United Steelworkers (Hinger) v. The Crown in Right of Ontario (Ottawa Convention Centre Corporation), 2015 CanLII 76830

GSB#2014-4562

UNION#8327-24

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

United Steelworkers (Hinger)

Union

• and -

The Crown in Right of Ontario (Ottawa Convention Centre Corporation)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

David Lipton United Steelworkers, District 6 Staff Representative

FOR THE EMPLOYER

Brett Christen Filion Wakely Thorup Angeletti LLP Counsel

HEARING

June 8 and September 21, 2015

DECISION

1Paul Hinger worked as a banquet server at the Ottawa Convention Centre. His continuous service dates from 2006. He was terminated as a result of a verbal altercation with another server, JP Miner, on January 26, 2015.

I

2The altercation occurred in the service corridor behind Canada Hall (CH2) and Canada Hall (3) and lasted approximately one minute. Two other employees were present in the corridor. The large doors between the corridor and CH2 were open. Two managers were present in CH2 along with a number of employees and clients running exhibition booths.

3There is a video recording of the last twenty seconds of the altercation but no sound recording. The video clip begins with Mr. Hinger and Mr. Miner about forty feet from the open doors and walking towards them. Mr. Miner is following Mr. Hinger and apparently speaking to him. At the three-second mark Mr. Hinger begins to move his arms, and often his upper body and head, very quickly and dramatically. These movements continue through the ten-second mark, when the two employees stop at the open doors just inside the corridor, to the sixteen-second mark. The grievor’s movements during this period of 13 seconds led me to conclude he was in a rage. Mr. Hinger then begins to retrace his path back down the corridor. Mr. Miner remains where he was. For the rest of the twenty-second clip, Mr. Hinger is walking away, looking over his shoulder, with his right arm raised over his head and one or two fingers extended. Throughout the clip, there is nothing in Mr. Miner’s body language to suggest he was also enraged.

4During cross-examination, Mr. Hinger admitted using the “f” word three or four times, at least once when standing right beside the open doors to CH2. He also conceded using his “street performer” voice. Robert Gratton, the operations manager, was in CH2 when the altercation occurred, approximately 60 feet from the open doors. According to his testimony, he heard “loud yelling” from the corridor but could not make out any words. Patrick Levesque, another banquet server, was also in CH2. He testified about hearing Mr. Hinger screaming in the corridor and using the “f” word three times in rapid succession. Despite Mr. Hinger’s tirade, there is no suggestion Mr. Miner raised his voice or used profanity.

5Both Mr. Gratton and Mr. Levesque described the exhibitors in CH2 looking towards the corridor when Mr. Hinger’s angry outburst happened. There is little doubt they heard his very loud voice even if they could not make out the words. Mr. Levesque also described Mr. Miner entering CH2, at the end of Mr. Hinger’s tirade, with a look of embarrassment on his face.

6The union contends Mr. Hinger was provoked by Mr. Miner badgering him for an extended period immediately preceding the altercation. In his capacity as unit chair at the time, Mr. Hinger was discussing with Mr. Miner his recent loss of full-time status. A list posted on January 15 showed he had not worked sufficient hours in the preceding year to retain full-time status. Losing that status would not only deprive him of benefits but also result in his scheduled hours being reduced. He needed credit for an additional twelve hours to retain full-time status.

7On January 26 Mr. Hinger approached Mr. Miner in CH3 where he was setting tables. Mr. Hinger suggested the employer might be willing to credit him with two shifts not worked because he had been sent home while suffering from pink eye. Mr. Hinger asked Mr. Miner to provide the dates of these shifts. Mr. Miner said the total hours recorded on his pay slips were more than enough to retain full-time status. Mr. Hinger replied those hours included vacation which, according to an understanding between the union and employer, did not count for the purpose of determining status. According to Mr. Hinger, the two of them initially spent a few minutes discussing these matters while not working.

8Mr. Hinger and two other employees testified about what happened during the 20 to 30 minutes between his initial conversation with Mr. Miner and their later altercation. For reasons which will become apparent, I need not recount the evidence of the other two employees. Mr. Hinger’s account is set out in the following paragraph.

