FPSLREB Decisions
Decision Information
Suspension (3 days) - Abusive words and action against a fellow employee - grievor and a fellow employee were involved in a verbal and physical altercation while at work - grievor initially received a 15-day suspension which was subsequently reduced to 3 days and fellow employee received a written reprimand - adjudicator found on evidence presented that the most serious element of the altercation, namely the physical confrontation, was in large measure the responsibility of the fellow employee - adjudicator had strong reservations about accepting the fellow employees' version of events - on balance the adjudicator found that the grievor bore no greater responsibility for the misconduct in question than the fellow employee - in the circumstances it was inappropriate for the employer to impose a greater disciplinary sanction on the grievor than that imposed on the fellow employee - employer directed to rescind the suspension imposed on the grievor and to substitute therefor a written reprimand. Grievance allowed in part.
Decision Content
File: 166-2-27262 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN KANWALBIR (KEN) DOSANJH Grievor and TREASURY BOARD (Solicitor General Canada - Correctional Service)
Employer
Before: P. Chodos, Deputy Chairperson For the Grievor: Chris Dann, Public Service Alliance of Canada For the Employer: Ross Hornby, Counsel Heard at Vancouver, British Columbia, May 1 and 2, 1997.
Decision Page 1 DECISION Mr. Dosanjh is employed as a Corrections Officer (CX-2) at the Regional Health Centre at Abbotsford, British Columbia. His grievance concerns a disciplinary suspension of 15 days, which was subsequently reduced by the employer to seven days; at the commencement of this hearing counsel for the employer advised that on further reconsideration the employer has decided to further reduce the suspension to a three day period. The alleged grounds for discipline are set out in a letter to the grievor dated March 14,1996 from Mr. Gweyn Mills, the Executive Director of the Centre: This is to amend the previous letter of suspension dated August 23, 1995. I have reviewed the report concerning your personal performance of April 09, 1995 involving a coworker. The report indicates that misconduct occurred on this occasion when you interacted inappropriately and belligerently with a coworker whom you engaged in an argument which deteriorated into a physical altercation. You were found to be abusive by words and action to another member of the Service by inciting an argument with a fellow officer in the presence of other employees and in an area that could possibly be observed by patients.
This behavior is contrary to the Mission Document, Core Value 3, Strategic Objective 3.2, which states that we are to develop an environment that is characterized by relationships among staff that are based on openness, trust and mutual respect. This is also contrary to your role as a Correctional Officer. Your behavior is also contrary to our Standards of Professional Conduct, Standard Three which deals with Relationships with other Staff Members. With reference to our Code of Discipline, the misconduct contravened the Code in two areas. The first was with reference to the section that states that an infraction has occurred if an employee is abusive, by word or action, to other employees while on duty or under circumstances related to his or her duties. The second was in the area that states an infraction has occurred if an employee fights with other employees of the Service while on duty.
The incident which gave rise to this matter occurred on April 9, 1995 at the Regional Health Centre; the Centre is a penal institution which also operates as a hospital, providing treatment for mentally ill inmates, sex offenders, and as well as assessment services to inmates in the region. On the day in question the grievor was working as a “float” in charge of the first floor living unit; in that capacity he spends much of his time on the cell ranges, as well as at other locations in the institution.
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Decision Page 2 The living unit is also staffed by another Corrections Officer in a glass enclosed area referred to as a control post, and colloquially known as “the bubble”. Inside the bubble is among other things, a desk which is facing out towards the living unit area, a panel which controls the various doors, and an open staircase leading up to the second floor.
