GSB#2014-4400

UNION#2015-0228-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ryan)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 26, May 19, June 14 & 16, September 23, 2016; January 20 & 27, April 13, May 16, 2017

Decision

1The grievor, Mr. Michael Ryan has grieved his discharge on January 6, 2015 from the position of Court Services Officer (“CSO”) he had held from March 17, 2014. The letter of discharge signed by Ms. Marion Marrone, Manager Court Operations reads:

This letter is a follow up to the allegation meeting which was held on December 23^rd, 2014 with you, your Bargaining Unit representative, Perry Cappadocia and myself. Joan Zammit was also in attendance to take notes.

The purpose of that meeting was to discuss the allegation that on December 6^th, 2014 you displayed unprofessional and disrespectful behaviour by yelling and swearing at a co-worker.

During the allegation meeting you admitted that you did swear at your coworker in the back hallway, not in the courtroom. During our meeting you expressed no remorse for your actions and failed to appreciate that this behaviour was inappropriate in any way. Indeed, you were originally evasive and did not readily take responsibility for the actions in question, instead arguing about how the allegations were worded and where the incident in question took place.

You indicated that you feel that your behaviour was justified as you believed your coworker had provoked you in previous conversations. You also commented that your behaviour was appropriate as this coworker “comes from that kind of background”, indicating your belief that she would only understand you if you were verbally abusive to her.

After carefully reviewing all of the information obtained during the investigation as well as your responses to the above-noted allegations and the additional documentation you provided to me, it is my conclusion that the above-noted allegations have been substantiated. Behaviour of this kind is unprofessional, disrespectful and is incompatible with the values required of employees of the Ontario Public Service and the Ministry of the Attorney General.

Having given full consideration to the facts, your employment history and all other circumstances and mitigating factors, I have concluded that your actions are just cause for discipline.

In deliberating on an appropriate penalty for the substantiated allegation, I have taken into consideration the seriousness of the substantiated allegations, your responses during the allegations meeting, the mitigating factors presented by you, and your 9 months of service.

With due consideration to the available information and given the serious nature of your actions I have concluded that your actions are just cause for dismissal, Accordingly, by the authority delegated to me under Section 44 of the Public Service of Ontario Act, I hereby dismiss your for cause in accordance with section 35 of the Act, effective January 6^th, 2015. You have the right to grieve your dismissal.

2The onus is on the employer to establish the grounds on which it disciplined an employee. It is also recognized that an employer is required to justify the penalty imposed on the same grounds it relied on when it actually disciplined the employee. The employer is not allowed to enlarge the grounds by adding new allegations or changing the characterization of the facts it relied on. Aerocide Dispensers Ltd., (1965), 1965 CanLII 985 (ON LA), 15 L.A.C. 416 (Laskin).

3In the present case, there was disagreement between the parties as to the grounds which the employer relied upon at the time it decided to discharge the grievor. The parties agree that the allegation set out in the letter of discharge that the grievor “displayed unprofessional and disrespectful behaviour by yelling and swearing at a co-worker” on December 6, 2014 (hereinafter “the December 6^th incident”) is a ground the employer relied upon at the time the decision was made. The employer, however, takes the position that the grievor’s conduct during the allegation meeting, and documentation he submitted in response to the allegation relating to the December 6^th incident, were also grounds it relied on in imposing the sanction of discharge. The union disagrees.

4The Board prefers the union’s position based on the testimony of Ms. Marrone, viewed in light of what she wrote in the letter of discharge. The letter states “After carefully reviewing all of the information obtained during the investigation as well as your responses to the above-noted allegations and the additional documentation you provided to me, it is my conclusion that the above-noted allegations have been substantiated.” It is evident from this language that Ms. Marrone relied on the grievor’s conduct at the allegation meeting and the additional documentation he submitted in reaching the conclusion that the “above-noted allegations” are substantiated, and not as separate allegations of culpable conduct. The “above-noted allegations” are about yelling and swearing at a co-worker on December 6, 2014. The conduct at the allegation meeting and the subsequently filed documentation had to do with alleged failure by the grievor to cooperate at the allegation meeting and derogatory “name calling” by the grievor in reference to a number of his co-workers. Surely if these were considered to be separate allegations of misconduct, the letter of discharge would at least have made reference to those allegations, particularly the “name calling” of co-workers, as it did with regard to the allegation of “yelling and swearing at a co-worker”. While the letter does refer to the grievor’s reference to “the background” of a co-worker, that is part of Ms. Marrone’s description of his response in defence to the allegations relating to the December 6^th incident, along with reference to his alleged evasiveness and his questioning of the wording of the letter of allegation. Moreover, in cross-examination, union counsel referred to the grievor’s first written submission and put to Ms. Marrone directly, “You did not discipline him for writing that. Her answer was “No. That was his information in response to the allegation. If it came from nowhere it may have been different”.

5There is no question, based on the discharge letter and Ms. Marrone’s testimony, that she was very troubled by what she viewed as the grievor’s refusal to accept any responsibility for his conduct on December 6^th. She felt that instead, he failed to cooperate at the meeting and responded with name calling. It is equally clear that this caused Ms. Marrone to determine that discharge of the grievor was warranted. While those played a major role in the determination of the level of discipline, they were not treated as separate allegations which gave rise to discipline.

The December 6^th incident

EMPLOYER EVIDENCE

The employer relies on two exchanges the grievor allegedly had on December 6, 2014. The first involved the grievor and Mr. Gordon Handisyde, also a CSO. Mr. Handisyde subsequently advised the CSO Supervisor, Ms. Winsome Allen about this exchange, and was instructed to provide a written statement. Mr. Handisyde’s version of what occurred was set out in an e-mail dated December 17, 2014 to Ms. Allen, as follows:

Winsome: On the day of Dec. 6^th I was working Jury PM. I went to the courtroom in order to find out at what time the jury would be needing supper as they were watching a 1½ hr. video. When I entered the courtroom (in session) I noticed that Mike was sitting at the side of the dais instead of at the back door. There was 10 or 12 people in the body of the court and no one to keep an eye on them.

I left the court room and when the jury went back into the jury room I mentioned to Mike that he should have been at the back door and not beside the dais. I was using this point as a training issue for his knowledge.

He immediately turned very red faced and was visibly upset and he snapped at me and said I shouldn’t be saying anything as I didn’t know all the facts. He said the justice had told him to sit at the front with her as she had some copying for him to do. And that he knew everything about his job.

I didn’t want to carry on with this as I knew he was mad so I turned and left. It is my understanding that more happened after I left but I can’t confirm this.

6Mr. Handisyde testified that he did not hear the grievor swear or use profanity during or after his encounter on December 6, 2014. Ms. Macchia testified that at the time of the exchange between the grievor and Mr. Handisyde in the hallway outside court room 305, she and Ms. Rennie were seated about five feet from them. She was asked whether she heard the grievor explain to Mr. Handisyde that the judge had asked him to sit at the front because she had some photocopying for him to do, and told Mr. Handisyde that he should get his facts right. Ms. Macchia replied that all she heard was the grievor repeatedly saying, “Fuck Gord and fuck Julian”. (It is agreed that “Julian” was the court registrar assigned to the trial in court room 305 that day). She testified that at the time Mr. Handisyde had turned and was walking away, and may not have heard the swearing. Asked how many times the grievor repeated the swearing, she replied that she did not count, but it was definitely more than twice. Ms. Macchia testified that at that point she told the grievor “Gord was right”. She did that not to correct the grievor, but to get the grievor to calm down, and stop the swearing. However, the grievor got louder and he kept repeating “Fuck fuck”. She was not sure whether the grievor was directing the swearing at her, but he was looking at her and not at Ms. Rennie. Ms. Macchia testified that as the grievor was not stopping the swearing, she got up and moved closer to the grievor. She was about three feet from him. She moved her hands in an up and down motion, in an attempt to get the grievor to focus on her and calm down. She did not touch the grievor, but the grievor said, “Don’t touch me” and took a step back. Then he pointed a finger at her and said, “And you fuck off”. She responded, “Sorry I am sorry” and the grievor walked away.

