Lack of concern after altercation made threat unlikely: Arbitrator
Multinational metals and mining company Rio Tinto operates an aluminum smelter in Kitimat, B.C. The plant is hot and loud and employees must wear personal protective devices including hard hats, face masks and ear protection such as muffs or plugs.
Because of this equipment, employees must speak loudly to be heard and it is often difficult to communicate.
Jose DaSilva began working for Rio Tinto in 1998, working mostly in the pot room. By 2015, he was chair of the union’s council of shop stewards.
On Oct. 8, 2015, DaSilva was part of the gas collection crew and was driving a buggy. He parked at the end of an aisle in an unused part of the building and walked up another aisle to clean and reset some baffles, which involved shaking the dust off them, adjusting them and locking them in place.
He didn’t see any white lights that would have signified the power was off.
DaSilva was in a cloud of dust from a baffle when he heard screaming. He made out someone jumping up and down, so he went back down the aisle. The man was George Gregg, a pot start-up operator.
Gregg walked toward DaSilva and shouted, “What the f--- are you doing here?” DaSilva responded with “Who the f--- are you?” and Gregg told him he was theoccupational health and safety representative.
Gregg told him they were off power and asked DaSilva — amongst some profanity — if he could see the white lights. Silva said, “I can now.”
Gregg insisted DaSilva needed to leave the section, but DaSilva said he could be there as he was just doing his job. The argument between the two men got louder, with each insulting the other with profanities.
Gregg went to the supervisor’s office and reported to the occupational health and safety representative that there was an “idiot” in the section and returned to DaSilva. DaSilva said Gregg had a “big mouth for ratting him out” and then said, “We’ll talk about this in some other f---ing place.”
This upset Gregg and he later testified he felt fearful and wanted to “get out of there,” though he said “f--- whatever.”
The health and safety representative arrived and told them to calm down, but Gregg continued to shout. DaSilva said, “Man, you have a big mouth — I’ve had enough of this,” and left.
When he arrived back at the shop, DaSilva told his supervisor he had been involved in interactions with “some guy and then two other guys” but the supervisor didn’t take an official statement.
Gregg went to his supervisor and reported the altercation, saying it wasn’t just about the safety, “it was about the threat.”
He gave what he termed a “bare bone synopsis — do with it what you want — I’m looking at it and probably won’t see this person for six months.”
Gregg then met with the plant services coordinator five days later, where he explained it was his job to keep people out of the area when the power was off and they were both “yelling and hollering.”
When Gregg was asked if he felt threatened, Gregg responded that he didn’t want it to come to what it did and DaSilva was “a f---ing idiot.”
He also acknowledged that when he got worked up it was hard to de-escalate and he didn’t recall what was actually said in the altercation.
Rio Tinto investigated the altercation and determined that DaSilva directed a threat at Gregg. DaSilva was suspended for three days without pay.
The union, Unifor, grieved the suspension, arguing there wasn’t sufficient cause to issue the suspension. It pointed out the Gregg was the aggressor in the altercation, approaching DaSilva while shouting profanities.
In addition, Gregg didn’t report feeling threatened when he initially reported it to the health and safety representative.
Arbitrator weighs in
Arbitrator Wayne Moore found that Gregg was known to be excitable and he himself acknowledged he had difficulty controlling his emotions.
He also was confused about the altercation and what was said a few days afterwards, so his version of events could not be considered reliable for the most part.
However, Gregg was consistent in that he reported to both his supervisor and other management during the investigation that DaSilva said something to the effect that they would discuss it someplace else, so Moore found it was likely this was the case.
Moore found that while Gregg testified he was fearful and wanted to get away from DaSilva, he didn’t initially report a threat to the supervisor and the health and safety representative — which Moore thought was “improbable, given Gregg’s excitable personality and the fact that he was both excited and angry.” In addition, the fact that Gregg went back to DaSilva after going to the office made it less likely he felt threatened, said Moore.
Moore also found that the shouting in itself wasn’t out of the ordinary, since the workplace was loud and both employees were wearing ear protection.
Though Gregg mentioned a threat to his supervisor after the altercation, his comments and behaviour after the altercation and during the investigation weren’t consistent with someone who genuinely felt threatened, said Moore, in finding there wasn’t sufficient cause for discipline.
Rio Tinto was ordered to expunge the suspension from DaSilva’s record and compensate him for lost wages and benefits from the three missed days of work.
For more information see:
• RIO Tinto Alcon Inc. Kitimat Works and Unifor, Local 2301 (DaSilva), Re, 2016 CarswellBC 2565 (B.C. Arb.).
