3738-00-G Labourers' International Union of North America, Local 506, Applicant v. Res 2000 Structures Inc., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: John Moszynski and Augusto Rocha for the applicant; Walter Thornton, Alex DeIulis and Sam Manna for the responding party.
DECISION OF HARRY FREEDMAN, VICE-CHAIR AND BOARD MEMBER G. PICKELL; November 22, 2001
The Board, in its decision in this matter dated April 17, 2001 described the nature of this proceeding. In essence, it is a grievance alleging that the responding party (the “Company”) discharged Richard Guenette (the “Grievor”) without just cause contrary to the collective agreement by which the applicant and the Company were bound. The Grievor was fired by Luis Tenaglia, a foreman employed by the Company and the person responsible for the Company’s concrete forming crew working on the Leek Crescent project in Richmond Hill. The Grievor was a member of that crew after he was dispatched by the applicant to work for the Company in November, 2000 until his discharge on February 22, 2001.
The parties agreed that should the Board find the Company violated the collective agreement, the Grievor would not be reinstated as he would have been laid off from that job on Friday March 30, 2001, when several other members of the forming crew were laid off. Thus, the damages, if any, for which the Company might be liable related to the period between February 22, 2001 and March 30, 2001. The parties also agreed to a formula to calculate those damages should the Board find the Company liable to compensate the Grievor for any part of that period.
The Grievor was employed as a construction labourer and was assigned to a concrete forming crew. He started working for the Company at the end of November, 2000 and worked there without incident until February 8, 2001. In January, the Grievor was having some medical difficulties and was absent from work on a few occasions in January and early February. On Thursday, February 8th, the weather prevented the crew from working so after about two hours, Mr. Tenaglia sent the crew, including the Grievor, home. The Grievor called Mr. Tenaglia the next morning before he left for the job to find out if they would be working (the Grievor lived in downtown Toronto and the job site was in Richmond Hill) because it was snowing heavily in Toronto. Mr. Tenaglia told the Grievor that the weather prevented them from working and he was going to send everyone home. The Grievor therefore did not report for work on that Friday.
On Monday morning, February 12th, the Grievor did not report for work and did not call Mr. Tenaglia that morning to let him know that he would not be showing up. The Grievor explained that on Sunday, February 11th, he had been feeling weak and nauseous and had stayed in bed. He did not feel better on the Monday and as he did not have a phone at home, he was not able to call until he felt well enough to get up and go out to a pay phone on the street. The Grievor testified that when he went to call he could not find Mr. Tenaglia’s phone number (the Grievor had been instructed when he started working that he was to call Mr. Tenaglia’s cell phone to contact him) in his wallet. He explained that he had written Mr. Tenaglia’s cell phone number on a small piece of paper and had folded it up in his wallet. He said he contacted directory assistance for the phone number of the Company’s offices and then called that number and left a message. He testified in examination in chief and initially in cross-examination that he said in his message he was not feeling well and was not sure when he’d be back to work and that he was going to see the doctor. In cross-examination, after counsel pointed out that the Grievor did not go to his doctor until February 15th, the Grievor testified that he waited to see if he would feel better before going to the doctor because he thought with rest, his nausea and weakness might clear up. The Grievor, when then confronted with his earlier statement that he had left a message on the Company’s voice mail saying that was going to see the doctor, said his message in the evening of February 12th was that if his illness does not clear up, he was going to see the doctor.
The Company’s position is that it never received any message from the Grievor about his absence from work on and after February 12th. It is clear that Mr. Tenaglia, who was the person who made the decision to dismiss the Grievor, was not aware of any message being left by the Grievor.
