Union claimed unfair discipline after co-worker in altercation received warning
After an altercation between two men at work, an arbitrator in B.C. recently determined the employer’s four-day suspension was an appropriate disciplinary response, citing the seriousness of workplace violence.
The worker was a fuelman with 10 years of service for Teck Highland Valley Copper Partnership (HVC), a copper and molybdenum operation near Kamloops, BC.
ON Dec. 28, 2020, a haul truck driver pulled into the “fast fuel” area of a scales parking area to fill up his truck. The worker was in his truck and couldn’t get by the haul truck. After two tries, the worker got out of his truck, waved at the haul truck driver to get his attention, and then yelled and swore at him about how he had parked the haul truck.
The haul truck driver exited his truck and a verbal confrontation ensued. The worker swore at his co-colleague and the haul truck driver responded by saying, “Don’t f---ing swear at me.” Both pointed their fingers at each other.
The worker then told the haul truck driver not to point his finger at him and took a few steps towards his colleague and pushed him with his elbows. The haul truck driver, who had his hands in his pockets, backed away and put his arms up in the air, asking him, “Do you want to go?” The worker said no and that he felt he was “going to lose it on someone today.”
After this comment, the two men moved to the front of the haul truck and changed the subject, making small talk.
Physical altercation reported
Although things seems to have de-escalated, the haul truck driver felt that he had been harassed and assaulted, and reported the incident to management.
HVC investigated the incident and determined that both employees violated its anti-harassment policy. The worker acknowledged in his investigative interview that he was having a bad morning as every truck he fuelled didn’t leave enough room for fuelling. He said that when the haul truck driver got out of his truck, it was him who approached the worker and he never moved. He added that he was venting and nothing would have happened if the haul truck driver had stayed in his truck.
As for the physical contact, the worker claimed that they leaned into each other as they were yelling and bumped chests, but he didn’t push the haul truck driver. When the haul truck driver asked him “Do you want to go,” he replied, “Hell no, I was just venting,” he said.
HVC found that the haul truck driver had no motivation to file a complaint and he had a more detailed description of the incident. It determined that the worker was the aggressor and issued a four-day suspension to him for “threatening behaviour” that gave his colleague “reasonable cause to be concerned for their own safety and the safety of others.”
Workplace bullying and harassment
The suspension letter referred to the collective agreement’s statement that bullying and harassment in the workplace was unacceptable and wouldn’t be tolerated and WorkSafeBC’s definition of bullying and harassment as “any inappropriate conduct or comment by a person towards an individual that the person knew or reasonably ought to have known would cause that individual to be humiliated or intimidated.”
HVC issued a letter of warning to the haul truck driver for his role in the altercation.
The union grieved the worker’s suspension, arguing that it was excessive because the haul truck driver caused the incident by getting out of his vehicle and engaging in a confrontation. The haul truck driver’s question, “Do you want to go?” invited further physical engagement, so it was unfair and discriminatory that the worker received harsher discipline, said the union.
The arbitrator found that the worker’s misconduct was deserving of some form of discipline, as there was no doubt that he was involved in a physical altercation on the worksite for which he bore at least some form of responsibility. The arbitrator also found that it was more likely that the worker initiated physical contact when the haul truck driver got out of his truck – the haul truck driver’s question of “Do you want to go?” suggested that it was a reaction to being pushed and the worker was in a more heated state of mind, the arbitrator said.
Workplace violence
The arbitrator also found that the haul truck driver’s reporting of the incident, even though he would likely be disciplined as well, meant that he felt the worker’s actions were serious and he felt threatened at the time. In contrast, the worker didn’t report it as he was probably aware that he would be disciplined, said the arbitrator.
The arbitrator determined that the four-day suspension was an appropriate disciplinary response, noting that “there is now a heightened awareness regarding violence in the workplace and bullying and harassment with the introduction of provisions addressing such in workers’ compensation legislation.”
“There is a clear bright line regarding the wrongfulness of physical pushing or poking someone that warrants a response that sends a strong message to the perpetrator and the rest of the employees at the workplace,” said the arbitrator in dismissing the grievance. See Teck Highland Valley Copper Partnership and USW, Local 7619 (Leighton), Re, 2024 CarswellBC 2383.