During the day shift, which runs from 7:00 a.m. to 3:30 p.m. the bubble was staffed by Mr. Steve Mulville. Mr. Lackey Powar, another Corrections Officer, was assigned to work the day shift at an area known as Nova/Concorde, a holding unit which is in another part of the Centre. According to Mr. Powar he was observing the meal line at Nova/Concorde when one of the inmates asked him about a urine analysis; Mr. Powar later met with this inmate on a walkway between Nova/Concorde and the living unit to speak with him about the analysis. He then walked back with the inmate to the living unit on the first floor. Mr. Powar stated that he proceeded to the first floor bubble where he borrowed a cigarette from Mr. Mulville and chatted with him alone for about ten minutes. While he was in the bubble with Mr. Mulville, Mr. Dosanjh walked in, and according to Mr. Powar said: “Why can’t you leave those female casuals alone, you are following them around.” Mr. Powar characterized Mr. Dosanjh’s tone as sarcastic; he stated that he felt offended by the comment. Mr. Powar testified that he responded that he does not have any problems with casuals. The conversation then turned to the question of unions. Mr. Powar testified that Mr. Dosanjh, who was doing most of the talking, was insisting how much unions had done for them and that they were responsible for his pay cheque; Mr. Powar replied that he had no need for the union and that he worked for his pay cheque. The conversation became more heated at this point; Mr. Powar observed that Mr. Dosanjh had become very agitated, and was shouting and shaking. According to Mr. Powar, Mr. Dosanjh then stated: “Get the fuck out of my post”; Mr. Powar replied: “This isn’t your post, Steve Mulville is in control of this post, you’re not”; Mr. Powar testified that Mr. Dosanjh then went to the phone and stated that if he did not get out, he (Mr. Dosanjh) would phone the keeper (i.e. the Correctional Supervisor in charge of the shift). Mr. Powar stated that he started to get up and to walk out of the control post, when Mr. Dosanjh said to him: “You’re pretty chicken shit now, why don’t you stay.” Mr. Powar headed over towards the exit which brought him to where Mr. Dosanjh was sitting. Mr. Powar came up to Mr. Dosanjh and stated: “I’m leaving but you’re not
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Decision Page 3 man enough to make me leave.” Mr. Powar observed that at that point he was approximately a foot apart from Mr. Dosanjh; Mr. Powar stated that he wanted to avoid a confrontation; however, Mr. Dosanjh then puckered up and deliberately spat in his face; Mr. Powar observed that no one had seen this as he was between Mr. Mulville, who was sitting down at his desk, and Mr. Dosanjh at the time. Mr. Powar stated that he then raised his hands up and said: “Don’t spit at me”; at the same time Mr. Dosanjh raised his fists and Mr. Powar grabbed Mr. Dosanjh’s wrists. Mr. Mulville then jumped in, and told them both to leave. According to Mr. Powar, he then proceeded to leave and he believes Mr. Dosanjh also left at that time. Mr. Powar insisted that he only grabbed Mr. Dosanjh by the wrists, and that he did not hit Mr. Dosanjh, although Mr. Dosanjh may have hit his own face when pulling away.
Mr. Powar stated that he then went back to his post and phoned Mr. Ben Arseneault, the local Union Vice-President, and explained what had happened. About one hour later Mr. Arseneault called back and said to him that Mr. Dosanjh wants a written apology for what had happened; Mr. Powar said that he responded to Mr. Arseneault that they should both apologize to each other. According to Mr. Powar, Mr. Arseneault told him that Mr. Dosanjh claimed that Mr. Powar had punched him; Mr. Powar denied that he had done so, and also responded to Mr. Arseneault that if he had done so, Mr. Dosanjh would not get up.
Mr. Powar had the impression that Mr. Dosanjh would report the matter to the manager if he did not receive an apology from Mr. Powar. Mr. Powar also stated that Mr. Arseneault had told him that evening that he would go with Mr. Powar and Mr. Dosanjh to meet with management. Mr. Powar testified that the next day he expected to first meet with Mr. Arseneault and Mr. Dosanjh; when they did not show up, he took it upon himself to see Mr. Shaun Mulrooney, the Correctional Supervisor. He briefly told Mr. Mulrooney what had happened, indicating he had spoken with Mr. Arseneault who had told him not to say anything, as it was an in-house matter and the union would take care of it. Mr. Mulrooney indicated that he would leave it alone. Mr. Mulrooney testified that at the time Mr. Powar had merely told him that an altercation had occurred, but did not provide any details. Subsequently, Mr. Mulrooney was asked to conduct an investigation and prepare a report on this incident (see below).