9Mr. Hinger began setting tables in CH3 and Mr. Miner returned to doing the same. Mr. Miner followed Mr. Hinger around the room, repeatedly insisting the hours recorded on his pay slips entitled him to full-time status. Mr. Hinger kept asking him to provide the dates when he had been sent home. Mr. Hinger left CH3 and went to CH2 in an attempt to escape Mr. Miner but he followed, continuing to talk about his pay slips. The function in CH2 was almost over and required little attention. Mr. Hinger went back to CH3 with Mr. Miner in pursuit, still talking about his pay slips as they returned to setting tables. While being followed by Mr. Miner, Mr. Hinger on five separate occasions said the conversation had to end, noting it was interfering with their work. Mr. Miner paid no heed. The altercation occurred when Mr. Hinger left CH3 for a second time and Mr. Miner pursued him into the back corridor.

10Mr. Hinger testified during examination in chief that he did not realize there were people in CH2 at the time of his loud and profane tirade. The doors were open but his view of the hall was blocked by a drape just beyond the doors. In cross-examination, he conceded there were exhibitors in CH2 ten or fifteen minutes early when he was there. He also admitted not thinking about whether clients might still be present when he lost control.

II

11Mr. Hinger testified he now feels badly about blowing up at Mr. Miner. He acknowledged if exhibitors heard him that could harm the employer’s reputation and result in a loss of business to the detriment of all concerned.

12Mr. Hinger’s disciplinary record includes three suspensions for similar misconduct, all within fourteen months of the events leading to his discharge. On December 6, 2013, he deliberately struck a heavy plate cart in the corridor, damaging property. Later the same day he raised his voice to a co-worker. This misconduct resulted in a nine-day suspension that was later reduced to two by a settlement reached during the course of another hearing before me.

13On March 30, 2014, Mr. Hinger raised his voice and used profanity towards a supervisor, resulting in a five-day suspension. I am seized of the grievance relating to this suspension. The union contends the penalty is too severe but concedes a three-day suspension was warranted. As the grievor subsequently received another five-day suspension, I view the difference between a three-day suspension and a five-day suspension for the incident on March 30 as immaterial to the assessment of his overall disciplinary record.

14The later five-day suspension was for an incident on November 9, 2014. Mr Hinger then publicly disparaged a client and engaged in a public altercation with a co-worker, despite being repeatedly told to stop by a manager. This suspension was not grieved.

15The disciplinary record demonstrates the employer has repeatedly attempted to rehabilitate the grievor by imposing suspensions.

III

16The union conceded Mr. Hinger’s outburst in the service corridor on January 26, 2015 warranted some discipline. Nonetheless, the union argues he should be reinstated with a lesser penalty.

17The union noted all of the incidents on the grievor’s disciplinary record occurred after he became unit chair in 2012. He no longer holds that position. I was urged to conclude the grievor’s misconduct flowed from his inability to cope with the stress entailed in holding union office. The employer submitted there was insufficient evidence to support this assertion. I agree. The mere fact the misconduct occurred after Mr. Hinger became unit chair is insufficient to prove a causal relationship.

18The union contended Mr. Hinger was provoked by Mr. Miner’s persistent badgering. Absent the sort of provocation that would mitigate in favour of a lesser penalty, I would have no hesitation in upholding the employer’s decision to terminate the grievor, notwithstanding his length of service, based on his extensive record of similar misconduct in the recent past.

IV

19The union cited a number of cases dealing with provocation: (1) Sauder Industries Ltd. and IWA-Canada (1995), 1995 CanLII 18360 (BC LA), 47 L.A.C. (4th) 417 (Kelleher); (2) Regional Municipality of Halifax and Nova Scotia Union of Public and Private Employees (2004), 2004 CanLII 94699 (NS LA), 131 L.A.C. (4th) 1 (Veniot); and (3) Howe Sound Pulp and Paper Corp. and Communications, Energy and Paperworkers Union of Canada (2013), 230 L.A.C. (4th) 1 (Holden).

20Additional cases on provocation were cited by the employer: London Public Utilities Commission and Canadian Union of Public Employees (1987), 7 C.L.A.S. 45 (Brandt); H.J. Heinz Company of Canada and United Food and Commercial Workers (1988), 8 C.L.A.S. 105 (Weatherill); Agawa Forest Products (1998), 52 C.L.A.S. 253 (Sarra); and Purolator Courier Limited and Canadian Council of Teamsters (2005), 82 C.L.A.S. 204 (Surdykowski).

