Racial comments following physical altercation warranted discipline but employment relationship not irreparably damaged: Arbitrator
The City of Hamilton did not have just cause to dismiss a firefighter who got in a fight and made others feel unsafe at work, an Ontario arbitrator has ruled.
Shawn Elliott was a firefighter for the Hamilton, Ont., fire service, joining in September 2002. Within 10 years, Elliott attained the position of acting captain.
Elliott had some differences with another firefighter, John McCarthy, over a few years, but things had not progressed beyond minor disagreements. On one occasion, Elliott said McCarthy had threatened him for using a cellphone in the dorm at night, saying he would “shove it up my nose” if it rang again.
However, on Aug. 4, 2012, things escalated. The fire station was scheduled to be cleaned that day and McCarthy believed Elliott hadn’t done his share of cleaning. He told Elliott as much and Elliott responded by dismissing him and saying “I don’t have time for you today.” The two men proceeded to argue, leading to each man pointing out the deficiencies of the other as a firefighter.
The argument became personal and Elliott went into the station kitchen, McCarthy followed him and continued to argue. Both raised their voices and McCarthy claimed Elliott then walked in front of him and bumped into him. Then, said McCarthy, Elliott “walked beside me, shoved me with his shoulder and forearm out of the way.”
A captain came into the kitchen and told them to stop arguing. When Elliott turned to face the captain, McCarthy punched him in the face. He later said he felt Elliott was acting aggressive towards him and “the best defence is a strong offence.”
McCarthy claimed he was worried about Elliott’s aggression because Elliott had a history of making worrisome comments. He said Elliott often talked about knives and guns and doing things to people he thought had wronged him. He specifically remembered an incident where Elliott said he didn’t think the union supported him and he wanted to break into the local president’s house and engrave his name with a knife in the local president’s wife’s forehead while she was sleeping. McCarthy also claimed Elliott had said numerous times he was making a list of people who he felt had done him wrong.
Elliott agreed McCarthy became angry, but said McCarthy chased him around the kitchen and belittled him with various comments about how he was at fault in a number of situations. He said McCarthy came within inches of his face and blocked his way.
Elliott claimed he had shoved McCarthy aside to get to a table, when McCarhy hit him from behind on the right temple. When the captain intervened, Elliott said McCarthy yelled “we’ll finish this after work.” Elliott replied it would be “like fighting an old man” and when McCarthy tried to push past the captain, Elliott slapped him in the face and said: “We’re even now, forget about it.”
Racial comment added fuel to fire
Three days later, on Aug. 7, Elliott was on a call relating to a gas leak with McCarthy and some other firefighters. Elliott claimed they teased him about his black eye and, after a while, Elliott finally said he was at the zoo where he got hit by a monkey. McCarthy, who was black, didn’t hear the comment but the other firefighters were shocked.
McCarthy learned of the comment and decided he couldn’t work with Elliott anymore because he didn’t trust him and felt Elliott didn’t see him as a human. He believed trust in fellow firefighters was essential.
McCarthy told the captain that he wanted to move to another station and said to Elliott that “your true nature has reared its ugly head." Elliott said he didn’t mean the comment “that way,” but it was agreed to keep the matter in-house to avoid discipline if Elliott went to another station where there was an opening. Elliott testified he apologized to McCarthy a couple of times.
However, the acting district chief and platoon chief caught wind of the situation and passed it along to the chief and deputy chief, who launched an investigation.
The chief met with representatives of the Fire Fighters Association, who told him there were concerns about safety, racism and violence in the stations, as well as several fire fighters who felt unsafe working with Elliott. It was determined Elliott took no responsibility for his actions or his part in fostering the uneasy environment at his station. The chief felt Elliott’s incidents with McCarthy and others involved “violence in the workplace with racial overtones."
Elliott denied making a comment about carving his name in the forehead of the union local president’s wife. He said it came after a discussion of a movie where people carved words into foreheads, and that may have led to confusion. A fire inspector who was friends with McCarthy recalled McCarthy telling her about Elliott making a comment about hurting someone in the local president’s family but didn’t remember specifics. She said neither she nor McCarthy believed that Elliott was serious and had agreed he had probably said it for shock value.
Upon the conclusion of the investigation, McCarthy — who had 20 years of service and a clean disciplinary record — was given a five-day suspension for his part in the Aug. 4 altercation.
Concerns over conduct lead to termination
The chief decided to terminate Elliott’s employment because he was the antagonist who initiated physical contact in the Aug. 4 altercation, he made a racist comment on Aug. 7, and he failed to accept responsibility for his actions. The fact that co-workers refused to work with Elliott, there was a lack of trust, Elliott displayed animosity towards management and co-workers, and he contributed to a poisoned work environment made it impossible to continue the employment relationship, said the chief. Elliott was terminated for cause on Sept. 11, 2012.
The arbitrator found the alleged comment about the local president’s wife wasn’t taken seriously by those who were aware of it at the time and wasn’t a significant factor in the decision to terminate.
The arbitrator also found Elliott was “not a conventional individual” whose opinions could be irritating to others and he “does not appear to be one for political correctness.” This attitude contributed to the Aug. 4 incident and Elliott did nothing to diffuse the situation when McCarthy became angry. However, though he shoved McCarthy and responded to the punch with a slap, it was McCarthy’s slap that was the worst element of the incident, said the arbitrator.
However, the arbitrator also found Elliott’s comment three days later about being hit by a monkey was “obviously inexcusable.” Though Elliott may not have meant for it to be racist, it could only be understood to be racist and McCarthy had every right to feel degraded, said the arbitrator.
The arbitrator determined the incidents were not worthy of career-ending discipline for a firefighter with significant seniority. There were indications Elliott regretted the way things happened and he testified he wanted to return to the fire service and apologize. There was no evident of “exceptional hostility to management, his colleagues, or to his union” and there was no pattern of racist conduct, said the arbitrator.
