The grievor had a reputation for aggression and unpredictability, and a record of discipline to match. When the employer alleged that one loud, violent confrontation was the culminating incident, her long service could not save her.
A deli clerk with 30 years of service was fired following an incident of workplace harassment. The clerk’s outburst was a culminating incident that prompted a consideration of her conduct over the previous 10 months.
J.D. was employed serving customers in the deli department of a grocery store where she sliced prepared meats and assembled various ready-to-eat food items. She had been a full and part-time employee for 30 years when she was fired in 2010.
J.D. received a three-day suspension in November 2009 for violating the employer’s polices on safe food preparation and employee purchases. J.D. accomplished this double violation when she was observed to reach into a salad she was preparing with an ungloved hand and eat from the bowl, thus committing theft and violating the company’s food preparation guidelines at the same time.
J.D. had received prior warnings about breaches of hygiene and food preparation policies.
Following an incident on August 6, 2010, J.D. was suspended indefinitely pending an investigation into allegations of workplace harassment and the use of profanity at work.
One of J.D.’s colleagues in the deli testified that J.D. began to run her down and berate her after she told J.D. about her success in securing another part-time job. It was alleged that J.D. hectored and belittled her co-worker in a loud and demeaning manner for about 45 minutes.
When J.D.’s colleague could take no more, she told the supervisor that she was taking a break. The colleague’s exit prompted J.D. to fly into a rage.
Flung a padlock
Using expletives and yelling loud enough to be heard by customers in the store, J.D. said, “I am a f——— 31-year employee. We should have our f——— breaks first, who does she think she is.” J.D. then violently flung a padlock against the wall, which ricocheted throughout the deli. J.D. continued to slam doors and objects in the deli such that a customer in the store saw fit to alert an employee that a manager should be called.
J.D. was suspended.
Four days later a stock clerk at the store came forward with allegations that J.D. had also been abusive towards him on a recent occasion, engaging in ethnic slurs and insults. The clerk asserted that the deli manager was a witness to the incident.
The next day, the assistant manager called the deli manager to clarify certain details about the original incident. The manager also inquired about a rumour circulating that J.D. was making unspecified threats to the effect that “someone would pay” if she was terminated. The manager did not deny that J.D. had made such remarks.
J.D. was fired. The union grieved.
J.D. had a “deplorable” record of discipline and the termination was warranted, the employer said. J.D.’s conduct on August 6 amounted to bullying and unprovoked harassment. Her violent behaviour and loud profanities were cause for alarm for at least one customer. J.D. directed ethnic slurs at a fellow employee and uttered a general threat, the employer said. Her behaviour was unacceptable and a contravention of workplace policies on violence prevention. J.D.’s continued denials and unwillingness to accept responsibility for her actions had caused the employer to lose faith in her integrity and truthfulness.
The union said that J.D. was not subject to any last chance agreement and that termination was not mandated. J.D. was a long-service employee and a single mother with two children. J.D. owned up to her use of profanities and had taken an anger management course. With respect to the other allegations, the union suggested that the employer had not made its case.
The Arbitrator disagreed.
While the deli manager would affirm that the incidents that were alleged did take place, she was unable or unwilling to confirm the details. However, because she had acknowledged that she was reluctant to become involved, she was to be considered a hostile witness, the Arbitrator said. In this case, the testimony of J.D.’s accusers was to be preferred.
“[T]here are three instances of misconduct by [J.D.] that, in and of themselves, warrant a disciplinary response from the Employer,” the Arbitrator said.
Citing J.D.’s use of ethnic slurs against another employee, her violent and abusive outburst in the deli and her subsequent threat, the Arbitrator ruled that, “These three instances of misconduct involving harassment and violence in the workplace, together, represent a culminating incident.”
The Arbitrator could not find sufficient cause to modify the penalty. J.D. had not apologized nor had she acknowledged her wrongdoing. Neither was her violent outburst an isolated occurrence. Her abusive manner and penchant for throwing things meant that others were afraid to work with her. Moreover, despite warnings about the need to refrain from eating product and to comply with hygiene and food preparation policies, J.D. continued to help herself to bits of food and ignore preparation guidelines.
“In short, [J.D.] cannot be seen to be a good candidate for rehabilitation. Should there be reason to believe the employment relationship remains viable and that there is a rational basis for mitigating the penalty of discharge imposed by the Employer, then the onus to demonstrate this is on [J.D.].”
“This has not been shown,” the Arbitrator said.
The discharge was upheld.
Reference: Metro Ontario Inc. and United Food and Commercial Workers, Locals 175 & 633. David R. Williamson — Sole Arbitrator. Charles R. Robertson for the Employer. Natalie Wiley for the Union. June 25, 2011. 16 pp.