Worker fired for punching co-worker, but was suffering from depression that should have been accommodated: Board
Making a sad situation worse
When an employee acts violently in the workplace, it is definitely cause for concern for the employer. One would expect that putting together an agreement where the employee agrees to be on his best behaviour for a certain period of time or face dismissal would be a prudent course of action. That way, if the employee acted violently again, it would be a simple case of termination.
However, as is often the case in employment law, nothing can be assumed, especially if there are mitigating factors such as a disability. Coca-Cola may have thought it was in a solid position to fire a two-time violator of its anti-violence policy who had a last-chance agreement in place, but it failed to consider clues that indicated there was more than meets the eye in this employee’s circumstances.
When the Coca-Cola Bottling Company put an employee at its Brampton, Ont., warehouse on last-chance agreement after angry outbursts at work, it may have seemed like a natural step to fire him when he punched out an employee. However, the Ontario Arbitration Board disagreed and found there were many factors in the employee’s life that should have pushed the company’s thoughts toward accommodation rather than termination.
Frank McNabb was an order builder in the warehouse with seven years of service with Coca-Cola. In March 2008, his wife was diagnosed with breast cancer and soon had surgery followed by radiation treatment. It was an emotionally difficult time for McNabb and his family, which included three children aged 21, 16 and 12. Also, McNabb’s wife had to stop working because of her illness, which hurt the family’s finances. As a result, McNabb began to suffer from depression and anxiety, causing him to take time off work on a weekly indemnity benefit — a form of compensation for income lost due to accident or illness — in April 2008 while he took medication and counselling.
Phone-throwing incident led to last-chance agreement
McNabb returned to work in August 2008 because he felt he couldn’t get by on the weekly indemnity benefit and needed his full salary. He was still suffering from anxiety and depression, which came to a head a month later when he became upset at work and threw a telephone. It was McNabb’s first instance of misconduct at work, but Coca-Cola chose to draft a last chance agreement which required McNabb to complete anger management classes within two months and not engage in behaviour at work that was aggressive or could damage company property. The agreement stated if McNabb were to breach any of the conditions in the following 18 months, his employment would be terminated without the possibility of grievance for a lesser penalty.
McNabb was called into a meeting where the agreement was read to him. He didn’t fully understand it and it wasn’t explained to him, but he signed it because he needed his job. He followed through with the anger management classes and continued working without event for several months. However, he was still finding it difficult to cope with his family’s situation and remained depressed. He turned to taking Tylenol 3 and smoking marijuana to ease his depression and the migraines he began suffering from.
In May 2009, McNabb’s father died suddenly. It was an especially devastating loss because his father had been helping them deal with their difficulties. Because of this — and the fact he had been getting the Tylenol 3 from his father’s prescription — McNabb’s condition worsened. However, he continued working because he couldn’t afford to go on weekly indemnity leave again.
Stressed-out employee provoked into throwing punch
On June 9, 2009, McNabb was outside with four other employees on a smoke break. One of his co-workers, Randy Lemke, began accusing McNabb of sucking up to management and using vulgar terms to describe it. McNabb felt humiliated and, as Lemke repeated the comments, belittled. He told Lemke the comments weren’t funny and he should stop, but Lemke continued insulting him. McNabb headed for the door to go back inside, but Lemke made one more rude comment as he left. On top of all the personal problems he’d been having, this was the last straw for McNabb. He turned around, flicked his cigarette and punched Lemke in the face.
A little later, McNabb felt bad about his sudden reaction to the goading and apologized to Lemke. Lemke accepted the apology and didn’t want to make anything more out of the incident, though he didn’t want to talk to McNabb any more. However, a manager noticed Lemke’s bloody lip and the mark where McNabb’s cigarette hit him and asked what happened. As a result, Coca-Cola launched an investigation.
Lemke told Coca-Cola that he had been joking with McNabb and McNabb punched him. He didn’t reveal the nature of the jokes but said McNabb had apologized and he wanted to forget about it. Management met with McNabb and told him to go home while they looked at the situation. At this time, McNabb said he was having difficulty because of his wife’s illness and his father’s death. He also mentioned he might need some time off but he couldn’t afford it.
At another meeting on June 12, McNabb explained that Lemke had been making vulgar comments to him and that, combined with the rough time he was going through in his personal life, caused him to react by punching Lemke. He said he knew his behaviour wasn’t acceptable and violated the company’s workplace violence policy but it wouldn’t happen again.
On June 15, Coca-Cola management met again with McNabb and he realized he was going to be terminated. McNabb said he needed help with his addictions to Tylenol 3 and marijuana, but Coca-Cola was skeptical because he was only bringing it up at the moment of termination. McNabb explained he hadn’t mentioned it before because he was embarrassed and didn’t know if Coca-Cola would by sympathetic to his personal problems. However, the company felt it was a “last-ditch effort” to save his job and went ahead with terminating his employment for violating its violence policy, which prohibited “any conduct that constitutes an intimidating, hostile, offensive or threatening work environment through unwelcome words, actions or physical contact,” and his last-chance agreement.
After the dismissal, McNabb’s emotional state and financial difficulties worsened. He pursued further counselling and the union filed a grievance for unjust dismissal.
Misconduct caused by disability that required accommodation: Board
The board initially looked at the last chance agreement McNabb had signed after his phone-throwing incident. He had just returned from weekly indemnity leave and was suffering from anxiety and depression for which he was taking medication and counselling. This, said the board, constituted a disability, from which he was still suffering when he threw the phone and signed the agreement. The board found Coca-Cola should have inquired as to his health before drafting the agreement, since he had just spent time off work and he had no previous discipline. Therefore, the agreement was ill-advised and was not enforceable.
The board also found McNabb’s action in punching his co-worker Lenke was caused in part by his anxiety and depression stemming from his personal life. Since Coca-Cola terminated McNabb’s employment because of the punching incident as well as the previous phone-throwing incident — which were both caused at least in part by his anxiety and depression — it violated the Ontario Human Rights Code. It should have at least considered the possibility McNabb had a disability because he had mentioned his personal difficulties at each of the meetings but Coca-Cola didn’t look into it any further.
“There is no evidence the company gave serious consideration to whether (McNabb) was in fact suffering from any disability,” said the board.
In addition, the board found Coca-Cola was unfair in its handling of the punching incident by not properly considering Lemke’s role in it. Lemke “severely provoked” McNabb into punching him with conduct that itself violated Coca-Cola’s policy against harassment. However, Lemke wasn’t disciplined at all while McNabb received the most serious form of discipline. Lemke also confirmed McNabb had quickly apologized before he even knew there would be consequences from management.
The board also considered the fact McNabb immediately admitted to his misconduct when asked, acknowledged it was wrong, and expressed “sincere remorse.” He was undergoing treatment for his addictions and emotional problems, which demonstrated an earnest effort to get better. Along with McNabb’s immediate apology to Lemke, the board felt the employment relationship could be repaired without much difficulty.
The board ordered Coca-Cola to reinstate McNabb to his position without loss of seniority, but with a 20-day suspension in recognition of the seriousness of his misconduct. It also said if McNabb were to engage in violent misconduct in the workplace again, Coca-Cola would likely be able to dismiss him because another incident would demonstrate too much risk to a safe workplace and bring accommodation to the point of undue hardship.
For more information see:
•Coca-Cola Bottling Co. v. CAW-Canada, Local 973, 2009 CarswellOnt 9137 (Ont. Arb. Bd.).