Aggressive behaviour not a threat, but lack of remorse worthy of suspension

Worker acted aggressively in argument with supervisor

An arbitrator has found an Ontario worker was not guilty of threatening workplace violence but did not reduce the worker’s suspension because he felt no remorse for his intimidating behaviour.

The worker was a welder mechanic employed for 20 years at a facility in Sarnia, Ont., operated by Procor, a company that repaired and recertified tank cars.

On April 12, 2013, the worker was at a morning meeting discussing whether a tank car he was working on was ready to go. After the meeting, his supervisor walked over to the car to check on it. The work order for the car stated the work had been completed, but the supervisor noticed the reflective strips and decals that indicated where the car had been requalified had not yet been attached. That work had been assigned to the worker originally, but a few days earlier it had also been assigned to another employee who had since been suspended.

The supervisor found the worker leaning on a desk and talking to the lead hand. He asked him to apply the decals and reflector strips, and the worker stood up and yelled into his face “Why didn’t you get Tom to do it yesterday? He stood around all day and did f--- all and you watched him.” The supervisor claimed the worker was about 12 inches away and he could feel the worker’s spit on his face as he shouted.

The supervisor he backed away and told the worker he to do the work, and the worker yelled, “Where’s Tom?” The supervisor replied that Tom was absent and he was giving the worker direction. to which the worker said, “Don’t treat me like a child.”

The supervisor testified he felt threatened and thought the worker might hit him. He told the worker he was being “boisterous and disruptive and you need to leave the plant.” The worker just stood there, so the supervisor said he was going to call 911 and the police. The plant manager stepped in and told the worker he had to go home.

The supervisor followed the worker “20 to 25 feet” behind him to ensure he left the plant and didn’t do anything. Then he went home, telling the plant manager he was shaken up. Once home, the supervisor had to take medication for a heart problem.

The worker agreed with what was said between him and the supervisor but denied swearing or yelling at him, or that he acted in a threatening or intimidating manner. He testified he felt he was being spoken to in a condescending manner, which wasn’t appropriate for a worker with his length of service. He also said he was standing about four feet away from the supervisor.

Procor told the worker to stay home while it investigated the incident. He was off work for five weeks with pay. When Procor concluded the investigation, it determined the worker “did portray workplace violence, intimidation and boisterous behaviour against (the supervisor).” Procor’s workplace violence and harassment policy included “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker” in its definition of workplace violence. The worker was suspended for five days without pay, which the union grieved.

The arbitrator found that the worker’s behaviour was insubordinate, as he was directed to do a task and challenged the supervisor. In addition, this behaviour — corroborated by both the supervisor and the plant manager — was not “calmly insubordinate,” but involved aggression towards his supervisor. The supervisor and plant manager both told the worker to go home and the supervisor contemplated calling police, which was consistent with being faced with intimidating behaviour.

Though the worker acted aggressively, the arbitrator found he didn’t say anything that could be construed as a threat. Therfore, the issue was whether the aggressive behaviour was serious enough on its own to meet the definition of workplace violence.

The arbitrator found the worker’s disruptive behaviour was an attempt to intimidate his supervisor, but was not enough to qualify as workplace violence. The supervisor may have felt threatened, but the arbitrator determined it was not objectively reasonable to interpret the worker’s actions as a threat to use physical force.

However, the arbitrator decided not to reduce the suspension because the worker showed no remorse for his misconduct. He acknowledged he acted in an intimidating and aggressive way but did not apologize for it. He also testified he didn’t care if the supervisor ended up in the hospital. See Procor Ltd. and BBF, Local 128 (Smith), Re, 2015 CarswellOnt 2494 (Ont. Arb.).

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