One employee wanted to display her physical strength, son she carried a much larger co-worker for three metres. Because a similar incident had resulted in an injury, the arbitrator backed up the discipline.
Piggybacking a colleague for three metres earned suspensions for two workers.
Employed in a physically demanding job as a “skidder” at a food processing plant, M.B. was hired in 2002. In her 30s, M.B. was known to work out regularly. She weighed approximately 45 kilos.
In his 50s, M.H. weighed about 100 kilos. He had worked at the plant since 1992.
On May 3, 2010, M.B. and M.H. agreed to see if M.B. could piggyback M.H.
With M.B. at the bottom of a staircase, M.H. climbed onto her back. M.B. was able to carry M.H. about three metres before they were observed by the plant health and safety supervisor. She immediately ordered them to stop. The workers complied.
The supervisor consulted human resources and the plant manager about the advisability of discipline. It was agreed that the workers should be given three-day suspensions.
The union grieved the suspensions.
Prohibition against horseplay
The workers were in clear violation of policy prohibiting horseplay on its property, the employer said. The suspensions were warranted. The workers were aware of the policy and had been trained. The employer acknowledged that written warnings or lesser suspensions were available options under progressive discipline. M.B. had no prior discipline on her record and M.H. had only a written warning in his 18 years at the plant. However, management retained the right to impose discipline appropriate to the conduct in question.
In this case, the employer said, M.B. and M.H. were performing a “feat of strength” — conduct specifically prohibited by the Occupational Health and Safety Act. Section 28(2)(c) prohibits employees from engaging “in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.”
More than that, the employer said that the incident was reminiscent of a previous incident of horseplay at the workplace that had resulted in a compensable injury. In that case a worker jumped on the back of another worker without permission. The worker who initiated the horseplay in that case was awarded a five-day suspension.
Deterrence a factor
In light of this earlier example, the suspensions were not excessive, the employer said. Deterrence was clearly necessary to serve notice to employees that dangerous horseplay would not be tolerated. If the discipline was neither excessive nor unreasonable it should not be tampered with, the employer said.
The union argued that the discipline was excessive. Both M.B. and M.H. admitted from the outset that their conduct was inappropriate and M.H. apologized at the hearing. The ride was only three metres and no one had been injured. The employer’s interest in progressive discipline would be served by awarding one-day suspensions, the union said.
The Arbitrator disagreed.
In apologizing for their conduct, M.B. and M.H. indicated that they understood the employer’s position, the Arbitrator said.
Legitimate interest in curtailing dangerous conduct
“This concession and apology reflects that the grievors understand and appreciate the Employer’s legitimate interest in curtailing such conduct as potentially dangerous. Nevertheless, I do accept that the Employer’s concerns were legitimate particularly in light of the workplace injury resulting from the previous incident described above. The employer has a legitimate interest in imposing a penalty that is both appropriate to the incident and a general deterrent without being overly excessive. In this case the Employer struck a balance in that regard that is not unreasonable. That is particularly so having regard to the Employer’s policy prohibiting horseplay and the OHSA prohibition against ‘feats of strength in the workplace.’ Although the suspensions were greater than the minimum penalty contemplated by the Employer policy for a first offence, the suspensions were still of relatively short duration and not unreasonable in the circumstances.”
The grievances were denied.
