Worker who packs a punch sent packing

Employee and supervisor had differing versions of altercation between them
By Jeffrey R. Smith
|hrreporter.com|Last Updated: 09/21/2007

The Ontario Arbitration Board has upheld the termination of a meat company worker who was fired for assaulting a supervisor, despite the worker’s denial of any wrongdoing.

Nelson Howard, 57, worked for Guelph, Ont.-based Better Beef Limited for 26 years, first on the production floor and then, after developing carpal tunnel syndrome in 2002, as a parts runner responsible for making deliveries within and outside the plant. In October 2005 he took over some of the dry goods receiver duties while that person went on disability leave.

There was animosity between Howard and Slavko Grbinicek, 64, the sundry and premises supervisor, due to a couple of earlier incidents. Howard once discovered a chemical barrel in the scrap area had a leak. Though it was Grbinicek’s responsibility as sundry and premises supervisor, Howard dealt with the problem. The company then put a gate on the area to address security concerns and gave Howard a key. Grbinicek, who had an arrangement to sell scrap metal from the area to purchase plants for the company’s landscaping, was not given a key and as a result his arrangement ended.

On Oct. 12, 2005, Howard was working in the central receiving room. He had been told by the dry goods receiver to not give the key to the cabinet where equipment and tools were stored to Grbinicek because it was sometimes left unlocked and some felt Grbinicek was the culprit. Grbinicek, however, used the tools and had to ask for access when he needed them.

Howard testified Grbinicek began yelling at him about the key and he didn’t respond, going back into the receiving room. He said Grbinicek followed him and continued to yell until Howard turned around and shouted at him to get out and leave him alone. Howard said though he was near Grbinicek and waved his hands as he was shouting, he didn’t touch him. However, Grbinicek backed up, bounced off a wall, stumbled through an open door and fell against a metal railing.

Grbinicek had a different version of events. He testified when he found out he wasn’t allowed to have the key, he said he’d have to cut the locks off. When Howard heard this, he said, “If you do, I’ll break both of your arms.” He agreed he followed Howard into the next room, but said Howard turned around, hit him in the chest with both hands, grabbed his shirt and tried to pick him up. According to Grbinicek, Howard then punched him in the mouth. This caused him to stumble back through the doorway where he hit his head on the railing.

Though there were no witnesses to the altercation, the security manager and plant nurse both testified Grbinicek had injuries consistent with his story and had photographs of the chest bruises. The director of human resources interviewed both men and heard their conflicting reports. Despite his later explanation on Grbinicek’s injuries, at the time

Howard said he had no idea how they happened and suggested Grbinicek inflicted them on himself in order to get Howard fired. He also emphasized he was a calm person who hadn’t had any previous problems at work while Grbinicek was known for having a temper and yelling at people.

Howard continued to work the rest of the day and came to work the next day, Oct. 13, 2005. Later that day, Howard was terminated for assaulting a supervisor. Howard filed a grievance through his union, maintaining he didn’t touch Grbinicek.

The arbitrator explained the main issue to determine was whose version of events was the most accurate and whether the assault actually took place. Because Howard changed his story from not knowing what caused the injuries to his explanation of Grbinicek backing up and falling through a doorway, the arbitrator preferred Grbinicek’s testimony over Howard’s. Also, Howard’s explanation could explain some of the injuries, but not those on Grbinicek’s chest. The bruises fit Grbinicek’s story.

“It is much more plausible that Mr. Grbinicek sustained those injuries from having been grabbed and punched by Mr. Howard, than by having self-inflicted them,” the arbitrator said. “The pictures (of the bruises) indicate that Mr. Grbinicek was in fact assaulted by Mr. Howard and did not fabricate his story.”

Having determined the assault did happen, the arbitrator found it was a very serious act. The injuries showed it was a forceful attack and Howard was significantly larger than Grbinicek.

Taking into account the assault was serious, neither men denied there was an altercation to provoke it and the fact Howard denied and didn’t show remorse for the incident, the arbitrator found discharge was appropriate discipline.

“Under these circumstances the employment relationship is considered to be irreparably fractured,” the arbitrator said. “Reinstatement is not appropriate, and discharge is warranted.”

Despite Howard’s seniority and previous good disciplinary record, the arbitrator upheld his dismissal.

For more information see:

Better Beef Ltd. v. U.F.C.W., Local 175

, 2006 CarswellOnt 8880 (Ont. Arb. Bd.).

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