Worker's violent reaction 'spur of the moment': Arbitrator
After he was told to remove his hoodie for safety reasons, a labourer working at Harbour Grace CS was terminated after a violent door slamming.
Chad Whalen worked at the cold storage fish processing company as a casual labourer from 2012 to 2015, but he was placed on the seniority list after completing 500 hours of work in December 2015.
On Oct. 11, 2016, Whalen and Alfred Dove, lead-hand, were working on the dock of the Harbour Grace, N.L., facility when Dove asked Whalen to remove his hoodie. Workers were not allowed to wear a hood over their heads due to moving forklifts operating in the warehouse, said Dove, because it was highly dangerous.
But Whalen refused and he said he was cold and he needed the hoodie to remain on covering his head.
After again denying the request, Dove told Whalen to go to the office and speak to a supervisor. But Whalen left the warehouse area and said he was “not going to the fucking office and you can go fuck yourself.”
John Mercer, supervisor, testified he didn’t see the confrontation but he heard Whalen swearing loudly at someone. He spoke with Dove who advised him that Whalen may be back at the office.
When Mercer returned to the office, he saw the glass part of the door was broken and Whalen had a bloody hand. Whalen admitted he broke the glass and he offered to pay for the damages.
Whalen was ordered to go home, but he stayed for an extra three hours waiting for a friend to pick him up.
During this time, he spoke with Megan Noseworthy, human resources, about the incident. Whalen changed his story and he said it was an accident.
Whalen was terminated via letter that also said, “You will be paid your unpaid wages less $190.65, which is the total amount to replace the window which you destroyed.”
On Oct. 13, the union, Fish, Food and Allied Workers (FFAW) grieved the decision and argued the punishment for a single incident was too harsh.
FFAW also said the fact that Whalen was cold and wet that day (he lived in a place without heat or light) was a mitigating factor and it explained his wrongful behaviour.
However, the company countered and said that because Whalen had received two previous letters on his record when he didn’t show up for work, the broken window was a third and culminating incident.
Arbitrator James Oakley dismissed the termination and ordered “the discharge of (Whalen) be replaced with a disciplinary penalty of a nine-month suspension without pay. It is ordered that (Whalen) be reinstated subject to the nine-month suspension and be paid compensation.”
The company’s contention that it was his third incident was dismissed by the arbitrator.
“(Whalen) had one written warning on his record for failing to report to work without a valid reason. He did not otherwise have any disciplinary record, and this may be considered as a mitigating factor,” said Oakley.
“I find that the offence was committed on the spur of the moment and it was due to the emotional impulses of (Whalen) related to the fact he was cold and did not want to remove the hoodie from his head, and this is a mitigating factor.”
Whalen did change his story initially, said Oakley, but “in his testimony, (Whalen) agreed that the damage was caused by his use of excessive force on the door. (Whalen’s) admission at the hearing is a mitigating factor.”
Reference: Harbour Grace CS and Fish, Food and Allied Workers. James Oakley — arbitrator. M. John Mate for the employer. Greg Pretty for the employee. Nov. 14, 2017. 2017 CarswellNfld 526
