FPSLREB Decisions
Decision Information
Suspension (5 days) - Insubordination - grievor received a five-day suspension for allegedly directing a threatening gesture towards two managers - to be specific it was alleged that he had raised his arms as if aiming a rifle in their direction - the resulting investigation revealed another prior incident wherein it was alleged that grievor handled a diving knife in a threatening manner during a discussion with one of these managers - grievor denied the allegations - there was conflicting testimony - adjudicator concluded that employer had failed to establish on the balance of probabilities that grievor had committed the acts of misconduct alleged against him. Grievance allowed.
Decision Content
File: 166-2-27016 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ROGER STANLEY Grievor and TREASURY BOARD (Canadian Heritage)
Employer
Before: Muriel Korngold Wexler, Deputy Chairperson For the Grievor: Barry Done, Public Service Alliance of Canada For the Employer: Peter Hajecek, Counsel Heard at Toronto, Ontario, January 27 and 28, 1997.
Decision Page 1 DECISION This decision concerns the grievance presented by Mr. Roger Stanley on January 23, 1995 against a five-day suspension. The employer imposed the five-day suspension on January 17, 1995, on the following grounds: On April 21, 1994, while walking across the parking lot of the Best Western, Otonabee Inn, in Peterborough, you turned around, stared at Ivan Smith and Bruce Kidd, two (2) Waterway Managers investigating the alleged misconduct of one of your maintenance crew members, and raised your arms as if aiming a rifle in their direction. As a consequence, Mr. Smith felt sufficiently threatened by your actions to initiate a charge of harassment against you.
An independent investigator, Maurice Cantin, Q.C. conducted an investigation into that incident, as well as several others raised by Mr. Smith and found you guilty of harassment in the April 21st incident. He also found you guilty of handling a diving knife in a threatening manner, during a discussion on March 16, 1994, once again, involving Mr. Smith.
You were provided with a copy of the report and given an opportunity to rebut the findings and correct any errors or omissions, prior to it being finalized. Neither you, nor your lawyer, Mr. Frank Johnson, chose to comment on the report or present any further evidence. As a result, in the absence of any information to the contrary, I have no alternative but to accept both the findings and the conclusion of Mr. Cantin, in that your behaviour was offensive, intimidating and threatening and constituted harassment against Mr. Smith.
.... (Exhibit 1) This grievance was duly referred to adjudication and heard January 27 and 28, 1997.
Evidence This grievance raises an issue of credibility. The grievor denies the allegations. The employer called Messrs. Ivan Smith and Bruce Kidd to testify, whereas in support of the grievor's position, Mr. Barry Done, representative for the grievor, called the grievor to testify on his own behalf, and Messrs. Douglas Neals, Roy Spears and Arnie Hockaday. In addition, the parties submitted seven exhibits and I granted a request for the exclusion of the witnesses.
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Decision Page 2 The Persons Involved in the Alleged Incidents Mr. Ivan Smith has been employed with Parks Canada (Canadian Heritage) since 1977. In 1992, he became the Sector Manager or Superintendent, Central Region, Trent-Severn Waterway. Mr. Roger Stanley reported to Mr. Bob Kerr, the Maintenance Supervisor, who in turn reported to Mr. Smith. Mr. Stanley started his employment with Parks Canada in May 1984 and, as of 1988, he has been the Maintenance Foreman (GLT-MAN-8-B2) at the Lakefield Maintenance Yard (north of Peterborough). Mr. Stanley was first in a term position and, since the spring of 1987, he has occupied an indeterminate full-time position. Mr. Stanley supervised Messrs. Roy Spears and Al Hoy, and other labourers. In addition, Mr. Stanley is a close friend of Messrs. Spears and Hoy.
Mr. Bruce Kidd has been employed at Parks Canada since 1971, first as an administrator trainee and, as of 1987, he was transferred to the Peterborough office where he became the Chief of Finance. In 1994, Mr. Douglas Neals was the Vice-president of Local 00056, Union of Canadian Transport Employees (UCTE), Public Service Alliance of Canada (PSAC). Mr. Roy Spears has been a Maintenance Repairman (GLT-MAN-6) and the Chief Shop Steward of the same Local. At the time of the hearing of this adjudication, Mr. Spears was the President of this Local. Mr. Arnie Hockaday was the President of the Local in 1994 and at the time of the events and the investigation into these incidents.
The Employer’s Version of the Alleged Incidents Mr. Ivan Smith, who in 1993-94 was the Sector Manager or Superintendent, Lakefield Office, testified that when he started as the Superintendent in September 1992 he had a normal working relationship with Mr. Stanley. However, in December 1993, he was assigned to an investigative team concerning “stop logs” found on Mr. Al Hoy’s private property. “Stop logs” are square timbers used in a dam to maintain water levels. Mr. Bob Kerr was the first one to notice the “stop logs” on Mr. Hoy’s property. He reported this to Mr. Smith, prompting Messrs. Kerr and Smith to drive by Mr. Hoy’s residence. From the road, Mr. Smith saw a cabin under construction with what appeared to be “stop logs”. Mr. Smith informed Mr. John Lewis, his immediate supervisor, of this. Then, Messrs. Lewis and Smith and
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Decision Page 3 other managers had a meeting where it was decided to involve the Ontario Provincial Police (O.P.P.). No legal procedures were instituted against Mr. Hoy. However, the employer initiated an internal investigation to determine whether misconduct had occurred. A committee was established to investigate. The Committee was comprised of Messrs. Smith, Bruce Kidd and Andrew Gadd, Director of Personnel, Ontario Region, Parks Canada. The mandate was to investigate the reason why the “stop logs” were on Mr. Hoy’s property. The Committee interviewed people and Mr. Stanley was scheduled to be interviewed (first on April 20 but it was later changed) at 11:00 a.m. on April 21. 1994, at the Otonabee Inn in Peterborough. However, the 11:00 a.m. interview did not take place; it was postponed. According to Mr. Smith, the 11:00 a.m. interview took place later that morning. (However, the evidence did establish that it took place at 1:30 p.m. that same day.)
Mr. Smith declared that the interviews were to take place in Room 203. This room is located on the second floor between two sets of stairs. At 11:00 a.m., Messrs. Stanley, Garrette Mahood and Roy Spears were scheduled to be interviewed. They arrived at 11:15 a.m. accompanied also by Messrs. Arnie Hockaday and Douglas Neals. Messrs. Kidd and Smith were waiting by the room. However, Mr. Gadd was absent because he was involved in a telephone conference elsewhere. Messrs. Smith and Kidd decided to tell the group of five to come back in five minutes. According to Mr. Smith, he told Mr. Hockaday, in the presence of the other four, Messrs. Spears, Neals, Mahood and Stanley, that Mr. Gadd was detained and, thus, the meeting was delayed and to come back in 15 minutes. Mr. Smith was adamant about his recollection of the events; he testified that Mr. Spears commented: “They can’t even organize a ‘f-----g’ meeting”, and that the grievor said that he had better things to do and used a profanity. Then, the group of five left, went down the stairs, and crossed the parking lot towards their vehicles. According to Mr. Smith, Mr. Stanley walked behind the other four. He walked alone. At one point, he stopped and turned around to look at Messrs. Smith and Kidd who were standing on the second floor balcony in front of Room 203. Mr. Smith was smoking. In the meantime, the other four kept walking whereas Mr. Stanley looked up at Messrs. Smith and Kidd, staring at them for one-half to one minute. Then, Mr. Stanley took a few steps further towards the parking lot, his back turned to Messrs. Smith and Kidd. Mr. Stanley stopped for a second time and turned around. He raised both arms as if he were pointing a weapon
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Decision Page 4 at Messrs. Smith and Kidd. Mr. Smith interpreted Mr. Stanley’s gesture as pretending to aim and shoot a rifle. One arm was up holding the “rifle”, the other arm was bent as if pulling the “trigger”.
Mr. Smith estimated that Mr. Stanley stayed in that position for about 10 seconds. He then lowered both arms, turned around and walked away towards the parking lot and parked cars. Mr. Smith saw no one else standing next or close to Mr. Stanley when he made the alleged gesture. Mr. Smith’s reaction to the gesture was to look at Mr. Kidd, who was standing next to him, and to ask him what Mr. Stanley was doing. Mr. Smith knew what Mr. Stanley had gestured but in his surprise he asked the question. Mr. Smith found it hard to believe that Mr. Stanley would do that. Mr. Kidd replied that he was pointing a rifle at them. Mr. Smith testified that he felt angry, frightened, and threatened, the more he thought about it. He thought that, if Mr. Stanley was capable of a threatening gesture like that in public, what would he do if they were alone at some future time.
Mr. Smith declared that he did not know whether at the time of Mr. Stanley’s walk he (Mr. Smith) was speaking to Mr. Kidd but he added that, if he had been speaking, it would have been with Mr. Kidd. He would not have spoken to Mr. Stanley and he would not have spoken about Mr. Stanley.
