBO’s Workplace Intimidation and Violence Protection Policy. As such, I have determined that disciplinary action is warranted in the form of termination for just cause.

You are directed not to attend the London facility’s premises or contact the facility’s employees, specifically Mr. Goulden …….., either directly or indirectly in any way including at work or at home. If is (sic.) comes to the attention of the LCBO that you have contacted employees, the LCBO will take action it deems appropriate.

5It is noted for the record that the above letter of termination references the grievor’s conduct towards Ms. Sherry Branton on November 5, 2007. The Employer, ultimately, elected not to rely on such conduct to support the discipline imposed on the grievor. No evidence was presented concerning any interaction that the grievor may have had with Ms. Branton on the above-mentioned date.

6The letter of termination also references an incident in 2004 during which the grievor physically assaulted Mr. Goulden. The grievor was terminated as a consequence of such misconduct but was subsequently reinstated, subject to a number of conditions, by a decision of Vice-Chair G. Lee dated August 9, 2004. On the initial day of hearing in this proceeding, the parties agreed that the earlier discipline fell outside of the three (3) year period provided for by article 26.2 of the collective agreement. They disagreed, however, as to the Employer’s right to present evidence about the prior incident. By way of a Decision dated July 28, 2008, the parties were advised that I would not receive evidence from the Employer with respect to the specific facts and circumstances surrounding the 2004 incident. They were further advised that given the exhibits already filed, and the somewhat unusual circumstances of this case, the Employer could lead evidence for the following purposes:

i. to establish, in the event of any dispute on the point, that Mr. Goulden was the employee physically assaulted by the grievor in 2004;

ii. to establish a “nexus” between the 2004 and 2007 incidents, in the sense that the former may explain why the grievor may have been motivated to act as he did in November 2007 and why he might have made certain statements attributed to him at the time; and

iii. to establish how Mr. Goulden perceived the 2007 incident, including his state of mind at the time.

7Article 26.2 of the collective agreement provides as follows:

No discipline against an employee shall be used in a subsequent disciplinary proceeding if such prior incident is more than three (3) years old.

8Evidence for the Employer was presented by Mr. Tim Goulden, Ms. Sherry Branton, Mr. Chris Lukings, Mr. Mark Wagner and Mr. Steve Marshall. Mr. Goulden works in the London Retail Service Centre as a Quality Services Logistics Representative. His job duties include labelling, repackaging, inspecting and returning product. As indicated above, he was the target of the grievor’s inappropriate behavior in both 2004 and 2007. Ms. Branton is a full-time Warehouse Worker 3. She witnessed the altercation between Mr. Goulden and the grievor on November 8, 2007. Mr. Lukings is a Warehouse Worker 4. He was subpoenaed to testify about certain conversations he had with both the grievor and Mr. Goulden. Mr. Wagner is the Manager of Human Resources for the Employer’s Western Region. He met with Mr. Goulden on November 8, 2007 and subsequently conducted a predisciplinary meeting with the grievor and his Union representatives on November 13, 2007. Generally, it was his function to investigate the matter and provide relevant facts and information to Mr. Marshall. Mr. Marshall is the Director of both the London and Ottawa Retail Service Centres. He was the person who ultimately decided to terminate the grievor’s employment at the Liquor Control Board of Ontario.

9The grievor was the sole witness to present evidence on behalf of the Union. He is fifty-seven (57) years of age, is married and has one (1) son who lives at home. The grievor is a High School Graduate. He commenced employment at the London Retail Service Centre in 2002 as a casual employee. He became a full-time Warehouse Worker in 2004. At the time of his termination, the grievor’s job duties included picking of orders, refills, put aways, and the operation of a fork lift truck.

10Mr. Goulden testified that he was relabelling bottles in his work area on November 8, 2007 when he observed the grievor proceeding down an aisle towards him on his fork lift truck. He noted that the grievor was then looking at him. Mr. Goulden stated that he continued his work and that when he looked up again, the grievor was still looking at him. It was his evidence that the grievor then started down another aisle on his vehicle, but was still looking at him. Mr. Goulden advised that, at that juncture, he did not look away from the grievor. He stated that the grievor then proceeded to drive back down the aisle towards him and, on reaching the end of the aisle, asked him if there was something he could do for him. The grievor also asked Mr. Goulden why he was staring at him. In response, Mr. Goulden asked the grievor what he was talking about. Mr. Goulden suggested, in his evidence, that as he had not been staring at the grievor, the grievor must have been staring at him. In any event, it is clear that the grievor then got off his fork lift truck and walked towards Mr. Goulden and that the altercation, which forms the subject matter of this proceeding, commenced immediately thereafter.

11Mr. Goulden testified that the grievor then told him he would see him outside of work and would make Mr. Goulden pay for all the grief he had caused him. Mr. Goulden advised that he asked the grievor to clarify what grief he was referring to. It would seem that clarification was not forthcoming. Mr. Goulden was left with the impression that the grievor was speaking about the loss of his job in 2004 following the physical assault. Mr. Goulden further testified that during this exchange, the grievor mentioned a time he had seen him on a golf course and stated that Mr. Goulden could thank the grievor’s brother-in-law for saving his life. On hearing this statement, Mr. Goulden assumed that the brother-in-law talked the grievor out of causing him some harm on that occasion. Mr. Goulden insisted that his recollection of this part of the exchange was accurate. He added that he did, in fact, recall a day in or around November 2006 when he saw the grievor on a golf course. Mr. Goulden stated that the grievor was angry and was yelling throughout the course of their encounter, which he estimated lasted between five (5) and eight (8) minutes. He recalled that the grievor continued to say he would make him pay for all of his grief, as he walked back to his vehicle to leave the area.

12In passing, I note that the statements in the above paragraph, which Mr. Goulden attributed to the grievor, are not mentioned in the letter of termination. The Union did not, however, object to the receipt of Mr. Goulden’s evidence as to what was said at the time in question. The letter of termination, as previously cited in part, asserts rather that the grievor said words to the effect, “You’re going to get yours” and “what comes around goes around”. It is clear from Mr. Marshall’s testimony that the Employer’s decision to terminate was premised on the language referenced in his letter. Somewhat surprisingly, Mr. Goulden did not speak about these specific comments during the course of his evidence. For the reasons set out below, this omission is not material. Generally, I was given no sound reason to reject Mr. Goulden’s recollection of the incident.

