IN

THE MATTER OF AN ARBITRATION

The Corporation of the City of Hamilton

(City)

and


Hamilton Professional Fire Fighters Association

(Association)

Grievance of Shawn Elliott



SOLE ARBITRATOR: James Hayes



APPEARANCES

For the Association:

Howard Goldblatt, Counsel
Stan Double, 1st Vice President
Rob DAmico, 2nd Vice President
Tim Rankin, Treasurer



For the City:

Mark H. Mason, Counsel
Robert Simonds, Fire Chief
David Cunliffe, Deputy Fire Chief
Nenzi Cocca, Senior Labour Relations Officer
Joe Xamin, Labour Relations Officer

Discussions between the parties and/or hearings took place on the following dates:
January 14, July 24, September 30, October 2, November 13, December 9, 10, 2013;
January 22, April 3, October 22, November 17, 19 and December 16, 2014; February
13, 2015.

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BETWEEN

1.

On September 11, 2012 the City terminated Fire Fighter Shawn Elliott on

various grounds arising from its investigation of incidents that took place on August
4 and 7, 2012. Elliott joined the Hamilton Fire Service on September 24, 2002. He
had achieved Acting Captain status.

2.

The City submits that termination was the appropriate response to the

misconduct involved. In the alternative, it argues that damages should be

substituted for reinstatement.

3.

The Association acknowledges that there was cause for the imposition of

some discipline but seeks the Grievors reinstatement with significant

compensation.

4.

By definition an assessment of just cause requires a strong component of

second guessing. The setting aside of a decision to terminate does not necessarily
imply that the decision was not taken in good faith in the first instance. An
arbitrator has the benefit of hearing evidence under oath that is subject to the test of
cross-examination. Rumour has no place. Witnesses must come forward.

5.

As is to be expected, the testimony given in this case was influenced to some

extent by the vagaries of memory, the differing roles played by the witnesses, and
their individual perspectives of those events. Unsurprisingly, the witnesses some
times drew conflicting conclusions from the same events. There were strong
personalities involved in this matter.

6.

I have concluded that the position of the Association, taken at arbitration, is

entitled to prevail. However, I believe it only fair to acknowledge that the Fire
Service was confronted with a very troubling situation at the time the events

2015 CanLII 7290 (ON LA)

Introduction

AWARD

occurred. The Association demanded that an investigation be conducted that would

reach beyond the immediate concerns that had been raised. As it happened, not all

7.

This discharge case took a very long time to try as it was interrupted or

delayed on several days by unexpected events and prolonged attempts at resolution.

No fault in this respect is attributable to any person or to either party.

8.

It is important that a decision be rendered as quickly as reasonably possible.

The Grievor has been without work as a fire fighter for more than two years and
there is continuing potential financial liability for the Employer. Accordingly, this
Award does not purport to record all of the evidence that was tendered. It does set
out the core facts upon which the decision has been based.

Facts

August 4, 2012

9.

August 4th was a Saturday, the day in the week when Fire Stations are to be

cleaned thoroughly. Station 23, where the Grievor was then assigned, was no
exception. First Class Firefighter John McCarthy worked there also. McCarthy was a
long service fire fighter who had been at Station 23 for 7 years.

10.

McCarthy testified that, prior to August 4th, he and Elliott had had their

differences but never to the point of arguing loudly. However, things got out of
hand that day. McCarthy believed that the Grievor had not done his share of
cleaning properly and said so. According to McCarthy, Elliott responded in a
lackadaisical, dismissive manner saying I dont have time for you today. They then
started arguing about different things. McCarthy pointed out his view of the
Grievors deficiencies as a fire fighter and Elliott did the same to him. The argument

2015 CanLII 7290 (ON LA)

of those concerns were borne out on the evidence before me.

became detailed and deeply personal. Neither thought the other was a worthy fire
fighter.
11.

McCarthy recalled that Elliott got up from a table and went to the kitchen.

McCarthy followed him. The argument continued and voices were raised. Elliott
walked in front of him and sort of pushed his belly out and bumped into me.
Shortly thereafter he walked beside me, shoved me with his shoulder and forearm
out of the way.

12.

McCarthy testified that, at that point, Captain Derek Hudson came into the

kitchen and told us to stop. When Elliott turned to face him, McCarthy punched
the Grievor in the face. He believed that what Elliott had done was an act of
aggression and that the best defence is a strong offence.

13.

McCarthy claimed that Elliott had previously talked often about knives and

guns, what he wanted to do to people he thought had wronged him. He related a

prior occasion when he recalled that the Grievor had said: how the union doesnt
support him, how he wanted to break into Henry Watsons [the Local President]
house and engrave his name with a knife in Henry Watsons wifes forehead while
shes sleeping. McCarthy said that on a number of occasions Elliott had said he was
making a list of people he will deal with who had done him wrong.