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Decision Page 4 In cross-examination Mr. Powar noted that he worked from 15:00 to 23:00 hours on April 9th, and that the incident occurred between 6:00 p.m. and 7:00 p.m. Mr. Powar was asked if he had lunch with Mr. Dosanjh that day, which he denied. Mr. Powar also stated that he does not know why Mr. Dosanjh made reference to female casuals; he does not believe it was done in a joking manner. Mr. Powar insisted that he was “shocked” rather than being excited or angry during the exchange. He agreed that the only persons who could hear what was going on were those in the first floor bubble or in the upstairs bubble. Mr. Powar said that he does not believe that he had sworn during this incident. He recalls Mr. Dosanjh getting up and dialing the keeper’s number; he then hung up. He insisted that Mr. Dosanjh had spit at him; although there was no gob of spit, he had to wipe off his face and at that point he put up his hands and grabbed Mr. Dosanjh’s wrists. He maintained he did not hit Mr. Dosanjh, nor did he touch his face. He acknowledged that as he was leaving, he directed a remark at Mr. Dosanjh in Punjabi which would be the equivalent of swearing in English.
Mr. Powar stated that he had phoned Mr. Arseneault in the hope that he could defuse the situation; he stated that he contacted Mr. Arseneault for Mr. Dosanjh’s benefit, as he did not want Mr. Dosanjh to lose his job over this incident. He indicated to Mr. Arseneault that in order to set aside this dispute he was prepared to offer his apology in return for Mr. Dosanjh doing likewise. Mr. Powar also indicated that parts of Mr. Mulrooney’s report (Exhibit E-1) concerning his statements are in error; both he and Mr. Dosanjh were standing at the time, and Mr. Dosanjh did not grab Mr. Powar’s arms but rather Mr. Powar grab Mr. Dosanjh’s arms.
On May 5th, in the course of a presentation of a harassment complaint by a casual employee, which was not related to this incident, there was reference to this altercation in some detail. As a result, Mr. Mulrooney was instructed by management to investigate the matter and to submit a report. Over a period of several weeks he interviewed Mr. Dosanjh, Mr. Powar, Mr. Mulville, as well as Mr. Trevor Colley who was staffing the second floor control post which is connected to the control post on the first floor by the staircase, and Mr. Sangha, who was operating as the “float” upstairs. Following these interviews Mr. Mulrooney prepared his report in which he concluded that both Mr. Powar and Mr. Dosanjh were involved in acts of misconduct; he also concluded that: “... based on past incidents involving Mr. Dosanjh, I see Mr. Powar as a Public Service Staff Relations Board
Decision Page 5 more credible witness and believe that Mr. Dosanjh initiated the incident. Other officers have testified that Mr. Dosanjh was responsible for pursuing the argument in an aggressive manner. I find Mr.Dosanjh principally at fault for this act of misconduct.” Mr. Mulrooney provided both Mr. Dosanjh and Mr. Powar with a copy of his report. Mr. Dosanjh responded by giving Mr. Mulrooney a copy of an investigation report prepared by Mr. Arseneault (Exhibit E-4). He also provided Mr. Mulrooney with a memorandum concerning this matter (Exhibit E-2) and a letter which he had addressed to Mr. Mills, the Executive Director, dated April 10, 1995. Subsequently Mr. Mulrooney arranged a meeting between Mr. Arseneault and Mr. Powar concerning Mr. Arseneault’s report, in which Mr. Arseneault stated that Mr. Powar had admitted to him that he had struck Mr. Dosanjh. According to Mr. Mulrooney, Mr. Powar questioned the veracity of Mr. Arseneault’s observations, and that matter remained unresolved by the end of the meeting. Mr. Mulrooney submitted his report to Mr. Mills on August 7, 1995. While Mr. Mulrooney was not directly involved in determining the discipline meted out to the two protagonists, he understands that Mr. Powar received a written reprimand. Mr. Mulrooney explained the delay in preparing and submitting his report was due to a number of factors including the fact that the officers involved were on different shifts throughout the investigation, that the interested persons were on occasion difficult to get a hold of, and as well, he had taken a one week vacation during this period.
Mr. Trevor Colley also testified on behalf of the employer. Mr. Colley is also a Corrections Officer (CX-2) employed at the Centre. On April 9th he was assigned to the second floor unit in the control post. Mr. Colley indicated that it is possible to hear what is said in the lower bubble when in the second floor control post. He testified that at about 2:00 p.m. he could hear Mr. Dosanjh engaging in a discussion about the union; it was his impression that the discussion became more “escalated”, and Mr. Dosanjh sounded more and more agitated. It was also his opinion that Mr. Dosanjh was dominating the conversation, although he could not recall his exact words; he does not believe that Mr. Dosanjh used abusive language. He does recall hearing the other person stating: “The union has done nothing for me”, and Mr. Dosanjh becoming more agitated as a result of this comment. He was not aware of who the other participant in the discussion was, possibly because that person was not raising his voice; Mr. Colley observed that Mr. Dosanjh has a pitch in his voice
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Decision Page 6 which carries more; he noted that Mr. Dosanjh appeared to be doing “ninety percent of the talking” and that he was “berating” the other person. At one point Mr. Colley became concerned that the discussion could degenerate into a physical altercation. Accordingly, when Mr. Sangha came into Mr. Colley’s control post and was proceeding to go downstairs, he advised him not to get involved.