13Mr. Goulden did not immediately report the incident to the Employer. It was his evidence that, at the outset, he was unsure what to do. During his subsequent lunch break, Mr. Goulden advised a Supervisor of what had occurred earlier that morning. That Supervisor urged him to report the incident to appropriate management personnel. Later that afternoon, Mr. Goulden did meet with Mr. Wagner, Mr. Brian Munroe, a Supervisor in the warehouse, and Ms. Jan Meek, a Human Resources representative. He then advised them as to the details of his encounter with the grievor. Later on, during the evening of November 8, 2007, Mr. Goulden also opted to report the incident to the Police. He stated that he did so in order to be safe and that he could not take the chance the grievor was serious about the threat he had made. In Mr. Goulden’s words, he wanted to “put it on the record”.

14Mr. Goulden testified that he has known the grievor since he commenced employment at the London Retail Service Centre in 2002. He stated that, at one point, they were quite friendly and spoke at work about their common interests. Mr. Goulden noted that their relationship changed dramatically at or about the time of the 2004 incident. Mr. Goulden advised, however, that he had no other disputes or problems with the grievor from that time until November 8, 2007. He stated that their interactions in that period were fine, albeit infrequent. Mr. Goulden added that he was nevertheless nervous about the grievor being in the warehouse because of the earlier altercation.

15Mr. Goulden advised that he was nervous, fearful and confused as a result of the grievor’s actions on November 8, 2007. He stated that he was afraid of the things the grievor said and wondered whether he was serious. He added, however, that he felt bad for the grievor and had never wanted to see him in his current predicament. Mr. Goulden was asked in cross-examination what his reaction would be if the grievor was to be reinstated. He replied that his goal was to have a safe workplace and that he would have no problem with the grievor’s reinstatement provided the latter did not engage in similar misconduct in the future.

16Ms. Branton, as previously mentioned, witnessed the altercation between the grievor and Mr. Goulden. At the time, she was working in the cage area, some thirty feet (30’) away. Ms. Branton, as a consequence, could not hear what the grievor actually said to Mr. Goulden. She did, however, observe that the grievor seemed angry and was yelling and swearing at Mr. Goulden. Ms. Branton spoke to Mr. Goulden immediately after the incident. She formed the impression that Mr. Goulden was frightened by what had occurred. Ms. Branton asked Mr. Goulden if he was going to report the incident. It was her recollection that he was unsure as to how to best address the situation. Ms. Branton elected to report the matter to Mr. Munroe shortly thereafter.

17Mr. Lukings testified that he worked with the grievor and got along well with him. He stated that he spoke with the grievor about Mr. Goulden on a few different occasions following the 2004 incident. Mr. Lukings advised that the grievor expressed the view that Mr. Goulden was responsible for the termination which followed that event and that he did not like Mr. Goulden. Mr. Lukings further advised that the grievor told him he had seen Mr. Goulden outside of work at a golf course and that his brother-in-law had stopped him from wrapping his golf club around Mr. Goulden’s neck. He observed that the grievor did not appear to be joking when this information was communicated to him. Mr. Lukings believed that the grievor saw Mr. Goulden on the golf course during the summer of 2007, but acknowledged that it could, instead, have been in 2006. In any event, it was Mr. Lukings’ evidence that he elected to advise Mr. Goulden of this exchange within a couple of weeks. He stated that he did so to alert Mr. Goulden that the grievor was still upset with him and to caution him to “be on the safe side” and avoid any contact with the grievor outside of work.

18Mr. Wagner, as stated, conducted a pre-disciplinary meeting with the grievor on November 13, 2007 to discuss the Notice of Intended Discipline issued to him on the day of the incident. Mr. Steve Saysell, an OPSEU Staff Representative, and the President and Vice-President of the Local also attended on the grievor’s behalf. Mr. Wagner’s notes of the meeting were filed as an exhibit in this proceeding.

19Mr. Wagner’s evidence as to what occurred at the meeting may be summarized as follows:

i. Mr. Saysell initially spoke on the grievor’s behalf. He stated that the grievor recognized his actions were not what they should have been. Mr. Saysell indicated the grievor was frustrated by things he saw in the workplace but needed to learn how to better react. Mr. Saysell advised that the grievor was seeking assistance in this regard;

ii. Mr. Saysell explained that the grievor’s actions on the day in issue were attributable to alcohol and drug abuse and to the use of Paxil, an anti-depression medication. He further advised that the grievor had contacted the Employee Assistance Program, and had scheduled an appointment with his family doctor for early December 2007, for purpose of addressing these problems. Mr. Wagner noted that no medical documentation was provided to support the explanation advanced;

iii. The grievor advised Mr. Wagner that he had not been staring at Mr. Goulden and that he asked Mr. Goulden why he had been staring at him and was there anything he could do for him;

iv. The grievor admitted to saying, “You will get yours one of these days, what goes around, comes around”;

v. The grievor himself stated that he was frustrated at the time and acknowledged he had “a big mouth”. The grievor also stated what he had done was “stupid”;

vi. Mr. Wagner accepted the grievor’s comments as an acknowledgement that he had said inappropriate things to Mr. Goulden. Mr. Wagner noted, however, that the grievor expressed the opinion that Mr. Goulden had baited him into a confrontation.

20Mr. Wagner stated he was skeptical about the claim of the Union that the grievor’s behavior towards Mr. Goulden was attributable to alcohol and drug abuse. He noted that no documentation was provided in support of the claim and that the Employer was previously unaware of the grievor experiencing such problems. Mr. Wagner advised that there was no indication at the workplace of the grievor having a record of high absenteeism or lateness, or having attended for work either impaired or hung over. He suggested that these are the types of things the Employer typically sees from an employee suffering from alcohol and drug abuse. Mr. Wagner also recalled that the grievor had completed treatment for anger management following his earlier altercation with Mr. Goulden in 2004.

