The grievor was angry over a proposed change in his shift schedule and felt that it would cause him hardship. In a fit of frustration, he destroyed a piece of equipment. The arbitrator considered the action as intentional and did not reverse the termination.
A worker at a fruit drink manufacturing company was fired after he was observed in the spare parts room smashing an electric motor by throwing it to the ground two or three times. The union said that the worker’s actions were not premeditated.
M.K. was a certified electrician. He had been employed since 2003 at a plant with a job that was physically demanding. The job became more difficult for M.K. following a workplace injury in 2008 when he fell from a ladder. The new injury exacerbated a pre-existing back condition.
Accommodating M.K. within his restrictions proved to be difficult. M.K. complained of significant pain and his use of prescribed painkillers — and the effect of the medication on his mental state — concerned his supervisor.
M.K. was also considerably stressed about proposed changes to his shift schedule.
On December 11, M.K.’s supervisor told him that the employer wanted to move M.K. to a schedule based on five eight-hour days per week. M.K. was resistant and unwilling. He said that such a change to his schedule would likely cost him his job and that he would then kill himself. He said his compressed schedule of four 12-hour days was better suited to him because of his long daily commute.
Hectic, frustrating work day
December 13, 2010 was a hectic and frustrating workday because of numerous breakdowns at the plant.
K.B. — a newly hired trades person paired with M.K. — walked into the spare parts room. He saw M.K. forcefully throw or “spike” an electric motor onto the floor two or three times.
Unsure about what to do, K.B. reported the incident to a supervisor later in the day. The next day, the company’s human resources director interviewed K.B. about the incident. K.B. was urged to provide a signed statement. K.B. reluctantly complied.
Interviewed about the incident over the telephone on December 16, M.K. denied the allegation that he had destroyed company property. Asked about his December 11 conversation with his supervisor, M.K. reiterated that the proposed shift change would cause him unnecessary hardship. He did not deny that he had made threats to harm himself.
On December 21, M.K. was fired. The union grieved.
Trust no longer possible
Termination was warranted, the employer said. Abuse, misuse or destruction of company property was a zero-tolerance offence leading to dismissal. Moreover, the facts of the case raised serious questions about how the employer could trust M.K. in the future. Two days after a dispute over scheduling with his supervisor, M.K. was seen destroying company property. He first denied the charge. Later he accepted responsibility — explaining that he first dropped the motor accidentally and then threw it to the ground again, spontaneously and in frustration. It was no longer possible to trust M.K., the employer said.
The union acknowledged that termination is generally warranted for intentional destruction of company property. However, in this case, the union argued that it was not in M.K.’s mindset to destroy company property. He did compound the effect of his initial slip-up by reacting in frustration, but the incident was not as serious as the company portrayed it. In view of the circumstances, the penalty of discharge was excessive, the union said.
The Arbitrator disagreed.
“[I] must conclude that the Company has made out its case to justify termination of the grievor’s employment. It may well be that he was frustrated in the course of the December 13 shift by the problems occurring on the shift, by his ongoing pain in performing workplace duties and against the backdrop of a potential shift change which he perceived to be not in his interests…There can be no question that the actions with respect to the motor were intentional and I would have to prefer the evidence of [K.B.] as to their actual nature. It is easy to feel some sympathy for the grievor’s situation, but he is to a large extent the author of his own misfortune.”
The grievance was dismissed.
Reference: Ya Ya Foods Corp and National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW Canada). Ross L. Kennedy — Sole Arbitrator. Anne Stevens for the Employer. Mike Reuter for the Union. July 18, 2011. 23 pp.
