Courier truck driver fired in Edmonton after getting into fight with coworker

‘Momentary aberration’ caused aggression: Arbitrator

After a dispute turned into a fight on a loading dock between a truck driver and another worker, the pair were both terminated.
On Aug. 25, 2017, the worker, an owner-operator with Loomis Express in Edmonton, pulled up to the company’s warehouse to accept a delivery of freight. 
The normal practice was for those delivering freight to place the object onto a skid and then move away so the driver could put it into a truck. But a warehouse employee delivered freight for the worker without skids on that day. 
The worker asked for it to be placed onto a skid, but the warehouse employee objected and he yelled at the worker. “I could put it in a certain way but you wouldn’t fucking like it.”
The worker quickly got angry and approached the warehouse employee. The pair began to yell at each other and the warehouse employee pushed or hit the worker. Both workers then commenced a brief fight that came to blows. Another employee then broke up the scuffle.
The worker immediately went to the, operations supervisor, to report the incident. He told the supervisor that the warehouse employee threatened to “break his face” and the worker had bruising on his face while he spoke with the supervisor. 
Loomis’ operations manager for southern Alberta then investigated the incident. 
On Sept. 5, the operations manager decided to dismiss both employees. “It is the company’s position that you have committed an act of workplace violence. Workplace violence cannot and will not be tolerated. As such, your business agreement is being terminated for cause effective immediately,” he said in a letter to the worker.
The union, Unifor, Local 4050, grieved the decision and argued the worker was not the original aggressor and his actions constituted self-defence. 
As well, another owner-operator, testified that the previous week before the incident, the warehouse employee mocked the worker’s English accent and he also committed a racist tirade against the worker.
Arbitrator Richard Hornung upheld the grievance and ordered it to be substituted for a 30-day suspension and for the worker to be made whole. “I am of the view that dismissal of (the worker) was too severe a penalty given (his) past record; good performance and fully considering the role he played in the same. I have also taken into consideration the fact that (the worker) followed company policy in immediately seeking out the supervisor after the fight to report the incident as required.”
The worker ’s previous record with the company was looked upon favourably by Hornung in his decision.
“(The worker) was a good employee with 10 years of service. There was no prior record nor any discipline assessed against him or any problem that he was involved in during that period. The actual physical violence was an isolated incident in the employment history of (the worker),” said Hornung. 
“As set out above, I have concluded that (he) was provoked by the warehouse employee. His response in the altercation was a momentary aberration due to strong emotional impulses and was not pre-mediated. (The worker) was a good employee.”
And the brief fight was almost completely the fault of the warehouse employee, according to the arbitrator.
“It is apparent that the warehouse employee was guilty of workplace violence in three notable ways prior to blows being exchanged on the day in question: he threatened to ‘break (the worker ’s) face’; he verbally abused (the worker) by swearing at him, insulting his language and using condescending language; and, he purposely butted (the worker’s) forehead with the brim of his cap and then struck him on the shoulder which ultimately ignited the altercation. Furthermore, the abusive conduct and language which the warehouse employee visited on (the worker), in the previous incident described by the other owner-operator, self-evidently constituted provocative workplace violence and could serve no other purpose than an attempt to provoke (the worker),” said Hornung.
However, the self-defence argument was rejected by Hornung. 
“(the worker)walked toward the warehouse employee and engaged him in a discussion which was aggressive on both sides. Plus, he chose not to walk away from the warehouse employee as he had just the week before. Although he was provoked, that fact does not, in and of itself, exonerate or completely excuse (the worker’s) conduct” said Hornung
Reference: Loomis Express and Unifor, Local 4050. Richard Hornung — arbitrator. Flora Poon for the employer. Oct. 24, 2018. 2018 CarswellAlta 2665

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