7In cross-examination union counsel put to Ms. Macchia, a statement dated December 17, 2014, Ms. Rennie had submitted to her supervisor, Ms. Allen. He pointed out that while Ms. Rennie’s statement is very detailed, it makes no mention at all of hearing the grievor saying “Fuck Gord fuck Julian”. Ms. Macchia responded that all she could say is that she remembered the grievor repeating those words, and that she was trying to calm him down.

8Ms. Macchia confirmed that when she met with Ms. Allen she related what she witnessed and heard, and that at her request Ms. Allen wrote down what she reported. Counsel pointed out that Ms. Macchia’s statement, as recorded by Ms. Allen, also makes no mention of the grievor saying “Fuck Gord fuck Julian”. Ms. Macchia replied that what Ms. Allen wrote down does not include all the details she related, and that Ms. Allen must have summarized what she told her.

9Ms. Rennie identified the statement she provided to Ms. Allen and confirmed that it accurately sets out what she observed on December 6, 2014, except that “some of the chronology may not be exact”. She testified that she and Ms. Macchia were seated in the back hallway near the jury room door. The jury was in the jury room. At the time the grievor and Mr. Handisyde had the exchange she and Ms. Macchia were behind them. From where she was seated, she could see the grievor’s face. Asked what she heard, she replied, “Gord said to Mike that when you are the only CSO in the court room you are to go to the back door”. Ms. Rennie said, “Mike was a bit upset with Gord. He said you need to get the facts straight. The judge asked me to sit at the front because she wanted me to make some photocopies”. She testified that the grievor also told Mr. Handisyde that he had worked for 8 months as a CSO, that he read the manual every day and knew his job, and did not need to be told what to do. Then Mr. Handisyde left. Ms. Rennie testified that she did not hear the grievor say “Fuck Gord fuck Julian”.

10Ms. Rennie testified that right after Mr. Handisyde left, Ms. Macchia told the grievor, “Gord was right”. She testified that it was shortly after that she heard the grievor swear. She referred to the following portion of the statement she submitted:

In the next few minutes the jurors had another question or to elaborate on the one they were asking for. Mike went back up to chambers with the letter and came back down and went directly into the court room to tell Jullian what Her Honour had requested. (counsel is in the courtroom during this) He came back out in the hall, looked at Marie and myself and said he was going back up to get her. Marie said “You should be using the phone at the front where the secretaries sit to call down to Julian” she didn’t get to finish what she was explaining to him when he again stood tall and said “I know my job and I am going to the judge first! “fuck you” he took one step back and said “fuck off, don’t touch me, raised his hands up and again said “just fuck off”, his face was beet red. Marie said “I’m only trying to save you running back and forth. I’m sorry if you think I am being pushy but the phone is up there for us to use so we are not running back and forth”. He said nothing and went up to bring Her Honour down.

11Ms. Rennie testified that when Ms. Macchia told the grievor that “there is a phone right there” if he had to talk to the registrar, it made the grievor angry. She heard him say “Fuck you” three times to Ms. Macchia. She testified that at the time she was about 10 feet from the grievor and could see his face. It was very red and she knew he was very angry. Ms. Rennie was asked if she saw Ms. Macchia advance towards the grievor as if to hit him or use her hands as if to make contact with him. She replied “no”, and demonstrated an up and down hand motion as what she saw. Ms. Rennie was asked by employer counsel whether she observed Ms. Macchia jumping up and down, pointing her finger at grievor’s face, and saying why are you so late, when the grievor returned after speaking to the registrar. Ms. Rennie replied that she did not see or hear any of that. Ms. Rennie testified that when Ms. Macchia spoke to the grievor, she was “fairly close” to him, but she was not threatening him. She was trying to be quiet because the courtroom and the jury room were close by. When the grievor was swearing at Ms. Macchia he was not “yelling”, but was still loud considering how close the court room and jury room were.

12In cross-examination, Ms. Rennie stated that when she heard the exchange between Mr. Handisyde and the grievor on December 6^th, she was seated 12 to 15 feet from them, and Ms. Macchia was seated close to her. She reiterated that she did not hear the grievor say “Fuck Gord” or “Fuck Julian”, as Mr. Handisyde was leaving following the exchange or thereafter. She confirmed that she did hear Ms. Macchia say to the grievor “Gord was right”, but she was not sure whether it was before the grievor went up to the judge’s chambers or after he returned.

13Ms. Rennie testified that it was sometime after that comment to the grievor by Ms. Macchia that the grievor came downstairs after talking to the judge and went to speak to the registrar. It was at that time the exchange about the telephone took place. Asked when the grievor swore at Ms. Macchia, she said “She said Mike you know there is a phone on the 6^th floor where secretaries sit. It is there for CSO’s to use to call down to the court room. So you don’t have to run up and down. That’s when Mike said “Fuck you” to Maria”.

14Ms. Rennie said that at the time the grievor and Ms. Macchia were about 4 feet apart. Ms. Rennie was 4 to 5 feet from Ms. Macchia. Asked how Ms. Macchia was moving her hands up and down she said that it was “like in normal conversation and telling Mike to be quiet”. She testified that the whole exchange between Ms. Macchia and the grievor lasted about 2 minutes. Counsel suggested that since she was looking at Macchia’s back, she could not have seen clearly what Ms. Macchia was doing with her hands. She stated that she was seated at a slight angle behind Ms. Macchia, not directly behind her. So she could see her hands. She was “trying to use both arms and trying to keep Mike calm because he was getting angry”.

15Ms. Rennie agreed that there is no policy, and there is nothing in the manual, requiring that CSO’s use the 6^th floor telephone to call the court room, but added that that is the usual procedure and that the telephone is there for that purpose. She agreed with the suggestion that while a CSO could use phone, and it may be better and more efficient to use the phone, there is no requirement that a CSO “must” use it.

16Ms. Rennie agreed that she did not make any notes about the December 6^th incident, and her statement was sent only after Ms. Allen’s request. She stated that following the incident she deliberately left the grievor and Ms. Macchia alone in the lunch room to give the grievor an opportunity to apologize to Ms. Macchia. She agreed that she felt it was safe to do so because despite what had happened, it was unusual for the grievor to act that way.

17The CSO Supervisor, Ms. Winsome Allen testified that she did not work on Saturday December 6, 2014. She came to work on Monday December 8^th and found a voice-mail left on December 7^th by Ms. Macchia that she had “an exchange of words” at work on December 6^th with the grievor. She asked Ms. Macchia to meet with her. When they met, she took notes as Ms. Macchia described the incident. Following the meeting, she considered the incident to be very serious and contacted her manager, Ms. Marion Marrone. She sent an e-mail to Ms. Rennie requesting that she meet her, but Ms. Rennie replied that she was already back home and would meet the next day. She spoke to Mr. Handisyde and asked him to submit a written statement about what transpired. She believed that it was on the Friday, when the grievor was next at work, that she directed the grievor to provide a written statement. While she passed on the information about the incident she received from the various individuals including written statements to Ms. Marrone, she played no role in the decision to discharge the grievor.