Mr. Smith could not recall how far behind Mr. Stanley was from the other four when he stopped twice and made the gesture. According to Mr. Smith, when Mr. Stanley stopped, the others continued proceeding forward and when he made the gesture they were out of sight. When Mr. Stanley pointed the pretend weapon, he was alone and Mr. Spears had walked ahead. Mr. Smith was sure that Mr. Spears was not beside or with Mr. Stanley at that time. Mr. Smith added that Mr. Stanley made the alleged gesture. He was not pointing with his finger at them. What he was doing was pointing a pretend weapon with one arm extended and he had the other arm folded at his chest as if to pull the “trigger”. Messrs. Smith and Kidd were standing shoulder-to-shoulder. Mr. Smith took the gesture as if Mr. Stanley had aimed at both of them. Mr. Smith felt intimidated by the gesture because Mr. Stanley had been glaring at him.
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Decision Page 5 Mr. Smith’s best guess was that this incident lasted 10 seconds because he felt that Mr. Stanley had held the pose for a long time. When Mr. Stanley performed the gesture, he was 180 to 210 feet away from Messrs. Smith and Kidd. After the gesture, he put his arms down and walked away. Mr. Smith did not call Mr. Stanley back and he did not know why he had not done so. Mr. Smith could have shouted and Mr. Stanley would have heard him. Mr. Smith testified that he did not want to get into a confrontational situation but he was angry and felt threatened. As time went on that day and the following days, Mr. Smith became more fearful for his well-being. This gesture was so surprising that it took time to sink in. However, Mr. Smith did not contact the local police force. He felt that the matter would be better dealt with in a disciplinary or staff relations environment. Despite his fears, Mr. Smith carried on with the investigation and interviewed Mr. Stanley. Mr. Smith explained that, at the time of the interview, he felt no fear because he was not meeting with Mr. Stanley alone. However, Mr. Smith felt that Mr. Stanley was capable of physically injuring him. In his view, Mr. Stanley was capable of inflicting such injury. In light of the gesture, Mr. Smith feared that this was possible and that there was a pretty good likelihood it would happen.
In Mr. Smith’s view, the gesture was aimed at him and Mr. Kidd because Mr. Stanley was upset with him as well as with Mr. Kidd for cancelling his leave. Mr. Smith declared that Mr. Stanley was interviewed twice on April 21, 1994. However, he insisted that the Committee’s interview of Mr. Stanley occurred later that morning and not at 1:30 p.m. In his recollection, when the interview took place that morning, April 21, 1994, Messrs. Stanley, Hockaday and Neals were present as was Ms. Donna Perry who took minutes. (Ms. Perry was the secretary of the Human Resources Manager, Mr. Doug Johnstone.) When Mr. Stanley was first interviewed, he refused to answer the Committee’s questions. The Committee members explained the purpose of the interview and proceeded to ask questions. Mr. Stanley remained standing even though he had been invited to sit down. He responded to the Committee’s questions with a question on another topic. Mr. Stanley wanted to know who had authorized the cancellation of his leave for the morning of that day. Mr. Kidd responded that he would take that responsibility. At that time, Mr. Smith was no longer working at the Trent-Severn Waterway; he had transferred to the Tobarmory National Parks. Mr. Kidd explained that he discussed his request for leave
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Decision Page 6 with Mr. Kerr. Mr. Stanley asked the three Committee members whether they knew what a Eucharist was. He appeared very angry. As the Committee members did not know, Mr. Stanley stated that “one of his children was at home crying because his father could not attend a religious function with his child”. Mr. Stanley was standing all along in front of the three Committee members. Mr. Stanley added that it was very important for him and his family that he be with his family. Then Mr. Stanley said to each of the Committee members: “Don’t mess with my family”. He was leaning on a table in front of the Committee members and pointed with his finger at each of them separately. One of the Committee members offered an apology. Mr. Kidd replied that he and Mr. Kerr had not been told why this leave was so important, to which Mr. Stanley replied that it was no one’s business what his leave was for. In addition Mr. Stanley asked whether the Committee thought they were the Gestapo. The Committee members tried to go on to another question concerning a certain written declaration made by Mr. Stanley. The fact that the members of the Committee had this document (which had been given in confidence to Mr. John Bonser, the then Acting Regional Executive Director) upset Mr. Stanley even further. At this point, Mr. Gadd asked Mr. Stanley to leave the room to enable him to consult with his union representatives. It was decided to adjourn Mr. Stanley’s interview until later that day. The whole “first” interview had lasted five to eight minutes. Mr. Spears was then called in for his interview and when he finished Mr. Stanley came back. According to Mr. Smith, when Mr. Stanley returned to meet with the Committee he had cooled down and he did answer some of the Committee’s questions. Mr. Smith testified that he knew nothing about Mr. Stanley’s request for leave for April 20 or 21, 1994.
As a result of the April 21, 1994 gesture which Mr. Smith interpreted as being a threat, the next day, on April 22, he wrote a formal complaint describing the incident (Exhibit 4). Mr. Smith felt that he had been a victim of harassment and Mr. Stanley should be accountable for it. Mr. Smith was familiar with the (Treasury Board) Harassment in the Work Place Policy (Exhibit 3) which he had brought to the attention of all employees. His complaint was investigated by Mr. Jean-Maurice Cantin, Q.C., in July and August 1994. When Mr. Smith was asked by Mr. Cantin if at any other time he had felt threatened by Mr. Stanley, Mr. Smith indicated that the April 21, 1994 incident had not been the first occasion and he related an incident that had occurred on March 16, 1994. Mr. Smith had not brought it to the attention of his supervisor or
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Decision Page 7 complained of or mentioned this incident to anyone before “because at the time of the March 16, 1994 incident it was not a concern to him”.
Concerning the March 16, 1994 incident, the evidence disclosed that, on that day, Mr. Hoy had received a letter informing him that he was suspended without pay pending the acceptance of a recommendation for his discharge. This indefinite suspension resulted from his having on his property the “stop logs” which Messrs. Smith and Kerr determined to be the employer’s property. Mr. Hoy was subsequently discharged; however, he was reinstated in 1995. Thus, March 16, 1994 was a difficult day for Messrs. Smith, Stanley, Spears and Neals. Messrs. Hoy and Spears were good friends of Mr. Stanley. In addition, Mr. Spears had information to the effect that Mr. Hoy had the permission of his superiors to use the “stop logs”. Mr. Spears had provided this information to Mr. Gadd. Thus, on March 16, 1994, the work environment was tense and difficult. Messrs. Smith and Kidd requested Mr. Stanley examine Mr. Hoy’s work equipment for the purpose of separating his personal effects from those of the employer. The inventory consisted of diving equipment. The employer had issued a number to identify each item and Mr. Stanley was assigned the task of identifying the items and turning over to Mr. Smith those belonging to the employer.
The March 16, 1994 day started with a meeting with Mr. Hoy where he was given his letter of indefinite suspension without pay. After the meeting, Messrs. Smith and Kidd went with Mr. Stanley and Mr. Neals, who was there as an observer, to Mr. Hoy’s locker in another building. During the adjudication hearing, this locker was called different names: dive or diver locker, cubicle, diving shed or lock-up. This locker had been built by the grievor. It measures 4 x 8 feet (Exhibit 5A) and against the back wall there are two (one grey, the other one darker) transport boxes (Exhibit 5B). The back wall measures 8 feet in depth. The distance between the back wall and the two boxes is 18 inches, enough room for a person to squeeze behind the boxes. On Friday, January 24, 1997, the grievor took three Polaroid pictures of this locker which were submitted in evidence at the adjudication of this grievance as Exhibit 5 (A, B and C). This cubicle is kept locked and only Mr. Hoy and the grievor have keys; the purpose of this locker is to store diving equipment. The grievor and Mr. Hoy are divers doing maintenance work for the employer. They both kept their diving equipment in this locker. Mr. Hoy kept his equipment in the grey transport Public Service Staff Relations Board
Decision Page 8 box. On March 16, 1994, Mr. Smith requested the grievor to go through the diving gear and identify Mr. Hoy’s Crown issued equipment. The grievor asked Mr. Neals to be a witness to ensure that all of Mr. Hoy’s Crown issued items were returned to Mr. Smith. On March 16, 1994, the inventory consisted of scuba or wet suits, two scuba tanks, flippers, regulators, and three knives. Mr. Hoy’s wet suit was smaller than the grievor’s.
Mr. Smith testified that during the examination of the diving inventory on March 16, 1994, he observed Mr. Stanley holding a knife in a holster while Messrs. Kidd and Neals went through the inventory. Mr. Smith saw Mr. Stanley hold the knife in a threatening fashion. The grievor was looking at Mr. Smith while he held the knife in one hand, passing it from one hand to the other, and pulling and pushing the knife in and out of the holster (all the while looking at Mr. Smith). Mr. Smith explained that it would have been reasonable for the grievor to take the knife out of its sheath once to look at it but it was not necessary to do so repeatedly. Mr. Smith stated that this gesture made him feel somewhat uncomfortable but since Messrs. Kidd and Neals were present and there was a box between him and Mr. Kidd and the grievor and Mr. Neals, he did not complain about this incident. However, Mr. Smith did think that this was a very bold thing for the grievor to do.
When Mr. Smith thought about this incident later, he did feel threatened because he knew that Messrs. Stanley and Hoy had been good friends (for seven years). Mr. Smith saw no point in discussing this or the April 21, 1994 incident with the grievor because he could easily deny it, and by April 21, 1994 the grievor was no longer under his supervision. Mr. Smith declared further that he grew up on a farm in Prince Edward Island and for him the word “farmer” has no derogatory connotation and he would not use this word in a derogatory manner or sense.
