Ontario Labour Relations Board

Fiore Muraca v. Ford Motor Company of Canada, Limited

4354-98-OH Fiore Muraca, Applicant v. Ford Motor Company of Canada, Limited, Responding Party.

BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Milton Chambers and Ron Matthews for the applicant; Andrew Green and Brad Droppo for the responding party.

DECISION OF THE BOARD; March 9, 2000

1. The style of cause is hereby amended to reflect the correct name of the responding party “ Ford Motor Company of Canada, Limited”.

2. This is an application filed pursuant to subsection 50(2) of the Occupational Health and Safety Act (the “Act”), alleging a violation of subsection 50(1) of the Act.

Subsections 50(1) and (2) provide as follows:

50(1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.

3. The central issue in this case is whether or not, in terminating the employment of the applicant, the responding party was motivated, in whole or in part, by the applicant’s actions in raising concerns for his health and safety.

4. The hearing in this matter occurred on January 6, 2000.

5. The applicant (“Mr. Muraca”) was employed by the responding party (“Ford”) as a full time assembly worker at Ford’s Ontario Truck Plant in Oakville, Ontario, commencing on September 21, 1998, until December 16, 1998. Mr. Muraca was a “new hire” or probationary employee under the terms of the applicable collective agreement between Ford and the Canadian Auto Workers at the time of his discharge on December 16, 1998.

6. Ford is in the business of manufacturing automobiles, and uses an assembly line to produce those automobiles.

7. Mr. Muraca spent most of his time working in the master cylinder installation area. Mr. Muraca was responsible for installing master cylinder units and attaching brake lines on vehicles as they passed on the assembly line. As part of the installation work, Mr. Muraca used three ratchet guns which were held by spring loaded lines (referred to as “balancers”) above the work station. The proper procedure is for the worker to reach above head level for a gun as needed, pull it down to the necessary height, discharge the gun in connection with the installation, and then extend the worker’s arm with gun in hand over the head and release the gun.

8. One of the three ratchet guns in Mr. Muraca’s work station fell off its support line on three separate occasions. On the last of the three occasions on November 20, 1998, the ratchet gun hit Mr. Muraca on his right hand and he was obliged to attend on-site first aid, although there was no serious injury suffered. It was agreed that during the investigation of the incident conducted by Mr. Muraca’s immediate supervisor, Mr. Henry Marciniak (“Mr. Marciniak”), Mr. Muraca gave some indication that he might refuse to do the work on the grounds of health and safety. It was also agreed that Mr. Marciniak responded by saying he did not think it would be wise for a probationary employee such as Mr. Muraca to refuse work. Mr. Marciniak went on to testify that he also added that he told Mr. Muraca that the fault for the falling gun rested solely with Mr. Muraca. It was further stated by Mr. Marciniak that the reason the gun had fallen on three occasions was because Mr. Muraca released it prematurely, thus causing the gun to snap back overhead, wearing out the cable on which it was supported. Mr. Muraca did not contradict the evidence on this point given by Mr. Marciniak, other than to say that he carried out his duties in the manner in which he had been trained. He did not contradict Mr. Marciniak’s assertion that he, Mr. Marciniak, advised Mr. Muraca not to let the gun out of his hand prematurely in his haste to get ready for the next vehicle.

9. In October 1998, Mr. Muraca was handed a written performance review from his supervisor, Mr. Marciniak . This performance review was negative, and Mr. Muraca did not agree with its contents. He refused to sign the document, apparently to Mr. Marciniak’s chagrin. Subsequently, on the 80^th day of his employment, Mr. Muraca received a further written performance review from Mr. Marciniak, which was positive. Approximately nine days later, on December 16, 1998 Mr. Muraca was terminated for allegedly having filed a fraudulent property claim in respect of a pair of work boots.

10. Although no evidence was adduced concerning the specifics of Ford’s policy regarding personal property damage, it would appear that Ford reimburses employees for damage to employee property used solely in the course of work. The damage must be caused by the demands of the work or by the work environment. Mr. Muraca claimed that he purchased the boots one week before commencing employment with Ford, and that his work boots were damaged on the job. Ford did not believe him, and purported to terminate Mr. Muraca for making a false claim for property damage.

