Wrestling hold on co-worker could have caused serious injury: Board
An Ontario employer had just cause to dismiss a long-term employee who assaulted and injured a co-worker, the Ontario Arbitration Board has ruled.
Tom Rubaj was custodian for St. Joseph’s Health Centre, a hospital in Toronto. He was employed at St. Joseph’s for 28 years.
On Dec. 9, 2008, Rubaj neared the garbage and recycling room as Jose Garcia, a dietary porter, walked by on the way to the compactor room. When Garcia came out of the compactor room, Rubaj came up behind him and put him in a headlock, challenging Garcia, who was much smaller, to try to break free. When Garcia couldn’t, Rubaj put more pressure to the back of Garcia’s neck. Garcia asked Rubaj to let him go, but Rubaj then put Garcia in a full Nelson hold, challenging him to free himself. After ignoring Garcia’s pleas to let him go, Rubaj eventually released him and dropped him to the ground, laughing as he did so.
Garcia didn’t report the incident immediately, but later called his supervisor when he got home. His neck was in pain and the next morning his movement was restricted. Garcia informed St. Joseph’s occupational health nurse and he was sent to a doctor, who diagnosed a neck sprain. Garcia then filed a Workplace Safety and Insurance Board claim and worked modified duties.
Garcia was stressed and afraid of Rubaj and he eventually took a week off deal with the trauma. He also asked to have his locker moved away from Rubaj’s.
Garcia told St. Joseph’s he didn’t want Rubaj to lose his job, he only wanted an apology. However, when they saw each other, they didn’t speak. Rubaj denied the incident happened, saying the two men often playfully “shoulder-checked” each other and that was all that happened on Dec. 9. The day after the incident, Rubaj approached his manager about a “vicious” rumour circulating that he had injured Garcia.
When St. Joseph’s investigated, Rubaj insisted he only shoulder-checked Garcia, while Garcia stuck to his account of the headlock and full Nelson. Garcia indicated he had wanted to retaliate but didn’t because he didn’t want to endanger his employment. The director of the department asked Garcia if he wanted to call the police and allowed him to do so in her office.
On Dec. 19, 2008, Rubaj was arrested at work and charged with assault. The charges were eventually withdrawn in April 2009. On Jan. 5, 2009, St. Joseph’s terminated his employment for assaulting a co-worker.
Since Rubaj and Garcia had very different accounts of the incident, the board was forced to choose one over the other. It found it was unlikely the two men engaged in shoulder-checking because of the difference in their sizes, and Garcia’s neck injury was consistent with his account.
Though Garcia’s injuries turned out to be minor, the board found there was potential for a more serious injury because of the pressure Rubaj put on Garcia’s neck. The board also found Rubaj was given an opportunity to explain himself at the interview but he was not straight with his employer.