In cross-examination, Mr. Smith testified that before visiting Mr. Hoy’s property, he did not ask him for an explanation concerning the “stop logs”. Later on the same day as that visit, Mr. Hoy came to Mr. Smith’s office and asked whether the latter had anything he wanted to discuss with him. Mr. Smith responded by asking whether he (Mr. Hoy) had anything he wanted to discuss with him. Mr. Hoy explained that the reason he was at home on the day of Mr. Smith’s visit to his property with a vehicle belonging to the employer was to pick up a table for a Christmas function for
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Decision Page 9 the employer. In Mr. Smith’s view, he gave Mr. Hoy an opportunity to discuss the presence of the “stop logs” on his property. However, Mr. Hoy made no mention of these “stop logs” which Mr. Smith felt was an important matter. Messrs. Smith and Hoy attended the Christmas function and, again, no mention was made of these “stop logs”. Mr. Smith explained that he did not discuss this matter on the advice of the “Crown prosecutor” who suggested that an internal investigation be conducted first because Mr. Hoy had informed management that he had been given permission by Mr. Kerr to take the “stop logs” home.
Mr. Bruce Kidd started with Parks Canada as an administrator trainee in 1971. He was transferred to the Peterborough office in 1987 and became the Chief of Finance. He learned about the “stop logs” affair on December 20, 1993, when Mr. Bob Kerr (the Manager of the Lakefield office) and Mr. Smith came to see him, Mr. John Lewis (who was Mr. Smith’s supervisor and the Superintendent) and Mr. Fred Alyea (Director of Canal Operations) about this matter. Messrs. Kerr and Smith explained that “stop logs” were missing and they had found a log house on Mr. Hoy’s property. The matter was discussed and it was decided to notify the O.P.P. An O.P.P. officer met with this group and a search warrant was obtained. The following Saturday, Messrs. Kerr and Kidd and the O.P.P. officer conducted a search on Mr. Hoy’s property. They found a partially constructed log cabin which was 20 x 24 square feet and six to ten feet high. They identified the logs as those from the Trent-Severn dams. One of Mr. Kidd’s responsibilities was head of security for the Trent-Severn Waterway. Thus, an investigative team was formed comprised of Messrs. Kidd, Smith and Gadd. The investigation started around the 4th of January 1994. Mr. Hoy remained in his duties during the investigation until March 16, 1994 when he was suspended pending his discharge. The letter of suspension was given to Mr. Hoy at the “Lakefield Shops” and he was required to remove his personal effects. Mr. Douglas Neals was his union representative. Thus, Messrs. Stanley, Smith, Neals and Kidd went to the locker to identify the diving equipment. Mr. Kidd confirmed also that Messrs. Hoy and Stanley were and are good friends.
Mr. Kidd testified that during the taking of the diving inventory, he and Mr. Neals were standing near the entrance. Mr. Smith was beside Mr. Kidd and Mr. Stanley was taking the items and separating Mr. Hoy’s personal effects. Mr. Stanley was inside the cubicle and walked in and out of it. Mr. Stanley was the Public Service Staff Relations Board
Decision Page 10 only one who could identify Mr. Hoy’s personal effects. Mr. Kidd never entered the cubicle (locker). Mr. Kidd paid no attention to the number of knives Mr. Stanley handled and looked at. However, Mr. Stanley did speak up when he identified Mr. Hoy’s knife. Mr. Kidd added that one of the items picked up by Mr. Stanley was a hand knife, six to eight inches long, belonging to Mr. Hoy. Mr. Kidd saw Mr. Stanley play with the knife. He was taking it in and out of its sheath (holster), grabbing it in a kind of suggestive gesture. Mr. Kidd felt uneasy; he realized how easy it would be for Mr. Stanley to use the knife. According to Mr. Kidd, when Mr. Stanley performed this “in and out” action, he was not looking at anyone in particular. Mr. Kidd explained that, when Mr. Stanley played with this knife, he came to the entrance of the locker. Mr. Kidd noticed Mr. Stanley play with only one knife. Mr. Stanley did not point or remove the knife totally from its cover. Mr. Kidd felt relieved when they left the small enclosure of the locker. At the end of the day, Messrs. Smith and Kidd had a parting discussion about the gesture with the knife but they did not raise the matter formally. Mr. Kidd did not bring this gesture to the attention of his supervisor, nor did he write a letter of complaint because “his main focus or interest was to finalize the investigation”.
Mr. Kidd was also present on April 21, 1994. Mr. Kidd’s recollection of the events of that day are as follows. The interviews with Messrs. Stanley, Spears and Mahood had been scheduled for 11:00 a.m. They were represented by Messrs. Neals and Hockaday. At 11:15 a.m., the group of five (Messrs. Stanley, Spears, Mahood, Neals and Hockaday) arrived. However, Mr. Gadd had been delayed. Mr. Kidd saw them park and walk towards the “interview room”. Because Mr. Smith told the group that Mr. Gadd had been delayed, they left. Mr. Kidd confirmed Mr. Smith’s account that at some 10 to 15 feet away, Mr. Spears made the comment: “They can’t arrange a f-----g meeting”. Mr. Kidd observed the group walk across the parking lot. About halfway, Mr. Stanley slowed down while the other four kept walking. Mr. Stanley stopped and stared at Messrs. Kidd and Smith for about 30 seconds. Mr. Kidd indicated that this stare was quite noticeable. There was nothing obstructing Mr. Kidd’s view of Mr. Stanley. Then, Mr. Stanley walked on for another few feet, stopped a second time and turned around. At this point, he was some 180 to 210 feet away from the balcony where Messrs. Smith and Kidd were standing. He then made the gesture pretending to point a rifle. Mr. Kidd declared that it was a very clear
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Decision Page 11 gesture imitating the action of pointing a rifle. Mr. Stanley used his two hands. Mr. Stanley was alone when he made the gesture. Mr. Kidd could not recall which of Mr. Stanley’s arms was extended but he clearly remembered seeing both arms used to make the gesture, one arm up and the other in a “trigger” position. Mr. Kidd estimated that Mr. Stanley held this gesture for about five seconds.
Mr. Kidd declared that he and Mr. Smith had not spoken or called out to Mr. Stanley to prompt such a gesture. They were standing close to each other watching Mr. Stanley and, if they spoke to one another, it would have been in a very low voice. Moreover, Mr. Kidd noticed no one standing next or close to Mr. Stanley when he made the gesture. The other four members of the group were some 30 or 40 feet away, walking towards their vehicles. After seeing this gesture, Messrs. Smith and Kidd said nothing to Mr. Stanley. They did not speak or call out to him. However, Mr. Smith did ask Mr. Kidd whether he saw the gesture: “Did you see that, look at that”. When Mr. Stanley made the motion, Mr. Kidd felt a bit uneasy and angry.
According to Mr. Kidd, Mr. Gadd arrived at the Otonabee Inn at 11:30 a.m. In the early afternoon, Messrs. Kidd, Smith and Gadd met with the two union representatives (Mr. Doug Neals and Mr. Arnie Hockaday) and, in light of the bargaining agent's insistence that the interviews be recorded, Ms. Donna Perry was called to act as recording secretary. According to Mr. Kidd, the interviews were to start at around 1:00 p.m. that day. The spokesperson for the investigative committee was either Mr. Gadd or Mr. Smith. Mr. Stanley was scheduled to be interviewed first. Mr. Stanley was upset and angry because his request for leave had been cancelled. He glared at the three members of the Committee. The members of the Committee asked him a couple of times to sit down but he refused. He asked who was responsible for the cancellation of his leave and Mr. Kidd acknowledged that he was the one, to which Mr. Stanley replied with a “long nasty lecture”. Mr. Stanley went into the fact that “he had made a statement to Mr. Gadd” which he thought he had made in confidence. He also called the Committee the Gestapo and Mr. Kerr a liar. During this display of anger, the three members of the Committee were seated across the table from Mr. Stanley who remained standing, glaring at them.
Mr. Kidd declared that, prior to this meeting, the members of the Committee had had difficulty arranging for interviews and meetings because Mr. Gadd was
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Decision Page 12 coming from Cornwall. The previous Tuesday, April 19, 1994, Mr. Kerr had called Mr. Kidd to inform him that Mr. Stanley had requested annual leave for April 21 and 22, 1994. The following day, Wednesday, April 20, Mr. Kidd tried to talk to Mr. Stanley concerning his request for leave. Mr. Kidd asked Mr. Stanley the reason for such leave. Because Mr. Stanley did not answer, Mr. Kidd asked him if he was going to meet with the Committee on the next day, Thursday, April 21, 1994. Again, Mr. Stanley did not answer. Mr. Kidd testified that he did not approve the leave because Mr. Stanley provided no reason for his request. Moreover, the Committee had held interviews in January 1994 and the people summoned requested that the questions be in writing and “refused to answer oral questions on the advice of their lawyers”.
