Dismissal for fight too much for manager who didn’t start it: Court

Manager reacted to employee coming at him

A Manitoba manager should not have been fired for his involvement in a physical altercation that another employee started, the Manitoba Court of Queen’s Bench has ruled.

Ramadan Gjema, 36, was a plant general manager for Mercury Specialty Products, a metal tube manufacturer in Winnipeg. After leaving Mercury in 2001 to get an engineering diploma, Mercury convinced him to return to the company as a general manager less than three years later.

When Gjema started as a general manager, Mercury gave him an employment contract that had a termination clause entitling him to three months’ severance after one year, six months’ severance from one to two years and one years’ severance with more than two years of service. They didn’t sign the contract but they agreed on the severance provisions in a series of emails.

Gjema sometimes went on the shop floor and gave the production manager instructions. At times, the president of Mercury would give instructions and then Gjema would tell the production manager to do something else first. This annoyed the production manager, who had anger management issues. The production manager also got into altercations with co-workers and refused to follow Gjema’s instructions.

In late 2009, Mercury reviewed Gjema’s performance and expressed concerns about aspects of his job performance. A new contract was drawn up that increased his salary but decreased his notice of dismissal from three months to two and set the contract term from infinite to one year.

On Feb. 18, 2010, Gjema issued a written warning to the production manager for refusing to work on projects Gjema assigned to him. The warning stated that failure to complete the assignments and future refusals would result in termination of employment.

The production manager was angry and refused to accept the warning. After Gjema presented him with the warning, they had an argument over job priorities. Gjema insisted that the production manager must do as he said and the production manager responded that Gjema didn’t understand the chain of authority. The production manager got close to Gjema and Gjema pushed his chest with two hands, knocking him to the floor.

After the altercation, Gjema claimed the production manager had approached him quickly and swore at him. He said he held out his hands to keep the production manager away from him and the production manager lost his balance. Other employees reported that the production manager started the argument and came at Gjema shouting and pointing before he fell.

Mercury’s president wasn’t sure who started the altercation, but after a few days of thinking about it, he dismissed Gjema for workplace violence and behaviour that was “unbecoming of a senior manager.” The production manager was eventually suspended for one week for insubordinate, disobedient and violent behaviour, and placed on probation for six months.

The court found that the production manager was the instigator of the altercation and the evidence indicated Gjema’s account was more in line with witness accounts. Considering these factors, the court found dismissal was excessive discipline. The court also found that Gjema’s punishment was disproportionate to the penalty imposed on the production manager.

Since there was no evidence Gjema agreed to the new severance provisions proposed in late 2009, the court ordered Mercury to pay Gjema 12 months’ severance pay, as agreed in his original agreement, equal to $82,400, plus $7,500 in damages for wrongful dismissal. See Gjema v. Mercury Specialty Products Inc., 2012 CarswellMan 126 (Man. Q.B.).

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