18Ms. Allen confirmed under cross-examination that she made notes on a spiral bound book as Ms. Macchia related to her what happened on December 6^th, 2014. Later, she used those notes and prepared a typed statement. Both her hand written notes and the typed statement were filed as exhibits. Under cross-examination she confirmed that neither has any reference to Ms. Macchia reporting that the grievor stated words to the effect “Fuck Gord fuck Julian”.

19Ms. Marrone testified that at the allegation meeting on December 23, 2014, she commenced by reading the allegation letter dated December 18, 2014 which had been provided to the grievor, and giving the grievor an opportunity to respond to the allegation. She testified that significant time was spent going back and forth with the grievor because the grievor simply kept saying “nothing happened in courtroom 305”. Finally, the union representative and the grievor went out of the meeting room. Upon their return it was clarified finally that the incident in fact took place in the hallway outside court room 305 and not in court room 305 as the allegation was worded. Then the grievor took the position that he would only respond to the allegation if Ms. Marrone was prepared to re-word the allegation letter. She agreed and the meeting proceeded. Ms. Marrone testified that she felt that the grievor was being obstructive by focussing on a technical detail. She said that had the grievor simply pointed out immediately that the incident took place outside the courtroom and not in the courtroom, the time wasted going back and forth would have been avoided.

20Ms. Marrone testified that the grievor admitted at the meeting that he used the words “fuck off” on December 14, 2014, directed at Ms. Macchia. When she asked whether he felt it was appropriate to direct those words at a co-worker, the grievor’s response was to the effect, “Fuck off is not a nice word. But that’s how you get your point across to someone with that background”.

21Ms. Marrone testified at length about two written statements the grievor had provided in responding to the allegation. They described numerous past instances where the grievor had been allegedly offended by a number of his co-workers. Ms. Marrone testified that in describing these instances the grievor used several derogatory terms to describe his co-workers, including, “helicoptering”, “Troll”, “Boot Camp Sergeant Major, Type A personality”, “self-appointed straw bosses”, and “house angel street devil”.

22The grievor concluded his second written statement with the following:

What do I want? I am requesting that employees that provisionally take it in their heads to instruct or monitor other employees, be fully trained in all aspects of adult education, psychology, customer service, critical thinking and soft skills.

I request that all employees relate to others with respect and dignity and in a spirit of co-operation that is within the Workplace Violence Prevention Policy. Also that the Helicoptering, Trolling, Sergeant Major mentality, and hi-jacking of others hours cease immediately.

From what I have been told, Winsome ALLEN, Diane CHAPPELL and Joan ZAMMIT are the three supervisory personnel to whom CSOs report. A spirit of co-operation is extended to other supervisors such as the Sheriff, security and Ontario Court of Justice et al.

I look forward to discussing this matter further. I feel this is a management dilemma. I request an apology for the offensive acts described in the memo. In the alternative, I request your support for me to handle this issue myself, I hold no grudge or animosity towards any person mentioned in this memorandum.

23Ms. Marrone testified that at the time she received the grievor’s second written submission she had not made a decision on what action to take with regard to Ms. Macchia’s complaint about the grievor’s behaviour. After considering the grievor’s conduct and comments at the allegation meeting, and his two written submissions, particularly his derogatory name calling of his co-workers, she came to the conclusion that the grievor did not have the skills or ability to continue in his position as a CSO. She testified that the grievor had sworn at a co-worker using profanity outside the jury room where the jury was deliberating, and yet did not see he did anything wrong. Considering all of that she decided that discharge was justified.

24In cross-examination, Ms. Marrone agreed that in his 8 to 9 months of employment as a CSO, the grievor would have worked with some 38 CSOs and 70 court reporters, as well as court registrars and judges, and that prior to the December 6^th incident, she had not received any complaint from any of them about the grievor’s behaviour. Ms. Marrone reiterated that at the allegation meeting she felt that the grievor was seizing on a way to avoid responding to the allegation because of a technicality. She agreed, however, that once the letter was amended, the grievor responded to the allegation and admitted that he swore at Ms. Macchia. Union counsel put to Ms. Marrone that the grievor’s position was that he told Ms. Macchia to “fuck off” because she was getting close to him and he was afraid she would hit or attack him. Ms. Marrone disagreed and stated that the grievor’s version was that Ms. Macchia approached him with her hands moving up and down, after the grievor had pointed his finger and swore at her, not before the swearing.

25Ms. Marrone testified that she reviewed the performance evaluation of the grievor done by Ms. Allen in September, before deciding to discharge the grievor. She agreed that the grievor had done well in the performance evaluation, but added that due to the complete lack of remorse on his part, and his name calling in responding to the allegation, she was very concerned about the safety of the grievor’s co-workers “going forward”. She stated that while the grievor claims that he feared that Ms. Macchia was going to hit him, she found it hard to believe given all of the information she was aware of, particularly her knowledge about Ms. Macchia and her physical size compared to the grievor. She reiterated that the grievor had not raised any concern at all about any of his colleagues. Yet he “called everyone names” when responding to the allegation he was faced with.

UNION EVIDENCE

26The grievor was questioned at length about his two written statements. It suffices to note that he provided definitions for the terms he used to describe some of his co-workers, and stated that he used those terms because in his view they “best described” the individuals concerned.

27While the grievor described the whole shift on December 6, 2014 in minute detail, the relevant testimony is as follows. That day the grievor was assigned to court room 305 as the lead CSO. The jury wanted to view certain video evidence. The grievor was the only CSO in the court room. Therefore, he rotated between sitting at the “back door”, which was the public entrance to the court room, and sitting to the left of the dais where the judge sat. The judge then asked him to stay at the dais because the lawyers had documents that had to be photo copied. He did not want to go back and forth between the front and the back door because to do that, he would have had to walk in front of the jury box, blocking the jury’s view of the video. Therefore, he sat at the front as the judge had instructed. The grievor noticed that at some point Mr. Handisyde came in to the court room, sat at the back for 3-4 minutes and left. Shortly after the court adjourned, the grievor escorted the judge to her office. Mr. Handisyde arrived at that time to get the food order for the jury. The grievor testified that Mr. Handisyde told him “in his usual troll manner”, “you should be sitting at the back of the court room”. The grievor replied to the effect, “You don’t know what you are talking about. Just mind your own business. I know what I am doing”. Mr. Handisyde took the food order and left.

28According to the grievor, around 12:45 p.m. Ms. Macchia informed him that the jury wanted to go outside for a smoke break. She asked the grievor to guard the jury room while the jury was outside, and he agreed to do so, but stated that he first had to inform the court registrar in court room 305 where he would be in case he needed him. When he went to the court room the registrar was talking on the telephone. He waited a few minutes and left a note stating where he would be. When he exited the court room, he saw Ms. Macchia and Ms. Rennie seated at a table in the hallway. According to the grievor, Ms. Macchia “said in a loud voice, words to the effect “What took you so long”. Then she started to, the best way to describe is, “dance”. She was jumping up and down, pointing her hands to the floor and to the ceiling”. He said, “She was going on about, I took too long, I was late, and she said “to hell with Julian” or words to that effect. Then she moved in to my personal space. Both her hands were open and raised up”. The grievor demonstrated with hands open and in front of his own face. The grievor testified, “Then I told her to fuck off in a loud voice. She moved in a little closer. I told her to fuck off again. Next I felt she was possibly going to do something. So I said, “Don’t touch me”. I was waiting for her to make her next move, to see what I should do next. She then apologized three times. She said, “Mike, I apologize” three times”. She seemed a bit upset. Absolutely yes. Then she left and turned the corner out of my view”.