On April 21, 1994, Mr. Stanley told Messrs. Kidd, Smith and Gadd that he wanted the leave “to go to his daughter’s Eucharist”. Mr. Stanley felt very strongly about his attendance and that it had an impact on his family. While Mr. Stanley was explaining this, he was pointing at each of the members of the Committee. When Mr. Stanley was six inches from Mr. Kidd’s face, he said: “Do not mess with my family”. At this point, Mr. Gadd asked Messrs. Hockaday and Neals to accompany Mr. Stanley out of the room. Mr. Kidd declared further that the Committee wanted the investigation completed and since Mr. Stanley was upset, they suggested that he be removed from the room. The Committee discussed how they were going to proceed further with the interviews. They decided to continue with the interview of Mr. Spears and then recall Mr. Stanley.
The interview of Mr. Spears lasted a good couple of hours and when Mr. Stanley returned to the room, he did respond to the Committee’s questions. However, Mr. Stanley still remained standing throughout the interview. No mention was made of his earlier gesture (aiming a rifle). Mr. Kidd explained that no questions were asked concerning this gesture because “he and Mr. Smith wanted to keep the situation calm”.
In May 1994, the Committee wrote a report at the conclusion of their investigation. Moreover, Mr. Jean-Maurice Cantin interviewed Mr. Kidd on August 18, 1994 and submitted his report on October 5, 1994.
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Decision Page 13 The Grievor’s Evidence Relating to the Alleged Incidents Mr. Douglas Neals testified that, in 1994, he was the Vice-president of Local 00056 and, at the time of the March and April 1994 events, he and Mr. Stanley had known each other for eight years.
In March and April 1994, Mr. Neals was Mr. Stanley’s union representative with respect to the investigation into the Hoy affair. On March 16, 1994, Mr. Neals was present when Mr. Hoy received his letter of suspension and handed the keys over to the employer. Then, Messrs. Smith and Kidd asked Mr. Stanley, as Mr. Hoy’s supervisor, to clear the diver locker after Messrs. Hoy and Neals had cleared the former’s personal locker. Then, Messrs. Smith, Kidd, Neals and Stanley went to get the employer’s diving equipment assigned to Mr. Hoy. This equipment was in the locker which is 4 x 8 feet long. Mr. Stanley identified the equipment. He was the only one standing inside the locker. Some of the diving equipment was hanging on hooks on the walls and the tanks were on the floor, whereas the harness, flippers, regulators, knives, etc., were in transporting boxes. These boxes are used to transport the diving equipment from the shed; they are placed on a truck and driven to the place of diving. Mr. Stanley worked inside the shed or locker identifying the equipment and looking at the identification number on each item. He was standing inside the five feet off the right side of the door. The diver boxes were also to the right of the door. Mr. Neals was standing in the doorway, partially inside and outside the shed. The doorway is about 30 to 36 inches wide. The identification process took about eight to ten minutes. The “diving knives” were part of the diving equipment.
According to Mr. Neals, Mr. Stanley handled three knives. Mr. Neals saw Mr. Stanley hold each of the three knives horizontally, then pull each halfway out of its sheath, look at the identification number on the blade, and then examine and push the blade back in its sheath. Mr. Stanley put two knives back in the diver box and the third knife he gave to Mr. Neals because it was the one issued by the employer to Mr. Hoy. Mr. Neals then handed it over to Mr. Smith. All three knives were similar, identical styles, and they were in black rubber scabbards.
Mr. Neals pointed out that the situation was intense, fairly grave, and serious. Mr. Hoy had just been suspended pending his discharge. Mr. Stanley did not hand
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Decision Page 14 over any of the equipment directly to Messrs. Smith or Kidd. All the equipment went first through Mr. Neals. There was little talking. Mr. Neals acknowledged that he could not pay 100 percent attention to what Mr. Stanley was doing because, at times, his back was turned. Mr. Neals added that it is possible that Messrs. Kidd and Smith saw Mr. Stanley making a threatening gesture with one of the knives and that he (Mr. Neals) missed seeing that. Mr. Neals added that there was nothing in Mr. Stanley’s behaviour that day that made him feel uncomfortable. Moreover, Messrs. Kidd and Smith said nothing concerning Mr. Stanley’s behaviour or “that something made them uncomfortable”. There was very little conversation during the taking of the diving inventory.
The first time Mr. Neals learned that an incident might have occurred on March 16, 1994 was when Mr. Cantin interviewed Mr. Smith. Following Mr. Smith’s interview, Mr. Cantin sent a letter to Mr. Stanley describing Mr. Smith’s allegations concerning the gestures with the knife and the pretend aiming of a rifle. Mr. Cantin asked Mr. Stanley for his comments and to respond to allegations of harassment.
Concerning the April 21, 1994 events, Mr. Neals made the following declarations. Messrs. Stanley, Spears and Mahood were scheduled to be interviewed at 11:00 or 11:30 that morning in one of the rooms at the Otonabee Inn. He and Mr. Hockaday were present as the union representatives. Messrs. Hockaday and Neals drove alone in their respective vehicles to the Otonabee Inn. Messrs. Stanley, Spears and Mahood came together in a vehicle which was the property of the employer. When all five arrived at the Inn, the order of the interviews was not yet known. All five walked together across the parking lot to the staircase and went up the stairs to the second floor towards the interview room. They were met at the top of the stairs, by the entrance door close to the interview room, by Messrs. Smith and Kidd. The group was told that Mr. Gadd was not there and Mr. Spears commented that “they could not organize a one-sandwich picnic”. Mr. Neals was not aware of any profanity used at that time. Moreover, Mr. Stanley made no comment at that time. Mr. Spears did not use the “f” word and he did not say “f-----g meeting”. According to Mr. Neals, Mr. Spears is quite humourous. Mr. Neals added that he remembered that sentence quite vividly. Messrs. Smith and Kidd told Mr. Hockaday to go back to his workplace (the Mechanic Shop on Ashburn Street, Peterborough) and the other three (Messrs. Stanley, Spears and Mahood) should go to their normal work site. Public Service Staff Relations Board
Decision Page 15 Messrs. Smith and Kidd would then call Mr. Hockaday to let him know when the interviews would take place and Mr. Hockaday would then inform the other three. Mr. Neals was on leave and decided to stay and wait with Mr. Hockaday.
Mr. Neals declared that Messrs. Smith and Kidd never told them to return in 15 minutes. The instructions were to return to work and wait there for further instructions. As soon as Messrs. Spears, Mahood and Stanley heard Messrs. Smith and Kidd say that there was no meeting, they went towards the bottom of the stairs and waited there for Messrs. Neals and Hockaday. Messrs. Hockaday and Neals remained on the second floor talking with Messrs. Smith and Kidd. Then, they went down and all five started walking across the parking lot towards their respective vehicles. There was normal chatter. Messrs. Neals, Hockaday and Mahood walked some 10 feet in front of Messrs. Spears and Stanley. It took about 40 to 50 seconds to reach their vehicles. During this walk, Mr. Neals did not observe Mr. Spears or Mr. Stanley. Mr. Neals declared that when he reached his vehicle, Messrs. Spears and Stanley were right behind him within the same 10 feet distance. He did not have to wait for them. Mr. Neals added that Mr. Mahood could not have waited 30 seconds for Messrs. Stanley and Spears because the walk across the parking lot took only 40 to 50 seconds. Mr. Neals timed the walk on the evening of January 27, 1997.
After lunch, Mr. Hockaday informed Mr. Neals that the interviews were on again at 1:30 p.m. and they went to advise the other three. The issue of the taking of the minutes was not raised in the morning, but at 1:30 p.m. when all five returned to the Otonabee Inn. Ms. Perry was located two miles from the Otonabee Inn.
Mr. Neals declared that he was disappointed when they were told at 11:00 a.m. that Mr. Gadd was absent and the interviews were cancelled for that morning. However, he did not observe Mr. Stanley’s mood. Mr. Stanley made no comment to him. According to Mr. Neals, Mr. Stanley does not have a short fuse. He is, however, animated when he speaks. He uses his arms and hands, leaning over to speak and make his point.
Mr. Roy Spears testified that he has been employed as a Maintenance Repairman (MAN-6) reporting to Mr. Stanley. He was also a Chief Shop Steward for Local 00056 and, at the time of the hearing of this adjudication, the President of
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Decision Page 16 Local 00056. Messrs. Stanley and Spears have been close friends for the past six to seven years. Mr. Spears declared that he is loyal to his friends. Messrs. Stanley and Hoy have also been close friends. Mr. Spears confirmed Mr. Neals’ testimony concerning the events of April 21, 1994. Mr. Spears explained that he has some hearing loss; there are some sounds he cannot hear. Mr. Spears recalled that Mr. Smith informed the group of five that the Committee was not prepared to go ahead with the 11:00 a.m. meeting because Mr. Gadd was unavailable and that “they” would contact Mr. Hockaday to let them (the group of five) know when the meeting would take place. Mr. Smith told the group to return to their job site. Thus, Mr. Spears returned to the Peterborough lift lock with Messrs. Stanley and Mahood and they went on with their work. Mr. Spears had arrived and left the Otonabee Inn with Messrs. Stanley and Mahood in one vehicle. Mr. Stanley had been the driver.
Mr. Spears declared that, when Mr. Smith informed the group that the meeting was postponed and to wait for further notice through Mr. Hockaday, he said, as a general comment: “They could not organize a one-sandwich picnic”, and no one responded to this remark. Mr. Spears was adamant that he used no profanity and he was looking at no one in particular when he made this remark. Then, he and Messrs. Stanley and Mahood went down the stairs and waited at the bottom of the stairwell for Messrs. Hockaday and Neals.
