Ontario Public Service Employees' Union and its Local 561 and Leslie Charbon v. Seneca College of Applied Arts and Technology
[1990] OLRB Rep. June 739
1316-89-U Ontario Public Service Employees' Union and its Local 561 and Leslie Charbon, Complainants v. Seneca College of Applied Arts and Technology, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members M. Rozenberg and P. V. Grasso.
APPEARANCES: Chris G. Paliare and Betty Egri for the complainants; G. F. Luborsky, M. Fogel and A. Williams for the respondent.
DECISION OF THE BOARD; June 27, 1990
1This is a complaint, under section 80(1) of the Colleges Collective Bargaining Act ("the CCB A"), that the complainant Leslie Charbon was discharged by the respondent because it was thought that he supported and would testify in the arbitration of a grievance filed by another employee. Section 80(1) of the CCBA provides that:
80.-(1) The Council or an employer or any person acting on behalf of the Council or an employer shall not,
(a) refuse to employ or continue to employ a person;
(b) threaten dismissal or otherwise threaten a person;
(c) discriminate against a person in regard to employment or a term or condition of employment; or
(d) intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.
2There was no challenge to the Board's jurisdiction to deal with this matter. Nor did the respondent suggest that the arbitration of a grievance of an employee within the meaning of the CCBA was not a "proceeding" under the Act (in that regard see also Ontario Nurses Association, [1982] OLRB Rep. Oct. 1546).
3We first wish to note that the complainants protested, in argument, that they might have presented their case differently had they known what the evidence of the respondent would be prior to presenting their own. In addition, in the course of the proceeding, the Board was required to rule on a number of evidentiary matters. The complainants objected to a number of questions asked by counsel for the respondent of the respondent's own witnesses. The essence of many of these objections was that there was nothing on the face of the material filed, in the opening statement by counsel for the respondent, or in the viva voce evidence of Charbon (the complainant's only witness) which revealed, in any timely way, that the matter with respect to which the evidence objected to related, was in issue. Whatever one may think of the merits of the situation, there is no rule which requires a respondent to a complaint like this one to file a particularized reply. Nor is there any provision in the CCBA analogous to section 89(5) of the Labour Relations Act. We observe that this "reverse onus" provision in the Labour Relations Act was inserted largely as a result of the kind of situation which gave rise to the complainant's objections in this case; that is, a complainant must present its case without knowing what the respondent's justification(s) for the action(s) complained of is. In the result, under the Labour Relations Act, a respondent accused of dealing with a person in a manner contrary to that legislation must satisfy the Board that it did not do so and generally must proceed first. Conversely, under the CCBA, the onus is on the complainant to prove such an allegation and it will often proceed first. This creates a situation, as it did in this case, where the complainant tries to "paint a picture" with respect to what it alleges without any real idea of how the respondent might test or seek to repaint it. Nevertheless, a respondent cannot, as a matter of fairness, be precluded from presenting its justification(s), or any evidence that is arguably relevant thereto, to the Board. The manner in which the Board exercised discretion in its evidentiary rulings reflect that rationale. Finally, we observe that the complainants willingly proceeded first. They did not suggest that the respondent should present its case first.
4On April 7, 1988, Charbon was hired by the respondent as a part-time theatre technician in the Minkler Auditorium and Studio Theatre at the respondent's Newnham Campus. In July 1988, Charbon was the successful applicant in a competition for a full-time theatre technician position which had become available. He became a full-time employee on or about August 15, 1988.
5Unfortunately, Charbon occupied this full-time position for only a short time. After about a month he was "bumped", pursuant to the collective agreement between the complainant trade union and the respondent, by a bargaining unit employee who had been laid off from his employment in another department. Charbon reverted to being a part-time theatre technician.
6Subsequently, a full-time technician (Andrew Wenzel) was disciplined by the respondent. Charbon disagreed with the discipline and he provided the complainant trade union with a written statement disputing the basis for it. The complainant trade union produced and relied on this statement in the course of grievance settlement discussions with respect to the Wenzel grievances. Shortly afterwards, after a confrontation with Joe McLeod, the respondent's artistic director for its theatre facilities at the Newnham Campus and Charbon's supervisor, Charbon's employment with the respondent was terminated.
7The complainants argue that Charbon was a more than satisfactory employee. They point to what they assert was a change in attitude towards Charbon after it was revealed that he supported the Wenzel grievances and might testify in any arbitration proceedings with respect thereto. The complainants assert that the respondent then seized upon what it perceived to be an opportunity for retribution and discharged Charbon. The complainants submit that Charbon would still be employed by the respondent but for his support for the Wenzel grievances.
