After an altercation between a worker and his supervisor, the worker was charged criminally and fired. The charges were dismissed for lack of evidence. Each party came to the arbitration with a different story, but management’s was not strong enough to sustain termination.
A rail worker was fired following an altercation with his supervisor. The union grieved.
A railway worker with more than 20 years’ service, A.K. was involved in an altercation with his supervisor. The incident occurred late in the evening at a rail yard. There were no witnesses.
The supervisor said that he approached A.K. in the rail yard on the evening of March 11, 2010. The supervisor was not pleased with what he perceived to be a sarcastic response he had received from A.K. over the radio.
The supervisor confronted A.K. about his disrespectful tone. According to the supervisor, A.K. became enraged. There were heated words. The supervisor said that as he turned to leave, A.K. jumped him, grabbing him about the head and neck. A.K. then attempted to push the supervisor toward a moving train. A.K was screaming that he was going to kill the supervisor.
During a brief lull, the supervisor managed to punch A.K. in the face. This provoked a renewed assault by A.K. who was preparing to strike the supervisor with a lantern. However, the supervisor was able to restrain A.K.
At that point A.K. called in to the yardmaster on his radio. He told the yardmaster to call the police, that the supervisor had assaulted him.
The supervisor left the scene and reported the incident.
A.K. told a different story. He acknowledged making a sarcastic comment. A.K. said that the supervisor was angered by the remark and that he came towards A.K. yelling that A.K. was not to speak to him that way. The supervisor poked A.K. in the chest. When A.K. pushed him away, the supervisor punched A.K. in the face. The two then wrestled on the ground, A.K. said.
Bruises, scrapes, bloody nose
The supervisor sustained some minor bruises and scrapes. A.K. required emergency room treatment for a bloody nose and a cut lip.
The railway police conducted an investigation. Criminal charges were also laid against A.K. However, those charges were withdrawn because of insufficient evidence. Nevertheless, the employer concluded that A.K. had instigated the fight and terminated his employment.
The union argued that there was no cause for discipline, let alone termination. The union said the evidence relied upon for the termination was flawed and that the investigation conducted by the employer was not impartial.
The union said that A.K. should be reinstated without loss of benefits or seniority.
The Arbitrator agreed, in part.
The employer failed to meet the burden of proof necessary to show that it had just cause to fire A.K.
There was no more evidence to support the allegation that A.K. struck the first blow than there was to implicate the supervisor as having thrown the first punch, the Arbitrator said.
Provocation
However, by A.K.’s own admission he had acted provocatively. By calling the supervisor “a f——— liar,” A.K. bore some of the responsibility for the incident.
“In the circumstances, whoever may have struck the first blow, I am compelled to the conclusion that [A.K] did bring an important element of provocation into the incident, and clearly engaged in conduct unbecoming an employee, no matter what he may have thought of his supervisor’s attitude.”
For his part in the incident, the Arbitrator said that the company did have cause to assess serious discipline against A.K.
The grievance was allowed in part. “While the Arbitrator finds and declares that the Company did have cause to assess serious discipline against the grievor, the facts as revealed in the evidence presented by the Company, which bears the burden of proof, do not confirm that discharge was appropriate, having regard to the grievor’s length of service, which is in excess of 20 years.”
A.K. was ordered reinstated without compensation for lost wages or benefits.