29The grievor testified that at the allegation meeting on December 23, 2014, when Ms. Marrone read the allegation letter, he “disagreed with the allegation in relation to location. It stated the event happened in court room 305. But nothing happened in court room 305”. Asked why he insisted on changing the allegation letter, the grievor replied, “Because it was incorrect and not true. I had a conversation with Perry, (the union representative) during a break and decided that the error should be corrected before I respond”. When the Board asked the grievor what the error was, he explained, “the letter stated I was involved in an event in court room 305. I thought she was confused with someone else’s event that took place in the court room, because my event was in the hallway. So I said nothing happened in the court room”.

30The grievor was asked by union counsel whether he agreed with the employer’s decision to terminated him. He replied, “No, I didn’t do anything untoward. I didn’t do any of the allegations. Maria was the instigator. That’s the person who should be disciplined”. Asked whether he agreed with the way the employer handled the situation, the grievor responded, “No. I feel the matter should’ve been dealt with at a round table discussion where everyone can discuss the situation and come to a suitable conclusion”.

31In cross-examination, the grievor stated that when Ms. Macchia was “dancing” and saying “you were late” and “to hell with Julian”, she was about 5-7 feet away from him. Subsequently when she moved into his “personal space”, she was about 3 feet from him. The closest she got to him was 2½ to 3 feet. Asked why he then told her to “fuck off”, the first time, he said “I wanted to re-inforce that I didn’t want her to carry out her intentions whatever they were”. Asked what he would have done if Ms. Macchia had taken one more step towards him, he said, “I would’ve grabbed her and put an arm lock around her. I’d use the least force needed to subdue her”.

32Employer counsel referred to the grievor’s testimony about the training he had received on conflict resolution while working in the police, and asked whether he believes that telling a colleague to fuck off is an effective way of conflict resolution. He replied, “Yes. To let them know you are serious. The last thing I want is physical violence. Since my last day in the police force, this was the first time I was threatened with physical violence”. He testified that his swearing had the desired effect because by the time she left, Ms. Macchia had calmed down “from a 5 to a 2”, and “we didn’t get into a further assault”.

33Employer counsel referred to the grievor’s first written statement which was dated December 15^th, 2014. Although no allegation had yet been made against him relating to the December 6^th incident, counsel suggested that he wrote it because he knew that his behaviour on December 6^th was wrong, and because he was worried about losing his job. The grievor disagreed. His position was that the statement was meant to be a complaint from him against his co-workers, Ms. Macchia, Mr. Handisyde, and another individual Ms. L.S. He had verbally made the complaint to Ms. Allen in her office. Ms. Allen told him that he should handle personal issues with co-workers on his own. Since no action was taken by management and the matter was dragging on, he decided to complain formally in writing. He testified that his written statement had been “in the works” for a while. He prepared the document on December 9, 2014, but did not get it to Ms. Allen until December 15^th because he missed work due to days off and sickness. He agreed that he had a fax machine at home, but he wanted to deliver a paper copy directly to Ms. Allen. He insisted that as of December 9^th, he did not have any suspicion that the employer had received any complaint against him relating to December 6^th.

34Counsel asked the grievor, why he read off his first written statement at the allegation meeting, if it was a complaint unrelated to the allegations against him. The grievor replied that he did not read off that statement. Counsel put to the grievor that he read large portions of that document “verbatim” and suggested to the grievor that he tends not to recall some salient things. The grievor replied, “It’s been a couple of years. But no. I don’t think so. I read off another document”.

35Counsel put to the grievor that at the allegation meeting he wanted an opportunity to provide additional information in response to the allegations, Ms. Marrone agreed, and he provided a second written statement dated December 24, 2014. He agreed. Counsel pointed out that the second statement was the same as the first, except that he attached his resume to it, and provided additional information about the courses he had taught, his professional development and transferable skills, an excerpt from a Human Rights Commission document and definitions of certain terms. She put to him that the second statement in large part is a repeat of the first. The grievor replied, “Yes. I incorporated what I had sent to Ms. Allen. Yes. I wanted to let Ms. Marrone know I had made the complaint to Ms. Allen since I didn’t know if Ms. Allen had told her.”

36Employer counsel pointed out that in describing the December 6^th incident, the grievor had made no mention at all in either written statement, that he had yelled or told Ms. Macchia to fuck off, and asked why. The grievor replied that he had left that out in error, that when he realized the error he prepared an “addendum” to correct it. Asked if he sent that addendum to the employer, he replied that he did not, but pointed out that at the allegation meeting he admitted that he swore at Ms. Macchia.

37Employer counsel asked the grievor why he stated in his written statements that some of his co-worker should attend a workshop “to be sensitized to the proper use of personal space and haptics”. He replied that people should be made aware that in Canadian culture touching is not generally acceptable. While it may be different in Europe and Asia, in Canadian culture there has to be a comfort space. He stated that on December 6^th, Ms. Macchia had moved into his personal space when talking to him. Asked whether that was not in keeping with Canadian culture, he replied, “yes. In Canada that’s how we are”, and added that it is also not sanitary.

38The grievor was asked why he added in his second statement, a formal document which under Ms. Macchia’s name (with her age in brackets) states, inter alia that she “Did without consent of Michael Ryan apply force intentionally directly or indirectly”, and “Maria Macchia intended to apply force and it was not by reflex or carelessly.” The grievor replied that he drafted that in the format used by the police to lay a charge because it includes all relevant information and is easy to understand. He answered in the affirmative, when asked whether it is his position that on December 6^th Ms. Macchia applied force on him and attempted to assault him.

39Counsel referred to the grievor’s description of Ms. Macchia’s complaint as “theatrical”, and asked whether it is his opinion that she should not have complained about him telling her to fuck off while at work. He replied, “She had no right to, because she instigated the whole thing, and was in a position to assault me. I don’t know why or what she was thinking”. When counsel asked, “So she had no right to be upset or to complain?”, he replied “she can complain and I have a right to defend myself”.

40Under cross-examination, the grievor agreed that he knew that the trial in court room 305 was the only court in session on December 6, 2014, and that on that day he had an incident in which he yelled and swore at a co-worker. When counsel suggested that in those circumstances, he was not being truthful when he testified that when he read the allegation letter he thought that Ms. Marrone may be referring to someone else’s incident in the court room, and had no idea that the allegation was in relation to his swearing at Ms. Macchia. The grievor replied, “The letter was incorrect. I was concerned what else in the letter was wrong”. Counsel pointed out that, when he kept repeating that nothing happened in court room 305, Ms. Marrone asked whether he yelled and swore at a co-worker anywhere in the court house, he still refused to answer. The grievor’s response was, “By this time I felt the meeting had turned into an investigation meeting”. When asked why he did not simply say right at the start that it happened in the hallway outside courtroom 305 and not in courtroom 305, the grievor replied that it was not his job to correct Ms. Marrone.

