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Sticks and stones versus names

Even with heightened sensitivity about violence, a punch won't always justify dismissal

By Jeffrey R. Smith

There are many ways for an employee to get fired through bad behaviour in the workplace. Punching a co-worker would be one example. Or making other physical contact to start a fight in the first place. Or racist comments.

In this age of extra sensitivity to violence and threats in the workplace, these examples of misconduct at work seem like just cause to fire an employee. But perhaps not.

Consider the situation at an Ontario fire station a couple of years ago. Two firefighters at the station didn’t  get along, though they normally avoided getting involved in any significant altercations. However, one day they got into an argument over whether each was doing his fair share of cleaning, which escalated into unflattering comments about their abilities as firefighters. Eventually, one shoved the other and, as a captain stepped in to try to break it up, the other punched the first firefighter who did the shoving.

A few days later, the second firefighter – who had thrown the punch – heard that the first had said a monkey at the zoo had punched him.  He, along with some of his colleagues, were shocked at this comment and believed it to be racist, as the second firefighter was black. The second firefighter told the captain he couldn’t work with someone like that and wanted to move to another station. The captain said he would move the first firefighter if they kept matters between them to avoid discipline, though the first firefighter tried to say he didn’t mean the comment the way it sounded.

But word got out and management investigated, finding that others didn’t want to work with the first firefighter either. He was dismissed for begin the aggressor in the physical altercation and his comments, while the second firefighter was suspended for five days for the fight.

However, an arbitrator found the first firefighter’s misconduct wasn’t cause for dismissal for someone with 10 years of service. There was no previous pattern of racist conduct and it was believable he didn’t intend the comment to be racist. In addition, he tried to tell his colleague he didn’t mean the comment to be racist. The arbitrator determined the first firefighter should get the same five-day suspension for the fight as his co-worker, along with a 10-day suspension for the monkey comment: see Hamilton (City) and Hamilton Professional Fire Fighters Assn. (Elliott), Re, 2015 CarswellOnt 2334 (Ont. Arb.).

So it seems that while workplace violence, threats and discrimination should be taken seriously be employers, intent can go a long way in determining the extent of discipline. It makes sense that two employees involved in a fight should receive similar discipline – depending on how blatantly one started it – and senior employees with a good record should receive more benefit of the doubt.

Things can be a little difficult when it comes to considering legislation like Ontario’s Bill 168 and the employer’s duty to provide a safe workplace by physical altercations, but zero-tolerance policies can be difficult to enforce. But should they be? Should an employer be allowed to ban any physical fighting from its workplace under penalty of dismissal? If sticks and stones break bones, shouldn’t they automatically be grounds for dismissal?

The matter of racist comments is a little different, as intent can reveal more about the person who makes the comment and the likelihood of it happening again. Sometimes people say things they don’t realize are inappropriate – perhaps due to innocent ignorance. While names can still hurt, different people are affected differently and sometimes an apology can rectify things. It makes sense where progressive discipline and its concept of correction can make things better at little easier than when physical injury happens from a workplace assault.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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