The grievor argued with his supervisor and threw a plastic cup. He apologized, but the company terminated him, claiming his anger threatened the safety of the workplace. The arbitrator disagreed, finding the offence to be minor, and reinstated the grievor.
A part-time cook was fired for throwing a plastic cup in frustration during an argument with his supervisor. The union grieved the termination.
The union also grieved allegations that the employer had attempted to intimidate the grievor and dissuade him from pursuing his grievance.
M.O. was a 17-year-old, part-time cook at a franchise restaurant. He had been working at the restaurant for about one year when he was fired on May 16, 2012. M.O. was regarded as a good cook. There was no discipline on his record.
During the afternoon of May 14, 2012, the supervisor at the restaurant noticed M.O. returning numerous times to check the work schedule posted outside the office door.
The supervisor was aware that M.O. wanted more hours. He advised M.O. to speak to the Union Steward. When M.O. went to the dining room area to seek out the Steward, the supervisor called M.O. back and told him that he was not permitted to speak to the Steward while either of them was punched in.
M.O. became frustrated. He threw a hard plastic cup on the floor towards the dish pit. M.O. was sent home.
When M.O. returned the next day to apologize, he was told that the matter was in the hands of the store owner/manager.
M.O. was fired following a meeting with the manager on May 16.
Three days after the termination, the manager called M.O. at home — purportedly to confirm that it was M.O.’s signature on the grievance form.
The manager took that opportunity to ask M.O. if he was aware that the matter would likely go to court. M.O. affirmed that he was aware.
Obligation to provide a safe workplace
Before the Arbitrator, the employer argued that it had a responsibility to provide a safe workplace. M.O. might have injured someone when he threw the plastic cup. As well, there was no telling what might happen the next time in the event that M.O. should lose his temper, particularly if he were to be holding a glass or a knife at that moment. Reinstating M.O. would send the wrong message to other employees. Termination was warranted, the employer said.
The employer acknowledged the call that was made to M.O. and agreed that in the circumstances, it was probably not appropriate.
The union raised a number of objections to M.O.’s termination. The union said that M.O. was actually terminated when he was first sent home by his supervisor on May 14. As there was no union Steward present at the time, the termination violated the collective agreement, the union said.
The union also said that mitigating factors counted in M.O.’s favour. M.O. was a 17-year-old at the time who had just returned from his aunt’s wake. He had a discipline-free record and he had apologized. As to the incident itself, the union said that the supervisor bore some responsibility for that too.
The Arbitrator agreed that the supervisor’s conduct — standing too close to M.O. and yelling at him — may have been provocative. The supervisor may even have been wrong about the rules governing when M.O. could speak to the union Steward.
Still, that did not excuse M.O.’s actions. Discipline was warranted, the Arbitrator said, but discharge was too severe a penalty in the circumstances.
“The grievor’s actions in throwing and breaking the plastic cup was relatively minor in nature. It was not pre-meditated.”
Not a serious threat
The Arbitrator noted that M.O. had no discipline on his record and that he had returned following the incident to apologize to his supervisor.
The Arbitrator rejected the employer’s assessment of the degree to which M.O. should be considered a threat in the wake of such an incident.
“In my view there is very considerable difference between throwing a plastic cup and throwing a knife and the fact that the grievor threw a plastic cup does not indicate that he would likely throw a knife or another more dangerous object in the future.”
M.O. was ordered reinstated and compensated for his lost shifts. The Arbitrator said a two-day suspension was appropriate in the circumstances.
The Arbitrator also ruled that the employer’s phone call to M.O. was “clearly intended to dissuade and intimidate the grievor from exercising his rights under the collective agreement to grieve his discharge.”
However, because the manager had acknowledged the inappropriateness of his conduct, and had given an undertaking that it would not happen again, the Arbitrator ruled that no further sanction was necessary.