41Counsel pointed out that at the allegation meeting Ms. Marrone asked him whether he considered that Mr. Handisyde may have been trying to assist him as part of team work, when he told him that he should sit at the back of the court room when he is the only CSO there, and he replied that Mr. Handisyde was a “troll” and just an instigator and meddling. Counsel asked if he still maintains today that it was appropriate to call a colleague “a troll”. The grievor replied, “Yes”. Counsel asked the grievor why he had claimed in his second statement that he had been denied natural justice. He replied it was the error in the allegation relating to location, which caused him to think whether there was some mix-up with another incident involving someone else.

42Counsel pointed out that in response to the allegations against him, the grievor had demanded that Ms. Macchia apologize to him and asked, “Apologize for what?” He replied, “For the jumping up and down and her hand movements I demonstrated here. Also for some of her untrue statements”. Counsel pointed out that he had referred to Ms. Macchia “a house angel, street devil”, yelled at her and told her to “fuck off”, and asked, whether he thinks he should apologize to her. The grievor replied, “In no way, shape or form. I was doing my job under my job spec as I am empowered to do”. Asked whether he feels he did “anything that contributed to this event”, the grievor said, “no”.

43Counsel put to the grievor that while Ms. Macchia may have been angry and upset when told to “fuck off”, she did not respond aggressively. The grievor disagreed. He said, “Her dancing and hand movements and her moving towards me like to grab me by my neck”. Asked whether he felt she was going to strangle him, he replied, “To attempt to strangle”. Asked if he feared for his life, he said, “I was in fear of being injured”. Counsel asked, “You want this Board to believe that you believed she was going to attempt to strangle you and you were in fear?”. He replied, “I can’t read her mind. So I can’t say for 100%. But by her actions it appeared she was going to choke, push or do something because she was moving towards me”.

44Counsel referred to the grievor’s written statements, where he refers to Ms. Macchia as a “Boot camp Sergeant Major Type A personality. Best described as a dysfunctional inadequate person masquerading as a leader with a great need for power and control over others, usually through a threatening style of interaction”, and asked why he formed that opinion of her. He replied that Ms. Macchia had tried that before and it had worked. Counsel pointed out that the employer witnesses had testified that Ms. Macchia was well respected and there had been no complaints about her. She asked what information he relied on to say she had previously engaged in a threatening style of interaction successfully. The grievor replied, “I go by hearsay and gossip from people I know to be reliable that this dancing had occurred previously”. Counsel put the grievor that he was fabricating evidence as he sees fit in order to protect his job. He disagreed.

45Counsel pointed out that in his written statements, the grievor had alleged that on 05 December 2014 at some point Ms. Macchia told him to “Fuck off” and asked to elaborate on the context in which she said that. The grievor replied, “She was talking about her family. I don’t know if I said something. But she told me to fuck off.” Counsel suggested that his memory appears not to be clear. “Not totally. But I did make notes”. Counsel suggested that the grievor was making up this allegation to explain why he told Ms. Macchia to fuck off. He disagreed.

46Counsel asked the grievor whether the grievor’s defence to the allegation was “unreasonable provocation”. He replied, “yes. She set me up”. Asked to explain, he said that by all of her actions he had set out in his statements, she had set out to undermine his job. Asked “For what purpose”, the grievor replied, “To get me fired, and that’s what happened”.

47Counsel put to the grievor that he disliked Ms. Macchia. He replied that he did not form any opinion about her, and that his concern was about “her actions at various times”. Counsel put to the grievor that in his written statements he had expressed the following opinions about Ms. Macchia. That she was undermining him; that she was provoking him; that she was of an aggressive provocative demeanor; that she was on a quest for personal power and control; that she was a person silently appointed as a leader; that she had contributed to a toxic workplace; that she was an unqualified employee who should not be instructing other employees; that she was a house angel street devil; that she intended to apply force on him and not by reflex or carelessly; that she meant her threat to be taken seriously; that she was physically capable of carrying out her intention; that she was helicoptering; and that she was engaged in social undermining. The grievor agreed with each of those suggestions. When the Board sought clarification as to when he formed these opinions of Ms. Macchia, he replied that most were formed prior to December 6, 2014. Counsel asked whether his testimony is that despite all of that, he did not dislike Ms. Macchia. The grievor replied, “I have no reason to like or dislike her. She did what she did and caused this whole event and I lost my job over it”.

48Counsel referred to the letter of discharge, and asked the grievor whether he admitted at the allegation meeting that he swore at a co-worker. The grievor replied, “yes. That I told her to fuck off twice”. Counsel asked if it is correct that at that meeting he “expressed no remorse for your actions and failed to appreciate that this behaviour was inappropriate in any way”. The grievor replied “yes”. Counsel asked whether the grievor now thinks that his behaviour was inappropriate in any way. The response was, “Not at all. I was defending myself”. Counsel asked, “So you say you were justified”? The grievor answered, “Yes. She provoked the whole thing”. Asked “Do you agree your behaviour was unprofessional?” the grievor replied “Not in these circumstances”.

49Employer Submissions

Employer counsel reviewed the testimony of each of the witnesses. She pointed out that the defence the grievor offered to the employer in responding to the allegation was that of provocation. Then during his testimony he came up with self-defence, claiming that he acted in fear of being strangled by Ms. Macchia. That position is contradicted by Ms. Macchia, who testified that she was moving her hands, not aggressively, but in an attempt to calm down the grievor. Ms. Rennie, who witnessed the incident confirmed that Ms. Macchia did not act aggressively at all. She submitted that the grievor was not a credible witness and fabricated evidence as he saw fit. She urged the Board to consider which version has a “ring of truth” in light of all of the evidence.

50Counsel pointed out that the grievor has admitted that he told Ms. Macchia to “fuck off” twice. While the union conceded in its opening statement that the grievor’s conduct justified some discipline, the grievor did not do that. His position during testimony was that Ms. Macchia had provoked him, and that provocation justified his swearing at her. On that basis, he proudly repeated that he had done nothing wrong and had no reason to apologize or be remorseful. In fact, he expected Ms. Macchia to apologize to him. Citing case law, employer counsel submitted that even if the grievor’s testimony relating to the alleged past instances of provocative behaviour by Ms. Macchia is accepted, such conduct does not provide him with a defence, because the law is that, to be a defence, provocation has to be instantaneous. The grievor, to the contrary, had formed a negative opinion of Ms. Macchia based on his past experiences with her, and took the opportunity to swear at her on December 6^th. She urged the Board to conclude that Ms. Macchia did nothing on December 6^th to provoke the grievor so as to justify his yelling and swearing.

51Counsel submitted that the grievor’s conduct was serious. She urged the Board to consider that the incident occurred in a court house, and outside the jury room where a jury was deliberating. She pointed out that the grievor’s position description as a CSO required him to act respectfully and professionally at work. Swearing and yelling at a co-worker is not consistent with that requirement.

52Counsel conceded that the grievor had no previous discipline. However, that must be seen in light of the fact that he had been employed with the employer for only nine months. She submitted that despite the absence of prior discipline, the grievor exhibited a complete lack of remorse and repeatedly refused to acknowledge any wrong-doing. Instead, he portrayed himself as the innocent victim and vilified his co-workers. She submitted that had the grievor admitted that his behaviour was unacceptable in a timely fashion, “this case could have gone the other way”. However, given many opportunities to accept responsibility for his wrongful conduct, he refused. In those circumstances, there is no basis for optimism that the grievor would not repeat his behaviour if he is reinstated with a lesser penalty.