14.

After he punched the Grievor, McCarthy testified that, as Captain Hudson

stepped in between them, Elliott slapped him in the face and said: were even,
youre screwed now.

15.

Following this confrontation, discussions took place in the Station. It was

agreed that the exchange would be kept in house and not reported up the chain of
command. Those involved were aware that, if it were otherwise, there would be
discipline. They all worked the remainder of the shift.

2015 CanLII 7290 (ON LA)

16.

The Grievor recalls the events of August 4th differently but, except for detail,

much the same way. The same may be said of the recollections of Captain Hudson
Elliott and McCarthy.

17.

The Grievor said that McCarthy confronted him about why his cleaning was

not finished and that he told him: I wasnt having a good day and wasnt going to
deal with him at that moment. McCarthy became irate. An argument about various
historic fire ground incidents then broke out and escalated. Elliott chose to point
out in painful detail his view of how McCarthy had been at fault in a number of
situations, supposedly belittling him with the facts. The Grievor testified that
McCarthy began chasing him around the kitchen while they were arguing coming
within inches of his face, hovering over him, blocking his way and refusing to move
when asked.

18.

Elliott said that at one point he shoved past McCarthy, hitting him with his

right shoulder. He testified that, as he was walking to a table with food in his hand,
McCarthy advanced behind him, planted his foot, and hit him from behind on the
right temple with his right fist with a powerful punch. After an intervention by
Captain Hudson, McCarthy yelled out: well finish this after work. Elliott replied:
Not a good idea. Youd better learn to punch harder as it would be like fighting an
old man. When McCarthy tried to push through Hudson and Small, Elliott slapped
him in the face and said: Were even now, forget about it.

19.

Elliott sought medical attention in the days that followed and saw his family

doctor, an optometrist, and an ophthalmologist. Photos of his injury were take that
were introduced into evidence. They show serious bruising that the Grievor said
took a few weeks to clear. Without a doubt, McCarthy had delivered a heavy punch.

20.

Notes from interviews with Hudson and Small were filed on consent. Small

claimed to have seen little although others noted his presence when blows were

2015 CanLII 7290 (ON LA)

and Fire Fighter Jeff Small who were present for some of the exchanges between

struck. Hudsons recollection differed to some extent; for example, the notes of his
interview recite that, before McCarthy punched Elliott, the Grievor contacted

21.

Elliott also testified that he and McCarthy had had a prior dispute over

Elliotts use of a cell phone in the dorm at night. He said that McCarthy had
threatened him if the phone was used again at that time but that they had not had
any other heated exchanges previously. McCarthy said he would shove it up my
nose if the phone went off again. McCarthy acknowledged this in cross-
examination.

August 7, 2012

22.

McCarthy is black. As I understood the evidence, he and Ron Summers, the

Secretary of the Association, were the only black suppression fire fighters in the
Hamilton Fire Service at the time.

23.

On Monday August 7th the Station 23 crew attended at a gas leak. McCarthy,

Hudson, Small, and Elliott were there as were Platoon Chief Pat Gallacher and some
others. According to Elliott: They were teasing me pretty hard about my black eye,
depicting several scenarios. I wasnt saying anything so they harassed me in a
playful manner. I told them that I had kind of had enough and told them I was at
the zoo and got hit by a monkey. Some laughed. Hudson was present. McCarthy
was not. Hudson and Gallacher said nothing when the comment was made although
Hudsons subsequent statement indicated that: I was shocked and turned away.

24.

McCarthy recalls that, while at the gas leak, he was approached by Acting

Captain Steve McKee who asked him if he knew what had happened to the Grievors
eye. McKee told him that Elliott had said that: I went to the zoo and got attacked by
a monkey.

2015 CanLII 7290 (ON LA)

McCarthy once not twice, as stated by McCarthy.

25.

McCarthy testified that he then decided that things had to change at the

Station and that he couldnt work with Elliott any more. When asked why he said:
we do. If you go into a fire with someone you dont trust, you cant do your job. I
would never feel confident in a fire. It has nothing to do with being called a name. If
he doesnt see me as human, how can I expect him to help me?

26.

On returning to the Station, McCarthy told Hudson that he couldnt work with

Elliott any more and that Elliott needed to move to another Station. McCarthy told
Elliott that: Your true nature had reared its ugly head. He recalls Elliott looking
deflated and saying that he didnt mean it that way. Once again, the men decided to
keep it in house. Hudson told McCarthy that there was an opening at Station 3 and
that Elliott was willing to go there if it was kept quiet. From that point forward,
matters passed on to Acting District Chief John Kossup and Platoon Chief Gallacher.
Written statements were taken. Knowledge of the incidents moved up the chain of
command to the Deputy Chief and Chief level. An investigation was commenced.