Concerning the alleged gesture, Mr. Spears’ testimony was as follows. When all five congregated at the bottom of the stairs, they proceeded to leave the building. Messrs. Stanley and Spears were at the tail end of the group. Mr. Stanley walked beside Mr. Spears on the latter’s right. The other three were ahead, some two to three paces ahead of Messrs. Spears and Stanley. Mr. Spears heard Mr. Smith talking. Mr. Spears “felt” that Mr. Smith was saying something about him and the group. Mr. Spears was adamant that he heard Mr. Smith’s voice which is very distinct. Mr. Smith was some nine to ten feet above Mr. Spears, standing on the balcony with Mr. Kidd, and some 15 to 20 feet away.
Mr. Spears could not hear what Mr. Smith was saying but he could hear voices. Mr. Spears had “the intense feeling” that Mr. Smith was saying something “negative”. Mr. Spears had a “gut feeling”. Mr. Spears added that he “knew” that he was being stared at and that Mr. Smith was there staring at the group. Mr. Smith has a lower
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Decision Page 17 voice than Mr. Kidd. Mr. Spears was sure that he heard Mr. Smith and that it was not his “gentleman” tone; it was not a complimentary tone. Mr. Spears heard a sarcastic tone and he “felt” that Mr. Smith was challenging him for his earlier remark. However, Messrs. Stanley and Spears continued walking shoulder-to-shoulder. Mr. Spears added that they did not stop when he heard the “voices”. According to Mr. Spears, Mr. Stanley never stopped but what he did was to turn towards Mr. Smith and pointing in general asked: “Did you hear what he just said”, to which Mr. Spears replied: “Yeah, that’s the whole problem with this place”.
Mr. Spears was adamant that Mr. Stanley may have broken his stride but that he never stopped. Mr. Spears saw Mr. Stanley use his left hand when he pointed towards the balcony. Mr. Stanley just held up his left arm and he lifted only one arm all the while they kept walking. Mr. Spears could see Mr. Stanley’s face when he pointed at the balcony. Mr. Spears added that he could see both of Mr. Stanley’s hands when the alleged gesture was made. (However, a demonstration by the grievor showed that Mr. Spears could not have seen Mr. Stanley’s right arm and hand.) Mr. Spears looked up to the balcony where Mr. Stanley’s left hand pointed. According to Mr. Spears, Mr. Stanley’s right hand remained down by his side. Mr. Spears was sure that Mr. Stanley did not make the gesture of “aiming a rifle”. Messrs. Spears and Stanley maintained all along the two- to three-pace distance from Messrs. Neals, Hockaday and Mahood. The distance between them never increased. However, Mr. Mahood, who is a fast walker, was in front of Messrs. Neals and Hockaday and he went right on to the vehicle he had arrived in. When Messrs. Spears and Stanley arrived at the truck, Mr. Mahood was already seated inside.
Mr. Spears confirmed that the group went back to work. Messrs. Spears, Stanley and Mahood worked at the bottom of the lift locks and they had no telephone so Mr. Hockaday came to inform them that the meeting was to resume at 1:30 p.m.
At 1:30 p.m., Messrs. Spears, Stanley and Mahood returned to the Otonabee Inn. Messrs. Hockaday and Neals were already there. Messrs. Hockaday and Neals went to meet with the Committee and, in the meantime, Messrs. Spears, Stanley and Mahood waited in their truck. A few minutes later, Messrs. Neals and Hockaday returned and explained that they had asked for a recording secretary. Shortly thereafter, Ms. Perry arrived in her own vehicle. Then, Mr. Stanley went to the meeting room for a short
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Decision Page 18 period and then Mr. Spears was interviewed for quite a long time. After his interview, Mr. Spears left the Otonabee Inn. Mr. Spears testified that he “knew” that Mr. Hoy had permission to take the ‘“stop logs” and that Mr. Stanley did not assist him in the taking of these “stop logs’”.
Mr. Peter Hajecek, counsel for the employer, challenged Mr. Spears’ testimony. He confronted him with a statement he had given to Mr. Jean-Maurice Cantin and signed on August 18, 1994 (Exhibit 6). In this signed declaration, Mr. Spears states that it was Mr. Stanley who said “that’s the whole problem”, whereas in his testimony at this adjudication, Mr. Spears declared that he was the one who uttered that phrase. Furthermore, attached to his signed statement is a diagram (Exhibit 6) where Mr. Spears marked where the “pointing” gesture had taken place. This location proved erroneous. In his testimony at this adjudication, Mr. Spears corrected this and identified the proper place where the gesture occurred, which coincided with the location identified by all witnesses. Mr. Spears explained that the erroneous statement and identification of the location where the “pointing” took place occurred because he had been under duress and upset when he was interviewed by Mr. Cantin. The interview on August 18, 1994 had been stressful because of a disagreement between Mr. Spears and Mr. Cantin concerning Mr. Spears' right to union representation at that meeting. Mr. Cantin would not permit Mr. Spears' union representative to be present. The interview took place and Mr. Cantin asked Mr. Spears to sign a “statement” (Exhibit 6). Mr. Spears testified that he got mixed up that day as to where the flowers were located on the diagram and who said what at the time of the gesture. He explained that at that time, he was going to so many meetings concerning the Hoy affair and he felt that “nobody was listening”.
Mr. Spears added that he did refuse to meet and give a statement to Mr. Cantin but Mr. Rick Szabunia, Superintendent, threatened him with discipline if he did not do so. Mr. Cantin ordered Mr. Spears to sign the statement and gave him the impression that it was a mere formality. Mr. Cantin talked to him about cooperation and since Mr. Spears was upset, he signed it. Mr. Spears declared that he felt intimidated and Mr. Cantin gave him no options.
Mr. Arnie Hockaday testified that he knew Ms. Donna Perry, secretary to the Manager of Human Resources, Mr. Doug Johnstone. Ms. Perry was also a member of
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Decision Page 19 Local 00056 of which Mr. Hockaday was the President. In addition, Ms. Perry was the recording secretary at the labour management meetings. Mr. Hockaday had requested that she attend the April 21, 1994 interviews because in the past there had been discrepancies as to what had been said at meetings and interviews. Mr. Hockaday had made this request on or about April 7, 1994 to Mr. John Bonser, who at the time was the Acting Regional Executive Director.
The bargaining agent did not want any problems concerning statements made at these interviews in light of the importance of the issues in question. Mr. Hockaday had been led to believe that Ms. Perry would be present on April 21, 1994 but when the group arrived at 11:00 a.m., this proved not to be so. Her presence was not discussed at 11:00 a.m. because of Mr. Gadd’s absence but it was raised at 1:30 p.m.
Mr. Hockaday confirmed Messrs. Neals’ and Spears’ testimony as to the events of April 21, 1994 concerning Ms. Perry and the scheduling of the meeting at 1:30 p.m. Mr. Hockaday declared that it was he who at 11:00 a.m. told Messrs. Smith and Kidd that Mr. Stanley had a work crew at the lift lock and the crew’s lunches were in his truck. Thus, Mr. Stanley had to get back to them. Mr. Hockaday asked Messrs. Smith and Kidd whether they could call him at his shop with the time of the interviews and he would then contact Messrs. Stanley, Spears and Mahood at the lift lock.
Around the lunch hour, Mr. Hockaday was called and he and Mr. Neals drove to the lift lock to inform the other three. Mr. Hockaday drove alone to the Otonabee Inn and arrived at 1:20 p.m. He noticed that Ms. Perry was not present and then Mr. Neals arrived. Messrs. Hockaday and Neals went up to the meeting room and asked Mr. Gadd where the recording secretary was. Mr. Gadd replied that Ms. Perry was not needed. However, Mr. Hockaday insisted. He told Mr. Gadd that “they” (the group of five) were at the meeting because they were paid to be there but they would provide no information. Mr. Gadd asked that they leave the room and Messrs. Hockaday and Neals complied and waited outside the room. Then, Mr. Gadd called them back in and informed them that Ms. Perry would be there shortly. Ms. Perry did arrive and took notes as expected. That day, Mr. Hockaday was Mr. Mahood’s union representative whereas Mr. Stanley was represented by Mr. Neals.
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Decision Page 20 Concerning Mr. Stanley’s gesture, Mr. Hockaday testified that when the group was told at 11:30 a.m. that the meeting was cancelled, Mr. Spears made a comment, saying something about “sandwich” and “picnic”. To Mr. Hockaday’s knowledge, Mr. Spears did not swear. Then, Messrs. Stanley, Spears and Mahood left and went down the stairs. Messrs. Hockaday and Neals joined them down the stairwell and all five walked towards their respective vehicles. Messrs. Stanley and Spears walked about one arm’s length behind Messrs. Hockaday and Neals. According to Mr. Hockaday, all five were close. Messrs. Hockaday, Neals and Mahood talked amongst themselves during their walk as did Messrs. Stanley and Spears. At one point during this walk, Mr. Hockaday heard voices and heard someone make a comment behind him; therefore he turned and saw Messrs. Smith and Kidd standing on the balcony. Mr. Hockaday got a glimpse of them but some trees were blocking his view. Mr. Hockaday did not stop to look. For most of the part of his walk, Mr. Mahood walked a little behind Mr. Hockaday on his left. When Mr. Mahood arrived close to the vehicles, “he walked ahead, a little in front of Messrs. Hockaday and Neals”. The first vehicle was Mr. Neals’. When Mr. Hockaday arrived at Mr. Neals’ vehicle, Mr. Mahood was some 10 feet ahead at the vehicle he had arrived in, whereas Messrs. Spears and Stanley were 10 feet behind. However, all five were within talking distance. Mr. Hockaday declared that to his knowledge Mr. Stanley did not stop at any time during this walk across the parking lot.
