When he got into an altercation with a tow truck operator, Robert MacDonald, a cable repair technician at Aliant Telecom with 17 years’ service, was walking the picket line in Sydney, N.S., about two months into a strike. Tow truck operator Robby Reid, hired as a contractor for Aliant, had wanted to cross the picket line to get a boom truck from company premises so he could take it to his shop for repair.
The strikers, including MacDonald’s wife, who also worked for Aliant, prevented him from doing so. Harsh words were spoken. MacDonald threatened to kill Reid if he crossed the line. On the way out of the parking lot, Reid’s tow truck bumped into MacDonald.
A short while later, MacDonald turned up at Reid’s place of business, still wearing his picket sign, a hammer concealed up his sleeve.
He strode into the shop, walked up to Reid and brought the hammer down on the back of his neck. The blow would have had greater force had Reid’s son Chris not lunged forward to deflect it. Another son restrained MacDonald. Once the two sons got their father to his feet, he punched MacDonald several times. One of Aliant’s managers, who was at the repair shop, ordered him off the premises.
The police were called after both incidents. No charges were laid with respect to Reid’s truck bumping into MacDonald, but MacDonald was charged with assault and carrying a concealed weapon. These charges were later dropped.
Nevertheless, MacDonald’s employer took a dim view of his alleged behaviour and, after investigating the situation, concluded his actions “were completely unacceptable.” He was fired.
The union launched a grievance on his behalf citing the collective agreement, which required “proper and sufficient cause” for termination. MacDonald denied having instigated the fight. He said instead that he went to Reid’s shop to talk to him and to return a hammer he had found on the way in, and that Reid picked the fight with him. MacDonald’s actions were acknowledged to be out of character, while Robby Reid had a reputation –– at least at the local stock car track –– for being a fighter. After weighing the evidence, the arbitrator dismissed MacDonald’s benign version of the events.
Why MacDonald had acted so irrationally was “a very difficult question.” But he concluded that MacDonald had lost it and had intended to injure Reid. In fact, if his son had not intervened, Robby Reid could have been seriously injured or even killed.
The question remained: Was discharge appropriate?
Surprisingly, the arbitrator said no. He concluded that MacDonald was not making good on his threat to kill the contractor. Even Reid said he didn’t take the picket-line death threats seriously. Instead the arbitrator conjectured that “the tow tuck bumping against the grievor’s thigh or some other interaction between Reid and the grievor, perhaps involving Shelley MacDonald, his wife,” must have triggered his unplanned irrational behaviour.
The arbitrator noted MacDonald’s clean employment record, his good relationship with his co-workers and with his immediate superiors, as well as his good reputation in the community. Taking the above into account, the arbitrator felt the chances that MacDonald would behave this way again were very low. Probably the fact that MacDonald and his wife had gone to a local coffee shop to meet Reid and to apologize for “things said on the picket line” and for “the situation” (MacDonald never admitted to the assault) stood in his favour. Also, the assault did not occur on the employer’s premises and thus didn’t directly undermine management’s authority. However, the arbitrator emphasized it went “well beyond” what can be accepted as legitimate behaviour in a legal strike even given the volatile emotions on a picket line.
The other reason discharge was inappropriate hinged on the question of discrimination. In the context of meting out punishment for misconduct, employers cannot discriminate against an offending employee by handing out a punishment harsher than that given to other employees who have committed the same, or similar, offence. Not only that, but an offending employee cannot be singled out as an “example” and given harsher treatment for that purpose. Was the discipline imposed on MacDonald out of proportion to what other misbehaving strikers received? The union pointed out that of the 4,300 people on strike and the five who were specifically disciplined for violence against people (as opposed to property damage), MacDonald was the only one fired.
The arbitrator noted that none of the other five assaults had been as violent as MacDonald’s, but his was the only one against a sub-contractor. The others were against managers. In his view, this fact lessened the seriousness of the act to a degree –– at least in respect to the viability of the working relationship.
As a result, the arbitrator concluded the discipline was “somewhat disproportionate” to that meted out to other miscreants, and that fact coupled with MacDonald’s reputation and employment history resulted in the arbitrator ordering him back to work with the understanding that any future similar behaviour would justify his discharge.
Finally the arbitrator hoped that the 15 months MacDonald had spent in employment limbo, earning the minimum wage as a temporary employee at a supermarket, would be a sufficient example to others that similar behaviour would not be tolerated.
For more information: Atlantic Communication and Technical Workers Union and Aliant Telecom Inc., a Nova Scotia Arbitration Board decision; Innis Christie – Sole Arbitrator, Oct. 16, 2005.
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, newsletters that report on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or email@example.com.