Mr. Tenaglia and the Grievor both testified that the Grievor called Mr. Tenaglia at about 9 o’clock Wednesday evening, February 21, 2001. The Grievor testified that although he had not been able to find Mr. Tenaglia’s cell phone number on the evening of February 12th, he did find the number in his wallet when he was at his brother’s place (who has a phone) that Wednesday evening. The Grievor explained that he had looked in his wallet at his brother’s place for Mr. Tenaglia’s phone number because he could not think where else it would be, even though he had not been able to find the number in his wallet earlier. The Grievor testified that he told Mr. Tenaglia that he was feeling better and would be ready to return the next morning. He said that Mr. Tenaglia asked him what his ailment was. The Grievor went on to testify that he explained the symptoms and told Mr. Tenaglia that he had had “mono” several years ago and had been treated for “mono” at that time. The Grievor also said that he was not sure what his problem had been as the doctor was still looking for things. The Grievor said that the conversation ended with Mr. Tenaglia saying “That’s fine, see you in the morning.” In cross-examination, the Grievor conceded that he could not remember his exact words, but said that he had told Mr. Tenaglia that his doctor thought he was suffering from depression. He then insisted that he had told Mr. Tenaglia that he had been off due to depression. In his examination in chief, the Grievor said that he had not mentioned his depression to Mr. Tenaglia in that conversation on February 21st. The Grievor also stated in cross-examination that Mr. Tenaglia had said “OK Richard, that’s not a problem. We’ll see you tomorrow morning” and that that was all he had said. The Grievor said he was quite positive that was the only statement Mr. Tenaglia had made in their conversation.
Mr. Tenaglia testified that when the Grievor had called him on the Wednesday night, he asked the Grievor where he had been for the last 10 days. He said that the Grievor responded by saying he caught a virus from a girl and was prepared to come back. Mr. Tenaglia then said that he would see the Grievor in the morning. That was the extent of the conversation, according to Mr. Tenaglia.
We are satisfied that the Grievor did not call or attempt to call the Company on February 12th. It is implausible that the Grievor would have lost the piece of paper on which Mr. Tenaglia’s cell phone number was written and then find it again some 10 days later. More importantly, however, the Grievor’s explanation about the message changed significantly once counsel pointed out the inconsistencies in his evidence. The Grievor said he told the Company he was going to see the doctor, but later, after admitting that he was going to wait and see if his illness would clear up before going to the doctor when asked to explain why he waited, changed what he had said about the message he had left with the Company from he was going to see the doctor to if he doesn’t get better he’s going to see the doctor. Thus, we find that the Grievor was absent from work without having notified the Company between February 12 and February 21, 2001.
Mr. Tenaglia admitted that at the end of the conversation with the Grievor in the evening of February 21, 2001, he was content to have the Grievor return to work the next day. Having observed Mr. Tenaglia’s demeanour, it is clear to us that he was not apt to be chatty with the Grievor and therefore it is improbable that he engaged in a prolonged conversation with the Grievor about his health and his condition. Furthermore, the Grievor was certain that the only thing Mr. Tenaglia said was that he would see the Grievor the next morning and had excused his absence. We are satisfied that Mr. Tenaglia asked the Grievor where he had been when the Grievor identified himself. We are also satisfied that during the conversation, the Grievor said something about his nausea and weakness and that he had been treated for “mono”. Although the Grievor denied telling Mr. Tenaglia that he had caught a virus from a girl, it seems likely that the conversation about the Grievor’s symptoms and the reference to “mono” may have been understood by Mr. Tenaglia to have been a reference to having caught a virus. In any event, we are also satisfied that the Grievor had said nothing to Mr. Tenaglia about depression. That was what the Grievor said in his examination in chief and, in our view, he embellished the testimony about his conversation with Mr. Tenaglia to include the reference to depression because the doctor’s note he had obtained indicated he was being treated for depression.
