One employee’s “goofing around” was another’s harassment. This incident of horseplay, by a grievor with an unenviable record of discipline, left the arbitrator with no choice but to sustain the termination.
A worker at a pharmaceutical plant was fired after he jumped another employee from behind, restrained him, slapped him on the “ass” and then “dry-humped” him. The incident was captured on the employer’s security camera.
B.M. had almost seven years’ service at the pharmaceutical plant when he was fired on October 20, 2010. B.M. had 13 incidents of discipline on his record in the year leading up to his termination.
During the evening shift on October 14, 2010, a team of five workers — including B.M. — was blending raw materials. D.C., who was also in the group, was singing “All you need is love.” Stating that he would show him love, B.M. approached D.C. from behind. With a bag that he had stretched and twisted into a rope, B.M. corralled D.C. by looping the bag across D.C.’s neck and chest. B.M. pushed D.C. up against a skid, slapped him on the buttocks five times and then dry-humped him.
Later in the shift D.C. called the Director of Human Resources from his car and left a message reporting the incident. The next day, D.C. reiterated his complaint in person to the Director. He said that he thought B.M. was “cuckoo.”
D.C. later testified that the incident left him feeling physically abused and humiliated. D.C. said that he had formerly thought of B.M. as a friend. That was no longer the case because of B.M.’s ongoing harassment of him.
Goofing around
Questioned about the incident, B.M. admitted to what he had done and acknowledged that it was immature. He said that he was “goofing around.” B.M. gave his sincere assurances that it would not happen again.
B.M. was fired. The union grieved.
The union agreed that discipline was warranted but said that B.M. should be reinstated and given a last chance. In his favour, B.M. had six and-a-half years’ seniority. Horseplay was not uncommon at the plant and testimony established that dry-humping was a regular occurrence. It was true that B.M. had a significant record of discipline, but the point of progressive discipline was to correct behaviour. Sometimes it was necessary to hear “you’re fired,” in order to drive the point of previous discipline home, the union said.
The incident alone was sufficient cause for termination, the employer said. If that was not the case, termination was justified when viewed as a culminating incident in light of B.M.’s extensive disciplinary record.
The Arbitrator agreed.
This was a serious incident — both humiliating and degrading for D.C. who was an unwilling participant. That B.M.’s actions were a premeditated retaliation for an earlier slap on the back that he had received from D.C. meant that the incident was not a “momentary flare-up” or a spontaneous reaction to a provocation.
There was no real apology. The Arbitrator said that while B.M. seemed concerned about losing his job and about how the employer perceived the incident, his apology was not sincere. Moreover, B.M. made no apology to D.C.
If B.M. was not properly contrite in the Arbitrator’s opinion, neither was he properly candid. “He seemed to take every opportunity to try to minimize the situation. If [B.M.] had accepted responsibility for his actions, or if he had testified candidly, I would be more inclined to the view that he might learn from this incident and change his behaviour if reinstated.”
Lengthy record of discipline
However, B.M.’s record did not suggest that he was a good candidate for reinstatement. Several of the 13 incidents on his record were repeat offences against plant rules that were met first with a verbal warning and then with a written warning. B.M. was also given a one-day suspension for an unexplained absence. That was followed by a three-day suspension and then a five-day suspension for further unexplained absences.
“I can see nothing in this lengthy record of discipline to suggest that the grievor has learned from discipline and I see nothing to encourage me to the view that, if reinstated, the grievor would likely change his behaviour,” the Arbitrator said.
Dismissal was not an excessive penalty in view of all of the circumstances of the case, the Arbitrator said.
The grievance was dismissed.