Mr. Mulville also testified on behalf of the employer. He stated that Mr. Powar had dropped by and they were chatting when Mr. Dosanjh came into the control room. He did not recall what Mr. Dosanjh had said when he entered the bubble. He stated that the conversation came around to the casual program at which point there was “a bit of an argument” between Mr. Dosanjh and Mr. Powar; he recalls Mr. Powar stating that the presence of casuals didn’t bother him, and that he didn’t care for the union. It was Mr. Mulville’s observation that Mr. Dosanjh was doing a lot of the talking, that the discussion started as a normal conversation, and that although the voices got louder, there was no screaming. Mr. Mulville stated that Mr. Powar got up and walked behind Mr. Mulville on his right until Mr. Powar and Mr. Dosanjh were in close quarters. He then heard Mr. Powar say: “Don’t spit on me”; Mr. Dosanjh replied: “I didn’t spit on you.” Mr. Mulville then looked up and saw Mr. Powar bring his arm in a swinging motion up towards Mr. Dosanjh; Mr. Dosanjh then brought his arm up to block Mr. Powar’s fist. Mr. Dosanjh did not make a fist, but rather made a “blocking motion”. Mr. Mulville then jumped out of his seat and told them to cool off; they then separated, Mr. Dosanjh sat down in the chair which Mr. Powar had vacated. Mr. Dosanjh then told him that he should leave; Mr. Powar said: “It’s Steve’s control room, I don’t have to listen to you.”
In cross-examination Mr. Mulville stated that Mr. Powar had gotten up from his chair and moved over to where Mr. Dosanjh was standing. He stated that Mr. Powar’s arm had swung up in a fist, and he believes that Mr. Powar may have grazed Mr. Dosanjh’s chin. Mr. Mulville identified Exhibit G-1, a handwritten statement prepared and signed by him on February 6, 1996 at the request of the union. Mr. Mulville observed that this statement is a correct recollection of the facts as he recalls them, including his observation that: “Mr. Powar then swung his arm up and Mr. Dosanjh brought his arm up to block Mr. Powar’s arm. During this Mr. Dosanjh appeared to be grazed on the chin.”
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Decision Page 7 Mr. Dosanjh has been a Corrections Officer with the Correctional Service since 1975 and has been employed at the Health Centre since April, 1988. Mr. Dosanjh identified Exhibit G-2, the Duty Roster for April 9, 1995; he stated that he worked two shifts that day, the 7:00 a.m. to 3:00 p.m. shift as overtime, and his regular shift, between 3:00 p.m. and 11:00 p.m. He noted that Exhibit G-2 indicates that Mr. Powar was working at Nova/Concorde on the day shift, that is, from 7:00 a.m. to 3:00 p.m.
