Very restrained contact between two employees, even in the scenario of a heated exchange, does not translate into an act of aggression or violence.
A warehouse worker was fired following allegations that he had pushed a co-worker and spat in his face. The union grieved, arguing that no discipline was warranted for the incident.
Employed as a warehouse worker since September 2008, F.J. became involved in an incident at the workplace in May 2010 with G.R.
Testimony from the antagonists diverged on key aspects of the incident. Witness testimony also reflected different perspectives.
G.R. and F.J. were working their respective lanes in the warehouse unloading boxes from a conveyor belt. G.R. moved to a lane near F.J. in order to help a temporary employee who was having difficulty. Two other workers joined G.R. in helping the temporary worker, although it was their understanding that F.J. was the one who was supposed to be assisting the temporary worker.
G.R. testified that F.J. stared at the three workers who were assisting the temporary worker. G.R. said that F.J. continued to stare after they finished. According to G.R., F.J. stood — not working — with one foot on the conveyor and his hands resting on his leg while staring “aggressively.”
Returning to his station, G.R. said that he stopped at the foot of F.J.’s lane and inquired, “what is it?” and “why are you staring at me?”
G.R. said F.J. responded, “you came over here” and “you are the one with the problem.”
The situation escalated. The workers stood at close quarters pointing at each other.
G.R. said that F.J. then spat in his face and touched his chest.
Restrained by co-workers
G.R. acknowledged shoving back with both hands, pushing F.J. backwards before being restrained by colleagues.
F.J. testified that G.R. was the aggressor. He denied the allegation that he was not helping the temporary worker. He said that G.R. came to the end of his lane and accused him of staring. F.J. denied the accusation, which prompted a threat from G.R. to the effect that he was going “kick [F.J.’s] __” According to F.J., G.R. shoved him and then was restrained by co-workers.
Both workers were fired.
Both workers had a stake in the outcome, the Arbitrator said. However, the issue to be determined was not which story was preferable but, rather, whether or not the evidence supported the charge that F.J. had engaged in the misconduct as alleged and whether or not the alleged conduct amounted to violence in the workplace.
The employer said that internal inconsistencies in F.J.’s story called into question his truthfulness and the value of his testimony.
Irrespective of the reliability of F.J.’s testimony on peripheral matters, the key elements in this case could be established with reference to the testimony of the four witnesses, the Arbitrator said.
F.J. was not being subjected to discipline for failing to work hard or to assist a temporary employee. Neither was he fired for staring at G.R.
“The real issue, whatever else may have happened during the conversation is whether [F.J.] touched and spit on G.R.”
All four witnesses were standing in different places and at different angles to the principals, the Arbitrator said. However, their testimony was consistent in that none of them actually saw F.J. spit at G.R. as G.R. described it.
Statements differed from testimony
Testimony concerning the immediate aftermath — where it was alleged by some of the witnesses that G.R. told them that F.J. had spat on him — was not reflected in the written statements they gave after the incident.
The Arbitrator did not accept that F.J. had spat on G.R.
Testimony differed on whether or not F.J. “touched” G.R. F.J. said his hands were at his side the whole time.
G.R. said that F.J. was pointing a finger in his face when he felt something, like a finger, “touch” his chest.
Three of the witnesses also saw F.J. touch G.R. on the chest.
It didn’t matter.
“I observe there are very few words that describe a physical contact between two people more benign than the word ‘touch,’” the Arbitrator said.
“Frankly, it is a stretch to conclude that one employee touching another on the chest amounts to an ‘act of aggression or violence.’ Of course, this conclusion may be altered if the touching is accompanied by statements of a violent nature. In the present case, the specific statements of [F.J] that [G.R.] actually recalled, as outlined earlier, do not fall in that category. If [F.J.] did touch [G.R.], it was unwise. By all accounts, [G.R.] was pretty annoyed with [F.J.] before he went to talk to him. However, that does not turn [F.J.’s] conduct into an ‘act of aggression or violence.’ I find that the evidence does not support the conclusion that the Grievor engaged in conduct of an aggressive or violent nature justifying a disciplinary response.”
The grievance was upheld.
Reference: Winners Merchants Inc. and Workers United Ontario Council. Jasbir Parmar — Sole Arbitrator. Robert Little for the Employer and Andrea Bowker for the Union. February 17, 2011. 12 pp.