In the afternoon of April 21 and after Mr. Stanley had been in the room for about 20 minutes, he and Mr. Neals came out and joined Mr. Hockaday at his vehicle where he was sitting waiting with Mr. Mahood. Mr. Neals informed Mr. Hockaday that Mr. Gadd wanted to see him. So, Messrs. Hockaday and Neals returned to the room and Mr. Gadd told them that “Mr. Stanley was not cooperating and they felt threatened by his behaviour, namely, pointing with his hand and the way he was talking to them”. Mr. Gadd instructed Mr. Hockaday “to talk to Mr. Stanley and if he was to calm down and wanted to help his buddy, there would be no disciplinary action taken, although he was close to it”.
Mr. Hockaday perceived this promise to apply to the 1:30 p.m. meeting. He knew that Mr. Stanley had also been upset that morning because of the cancellation of his leave. In his view, Mr. Stanley had been upset that whole day. The first time the employer contacted Mr. Hockaday concerning the April 21 alleged incident was quite Public Service Staff Relations Board
Decision Page 21 sometime later; it was months after and the bargaining agent did not expect any disciplinary action concerning the events of April 21, 1994 because of Mr. Gadd’s promise.
Mr. Roger Stanley, the grievor, recalled the events of March 16 and April 21, 1994 as follows. Mr. Stanley related that he began his employment with Parks Canada in a one-year term maintenance position in 1986. In 1987, he accepted an indeterminate position and, as of 1988, he has been occupying the GLT MAN-8-B-2 Maintenance Foreman position at the Lakefield Maintenance Yard (which is located north of Peterborough). Mr. Stanley reported to Mr. Bob Kerr until December 1995. Mr. Stanley’s work performance has been rated superior with respect to his interpersonal relationships with co-workers and superiors. Moreover, prior to January 1995, Mr. Stanley had no disciplinary record.
Mr. Stanley declared that he and Mr. Hoy have been friends for seven years and they have a close friendship. Mr. Stanley is loyal to his friends. Mr. Stanley added that Mr. Hoy had permission to take the “stop logs”. Moreover, Mr. Stanley believed Mr. Hoy to be unequivocally innocent. In his view, the investigation in Mr. Hoy’s case was a complete waste of time.
Thus, the atmosphere on March 16, 1994 was tense. Mr. Stanley had asked for Mr. Neals’ presence because he wanted a witness. Mr. Stanley felt uneasy because Messrs. Smith and Kidd did not have an itemized list of the equipment. Mr. Stanley was upset, although he was not angry. Mr. Stanley was upset because Mr. Hoy had received his letter of suspension 10 minutes before the inventory exercise. Mr. Stanley could not believe that Messrs. Smith and Kidd would suspend Mr. Hoy in view of the evidence provided by himself and others. Mr. Stanley denied any wrongdoing on his part with respect to both alleged incidents.
Mr. Stanley testified that on March 16, 1994, the exercise of turning over the equipment to Mr. Smith took 10 minutes. He was the only one working inside the locker (lock-up or shed). He never went out of the shed during this inventory exercise. There were three diving knives in the locker. They were hanging on a wall directly above in front of the transportation boxes. The knives covered with their sheaths are about 10 inches long. Mr. Stanley recalled that on March 16, 1994, the knives were the
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Decision Page 22 second last thing out (the last one was Mr. Hoy’s wet suit). Mr. Stanley estimated that he was in contact with each knife for about 40 seconds (at the least, less than one minute). Mr. Stanley denied that he moved the knife (or knives) from hand to hand. However, he did take two of the knives part way out of their sheaths to look at their identification number. He saw that the first two knives were Mr. Hoy’s and his. So, by a process of elimination, he did not have to examine the third knife which was the employer’s property and he handed it over to Mr. Neals. Mr. Stanley declared that he made no gestures to Mr. Smith. He was busy sorting out the equipment. He paid no attention to Messrs. Smith or Kidd and he did nothing to cause them to be uncomfortable. Moreover, there was no indication to Mr. Stanley that Messrs. Kidd and Smith felt uncomfortable. Mr. Stanley added that these diving knives are not sharp; they are actually tools with a blunt, squared off end.
This alleged knife incident was brought to Mr. Stanley’s attention in August 1994. Furthermore, even in May or June 1994 when Mr. Kerr gave Mr. Stanley a copy of Mr. Smith’s complaint dated April 22, 1994 (Exhibit 4), no mention was made of the alleged March 16 knife incident.
Mr. Stanley related an incident he had with Mr. Smith on March 31, 1994 at which time no mention was made of the March 16 “alleged” incident or that Mr. Smith felt fear and intimidation. March 31, 1994 was Mr. Smith’s last day as supervisor in Peterborough. Mr. Stanley approached him in the parking lot at work and expressed his concerns about the way he had handled the Hoy affair and that he had overwhelming proof of Mr. Hoy’s innocence. Mr. Stanley told him that he (Mr. Smith) still had the power to make things right and if he was that kind of man he would do so. Mr. Smith replied that it was out of his hands, that his hands were tied. Mr. Smith started to weep and Mr. Stanley left in his truck to go to the lift lock. Mr. Stanley explained that his style is to talk and confront when he has concerns and this is the way he dealt with Mr. Smith. Mr. Stanley drove to the lift lock but stopped about halfway to buy a Pepsi-Cola at a variety shop. When Mr. Stanley came out of the variety shop, he found Mr. Smith sitting in his truck parked in front of Mr. Stanley’s truck. Mr. Smith stated to Mr. Stanley that he was extremely sorry to see their relationship go this way and for everything that had happened. Mr. Stanley repeated that he (Mr. Smith) had the power to straighten out Mr. Hoy’s situation. Mr. Smith offered to shake hands (which they did) and he wished Mr. Stanley good luck. During Public Service Staff Relations Board
Decision Page 23 this conversation, no mention was made of the March 16 alleged incident or that Mr. Smith felt threatened and fearful. Mr. Stanley declared that he did not try to influence or intimidate Mr. Smith. Mr. Stanley did not see Mr. Smith again until April 21, 1994.
Mr. Stanley declared the following concerning the April 21 alleged incident. Mr. Kerr informed Mr. Stanley that he was to meet with the Committee. Originally, the meeting was scheduled for April 20, 1994. However, Mr. Stanley had already requested leave for that day and Mr. Kerr had granted it. Mr. Stanley had requested annual leave for personal reasons. His oldest son, who was seven years old, was reaching the age to receive his first Eucharist. Therefore, Mr. Stanley had planned to take him to the local parish and discuss with his son what it meant to receive the first Eucharist. Mr. Stanley wanted to do it the same way his mother had done with him. April 20, 1994 was a Wednesday. However, at the end of the workday on Monday, April 18, 1994, Mr. Kerr informed him that the Committee wanted to interview him on April 20 and, for this reason, his leave had been cancelled. Thus, Mr. Stanley requested leave for April 21, 1994. Then, at 4:15 p.m., on Tuesday, April 19, 1994, Mr. Kerr informed Mr. Stanley that because the April 20 interview had been postponed to April 21 his April 21 leave was now cancelled. Mr. Stanley complained about this. He asked Mr. Kerr who had cancelled his leave. Mr. Kerr replied that “Peterborough had” but he did not say who had cancelled the leave. Mr. Kerr offered to make a telephone call. Five minutes later, at about 4:30 p.m., Mr. Kerr returned and told Mr. Stanley that he could be interviewed in the morning and have leave for the afternoon of April 21. Mr. Kerr added that the interview would take place at 11:00 a.m.. (This arrangement was not changed until Thursday.) Mr. Stanley agreed to this compromise. Thus, Mr. Stanley counted on having the afternoon of April 21 to be with his son. Mr. Stanley wanted to prepare his son for his first Eucharist. He planned to take him to lunch and to meet with the priest. However, Mr. Stanley recognized that this preparation did not have to take place that week. Mr. Stanley did not ask for leave for April 20 even though he could have done so on Tuesday, April 19, 1994. The employer did not contact him concerning his leave between April 19 and 11:15 on the morning of April 21, 1994.
At 11:15 a.m. on April 21, 1994, the group of five arrived at the top of the staircase. Mr. Stanley was standing at the back of the group but he could hear the gist Public Service Staff Relations Board
Decision Page 24 of what was going on. He was not impressed with Messrs. Kidd and Smith. Mr. Stanley had the feeling that they would cancel his leave for the afternoon. Mr. Stanley just knew that this would happen but he was not yet angry. Mr. Stanley explained that that morning he was dressed in coveralls and Kodiak boots.