Fire Chief Robert Simonds

27.

When the Chief gave his evidence in the fall of 2013 he had been in the

position for 2 years. Chief Simonds came to Hamilton following a 32-year career
with the Saint John, New Brunswick Fire Service where he had been Chief for the
preceding 8 years. He had previously served as a principal officer of his local union,
Local 771, after becoming a fire fighter on July 9, 1979.

28.

At the time of these events, Simonds was new to the Hamilton Fire Service

and unfamiliar with many of the players. He relied upon Deputy Chief David Cunliffe
who took charge of the investigation. Simonds took the ultimate decision to
discharge the Grievor.

2015 CanLII 7290 (ON LA)

He equates me to a monkey which is not human. You need trust in the type of work

29.

At the commencement of his testimony, Simonds described his

understanding and lifetime experience with the fire fighter brotherhood, a

someone there to support you. His point was that the profession demanded that
fire fighters trust each other absolutely as they held each others lives in their hands.
Deputy Chief Cunliffe expressed the same sentiments, deeply held by both men.

30.

An important factor in the decision to terminate emanated from a meeting

with the Association that took place on August 18, 2012. In attendance at that
meeting on behalf of the Association were Secretary Ron Summers and 1st Vice
President Stan Double. Chief Simonds testified that he advised the Association that
the Department had heard rumblings, that there was sentiment out there about
issues of fire fighter safety, racism and violence in the Stations. The Association was
advised that there was an active investigation underway concerning Station 23.

31.

Simonds testified that he was told unequivocally at the meeting by

Summers, speaking for the Association, that: Those concerns were real. I was told
there were significant concern in the membership about continuing to work with
Fire Fighter Elliott, concerns expressed about fire fighters feeling unsafe working
with him, and that I would have mass refusals to work with him by members of
Local 288, that is how significant the issues were. Summers also advised that:
Dont think for one moment youre going to stick your head in the sand on this
issue. Our members have significant concerns and you have responsibilities under
Bill 168. Simonds said that: Summers said he had concerns expressed to him from
fire fighters that Elliott talks about guns, knives, and other nasty things insatiably.

32.

Simonds further testified that he asked the following: Youre telling me that

if Shawn Elliott goes into a Station, fire fighters wont work with him? and that
Summers replied: Exactly. Simonds then asked: You wouldnt work with this
individual? to which Summers replied: Exactly.

2015 CanLII 7290 (ON LA)

relationship of kinship and respect where one was never in a jackpot without

33.

Simonds stated that he trusted the Executive of the Association to have the

pulse of the membership and that he believed their stated concerns to be true. He
the Deputy Chief or Platoon Chief Gallacher.

34.

Before making the decision to discharge the Grievor, Simonds reviewed notes

of interviews and consulted with his colleagues. He concluded that there was a
problem at Station 23 and that the Grievor had taken no responsibility for it. Unlike
the other participants in the events, Elliotts version of the events was lacking
significantly in authenticity. He had taken no ownership and his version lacked
truthfulness when compared with the statements of others. He considered the
nature of the incidents to have involved violence in the workplace with racial
overtones. He stated that: The cumulative impact of whatever he has done has
caused members of Local 288 to go en masse to their executive to refuse to work
with him, and were concerned about their safety. He decided to discharge Elliott.

35.

In cross-examination Simonds acknowledged that, so far as he was aware,

certain allegations were not put to the Grievor prior to his termination including the
suggestion that he had used the phrase station nigger. He accepted that Fire Hall
gossip was a fact of life. He agreed that the Union wanted him to investigate the
allegations made against Elliott to ensure the membership that there wasnt a
violence in the workplace situation before you made a decision. He agreed that he
understood that the Associations concern was raised in the context of Bill 168. He
agreed that no member of the crews with whom the Grievor had worked as Acting
Captain had been asked whether or not they were still prepared to work with him.

Stan Double

36.

Association 1st Vice President Double also testified about the August 18, 2012

meeting with the Chief and the Association. It was Doubles evidence that: The
Association took a strong position that the Employer needed to investigate the

2015 CanLII 7290 (ON LA)

advised the Association that any further information should be provided to either

circumstances surrounding the August 4th and August 7th very vigorously based on
our position in regards to health and safety and Bill 168.Our position was to
were contacting the Association and voicing their concerns about incidents with
Shawn Elliott and we had an obligation not to conceal but to provide it to the
Employer. He said that names were provided to the Employer at the meeting but
that, apart from attending at interviews, the Association had no further role prior to
the termination.

37.

