The grievor was fired for threatening workers crossing a picket line and making other, less specific, threats. The arbitrator reinstated him, allowing that the circumstances of the strike mitigated the penalty.
A striking worker was fired following an unscheduled, late-night appearance at a picket line where he got drunk, made threats and hurled abuse at workers who crossed the line.
M.C. was a hard rock miner. He had about 14 months’ service with his employer when he was fired on Sept. 29, 2009 for misconduct on a picket line.
The incident took place about six weeks into a strike, which ultimately lasted about one year.
The strike came at a particularly bad time for M.C.
About six months before the strike, M.C. was involved in an incident at work that caused a near fatal head injury to his co-worker. M.C. was traumatized by the event. He received some physiotherapy for his neck; however, though he had contacted the Employee Assistance Program following the incident, M.C. received no medical or psychiatric treatment.
M.C. began to self-medicate with alcohol and prescription medication.
M.C. was also under significant financial pressure. He and his wife purchased a home shortly after he was hired at the mine and the family assumed a large mortgage along with other significant financial commitments in the form of car loans and credit card debt.
Late night picketing
M.C. was having marital problems.
M.C. returned home from a family camping weekend at the end of August 2009. M.C. was not scheduled to be on the picket line that night. However, as he was unable to sleep, M.C. showed up at the picket line at about 1 am on Aug. 31.
Half a bottle of alcohol remained in M.C.’s vehicle from the camping trip. M.C. began drinking.
Both union rules and Company policy prohibited drugs, alcohol or weapons on the picket line, which was on company property.
M.C. had a number of encounters with people during the early morning hours. He addressed one person as “dickhead” and greeted another with “fuck you, asshole.”
M.C. also made a couple of generalized threats.
At one point he said that someone would “get hurt” if he saw smoke coming from the smelter. Later M.C. referenced his personal circumstances. M.C. said he was about to lose his wife, his daughter and his house and that he should come back and “shoot everybody.”
Sent home
Shortly afterwards, security approached the picket Captain and requested that M.C. be sent home.
M.C. did not resist and took a taxi home as requested.
M.C. was fired on Sept. 29. Later he was hospitalized and treated for depression and anxiety following a suicide attempt.
The employer argued that discipline was clearly warranted and that termination was a reasonable response in the circumstances. M.C. violated company and union rules by consuming alcohol while on the picket line and he insulted a number of workers who crossed the line.
More significantly, the employer said, M.C. uttered a number of threats, which provided cause for discharge.
The union argued that termination was excessive in the circumstances.
Context was important, the union said. M.C.’s impugned conduct did not happen in the workplace. It took place on a picket line during a very bitter strike. Threatening remarks made in the context of a labour dispute were not uncommon. The union conceded that workers have been dismissed for making direct threats against others where the threats were intended to intimidate specific individuals. On the other hand, the union said, case law also yielded examples of where workers who had been terminated for making generalized, unfocused threats were reinstated.
The union also argued against the employer’s alternative position that it would prefer to offer damages in lieu of reinstatement. The union said there was no evidence that the employment relationship was poisoned and that granting such an extraordinary remedy in the circumstances would undermine the power of the collective agreement.
M.C. was ordered reinstated conditional on his fitness to return to work.
M.C. broke the rules when he got drunk on the picket line and made two worrisome but unfocused threats, the Arbitrator said.
To his credit, M.C. left the line when he was asked to without confrontation. M.C. had not properly apologized but neither had he been given an opportunity to do so. Certainly he made no attempt to deny making the statements attributed to him or to downplay his responsibility.
“Because his actions occurred in the midst of a serious labour dispute that was about six weeks long at the time and which became more bitter as it dragged on for almost a year I am prepared to accept that his threats were little more than the frustrations of a troubled man who was under a great deal of personal, emotional and financial stress. In short I find that the reaction of the Company was too severe.”
Mark Rogers is a freelance writer who specializes in labour relations and occupational health and safety.