53Union submissions

Union counsel reiterated the concession he made in opening that the employer had just cause to discipline the grievor, and that the only issue is whether the penalty of discharge was appropriate. It was the union’s position that in all of the circumstances, discharge was excessive. Union counsel made submissions to the effect that the employer did not discipline the grievor for his “name calling” in the two written statements, or his conduct at the allegation meeting and that the employer is not entitled to rely on those as grounds for discipline. He reviewed the evidence in relation to the exchange between Mr. Handisyde and the grievor on December 6^th. He argued that during that exchange the grievor did not engage in any culpable behaviour. The allegation that after Ms. Handisyde left the grievor made a comment to the effect “Fuck Gord, fuck Julian”, is made only by Ms. Macchia. The grievor denied making any such comment. At the time Ms. Macchia and Ms. Rennie were seated at a table within an arm’s reach of each other. Mr. Handisyde had left and did not testify that he heard that comment. Ms. Rennie also testified that she did not hear such a comment. The union submitted that if such an unusual profane comment was repeated at least twice as Ms. Macchia claims, Ms. Rennie would recall that. He also pointed out that when Ms. Macchia reported the incident to Ms. Allen on December 8^th, she made no mention of this serious allegation. Ms. Allen’s notes nor the statement she prepared based on the notes refers to it. Counsel urged the Board to find that this allegation is not substantiated.

54Counsel asked the Board to consider what led the grievor to yell and swear at Ms. Macchia. When the grievor returned from the court room, the grievor was confronted by Ms. Macchia asking why he was so late. She was jumping up and down with her hands up. That was when the grievor told her to fuck off. Then Ms. Macchia moved closer, still with her hands up. The grievor pointed a finger at her, took a step back and said, “Fuck off. Don’t touch me”. Counsel argued that the fact that the grievor took a step back and that he said “don’t touch me” is consistent with the grievor’s testimony that he feared that Ms. Macchia would “hit or at least touch” him. Therefore, in determining the quantum of discipline, the fact that he acted in response to Ms. Macchia’s aggressive behaviour should be considered as a mitigating factor. It was submitted further that other than the December 6^th incident, there is no evidence of yelling or swearing by the grievor. In fact, Ms. Rennie testified that she was surprised by the grievor’s conduct because she knew him to be respectful and professional.

55The union also submitted that discharge of the grievor should not be upheld because the employer’s investigation into the complaint lodged by Ms. Macchia was biased. It was submitted that Ms. Marrone who had known Ms. Macchia for only 2½ years and had not directly supervised her. She testified that she knew Ms. Macchia to be well respected and always helpful and “motherly” to her co-workers. In believing Ms. Macchia’s assertions, Ms. Marrone relied on her preconceived positive opinion of Ms. Macchia, and did not believe the grievor’s explanation that he had reacted to aggressive behaviour by her.

56Secondly, the union submitted that Ms. Allen’s investigation of the incident was biased. Counsel pointed to an e-mail Ms. Allen wrote to Human Resources staff where she states that the grievor should apologize to Ms. Macchia. It was argued that as soon as the complaint was received Ms. Allen had pre-judged that the grievor was guilty. Counsel also pointed out that Ms. Allen promptly contacted Mr. Handisyde and Ms. Rennie to get their statements, but did not contact the grievor until later.

57Counsel argued that Ms. Marrone’s testimony that she was concerned that the safety of the grievor’s co-workers would be at risk if the grievor is allowed to continue working because he might repeat his conduct or “do worse”, is not supported by the evidence. The grievor had never yelled, acted aggressively or engaged in any swearing before or after the December 6^th incident. Ms. Rennie had deliberately left the grievor and Ms. Macchia alone right after the swearing incident, hoping that the grievor would apologize to Ms. Macchia. She testified that she was not concerned about Ms. Macchia’s safety when she did that.

58Union counsel conceded that two factors operate against reinstatement. First, the grievor had only 9 months of service. Second, he failed to take any responsibility or show any remorse for his misconduct. However, he disagreed with employer counsel’s submission that corrective discipline is not appropriate in the circumstances. He argued that the Board should reinstate the grievor and substitute a lesser, but still serious, penalty, including any conditions the Board may deem necessary. Pointing out that “no one had previously told the grievor that this type of conduct is inappropriate”, he argued that such a penalty would send a strong message to the grievor that his conduct was not acceptable and should not be repeated.

DECISION

59In any discipline case the Board is required to first determine whether the employer had just cause to impose any discipline on the grievor, and if the determination is in the affirmative, proceed to decide whether the particular discipline imposed was appropriate in all of the circumstances. Although the union has conceded the first issue, for the Board to determine the second issue it is necessary to examine the nature of the culpable conduct which gave rise to just cause. The Board has determined that the grievor was not disciplined for the content of the two written statements he submitted in response to the allegation letter or his conduct at the allegation meeting. He was discipline for his behaviour on December 6^th. The written statements and the grievor’s conduct at the meeting influenced Ms. Marrone’s decision that he was not suitable to continue as a CSO, and that the appropriate discipline is termination.

60The parties spent significant time leading evidence as to whether the grievor was justified in sitting at the front of the court room, whether Mr. Handisyde was entitled, as a co-worker, to tell the grievor that he should have been sitting at the back of the court room, whether Ms. Macchia acted within her authority when she told the grievor that he should use the telephone upstairs rather than running up and down the stairs, and that Mr. Handisyde was right. Substantial evidence was also led about the provisions of the Policy and Procedure Handbook and the employer’s policy and expectations on these issues. The Board does not find it necessary or useful to review that evidence. Assuming, without finding, that the grievor was right, and that his co-workers had stepped outside the boundaries of their authority, that does not make the grievor’s alleged responses appropriate. The Board will address below whether the grievor’s conduct is excused and justified on the basis of a defence of provocation. However, short of that, while the co-workers’ conduct may well have been annoying and offensive to him, the grievor was not entitled to take the law into his own hands as he did, in addressing his concerns. No workplace can function if governed by the law of the jungle. This is even more so in a court house. If an employee is offended by the behaviour of a co-worker and wants that behaviour to stop, he/she could tell the co-worker in a calm and civil manner that he/she did not appreciate that behaviour and ask that it stop. If he/she does not wish to do so, the proper course of action is to bring the concern to the attention of management, and request that management take steps to address it. If management fails to act and the employee is of the view that any of his collective agreement or statutory rights have been compromised, he/she has the right to grieve. What he/she is not entitled to do is address his concern by yelling and swearing at the co-worker using profanity.

61Turning then to the first alleged culpable behaviour, namely that the grievor stated “Fuck Gord, fuck Julian” as Mr. Handisyde left, the Board agrees with union counsel that this allegation is not substantiated. At the time of this alleged statement, there were three individuals present. Ms. Macchia and Ms. Rennie were seated at a table close to each other. The grievor was approximately ten feet away. The grievor vehemently denied that he made the statement. Ms. Rennie testified that she did not hear such a statement by the grievor. The only evidence that he did make that statement came from Ms. Macchia. Employer counsel suggested that Ms. Rennie either did not hear the comment or does not recall it. The Board disagrees. Ms. Rennie was seated right beside Ms. Macchia and would have heard it if Ms. Macchia heard the comment at least twice, as she testified. The evidence is that it is not common to hear in a court house a CSO use the “f” word in reference to another CSO or a court registrar”. Ms. Rennie was focussed on the exchange that was going on between the grievor, Ms. Handisyde and Ms. Macchia. It is extremely unlikely that Ms. Rennie would forget such an usual occurrence either.