11. There was no dispute that Ford’s labour relations representatives made the decision to terminate Mr. Muraca on December 16, 1999, without any input into the decision from Mr. Marciniak, although it was counsel for the applicant’s contention that Mr. Marciniak planted the seeds of Mr. Muraca’s termination by, in essence, goading him into a confrontation with Labour Relations. Thus, counsel argued, Ford is liable under the Act because it acted on improper motives (i.e. Mr. Marciniak’s irritation over Mr. Muraca raising health and safety concerns, and otherwise standing up to Mr. Marciniak’s authority.) It was the uncontradicted evidence of Mr. Bradley Droppo, the plant’s Labour Relations Supervisor, and his subordinate Mr. Tom Dalby, Labour Relations Representative, that they knew absolutely nothing of any alleged health and safety concerns by Mr. Muraca, or for that matter, that they knew anything about any problem in the plant with respect to ratchet guns. It was also undisputed that Ford had a “zero tolerance” policy applicable to probationary employees in the event of breaches of certain company rules during the probationary period. Included within that “zero tolerance” policy are acts of dishonesty, including fraud.

12. The parties were in dispute on a number of matters. One of these matters was whether or not Mr. Muraca, as he contended, had been advised by Ford to bring work boots with him on his first day of work, or whether, as Ford’s evidence suggested, the work area was designated as one in which it was not necessary to wear any particular kind of footwear. In our view, the evidence does not necessarily conflict. It may be that Mr. Muraca was instructed to bring work boots notwithstanding that the work area was not one requiring any specific footwear. In our view, little of substance turns on this point, because property claims at Ford can apparently be made for any type of footwear, so long as the damage is caused by some aspect of the job or the workplace.

13. A second area of contention related to the relationship between Mr. Marciniak and Mr. Muraca. The evidence of Mr. Muraca disclosed that Mr. Marciniak appeared to have lost his temper with Mr. Muraca on two occasions. The first time was early on in Mr. Muraca’s tenure, when Mr. Marciniak got upset upon observing Mr. Muraca not working and speaking to a union representative. The second incident involved an allegation by Mr. Muraca that, following the second ratchet gun accident, Mr. Marciniak attempted to speak to Mr. Muraca about it during Mr. Muraca’s work break, and that upon being rebuffed by Mr. Muraca, who refused to discuss it while on his break, Mr. Marciniak angrily informed Mr. Muraca that he could have him fired if his attitude did not improve. This latter incident was put to Mr. Marciniak in cross-examination, and while he admitted that he may have had a discussion with Mr. Muraca during his work break, he denied making any threats about Mr. Muraca’s job. However, Mr. Muraca’s version of events was corroborated by Ron Matthews, a co-worker, who was present when Mr. Marciniak approached Mr. Muraca during his break. We prefer the evidence of Mr. Muraca and Mr. Matthew’s with respect to the second incident involving Mr. Marciniak.

14. Mr. Marciniak would have the Board conclude that there was no friction between him and his new employee. However, the Board finds that Mr. Marciniak became upset with Mr. Muraca on two occasions. Mr. Muraca, on the other hand, painted a rather bleak picture of the relationship based on two brief episodes. The Board is not convinced that the two outbursts reflect a poisoned relationship between the two. The Board does not accept either depiction of the working relationship put forth by the parties, and suspects that the testimony of each individual was influenced to some degree by self-interest.

15. The parties also were at odds as to the cause of the damage to Mr. Muraca’s boots. Mr. Muraca, supported to some extent by Mr. Matthews, contended that the boots were ruined by excess exposure to the corrosive effects of brake fluid and to extensive wear and tear as a result of the requirements of his position. Ford, on the other hand, led evidence suggesting that Mr. Muraca’s work station had limited exposure to brake fluid, and further, that the condition of the boots appeared to its witnesses to be caused by wear and tear far beyond what could be caused by the demands of the job. Everyone seems to agree, however, that the boots were severely worn out. It also appears to be undisputed that the opinion of Mr. Droppo concerning the cause of damage to the boots (i.e. wear and tear preceding Mr. Muraca’s employment with Ford) was a belief honestly held by the very person who made the decision to terminate Mr. Muraca’s employment.

