No need for progressive discipline if misconduct serious, employee doesn’t show remorse, says arbitrator
An arbitrator has upheld the dismissal of an Alberta worker who started a physical altercation while working on a production line at a meat-packing plant.
Aly Trawere, 26, worked at the gutting table at XL Foods’ Lakeside Packers plant in Brooks, Alta. He worked alongside several other employees removing the intestines and internal organs from beef carcasses before the meat was inspected by a government inspector.
The work involved the use of sharp knives and a moving platform, so XL had a strict policy against fighting in the workplace due to the potential danger. Though the company used a progressive discipline approach — including written warnings — violations of the fighting policy could result in “discipline with the possibility of termination.”
Trawere had received a written warning for tardiness in March 2011 and another for insubordination in May 2011.
In 2011, several of Trawere’s co-workers complained to the supervisor that Trawere was often late in coming back from breaks, which added to their workloads. On June 2, 2011, the supervisor checked out the table following a break and saw Trawere wasn’t there.
Trawere soon arrived and the supervisor told him he was late. The supervisor turned to the other employees and asked them if Trawere was late, to which several replied yes, though Trawere claimed only one co-worker, Rollie Ray Ray, said something.
Trawere told the supervisor he wasn’t supposed to ask everyone that and he should be encouraging the team to work together. The supervisor told Trawere to get back to work and left.
Worker reacted angrily to lateness accusations
After the supervisor left, Trawere confronted Ray Ray and told him to “shut up” while giving him a shove. Ray Ray claimed Trawere told him not to “stab my back.”
Another employee, Sergio Alvarez, claimed Trawere told him to shut up and pushed him as well. Alvarez pushed him away and Trawere grabbed Alvarez’s neck and scratched his mouth with a finger.
When the other workers told them to stop, they did and Trawere jumped down from the platform, took off his gear and, according to Alvarez, challenged him to a fight outside. Alvarez refused.
The supervisor heard yelling from the altercation and returned to the gutting table. He spoke to Alvarez, who explained what had happened. The supervisor also observed red marks on Alvarez’s neck where he claimed Trawere had grabbed him — Trawere denied anything happened. The supervisor told them to resolve their issues so he wouldn’t have to report a fight, which they knew would result in dismissal. Trawere and Ray Ray made up, but Alvarez refused to speak to Trawere.
As a result, and because other employees had witnessed the altercation, the supervisor sent Trawere to the HR department. The other workers were also asked about the event and they all said Trawere had started the fight.
Alvarez was sent back to work without discipline but Trawere was told to go home. The next day, Trawere’s employment was terminated for violating XL’s anti-fighting policy and creating a dangerous situation at the gutting table.
The union grieved the dismissal, arguing dismissal was too harsh and XL didn’t follow the collective agreement’s progressive discipline policy.
The arbitrator noted that physical and verbal abuse was unacceptable at the workplace or the community overall, but sometimes the motivation behind it can be a consideration in determining the proper penalty.
However, the arbitrator agreed with XL that the environment where Trawere worked was a dangerous place to start a physical altercation. Workers have knives, the surfaces are raised and slippery, production is fast-paced and employees are moving along the platform in close quarters.
Though Trawere denied starting the fight, all the other employees who were present reported he did. It was also apparent that before complaining to the supervisor, the other employees had tried to talk to Trawere about his lateness but he had brushed them off. Rather than change his behaviour, he argued for solidarity and not stabbing each other in the back, which led to his angry exchange with Ray Ray and Alvarez.
The arbitrator found Trawere was upset and embarrassed by the supervisor’s warning, along with the agreement of his co-workers that he was in the wrong. Though it wasn’t clear whether Trawere invited Alvarez outside to fight, there was little doubt he grabbed Alvarez by the neck and scratched his face, as all the witnesses consistently reported this happened.
Though Alvarez and, to a lesser extent, Ray Ray were also involved in the altercation, Trawere attacked them and they didn’t escalate the situation, found the arbitrator. Therefore, they weren’t deserving of discipline, while Trawere was.
Given the danger of the environment, the seriousness with which XL considered fighting and the fact Trawere didn’t make any attempt to apologize but rather continued to downplay the incident, the company had just cause to skip the progressive discipline process and terminate Trawere’s employment, said the arbitrator.
For more information see:
•XL Foods (Lakeside Packers) and UFCW-Can, Local 401 (Trawere), Re, 2012 CarswellAlta 1877 (Alta. Arb. Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information. You can also read his weekly blog on employment law issues on Canadian HR Reporter’s website, www.hrreporter.com.