Disorderly conduct too broad to warrant automatic dismissal under agreement: Board
A shouting match and a physical altercation in the workplace was serious misconduct but didn’t fall under a collective agreement provision specifying dismissal for disorderly conduct, the Ontario Arbitration Board has ruled.
Ted Lafleur, 50, worked for 16 years at a paper mill that manufactured board liners for drywall. The mill was located in Thorold, Ont., and owned by Georgia Pacific Canada. Lafleur’s job involved cutting samples out of reels of paper to test its consistency, with the help of another employee who holds the paper against the reel while the cut is made.
For many years, the environment at the mill was dominated by long-serving male workers. As a result, they were very familiar with each other and were used to handling disputes among themselves — such as settling arguments “in the parking lot.” The collective agreement outlined penalties for workplace misconduct such as suspensions, but management often didn’t get involved.
Lafleur had a co-worker, Marc Robillard, who had been at the mill for a similar length of time and the two men knew each other well and worked together often. In the past, they had had disputes that led to brief wrestling in the workplace, which was fairly common at the plant and tolerated by the company.
New attitude towards workplace violence
In 2006, Georgia Pacific bought the mill and implemented a new code of conduct that prohibited “bullying, violence, threats, intimidation and other disruptive behaviour in the workplace” and required employees who witnessed such behaviour to report it. All employees were trained on the code of conduct and it was posted in the mill. The code of conduct was also incorporated into “mill rules” in the collective agreement, which included a list of behaviours that were cause for discharge, including disorderly conduct.
On Nov. 10, 2009, Lafleur was working with Robillard cutting test pieces of paper. The two had to stand in close proximity to each other. However, several times during the shift Robillard went missing and Lafleur had to cut samples on his own. When Robillard was there, the two men didn’t speak to each other. Lafleur thought Robillard’s behaviour was odd and “passive-aggressive” and brought it to his supervisor’s attention. The supervisor heard Lafleur’s concerns but didn’t do anything further.
Near the end of the shift, Robillard was again missing when Lafleur began cutting a reel of paper. When Robillard showed up, he flipped the heavy sheet, which hit Lafleur on his hardhat and caused him to stagger. Lafleur didn’t initially say anything but became angry.
After the final sample was cut, Lafleur decided to find out if Robillard had meant to hit him with the paper sheet. The two were scheduled to work together over the next several days and Lafleur wanted to clear the air. He approached Robillard with his hands in his pocket and asked what happened.
Lafleur claimed Robillard responded by shoving him in the chest and yelling at him, saying he would “beat you in the head.” The two began yelling at each other and Lafleur claimed he pushed back at Robillard with his chest because Robillard was in his “personal space.” Lafleur then challenged Robillard to a fight outside.
Robillard reported the incident to the HR manager a few minutes later, who began an investigation. She determined Lafleur showed no remorse for his actions and also learned Lafleur had reported Robillard’s earlier behaviour to his supervisor.
Georgia Pacific decided Lafleur should be terminated for his misconduct as it fell under the definition of disorderly conduct in the collective agreement’s reasons for discharge. It also felt since Lafleur showed no remorse, his attitude wouldn’t change and it had to set an example that it took threats and violence in the workplace seriously. Robillard was not disciplined.
The board agreed Lafleur’s misconduct could be considered disorderly conduct in the workplace. However, it found the category was broad and, though listed as a cause for discharge in the collective agreement, may not necessarily be limited to that form of discipline.
The board noted the collective agreement also provided for a board of arbitration to modify penalties to “what it deems just and equitable” and limiting one type of discipline for a broadly defined form of misconduct would run contrary to that provision.
Definition of misconduct too broad for discharge to be only discipline: Board
The board found the list of causes for discharge in the mill rules was “for informational purposes only” and served as notice to employees that discharge was one of the possible outcomes, not the only one. This made the rules more consistent with the company’s code of conduct, which warned employees of “disciplinary action, up to and including termination,” implying there could be discipline less than discharge.
“One would think if the parties had agreed to the specific penalty of discharge for the violation of any of those rules, at any level of culpability, the company would have made that abundantly clear to the employees in the training of employees and posted notices, which the company has not done,” said the board.
The board found the list of infractions in the collective agreement’s mill rules did not provide for discharge as the only form of discipline, leaving it free to consider mitigating factors. Since Lafleur was a long-time employee with no previous discipline, his supervisor did nothing about his earlier concerns about Robillard and Robillard contributed to the situation through his actions, the board ruled Lafleur should be reinstated with an 11-month unpaid suspension, the time between his firing and Oct. 4, 2010, when he accepted responsibility for his misconduct in front of the board. Georgia Pacific was ordered to pay Lafleur’s salary and benefits from Oct. 4, 2010, up until his reinstatement. See Georgia Pacific Canada Inc. v. C.E.P., Local 192, 2011 CarswellOnt 2463 (Ont. Arb. Bd.).