Mr. Dosanjh stated that at approximately 2:30 p.m. he entered the first floor control post and noticed Mr. Powar talking with Mr. Mulville. As he entered Mr. Dosanjh stated that he made a “joking comment”, which was in reference to an episode that occurred earlier that day at lunch. At the lunch break, he and Mr. Powar were sitting at the same table with another staff member; a casual employee named Audrey Madsen walked into the dining room at that point. According to Mr. Dosanjh, Mr. Powar winked at him, picked up his tray and joined Ms. Madsen’s table. At this point Mr. Dosanjh told him: “Alright, leave us.”. When he entered the bubble, Mr. Dosanjh stated: “What’s going on between you and Audrey?”. Mr. Dosanjh said that Mr. Powar responded with a shrug and a smile; Mr. Dosanjh then sat down, engaged in small talk, including reference to the current overtime situation. It was Mr. Dosanjh’s recollection that Mr. Powar said to him, “You’re making money again”, referring to the fact that he was doing overtime. Mr. Dosanjh said he replied: “Better wash your hands while the river runs.”, to which Mr. Powar replied: “You better believe it, it’s going to dry up.” Mr. Dosanjh replied that it would dry up in the short term as a result of the utilization of casuals, but this was not going to work in the longer term. Mr. Dosanjh believed that at this point Mr. Mulville stated: “There is no problem with casuals working here.” Mr. Dosanjh replied: “I have no personal problem with casuals; they will eventually become union members.” Mr. Dosanjh noted that they had instructions from the union to the effect that union members should not mistreat casuals. Mr. Dosanjh stated that the conversation then changed to a discussion about the union. Mr. Powar told him: “What the fuck has the union done for us?” Mr. Dosanjh, who had been a Local Union President for three years previously and was then in a Shop Steward position in charge of social activities, explained his view as to the need for unions. Mr. Dosanjh acknowledged that his voice was raised, he stated however he was not angry and was not yelling. He agreed that he was dominating the conversation. Mr. Dosanjh also testified that the word
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Decision Page 8 “fuck” is part of the normal give and take at the Institution, even among female staff and is not considered abusive language. Mr. Dosanjh felt that Mr. Powar was arguing just for argument's sake. In order to avoid getting into a more vehement argument, he told Mr. Powar: “Get the fuck out of here.” According to Mr. Dosanjh, Mr. Powar then got up from the other side of the panel, walked between Mr. Dosanjh and Mr. Mulville, turned around where Mr. Dosanjh was sitting and said: “Make me.” Mr. Dosanjh stated that he then got up, as he was feeling quite vulnerable physically, he was within ten to twelve inches from Mr. Powar’s face. Mr. Dosanjh said: “I don’t have any more money to pay fines.” which was a reference to his past disciplinary record. Mr. Dosanjh testified that while Mr. Mulville was in charge of the post, as CX-2 Mr. Dosanjh was in charge of the first floor which includes the control post. Mr. Dosanjh testified that Mr. Powar responded: “You’re just a chicken shit.” Mr. Dosanjh said that he next recalls that his chin was hit, his own hands came up and Mr. Powar grabbed his wrists. Mr. Dosanjh then calmed down, pulled his hands back, and Mr. Mulville said to calm down. Mr. Dosanjh denies that he spit in Mr. Powar’s face. He recalls that Mr. Powar said: “You spit in my face.” and that he replied that he had not done so. According to Mr. Dosanjh he then said that he was willing to let it go if Mr. Powar would leave now. Mr. Powar again said: “You’re a chicken shit.” Mr. Dosanjh picked up the phone, started dialing and hung up as Mr. Powar started to leave; Mr. Powar then turned around and said: “I’ll leave when I am good and ready”; Mr. Dosanjh picked up the phone again and dialed, Mr. Powar said: “You’re a fucking rat.” When the phone was ringing Mr. Powar left and said in Punjabi: “I’ll see you outside fucker”, he then left. Mr. Dosanjh then apologized to Mr. Mulville stating that the incident was uncalled for. Mr. Dosanjh said he felt “a little responsible” that Mr. Mulville had to intervene. He did not apologize to Mr. Powar as he feels he did not do anything wrong and was not responsible for the incident getting out of hand. Mr. Dosanjh indicated that he and Mr. Powar had a cordial working relationship prior to this incident.
In cross-examination Mr. Dosanjh stated that his reference to a relationship between Mr. Powar and Ms. Madsen was intended only to be humorous, although it could be misconstrued that he was suggesting Mr. Powar was having an affair. He denied that he had ever said to Mr. Powar that he was following around female casuals. He insisted that the subject of casuals came up only in the context of
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Decision Page 9 overtime; he acknowledged that as the discussion became serious, that he did get frustrated that Mr. Powar was not listening. When he referred to his letter to Mr. Mills (Exhibit E-3) in a statement that “we were both quite hot” he agreed that he had become assertive in the conversation as Mr. Powar was becoming argumentative. He did do most of the talking as he was responding to questions. He agreed that the discussion caused his blood pressure to go up and “an adrenaline rush” but he was not angry. He insisted that Mr. Powar had said that he had spit on him only to justify his punching Mr. Dosanjh. While some “vapor” may have come out when he was talking, it was not possible that Mr. Powar could have thought he had spat at him. Mr. Dosanjh stated that he had prepared Exhibit E-3 on the evening of April 9th, as he was concerned that Mr. Powar might be waiting for him out in the parking lot. It was his view that management would investigate him at every opportunity because of his union activities. Mr. Dosanjh acknowledged that his evaluation reports (Exhibit G-3) refer to him as being at times argumentative; however he denied that he was abusive to Mr. Powar.