Before describing the events of the morning of February 22, 2001 we digress to comment upon the way Mr. Tenaglia supervised his crew. He testified that he expected his concrete forming crew to be on the job, dressed for work and in the location where the work was to be done by the start time of 7:30 a.m. Mr. Tenaglia said he gets to the job usually by 7 a.m. and other employees are there at that time too. He explained that he is the person who hires, fires and lays off the members of the crew he supervises. His crew includes both carpenters from Local 27 of the carpenters’ union and labourers from Local 506, although he himself has been a member of Local 183 of the labourers’ union for some twelve years. He said that employees are required to call him about the work schedule and he gives them his cell phone number. He also said that the nature of concrete forming work requires that all employees must be ready to work and work together at the same time. Mr. Tenaglia testified that it was not his concern about how the employees got to work, only that they were at work and on the job by 7:30 a.m. He testified that he never spoke with the Grievor about the Grievor’s personal life. He acknowledged that he knew that the Grievor had been a boxer and had suffered head injuries. When asked in cross-examination if he knew anything about the Grievor’s family or marital status, he said that he had overheard something about the Grievor having been divorced but really did not discuss personal things with the Grievor. It was clear to us that Mr. Tenaglia was a foreman who had no time for nonsense or excuses from the crew and expected that the workers would show up on time and do the work they were paid to perform.
The Grievor arrived at the work site on the morning of February 22nd about 15 minutes late. Mr. Tenaglia testified that the crew had started working on the fourth floor of the building when he was told by one of the other crew members that the Grievor was coming to the job and was going to the construction shack. Mr. Tenaglia acknowledged that he was angry as he was leaving the crew on the fourth floor to descend to the shack to speak to the Grievor. He also acknowledged that he was thinking about the Grievor having been absent over the last 10 days (it was agreed that the Grievor had actually missed eight days of work) without calling and that he had been prepared to let things go but that the Grievor was late his first day back to work.
Mr. Tenaglia then arrived at the construction shack and saw the Grievor.
The Grievor and Mr. Tenaglia differ about the exchange between them. The Grievor testified that when he (the Grievor) arrived (it had taken him over two hours to get work by bus that morning and his bus had been delayed at the platform) everyone was at work. He said he was getting changed when Mr. Tenaglia came through the door of the construction shack. He testified that the first thing Mr. Tenaglia said to him was: “Richard, what the fuck is going on?” The Grievor said that he tried to explain about the bus being delayed and apologized for being late. He said that Mr. Tenaglia then responded by saying: “What the fuck is going on. You missed two weeks of work and now you’re showing up late.” The Grievor testified that he then said: “Luis, I was off for valid medical reasons. I have a medical note.” In reply, the Grievor asserted that Mr. Tenaglia said: “I don’t give a shit about your medical note. I don’t like your attitude. Get off my site.” At that, the Grievor said thank you, packed up his gear, walked over to the site superintendent’s shack and asked if he could use the phone. He called and spoke with Augusto Rocha, a business representative of the applicant. The Grievor then left the job site.
Mr. Tenaglia’s recollection of the exchange between him and the Grievor is somewhat different. He testified that when he arrived at the construction shack and saw the Grievor, he said: “What’s wrong with you? You’re away 10 days and then late on the 11th.” Mr. Tenaglia testified that the Grievor responded by saying “So, have you got a problem with that!”. Mr. Tenaglia responded to that statement by saying: “Of course I have a problem.” According to Mr. Tenaglia, the Grievor then said: “Do you want me to leave?” to which Mr. Tenaglia replied: “Get your stuff. Get out.”
The Grievor denied having said anything to Mr. Tenaglia to the effect of “Do you have a problem with that?” It was clear from Mr. Tenaglia’s evidence that the Grievor’s comment, which Mr. Tenaglia viewed as a challenge (he described it as “giving him lip”), made Mr. Tenaglia even angrier. Mr. Tenaglia conceded that the exchange (together with the other circumstances) ticked him off. Once again, in assessing the credibility of the Grievor and Mr. Tenaglia, we prefer the evidence of Mr. Tenaglia to the evidence of the Grievor where it conflicts. Nevertheless, we accept it is more likely that Mr. Tenaglia, upon seeing the Grievor, opened the conversation the way the Grievor described. That is, it is more probable that Mr. Tenaglia said to the Grievor: “What the fuck is going on. You missed two weeks of work and now you’re showing up late.” Indeed, there was not much difference between Mr. Tenaglia’s version and the Grievor’s version of the greeting Mr. Tenaglia gave to the Grievor. It is, we think, unlikely that at that point the Grievor tried to explain his lateness and absence. Rather, given that we have already concluded that the Grievor did not try and call the Company at the beginning of his absence, we think it more likely that the Grievor was not too concerned about the consequences of being late for work. Furthermore, the Grievor suggested that Mr. Tenaglia had told him that he, Mr. Tenaglia, did not like the Grievor’s attitude. In our view, that kind of response from Mr. Tenaglia would not have been prompted, as the Grievor would have us believe, by the tendering of a medical certificate. Rather, it is more likely that Mr. Tenaglia may well have said something about the Grievor’s attitude in response to something that the Grievor said or did that demonstrated an “attitude”. Thus, we find that in fact the Grievor was late that morning, and then when confronted by Mr. Tenaglia, provoked Mr. Tenaglia by challenging him with the statement: “So, have you got a problem with that!”
