Despite the fact that the grievor's threats against coworkers were specific and repeated, the arbitrator reinstated him. The decision by the company to treat similar threats with suspensions was crucial in the ruling.
A worker at a meat processing plant was fired after making a number of threats against coworkers.
J.D. was a shipper/receiver at a meat processing plant. He was hired in 1996. There was no discipline on his record when he was fired on June 24, 2011. However, J.D. did have a reputation for “talking tough” and “shooting his mouth off.”
J.D. returned to work in May 2011 after an eight-month medical leave. The plant J.D. returned to was considerably more crowded and chaotic. It was also less cohesive. New construction was underway at the plant and the employer had temporarily brought in a number of employees from a nearby plant it had closed.
The new workers were trained to different standards and operated differently. J.D. was cautioned he would have to adapt and be retrained himself before he could be re-certified and return to operating forklifts.
J.D. was unhappy about the new training requirements and disdainful about what he perceived were the skill deficiencies of the new workers, according to his supervisor and co-workers.
Repeated threat
During a smoke break on June 16, 2011, J.D. was agitated. Speaking to two of his co-workers, he said, “When I get my f——— license back, I’m going to f——— hit someone; and if anyone asks, I’ll say they hit me first.” No one responded to J.D.’s comments, which he repeated two or three times.
One of the co-workers reported J.D.’s comments to her supervisor. Her belief was that J.D. was just venting and he presented no real threat to anyone. Nevertheless, she felt obligated to report.
Two days later during a forklift training session, J.D. made a similar threat. J.D. said to the supervisor/trainer that if one of the new employees drove towards him on a forklift that someone would get hurt and it wouldn’t be him. J.D. was not apparently angry. Neither the supervisor nor the other trainees present believed J.D. would actually hit anyone. Nevertheless, the supervisor reported the comment.
Two days later, J.D.’s supervisor overheard J.D. on the loading dock yelling at one of the new employees. J.D. loudly and derisively questioned the employee’s competence and credentials. The supervisor intervened and sent J.D. home.
J.D. was asked to a meeting three days later.
Discipline warranted
J.D. was fired. A discipline record handed to him at the meeting said he was being terminated for “threatening violence; intimidation; creating a poison environment,” and “human rights.”
J.D. had made threats and his conduct warranted discipline, the Arbitrator said. The Arbitrator also noted that since recent amendments to the Occupational Health and Safety Act under Bill 168, threats are to be considered as a form of violence and “at the grave end of the misconduct scale.”
The Arbitrator characterized J.D.’s threat as serious. “[I]t threatened physical harm involving the use of dangerous machinery. It was repeated on two occasions, which makes it all the more egregious.”
However, termination was excessive in the circumstances. J.D.’s comments were not reflective of premeditation. They were more in the nature of a momentary flare-up due to frustration, the Arbitrator said. J.D. was a 15-year employee with no discipline on his record. He regretted making the comments he made and he now understood why they were inappropriate.
The Arbitrator also noted the employer had dealt with four similar incidences of violent and threatening behaviour in the same time period. However, two and five-day suspensions were awarded in all those cases.
“While I am of the view [the] Grievor’s misconduct is serious, there is no basis to treat the Grievor differently than other similarly situated employees are treated.”
The grievance was allowed. J.D. was awarded a five-day suspension.