Mr. Benoit Arseneault testified on behalf of the grievor. Mr. Arseneault stated that Mr. Powar had spoken to him on the phone on April 9th and had seen him that day before he left work at 3:00 p.m. Mr. Powar told him that there had been an incident between him and Mr. Dosanjh and that he wanted the union to be aware of what had happened. Mr. Arseneault took notes of his discussion with Mr. Powar and noted at the time that Mr. Powar told him that he had actually hit Mr. Dosanjh. Mr. Arseneault contacted the Regional Vice-President, Mr. Gerry Gauthier, who told him to conduct an investigation for “union purposes”. He started the investigation (i.e. Exhibit E-4) on the evening of the incident, and completed it the next day. It was kept on file, and later made available to Mr. Mulrooney. Mr. Arseneault stated that Mr. Powar was aware that he was taking notes of their discussions, although he did not advise him that he was doing an investigation. Subsequently, in Mr. Mulrooney’s presence, Mr. Powar told Mr. Arseneault that he was lying about what Mr. Powar had said to him. Mr. Arseneault had also interviewed Mr. Dosanjh, Mr. Colley and Mr. Mulville.
Mr. Gweyn Mills, as Executive Director, was responsible for determining the disciplinary action assessed against the two protagonists, including the grievor. Mr. Mills first heard of this incident from Mr. Jeff Johnson, the Deputy Executive Public Service Staff Relations Board
Decision Page 10 Director, who advised him that there had been a harassment complaint which had made reference to the altercation between Mr. Powar and Mr. Dosanjh. Their impression was that the argument concerned casuals, which was a sensitive issue at penal institutions at the time, as there was a lot of resentment about the use of casuals; they had received a direction to ensure the casuals were treated properly and were protected. Upon receipt of the investigation report prepared by Mr. Mulrooney, Mr. Mills discussed this matter with other departmental officers to consider the penalty; in light of Mr. Dosanjh’s previous record it was decided to impose a 15 day suspension, which was later reduced to 7 days when they became aware that the previous disciplinary action had been removed from Mr. Dosanjh’s file in accordance with the requirements of the collective agreement.
Mr. Mills stated that in his view there were clearly comments made about casuals, and the region took the position that there was to be no tolerance of negative remarks at or about casuals, and this was part of his consideration in determining the discipline. He also considered that Mr. Dosanjh was an experienced officer, while Mr. Powar was new and inexperienced and therefore greater responsibility rested with Mr. Dosanjh. As a result of his conclusions, he issued two letters of discipline, including Exhibit E-6 which noted that Mr. Dosanjh had violated the departmental mission document, as well as the Standards of Professional Conduct, and the departmental Code of Discipline.
In cross-examination Mr. Mills agreed that in his mind there were two issues arising out of this matter: 1) making derogatory remarks about casuals; 2) inappropriate behaviour directed at a fellow officer. Mr. Mills acknowledged that his only source of information about this matter was Mr. Mulrooney’s report; he agreed that the only reference in the report to casuals is found at page 3 and page 5 of that report, indicating that there has been a conversation about that subject.
Argument On behalf of the employer Mr. Hornby noted that the letter of discipline observed that the grievor’s conduct was abusive in both words and action in that he had incited an argument with another staff member in an area which could be observed by inmates, and in the presence of another employee. The letter noted that
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Decision Page 11 this behaviour is contrary to the Mission Statement, the Standards of Professional Conduct, as well as the Code of Discipline.
