‘Failing to accept responsibility… goes to the question of whether the employment relationship can be recovered’
An Alberta arbitrator has upheld the firing of an oil sands worker for punching a co-worker, despite the worker’s long service and prior clean disciplinary record.
Suncor Energy operates an oil sands mine and plant near Fort McMurray, Alta, at which the worker, 61, was employed as a lube technician since 2009. His responsibilities included providing lubrication services for heavy equipment.
On May 20, 2023, the worker criticized a co-worker’s work at a toolbox meeting after the co-worker didn’t fill up the grease at lube stations the day before. Although the co-worker wasn’t there, the worker made the comment in front of several other employees and the co-worker learned about it later.
The next day, the worker was working the same night shift as the co-worker. The co-worker approached the worker in the lunchroom to “clear the air” and explain that he hadn’t been able to fill the grease because the compression pump needed to do it had been out of commission. He also wanted to tell the worker to bring any concerns about his work directly to him.
When the conversation began, the worker became angry quickly and things became heated. The co-worker got up to leave and the worker swore at him, so the co-worker called him a “man-child” before leaving.
Worker punched co-worker
This sent the worker into a rage and he chased after the co-worker. In a second altercation, they yelled at each other and the worker punched the co-worker in the face with a jab. He then shouted, “If you ever insult me again, next time I will knock your f---ing teeth out!” Another employee saw the altercation including the punch, although he didn’t see it land. Both the co-worker and the other employee reported the incident to their supervisors.
The supervisors had the worker and his co-worker complete witness statement forms. The worker said that the co-worker verbally attacked him in his work area but didn’t mention the second altercation or the punch. The co-worker admitted to insulting the worker and said that the worker ran after him after he had walked away and punched him in the face with a short jab. The other employee reported that he had witnessed the punch but couldn’t tell if it had hit the co-worker.
Suncor suspended both the worker and the co-worker pending an investigation. When the co-worker got home, he took a photo of a cut inside his lip that he attributed to the punch and sent it to Suncor.
Suncor reviewed security camera footage that showed the worker quickly leaving the lunchroom in pursuit of the co-worker, with his right arm outstretched. The punch wasn’t clearly shown because of the distance of the camera from the two men, but the co-worker’s head was seen to snap back.
During the investigation, the worker repeatedly denied punching the co-worker, stating he had only placed his fist on the co-worker’s chin and made the comment about knocking his teeth out. When he was shown the video footage, he said it didn’t show him punching the co-worker. He acknowledged violating Suncor’s respectful workplace policy and he said he didn’t mention following the co-worker for the second altercation in his witness statement because he knew how serious his conduct was and he had been upset.
Suncor also interviewed the co-worker and the witness, who reiterated what they had said in their witness statement forms.
Thorough investigation
Suncor carried out a thorough and fair investigation, which helped them out in the end, says Dylan Snowdon, a labour and employment lawyer at Carbert Waite in Calgary.
“The company identified all the witnesses very quickly and had them fill out forms - those forms turned out to be really useful - it suspended a couple of people just to make sure the workplace was safe, circled back with interviews, and collected security camera footage,” he says. “Mistakes often happen because an outcome seems obvious – such as termination for just cause when an employee punches another employee – but it depends on the complete circumstances and you have to go through the process.”
Suncor completed the investigation and determined that the worker had punched the co-worker. It terminated his employment on June 22 for workplace violence, as it treated the mine site as an extremely safety-sensitive environment. The co-worker was returned to work without further discipline.
The union filed a grievance alleging that termination was excessive. It acknowledged that some discipline was warranted, but that the worker’s long service and clean disciplinary record were mitigating factors. The worker also referred to outside stressors such as poor air quality due to nearby wildfires and a pregnant colleague who had needed assistance.
At the arbitration hearing, the worker admitted to striking the worker but maintained that he hadn’t intended to punch him, arguing that it wasn’t a punch because it was an uppercut without much force. He said the “man-child” comment made him go “instantly from zero to a hundred” and made him “blinded with rage,” and his intention in following the co-worker was to intimidate him.
Differing explanations lacked credibility
The worker explained that his initial witness statement was vague because he was emotionally distraught and he figured there was no need to explain the punch because he believed he would be terminated anyway.
The worker also said he was “deeply regretful” for putting Suncor in the position to terminate him and he would apologize to the co-worker.
The arbitrator found the worker’s explanations to be inconsistent and not credible, noting that he wasn’t forthright in his written witness statement – his state of mind was clear enough to blame the co-worker for verbally attacking him, said the arbitrator - and investigative interview.
In considering whether termination was an excessive response, the arbitrator weighed mitigating factors such as the worker’s 14 years of service and clean record, against aggravating factors such as the seriousness of the misconduct, the safety-sensitive nature of the workplace, and the worker’s failure to fully accept responsibility – his apology at the hearing was a late attempt to save his job and he showed no remorse at the time, the arbitrator said. In addition, Suncor’s policies on workplace violence were clear and employees were aware that such conduct could result in termination, said the arbitrator, noting that it was widely accepted that workplace violence was a “very serious industrial offence” and employers had statutory obligations to proactively address workplace violence under occupational health and safety legislation.
“Failing to accept responsibility is going to be taken into account when measuring the seriousness of misconduct - it goes to the question of whether the employment relationship can be recovered,” says Snowdon. “So while the punch in the face is certainly a breach of policy and workplace violence is a serious offense, it doesn't by itself necessarily lead to termination of employment in all circumstances - but where all of the information suggests this worker could well commit this type of offense again, the weighting of factors starts tipping much more strongly towards just cause.”
Workplace violence a serious concern
The arbitrator rejected arguments that the worker was unfairly disciplined compared to the co-worker, finding that the co-worker’s comment didn’t equate to the assault committed by the worker. The arbitrator also found that the stressors mentioned by the worker weren’t beyond the ordinary enough to excuse the worker’s actions, and the “man-child” comment wasn’t a legitimate provocation for physical violence.
“There’s been a heightened societal concern about workplace violence in the last 10 or 15 years, and it’s most obviously underlined with the occupational health and safety requirement mandating prevention-of-violence policies and having a serious response to violence in the workplace, where maybe it might have been taken less seriously in the past,” says Snowdon.
The arbitrator determined that Suncor had just cause to terminate the worker for the serious misconduct of workplace violence. The grievance was dismissed.
The decision underscores the importance for employers to treat all workplace offences, especially violent offences, seriously, according to Snowdon.
“Take the necessary steps of gathering witness information, conduct interviews, collect all of the available evidence before making a decision, and that ensures employers are able to make appropriate decisions rather than decisions that could potentially be undone later,” he says. “And employers need to consider all of the circumstances - no situation can be treated the same as another and there are always unique circumstances to every employee offence.”