16. Mr. Marciniak, alerted to the allegedly questionable nature of Mr. Muraca’s reimbursement claim submitted on his behalf by union representative Keith Grist, would not sign Mr. Muraca’s claim form because he did not think it legitimate. Mr. Muraca admitted in his testimony that Mr. Grist had tried to talk him out of making the claim. Mr. Muraca was angered by Mr. Grist’s attempts to dissuade him, and a heated conversation ensued, concluding, according to Mr. Muraca, with his instruction to Mr. Grist to, “Forget about it”. But Mr. Grist did not forget about it, because according to Mr. Marciniak, Mr. Grist submitted the claim and alerted Mr. Marciniak to the circumstances. After concluding that it should not be submitted for reimbursement, Mr. Marciniak discarded the claim form submitted to him by Mr. Grist, for reasons that are not entirely clear. There is no dispute that Mr. Marciniak had a conversation with Mr. Muraca concerning the boots claim, although it was contended by Mr. Muraca that, given his instruction to Mr. Grist, he was surprised by Mr. Marciniak raising the issue. In any event, Mr. Marciniak asked if Mr. Muraca had a receipt for the purchase of the boots, to which Mr. Muraca replied it was not his practice to keep receipts. Mr. Muraca then asked who it was that required the receipt. Upon being informed that it was the labour relations department, Mr. Muraca insisted on speaking to someone from that unit. At some point, Mr. Dalby visited Mr. Muraca at his work station, examined the boots, heard Mr. Muraca’s explanation concerning brake fluid, and asked for a receipt, to which Mr. Muraca replied that he did not keep the receipt. Unbeknownst to Mr. Muraca, Mr. Dalby formed the opinion that the reimbursement claim was fraudulent.

17. The evidence concerning Mr. Muraca’s last day of employment, December 16, 1998, is clear, but for one matter relating to the extent of Mr. Muraca’s knowledge of Ford’s findings pursuant to the investigation if conducted prior to termination. I shall return to this later. On December 16, 1998 , both Mr. Droppo and Mr. Dalby concluded that Mr. Muraca’s boot reimbursement claim had been dishonest and warranted termination. Mr. Droppo then invited Mr. Muraca and his union representative to an interview in which it was clear that Mr. Droppo intended to discharge Mr. Muraca. Mr. Muraca’s union representative spoke to Mr. Muraca in private, and then asked Mr. Droppo to reconsider. Mr. Droppo then took a statement from Mr. Muraca in which he claimed to have purchased the boots from a Wal Mart store in Brampton one week prior to the commencement of his employment. He stated that he had not kept the receipt.

18. Mr. Droppo decided not to finalize Mr. Muraca’s termination without further investigation. He secured Mr. Muraca’s boots, and sent Mr. Muraca to a waiting area. He examined the boots for signs of identification. He determined that the boots were a model known as Grizzly. He called the Wal Mart store in Brampton, only to be told that Wal Mart did not carry that brand of boot, but that Zellers did. Mr. Droppo conveyed all of this information to the union representative, and indicated that his initial decision to terminate Mr. Muraca was confirmed. Mr. Dalby then escorted Mr. Muraca off the premises.

19. It was Mr. Muraca’s evidence that no one, including his union representative, told him at any time on December 16, 1998 about the allegation that Wal Mart did not carry the boots he claimed to have purchased at a Wal Mart store. It was his further evidence that when he discussed the termination with his fiancee he said to her that he could not figure out why Wal Mart would claim not to carry the Grizzly brand of boot, to which she then replied that the boots had been purchased by the two of them at a Zellers store. Recalling this to be the case, Mr. Muraca states that he then conveyed this information to his union representative, who in turn relayed it to Mr. Droppo on December 17, 1998. At this point, however, Mr. Droppo was unmoved, and not prepared to reconsider the matter.

20. Counsel for Mr. Muraca claimed as uncontradicted evidence his client’s testimony to the effect that no one told him during the course of the termination proceedings on December 16 of Ford’s findings regarding the retailer of the boots. This argument presumably was offered to show that Mr. Muraca did not have the opportunity to tailor the explanation of the purchase of the boots that he offered to Ford, through his union representative, the following day. While it is true that there was no other evidence concerning the extent to which Mr. Muraca was informed of Ford’s findings on December 16, 1998 regarding the retailer of the boots, that does not mean that Mr. Muraca did not have the opportunity to tailor his subsequent explanation to fit those findings. By his own admission, following his termination, Mr. Muraca expressed disbelief to his fiancee concerning Wal Mart’s explanation that it did not stock the Grizzly brand of boot. He could not have made such a statement without having ascertained or suspected the basis for Mr. Droppo’s decision to proceed with the termination. That, in turn, gives the Board some pause in considering the reliability of the uncorroborated evidence offered by Mr. Muraca in respect of the conversation he had with his fiancee. Certainly no explanation was given as to why Mr. Muraca’s fiancee was not called to testify in this proceeding.