21Perhaps the most instructive of these decisions, for present purposes, is Regional Municipality of Halifax. In that case, the grievor’s supervisor placed a number of invoices on her desk and insisted they be processed that day. He was red-faced, angry and talking through his teeth. He pounded his fingers on the invoices for emphasis and then left. Speaking to no-one in particular, the grievor launched into a loud, five-minute diatribe, heard by several others, about how she had been treated. She received a verbal warning which was recorded in writing. Arbitrator Veniot concluded the supervisor’s inappropriate conduct on the day of her outburst, viewed in isolation, did not constitute sufficient provocation to save the grievor from discipline, because her loud and extended diatribe was disproportionate to the degree of provocation provided on that single occasion. The arbitrator wrote: “A situation which raises a provoked response is not a licence for overkill” (page 20). Nonetheless, the arbitrator decided to excuse the grievor’s outburst, because she had repeatedly complained about bullying by the supervisor over a period of two years and her complaints had fallen on deaf ears.

22Two lessons relevant to the facts at hand emerge from this case. The first relates to the notion of proportionality. Provocation provides shelter from discipline only to the extent the response to provocation is proportionate to the provocative action or words. Overkill enjoys no protection.

23The second lesson from Regional Municipality of Halifax is about provocation taking the form of a course of conduct. If an employee takes appropriate steps in mid-course to end the provocation, but fails to end it, the entire course of conduct is relevant when assessing the degree of provocation. The logical corollary is that a defense of provocation cannot be founded on an entire course of conduct if there was an opportunity along the way for the person subjected to this conduct to take steps to end it and he or she failed to do to.

24The notion of proportionality is reflected in the outcome of other cases even though it was not explicitly discussed. In two cases, provocation resulted in a lesser penalty because the grievor’s response was proportionate to the provocative act. In Sauder Industries, another employee nudged the grievor in the chest as they passed on the stairs and invited him to fight after work. The grievor reported this incident to a manager who summoned both of them to his office. There each of them raised his voice, accused the other of being a “fucking liar” and refused to sit down when told. They were both fired. In reinstating the grievor with a lesser penalty based on provocation, Arbitrator Kelleher noted two things: he had refrained from retaliating physically when provoked by physical contact on the stairs; and his misconduct in the office was limited to angry and profane words of the sort then directed towards him.

25The same sort of proportionality existed in Howe Sound where the grievor had been discharged for his role in a heated verbal exchange with a service representative of a contractor. The service man first confronted the grievor in an angry and argumentative manner and then fully participated in the altercation that ensued. Arbitrator Holden reinstated the grievor with a lesser penalty.

26In H.J. Heinz the grievor’s disproportionate response to any provocation led to his grievance being dismissed. He had been discharged for beating a co-worker with a large piece of wood. According to the grievor, immediately before the beating occurred the other employee had delivered an insult, saying he would put the grievor in his pocket if he did not keep quiet. Arbitrator Brandt upheld the discharge, viewing any such insult as not warranting the substitution of a lesser penalty.

27A similar disproportionality existed in Agawa Forest Products. The grievor believed a co-worker had complained about his job performance to management. When asked about this by the grievor, the co-worker replied he was “lazy and no fucking good.” During a subsequent lunch break he told other employees that, if he was fired, he would “kick the living shit” out of the grievor. Arbitrator Sarra upheld his discharge, viewing the co-worker’s insulting and profane comment as not inviting a threat of violence.

V

28Whenever a defense of provocation is raised, the threshold issue is whether the alleged provocative act actually caused whatever misconduct ensued. Mr. Hinger has a history of misconduct similar to what occurred on January 26 and his disciplinary record contains no suggestion he was provoked on other occasions. Given the grievor’s history, I am not persuaded the primary cause of his misconduct that day was the badgering he described, even if it was a contributing factor.

29In addition, Mr. Hinger’s misconduct on January 26 was far from proportionate to any provocation he faced even as recounted by him. The grievor’s testimony indicates Mr. Miner was persistent to the point of being annoying but he was not noisy, profane or rude. Mr. Hinger’s tirade was loud, laced with profanity, insulting and public. It was very disproportionate.

30Moreover, the provocation upon which Mr. Hinger relies took the form of a course of conduct over 20 to 30 minutes. During this time there was ample opportunity for him to take steps to end it. On his own account, he repeatedly told Mr. Miner to stop but did nothing else. He just let his frustration build until he exploded. There were other avenues open to him. For example, he could have offered to talk to Mr. Miner later, after a cooling off period, or he could have asked someone else to attempt to persuade Mr. Miner to desist, at least temporarily. Having failed to take appropriate steps to end what was initially a minor annoyance at most, Mr. Hinger is foreclosed from raising a defense of provocation based on Mr. Miner’s entire course of conduct.

31Bearing in mind all of the considerations canvassed in the preceding three paragraphs, I conclude the defence of provocation does not provide grounds for reinstating the grievor with some lesser penalty.

32The grievance is dismissed.