Union calls death threat “mild insubordination” arbitration.
A group of women assault a co-worker in the company parking lot; an angry employee stalks his supervisor, following him home after work. Unfortunately, unsafe conditions in the workplace sometimes arise from the people employed there, not from dangerous substances or machinery.
When incidents like these happen management is faced with the task of having to decide the fate of an employee whose temper is out of control and whose violent behavior threatens the safety of others.
In the words of one arbitrator, “As the incidence of violence increases, those in our society entrusted with the preservation of its tranquility must, where the evidence justifies it, support measures aimed at preserving tranquility.”
As the following arbitration shows, an employer that is vigilant in maintaining reasonable standards and expectations may stand a better chance of gaining an arbitrator’s support for tough measures than one whose standards are not as rigourously stated or enforced.
Death threats
In this case, a man was discharged from his job as a finisher at an office furniture manufacturing company after getting into an altercation with his supervisor, and threatening his life by allegedly saying, “I’ll blow your
f---ing head off.” The employee grieved the dismissal and denied even making the threat, while the union maintained that the dialogue showed only “mild insubordination.”
The arbitrator began his ruling by explaining the context of the events.
Early on the morning before the alleged threat, the supervisor had drawn a quality control deficiency to the attention of the griever, who had made “an angry agitated, but non-threatening gesture with a piece of product in response.”
The next day, the supervisor had occasion to speak to the griever’s work-mate about a parking space misunderstanding, which was settled satisfactorily.
However, the griever spoke up loudly to say that if his work-mate was not going to park in the space under discussion, he would do so. Then added, “and if you move my car I’ll blow your f---ing car up and blow your f---ing head off.”
The supervisor asked if he was being threatened and in response, the grievor repeated his words and rushed towards the supervisor, stopping only when he apparently noticed a fourth employee witnessing the scene. The supervisor told him he would call security and a short time later, the griever, under suspension, was escorted off the premises. The next day his employment was terminated.
The hearing
At the arbitration hearing, the arbitrator described the griever’s evidence respecting the two incidents as “wrigglesome and slippery.” The grievor agreed that the supervisor seemed fearful he would be hit, but denied making the threats, although he agreed he might have used “some curse words.”
At first, the griever denied his earlier testimony that he had knowingly been harassing his supervisor for several months; then he retracted that denial. In fact, he stated he did not think he had done anything wrong.
In deciding the case, the arbitrator drew attention to the fact that “some employers expect a higher standard of discipline than do others.” He added, “So it is the standards held to be appropriate for this employer that must supply the guiding light in this case.”
Looking at the history
In addition, he noted another case four years earlier involving the two as witnesses. Not only did this case assist in “ascertaining what are the standards of discipline prevalent within the company and thus reasonably within the knowledge of the employees,” it also helped to determine the merit of each man as a credible witness.
The arbitrator observed that the griever in this case had been “sparse with the truth” when he was a witness in the earlier hearing and that the preponderance of probabilities was on the side of the employer’s version of the sequence of events in the case at hand.
He was also satisfied that due process “was complied with respecting the subsequent investigation of the griever.”
When the arbitrator went on to assess whether discharging the griever was appropriate, he examined the standard of discipline found reasonable by four other arbitrators who had ruled on cases dealing with the same employer and the unions representing its employees over the years from 1988 to 2000. In all the cases, even back to 1988 when standards of behaviour were not so high, arbitrators upheld the discipline the employer had meted out.
Finally, when he considered the issue of substitution of penalty, the arbitrator attested to the importance of considering the facts and circumstances of each individual case and of weighing the need to substitute a lessor penalty than discharge.
In making his finding, the arbitrator listed the factors he would consider: the possibility of rehabilitation; whether reinstatement might be disruptive; the gravity of the misconduct; any mitigating factors; the frequency of the misconduct; whether procedural due process had been followed; the employer’s degree of tolerance for misconduct; the griever’s demeanour and attitude; whether his action was pre-meditated or impulsive; and whether principles of progressive discipline were relevant.
The arbitrator concluded that the griever failed on all the criteria pertaining to him and his behaviour, that the employer had condoned little misconduct in the past and that this was not a progressive discipline case.
In dismissing the grievance the arbitrator noted that he was motivated by the seriousness of the misconduct, the supervisor’s legitimate fear of the griever and the need for a clear message regarding deterrence.
For more information: Ontario Store Fixtures, Wood Division, and the United Steelworkers of America, Local 5338, Ontario Arbitration Board, David Murray — Sole Arbitrator, April 16, 2001.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext.2617 or [email protected].