In cross-examination Double acknowledged that Summers made it clear to

the Chief that Local 288 members had grave concerns about working with Elliott,
that the Chief had indicated that they were trying to determine the validity of those
concerns, and that Summers had stated unequivocally that the concerns were real.
He confirmed that the exchange between Simonds and Summers had taken place as
had been described by Simonds in evidence. Double confirmed that Summers was
speaking for the Association at the meeting and not merely expressing his personal
views.

38.

In re-examination Double stated that the Association believed that it would

be the investigation that would determine whether the expressed concerns were
true or not. He said that the Association had never been shown any investigation
report.

Other Issues

39.

In the course of the investigation other allegations concerning the Grievor

surfaced. Most notably, Captain Cam Ritchie came forward to relate issues that had
arisen as far back as February 2008 at Station 11. Ritchie had a strained
relationship with Elliott and took some notes at the time. There was another
incident where the Grievor flashed a red pointed light on the common room

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2015 CanLII 7290 (ON LA)

ensure that the employer took the situation seriouslyMembers of the Association

television set while three fire fighters were watching the screen. This latter
situation, for a time at least, was thought to involve the scope of a gun.
40.

At the time that he was called to give evidence, Ritchie had been on WSIB

leave since November 4, 2011. Early in his examination in chief it became apparent
that he was fragile and unable to testify clearly. He was excused on consent. The
parties agreed that his notes were contemporaneous and that his written statement
would be accepted. While no one suggested that Ritchie was not credible in the
sense of being honest, it was plainly impossible for him to provide coherent
testimony. Accordingly, there was no opportunity for the Association to test
anything he had said or written in cross-examination.

41.

The contemporary Ritchie notes are fragmentary to say the least. One of the

notes references an argument between Ritchie and Elliott in which the Grievor is
alleged to have said that he was not going to be the west end bitch or the station
nigger. According to the Grievor, Platoon Chief Gallacher was in earshot when this
dispute took place. There were a number of other concerns raised following the
Associations meeting with Simonds on August 18th; for example, Ritchie mentioned
the Grievor sharpening knives in the Station, his use of a paring knife, and his
viewing of internet sites relating to hunting and guns.

42.

Elliott answered all of these allegations and more in his testimony. For

example, he explained that the red dot on the television screen had emanated from a
paint gun device he had repaired for the son of a friend. He fixed a mangled spring in
the battery compartment and then took the device to the common room to tease the
guys.

43.

The Grievor explained that Ritchie had brought his complaints to Platoon

Chief Gallacher who lived there at the Station and that Gallacher raised no
concerns with him (Elliott) about them although they had discussed some of them.
Elliott said this about Gallacher: I think hes an excellent officer. He is pretty strict

11

2015 CanLII 7290 (ON LA)

in his position. I have always got along with him. He has always been impartial. He
explained that he and Ritchie had argued about whether it would be Elliott who
had said: I wont be the fucking west end bitch or the station slave and presented
facts why it wasnt my turn. He explained that it made no difference because at that
point he was going anyway. Elliott testified that when this statement was made
Gallacher was about five feet away and that he had made a point to talk to Ritchie
when Gallacher was within earshot. Cunliffe agreed in cross-examination that in the
investigation he had never asked Gallacher if he had ever experienced difficulties
with the Grievor. Gallacher did not testify.

Henry Watson Allegation

44.

The most striking allegation made against the Grievor was McCarthys

recollection of what Elliott had said about Henry Watsons wife; that is, carving
initials into her forehead.

45.

McCarthy was unable to recall when this statement was made but agreed in

cross-examination that it had to have been at some point before October 2011. He
remembered calling a close friend, Colleen Cullen, who was employed as a Fire
Inspector and happened to be a union steward. He called Cullen as a close friend,
not in her union capacity.

46.

McCarthy testified that they agreed that Cullen would take an opportunity to

speak to Watson to discuss whether or not Elliott needed professional help to

control his temper. McCarthy himself never spoke to Watson. McCarthy said that
Cullen told him later on that she had talked to Watson but did not bring up any
specifics. McCarthy did not raise the issue with management or any other union
officer. He said it was sufficient for me that Cullen had called the union president.
He agreed that he worked with Elliott for over a year after this incident.

12

2015 CanLII 7290 (ON LA)

should go to Station 23 to achieve a proper complement. The Grievor said that he

47.

Cullen had little detailed memory of her conversation with McCarthy but did

recall being told that the Grievor had told him of a threat perhaps to go into the
who in the family was referred to or what was supposed to have been said. She did
recall that she and McCarthy agreed that it was likely just a shock statement. She
said: I didnt think there was truthful intended action behind it.We didnt want to
escalate a situation, that we didnt think was necessarily credible. We didnt think
he would actually do that.

48.