Decision

21. The Board makes the following findings on the evidence. The decision to terminate Mr. Muraca was made independently by Ford’s Labour Relations personnel, without any influence by Mr. Muraca’s supervisor, Mr. Marciniak. It is true that Mr. Marciniak contacted the labour relations department in connection with the boots. The most reliable information concerning Mr. Muraca’s contact came from Mr. Dalby who stated simply that Mr. Marciniak informed Mr. Dalby that he had an employee who had submitted a property claim that Mr. Marciniak did not think was valid. Mr. Marciniak went on to add that the employee wished to speak to the labour relations department about the claim. This evidence is consistent with that given by Mr. Marciniak

and Mr. Muraca concerning the conversation they had preceding Mr. Dalby’s intervention. Both Mr. Muraca and Mr. Marciniak agree that Mr. Marciniak questioned the claim. They differ somewhat on how the labour relations department came into the conversation. Mr. Muraca said that the subject came up when he asked who was demanding he produce a receipt for the boots. He claims that Mr. Marciniak indicated it was Mr. Dalby, and that Mr. Muraca responded that he wanted to meet with Mr. Dalby. Mr. Marciniak claims it was Mr. Mr. Muraca who initiated that part of the discussion, that after sensing Mr. Marciniak’s refusal to approve the reimbursement claim, Mr. Muraca insisted on seeing a labour relations representative. In the end it is not necessary to resolve this discrepancy. What is clear is that Mr. Muraca wanted to speak to someone in labour relations. We find that Mr. Marciniak contacted Mr. Dalby and told him that he thought the claim was invalid, and that he required Mr. Dalby to sort out the disagreement.

22. The basis for the decision to terminate was the honestly held belief on the part of Mr. Droppo and Mr. Dalby that Mr. Muraca had made a fraudulent property claim for reimbursement pertaining to his work boots. The evidence concerning the extraordinary damage to Mr. Marciniak’s boots was confirmed not only by Messrs. Droppo, Dalby and Marciniak, but indirectly through the testimony given by Mr. Muraca himself. His evidence was that his union representative, Mr. Grist, had tried to talk him out of making a claim for the boots. This is consistent with Mr. Marciniak’s evidence that Mr. Grist warned him to inspect the boots before signing off on Mr. Muraca’s request for reimbursement. We find that Ford sincerely doubted the authenticity of Mr. Muraca’s property claim. Moreover, the Board accepts without any reservation that the decision-makers in the termination of Mr. Muraca had no knowledge of the ratchet gun incidents, nor of any of Mr. Muraca’s health and safety concerns.

23. There was some tension between Mr. Muraca and Mr. Marciniak. However, the evidence does not support the applicant’s theory that Mr. Marciniak somehow orchestrated Mr. Muraca’s termination because of the safety issues raised by Mr. Muraca earlier. The single most persuasive evidence against that theory is the positive performance appraisal given by Mr. Marciniak in favour of Mr. Muraca a little over a week before his termination. It would be completely incongruous for an experienced supervisor, engaged in an elaborate scheme to rid himself of a safety-conscious probationary employee, to provide that same employee with a positive performance evaluation. Nor does the probability that Mr. Marciniak found Mr. Muraca irritating, convince the Board that he took the next step to plot Mr. Muraca’s demise.

24. Ford has discharged its onus to show that the termination was not related to Mr. Muraca’s health and safety concerns. There was no nexus between Mr. Muraca’s health and safety concerns and his termination, and without that nexus, the Board has not found liability on the part of the employer in relation to section 50(1) of the Act: see Meridian Magnesium Products Limited,[1996] OLRB Rep. Dec. 964; and Commonwealth Construction Company,[1987] OLRB Rep. July 961.

25. The Board must consider, however, if this is an appropriate case for the exercise of its discretion to substitute the penalty of termination with a lesser penalty under section 50(7) of the Act. Section 50(7) provides:

50(7) Where on an inquiry by the Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

26. In the circumstances, we do not think this an appropriate case for the exercise of our discretion under section 50(7). There does not appear to be any “taint” of any kind, safety-related or otherwise, rendering the termination questionable. Ford, faced with assessing whether to keep on its payroll a probationary employee who it felt, with reason, had acted dishonestly, in breach of a “zero tolerance” policy, decided that its interest in maintaining integrity in the workplace must prevail. Accordingly, Ford decided that Mr. Muraca should not pass his probation. In the absence of extraneous considerations, the Board can find no fundamental flaw in that approach. Indeed, the Board’s jurisprudence suggests that in the absence of anti-safety animus, or a disproportionate disciplinary response to the alleged wrong, or some other extraordinary factor, the Board generally will not substitute the employer’s determination with a lesser penalty: see William J. Viveen;[[1995] OLRB Rep. Jan. 85; Goldfan Holdings Limited;[1991] OLRB Rep. Nov. 1271; and Precision Engineering Company, [1994] OLRB Rep. May 596.

27. The application is dismissed.

“Patrick Kelly”

for the Board