Mr. Tenaglia received several phone calls from Mr. Rocha about taking the Grievor back to work. At one point, Mr. Tenaglia made it clear to Mr. Rocha that he would not have the Grievor back on the job site because if Mr. Rocha sent the Grievor back, Mr. Tenaglia would leave the job.
It was clear that the Grievor engaged in culpable behaviour on February 22, 2001. The issue then becomes the appropriate disciplinary penalty. We note, in that regard, that Mr. Tenaglia was of the opinion that his choice was either a warning or dismissal. In cross-examination, he said that he believed he was not allowed to suspend people. The collective agreement, however, says nothing that would preclude an employer from suspending someone for a period of time if an employee’s misconduct merited significant discipline but not discharge.
Section 5.01(a) of the collective agreement by which the parties are bound provides:
The Union agrees and acknowledges that the Employer has exclusive right to manage the business and to exercise such right without restriction, save and except such prerogatives of management as may be modified by the terms and conditions of this Agreement. Without restricting the generality of the foregoing paragraph, it is the exclusive function of the Employer:
a) To determine qualifications, classify, transfer, hire, direct, promote, demote, layoff, discipline and discharge for just cause, employees and to increase or decrease or transfer working forces in accordance with the terms of this Agreement.
Counsel for the Company did not suggest that a suspension could not be imposed. Rather, he submitted that the Grievor’s conduct overall merited discharge.
Mr. Tenaglia relied on all of the circumstances to come to his decision to discharge the Grievor. Counsel for the applicant suggested that Mr. Tenaglia had made a hasty decision and had not given the Grievor the opportunity to explain. We note that submission was inconsistent with the Grievor’s testimony (he testified that he apologized and explained the reasons for being late that morning) but nevertheless, since we are satisfied that the Grievor had responded to Mr. Tenaglia’s opening, somewhat angry comment, by displaying “lip” or “an attitude”, he foreclosed further discussion.
Although Mr. Tenaglia had been prepared the previous evening not to take any action with respect to the Grievor’s failure to call before being absent, in our view, the Grievor arriving late for work together with his display of what can only be characterized as insubordination justified Mr. Tenaglia’s consideration of the Grievor’s absence without notification in meting out a disciplinary penalty. We see that absence, his late arrival and his challenge to authority as a continuation of culpable behaviour that ought to be considered in its totality in assessing an appropriate penalty.
Both counsel referred the Board to Comstock International Ltd., [1987] OLRB Rep. May 667 in which the Board recognized that there are features of the construction industry that have an impact on assessing whether there has been just cause for discipline or a discharge. The Board in that case noted at page 671:
We note that the construction project in this case extended over a relatively long period, approximately ten months, and that Sullivan’s connection with it was expected to be of significant duration. The longer an employee has worked and is expected to work on a construction project, the more likely an arbitrator will apply considerations which pertain to industry in general when assessing whether an employer has established just cause for discharge.