Cullen said she spoke to Watson the next time they were alone and told him

that she had concerns sometimes about the Grievors statements and wondered if
there was anything they could do to reach out and help him if he needed it. She did
not relay to Watson the specifics of what Elliott allegedly told McCarthy. Watson
never got back to her about it and she took no further action. McCarthy was
satisfied that she had spoken to Watson. That was the end of this situation until
McCarthy recalled it during the interview process concerning the Elliott discharge.

49.

The Grievor denied having made the comment about Henry Watsons wife

but did recall having a discussion about the union that also involved the movie
Inglorious Bastards where the carving of initials in foreheads occurred. McCarthy
was aware of the film but did not recall this part of the discussion.

Discipline of McCarthy and Hudson

50.

Cunliffe explained that McCarthy was given the equivalent of a 5-day

suspension for his part in the August 4th confrontation. McCarthy had
approximately 20 years service at the time and had a clean disciplinary record.
Captain Hudson was given a one-day suspension for his failure to address the
Elliott/MCarthy situation. Both fully acknowledged their mistakes and misconduct.
Neither grieved.

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union presidents house and hurt someone in the family. She did not remember

Apology

The Grievor testified that he told McCarthy a couple of times immediately

afterward that he was sorry. The Hudson interview notes confirm that there was an
apology. Elliott said, after he was discharged, that he learned that McCarthy had said
that he had received no apology. As a result the Grievor called Double. He gave a
letter to Double for McCarthy: I wanted it to stand on what I said to the man, not
what other instigators were stirring the pot.

52.

The letter read as follows:

In reviewing some material, other peoples comments and actions I consider it
had been possible that it was portrayed directly or indirectly to you that I was
not sorry for making the comments on Aug 7, 2012. You have talked about your
experiences where you have encountered people or ideals that where (sic) racist
or prejudice. Understandably these experiences are unnecessary and unwanted.
My position remains that I am sorry my comment brought you any discomfort,
pain and suffering. I apologize that I brought you this experience.

53.

McCarthy does not accept that the apology was sincere: He doesnt own up

to it. How can I see this as an apology? If he said I called you a monkey and I
apologize, I would accept that apology sure.

Racism

54.

Fire Fighter McCarthy gave succinct but eloquent evidence about his life

experience with racism both inside and outside of the Fire Service. It is not possible
to do that testimony justice in a brief summary nor will I attempt to do so. Suffice it
to say that I found it to be impressive. McCarthy described appalling comments
made to him at the beginning of his career but was also quick to say: It was a
different Department back then, 20 years ago. Those men grew up in a different
time. They thought differently back then.

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51.

55.

The Grievors evidence on the same issues was less than compelling. Again,

there is no need to set it out in detail. He described at length how in his view his
my generation to depict black people, maybe in the 70s but not now. He did
accept, whether or not intended, that his comment had offended McCarthy. In
hindsight the most important thing was that John was angry or hurt. That was the
most important thing.

Trust

56.

As previously noted Chief Simonds spoke at some length about the

brotherhood. Deputy Chief Cunliffe also gave his opinion about the trust that is
required in a Fire Department. He described it this way: From my perspective,
trust is paramount among fire fighters who perform functions in life and death
situations. Every one depends on their brother and sister fire fighters. Each has
each others back trusting their life with members of their crew. That trust creates a
close knit group of individuals who would do anything for each other to protect each
other. Simonds and Cunliffe were of the view that that indispensable bond of trust
had been lost so far as the Grievor was concerned.

57.

The Grievor had a different perspective on this question that came out

sharply several times in cross-examination. When asked if he agreed with the

Deputy Chief about the importance of trust in the Fire Department, Elliott said he
did not agree. He worked with people in the Fire Department whose names he did
not know. There were individuals with all manner of personal issues but he trusted
that they would do their duty while on the job. It was not a matter of trust. People
have weaknesses and some are grave. But they are given the opportunity to do their
duty. When they dont do their duty, they get addressed. He said that: You expect
them to do their job. If that trust is broken, then you look at specifically what they
did do. I couldnt go to work talking about other peoples deficiencies. Its not
productive. I go to work expecting them to do their job. If they dont, deal with it. I

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generation had changed the world about racism, the term monkey is not used by

have seen officers panic and run and I barely got out alive. We learn. We all learn.
Did I question if it would happen again? Yes. But it happens. People arent perfect.
Quite the opposite. Ive seen guys with personal problems who are awesome fire
2015 CanLII 7290 (ON LA)

fighters.

Submissions

Employer

58.

Mr. Mason provided thorough summary of the testimony provided by all of

the key witnesses and highlighted the differences between the evidence given by the
Grievor and that of others. In the final analysis, counsel submitted, the evidence
supported the termination decision reached by Chief Simonds. The Grievor had not
taken ownership of anything that had occurred. Compared to others his credibility
was lacking. The incidents involved the threat of violence with a racial component.

