Termination warranted for attempt to intimidate

The grievor was being disciplined for poor work performance. During the interview, she mentioned an earlier flood and warned the supervisor that fire would be the next accident to befall the plant. Her words were interpreted as a threat and she was fired.

A worker was fired following a confrontation with her supervisor where she warned the supervisor that her wickedness would be punished by divine retribution.

N.J. worked as a machine operator at a plant that produced plastic packaging. She had about 13 years of service when she was fired in February 2012.

There was discipline on N.J.’s record. She had in the past drawn both a one-day suspension and a three-day suspension for quality control lapses. There was also a five-day suspension, which N.J. felt was unjust, that was pending when she was fired.

On Jan. 31, 2012, N.J. and a coworker failed to follow standard quality control procedures and packed 20 boxes of defective product.

At the time of the incident, the coworker had no discipline on her record and therefore was given only a written warning. N.J. on the other hand — because of her disciplinary record — was given a five-day suspension.

N.J. was very angry when she was notified about the suspension and she arranged to meet with the plant manager.

N.J. was upset during the meeting. She expressed her anger at the suspension in a loud voice and said, “the first element to attack is water — the next is fire.” N.J. was also reported to have said during the meeting that God was watching over her.

Police notified

The plant manager was unsettled by the apparent threat. The plant had in fact suffered a significant flood less than one year earlier as a result of a burst water main. The flood caused significant damage to equipment and the plant structure itself. A worker was also trapped in a flooding room and only narrowly escaped.

The plant manager notified police. The police agreed that a threat had been made, but they decided not to charge N.J. unless she made another threat.

The employer’s human resources co-ordinator called N.J. the next day to inform her that she was being suspended pending an investigation into her comments. N.J. reportedly said that there was nothing wrong with her comments. She advised the co-ordinator that God was watching.

N.J. attended a meeting on February 10. The plant manager and the HR co-ordinator attended on behalf of the employer. Two union representatives accompanied N.J.

N.J. was given a letter of termination and told that she was being fired for issuing threats. N.J. was again encouraged to apologize. She refused.

Before the Arbitrator, N.J. insisted that she had done nothing wrong. She said she never had any intention of setting any fire and that she would not harm anyone. N.J. said that she made the comments she made because there was too much wickedness in the plant and that the manager’s disciplinary decisions were wicked and unreasonable. She affirmed that she was a religious person and that she believed that bad things will happen to wicked people.

The union said that the original five-day suspension that caused N.J.’s outburst was too harsh. The union agreed that N.J. probably should not have uttered such imprecations but argued that the characterization of the threat was overstated.

Employer safety obligations

The employer said that Bill 168 amendments to the Occupational Health and Safety Act required employers to be especially vigilant in response to workplace violence and threats of workplace violence.

The employer argued that the case law has shown little tolerance for threats in the workplace and particularly when, as in this case, the grievor has shown no remorse. These factors, together with N.J.’s disciplinary record, supported the case for termination, the employer said.

The Arbitrator agreed.

The plausibility of the threat was not the entire issue. The union asserted that N.J. had no intention of setting any fire.

“That may or may not be so,” the Arbitrator said.

“But it is clear that the comments were made in an attempt to intimidate [the plant manager] into reconsidering the five-day suspension just imposed. Rather than accept the penalty imposed, or simply grieve, the grievor made an explicit and conscious effort to seek out [the plant manager] and to warn her in a loud and aggressive manner that harm would befall her and the plant because [of] her ‘wickedness’ in imposing the five-day suspension.”

It would be one thing, the Arbitrator said, if N.J.’s comments were simply an angry outburst. However, her pointed refusal to apologize, despite numerous opportunities to do so, demonstrated an unwillingness to accept the authority of the plant manager to administer discipline.

Citing City of Kingston, the Arbitrator said that threats may constitute violence for the purposes of the Act and that there need not be evidence of an intent to do harm: “No employee is required, as the receiver of words, to live or work in fear of attack.”

N.J.’s misconduct warranted serious discipline, the Arbitrator said. In light of her record and her failure to show any remorse, the termination was appropriate.

The grievance was dismissed.

Reference: United Steelworkers Union and Plastipak Industries Inc. Norm Jesin — Sole Arbitrator. Courtney Joseph for the Union. Daniel McDonald for the Employer. June 7, 2012. 9 pp.

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