Fired following an incident where he roughly pushed a fellow worker, bruising her arm, a maintenance mechanic at an industrial bakery was reinstated when the Arbitrator ruled that the worker was sincerely contrite and accepted his assurance that he had not intended to hurt his coworker.
Hired in 2004, S.L. had five years’ seniority when he became involved in an altercation with another employee while attempting to repair a malfunctioning machine.
A little after beginning an overtime shift following a full night shift, S.L. was informed by an operator that the “rounder” — a machine that separates and dispenses product for packaging — was jamming up with bread. The machine was located behind a fence and accessible only through a gate that operates a safety interlock, which shuts down the machine once the gate is opened.
S.L. addressed the problem. However, about two hours later the problem recurred and S.L. again attempted to set the machine right.
Surveillance video records incident
Exiting the gate he encountered the operator. Video surveillance recorded a brief exchange. S.L. restarted the machine, but it tripped out after a few seconds. There was another, more animated exchange. The operator was berating S.L., telling him not to restart the machine and questioning his competence.
The operator then shared her questions about S.L.’s capabilities with a supervisor who came on the scene while S.L. was still clearing blockage from the machine.
Despite being told by the supervisor to let S.L. do his job, the operator responded to the machine tripping out yet again by attempting to enter the enclosure through the interlock gate.
S.L. acted physically to prevent the operator from entering the enclosure, twice attempting to repel her by grabbing her arms and finally by shoving her. The shove caused the operator to bump into an adjacent fence, which caused a bruise on her arm.
In his account of the incident immediately afterwards, S.L. told the company that he had disabled the safety interlock to work on the machine and that he had acted to prevent the operator — who was in an agitated state — from injuring herself.
He also apologized. S.L. wrote letters of apology to both the operator and the employer. To the operator he said he had no intention of hurting her and that he was trying to protect her. To the employer he expressed his profound regret, acknowledging that he should never have touched his coworker in that manner and offering the assurance that, if he was given another chance, it would never happen again.
Following a meeting with the company, S.L. was fired.
Culpable behaviour
Upon reviewing the video of the incident, the company came to the conclusion that the safety interlock had not in fact been disabled. That being the case, his explanations for his actions were a lie and his apparently culpable behaviour was not mitigated by concern for his coworker’s safety, the company said. The effect of that lie was amplified when he repeated it in his apology and it also called into question his rehabilitative potential and his suitability for reinstatement.
The Arbitrator disagreed. S.L.’s physical misconduct was serious and did constitute culpable misconduct in violation of company policies on violence, harassment and health and safety. However, S.L. did not intend to hurt the operator, the Arbitrator said. While the parties disagreed about whether or not S.L. truly believed he had bypassed the safety interlock, the Arbitrator accepted that S.L. was truly shocked to find out the interlock had not been disabled. However, more to the point, the Arbitrator said that it was just as likely that S.L. was reacting to frustration in the heat of the moment and that he really just wanted to be left alone to do his job. Had he been candid about his lapse from the outset, the company may not have been concerned about sincerity of his apologies.
“Inexplicably and for reasons best known to [S.L], he did not convey all material reasons for acting as he did to the Company on a timelier basis. Had he done so, the Company may not have had the same level of concern about the sincerity of his apologies. In turn, this may have led the Company to choose a different disciplinary response. However, the fact remains that [S.L.] was not completely forthcoming with the Company before he was terminated and this raises concern about his rehabilitative prospects.”
Nevertheless, the Arbitrator found that the employment relationship could be restored. S.L. understood the seriousness of his actions and was truly contrite, the Arbitrator said. S.L. had a discipline-free record and his apologies were sincere. In view of the fact that the episode was out of character — as evidenced by his discipline-free record — reinstatement was appropriate, the Arbitrator said.
The grievance was allowed. The interval between his termination and his reinstatement was to count as a disciplinary suspension without pay.
