The grievor and her manager bumped each other in a corridor. Weeks later, the grievor contacted the police to lay changes. She also grieved. The arbitrator found that her story was too unlikely to be believed.
A worker sustained a minor injury at work after her manager bumped into her. The union grieved, arguing the manager had assaulted the worker.
S.K. was a pharmacy technician employed at a retail drug store outlet. She had about 13 years’ experience working for the company.
S.K. was involved in an incident with the pharmacy manager on March 12, 2010.
S.K. testified that after taking a call about a prescription from a customer, the manager hung up the phone and began walking quickly in the same direction as S.K., down the narrow aisle between the service counter and a long row of shelves.
At some point there was contact between the two. S.K. reported receiving a blow or a jab in her lower back, which produced a sharp pain that travelled from the impact point down her leg. S.K. said the force of the impact caused her to spin around 180 degrees.
S.K. reported having difficulty walking when she went for her break shortly afterwards.
When S.K. returned from her break, she asked for an incident report, which she and the manager then completed.
On March 17, S.K. made a claim to the workers’ compensation board based on the incident, claiming the manager had “accidentally” hit her from behind.
The board rejected the compensation claim on March 25. On April 21, S.K. filed the grievance alleging assault and, five days later, she lodged a complaint with the police where she also alleged she had been assaulted. However, the police concluded there was insufficient evidence to support the charge.
The Arbitrator also rejected S.K.’s charge.
S.K. had levelled very serious charges against the manager, alleging not just that she had been injured as a result of incidental contact, but that she had been intentionally harmed.
S.K.’s story did not add up.
“At best, ridiculous”
S.K. explained the difference between her allegations against the manager and what she wrote in her account of the “accident” in her compensation claim by saying the compensation claim in fact contained “secret messages” to indicate what really happened. This claim was “at best, ridiculous,” the Arbitrator said.
There was no reasonable explanation to account for such an unprovoked assault. Nor was there any reasonable explanation for S.K.’s six-week delay in reporting the alleged incident to the police.
S.K.’s description of the incident strained credulity and perhaps even the laws of physics. “[T]he grievor’s description, that as a result of the contact she spun around 180 degrees and travelled 10 feet, is at odds with the usual result of travelling in the same direction as the direction of an impact,” the Arbitrator said.
Preponderance of probabilities
In a case such as this — where there were no witnesses to the contact — the issue must necessarily be decided based in part on the credibility of the parties.
The test, as formulated in Faryna v. Chorny, is whether or not a witness’s story is in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions,” the Arbitrator said
S.K.’s story was improbable and incredible in many respects. S.K.’s peripheral vision would not have allowed her to see directly behind herself as her story required. The notion that the force of such a blow could cause S.K. to somehow reverse course was also “highly improbable,” the Arbitrator said. The delays and discrepancies in S.K.’s subsequent reporting of the incident were also problematic.
“I find the grievor’s version of her contact with [the manager] on March 12, 2010, is not credible in support of a claim of assault, i.e., an intention on the part of [the manager] to hit and harm the grievor,” the Arbitrator said.
The union failed to prove on a balance of probabilities that S.K. had been assaulted.
The grievance was dismissed.
