Arbitrator dismisses claim former colleague feared for his safety
A former pro-wrestler — whose career was cut short due to contacting hepatitis C during a match — was terminated from his job as a part-time gym attendant after violently yelling at another worker inside a recreation centre.
Devon Nicholson went on sick leave from his job in December 2012. More than a year later, on March 28, 2013, he went to the Ray Friel Recreation Complex in Ottawa. Before he went inside, Nicholson sat for 30 minutes inside his car (accompanied by a barking dog), waiting to pick up his girlfriend (who worked at the pool part of the complex) and he became agitated.
When he finally went inside, he saw a former business associate, Kai Liu, who worked as a videographer for Nicholson while he was a wrestler.
Nicholson violently smashed his fist on the desk in front of Liu, frightening him and other patrons who were standing at the desk.
Nicholson then walked to the pool area and loudly spoke with his girlfriend, striking a white pool chair and damaging it beyond repair. Nicholson’s girlfriend didn’t expect him to appear that day; instead she was waiting for her mother to pick her up.
On his way out the door, Nicholson passed by Liu’s desk and told him he was “in trouble” and he would be contacted by Nicholson’s lawyer regarding their business dispute.
On Aug. 7, Nicholson was terminated from his job via letter from manager Luc Lavictoire: “We have concluded your behaviour on March 28 is unacceptable and the impact they had on your co-workers constitutes an irreparable breach of trust and the city's code of conduct. As such, we are terminating your employment with the City of Ottawa effective today.”
The Canadian Union of Public Employees (CUPE), Local 503, grieved the dismissal as unfair and said Nicholson should have been given a suspension. It argued Nicholson had received experimental treatment for hepatitis C while on leave and this contributed to his agitated state and mood swings.
But the city said Nicholson’s three separate incidents of intimidation on one day were enough to warrant the firing and it caused employees to fear for their safety.
Arbitrator Russell Goodfellow disagreed and upheld the grievance: “While clearly serious, we do not view the grievor’s conduct as providing just cause for discharge. Nor do we see this as the kind of exceptional case in which the grievor should be denied reinstatement because the employment relationship is no longer viable and cannot be restored.”
Liu had been a close personal friend of Nicholson, spending plenty of time with him and filming his various wrestling exploits, even acting the role of another wrestler on occasion.
“We are not persuaded that any employee, including Mr. Liu, had any reason to fear physical violence from the grievor nor were his actions intended to instill any such fear. The grievor was simply frustrated and angry and he showed it in at least two highly inappropriate ways: Slamming the desk with his fist and smacking or tossing the chair in the pool office,” said Goodfellow.
A two-month suspension was issued and Nicholson was ordered reinstated, but to another facility in Ottawa.
“The grievor not only worked at Ray Friel, he worked out at Ray Friel, he had friends and a girlfriend at Ray Friel, and he had a business relationship with another employee at Ray Friel,” said Goodfellow.
“We believe these circumstances contributed to the grievor failing to treat the workplace, first and foremost, as a workplace, subject to the legitimate norms and expectations of workplace behaviour.”
Reference: City of Ottawa and the Canadian Union of Public Employees, Local 503. Russell Goodfellow — arbitrator. Iain Aspenlieder for the employer. John McLuckie for the employee. Dec. 20, 2016.
