Actions warranted punishment with progressive discipline
An Ontario worker who was suspended for a safety violation and talking back to his manager should have received a written warning instead, an arbitrator has ruled.
Cozlett Senior worked as a material handler for Multy Home, a manufacturer of outdoor living and flooring products based in Toronto, since 2005.
On Dec. 10, 2020, the plant manager was surveying the plant to prepare for a tour by Multy Home’s president when he saw Senior operating a “walkie” — a machine similar to a small forklift. The plant manager made eye contact with Senior, who backed the walkie down an aisle to drop off a pallet of product. After depositing the pallet, Senior turned back up the aisle but didn’t honk his horn as was required by the company’s safety procedures.
The plant manager walked down the aisle and stopped to make sure Senior could see him. Senior continued to drive the walkie towards him without slowing down or trying to warn him. When the walkie was almost upon him, the plant manager stepped aside to avoid being hit.
Senior continued by, picked up a new pallet, and started back down the aisle. The plant manager told him to stop and said that he didn’t honk, to which Senior replied, “What the f--- are you talking about?” and continued driving. The plant manager followed until Senior stopped and approached him. The plant manager said that Senior hadn’t honked and almost hit him. Senior asked what proof or witnesses there were and said, “It is your word against mine.”
They continued to argue until Senior said, “If I wanted to run you over, I would have, I would not miss.” The plant manager asked if that was a threat and advised him to be more cautious.
The plant manager reported the incident to HR. Senior told HR that he honked his horn and saw the plant manager the whole time. He said that the plant manager was upset at him.
Another employee reported that during their conversation he saw that the pallet had been dropped to the floor and the forks of the walkie removed.
The company suspended Senior for one day for acting “in a generally unsafe manner” and insubordination. The union grieved, arguing that there was no evidence Senior violated a company policy and the company didn’t fully investigate. It also claimed that in the alternative, the discipline was too severe for someone with 15 years of service and a clear disciplinary record.
Senior acknowledged that he didn’t honk his horn on his way back up the aisle but had done so about 20 times in the previous few minutes. He also admitted that he hadn’t acknowledged the plant manager until he chased after him.
The arbitrator found that the plant manager was busy getting the plant ready for a visit from the president, so it was unlikely he would take the time to make a false allegation of misconduct. In addition, it was probable that Senior didn’t stop as he passed the plant manager, since he admitted to not acknowledging him, said the arbitrator.
The arbitrator also found that the other employee’s observation that the pallet had been dropped and the walkie’s fork removed meant that it was likely that Senior didn’t stop until he had dropped off the pallet. However, it was unlikely that he swore or said, “It’s your word against mine,” since it would have been out of proportion to the manager’s comment about the horn, said the arbitrator.
The arbitrator determined that Senior’s misconduct warranted progressive discipline under the collective agreement, but there was no evidence of previous discipline or coaching. As a result, Multy Home was ordered to rescind the suspension and substitute a written warning in its place.
Reference: Multy Home and LIUNA, Local 183. Diane Gee — arbitrator. Michael Horvat for employer. Amanda Laird for employee. May 7, 2021. 2021 CarswellOnt 6716