The Board in Comstock International Ltd., adopted comments that had been made by the Board earlier in Canadian Engineering and Contracting Co. Ltd., [1983] OLRB Rep. July 1017 in which the Board noted at page 1019-20
We accept, of course, that the employer-employee relationship in the construction industry is not a close one, and is not comparable with relationships that arise between employers and their employees in an industrial setting. Employment relationships are transitory and, as in the present case, workers will be referred from the hiring hall and employed for short periods of time without the kind of pre-selection which would be undertaken by an industrial employer before engaging workers who could conceivably be employed on a long-term basis. Accordingly, we accept the need for a certain amount of realism and arbitral restraint in determining what constitutes just cause for discharge in a construction context. However, we are not persuaded that either the arbitral jurisprudence or the language of the collective agreement before us requires us to apply considerations that are totally different from those applied by arbitrators to employers who use the same language in collective agreements in other industries.
See also Harold R. Stark Ltd., (1972), 1972 CanLII 2050 (ON LA), 1 L.A.C. (2d) 405 (Egan) at 406-07; Millenium Construction Contractors, (2001), 2001 CanLII 62075 (AB GAA), 97 L.A.C. (4th) 1 (Sims) at 26-27; and Fraser-Brace Engineering Co. Ltd., (1968), 1968 CanLII 1197 (CA LA), 19 L.A.C. 258 (Christie).
The Grievor was employed with the Company from the end of November until his discharge in February. The parties agreed that had the Grievor not been discharged in February, he would have been laid off March 30, 2001 when most of the work had been completed. Counsel for the applicant argued that the job was relatively long term and therefore an assessment of just cause based on the industrial principles used by arbitrators is applicable. Counsel for the Company argued that given the nature of the construction industry, the niceties often found in an industrial workplace simply do not exist in relation to the construction industry. He submitted that discharge was appropriate in all of the circumstances, particularly in view of the combination of factors that existed at the time; his previous absence without notifying the company, his tardiness that morning and most importantly, his challenge of the foreman’s authority.
While there is no doubt that the Grievor’s conduct merited some discipline, we are satisfied that Mr. Tenaglia over reacted (understandably, we might add) to the Grievor’s provocation. Mr. Tenaglia was prepared to give the Grievor “a break” for having been away for several days without notifying the Company and what does the Grievor do on his first morning back but arrive 15 minutes late and then when confronted about it, displays an aggressive, challenging attitude rather than being apologetic. Mr. Tenaglia acknowledged in his examination in chief, when asked why he fired the Grievor, that one of the factors he took into account was that the Grievor had been absent for six days before his last lengthy absence without notice. Those absences were not, it was conceded by the Company, matters for which the Grievor had been warned nor was there any suggestion that they were anything other than bona fide absences due to illness for which the Grievor had been excused. Furthermore, Mr. Tenaglia indicated that as far as he knew, he could not suspend the Grievor.
As counsel for the applicant points out, the collective agreement contains a “standard” just cause provision. Where an employee engages in culpable conduct, disciplinary responses short of discharge are available to deal with the matter, even in the construction industry. In this case, we are of the view that a suspension was warranted. Given the Grievor’s behaviour on that Thursday morning when taken together with his earlier absence without leave, we believe he should have been suspended for the balance of the week (i.e., the last two days of the week he returned) and for the entire following week. The Grievor’s behaviour was serious and inappropriate and a significant suspension to demonstrate that the kind of behaviour in which the Grievor had engaged was unacceptable, particularly on a construction project, is necessary. Having the Grievor return to work in the middle of the following week would, in our opinion, diminish the severity of the penalty and we are of the view that its severity should not be diminished.
Therefore, the Grievor is entitled to be compensated, subject to the Company’s arguments on quantum, for his loss of wages for the period commencing March 5, 2001 and ending March 30, 2001.
Counsel for the Company argued that the medical evidence the Grievor (through the applicant) provided to the Company showed that the Grievor had been suffering from depression. Mr. Tenaglia had also testified that the Grievor had not looked well when they spoke in the construction shack on February 22nd and indicated that he would not have let the Grievor work in any event on that day because he appeared ill. The Grievor, on February 22nd attended at his doctor’s office after having left the job site and obtained a letter which said the Grievor had been assessed on February 15th and again on February 22nd. (The medical note the Grievor said he had had in his possession when he went to work on February 22nd stated that the Grievor “had been ill with depression. Not able to return to work until all better. Will be reassessed.”) The letter of February 22nd went on to state: “He is following the treatment plan and is getting better. He is ready to return to work today.” The Company was not provided with those medical “reports” until March 15th, and when counsel reviewed them, sought more information.