8The respondent submits that Charbon became a less than adequate employee after he was bumped out of his full-time position September 1988 and that there was nothing sudden about his termination. The respondent argues that there was no evidence that the termination had anything to do with Charbon's support for the Wenzel grievances.
9We have already noted that the CCBA does not contain a reverse onus provision with respect to complaints that a person has been refused employment, discharge, discriminated against, or otherwise dealt with contrary to it in relation to his/her employment. Accordingly, in this case, the complainants must satisfy the Board, on a balance of probabilities, that there was an improper motive for the respondent's treatment of Charbon. The nature of complaints like this one is such that the Board must usually draw its conclusions from inferences which can fairly be drawn from the objective evidence. If the Board is satisfied that any part of the motivation for a respondent's conduct was contrary to the CCBA, the complaint will succeed. In making its determinations in that respect, the Board will consider the objective reasonableness of the actions of the respondent which are impugned by the complaint and the existence of any unusual or "peculiar" conduct of the respondent (the Board's reasoning in, among others, John T. Hepburn, Limited, [1985] OLRB Rep. Jan. 75; Manor Cleaners Ltd., [1982] OLRB Rep. Dec. 1848; Hallowell House Ltd., [1980] OLRB Rep. Jan. 35; Barrie Examiner, [1975] OLRB Rep. Oct. 745 is equally apposite to cases like this one, even though those cases dealt with complaints under the Labour Relations Act). This case is not about just cause. The complainants need not establish that the respondent did not have just cause for its actions. Rather, they must establish that the respondent's actions were not bona fide in the sense that some part of the respondent's motivation therefore was improper; namely, in breach of section 80(1) of the CCBA.
10As a general matter, we did not find Charbon to be a credible witness. In cross-examination, he was often uncooperative or unresponsive. The high opinion he has of himself was demonstrated by the self-interest which permeated his testimony, and his willingness to criticize others and blame anyone but himself for problems in the work place. His propensity to rationalize in order to put himself in a better light was demonstrated by the distinctions he drew between, for example, discussions and arguments (others argued, he discussed), and between swearing in conversations as opposed to swearing at the person to whom he was speaking. In addition, Charbon's evidence conflicts with that of all of the other witnesses, all of whom we found to be credible, and all but one of whom are bargaining unit employees represented by the complainant trade union. Nor was there any evidence called by the complainant to corroborate Charbon's testimony. In the absence of any explanation in that respect, we are bound to infer that there was no such evidence. Accordingly, and as will become evident, we do not accept Charbon's version of events where it conflicts with that of other witnesses. In the result, Mr. Paliare's able argument was left without any basis in the evidence.
11Charbon's ability as a theatre technician was never a concern. The respondent, and in particular Joe McLeod, considered him to be a good technician. On the evidence, however, there was dramatic change in Charbon's attitude after he was bumped out of his full-time theatre technician position in September 1988 and Charbon quickly became a troublesome and less than adequate employee.
12Even though he continued to work what were effectively full-time hours after his status reverted to that of a part-time technician, Charbon was demonstrably unhappy about what had happened. That he was unhappy was understandable. So was some display of his feelings in that respect. However, the manner and extent of his display is another matter.
13Between September 1988 and June 26, 1989 when his employment was terminated, Charbon displayed an increasingly negative attitude and a general dissatisfaction with his job and the people he worked with. His relations with the administrative staff and Joe McLeod deteriorated and steadily went from bad to worse. Charbon was open in his dislike and disdain for "red tape", "bureaucracy", "nine to five", and for work in general. He exhibited this through his chronic lateness, his inattention to detail in the reports required of technicians, and his attitude toward what he knew were well established procedures (like those with respect to lateness, shifts switching between technicians, and his approach to arranging time off so he could work at the Mariposa Festival). Charbon openly and often disagreed with McLeod's management approach and often challenged and berated both McLeod and other employees in that respect. In doing so, and in inserting himself in the situations involving other technicians, he was anything but constructive.
14Another incident also illustrates his negative attitude. Around Christmas, 1988, the respondent's then facility coordinator decided to quit. When Charbon appeared to show interest in the position, McLeod encouraged him to apply for the job. McLeod cautioned Charbon that he would have to upgrade his management and computer skills by taking courses on his own time, and that it would require a five year commitment on his part. McLeod also advised Charbon that he would have to adjust his appearance (by wearing a shirt and tie, for example) because of the public relations and sales aspects of the position. Notwithstanding those cautions, Charbon appeared to be interested in and applied for the job. When he was interviewed, however, he appeared in a dirty and dishevelled condition, he said he would not make a long term commitment to the position, he said he was not interested in taking courses to upgrade the skills required to do the job properly, and he even said that he would prefer to stay as a part-time theatre technician. Why then did he apply for the position or accept an interview? In our view, Charbon did it to show up and embarrass McLeod who was on the interviewing committee and who had been touting him for the job.