21In cross-examination, Mr. Wagner reiterated that he was not aware of the grievor having any problem in respect of his attendance at work. He acknowledged that he did not review the grievor’s personnel file prior to the meeting of November 13, 2007. Mr. Wagner was then shown copies of the grievor’s performance appraisals for 2006 and 2007. Both documents rated the grievor’s performance for attendance and punctuality as “Poor Performance, Performance Does Not Meet Job Requirements”. The earlier appraisal contains the following comment:

“Larry has missed 20 days from June 05 to June 06. An improvement in this area needs to be seen before he will be removed from mandatory notes.”

The latter appraisal similarly notes:

“Larry’s rate of absenteeism is consistently excessive and without substantiation. His attendance has a negative impact on the workplace and requires immediate and sustained improvement. Larry has used 17.65 attendance credits during this period of time.”

All other job factors were rated as “superb performance” or “solid performance” on both of the appraisals.

22Following the meeting of November 13, 2007, Mr. Wagner met with Mr. Marshall to review the incident and the information received at the meeting. Mr. Wagner advised Mr. Marshall that the Union was “putting the matter forward as an accommodation case” and that he was skeptical of the claim. From his perspective, there was no proof to substantiate an addiction. Both gentlemen also considered the Employer’s Workplace Intimidation and Violence Prevention Policy, which provides for a zero tolerance approach to this type of employee misconduct. The grievor had been trained on the policy in February 2007. Mr. Wagner advised that he and Mr. Marshall discussed whether any mitigating circumstances were present and what would be an appropriate disciplinary response given all of the circumstances. It was his evidence that Mr. Marshall ultimately concluded that termination was the appropriate sanction.

23Mr. Marshall testified that he made the decision to terminate the grievor’s employment. He stated that he elected to do so based on the threat the grievor made against Mr. Goulden. More specifically, he relied on the statement “You’re going to get yours” and “what comes around goes around”. Mr. Marshall was unaware at the time of the other statements allegedly made by the grievor, as described in Mr. Goulden’s evidence. As noted earlier, these other statements are not referenced in the letter of termination signed by Mr. Marshall.

24Mr. Marshall also testified that, in reaching his decision, he considered that Mr. Goulden was the same employee who the grievor earlier assaulted in 2004. On his interpretation, the words “You’re going to get yours” and “what comes around goes around” amounted to a specific reference, on the grievor’s part, to the 2004 incident. Mr. Marshall advised that he was aware of the sunset clause, when considering the question of penalty and that he knew the earlier incident predated the November 2007 altercation by more than three (3) years. It was his evidence that, from his perspective, the grievor did not have a discipline record as of the date of the most recent termination.

25In cross-examination, Mr. Marshall agreed that, in his decision making process, he considered that Mr. Goulden was the same person who the grievor had assaulted in 2004. He was asked whether the fact the victim in 2004 was Mr. Goulden was a relevant consideration. In response, Mr. Marshall agreed that it was. He added that if there had been a different victim, “there would have been a different set of circumstances”. Mr. Marshall was also questioned why this factor made the penalty of discharge appropriate. He answered by saying that the grievor, a few years later, had obviously not resolved his issues with Mr. Goulden as he was threatening him “again”. It was the thrust of Mr. Marshall’s evidence that it was “critical” that Mr. Goulden was the victim in both the 2004 and 2007 incidents.

26Mr. Marshall advised that he shared Mr. Wagner’s skepticism vis a vis the claim of alcohol and drug abuse. He agreed that the claim did not seem credible given the absence of any warning signs, such as poor attendance, lateness issues or poor performance on the floor. Mr. Marshall advised that between twenty percent (20%) and twenty-five percent (25%) of employees at the warehouse are on the mandatory note system. Employees fall under that process once they exceed fifteen (15) attendance credits for the year. Mr. Marshall agreed that he did not review the grievor’s performance appraisals prior to the termination. He explained that, at the time, he knew that such appraisals were good. Lastly, Mr. Marshall acknowledged that breach of the Workplace Intimidation and Violence Prevention Policy does not automatically result in termination in every case. He stated that each case must be judged on its own merits.

27The grievor testified that he was hit in the eye by a rock when he was nine (9) years old and almost lost the eye as a consequence. The incident left him with an observable disfigurement in the area of the eye. The grievor advised that he is very sensitive about people staring at him. He commented as follows on this point: “When you grow up with name calling and abuse, it wears on you”. It was his evidence that he has been addressing this sensitivity in consultations with his psychiatrist post termination. The grievor stated that he is trying to overcome thinking the worst about people staring at him. He added that he is starting to realize that this is more of a problem for him than for people around him.

28The grievor stated he felt as if Mr. Goulden had been “staring him down” in the one (1) to two (2) week period prior to November 8, 2007. It was his evidence that on that day he again observed Mr. Goulden staring at him. At that juncture, he approached Mr. Goulden and asked him if there was something he could do for him. He also questioned Mr. Goulden as to why he was staring at him. On the grievor’s account, he then “lost his cool” and said things he is “not very proud of”.

29The grievor admitted that he told Mr. Goulden, “you’re going to get yours” and ‘what comes around goes around”. He asserted that these comments related to the fact Mr. Goulden was staring at him. The grievor made the following comments on this aspect of the case: “If you are rude to people, staring at people, you will get yours, what goes around, comes around”, and “If you throw enough crap at the world some eventually will come back at you”. The grievor insisted that he did not intend to threaten Mr. Goulden by what he said. Rather, he felt uncomfortable with the staring and wanted to put an end to it. The grievor acknowledged, however, that he could understand why Mr. Goulden might take it as a threat. He added that this “really hit home” after listening to Mr. Goulden’s evidence as to the effect his comments had on him.

30The grievor did not believe he told Mr. Goulden that he would see him outside and make him pay for all the grief he had caused him. The grievor testified that he had no recollection of having said that. In response to a question from Union counsel, the grievor acknowledged it was possible that he made the statement attributed to him by Mr. Goulden. He added that, “I can’t challenge or deny it, I just don’t know”.