62More significantly, the evidence is that Ms. Macchia met with her supervisor, Ms. Allen, and related in detail her version of what occurred on December 6, 2014. Ms. Allen took notes of what she related to her, and based on those notes, prepared what amounted to Ms. Macchia’s complaint. There is no reference whatsoever in Mr. Allen’s notes or the complaint she prepared, that Ms. Macchia mentioned to her the alleged swearing by the grievor in reference to “Gord or Julian”. Ms. Macchia, during her testimony stated that while what Ms. Allen had written down was generally an accurate description of what she related, she had left out some detail. The Board does not consider the statement imputed to the grievor to be a “detail” which Ms. Allen may have edited out. Indeed, employer counsel did not attempt to elicit testimony from Ms. Allen that Ms. Macchia did in fact relate the alleged statement although it is not reflected in what she documented.

63Therefore, that leaves the Board with the allegation, which is admitted by the union, and the grievor, that the grievor yelled and swore at Ms. Macchia. There is some discrepancy in the evidence as to exactly how many times the grievor swore at Ms. Macchia. It is also not clear as to whether the grievor swore in response to her telling him that “Gord was right” as Ms. Macchia testified, or in response to Ms. Macchia “dancing up and down etc.”, claiming that that the grievor had been late returning from the court room, as the grievor testified. It is unnecessary for the Board to resolve that conflict, because in its view, the extent of the culpability, and the merit of the grievor’s claim to a defence of provocation and/or self-defence, are not materially affected by those differences. The Board will assume, without finding, that on those issues, the grievor’s evidence is correct.

64The Board first turns to the issue of provocation. In advancing provocation as justification and/or mitigation for the grievor’s yelling and swearing at Ms. Macchia on December 6^th, the union relies on (1) five past incidents of interaction between Ms. Macchia and the grievor, and (2) Ms. Macchia’s behaviour on December 6^th. For the present purposes, the Board will assume, without finding, that the following past incidents took place as alleged by the grievor, except the alleged incident on December 5, 2014, which will be addressed later in the decision.

65While the grievor described the past incidents in detail, the gist of the alleged provocative conduct by Ms. Macchia is as follows:

• On November 2014, while the grievor was assigned to, and performing, two jobs simultaneously, Ms. Macchia “came into court room 212 and in a loud animated frenzy complete with finger pointing gesticulations demanded that I call Winsome to complain about doing both jobs, as CSO with the judge and CSO on the rear door. She also stated that I was making others look bad by walking too fast to the photocopier from the Registrar. She stated that I was taking work away from others and that some of the older CSOs could not walk as fast. She also said that the Registrars can do their own photocopying. In a forceful manner using her hand to mimic a telephone she repeatedly stated in a loud voice, “phone Winsome now”. My response was that I had no complaint to make. I told her that if she had a complaint to make then to make it herself”.

• On November 25, 2014, the grievor was in Ms. Allen’s office discussing a complaint he had about another co-worker, when Ms. Macchia “burst in” and interrupted. Ms. Allen commented that “Maria is so funny” and was chatting and laughing with Ms. Macchia”.

• On November 27, 2014 (tentative date) the grievor was checking identification for members of the jury in the jury room. Ms. Macchia burst in and shouted, “Stop socializing and wasting time. We need the first five at the rear court room door right now”.

• At another point in time she told me that my position as Lead CSO is called Top Dog. “We call it that but I’m not letting you be Top Dog”, she told me. This indicates to me that her mission is a wilful attempt to invalidate or discredit my abilities as a CSO. I find this offensive.

• On 05 December 2014 at some point she told me to “Fuck off”. Why? I don’t know. She made sporadic comments throughout the span of 05/06 December 2014 that included stories about her family, statements about not enough hours of work, also statements about getting rid of the older CSO’s so the younger ones can get more money. This I found offensive and certainly contrary to the Ontario Human Rights Act respecting age and AGEISM.

66It is to be noted that the grievor had not raised any of these past incidents prior to December 6, 2014. During his testimony, the grievor attempted to characterize his first statement as his complaint that had been “in the works for a while”, and not a response to the allegations against him. He pointed out that he submitted it on December 15^th, but became aware that a complaint had been lodged against him only when he received the allegation letter dated December 18, 2014. The Board does not accept that testimony. It is clear that the grievor commenced drafting the statement on December 9, 2014, just 3 days after the December 6^th incident. It is improbable that it was mere coincidence that the grievor suddenly decided to make a complaint about past incidents at that time. It is more likely that he realized that he may be in trouble for his swearing at Ms. Macchia, conduct also witnessed by Ms. Rennie, and decided to develop a defence. The grievor submitted a second written statement the day following the allegation meeting. He admitted that this was additional information he provided in response to the allegations against him. Interestingly, he included his first statement as part of that response. This supports the conclusion that his first statement was pre-emptive action on his part in anticipation of a complaint from Ms. Macchia against him.

67The alleged past incidents or Ms. Macchia’s alleged behaviour on December 6^th cannot operate to completely excuse the grievor’s swearing at Ms. Macchia in the court house. As the authors Brown & Beatty in Canadian Labour Arbitration write at 7:4412, “Although provocation is a factor arbitrators have considered in many cases, it can almost never completely exonerate an employee”.

68Therefore, the issue is whether there was provocation that would operate as a mitigating factor in all of the circumstances. As already stated, particularly in a unionized environment, where a co-worker does something offensive or irritating towards another, the latter has recourse to address that. He/she cannot resort to self-help to correct the co-worker by lashing out with profane swearing in the workplace. Therefore, the behaviour of Ms. Macchia on December 6^th, even as described by the grievor, was not so serious as to provoke the grievor into the extreme reaction he exhibited. The past incidents obviously irritated the grievor. He felt that Ms. Macchia was interfering with how he was doing his job and acting as if she was his superior. Even if he was reasonable in feeling that way, rather than addressing his concern through the proper channels, over a period of time he formed a very negative opinion of Ms. Macchia. When on December 6^th, she told him about using the phone and that Mr. Handisyde was correct about the requirement to sit at the back of the court, that was the last straw for him. He lost control of his temper and lashed out.

69If the evidence establishes that the grievor swore and yelled at Ms. Macchia to stop a possible physical assault, that certainly would have constituted a valid defense. In fact, it may have been a rare situation where the provocation would fully exonerate the grievor. However, the Board concludes that this claim by the grievor that he acted out of fear of being strangled or otherwise assaulted by Ms. Macchia was a complete fabrication he came up with “on the fly” during his testimony. If the grievor had honestly believed that he was in any kind of physical danger as he claimed in testimony, that would have been his strongest defense. Particularly with his experience in the police, he would have known that. Yet he makes no mention in either of his written statements in response to the allegation that he acted in self-defence when he swore at Ms. Macchia. Nor did union counsel raise such a defence in his opening statement. Moreover, the grievor’s own evidence was that he told Ms. Macchia to “fuck off” twice. The first time Ms. Macchia was some 5 to 7 feet from him. Then she began to move towards him, and he repeated the swear words. It is not believable that the grievor felt that he was in any physical danger when he swore the first time, when Ms. Macchia was not even within touching distance.

70For all of those reasons, the Board does not find that there was provocation that would operate to exonerate the grievor, or to mitigate the seriousness of his misconduct. There is also no evidence to support a claim for self-defence. The Board considers the misconduct to be serious, particularly considering that it happened in a court house. The Board must then consider whether there are any mitigatory factors that apply.

