Grievor's insistence that incident was horseplay does not hold up to scrutiny
A Custodian at a health centre was fired after he ambushed a colleague with disabling wrestling holds. The custodian denied there was any assault and the union grieved.
T.R. had 28 years’ service with his employer when he was terminated in January 2009. A custodian in the Environmental Services Department at a health facility, T.R. was responsible for cleaning, portering, housekeeping, linen distribution and waste disposal.
J.G., a colleague who worked as a Dietary Porter in the Nutritional Services Department, said that T.R. attacked him on December 9, 2008.
In a charge eventually made out by the police as an assault, J.G. alleged that T.R. came up behind him and put him in a headlock and challenged him to “get out of this.” Considerably smaller in stature, J.G. was unable to break free.
Full Nelson
T.R. let J.G. go, however, only to grab him again — the second time in a “Full Nelson.” His hands exerting considerable pressure on the back of J.G.’s neck, T.R. lifted J.G. from behind into the air.
Ignoring J.G.’s requests to desist, T.R. eventually dropped J.G. to the ground and started laughing while remarking at his own prowess.
J.G. finished the shift and made arrangements to have his locker moved some distance away from T.R.’s. He also reported the attack to his supervisor after he got home.
Following his supervisor’s instructions, J.G. reported the next day to the Occupational Health Nurse who sent J.G. to see a doctor. J.G.’s diagnosis included a neck sprain and some psychological trauma.
Word of the incident went to the labour relations manager who co-ordinated an investigation beginning on December 10. An interview was conducted with J.G. who repeated his allegations in a formal statement. In his statement, J.G. acknowledged that while he did not want to see T.R. terminated for the assault, he did want an apology.
T.R. did not apologize. Instead, after hearing rumours about the incident the next day, T.R. approached his manager and tearfully denied the substance of the rumours. Five days later T.R. repeated his denials formally in a fact-finding interview conducted as part of the investigation.
There was no assault according to T.R. Given their difference in size, it would have been “biomechanically” impossible for him to put J.G. in a Full Nelson, T. R. said.
Instead, they likely shoulder-checked each other in the hallway as they were accustomed to doing. They had done that for years, according to T.R. and J.G. had never indicated any problem with it.
Charged with assault
Angered by T.R.’s denial, J.G. contacted the police. On December 19, police removed T.R, from the workplace in handcuffs and charged him with assault. T.R. was terminated on January 5.
The union grieved.
The two stories could not be further apart, the Arbitrator said. Both could not be true.
Ultimately T.R.’s story did not stand up, the Arbitrator said. “Simply put, his evidence does not accord with the preponderance of probabilities.
If it was a case of horseplay gone wrong as the union alleged, it was unlikely that J.G. would have made any complaint as he too would then be subject to discipline. Moreover, the medical evidence was not consistent with a playful shoulder-check. “Although, as it turned out, the injury was not serious, the nature of the assault, a headlock and a Full Nelson, could well have resulted in a more serious and permanent injury,” the Arbitrator said.
The Arbitrator noted the union’s concern that it had difficulty squaring J.G.’s complaint with his apparent lack of urgency in seeking medical attention after the assault. However, it was not unreasonable in the circumstances for J.G. to wait until the next day to see if the pain would subside, the Arbitrator said.
Minor inconsistencies in J.G.’s statements were neither significant nor determinative, the Arbitrator said and did not serve to diminish his credibility.
Sunset clause negated
The same, however, could not be said for T.R., whose claim to an exemplary service record had the effect of negating the 18-month sunset clause on his disciplinary record.
His claims about his service record brought into the open a warning issued to T.R. in 2004 for threatening a co-worker and his termination and reinstatement under the terms of a settlement for another incident in 1997 where he allegedly threatened to kill his manager.
“[T]he Board finds that the Grievor committed an unprovoked assault on a co-worker and that, aside from his long service; there are no mitigating factors to be taken into account in ameliorating the penalty.”
T.R. showed no remorse and offered no apology, the Arbitrator said. “[T.R.] attempted to mislead the Board with respect not only to the misconduct at issue, but also to his entire disciplinary record, which he opened up to scrutiny by maintaining, in effect, that he had a clean disciplinary record.”
“[A]s the Health Centre’s policies demonstrate and public policy dictates, in the interests of safety and civility, violence in the workplace cannot be tolerated.”
The grievance was dismissed.