31The grievor similarly had no recall of telling Mr. Goulden that he had seen him on a golf course and that he could thank his brother-in-law for saving his life. Indeed, he asserted that he had never seen Mr. Goulden on a golf course. The grievor acknowledged that Mr. Goulden apparently saw him on a course. The grievor also could not recall a discussion with Mr. Lukings about having seen Mr. Goulden at a golf course. He agreed that they talked with each other at work, but stated that he did not remember anything about this specific exchange. The grievor ultimately acknowledged that he could not challenge Mr. Luking’s statement and that he had to accept it.

32The grievor in cross-examination denied that he went after Mr. Goulden because of the 2004 incident. He insisted that the exchange resulted from the latter staring at him. The grievor noted that he and Mr. Goulden had worked together for three (3) years following the earlier altercation without any problems.

33The grievor claimed that he was very frustrated at the time of the incident with Mr. Goulden on November 8, 2007 and that he did not recall everything he said. It was his evidence that he now deeply regrets having said anything to his co-worker. He repeated that this was especially so after he listened to Mr. Goulden’s evidence as to the effect the incident had on him. In the grievor’s words, he was “quite devastated” by the testimony and expressed the sentiment that “no one should have to live in fear”. The grievor stated that he had wanted to talk to Mr. Goulden about the incident, but did not do so given the clear direction in the letter of termination not to contact him. He further stated that he intends to speak to Mr. Goulden, regardless of the result in this case, in order “to make this right” and to assure Mr. Goulden that there is no animosity between them. The grievor also referenced his yelling, swearing and name-calling during the incident. In this regard, he stated that he humiliated himself and his family and wishes, in retrospect, that he could “do it over” and, in effect, “turn back time”.

34At the end of his evidence, this Vice-Chair asked the grievor why I could conclude that similar misconduct would not occur in future if he was reinstated to his former position. The grievor responded that he wanted to continue seeing his psychiatrist on a more frequent basis and that he wanted to avail himself of the resources available through the Employee Assistance Program. He added the following comment: “Regardless, I fully intend to apologize to Tim and assure him we can co-exist, and I’d like to get back to where we are talking”.

35The grievor testified that the consequences flowing from his termination have been very difficult. He stated that the incident and its aftermath caused him to recognize his need for professional help. To that end, his personnel physician arranged for the referral to the psychiatrist. The grievor advised that his medication for depression has been changed and that it has made him feel “more alert”. He further advised that he has been unable to secure new work following the termination. I was told that, while his wife works, his family was about to lose their home as a consequence of their financial situation.

36On the final day of the hearing, the Union sought to introduce two (2) letters which had been sent to employees deemed to have contravened the Workplace Intimidation and Violence Prevention Policy. The first letter dated April 30, 2008 was described as a non-disciplinary letter of counsel. The second letter dated July 21, 2008 imposed a one (1) day suspension. Both documents post date the grievance filed in this instance. Counsel for the Union advised that he would make “fairly limited” use of the evidence and that he did not intend to relitigate the issues which led to the issuance of the two (2) letters. He argued that the evidence would demonstrate that loud, profane and threatening utterances in the workplace have attracted milder sanctions than discharge. Counsel further submitted that it would show that the Employer’s policy is not administered in an even-handed way and that the grievor was materially disadvantaged by the differential treatment. The award in Wm. Scott and Company Ltd. and Canadian Food and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.R. 1 (Weiler) was relied on in support of the Union’s position that the evidence should be received.

37The Employer, in response, objected to the receipt of the evidence in issue. Counsel argued that as the grievor acted first, the later cases could not constitute discrimination against him. It was his submission that nothing that occurred in the two (2) later incidents was relevant to what took place on the warehouse floor on November 8, 2007. He suggested that the evidence was too remote to be probative and that its admission would not reflect sound labour relations policy, as it might encourage the Union to delay cases getting to arbitration for strategical purposes. Counsel maintained that post discharge evidence should be limited to any rehabilitative efforts on the part of the grievor. He emphasized that the challenged evidence did not even relate to the grievor. Lastly, counsel advised that he would have to call detailed evidence relating to the two (2) later incidents in order to properly respond to the content of the letters.

38The following authorities were relied on by the Employer in support of the above position: Compagnie minìere Québec Cartier v. United Steelworkers of America, Local 6869, 1995 SCC minicounsel 64, [1995] 2 S.C.R. 1095; Re Cominco Ltd. and United Steelworkers, Locals 480, 651 and 9320 (1988), , 33 L.A.C. (3d) 443 (Larson); Fleet Industries Ltd., a Magellan Aerospace Co. v. International Assn. of Machinists and Aerospace Workers, Local 171, (2001), , 97 L.A.C. (4th) 352 (Solomatenko); and Toronto District School Board and C.U.P.E., Local 4400 (2002), , 107 L.A.C. (4th) 92 (Picher).

39After considering the respective submissions of counsel, I exercised my discretion to exclude the evidence the Union sought to introduce. In my judgment, the evidence was too remote as it focused on events well after the instant termination and the resulting grievance. Additionally, I was concerned that the receipt of the evidence would unduly delay the completion of this case. I further considered the statement of Union counsel to the effect that the resolution of the dispute would not really turn on such evidence. Ultimately, I was satisfied that, on the basis of the evidence already received, the Union could fully argue that the grievor’s conduct did not merit discharge either in isolation or in the context of the Employer’s policy. I also noted that post discharge evidence could be introduced in respect of any rehabilitative efforts taken by the grievor following his termination.

40It is the position of the Employer that the threats the grievor made towards Mr. Goulden on November 8, 2007 represented serious misconduct and that, given all of the circumstances, it was entitled to respond to same through the termination of the grievor’s employment. In the alternative, it is the Employer’s position that sufficient grounds do not exist to support any modification to the penalty imposed.