71The grievor, by any standard, is a short service employee. At the time of his discharge he had been employed only for approximately 9 months. In that period he had received no discipline. Union counsel admitted that the grievor’s conduct towards Ms. Macchia was inappropriate, and justified a disciplinary response from the employer. Counsel also conceded that the grievor failed to take any responsibility for his misconduct and showed no remorse. He acknowledged that this would be a concern to the Board in considering the union’s request for reinstatement. Nevertheless, union counsel submitted that the Board is still able to apply corrective discipline considering that this is a first offense. He stated that such a substituted penalty would send a strong message to the grievor that his behaviour was not acceptable.

72In Re Walker Exhausts, 2012 CANLII 42290 (ONLA), in discussing a grievance challenging termination, arbitrator Owen Gray at paragraph 27 wrote:

Like the union’s representative, I would hope that anyone in the grievor’s circumstances could be induced to reform by a lengthy suspension. Hope is not enough, however. I am obliged to weigh the evidence to deduce, as best I can, what one might expect from this grievor in future. On the evidence before me I am not persuaded that the risk of a similar or more serious incident is sufficiently low that the grievor’s former co-workers, supervisors and employer should be exposed to that risk.

73Despite the Board’s finding that the grievor’s misconduct was serious, had the grievor taken some responsibility for his behaviour, and given some basis to believe that he would not repeat his offensive conduct, there would have been merit in the union’s submission requesting reinstatement with a lesser, but still serious penalty. Given his discipline free record, the Board would have been inclined to give him “another chance” as union counsel requested. However, in this case, like arbitrator Gray in Re Walker Exhausts, (supra), I am not at all persuaded that “the risk of a similar or more serious incident is sufficiently low that the grievor’s former co-workers, supervisors and employer should be exposed to that risk”.

74At para. 25, arbitrator Gray wrote:

One of the factors arbitrators consider in cases of this sort is whether the grievor has expressed remorse for his misconduct to those adversely affected by it and, if so, how promptly and apparently genuinely that was done. One looks for recognition by the grievor that his wrongdoing has adversely affected others as well as himself and that he had some concern about, or at least understanding of, the impact it had on those others. Implicit in this is a rational belief that early and genuine expression of remorse for his wrongdoing is some evidence that a penchant for such wrongdoing is not characteristic of the grievor.

75There is no evidence that swearing and/or profanity is a characteristic of the grievor. To the contrary, the evidence is that, except for the incident on December 6, 2014, he had been polite and professional. Therefore, if he had acknowledged the inappropriateness of his conduct that on the day in question, and given some indication that it would not happen again, the Board would have been very inclined to accept that as a very strong mitigatory factor in favour of substituting a lesser penalty. However, to the Board’s amazement, that was not forthcoming from the grievor. In the preponderance of cases of this sort, the issue is whether the grievor’s admission of wrong-doing, apology or show of remorse was prompt and genuine. Earlier that happens, greater the indication that the grievor is genuinely remorseful, and greater the chance that he/she would not re-offend. In many cases the admission of wrongdoing is made for the first time during testimony at arbitration. Then there is a concern that the admission may not be genuine, and that it is simply an attempt to save his/her job.

76In the present case, the grievor not only failed to show any remorse promptly, he continued to insist throughout his testimony that he had done nothing wrong by yelling and swearing at a co-worker while at work in a court house. He considered it to be an appropriate and effective method of dealing with a co-worker like Ms. Macchia, who tells him how to do his job. He took the position that he had no reason to regret what he did, and required no training on how to handle these situations in a more appropriate manner. To the contrary, he stated that the target of his yelling and swearing, Ms. Macchia, owed him an apology. She required training, not he. He was present when union counsel in his opening statement conceded that the grievor deserved some discipline, and that the union only takes issue with the severity of the penalty. The grievor, however, directly contradicted that position taken by the union which was reasonable and consistent with arbitral jurisprudence. This is an extreme case, something I had not seen in over thirty years of adjudicating, where the grievor in effect expressed to the employer and to the Board, that if a similar situation arises in the future, he would act in exactly the same manner as he did on December 6, 2014.

77The Board has a further concern that militates against the reinstatement of the grievor. That is his untruthfulness with the employer, as well as with the Board. I review below some examples.

• At the allegation meeting he refused to respond to the allegation. It is clear that while the allegation letter stated that the incident took place “in court room 305”, it actually occurred in the hallway outside that courtroom. At first, he testified that he had a right to have a factually accurate allegation before he had any obligation to answer to it. Thus he offered a technical or legal reason for his refusal to respond. However, later in his cross-examination, he came up with a different explanation. He stated that he did not answer the employer’s questions because he thought that the employer had “mixed up” a different incident of swearing by some other employee. The allegation letter clearly set out the date of the alleged incident. The evidence is that the only trial held in the court house on that day, was the one the grievor had been assigned to. The letter was about an alleged yelling and swearing at a co-worker. The Board finds despite the error about the exact location, that the grievor clearly knew that the allegation letter was about the incident he was involved in that day outside court room 305. When employer counsel cross-examined him as to why he did not simply tell the employer that the incident was outside courtroom 305 and not in the courtroom, he fabricated an explanation to justify his failure to cooperate.

• In his second written submission to the employer, the grievor claimed that Ms. Macchia “applied force” on him. During his testimony, he stated that he feared that Ms. Macchia was approaching him to strangle him, and that he yelled and swore at her in an attempt to stop her from doing that. This is a position the grievor had not advanced during his examination in chief. The evidence is clear that Ms. Macchia did not at any time come into contact with, or even touch, the grievor. The grievor himself did not testify that Ms. Macchia at any time touched him. Therefore, his claim that Ms. Macchia applied force on him is clearly untrue.

• The grievor submitted two written statements, which the Board found to have been made in response to the allegation letter. In those, the grievor claims that on December 5, 2014, the day before the incident, Ms. Macchia told him to “fuck off”. When asked in cross-examination for the context in which she said that, he said he could not recall. When pressed, he could only say that “I might have said something”. It is highly improbable that Ms. Macchia, or anyone for that matter, would tell a co-worker to “fuck off” unless there had been some altercation or disagreement. If such an unusual event occurred, there would have to be a context in which it took place and the grievor would recall that. Ms. Macchia testified that she had never said “fuck off” to the grievor or to anyone else. The Board concludes that this is another example of the grievor fabricating evidence to justify and explain his misconduct.

78By all accounts the grievor is an intelligent, competent and dedicated worker. He could, and likely would have been an asset to the employer given his past education, training and experience. It is therefore very regrettable that he chose to take the position as he did. The grievor’s workplace was a court house. As a CSO, an important part of his position was to ensure that those attending the court house behave in a manner appropriate for maintaining the dignity of a court of law. In the CSO position description, one of the purposes of the position is said to be “maintaining court decorum”. One of the duties of a CSO is “Maintaining Court decorum at all times”. His own conduct on December 06, 2014 is completely antithetical to this expectation. Of greater concern is his continuing belief and assertion that he did nothing untoward by swearing and yelling at a co-worker who behaved in a manner he found to be offensive and irritating. He failed to give any indication that he has, even at the time he testified, understood that what he did was inappropriate.

79It would be inappropriate, and indeed irresponsible, for the Board to reinstate the grievor in the particular circumstances of this case. Accordingly the grievance is hereby dismissed.