[1990] OLRB Rep. December 1308
0822-90-G Ontario Allied Trades Construction Council and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicants v. Electrical Power Systems Construction Association and Ontario Hydro, Respondents
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members G. O. Shamanski and H. Peacock.
APPEARANCES: David Watson, Max McDavid and Douglas Gavin for the applicants; Robert J. Atkinson and Vello Medin for the Respondents.
DECISION OF THE BOARD; November 26, 1990
I
1. This is a referral to arbitration made pursuant to section 124 of the Labour Relations Act. Douglas Gavin ("the grievor") contends that he has been discharged without just cause. Mr. Gavin's employment was terminate(I on September 20, 1989, because he refused to perform certain work to which he was assigned. Ontario Hydro asserts that the grievor was insubordinate, and that discharge is warranted in the case of a construction worker who had only been on the site for about two weeks. The grievor replies that this work refusal was motivated solely by a concern for his health and that, in any event, discharge is a gross over-reaction.
2. A hearing in this matter was held in Toronto on November 15, 1990. The parties were agreed that the Board should deal only with the question of liability; that is, whether there was "just cause" for the grievor's termination, and whether the Board should exercise its discretion to substitute some lesser penalty. The employer reserves its position that even if the grievor had not been discharged on September 20, he would have been permanently laid-off on December 21, along with the rest of his crew. Accordingly, the parties are agreed that the Board should remain seized of the remedy issue, including any questions of mitigation or quantification.
3. This case turns largely on credibility. In considering that matter, the Board has taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity, consistency, and general plausibility of that evidence when subjected to the test of cross-examination, the ability of the witnesses to resist the tug of self interest or self justification in shaping their answers, the extent to which the witnesses were either forthright or evasive when answering pointed questions, and what appears to us to be most probable in all the circumstances. On that basis, we prefer the evidence of Ron Lukes, the grievor's foreman, wherever that evidence is in conflict with that of the grievor. In particular, we prefer Mr. Lukes' recollection of the events precipitating the grievor's discharge.
II
4. The grievor is a truck driver. He was first employed by Ontario Hydro, on a sporadic basis, in the early 1980's. From 1985 to 1989 he worked elsewhere. In the Spring of 1989, however, he reactivated his union membership and was once again referred, through the hiring hall to Ontario Hydro.
5. The grievor worked from mid May to early July in Hydro's lines and stations division. After a short lay-off, he was referred through the hiring hall to the Bruce Nuclear Generating Station. The relevant collective agreement permits a limited "carry over" of service credits, so that at the time of the grievor's discharge, he had a seniority rating of about two months. However, he had only been working at the Bruce site for about two weeks.
6. The grievor's work referral slip requires him to state "any serious illness, operation or injury and physical limitation". Under that heading the grievor has listed "none". The grievor maintains that this form was typed by the union dispatcher, however, we are satisfied that the grievor himself was the source of this information. Accordingly, there was no reason for Hydro to suspect that the grievor was ill or unable to perform the regular duties of a truck driver. Those duties include the occasional maintenance and servicing of vehicles.
7. The grievor testified that in late August he was experiencing abdominal pain as a result of a condition that his doctor tentatively diagnosed as either "diverticulitis" or "colonitus". Indeed, the grievor missed his first scheduled workday because of a doctor's appointment. The grievor testified that he explained the reason for his absence to Mr. Lukes, the following day. The grievor asserts that Mr. Lukes knew about his health condition and knew that it might interfere with his ability to do his job.
8. We do not accept this submission. We are satisfied that the grievor did tell Lukes about the doctor's appointment, but no details were given, nor did the grievor suggest that his ailment might interfere with the performance of his regular duties.
9. On the morning of September 20, the grievor had no driving assignment, so Lukes asked him to repair a damaged truck tire. There is no dispute that this is a heavy and unpleasant task, however, the grievor concedes that drivers are expected to do such work from time to time. This was the grievor's response to Mr. Lukes' request:
"you can send me home or fire me because I'm not changing tires; I did too much of that before when I was there".