When the group of the three “witnesses” realized that the meeting was cancelled, they left. A few moments later, Messrs. Hockaday and Neals joined them and told them to go back to work and they would be contacted by Mr. Hockaday concerning the resumption of the meeting. Therefore, they started their walk across the parking lot. When Mr. Stanley started his walk, he heard Mr. Smith say something. Mr. Stanley was sure that it was Mr. Smith’s voice. Mr. Stanley thought that it was directed at him because he heard the word “fat”. Thus, he thought it was meant for him. Mr. Stanley believed that Mr. Smith said: “Fat, f-----g farmer”. Therefore he stopped briefly, turned to look at the balcony, turned back and kept walking. Mr. Spears was with him walking on his left. Mr. Stanley explained that he barely stopped. This action took a couple of seconds. Mr. Stanley explained that, had he stopped for 30 or 60 seconds as estimated by Mr. Smith, the others would have been long gone.
Mr. Stanley indicated that when he turned around to look at the balcony, Mr. Spears was waking on his left side, “a step ahead but beside him” because the former’s legs are longer than Mr. Stanley’s. Mr. Stanley added that he did not have to quicken his steps to remain beside Mr. Spears. During this time, Mr. Stanley was talking to Mr. Spears about his fear that his leave would be cancelled. (During this part of his testimony, Mr. Stanley gestured with both hands and Mr. Barry Done, his representative, pointed this out to this adjudicator.)
Mr. Stanley continued his description of the events of April 21 by indicating that after he took a few more steps, he heard Mr. Smith’s voice again. He thought that he heard the same thing being said. Thus, Mr. Stanley stopped, turned, and pointing to the balcony said to Mr. Spears: “Did you hear what he said to me?” Mr. Stanley believed he heard Mr. Smith say “fat farmer”. Mr. Spears replied: “No, but that is the trouble with these guys (or place). Come on, let’s go”. Mr. Stanley acknowledged that when he turned Mr. Spears could not see his left hand although Messrs. Smith and Kidd could see both of his arms and hands.
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Decision Page 25 Mr. Stanley declared that when he pointed, it was not for five or ten seconds because it is not his style. Moreover, he never made an “aiming of a rifle gesture”. He only pointed with one hand. He was very sure that it was only one arm pointing.
Mr. Stanley related further that he returned to the Otonabee Inn at 1:30 p.m. that same day, straight from work, wearing dirty work clothes. He did not change because he had no reason to believe that the meeting would take place. When he found out that there was no recording secretary, he thought: “Here [they] go again”. Mr. Stanley did not ask for a couple of minutes to change and he went in to the meeting as he was. He was angry during the meeting but his refusal to sit down was not caused by this anger but by the fact that he was wearing dirty clothes. He was covered in mud and grease. He was wearing hip water boots over coveralls which were over his denim jeans, a hard hat, and a heavy winter coat.
When Mr. Stanley entered the room for the interview, Messrs. Smith, Kidd and Gadd were seated at a table with their backs to the patio door. Ms. Perry was seated on the other side. Mr. Stanley had a hard time seeing them because of the sun. The room was dark and the sun shone in. Mr. Stanley recalled that “they” started talking to him, explaining what the interview was about and the questions they would ask. However, Mr. Stanley interrupted by saying: “Before we get started, I want to know who cancelled my leave”. As no one answered, Mr. Stanley asked again, to which “they” explained again the reason for the interview. However, Mr. Stanley asked again who had cancelled his leave. Mr. Stanley started to become agitated because they were not answering his question. Finally, Mr. Kidd replied that he had been the one who cancelled the leave to which Mr. Stanley told Mr. Kidd that he had no authority to cancel his leave. (Mr. Stanley testified that Mr. Kidd had no supervisory authority over him.) Mr. Gadd intervened and said: “Look, Mr. Stanley, we want to talk to you about this statement in writing...”, and he produced a written statement that Mr. Stanley had given to Mr. Hockaday to forward, in confidence, to Mr. John Bonser. In this statement, Mr. Stanley had implicated Mr. Kerr, his immediate supervisor. Mr. Stanley did not want any repercussions from Mr. Kerr and here was his statement sitting on the table for all to see. Mr. Stanley had not meant for the statement to be given to this Committee. The purpose of the statement was to submit proof to Mr. Bonser of Mr. Hoy’s innocence before the Committee had been formed. Then, Mr. Stanley left the room and Messrs. Hockaday and Neals approached him. They told him that Public Service Staff Relations Board
Decision Page 26 Mr. Gadd indicated that “he was on the verge of being disciplined and that if he chose to settle down, return to the meeting, meet with the Committee and help out his buddy, there would be no discipline brought against him”. Mr. Stanley testified that Messrs. Smith and Kidd never mentioned or asked about the alleged “rifle gesture”.
Mr. Stanley declared that he stands by his testimony given at this adjudication. He was adamant that he definitely did not threaten Mr. Smith. Mr. Cantin interviewed the grievor on August 26, 1994 (Exhibit 7) and Mr. Stanley learned of the results of Mr. Cantin’s investigation in October or November 1994.
Arguments Mr. Peter Hajecek, counsel for the employer, submitted the following arguments. This matter is to be decided on a balance of probabilities. He addressed also an issue of delay and procedural fairness which had been raised by Mr. Barry Done, the grievor’s representative. Mr. Hajecek argued that there was none. Mr. Smith complained on April 22, 1994 of the April 21, 1994 incident and Mr. Stanley was so informed within a reasonable time. Mr. Cantin investigated the incident and interviewed the grievor on August 26, 1994 (Exhibit 7). Mr. Stanley learned of the results of Mr. Cantin’s investigation in October or November 1994 and the letter of discipline was issued on January 17, 1995. Mr. Stanley was given a copy of the report and an opportunity to rebut (Exhibit 1). Thus, there was no delay or unfairness. Mr. Hajecek pointed out that the principal issue here is one of credibility. He noted that witnesses were excluded and Mr. Stanley, who was present during the hearing of this adjudication, testified last.
Mr. Hajecek reviewed the evidence and stated that Mr. Spears’ testimony was crucial to the grievor’s case. Messrs. Smith and Kidd testified that on March 16, 1994 they saw him make the gesture with the knife. However, Mr. Neals, who at times turned his back to Mr. Stanley, may have missed the gesture. Mr. Hajecek asked why would Messrs. Smith and Kidd make up a story of feeling threatened. Concerning the April 21 incident, again Messrs. Smith and Kidd saw Mr. Stanley pretend to aim a rifle at them. The grievor declared that he was pointing instead and Mr. Spears could not see Mr. Stanley’s other arm. Thus, it is probable that Mr. Stanley did make the gesture. He pretended to aim a rifle at Messrs. Smith and Kidd. Mr. Hajecek referred
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Decision Page 27 to the definition of harassment found in the Treasury Board Harassment in the Work Place Policy (Exhibit 3) and Mr. Hajecek concluded that the two gestures constituted harassment and intimidation towards Mr. Smith. In this regard, Mr. Hajecek cited the following cases: Lefebvre (Board files 166-2-19990 and 19991); Schigol (Board file 166-2-21774); and Simoneau (Board file 166-2-23462).
The employer imposed a five day suspension on Mr. Stanley because society no longer tolerates such behaviour. Thus, the penalty is appropriate in this case.
Mr. Barry Done, representative for the grievor, submitted that the employer had the burden of proof. There are only two issues. Did the March 16 and April 21, 1994 incidents happen as alleged by the employer? Concerning the March 16 incident, the employer had to demonstrate whether the grievor knowingly and consciously threatened Mr. Smith and whether he made the gesture on April 21.
According to Mr. Done, the March 16 incident is a non-starter on the ground that Mr. Smith himself testified that “there was no point in pursuing this incident because it was not a big concern at that time”. Mr. Smith only mentioned it to Mr. Kidd, and this only in passing. Mr. Smith stated that he did not feel immediately threatened by this gesture. Therefore, the March 16 incident was not serious. Moreover, it took five months for the employer to inform Mr. Stanley about it. Thus, it was never intended to be pursued by Mr. Smith or Mr. Kidd. Mr. Smith felt no fear of the grievor. He could have contacted the police or brought it to the attention of his superiors. He did nothing because nothing happened that day. Because Mr. Stanley had been asked to identify the diving inventory, he had to look at the diving knives. There were three knives and he had to unsheathe at least two of them to look at their identification number. He handled them in less than 30 seconds. Mr. Neals spoke the truth when he declared that nothing had occurred. Moreover, Messrs. Smith and Kidd contradicted each other. Mr. Smith declared that Mr. Stanley was looking right at him, whereas Mr. Kidd stated that he was looking at no one in particular.
Mr. Done expressed the view that Mr. Smith appeared to be a very emotional person. He wept in the parking lot on March 31, 1994. Thus, maybe he saw more in what occurred on March 16 and April 21, 1994 than there was to see. He may have a tendency to overreact. He drove to Mr. Hoy’s property but he did not ask him about
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Decision Page 28 the “stop logs”. He overreacted then when he went to Mr. Lewis and to the O.P.P. instead of discussing the matter first with Mr. Hoy. Mr. Done concluded that the employer failed to make its case on the March 16, 1994 incident.
