When the aggressor in a workplace fight was given a suspension and his opponent was fired, the union grieved. Despite giving better than he got, the grievor didn’t deserve to be fired, the arbitrator found.
Provoked by a racial taunt, a brewery worker was fired after back-handing the drunken colleague who was harassing him. The union grieved, citing obvious provocation and the fact that the penalty was disproportionate. For his part in the altercation, the other worker was awarded a 20-day suspension.
A warehouse worker at a brewery, M.N. had 30 years’ service with his employer. During the night shift on November 21, 2009, co-worker D.S. overheard M.N. make a derogatory remark as M.N. exited the shipping office. D.S. had been drinking.
D.S. then followed M.N. into the crew meeting room. On his break, M.N. was sitting at a computer. D.S. approached, stating, “You M——-F——-, who you calling a rat?”
M.N. stood and told D.S. that he was drunk and that he should relax. M.N. then moved to establish some space between them, following the perimeter of the room. D.S. followed, speaking forcefully while at close quarters. M.N. cautioned D.S., telling him to back off and stop spitting. D.S. did not back off. M.N. retaliated by spitting back.
“I’ll shoot you …”
D.S. said to M.N., “I’ll shoot you, you little black squirrel.”
M.N. then slapped D.S. in the face with the back of his right hand. D.S. required 20 stitches to his lip.
On December 14 M.N. was fired. The termination letter said that M.N.’s physical assault of a co-worker had irreparably damaged the level of trust and respect necessary to maintain the employment relationship. The employer said that M.N. was responsible for what happened and that he had an opportunity to de-escalate the confrontation but chose instead to move it to the next level. M.N. did not apologize to D.S. and therefore was not genuinely remorseful for what happened.
The employer did not have just cause to fire M.N.
Certainly employees are now held accountable to a higher standard of conduct with respect to workplace violence, the Arbitrator said. However, in view of Worthington Cylinders, the Arbitrator said that malicious, deliberate and premeditated violence or threats of violence are distinct from impulsive acts or momentary flare-ups in response to a provocation.
Outbursts of the latter variety are less likely to recur. In such cases, the Arbitrator is allowed more latitude to consider aggravating and mitigating circumstances in deciding whether or not to substitute a lesser penalty than termination.
This was such a case.
The Company had taken an “all-or-nothing approach,” the Arbitrator said — either no discipline for M.N., or discharge. This approach was problematic because it excluded meaningful consideration of factors that might have indicated the appropriateness of adopting some middle ground between the two extremes.
Proportionality significant
“A factor of significance is the proportionality of the discipline the Company imposed on [the two antagonists]. D.S. was suspended, in part, for ‘exhibiting racial harassment towards a co-worker and exhibiting aggressive conduct towards a co-worker.’ Given their respective roles in materially contributing to what occurred in the crew meeting room, and to their disciplinary records, I find the Company’s response of discharge to be disproportionate, and unjust. In that regard, the disparity in the discipline imposed does not adequately consider the relative responsibility each bears for what occurred.”
If other options were available to M.N., so too were they available to D.S., the Arbitrator said. “D.S.’s behaviour throughout lacked legitimacy, and he was the principal aggressor throughout in the crew meeting room, until M.N.’s spontaneous physical response to a provocation, in the form of D.S.’s racially provocative threat.”
M.N. may not have apologized to D.S., but he did express sincere regret for his behaviour and for the incident. D.S. did not.
The fact that the M.N. had a five-day suspension on his record while D.S.’s record was clean was not “sufficiently compelling” to account for the differential treatment, the Arbitrator said.
Reinstatement with conditions to address both the need for deterrence and to address any safety concerns associated with M.N.’s return to the workplace was appropriate.
“Consequently, I reinstate [M.N] to employment without loss of seniority or service, and a disciplinary suspension of two months, but without compensation. If [M.N.] engages in an act of workplace violence, as the Occupational Health and Safety Act currently defines within 24 months of active service, the Company may dismiss him, and a proven breach of this condition will be deemed to be discharge for just cause.”
Reference: Molson Breweries and Canadian Union of Brewery and General Workers, Local 325. Randy L. Levinson — Sole Arbitrator. Hugh Dyer for the Company and Larry Steinberg for the Union. March 11, 2011. 27 pp.