15All of this occurred prior to mid June 1989, and the June 14, 1989 grievance meeting at which it was revealed, for the first time, that Charbon supported the Wenzel grievances. Further, the evidence does not suggest that Charbon's statement had any particular impact either at the grievance meeting or otherwise. We also observe that Charbon's written statement, which is said by the complainants to have led to sudden drastic retribution against him, was never placed in evidence before the Board. Why it wasn't was left unexplained by the complainants, which, on the evidence, had the statements in their possession, power or control.
16We are not satisfied that McLeod's attitude towards Charbon changed suddenly after June 14, 1989. First, there is nothing other than Charbon's self interested assertion to suggest that. Second, there is ample evidence that relations between Charbon and McLeod, and indeed between Charbon and most other of the respondent's employees at the Minkler Auditorium and Studio Theatre, were strained. The documentary evidence filed with the Board reveals that there were many problems both generally and specifically with Charbon, prior to mid-June 1989. The documentary evidence and the testimony of Devi Taneja, Marie Wenman, Susan Trauzzi, and McLeod also reveal an increasing frustration with Charbon's conduct prior to mid-June 1989. We specifically accept that chronic lateness was one of Charbon's problems, notwithstanding the lack of any specific reference thereto in the documentary evidence. We also accept that McLeod endured Charbon's behaviour as long as he did because of the demands on his time and because he desperately needed a competent technician in the months leading up to and during the busiest time of the year for the theatre facilities. The June 26, 1989 incident, to which we now turn, is another example of Charbon's insolent behaviour. This incident, which was, in our view, the proverbial "straw that broke the camel's back" also occurred just before the relatively slow period of July and August.
17On June 26, 1989, Charbon was scheduled to work from 9:00 a.m. to 5:00 p.m.. Because there was no show scheduled for that day, he knew he was supposed to be at work at 9:00 a.m. (rather than at 8:30 a.m. had there been a show). He made no effort to either report for work as scheduled or to contact the respondent to advise that he would be unable to do so. This was consistent with what we accept had become his pattern of behaviour. Charbon says he was ill that morning as a result of working hard and getting too much sun at the Mariposa Festival. There is nothing in the evidence to corroborate his assertion. There is no medical evidence, neither of the at least two people who were with him prior to his arrival at the Minkler Auditorium that day were called to testify, and the evidence of the other witnesses is that they did not perceive him to be unwell.
18Shortly after 9:00 a.m., McLeod learned that Charbon had not reported for work. He instructed Taneja to try to contact him. On her third attempt, Taneja was finally able to reach Charbon. He said only that he would be in later. Charbon then called back, spoke to Wenman and indicated a reluctance to come to work. When this information was relayed to him, McLeod instructed Taneja to call Charbon to come in to see him. We are satisfied that McLeod, having been given no reason why Charbon could not come in to work as scheduled, wanted to see him to discuss the matters contained in a memorandum from McLeod to Charbon dated June 22, 1989, and that he had not yet formed any intention to terminate Charbon.
19Sometime later, Charbon arrived at the Minkler Auditorium. By chance, McLeod was passing through the foyer and encountered Charbon as the latter entered. Charbon greeted him by saying words to the effect of "how fucking long is this going to take?" Somewhat taken aback, McLeod said about five minutes. In the circumstances, this response suggests that McLeod had begun to form an intention to terminate Charbon. McLeod told Charbon to get and read the June 22, 1989 memorandum and to come to his office to discuss it. Shortly afterwards Charbon entered McLeod's office, pointed at the memo in his hand and said words to the effect of "you really believe this fucking shit don't you", and followed with an indication that he was going home. McLeod advised him that they had to deal with the problems in the memorandum. They then began to argue with respect to one of the items on the list but before anything was resolved Charbon again said he was leaving, took out his keys to the auditorium and offered them to McLeod. We are satisfied that it was then that McLeod determined that he had had enough. This is demonstrated by his statement that "Leslie, I think we have reached a parting of the ways". With that, Charbon's employment was terminated. In our view, this result, though a long time coming, was inevitable. It was not "sudden" in the sense argued by the complainants.
20In our view, it is neither necessary nor appropriate to review or comment on the contents of the June 22, 1989 memorandum or to determine whether the items in it did or did not constitute just cause for Charbon's termination. This complaint is not about just cause. It is about whether or not any part of the motivation for the termination constitutes a breach of section 80(1) of the CCBA. We are not satisfied that it did. Accordingly, this complaint is dismissed.