Inconsistent discipline undermines company determination to terminate fighters
Citing violations of company policy and referencing new anti-violence provisions in the Occupational Health and Safety Act, a food company fired two workers for engaging in a physical confrontation while at work.
K.P. and M.O. were short service workers with two and three years respectively at the food processing plant when they were fired in 2010.
In June 2010, K.P. became agitated by complaints about his work ethic. Two co-workers — one being M.O. — expressed to him their disapproval of the overly long breaks that K.P. was taking. They also said that he wasn’t very good about helping out his fellow employees.
Approached later by two supervisors about the same issues, K.P. took the view that he had been “ratted out.”
K.P. began to talk tough and let it be known that he intended to find the “rat.”
By Friday, June 11, K.P. had determined that — to his way of thinking — M.O. was the rat. By chance the two were scheduled to work in the mustard room that day.
Left alone when another worker went on break, K.P. said that M.O. approached and said that he had heard K.P.’s allegations against him.
I kill rats
According to K.P., M.O. said, “I’m not a rat. I kill rats.” and then unloaded a flurry of punches, landing perhaps five blows to K.P.’s head.
K.P. then retreated, telling M.O. that he was going to report the incident and that M.O. would be fired.
When security arrived a short time later, M.O. played dumb. He initially denied that any fight had taken place, suggesting that the injuries to K.P.’s face were perhaps the result of K.P. tripping on his bootlace.
When he later confessed to his involvement in the fight, M.O. said his initial denial was an attempt to save his job. He acknowledged confronting K.P. about the rat comment but said that K.P. had “mouthed off” and that they both “came in scrappin.’” M.O. agreed that he got the better of K.P., but the fight was consensual, he said.
On June 14, M.O. was charged criminally with assault and uttering threats. Three days later both workers were fired.
The union grieved.
The conduct of the workers violated explicit Company handbook prohibitions against fighting and horseplay. They had also perpetrated violence in contravention of the Occupational Heath and Safety Act. Termination was warranted, the employer said. The fight was not a momentary flare-up or a case of someone losing their cool, but rather the result of personal acrimony. The fight was a premeditated act of retribution. There was little to mitigate the penalty of discharge, as the perpetrators were both short service workers. The penalty was also appropriate in view of the employer’s need to demonstrate its determination to deter violence in the workplace and to reflect the evolving legislation regarding workplace violence.
Not a case for automatic discharge
Termination was excessive in the circumstances, the union said. The caselaw demonstrated that fighting in the workplace is not automatic cause for discharge. And, the employer’s record for disciplining employees for acts of violence was all over the map, the union said.
There was no pre-meditation here. The altercation was a “heat-of-the-moment” exchange and there was no impact on the supervisory process. There were no serious injuries and no weapons were used, even though both workers were carrying knives. Discipline was warranted, the union said, but not termination.
The Arbitrator agreed.
Acts of violence in the workplace are serious offences, but they do not automatically draw the penalty of discharge, the Arbitrator said. It may be appropriate to substitute a lesser penalty based on an objective assessment of the mitigating and aggravating factors in a particular case.
In this case, the various elements pointed towards suspensions rather than termination.
All things considered, the fight was not particularly serious. It lasted but a few seconds, no weapons were used and, in all probability, it was consensual.
There was provocation from K.P. but, contrary to the employer’s charge, the attack by M.O. — such as it was — was opportunistic rather than premeditated.
After their initial dissembling, both workers had come clean, accepted responsibility and apologized.
It was also true, as the union alleged, that the employer’s record of discipline for acts of workplace violence varied widely and that the company had awarded suspensions in the past for incidents more serious than the case at hand.
“I find that while the confrontation between the grievors was an act of violence, the fight was brief, resulted from opportunity and not pre-meditation, and ended on the grievor’s own accord. No weapons were used, there was no challenge to supervisory authority, and no other employees were involved or injured … Significantly, the Company has not been consistent in administering discipline for physical assaults and the similarity between the grievors’ physical violence and those of previous instances of physical violence does not warrant the level of discipline imposed on the grievors …”
However, the Arbitrator said it was appropriate to recognize the increased societal concern about workplace violence expressed by the recent changes to the Occupational Health and Safety Act. The discipline was accordingly increased compared to what the company had imposed prior to the statutory amendments.
The terminations were set aside and the workers were awarded six-month suspensions without pay and with loss of seniority but with no loss of benefits.
Reference: H.J. Heinz Company of Canada and United Food and Commercial Workers, Local 459. William Marcotte — Sole Arbitrator. M. Szilassy for the Employer and K. Kucey for the Union. January 19, 2011. 29 pp.