59.

Counsel submitted that the Grievor did not accept the fundamental principle

that fire fighters require a mutual bond of trust. Elliott had initiated physical
contact on August 4th and at a minimum was the antagonist. His explanation that
the monkey comment was not a racist slur is incredible. The Grievor to this day has
not acknowledged wrongdoing. His apology amounts to no retraction at all; there
is no evidence of remorse. The Grievor has difficulty in understanding that his
perception of fact is provocative and insulting [to his fellow fire fighters]. He sees it
as a fact and therefore it is not a problem. This case includes the unique factor of
the Associations role. The heart of the Chiefs testimony focused on the August
18th meeting with the Association where the Chief was made aware about the
Associations members concerns about continuing to work with the Grievor. In
comparison with the credible and forthright testimony of McCarthy and the Chief,
the Grievors evidence was littered with attempts to avoid, littered with inability to
recognize wrongdoing. There is nothing to suggest that there is any chance of

16

rehabilitation or that there are other mitigating factors that should outweigh the
decision to terminate.
60.

Counsel reviewed the following authorities: Faryna v. Chorny, [1952] 2 D.L.R.

354 (BCCA); Kitchener (City) v. Kitchener Fire Fighters Assn, 2008 CarswellOnt 10317
(Luborsky); Toronto (City) and Toronto Professional Firefighters Assn, Local 3888,
2014 CarswellOnt 16474 (Misra); Cape Breton Firefighters Assn, 2012 CarswellNS
1054 (Ashley); Port Hope (Municipality), [2005] O.L.R.B. Rep May. 395; Lethbridge
Community College, 2004 S.C.R. 28; DeHavilland Inc. [1999] O.L.A.A. No. 767
(Rayner); Re NAV Canada, (2004) 131 L.A.C. (4th) 429 (Kuttner); Hendrickson Spring
Stratford Operations, (2009), 96 C.L.A.S. 325 (Solomatenko); Humber River Regional
Hospital, 221 L.A.C. (4th) 119 (Stout); Shaver Hospital, 1991 CarswellOnt 6420
(Rayner).

61.

In support of the Employers alternative submission that compensation

should be awarded in lieu of reinstatement, counsel referred to DeHavilland Inc. He

argued that the relevant factors identified therein by Arbitrator Rayner were met in
this case. That is:

Coworkers refused to work with the Grievor;

There was a lack of trust between the Grievor and the employer;
There was an inability or refusal of the Grievor to accept
responsibility for any wrongdoing;
The Grievors demeanour and attitude at the hearing was problematic;
There was animosity on the part of the Grievor towards management
or coworkers;
There was a poisoned atmosphere in the workplace.

Association

62.

Mr. Goldblatt reviewed what the Association viewed as the crucial

evidentiary matters and conceded that some level of discipline for the Grievor
would be justifiable for both the August 4th and 7th incidents. He submitted that, at

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most, 5-day suspensions would be appropriate for both incidents having regard to
the discipline imposed upon McCarthy and Hudson.
63.

In the view of the Association Elliott responded to McCarthys punch well

within his capacity to retaliate and had actually been restrained in his response.
The Grievor should not be seen as the aggressor. Elliott did make an offensive
comment on August 7 but his apologies were genuine. If it hadnt been for the
meeting on August 18th and the noises that were heard, that would have been the
end of it. There would have been suspensions and that is all. McCarthy does not now
want to work with the Grievor but stated in cross-examination that he did not want
him to lose his job.

64.

The Association identified the Employer obligation under Bill 168 but what

later surfaced was little more than fire hall gossip. The Association had an
obligation to identify what it knew but the investigation, as it unfolded, did not
involve asking any of the many fire fighters and officers who had worked with the
Grievor about whether they would have any issues with working with him in the
future. Elliott was assigned to 8 Stations in 2012 as Acting Captain. Some of these
are multi vehicle Stations with 4/6/8 people and the Employer did not speak to any
of them about the so-called noises. The most superficially troubling comment was
the Henry Watson comment. However, even if it was made as recalled by McCarthy,
it was seen as a shock statement and not intended to be acted upon. There was
also fundamental disagreement as to the genesis of the alleged statement.

65.

The Grievor has held a command position in many Stations. The idea that

fire fighters are perfect individuals is ridiculous. They are expected to do their jobs
and to that extent they are close knit. But they dont have to like each other. There
is no evidence that Elliott hasnt done a good job, that he isnt a good Acting Captain,
that he has a diminished command capacity, and that others with whom he has
worked dont want to work with him.

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66.