Mr. Hornby stated that there is no dispute between the parties that an incident had occurred which warranted a disciplinary response; the issue here is the proportionality of the discipline as between Mr. Dosanjh and Mr. Powar, which in turn requires a determination as to allocation of blame. Counsel noted that Mr. Powar stated that he was offended by Mr. Dosanjh’s statement that he was “following around casuals”. This remark constituted sexual innuendo; while Mr. Dosanjh denied making the remark, he nevertheless acknowledged that he had made a joke at the time. Mr. Hornby submitted that the evidence demonstrates that Mr. Dosanjh had become more and more agitated in the course of the discussion, and that he admitted telling Mr. Powar to: “Get the fuck out of here”. Counsel for the employer also submitted that Mr. Mulville’s evidence as well as that of Mr. Colley’s makes it clear that Mr. Dosanjh was doing most of the talking, and Mr. Dosanjh himself admitted that he was getting frustrated. This evidence in its entirety demonstrates that Mr. Dosanjh had lost his temper thereby precipitating the incident.
Mr. Hornby also submitted that Mr. Dosanjh bears substantial responsibility for the physical altercation. Mr. Powar made it very clear that Mr. Dosanjh had deliberately spat at him; Mr. Dosanjh denies this, but acknowledged that perhaps some “vapor” may have come out of his mouth. Mr. Powar also stated that he did not take a swing at Mr. Dosanjh although he did admit that perhaps some inadvertent contact was made when he grabbed Mr. Dosanjh by the wrist.
Counsel submitted that there were a number of appropriate considerations which were taken into account by the employer in assessing greater discipline against Mr. Dosanjh, including his seniority, his initiation of the dispute, the fact that he dominated the argument, and that he lost his temper and ordered Mr. Powar out of the unit. In these circumstances, a three day suspension is within the parameters of a reasonable disciplinary response. In accordance with the Wilson decision (Board file 166-2-25841) the adjudicator should not tinker with a penalty.
The grievor’s representative replied that it is incumbent on the employer to demonstrate that the penalty was justified and reasonable in all the circumstances. In
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Decision Page 12 Mr. Dann’s submission the employer had not discharged this burden. Mr. Dann noted that there were only three people present at the time, of which only one, Mr. Mulville, can be considered a neutral third party, and there is no reason to question his credibility. Mr. Mulville’s testimony was to the effect that there was no yelling, that both sides engaged in swearing, and that Mr. Powar had swung his fist at Mr. Dosanjh. Mr. Dann submitted that Mr. Powar’s testimony lacked credibility and contained a number of inaccurate statements, for example, he said that the incident occurred between 6:00 and 7:00 p.m.; yet, the other witnesses are consistent in observing that it took place between 2:00 and 3:00 p.m. As well, he stated that he had no need for the union, and then immediately seeks out the union “in order to help Mr. Dosanjh”. This explanation clearly lacks credibility. Furthermore, neither Mr. Mulville nor Mr. Colley observed that Mr. Dosanjh had initiated an argument. Mr. Dann also contended that according to Mr. Mills, the discipline was based at least in part on the conclusion that Mr. Dosanjh had made derogatory remarks about casuals; yet, there is no evidence to support this. It was also apparent that Mr. Mills took into account past incidents, notwithstanding that this is improper in light of their removal from Mr. Dosanjh’s file.
The grievor’s representative submitted that when two employees have engaged in similar conduct, one of them should not be the recipient of more severe discipline; equity demands that both should be in receipt of the same penalty. Accordingly, Mr. Dann argued that Mr. Dosanjh, who admittedly bears some responsibility for the altercation, should receive no more than a written reprimand. In support of his submissions he referred to Canadian Labour Arbitration, 3rd edition, by Brown and Beatty, chapter 7:4414.
In rebuttal Mr. Hornby contended that Mr. Powar’s evidence, as a whole, was detailed and credible; he noted that Mr. Dosanjh’s testimony with respect to the luncheon episode was never referred to before this hearing, either in his statement to Mr. Mulrooney or in his letter to Mr. Mills. He also noted that Mr. Mills’ letter of discipline made no reference to the question of casuals. Mr. Hornby agreed that the penalty should be the same if all other things were equal; however, in his submission Mr. Dosanjh bears greater responsibility for what had happened.
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Decision Page 13 Reasons for Decision The parties are not in dispute that an altercation occurred which involved the grievor as one of the protagonists, and that such conduct merited some disciplinary response from the employer. What is at issue is the quantum of discipline imposed on Mr. Dosanjh (i.e. seven day suspension, reduced to three days as advised by the employer’s counsel at the start of this hearing), particularly in light of the lesser penalty (i.e. a written reprimand) imposed on the other protagonist, Mr. Powar. Both parties are essentially in agreement that it is incumbent on the employer to treat all employees even-handedly, and without discrimination when imposing disciplinary sanctions; indeed, the arbitral jurisprudence is virtually unanimous in supporting that principle (see Brown and Beatty, (supra)). It is also clear that for purposes of this proceeding, neither Mr. Powar nor Mr. Dosanjh had a disciplinary record. Accordingly, the critical question in this case is the relative responsibility of the two men for what transpired on the day in question.
