'It's extremely serious misconduct that could warrant termination in the right circumstances'
The firing of a warehouse worker after physically attacking a co-worker was excessive due to provocation by the co-worker and the worker’s immediate regret, a British Columbia arbitrator has ruled.
“Despite the fact that the termination was overturned in this case, it’s still extremely serious misconduct that could warrant termination in the right circumstances,” says Jessica Fairbairn, a labour and employment lawyer at Harris and Company in Vancouver. “But employers need to make sure they're considering the William Scott factors - and probably need to be giving enhanced thought to a potential provocation argument.”
The worker was hired in 2013 by the BC Liquor Distribution Branch (LDB) to be a warehouse worker in its distribution centre in Kamloops, BC. LDB employees were subject to the standards of conduct for BC public service employees, which required employees to “exhibit the highest standards of conduct.” If they didn’t, they could be subject to “disciplinary action up to and including dismissal.”
The standards of conduct also stated that violence in the workplace was unacceptable and employees were required to report any incident of violence, as well as any situation involving a safety risk or employee intoxication.
On Jan. 2, 2023, the worker had an argument with a co-worker over the fact that a supervisor had assigned certain duties to a junior employee instead of the co-worker. The co-worker was intoxicated, which caused him to be belligerent and obnoxious, annoying the worker.
Workplace conflict
The two employees interacted a short time later and the co-worker said he wanted to find a way to get fired but still be paid. They started to argue again, with the co-worker issuing several insults and saying he didn’t want to be friends anymore. The worker told the co-worker to “Get the f--- away” from him.
The worker walked down an aisle in the distribution centre and the co-worker followed him on a forklift, continuing to argue. The worker told the co-worker to leave him alone, grabbed the keys from the forklift and threw them away so he wouldn’t follow him. The co-worker called the worker a “rat.”
A little later, on their break, they encountered each other in the maintenance office where the co-worker had a locker. The co-worker asked to speak with the worker, but the worker said he didn’t want to talk to “that worthless piece of s---,” and the co-worker insulted him.
After the break, the worker was working in an aisle when the co-worker approached him. They started arguing again, with the worker repeatedly telling the co-worker to leave him alone. The co-worker asked him what he would do if he didn’t leave him alone, to which the worker replied that he would hit him. When the co-worker said that if he did, he would “burn my house, burn my car, and kill my dog,” the worker punched the co-worker three times, causing his mouth to bleed.
The worker immediately reported the incident to two supervisors, saying that he had done “one of the dumbest things he’s ever done in his life,” according to one of the supervisors. He also provided a written statement saying “I deeply regret my actions.”
Investigation into misconduct
The LDB placed the worker on an unpaid suspension while it investigated his “serious misconduct” as well as the actions of the co-worker. It interviewed both the worker and the co-worker. The worker apologized for his actions and said he deeply regretted not reporting the co-worker for being intoxicated at work, explaining that the co-worker was his friend and he didn’t want to be responsible for him getting fired.
The worker also said that when the co-worker made the comment about his dog, it triggered him after the harassment over the course of the day. He acknowledged punching the co-worker twice while he was on a forklift, and then dismounting and punching him in the mouth while standing over him.
The LDB also reviewed surveillance video that captured the assault.
The worker was investigated both as a complainant and a respondent, which is appropriate in situations where multiple people have committed misconduct, says Fairbairn.
“Where somebody is being investigated in two capacities, it can be complex and complicated, but it shows that [the LDB] was really aware from the outset of the balancing of interests that was happening here,” she says. “[The worker] was the subject of harassment or potential harassment, and then also the alleged perpetrator of workplace violence.”
Termination of employment
On July 17, the LDB terminated the worker’s employment, with the termination letter stating that he had “irreparably damaged the fundamental basis of the employment relationship.” The co-worker was also fired.
The union grieved the worker’s termination, arguing that he was “provoked to the point of taking action” by the co-worker’s bullying and harassment. It also pointed to the worker’s 10-year clean disciplinary record and his immediate regret for his actions. It agreed that serious discipline was warranted but asserted that termination was excessive.
The arbitrator noted that the co-worker initiated multiple interactions throughout the shift despite the worker’s repeated requests to be left alone, the worker’s actions occurred in the heat of the moment and weren’t premeditated, and the worker took responsibility for his actions immediately. While acknowledging that provocation doesn’t excuse workplace violence, the arbitrator accepted that it’s a relevant factor in assessing disciplinary measures.
The arbitrator found that the co-worker “engaged in erratic, loud, and aggressive behaviour” and didn’t relent “in his pursuit of engaging in a verbal debate” with the worker over the course of the shift. However, instead of reporting the co-worker, the worker engaged in arguments with him and “inflamed the situation” with insults and bad language – and ultimately uttering a threat of physical violence and acting on it, said the arbitrator.
The arbitrator determined that the worker’s actions were serious, but termination wasn’t an appropriate penalty given the context of the altercation.
Provocation key factor
The provocation by the co-worker was a pivotal factor for the arbitrator, says Fairbairn.
“The arbitrator identified a number of factors that would weigh against termination – such as his clean disciplinary history, his length of service, and his regret - but the decision is set out with her focus as accepting that there was provocation,” she says. “And there were ways the worker could have done better - he probably was being harassed and provoked, but he didn't complain about it or tell his supervisor, he resorted to name calling and using profane language, so the arbitrator wasn’t excusing his behavior.”
“The overall matrix of ongoing tension and pattern of behavior, and the fact that the co-worker initiated almost every single one of the interactions, seemed to be quite compelling for the arbitrator in coming to a conclusion that there was provocation,” adds Fairbairn.
The worker’s immediate regret after the incident and consistent expression of regret during the investigation weighed heavily in the worker’s favour as well, according to Fairbairn.
“It makes sense when we consider what the purpose of progressive discipline is, which is escalating penalties to send the message that continued infractions are going to result in greater and greater discipline and potentially termination,” she says. “Where an employee describes credibly regret or remorse for what they've done, that really tends to weigh in favour of a finding that they have perhaps learned from their mistake and are less likely to engage in that conduct in the future.”
The arbitrator ordered the LDB to reinstate the worker and substituted an eight-month suspension without pay in place of dismissal, noting that the worker now had a “significant penalty on his record” that should cause him to “deeply reflect on his future behaviour and choices in the workplace.”
The outcome of this case should give employers some pause before resorting to termination in incidents of workplace violence, although it still should be treated seriously, says Fairbairn.
“Sometimes where there is an incident of workplace violence, there can be a sense that this must be a terminable offense without doing the analysis on all of the different William Scott factors,” she says. “This is an extremely serious form of workplace violence and there may be circumstances where termination continues to be warranted, but you need to do a contextual analysis under those factors to make sure you can sustain that termination.”
“But the eight-month suspension still sends a very strong message that provocation and other mitigating factors don't exonerate the unacceptable nature of this kind of physical response in the workplace.”
