Employee poses no threat if reinstated: Arbitrator
Sonia Gatto’s violent altercation with a fellow employee led to her immediate termination.
Gatto had no disciplinary record in her seven years with Ontario-based manufacturer Kruger Inc. The aggressive nature of an argument between Gatto and a co-worker, however, was deemed serious enough to warrant next-day dismissal.
On Oct. 17, 2013, Gatto was working on the employer’s assembly line, operating a transfer car. The line was filling up and there was a risk machines would have to be stopped — and time lost — if the line was not cleared.
At the same time, Yan Zhu was working as an electrician. Another transfer car, not Gatto’s, had broken down. In order to repair it, Zhu needed to consult the car’s manual.
The manual for the broken-down transfer car was missing from its control panel, as was the manual for the only other stationary transfer car. Zhu decided to get the manual from Gatto’s transfer car in order to complete the repairs.
When Zhu approached Gatto and requested access to the control panel of her transfer car, Gatto assumed he intended to perform maintenance or repairs on the vehicle which would only add to the assembly line delays. Gatto told him to ask a supervisor whether or not she should stop the transfer car to allow him access.
Shortly after Zhu left in search of the supervisor, the supervisor checked in with Gatto. She explained the situation and asked if she should stop the transfer car and allow Zhu access to its control panel.
Upon seeing the assembly line was backing up — and not knowing Zhu’s request would reportedly take less than a minute — the supervisor advised Gatto to continue working.
Unable to find the supervisor, Zhu returned to where Gatto was working. Finding her unwilling to stop the vehicle, Zhu decided to take matters into his own hands. Zhu jumped onto the car, right behind Gatto.
Gatto testified that Zhu’s appearing very suddenly beside her with a screwdriver in his hand caused her to panic. In an effort to prevent him from shutting down the transfer car, Gatto grabbed Zhu by the shirt and shook him roughly. She screamed loudly and also squeezed his upper arm.
When Zhu grabbed his walkie-talkie to summon the supervisor, Gatto took it from him and wrapped its cord around his neck. Gatto then proceeded to hit Zhu with the walkie-talkie.
Zhu managed to untangle himself from the cord and get out of the transfer car. He suffered scratches and bruising in the altercation.
Statements were taken from Gatto, Zhu and witnesses. Gatto was sent home and terminated upon her return to work the next day.
Union files grievance
Unifor Local 1646 filed a grievance on Gatto’s behalf, arguing termination was excessive considering the circumstances.
The employer, however, argued the termination must be upheld for employee safety.
While arbitrator Christopher Albertyn found there was contributory responsibility for what occurred, the most serious misconduct was on Gatto’s part.
And though her actions constituted a serious assault on a fellow employee, Albertyn found the attack was not premeditated but rather a sudden reaction to Zhu’s invasion of her workspace.
"She over-reacted, she responded unnecessarily aggressively, but she did so without forethought and without any intent to harm Zhu," he said. "If reinstated in her employment, there is no reasonable risk of her being a threat of harm to any fellow employee."
Those mitigating reasons led Albertyn to find the employer was without just cause in its termination of Gatto.
He ordered she be reinstated without loss of seniority, with a three-month suspension on her disciplinary record, and without compensation.
Reference: Kruger Inc. and Unifor Local 1646. Christopher Albertyn — arbitrator. Michael Torrance for the employer and Joe Herbert for the union. Nov. 6, 2014.