41The argument of counsel for the Employer may be summarized as follows:

i. Employees can be terminated for threatening conduct against their fellow employees, notwithstanding the absence of any physical violence. Counsel asserted that threats uttered in the workplace are treated more seriously in today’s society than might previously have been the case. He suggested that there is now a much lesser level of tolerance in respect of this form of employee misconduct;

ii. Counsel observed that Mr. Goulden was legitimately frightened by what occurred during the incident. He argued it was made all the more frightening because of the prior 2004 assault and by what the grievor told Mr. Goulden about his response to seeing him on the golf course;

iii. Counsel submitted that the grievor’s inability to recall what was said to Mr. Goulden should be treated as a lack of candour on his part. Generally, I was asked to prefer the Employer’s evidence over that presented by the grievor in all areas of conflict. Counsel argued that Mr. Goulden’s evidence was not tainted by any animosity towards the grievor and that Mr. Lukings had no reason to give other than truthful and reliable testimony;

iv. Counsel argued that even if Mr. Goulden had been staring at the grievor, such conduct would not have justified the latter’s disproportionate response. Simply put, counsel submitted that any staring, assuming it occurred, could not represent provocation. In a similar vein, he maintained that what occurred on November 8, 2007 between the two (2) employees could not be regarded as a momentary flare-up. On counsels analysis, what took place on that occasion was directly connected to the 2004 incident. He stressed that the grievor denied the existence of any such connection;

v. Counsel noted that the grievor did not respond positively to the corrective actions imposed by the August 2004 Decision of Vice-Chair G. Lee and that no medical evidence was advanced in this proceeding related to the likelihood of the grievor engaging in similar misconduct in the future. He emphasized that the Employer is under a duty to protect other employees and to maintain the safety and integrity of the workplace;

vi. It was submitted that the grievor did not assume responsibility for his actions. By way of example, counsel referenced the following explanations offered by the grievor at the pre-disciplinary meeting: his behavior stemmed from alcohol and drug abuse; Mr. Goulden had been staring at him; and Mr. Goulden was trying to bait him. From his perspective, these explanations showed that the grievor refused to accept the true nature of his conduct;

vii. On counsel’s analysis, the grievor exhibited no real remorse for his actions and failed to deliver a sincere and meaningful apology to Mr. Goulden. I was invited to conclude that the grievor was merely sorry he had lost his job; and

viii. Economic hardship, standing alone, is insufficient to warrant the substitution of some lesser penalty;

42The Employer relied on the following authorities in support of the above position: Johnson Controls, L.P.v. National Automobile, Aerospace, Transportation and General Workers Union Of Canada (CAW-Canada), Local 222 (2006), , 150 L.A.C. (4th) 303 (Etherington); Doman Forest Products Ltd. and Industrial Wood and Allied Workers of Canada, Local 2171, [1999] B.C.C.A.A.A. No. 330 (Kelleher); Ontario Store Fixtures v. United Steelworkers of America, Local 5338, [2001] O.L.A.A. No. 237 (Murray); McCain Foods (Canada) v. United Food and Commercial Workers International Union, Local 114P3 (2002), , 107 L.A.C. (4th) 193 (Simmons); Metropolitan Hotel v. Hotel Employees Restaurant Employees Union, Local 75 (2003), , 124 L.A.C. (4th) 1 (Springate); The Corporation of the City of Guelph v. Canadian Union of Public Employees, Local 241, [2000] O.L.A.A. No. 143 (Stewart); Re Regional Municipality of Ottawa-Carleton and C.U.P.E., Local 503 (1994), , 44 L.A.C. (4th) 95 (Stewart); Faryna v. Chorny, , [1952] 2 D.L.R. 354 (B.C.C.A.); Re Black Diamond Cheese and Black Diamond Cheese Employees Independent Union, Local 555 (1992), , 27 L.A.C. (4th) 428 (Jackson); Re Ontario (Greater Toronto Transit Authority-GO Transit) and A.T.U., Local 1587 (2005), 2005 OGSB minicounsel 154, 145 L.A.C. (4th) 68 (Fisher).

[43] In response, it is the position of the Union that termination was an excessive disciplinary response and that some lesser penalty should be substituted for same. The argument presented by counsel for the Union in support of this position may be summarized as follows:

i. Mr. Marshall, the decision maker in this instance, contravened article 26.2 of the collective agreement through his reliance on the 2004 incident. From the perspective of the Union, the Employer’s entire case was built on the foundation of that earlier encounter between the grievor and Mr. Goulden. In this regard, counsel noted the following: Mr. Marshall interpreted the words, “You’re going to get yours” and “what comes around goes around”, as a reference by the grievor to his earlier encounter with Mr. Goulden; Mr. Marshall, in the letter of termination, mentioned that Mr. Goulden was the employee the grievor had physically assaulted in 2004 and whom he had “again” threatened, and that the grievor had “again” engaged in threatening and intimidating behavior towards Mr. Goulden; and that Mr. Marshall acknowledged, in his evidence, that but for the prior misconduct, this would be a different case. Simply stated, counsel for the Union submitted that Mr. Marshall, in effect, treated the grievor as a repeat offender when he was deciding on what level of discipline to impose. Counsel urged me to find that such an approach was misplaced and clearly inconsistent with the direction provided for by article 26.2. It was his submission that this provision precluded Mr. Marshall from placing any reliance on the 2004 incident and, indeed, mandated that he treat the 2007 encounter as a first offence. Counsel asserted that his argument on this aspect of the case was more than just a technical objection. Rather, it was premised on the rules the parties themselves agreed on pertaining to the consequences and effect of stale discipline . On counsel’s reading of article 26.2, such discipline cannot be used in any fashion for any purpose. He argued that, in this instance, the Employer clearly used the prior discipline to the grievor’s ultimate detriment. Counsel advised that he was not, however, asking that the discipline imposed in November 2007 be treated as a nullity. The threshold question, rather, is what the penalty should have been but for the breach of article 26.2 of the collective agreement;

ii. What occurred on November 8, 2007 was simply a momentary flare-up, rather than a premeditated act on the part of the grievor. Counsel suggested that if the grievor was really out to get Mr. Goulden because of the 2004 incident, he would likely have acted much sooner and in a more dramatic fashion;