The Employers alternate position should be rejected. There is no evidence

that Elliott bears any hostility to management or anyone in the management

the Grievor explained why he wished to return to his career as a fire fighter in a
convincing manner.

Decision

67.

It is difficult not to sympathize with Chief Simonds predicament when

credible executive officers of the Association informed him that fire fighters en
masse were not willing to work with the Grievor any longer. He faced an
unorthodox situation and did the right thing on advice; he sought further
clarification of what he referred to in evidence as rumblings. McCarthys rendition
of the Henry Watson comment must have been especially jarring. It would have
seemed that there were disturbing echoes in the August 4th and 7th incidents in
some of the other noises as they were referred to in the testimony.

68.

But a lot of time has gone by. There has been ample time to consider those

allegations and for other fire fighters and officers to come forward. Elliott has now
had the opportunity to speak to all of these concerns. I have been the beneficiary of
skilled cross-examinations by both counsel. In final argument I believe that Mr.
Mason put it very fairly: In the end, with the exception of the issue about the threat
and Henry Watson, a lot of those become secondary in nature.

69.

It appears that a number of historic situations or exchanges were resurrected

following the Associations advice to the Chief that members had concerns about
Elliott. Apart from those mentioned by McCarthy, the only first hand context I have
for any of these matters was that provided by the Grievor.

70.

The allegations, if they were allegations at all, were stale. Furthermore, for

example, it is hard to credit serious alarm about a fire fighter anywhere being

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structure. There is no poisoned atmosphere. At the end of his examination in chief

interested in an internet site about hunting. Elliott testified that he has all his
licenses but hasnt hunted for the last few years. He said there are hunting fanatics
involved him dealing with a grapefruit while on a call. He said he had a special knife
sharpener that guys had asked him to bring in to use on the kitchen knives. The
evidence of Ritchie was unreliable and his contemporary notes were of no real
assistance. In that circumstance, and given the Grievors denial, it would be unsafe
to do so and I am unable to credit the station nigger allegation.

71.

No one except McCarthy came forward at the hearing and no one including

McCarthy took these issues up at the time. As previously noted, McCarthy testified
that he had had no serious arguments with Elliott prior to August 4th and, even then,
had no desire to see him lose his job. There was undisputed evidence that persons
in command positions were aware of at least some of these events when they are
said to have occurred. Insofar as the Henry Watson incident is concerned, Elliott
provided a plausible explanation of its context. It is noteworthy that Colleen Cullen
had no memory of exactly what Elliott was alleged to have said-- despite the graphic
version related by McCarthy that one might think would not be easily forgotten.
Significantly, neither McCarthy nor Cullen believed that the Grievor had any
intention of carrying out such an incredible action. They believed that what he said
was said for shock value.

72.

Apart from testifying that they were part of the cumulative picture,

Simonds appears to have placed little reliance upon the details of these matters.
The Chief was correct not to do so. In my opinion the recitation of these concerns,
raised and viewed in hindsight following Elliotts termination, speak more to the
Grievors personality rather than to any misconduct fairly attributable to him.
Several of these situations appear to have been benign once explained.

73.

What became most evident during his testimony was that Elliott is not a

conventional individual. He is an intelligent man who holds strong opinions on a

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and duck hunters in other stations. The paring knife situation, according to Elliott,

variety of subjects and does not hesitate to express them. I have no doubt that he is
someone with whom one could have an interesting conversation on one day but
When provoked Elliotts first instinct is not to give way. He confirmed in his
evidence that he has an extremely high opinion of his own abilities as a fire fighter.
His opinion of some others, when expressed as it was to McCarthy on August 4th,
would not be well received.

74.

The Grievors manner of speaking was distinctive if not unique. When

challenged in evidence he insisted on clarifying what, in some cases, appeared to be

straightforward questions. While this approach is frequently a badge of witness
evasion, I did not perceive it to be so in his case. There was usually a point to be
made when he sought clarification or insisted upon precision.

75.

Chief Simonds formed the impression that Elliott lacked authenticity from

his reading of the interview notes, perhaps understandably. On the other hand, I
heard the Grievor directly. I do not find it unusual that honest witnesses do not
recall the same events in exactly the same way. None of the descriptions of the
August 4th incident match up exactly and one would not expect them to do so.

76.

The Grievor does not appear to be one for political correctness. Many

witnesses would have chosen diplomacy over candour when challenged about
trust and the brotherhood as Mr. Mason did with the Grievor. Not Elliott. He held
his ground and did not hesitate to express a rational opinion, one likely to be
unpopular. I do not mean to suggest that the views expressed by Simonds and
Cunliffe, that I expect most fire fighters would share, should not be preferred. I do
not conclude however, because Elliott looks at this issue somewhat differently, that
he should necessarily be distrusted as a fire fighter.

77.

