The grievor’s feud with a colleague escalated into a threat of violence. The company fired him, but chose to take no action against the other employee, who had also threatened violence. The arbitrator agreed that discipline was necessary, but did not find the incident nearly as serious as the company had.
A worker was fired after making a veiled threat to bring a firearm to the workplace to settle a dispute. The worker denied making the threat as reported. The union grieved.
A.F. was a radio control crane operator at a manufacturing plant. Hired in 2002, his job was to move material and products for a welding crew engaged in manufacturing components for rail cars.
The welding crew was paid an incentive for meeting daily production targets. A.F. was not.
There were ongoing tensions between A.F. and A.G., the lead hand for the welding crew.
A.G. took the view A.F. was unwilling or unable to work at the pace the welding crew required in order to meet their production targets.
On May 31, 2011 A.G. perceived A.F. had taken an extended lunch and, consequently, jeopardized the welding crew’s ability to make its production target. A.G. reported A.F.
The two men had an altercation later in the shift after A.F. called A.G. a “rat.” A.G. challenged A.F. to “take it outside” and “do this like a man.” A.F. retreated, and then returned. He was heard to say words to the effect that he was going to get or bring his “ammo.”
A.G. was aware A.F. owned firearms. He perceived A.F.’s comment as a threat. He reported the incident to his supervisor. The apparent threat was reported to police. A.F. was charged, though the criminal charge was later withdrawn.
Use his “intuition”
A.F. steadfastly denied to his employer that he had made such a threat. He insisted that he had said that, “next time he would use his ‘intuition.’ ” He explained that his reference to “intuition” must have been misheard as “ammunition,” which was later reported as a reference to “ammo.”
The employer didn’t buy it. A.F. was fired.
The employer said that it was acting in accordance with new statutory obligations under the Occupational Health and Safety Act to address violence in the workplace. According to amendments to the Act, the alleged threat uttered by A.F. was in itself an act of violence. The company complied with its obligations to contact police and suspend A.F. pending an investigation. For his part, A.F. refused to acknowledge that he had made a violent threat. Termination was warranted, the employer said.
Both workers made aggressive comments in the heat of the moment, the union said, while agreeing that fighting and making threats are serious industrial offences that warrant discipline. The union acknowledged too that the amendments to the Occupational Health and Safety Act addressing workplace violence compel employers to take the issue seriously and to develop appropriate policies and procedures. However, the union argued, the appropriate response will depend on the particulars of the incident. A range of mitigating factors will also come into play. In this case, the union said, discharge was excessive in the circumstances.
The Arbitrator agreed.
Threats are violence
The Arbitrator addressed the extent to which amendments to the Act have altered the arbitral landscape with respect to violence and threatening language in the workplace.
Key factors identified in Arbitrator Newman’s award in Kingston v. CUPE, Local 109 are that:
• the Act now treats threatening language as violence;
• all incidents of workplace violence must be reported, investigated and addressed;
• because threats are now to be treated as violence, they must be accorded more substance when weighed against other factors; and,
• in addition to standard calculations about the appropriateness of reinstatement, the implications of reinstatement on workplace safety must also be considered.
However, the Arbitrator said, the Act does not do away with the Arbitrator’s authority to weigh the proportionality of the employer’s disciplinary response to workplace violence and substitute a lesser penalty if warranted.
All violence taken seriously but all incidents not equally serious
“The Act does not say that all incidents of workplace violence are equally serious, but rather that they all require to be taken seriously, investigated and addressed. The relative gravity of any particular incident still has to be assessed. Certainly arbitrators will pay attention to the public policy that workplace violence, including threats of violence, must be taken seriously. But in every case, the ‘seriousness of the incident’ must be assessed on the facts. Not every incident will be so serious that its classification as workplace violence outweighs other mitigating factors.”
This was such a case.
Numerous factors counted in A.F.’s favour.
A.F. may have provoked the confrontation, but A.G. escalated it. Certainly A.G.’s threats of physical violence were not insignificant, even though the employer did not apparently factor in A.G.’s part in the incident when it fashioned its disciplinary response. A.F.’s threat was heard by other employees, but so was A.G.’s challenge to fight.
A.F. was an eight-year employee. There was minor discipline on his record but no previous incidences of violence.
“Having regard to all these conditions, and in particular to the manifest unfairness of upholding the most extreme disciplinary sanction against the grievor when no action was taken against the other employee responsible… I have concluded that [A.F.] must be reinstated…”
A.F. was to be reinstated without compensation but with no loss of seniority. A.F. was to be reassigned to another department and subject to termination in the event of any further violent incidents within a two-year period.
Reference: National Steel Car Limited and United Food and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135. Paul Craven — Sole Arbitrator. L.G. Culver for the Employer. J. Fyshe for the Union. Nov. 29, 2011. 16 pp.