iii. Counsel noted that the incident here being reviewed included yelling, screaming and swearing on the part of the grievor. He further referenced the grievor’s evidence that while he did not intend to threaten Mr. Goulden, he could understand his conduct could be construed as threatening. Counsel submitted that Mr. Goulden’s feelings, while relevant, are not determinative. In this regard, he suggested that this case is nowhere near as serious as the cases relied on by the Employer. Counsel emphasized that there was no physical violence or use of a weapon in this instance;

iv. Counsel stated that the grievor fully intends to apologize to Mr. Goulden for his actions on November 8, 2007. He noted that the grievor was not previously able to do so given the caution contained in the letter of termination;

v. The Employer’s Workplace Intimidation and Violence Prevention Policy does not preclude some other penalty, short of discharge, and that there is no reason to presume that reinstatement would deliver an inappropriate message to other employees; and

vi. The financial consequences resulting from the termination have been very serious for the grievor. Counsel referenced the grievor’s age and the fact he has been unsuccessful in finding alternate work to date.

I note for the record that counsel for the Union did not advance any arguments in closing related to any claim of alcohol or drug abuse on the part of the grievor.

44The Union relies on the following authorities in support of the above position: OLBEU (Xanthopoulos) and LCBO, 1321/89 (Fisher); Re Levi Strauss Canada and Amalgamated Clothing And Textile Workers Union (1980), , 26 L.A.C. (2d) 91 (Arthurs); Re Dominion Glass Co. and United Glass and Ceramic Workers, Local 203 (1975), , 11 L.A.C. (2d) 84 (Linden);

45By way of reply, counsel for the Employer argued that my earlier Decision of July 28, 2008 in this matter set out the appropriate scope of evidence and that the Union, as a consequence, could not challenge Mr. Marshall’s decision making process to the extent he may have relied on such evidence. Counsel argued that the doctrines of res judicata and/or issue estoppel were applicable to this aspect of the case. In the alternative, he argued that Mr. Marshall’s consideration of the 2004 incident was consistent with my earlier ruling as to the scope of permissible evidence. Counsel stressed that Mr. Marshall did not consider the earlier encounter for purposes of applying progressive discipline. Rather, Mr. Marshall’s evidence was that he treated the grievor as if he had a clear disciplinary record. In this regard, counsel referenced that part of the letter of termination in which Mr. Marshall advised the grievor that the prior discipline was no longer active and was not being relied on. In the further alternative, counsel submitted that even if Mr. Marshall improperly relied on the earlier incident, it did not follow that some lesser penalty should be imposed. It was his submission that no other discipline, short of termination, would be appropriate. Ultimately, it was asserted by counsel that in the highly unusual circumstances of this case, Mr. Marshall could properly consider that Mr. Goulden was the victim in both the 2004 and 2007 incidents.

46The Employer cited the following authorities in support of its reply argument: Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services), [2005] O.G.S.B.A. No. 123 (Johnston); Mains Ouvertes-Open Hands Inc. v. Ontario Public Service Employees Union, Local 458, [1996] O.L.A.A. No. 47 (Roach); Re Leisureworld Inc. and S.E.I.U., Local 204 (1992), , 27 L.A.C. (4th) 46 (Brunner); Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460.

47I have not been persuaded that much turns on who was staring at who on the morning of November 8, 2007. Even if Mr. Goulden was staring at the grievor, as claimed by the latter, it would not have justified the grievor’s conduct. Clearly, such staring, if it occurred, would not have constituted provocation so as to excuse, or otherwise reduce the significance of, the grievor’s threatening and intimidating behavior. I consider it likely that both individuals were looking at each other. I think that Mr. Goulden would have been inclined to keep a watchful eye on the grievor in view of their earlier encounter. Similarly, I think that the grievor would likely have been focusing on Mr. Goulden given that he probably harboured some residual, albeit misplaced, resentment because of what transpired in 2004.

48The grievor admitted that during his exchange with Mr. Goulden on November 8, 2007, he said words to the effect that, “You’re going to get yours” and “what comes around goes around”. I accept Mr. Goulden’s evidence that the grievor also told him that he would see him outside of work and would make him pay for all of the grief the grievor had experienced. The grievor initially testified that he had no recollection of making such a statement. He acknowledged, however, that it was possible he uttered those words. I further accept Mr. Goulden’s evidence that the grievor mentioned a time he had seen Mr. Goulden on a golf course and that the grievor told him that he could thank his brother-in-law for saving his life. The grievor, similarly, had no recall of making this comment during his exchange with Mr. Goulden. Indeed, he asserted that he had never observed Mr. Goulden on a golf course. I note that the latter statement attributed to the grievor was not in and of itself a threat. The statement, however, likely served to heighten Mr. Goulden’s concerns about the grievor’s intentions and to reinforce the seriousness of the other threats. Overall, I was given no reason to doubt Mr. Goulden’s account of what was said by the grievor at the time in question. Additionally, I accept that the message was communicated in an angry tone and that the grievor was both yelling and swearing at Mr. Goulden.

49It is abundantly clear that the grievor threatened and intimidated Mr. Goulden on November 8, 2007. The Union, in substance, agreed that his conduct at the time was objectionable and unacceptable at the workplace. I accept that such misconduct caused Mr. Goulden to become nervous and frightened. This is evidenced by his subsequent decisions to report the incident to both management and to the local Police. The seriousness of the incident is further evidenced by Ms. Branton’s decision to report the occurrence to Mr. Munroe. I have no doubt that the grievor’s statements, and the manner in which they were delivered, had a real impact on Mr. Goulden in the sense the situation was not something he could quickly shake off. Without doubt, the grievor’s behavior at the material time clearly contravened the Employer’s Policy on Workplace Intimidation and Violence Prevention. As mentioned, the grievor was aware of the policy and that discipline, up to and including termination, could result from any breach of same.