There is no question that the Grievors conduct on August 4th and 7th was

blameworthy. I have no difficulty imagining why on August 4th McCarthy became

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who, on other occasions, could be profoundly irritating. McCarthy said as much.

enraged when he perceived Elliott to be ignoring his cleaning duties and then
seemed to blow him off dismissively. Elliott did nothing to defuse that conflict with
personal insults. The Grievors perception that his insults were permissible,
because in his view they were factually based, provides no excuse. The fact remains
however that, whether Elliott first pushed by McCarthy once or twice, McCarthy
punched him extremely hard. I agree with a comment made by Simonds that it is
likely that the Grievors responding slap would have been more insulting than
anything else.

78.

Elliotts comment on August 7th about being hit by a monkey was obviously

inexcusable. However he may understand his own beliefs about racism and
tolerance, and however he may generally conduct himself, the comment may only be
understood to have been racist. It is impossible to conceive any other explanation
for the use of the word monkey in the context of McCarthy having struck him on
August 4th. McCarthy had every right to feel profoundly degraded and to demand
that something be done. McCarthy acted with dignity in speaking immediately and
directly to Hudson and Elliott about the matter. He acted with grace at the time and
continues to do soall the while maintaining his position that he has no desire to
see the Grievor lose his employment as a fire fighter. I was impressed with
McCarthy.

79.

At the end of the day therefore, I am left to determine the appropriate

penalty for the Grievors misconduct on August 4 and 7, 2012. By that time, Elliott
had reached the rank of Acting Captain and achieved approximately 10 years
service. Whatever his quirks of personality may be, and despite some apparent
difficulties on occasion with his colleagues, the Grievors career had proceeded to
that point in a normal manner so far as I am aware. I am struck by a comment made
by Captain Hudson in a report sent to Platoon Chief Gallacher on August 7th: 17:00
hours A/DC Kossup attended, received statements from all four of us and promised
to pass on our request for a station move for FF Elliott. We didnt mention to him

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McCarthy on August 4th and everything to aggravate it. They both descended to

how serious the argument was but only that they had argued. Our thought was still
this was an isolated incident and that a station move would solve the problem. (italics

80.

In all of the circumstances as I understand them, I am unable to conclude that

the August 4 and 7th incidents should be regarded as career ending in the case of a
fire fighter with significant if not exceptionally long term seniority. I accept, as Mr.
Mason submits, that fire fighters should be held to a higher standard than some
others depending on those circumstances. But it is also the case that an Arbitrator
should be most careful in reaching any conclusion that would effectively end a
career in which fire fighters have so much personally invested and of which they are
justifiably proud.

81.

I also believe that an Arbitrator should not easily reach the conclusion that a

payment of damages in lieu of reinstatement may serve as an appropriate outcome

where there has been no showing of just cause for discharge--absent truly
exceptional circumstances. Employees should not lose their employment because of
personality conflicts, or occasional disagreements with colleagues, that do not
threaten legitimate employer interests. Employees are not required to like their
superiors or their unions as a condition of continued employment.


82.

I accept that the Grievors statement about why he wishes to return to the

Fire Service, made at the conclusion of his examination in chief, was genuine. He has
had considerable time to reflect upon his interactions with his colleagues. Elliott
has nothing to be proud of about his conduct on August 4th and should be ashamed
of what he said on August 7th. While McCarthy also behaved badly on August 4th,
Elliott could take a great deal from McCarthy. In my view, McCarthy even now
deserves the apology, described in paragraph 53 above, that he said he would be
prepared to accept. Elliott should not regard the result of this arbitration as any
kind of personal vindication.

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added)


83.

But, in this case I see no satisfactory evidence that the Grievor has

uniona conclusion that some Arbitrators, including myself, have relied upon when
choosing the alternative remedial option proposed by the Employer. On the
evidence that I have heard I cannot conclude that any pattern of racist conduct has
been established, a conclusion, if reached, that would have led to a very different
outcome. I do not accept that the Grievor has irredeemably poisoned his work
environment or that there is no reasonable likelihood that he will be unable to
resume his career in an acceptable manner. That of course will be Elliotts
responsibility going forward.

84.

In the result I find that the Grievor was terminated without just cause. I find

that his record should be modified to include the same 5-day suspension without
pay given McCarthy for the August 4th confrontation. The record should also show a
10-day suspension without pay for the inexcusable August 7th remark. The Grievor
shall be reinstated as a fire fighter at a Station to be determined by the Chief or his
designate. He shall be compensated for his losses subject to the usual rules of
mitigation.

85.

I remain seized to address any implementation issues.

Dated at Toronto, Ontario this 23rd day of February 23, 2015.











James Hayes

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manifested any exceptional hostility to management, his colleagues, or to his