The Company’s position is that the medical reports are woefully inadequate, given the safety sensitive work that the Grievor would be performing along side other labourers. The Grievor operated a vibrating machine used in concrete forming. The Company argued that there was nothing in those medical reports indicating if the doctor had any knowledge of the work the Grievor did or what risks might be faced in the workplace by someone who is depressed. Counsel argued that the Grievor would not have been put back to work until he had provided suitable medical information establishing his fitness to return and therefore, since the Grievor and the applicant had refused to provide any better medical information, the Grievor ought not to be compensated for the period after the date his suspension would have ended.
The difficulty with the Company’s argument is that the Company did not remove the Grievor from the job due to medical concerns. Rather, it dismissed him from employment for his culpable conduct. The Grievor’s medical condition and ability to work were not matters of concern to the Company until after March 15th, when they received the medical information. There was no suggestion that the Company had been prepared to rescind the Grievor’s termination. Thus, although the Company’s concerns about the adequacy of the medical information provided by the Grievor were both understandable and reasonable, we are not prepared to reduce the compensation owing to the Grievor by reason of the inadequacy of the medical information provided to the Company since the Grievor had been dismissed for his inappropriate behaviour and was kept out of work as a result of his dismissal and not due to any concerns about safety or the Grievor’s medical condition.
The parties agreed upon a formula for determining the amount of compensation owed to the Grievor. The Grievor is to be compensated for his loss of earnings based on the average hours of work performed by the members of his crew from the date that he would have been reinstated (March 5th) to March 30, 2001 (except for March 6th, as no work was done on that day due to inclement weather). Based on the time sheets provided, we direct that the Grievor be compensated as follows:
March 5: 8.5 hours
March 6 0.0 hours
March 7 8.9 hours
March 8 9.1 hours
March 9 8.5 hours
March 12 8.5 hours
March 13 4.5 hours
March 14 10.0 hours
March 15 7.3 hours
March 16 8.5 hours
March 19 9.8 hours
March 20 8.5 hours
March 21 8.5 hours
March 22 8.5 hours
March 23 8.5 hours
March 26 8.5 hours
March 27 8.4 hours
March 28 8.5 hours
March 29 8.5 hours
March 30 8.5 hours
Total 160.0 hours
Therefore, the responding party must compensate the Grievor for 160 hours of work.
- The Board directs the Company to compensate the Grievor based on 160 hours of work at the Grievor’s straight time hourly rate under the collective agreement, subject to the normal deductions and remittances and any additional deductions required by law. Should the parties be unable to agree upon the actual amount to be paid to the Grievor, this panel of the Board shall remain seized to determine that amount.
“Harry Freedman”
for the majority
DECISION OF BOARD MEMBER A. HAWARD: November 22, 2001
I have read the decision of my colleagues in this matter and agree with their findings of fact and their assessment of the credibility of the Grievor and Mr. Tenaglia. I also accept and adopt their analysis of the appropriate standard to be used in assessing an appropriate disciplinary response for misconduct on a construction site. Where they and I disagree is over the appropriate penalty. A significant suspension is warranted, but I think a suspension of one week, rather than the balance of week and the entire following week is called for. The loss of a week’s pay sends a message that is loud and clear and is sufficient to make the point that tardiness, being absent without notifying the foreman and challenging a foreman when asked about being late is simply not acceptable. Therefore, I would direct the Company to compensate the Grievor the average of the hours worked by the crew on March 1st (9.4 hours), March 2nd (7.8 hours) and March 3rd (three labourers worked on that Saturday for 5.5 hours), in addition to the hours of compensation directed by the majority.
Therefore, I would have directed Company to pay the Grievor for 182.7 hours of work based on the Grievor’s straight time hourly rate under the collective agreement, also subject to the required deductions and remittances.
“A. Haward”
Board Member