50In my judgment, the grievor’s conduct towards Mr. Goulden was deserving of significant discipline. In present society, and for good reason, there is a lesser tolerance for workplace intimidation and violence than may have previously been the case. This more demanding level of behavior is reflected in the following excerpts from Re Johnson Controls and Re Ottawa-Carleton. In the former, the Arbitrator observed:

“……..There have been numerous recent cases in which arbitrators have recognized that violence and threats of violence in the workplace are very serious matters which properly attract a serious disciplinary response up to and including discharge………………there is no requirement that there be actual physical violence or an explicit threat for serious disciplinary penalties to be warranted. And although the ultimate penalty of discharge will not be confirmed in all cases of threatening behavior, arbitrators have been willing to uphold discharge in some cases involving veiled or implicit threats rather than explicit threats, ………… ……………………………………………………….”

(paragraph 53)

In the latter award, the Board of Arbitration stated as follows:

“A central consideration in cases such as this is maintaining the integrity of the workplace. It must be clear to all employees that acts of violence or threats of violence in the workplace are extremely serious matters that will not be tolerated. In many instances, discharge will be the appropriate penalty ………………………..”

(paragraph 28)

51There are several aspects of the grievor’s evidence which have given me some concern. These may be summarized as follows:

i. The grievor denied that he went after Mr. Goulden on November 8, 2007 because of their earlier altercation in 2004. He asserted, rather, that the exchange on November 8th occurred as he observed Mr. Goulden staring at him. The grievor also suggested that Mr. Goulden baited him into a confrontation by staring at him in the prior one (1) to two (2) week period. I have some difficulty accepting this explanation. I consider it more likely than not that the incident occurred because the grievor had some lingering resentment and animosity towards Mr. Goulden from the events in 2004;

ii. In a similar vein, the grievor claimed that the words, “You’re going to get yours” and “what comes around goes around” related to the fact Mr. Goulden was staring at him and that they were not intended as a threat. In my judgment, given the prior history between the two (2) employees, I think it more likely that the statements were, in fact, intended as a threat. I note, in this regard, that the grievor ultimately acknowledged that he could understand why Mr. Goulden might interpret the remarks as a threat;

iii. As mentioned above, the grievor denied that he made any comment to Mr. Goulden about having seen him on a golf course and his reaction to same. Indeed, he further denied ever having seen Mr. Goulden on a golf course. I do not find this part of his evidence to be convincing. The evidence of Mr. Lukings suggests that the grievor did adversely react to seeing Mr. Goulden on a golf course. There would have been no reason for Mr. Lukings to have subsequently spoken with Mr. Goulden if the exchange between he and the grievor did not occur. Mr. Lukings was an independent witness and did not have any hostile animus towards the grievor. I was provided with no sound reason why he might fabricate evidence to the grievor’s detriment. I note that the grievor acknowledged that he could not challenge Mr. Lukings’ evidence and, as a consequence, had to accept it. As previously stated, I conclude that the grievor did reference the golf course incident during his exchange with Mr. Goulden on November 8, 2007;

iv. The grievor on several occasions during the course of his evidence claimed that he was unable to recall what was actually said to Mr. Goulden. While I can understand how this could occur if a person was acting out in a state of rage, I think that such expressed inability could also be viewed as a desire to avoid responsibility for certain threatening or problematic statements; and

v. No medical evidence was presented in terms of the likelihood of the grievor engaging in similar behavior in the future. Such evidence would have been helpful in this instance.

52Notwithstanding the above concerns, I decided to exercise discretion and reinstate the grievor to his former position, subject to the conditions listed in my Decision of October 17, 2008. I elected to substitute an unpaid suspension of approximately eleven (11) months for the termination, as I determined that the above concerns were outweighed by factors supporting the mitigation of the penalty initially imposed by the Employer.

53It is admittedly difficult to accurately gauge the sincerity of remorse and regret expressed by a grievor in a case such as this. The remorse may be genuine and may reflect the fact that the person has truly come to understand the nature of their misconduct, and its adverse impact on other affected individuals, and has accepted ultimate responsibility for the inappropriate behavior. In contrast, the expression of remorse may simply be an artificial, opportunistic and insincere gesture by a person who is really only sorry about the loss of employment. After assessing all of the grievor’s evidence in this proceeding, and the manner in which it was presented, I have been persuaded that he does have real remorse over his actions and that he has assumed a significant degree of responsibility for what occurred with Mr. Goulden on November 8, 2007. In reaching this conclusion, I have given weight to the following aspects of the evidence:

i. The grievor acknowledged, at the pre-disciplinary meeting of November 13, 2007, that he acted inappropriately during his encounter with Mr. Goulden;

ii. During the course of his evidence, the grievor further acknowledged that he “lost his cool” on November 8th and said certain things he was “not very proud of”. The grievor added that, through his conduct on the day in question, he humiliated himself and his family and wished, in retrospect, that he could “turn back time”;

iii. The grievor appeared to comprehend the effect his comments and behavior had on Mr. Goulden. He testified that he deeply regrets what he said to Mr. Goulden on November 8th, especially after hearing the latter’s evidence as to how he was impacted by the threatening and intimidating behavior. In this regard, the grievor stated that “no one should have to live in fear”;

iv. The grievor intends to speak with Mr. Goulden, whatever the decision in this case, to “make it right”. He stated that he plans to apologize to Mr. Goulden and to take steps to improve their relationship. I accept the grievor’s explanation that he was not able to do so earlier given the caution contained in the letter of termination; and

v. The grievor recognized his need for professional help and stated that he intends to secure such assistance from both his psychiatrist and the Employee Assistance Program.

54The evidence discloses that there were no altercations between the grievor and Mr. Goulden between the time of the former’s reinstatement in 2004 and the incident on November 8, 2007. Indeed, the grievor did not incur any discipline on his record in this period. This suggests that the discipline received in 2004 may have had some corrective influence on him. I note that, subject to problems relating to attendance and lateness, the grievor had good performance appraisals in 2006 and 2007.

