The company had tightened rules to change the culture of the workplace. It tried to make an example of a worker who was involved in a verbal confrontation. However, a combination of provocation, uneven enforcement, a clear disciplinary record and poor re-employment prospects saved his job.
A worker was fired following an altercation with a co-worker. The employer said the worker’s conduct violated Mill Rules and was cause for dismissal.
Hired in 1993, T.L. was employed in a paper mill that produces the backing for drywall board. The small plant employed about 75 people. The culture at the male-dominated plant was close-knit and described as an “old boys” club where workers were accustomed settling disputes “like men” in the parking lot.
The mill was purchased in 2006 and efforts were made to remake the culture. A new Code of Conduct prohibited all forms of bullying, violence, threats and intimidation.
During a day shift in November 2009, T.L. became involved in an altercation with M.R.
M.R. — who was supposed to be working with T.L. — made himself scarce for most of the shift. For the bits of time that M.R. was present, he was distant and tense according to T.L. T.L. read this behaviour as passive-aggressive and was put on edge.
T.L. alerted his supervisor that he thought “something was up,” but the supervisor did nothing to address the problem.
M.R. returned towards the end of the shift to work on the last roll of paper for the day. While working in close quarters, M.R. mishandled a large sampling sheet. The sheet struck T.L. on the head almost knocking his safety helmet off and causing him to stagger.
T.L. later approached M.R. with a view to clearing the air and finding out whether or not the incident was intentional or if it was meant to be some sort of joke.
Screaming match
The conversation did not go well. M.R. said that T.L. began by speaking loudly. A “screaming match” ensued. T.L. shoved M.R. and suggested that they “settle this like men.”
The scuffle ended abruptly. M.R. reported the incident to management.
T.L. was interviewed. Eight days later he was fired. The employer alleged serious misconduct and said that T.L. had engaged in an act of violence and that he had threatened another employee and showed no remorse. Such a violation of Mill Rules was cause for discharge, the employer said.
The union grieved. Termination was a disproportionate penalty in this case. T.L. had 16 years’ service and an otherwise clear disciplinary record. Violence was not acceptable and discipline was warranted, the union said, but termination was excessive. To this point, no employee had ever been terminated for such a breach of Mill Rules, the union said.
The Arbitrator rejected the employer’s assertion that termination was an automatic consequence of violating Mill Rules and that the language of the collective agreement prevented the Arbitrator from modifying the penalty.
“[I]t is my opinion that the Mill Rules listed … must be for informational purposes only and the phrase ‘Causes for Discharge’ must be read as notice to employees that discharge is among the disciplinary responses they may face for the breach of any rule without limiting the penalty to discharge in each and every case of violation.”
Nevertheless, violent conduct in the workplace, including harassment or bullying and intimidation, may be grounds for summary dismissal even for a first offence, the Arbitrator said.
Not in this case.
Supervisor complacent
Despite the company’s stated intent to change the culture, the supervisor did not respond to T.L.’s “heads up” and he was left to handle the matter himself.
Following that interaction, it was understandable, the Arbitrator said, if T.L. felt that he would also have to take it upon himself to confront M.R. about the sampling sheet incident and his behaviour over the course of the shift.
M.R. didn’t exactly follow the new Code to the letter either, the Arbitrator said. Instead of retreating and reporting the incident as per the dictates of the Code, M.R. gave as good as he got with respect to yelling profanities at close quarters.
Given that there was no physical harm, that there was a degree of provocation and in view of T.L.’s dim re-employment prospects, the Arbitrator elected to exercise discretion and reduce the penalty.
“[W]hile discipline was appropriate for [T.L.’s] misconduct, it is my opinion that summary dismissal was a disproportionate response to [T.L.’s] specific actions even without an apology at the time, because it failed to take into account all of the circumstances of the altercation that included the apparent complacency of the [supervisor], and provocative conduct both before and during the event by [M.R.].”
The grievance was accepted, in part. T.L. was reinstated and the termination was substituted with an 11-month suspension.