The latter part of this retort refers to the grievor's past experience at Ontario Hydro when, as the "junior man", his foreman regularly required him to repair truck tires. The grievor believes that these unpleasant duties should be allocated on the basis of seniority. There is nothing in the collective agreement requiring it, nor is it Mr. Lukes' practice. Lukes told the Board that he assigns spare drivers whatever work is available, and on September 20, a tire required repair. The grievor also believes that Mr. Lukes was acting unfairly, had singled him out, and took a certain pleasure in assigning him heavy work. There is no basis for this belief, although it does explain the grievor's reaction.
10. Following the grievor's outburst, Lukes brought the matter to the attention of the general foreman. Not surprisingly, the general foreman treated the grievor's behaviour as unwarranted insubordination. To that point, there had been no mention of the grievor's health or any medical reason for his work refusal. The general foreman decided to terminate the grievor's employment.
11. The termination documents were given to the grievor a few minutes later. The grievor responded with something about his health condition, but he was not very specific and from Lukes' perspective it was too late anyway since the discharge decision had already been made. Mr. Lukes testified that he did not pursue the grievor's reference to an illness because he did not believe that to be the grievor's real reason for his work refusal. Neither do we. Having heard the grievor's evidence in this regard, we are satisfied that the grievor was refusing to work because the job was unpleasant, he believed that he had been unfairly singled out, and he thought that the work should have been given to a junior employee. The alleged concern about his health was an ex-post-facto rationalization. The grievor knew that employees with health problems could be assigned to light duties, because he had taken advantage of that opportunity in the past. Against that background, we find it particularly significant that the grievor voiced no health concerns in the first instance.
12. Counsel concedes that the grievor refused to work and specifically invited the employer to discharge him, however he argues that, in all the circumstances, discharge is "unjust". The grievor had a good reason for his work refusal, and his only default was in not revealing his illness earlier. Counsel points out that the grievor is a good worker, and pursuant to the terms of the collective agreement, has about two months seniority. Counsel urges the Board to exercise its equitable jurisdiction under section 44(9) of the Act to substitute a written warning or suspension for the discharge.
13. We decline to do so.
14. This matter comes before us pursuant to section 124 of the Act, which is confined to construction industry collective agreements. In the construction industry, employment relationships are transitory and, as in the present case, workers are typically referred from the hiring hall and employed for short periods of time without the kind of pre-employment scrutiny that would be undertaken by an industrial employer. Construction industry collective agreements do not have stipulated probationary periods for assessing the suitability of new workers nor the express right, (common in industrial agreements) to release probationers without cause. Construction employers take what the union sends, but, by the same token, it is understood that if the new employee "does not work out", he is terminated ("laid-off") and returns to the hiring hall for reassignment. In the construction industry the notion of "progressive discipline" is very much attenuated (see Comstock International Limited, [1987] OLRB Rep. May 667; Canadian Engineering and Contracting Co. Limited, [1983], OLRB Rep. July 1017, and Re: Harold R. Stark et al, 1972 CanLII 2050 (ON LA), [1972] 1 LAC (2d) 405 (Egan)).
15. Against this background we think it would come as something of a surprise to the industry if the Board were persuaded to introduce the notion of "progressive discipline" and substitute some lesser penalty, in the case of a new employee, who had been on site for only two weeks, who refused without excuse or explanation to perform a reasonable task, and who even invited his employer to discharge him. The incongruity of applying "progressive discipline" is highlighted by the fact that there probably is no job to which the grievor might now be reinstated, and if, through the hiring hall, he is referred back to Ontario Hydro, the employer may be obliged to rehire him in any event (see the observations of the Board in Ontario Hydro, [1983] OLRB Rep. Jan. 99 at paragraphs 32-40).
16. For the foregoing reasons, this grievance is dismissed.