Aside from the two protagonists the only eye witness is Mr. Steve Mulville. While Mr. Colley was able to hear some of the conversation between Mr. Dosanjh and Mr. Powar, he was unable to recall much of what was said, other than to note that Mr. Dosanjh’s voice was much more audible and that he appeared to be speaking most of the time. Mr. Colley was not in a position to make any observations concerning the physical altercation which took place. Accordingly, Mr. Colley’s testimony is of relatively minor assistance in ascertaining what had actually transpired. This brings us to a consideration of Mr. Mulville’s testimony. While Mr. Mulville did not observe everything which occurred, he was able to hear clearly what was going on, and did see at least part of the physical confrontation. In particular, he observed that Mr. Powar had walked over to where Mr. Dosanjh was sitting, and subsequently swung his fist in Mr. Dosanjh’s direction and may have grazed his chin. This is essentially in accord with this part of Mr. Dosanjh’s version of events, and is also consistent with Mr. Arseneault’s testimony concerning the statement made by Mr. Powar to the effect that he had hit Mr. Dosanjh. According to his testimony, Mr. Mulville observed nothing respecting the so-called spitting incident, other than hearing Mr. Powar say that Mr. Dosanjh had spit on him, and Mr. Dosanjh denying that he had done so.
Public Service Staff Relations Board
Decision Page 14 In light of these facts, I must conclude that the most serious element of the altercation, namely the physical confrontation, was in large measure the responsibility of Mr. Powar. Mr. Powar had apparently placed himself in front of Mr. Dosanjh in what could reasonably be viewed as a threatening manner, given the circumstances. Clearly, at the very least, he retaliated in response to the spitting, if that in fact did occur. Furthermore, Mr. Powar demonstrated at this hearing a flash of temper and somewhat unruly behaviour, which is consistent with a temperament which might readily resort to physical confrontation. Also, there are inconsistencies in Mr. Powar’s testimony; as noted by Mr. Dann, Mr. Powar was in error as to the time at which the incident occurred; moreover, his explanation that he had sought out the union after the incident in order to “protect” Mr. Dosanjh’s interest is simply not credible. In addition, his denial of having swung at Mr. Dosanjh, which is at odds with the testimony of Mr. Mulville and Mr. Arseneault, also undermines his credibility. In light of these considerations I have strong reservations about accepting Mr. Powar's version of the events.
In my view, these considerations are not overridden by the fact that Mr. Dosanjh was the more senior employee, keeping in mind that Mr. Dosanjh was not a manager nor did he have supervisory responsibilities. As well, I do not believe that greater responsibility befalls on Mr. Dosanjh for this incident because he initiated a conversation which touched on the subject of casuals and unions. These kinds of conversations between employees, particularly in the relative privacy of the control post, which is out of earshot of the inmates and members of the public, are not “verboten”; it is an unwarranted intrusion on the rights of employees and union members for the employer to insist that such conversations never occur in the work place. Undoubtedly the employer has a right to expect that its employees will observe reasonable decorum and civility in their interactions with each other, and of course management should deal with any incitement to harassment against other employees; however, this does not mean that the employees cannot engage in conversations on matters of mutual importance and concern. In this instance there is not a shred of evidence that demonstrates that the grievor was attempting to incite harassment against casual employees. It also should be noted that Mr. Mulville, who testified on behalf of management, did not suggest in any way that Mr. Dosanjh had deliberately provoked Mr. Powar. On balance, I find that Mr. Dosanjh bore no greater
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Decision Page 15 responsibility for the misconduct in question than did Mr. Powar. Accordingly, it was inappropriate on the part of the employer to impose on him a greater sanction.
Therefore, the grievance is partially upheld; the employer is directed to rescind Mr. Dosanjh’s suspension and substitute for it a written reprimand.
P. Chodos, Deputy Chairperson.
OTTAWA, June 4, 1997.
Public Service Staff Relations Board