Fired after a dispute with a coworker turned into a full-blown donnybrook, a youth worker at a recreational centre grieved his termination. The union disputed the employer’s allegation that he started the fight and argued that — at most — a disciplinary response was due for his part in the brawl.
A part-time recreational worker since 1999, O.H. was 24 years old and had no disciplinary record when he became involved in an incident with S.C. — a coworker — on the evening of April 13, 2005.
S.C., who was a co-ordinator for girls programming at the community centre, was sitting in the lobby at a table with a couple of coworkers when O.H. exited a meeting with a supervisor who had been making inquiries into the staff’s sign out practices.
O.H. approached S.C. and accused her of signing him out. S.C. took umbrage at the suggestion. She denied the accusation and unpleasantries were exchanged. The two then began to put their hands in each others’ faces, which then led to a physical encounter, with S.C. being the bigger, stronger and fitter of the two.
S.C.’s companions were unable to separate the combatants, who had each other by the hair. As the four of them circled the lobby, O.H.’s girlfriend entered the fray, landing numerous blows on S.C. At this point, full-time staff became aware of the situation and attempted to restore order. However, the entire scrum lurched into an electronic signboard in the lobby, with S.C. taking the brunt of the impact.
“Corn row” torn out
In the aftermath, the police were called and O.H. and his girlfriend were charged with assault. Both O.H. and S.C. sought medical treatment, the former for a scalp injury where his “corn row” had been torn out, the latter for swelling over her right eye and scratches and bruises to her arm and lower back.
While charges were withdrawn against O.H. and his girlfriend, O.H. refused to give his account of events to the employer and he was fired 16 days after the event. The union grieved.
The employer argued that O.H. was guilty of a serious and unprovoked attack. Given the seriousness of the charge along with O.H.’s refusal to provide an explanation and in view of his relatively short service, the employer took the position that it was duty bound to act in the circumstances and that the decision to terminate was reasonable.
The union argued that O.H.’s unwillingness to provide an explanation could not be used to justify discipline. Moreover, the credibility of S.C. was not a lock, the union said.
No unprovoked attack
The Arbitrator agreed. The employer had not met the onus of proof necessary to establish that O.H. committed an unprovoked attack and, indeed, S.C.’s credibility was an issue.
“[I] find that [S.C.] was not a reliable witness … [her] performance as a witness, both in the hearing itself and in her attitude to the hearing as a whole, was well beyond anything I had seen in 30 years of experience as a litigator and a neutral,” the Arbitrator said.
The Arbitrator agreed that the demeanor of a witness is only one factor that goes to establishing credibility, however, in this case, “[S.C.] demonstrated such manipulation and belligerence at the hearing that it was difficult not to conclude that she was belligerent and manipulative by nature …”
Given this finding, the Arbitrator said that S.C.’s “belligerence and narcissistic self regard” supported O.H.’s version of events.
“I have no doubt that [S.C.] got the worst of the altercation or that [O.H.’s girlfriend] was able to strike her more than once. But I am unable to find, and the City concedes same, that [O.H.] was responsible for any of that. Nor am I able to find, because [S.C] was getting the worst of it by the time [the supervisors] became aware of the event, that that is indicative or dispositive of my findings regarding the initiation of the altercation.”
“I find that the two antagonists share equal responsibility for the initiation of the fight, its escalation, and the ridiculous, public spectacle that resulted from same,” the Arbitrator said.
The grievance was allowed, in part. A two-month suspension was the appropriate penalty, the Arbitrator said. However, the employer acted reasonably in the circumstances when it terminated O.H. and that — along with O.H.’s unwillingness to provide the employer with his side of the story — vitiated his claim for any back pay.