Concerning the April 21 incident, Mr. Done submitted that the best evidence was Mr. Spears’ testimony. Mr. Spears saw Mr. Stanley point one arm. On the other hand, Messrs. Kidd's and Smith’s timings of the gesture were off. Their times were much too long considering that it takes only 40 to 50 seconds to cross the parking lot. Moreover, if Mr. Stanley had raised both arms, Mr. Spears would have seen them up. He was the person who was the closest to Mr. Stanley.
Mr. Done pointed out that of the five witnesses who were present during Mr. Spears’ comment at 11:30 a.m. concerning the cancellation of the meeting, three heard him say “sandwich” and “picnic”. Also, three declared that Mr. Smith (or “they”) told them to go back to work. Only Mr. Smith declared that he told the group to return in 15 minutes. However, this was not so since the meeting took place at 1:30 p.m. Thus, Mr. Smith’s testimony is not reliable. His declarations were incorrect as to what was said and when the meeting took place. This error is also found with respect to where Mr. Spears was during the walk across the parking lot. The grievor and Messrs. Neals, Spears and Hockaday placed Mr. Spears next to the grievor. Only Messrs. Smith and Kidd “saw” the grievor alone. This was simply not so.
Mr. Smith did not call Mr. Stanley back when he saw him make the gesture. However, Mr. Smith could have called him back. Mr. Done asked where was the fear. Messrs. Smith and Kidd never mentioned the gesture during the meeting that day; they chose not to bring it up. This is not consistent and logical with Mr. Smith’s declaration that he felt fear, harassed, and threatened. Mr. Done pointed out that Mr. Stanley waves his arms when the talks. Thus, it is possible that he did so on April 21 in light of the fact that he was upset about the cancellation of his leave. Mr. Done added that Mr. Stanley’s work performance appraisals rated him superior. Moreover, Mr. Stanley declared that he tends to confront people and express his concerns. This is not intimidation and it is not consistent with the employer’s allegations. Mr. Stanley has 11 years of service; he has never been disciplined and because of Mr. Smith’s overreaction, he lost five days’ pay. The employer had no cause to discipline Mr. Stanley.
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Decision Page 29 The procedural delay argument concerns the nine-month delay between April 1994 and January 1995. This delay is unfair and there was nothing corrective in this delay. Mr. Done reviewed the dates. Mr. Smith complained on April 22, 1994. The Hoy investigation was concluded in May 1994, and in late July 1994, Mr. Cantin was contacted to investigate Mr. Stanley’s behaviour of April 21. Mr. Cantin conducted interviews in August 1994, and on October 5, 1994 he rendered his report. Thus, the employer did nothing between April 22 and late July 1994. Then, the discipline was imposed on January 17, 1995.
Mr. Done argued in the alternative that, even if I found that discipline was warranted, because the employer waited nine months to impose discipline the suspension accomplishes nothing. The employer could have imposed a written reprimand to get the message across. The grievor has been unfairly dealt with and there was no culpable behaviour.
Mr. Hajecek replied that in this case we find two versions of what occurred. Moreover, the delay was reasonable in the circumstances of this case. Mr. Hajecek added that I must consider Mr. Stanley’s state of mind on the morning of April 21, 1994. Mr. Stanley testified that he was not impressed when the meeting was cancelled and he had the feeling that his leave for that afternoon would be cancelled. Furthermore, he heard the word “fat”. Then, at 1:30 p.m., he was extremely angry. The reason he was upset was the denial of his leave. Therefore, the gesture of pretending to aim a rifle was consistent with Mr. Stanley’s anger and mood that morning.
Determination The employer imposed a five-day suspension on Mr. Stanley on two grounds: his handling of a diving knife in a threatening manner on March 16, 1994, and his gesture on April 21, 1994. The employer alleged that he made a gesture pretending to aim a rifle in the direction of Messrs. Smith and Kidd.
This case rests on an issue of facts and credibility. I have to determine what occurred on March 16 and April 21, 1994 and whether, on a balance of probabilities, the employer discharged its burden of proof and established these alleged incidents.
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Decision Page 30 Mr. Stanley denied the allegations and his testimony is confirmed by Messrs. Neals and Spears. Thus, I have to examine the evidence carefully to determine whether the employer has successfully demonstrated, on a balance of probabilities, that Mr. Stanley committed the alleged misdemeanours.
Concerning the alleged incident of March 16, 1994 the atmosphere at work that day was tense and difficult. Mr. Hoy, who was and is Mr. Stanley’s close friend, received his letter of suspension pending his discharge. Mr. Stanley, Mr. Hoy’s supervisor, was asked to identify the employer’s property stored in the divers’ shed. Mr. Stanley requested the presence of Mr. Neals. Mr. Stanley was the only one inside the shed handling the equipment and identifying the items. Mr. Neals received the equipment from Mr. Stanley and handed it over to Mr. Smith. The whole exercise took 10 minutes. Mr. Stanley had three knives to handle and he had to unsheathe at least two of them in order to identify Mr. Hoy’s. Mr. Smith testified that he saw him handle a knife (not three) in a threatening manner, taking it in and out of its holster, and from hand to hand, and all the while glaring at him. Mr. Kidd saw Mr. Stanley play with a knife without looking at anyone in particular. Mr. Stanley declared that he made no threatening play with the knives and Mr. Neals saw Mr. Stanley handle the three knives by simply removing each one halfway out of its sheath to look at its identification number.
I prefer Messrs. Neals’ and Stanley’s version of what the latter did with the diving knives that day. I find it strange that Messrs. Kidd and Smith said nothing to Mr. Stanley and their superiors concerning this alleged incident. A threat with a knife is serious. However, the facts show that Mr. Smith did not consider Mr. Stanley’s behaviour that day to be serious. It was only when he thought about it later that he felt threatened. Moreover, it was also only when he was interviewed by Mr. Cantin in August 1994 that he mentioned this “incident”. Mr. Kidd testified that he felt “uneasy” with Mr. Stanley’s handling of the knives. Mr. Kidd made no mention of feeling threatened. Moreover, Messrs. Kidd and Stanley had only a passing discussion about this “gesture”.
I therefore find that the employer has failed to convince me that on March 16, 1994 Mr. Stanley handled a diving knife in a threatening manner. I prefer the version of Messrs. Stanley and Neals with respect to this alleged incident. I tend to
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Decision Page 31 agree with Mr. Done that Mr. Smith overreacted when he mentioned this “incident” to Mr. Cantin and described it as a threat.
Concerning the April 21, 1994 incident, I find that Mr. Stanley was upset and angry that day. His leave had been cancelled twice and the morning meeting was not taking place. Thus, it looked like his leave would be cancelled a third time. He had agreed with Mr. Kerr that he could have leave on the afternoon of April 21 and it seemed that this would not be so. I must also take into account that the meeting of April 21 dealt with Mr. Hoy, who was a close friend of Mr. Stanley. Mr. Stanley believed Mr. Hoy innocent and he had provided Mr. Bonser with a statement implicating Mr. Kerr. It is in this tense and difficult atmosphere that I have to determine whether Mr. Stanley did pretend to aim a rifle at Mr. Smith.
Messrs. Neals, Spears and Hockaday confirmed Mr. Stanley’s declaration that Mr. Spears was beside the grievor when they crossed the parking lot. The crossing took 40 to 50 seconds and all five arrived closely together. Mr. Smith’s declaration that Mr. Stanley stopped twice, the first time for 30 to 60 seconds and the second time to make the gesture for 10 seconds, seems an exaggeration in light of the time it takes to cross the parking lot. Messrs. Spears and Stanley heard voices and these voices prompted Mr. Stanley to turn once to look at the balcony and a second time to “aim” or “point”, depending on which version I am to accept. Mr. Hockaday also heard voices but his view of the balcony was partially blocked by trees.
Messrs. Smith and Kidd did not see Mr. Spears walking next to Mr. Stanley. However, they had a clear view of Mr. Stanley’s arms. On the other hand, Mr. Spears could only see one of Mr. Stanley’s arms when he did the pose.
I have to make a determination on the basis of this contradictory evidence. I find that Mr. Stanley was angry and that Mr. Smith did make some comment while standing with Mr. Kidd on the balcony. Mr. Stanley heard Mr. Smith’s voice and believed he was being insulted. This prompted Mr. Stanley to turn and strike a pose. Mr. Stanley maintained that he simply pointed at Messrs. Kidd and Smith. Messrs. Kidd and Smith claimed that they saw a pretend aim of a rifle. Mr. Spears could not clearly see Mr. Stanley’s pose. I am concerned with the fact that Messrs. Kidd and Smith failed to see Mr. Spears next to Mr. Stanley and the fact that
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Decision Page 32 no mention of this gesture was made when the group met at 1:30 p.m. Furthermore, I am of the opinion that the gesture of pretending to aim a rifle and pointing a finger could easily be confused particularly at a distance of some 200 feet. Having considered all the evidence, I am not satisfied on the balance of probabilities that the grievor made a threatening gesture of pretending to aim a rifle at Messrs. Kidd and Smith rather than merely pointing in their direction.
Consequently, I uphold the grievance presented by Mr. Stanley. He is entitled to be reimbursed for the loss of his pay and all benefits in case the five-day suspension has already been served. Furthermore, all reference to this disciplinary action is to be removed from his file.
Muriel Korngold Wexler, Deputy Chairperson
OTTAWA, April 7, 1997.
Public Service Staff Relations Board