55I do not think that the incident on November 8, 2007 was premeditated on the part of the grievor. I consider it more likely that it was a momentary flare-up and that the grievor acted impulsively and not pursuant to any prior plan. If the grievor was intent on exacting retribution from Mr. Goulden because of the 2004 incident, I think it likely that he would have acted on that intent much sooner. I have some difficulty accepting that he consciously waited some three (3) years before seeking retribution. Notwithstanding the grievor’s assertion on this point, I am nevertheless inclined to believe that the instant altercation was connected to the 2004 incident in the sense he still harboured some residual resentment towards Mr. Goulden and that these feelings triggered his aggressive outburst on the day in question.

56I am unable to find that the grievor’s reinstatement to his former position will create a threat to the health and safety of other employees. No evidence was presented to support the presence or likelihood of such a threat. As mentioned earlier, the Employer did not rely on any interaction the grievor may have had with Ms. Branton to support its decision to terminate. On a related point, I do not think that an unpaid suspension of just short of one (1) year, and subject to significant conditions, will send an inappropriate message to other employees. To the contrary, such resolution reinforces the thrust of the Employer’s Workplace Intimidation and Violence Prevention Policy to the effect that serious consequences will flow from any conduct contravening same. Lastly, I note Mr. Goulden’s evidence that he would have no problem with the grievor’s reinstatement provided the workplace remained safe and the grievor refrained from engaging in similar misconduct in the future.

57One final issue merits some attention here, namely, Mr. Marshall’s consideration of the 2004 incident as part of the decision-making process which resulted in the termination.

It is apparent from the evidence that Mr. Marshall considered the earlier incident in the following respects:

i. He believed the words, “You’re going to get yours” and “what comes around goes around” were a reference by the grievor to the 2004 incident. Mr. Marshall construed these words as a threat and concluded they were uttered because of what occurred in 2004;

ii. Mr. Marshall considered the fact that Mr. Goulden was the same employee who the grievor earlier assaulted in 2004. He agreed, in cross-examination, that this was a relevant and “critical” consideration; and

iii. He was of the view that the grievor had not resolved his issues with Mr. Goulden and had threatened him “again”.

I also note Mr. Marshall’s evidence that, when considering the issue of penalty, he was aware of article 26.2 of the collective agreement and that the earlier incident predated November 8, 2007 by more than three (3) years. Mr. Marshall further testified that, at the material time, he treated the grievor as having a discipline free record.

58On my overall assessment of the evidence, I think it likely that Mr. Marshall may have imposed a greater disciplinary sanction because of the grievor’s earlier altercation with Mr. Goulden. This likelihood is best reflected by his answer in cross-examination that if the victim in 2007 had been different, then “there would have been a different set of circumstances”. That response suggests that something less than termination might have been selected as the appropriate penalty had the grievor not been involved with Mr. Goulden in 2004. In this respect, it appears that the grievor’s prior record, which was outside of the period provided for by article 26.2, was considered by Mr. Marshall to the grievor’s ultimate detriment. In the final analysis, I find that the earlier incident did taint Mr. Marshall’s response to the events of November 8, 2007 and that he was excessively influenced by the former in his decision making process.

59I do not accept the Employer’s submission that the doctrines of res judicata and/or issue estoppel apply here. My preliminary Decision of July 28, 2008 spoke to the scope of evidence that could be adduced so as to allow both parties a full and fair opportunity to present their respective cases. It did not address, or finally resolve, the substantive issue as to the effect of article 26.2. Put another way, the Decision did not determine that Mr. Marshall could consider prior discipline falling outside of the sunset provision at the time he made the decision here being challenged.

60I was told by counsel that the sole Grievance Settlement Board award dealing with the effect of article 26.2 is Xanthopoulos. In that case, the Supervisor referenced earlier discipline in his letter imposing a one (1) day suspension for an alleged assault. The earlier discipline, as here, was outside of the three (3) year period specified in article 26.2. The Supervisor, in his evidence, testified that the prior infraction played no part in his decision to impose the suspension. He also, however, was of the mistaken belief that the earlier incident occurred within the above-mentioned period. The panel of the Board, chaired by Vice-Chair B. Fisher, found that the Supervisor improperly considered the prior disciplinary incident and elected to replace the one (1) day suspension with a written warning. The pertinent passages from the award read:

“The Board finds that based on the simple fact that Mr. McDowell made a specific reference to the past incident in the termination letter is sufficient evidence that he in fact considered the incident in arriving at his decision. Mr. McDowell knew he was writing an important letter and it is not likely that he would have added unnecessary comments of this nature. Furthermore, as he incorrectly thought he could rely upon this incident (as he was mistaken as to the timing) it is consistent with his desire to indicate to the grievor that he was getting a one day suspension based on a second offence. In other words, he was intending to rely upon the doctrine of progressive discipline to justify the one day suspension.”

(page 8)

-and-

“Although Mr. McDowell testified that the previous incident was not considered by the Employer in arriving at the decision, the Board is skeptical of that statement. However, the Board is not satisfied that the Employer relied to such a degree upon this previous incident so that the decision should be completely nullified. This is not a case of where the employer imposed a serious penalty for a final incident of a minor nature, rather it is a relatively short suspension for a significant offence. In assessing the appropriate penalty, however, we must consider that if the decision maker had only considered the single incident, he likely would have given a lesser penalty than a one day suspension, as that is the penalty he assessed based on the premise that this was a second assault.

…….., this Board is satisfied that had Mr. McDowell not considered the Hamilton incident, he would have imposed a lesser penalty. In the circumstances a written warning would have been proper.”

(pages 9-10)

61In the instant proceeding, counsel for the Union did not ask that the termination be nullified. Rather, it was the thrust of his submission that Mr. Marshall’s improper reliance on the 2004 incident should be considered in the overall assessment of whether the penalty should be substituted for. I have accepted this submission and have factored it into my decision to reinstate.

62As stated in my Decision of October 17, 2008, the reinstatement subject to the listed conditions is intended as the last and final opportunity for the grievor to correct his behavior and to demonstrate that he can function appropriately within the workplace. He needs to know that it is extremely unlikely that any discretion will again be exercised in his favour in the event of any future misconduct similar to what occurred on November 8, 2007.