The grievor was aggressive and belligerent to a co-worker. The arbitrator found that the behaviour was both "harassment" under the collective agreement and, although there were no threats, "violence" under the health and safety act.
A worker was suspended for violating workplace policies against violence and harassment after he verbally abused a co-worker for using “his” forklift.
John Doe worked as a Material Handler at a distribution centre operated by a heating appliance manufacturer. J.D. had a good work record and two-and-a-half years’ service when he was disciplined for an incident that occurred on Feb. 23, 2012.
Shortly after arriving for his 7 a.m. shift, J.D. discovered that co-worker D.B. was using the forklift that J.D. habitually used. J.D. was irked by this apparent affront to the status quo. J.D. approached D.B. — who had been a friend up until this point — and loudly told him to “get the fuck off my machine.”
J.D. repeatedly and angrily told D.B. to get off “his” machine. J.D. was gesticulating, pointing, making fists and swearing.
D.B. was unnerved by J.D.’s uncharacteristic behaviour and language. D.B. retreated and sought out a supervisor.
J.D. intercepted D.B. along the way and asked him, “why the fuck” he was causing problems?
D.B. reported the incident to his supervisor. The supervisor consulted with another supervisor and it was agreed that D.B. should return to the forklift while the supervisors observed.
D.B. returned to the forklift. J.D. was observed to send D.B. away again.
J.D. was suspended for three days for violating the company’s Workplace Harassment and Violence Policy.
The union grieved.
Incident 'harassment' of co-worker
The union said that J.D. had come to acknowledge the seriousness of his misconduct. He also now appreciated the impact of his actions on his co-worker and he had apologized. The union asked that the suspension be reduced.
The employer said that the suspension was warranted. J.D. was guilty of serious misconduct. He had violated the company’s clear rules and policies against such behaviour and ignored his training. J.D.’s actions made his co-worker feel unsafe in the workplace. His conduct amounted to workplace violence.
The Arbitrator agreed.
Clearly, the Arbitrator said, J.D.’s behaviour fell within the statutory definition of “workplace harassment.” J.D. engaged in a course of conduct — brief though it was — that he knew or should have known would be unwelcome. J.D. acknowledged later that he had verbally harassed his co-worker.
However, the employer also alleged that J.D.’s behaviour crossed the line into workplace violence as contemplated by the Occupational Health and Safety Act.
It was true that J.D. did not use, or attempt to use, physical force that could cause injury in any manner described by the Act. Nor did J.D. utter any specific threats of physical violence.
Statutory definition of 'violence' broad
At issue in this case was section 1(c) of the Act’s definition of workplace violence, which identifies “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.”
D.B. testified that J.D.’s aggressive actions and language caused him to feel unsafe.
Was this enough to warrant a finding that J.D.’s misconduct amounted to “workplace violence” under the Act?
The Arbitrator said it was.
“The statutory definition of workplace violence is broad. It is language that is intended to be preventative, and to achieve deterrence of behaviour in the workplace that is disruptive to both the physical and emotional health of a recipient. The purpose of the amendments to the Occupational Health and Safety Act is not to punish, but to secure enhanced awareness, throughout the workplaces of Ontario, that these behaviours are out of the realm of that which will be tolerated at work.”
In the circumstances, it was reasonable for D.B. to interpret J.D.’s aggressive and intimidating behaviour as a threat to his personal safety. J.D. did commit misconduct that amounted to workplace violence, the Arbitrator said.
However, in view of J.D.’s good service record, his awareness and acknowledgement of his wrongdoing and genuine expression of contrition, the Arbitrator reduced the length of the suspension by one day.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
