You make the call
This instalment of You Make the Call features a worker who was suspended after an altercation with co-workers over lunchroom noise.
Ut Nguyen worked for Mobile Climate Control (MCC), a Concord, Ont.-based manufacturer of heating, cooling, ventilation, air conditioning, and refrigeration systems for transit vehicles, and was hired in 2010 with no discipline on her record since then. MCC had a workplace violence and harassment policy that was provided to employees and posted in the plant.
MCC’s employees had assigned lunch breaks that were staggered because the lunchroom had limited capacity. In April 2013, the supervisor held a meeting with Nguyen and a few other employees to refresh their start, break, and quitting times, as well as their proper lunchtime slot so avoid crowding in the lunchroom — there had been some concern of them interrupting the lunchtime of the earlier lunch period.
On Aug. 10, 2016, employees on the 12 p.m. to 12:30 p.m. slot were eating lunch when Nguyen and a few other employees from the next lunch period came into the room a few minutes after 12 p.m. According to a lead hand eating lunch, Caovan Ly, the employees who came in “started eating, using the microwave, talking and laughing.” Since it wasn’t normal practice for employees to come to the lunchroom before scheduled and he was bothered by how noisy they were, Ly told the supervisor about it. The supervisor advised Nguyen and other employees not to go to the lunchroom early and heat up their foods. Nguyen asked if Ly had told him about the incident, but the supervisor said no in order to keep them clear of each other.
The next day, when Ly arrived at work he went to the lunchroom to put his lunch in the refrigerator. He claimed that when he opened the door, Nguyen came up to him and started yelling in Vietnamese, “You always give a hard time to Vietnamese people, not Indian.” Ly and Nguyen were both of Vietnamese descent and had no interaction at work other than occasionally saying hello.
Ly reported the incident to the supervisor and an HR representative, saying Nguyen had said “kick ass of Indian people and give Vietnamese people a hard time.” English wasn’t his first language, and he had meant “kiss,” not “kick.” The supervisor noted Ly seemed “very upset and kind of scared.”
Following the meeting, the supervisor called Nguyen to his office to discuss the altercation. Nguyen denied Ly’s accusations and became aggressive, saying “Who told you?” The supervisor didn’t tell her who made the complaint, but told her it was in the lunchroom at the beginning of the shift. According to the supervisor, Nguyen confronted him and came towards him “like a person who is ready to fight.” He preferred Ly’s version of events as he knew Nguyen was “a loud person” and decided to suspend her for five days and give her a discipline report.
Nguyen grieved her suspension, calling it unjust as she was unfairly singled out from other employees who went to the lunchroom early to warm their food as other people did it. She acknowledged that if someone used the words she was accused of using, she would find them offensive, but denied saying them, acting aggressively in the meeting with the supervisor, or receiving training about lunch break times. She also said the only discrimination and harassment training she received was “some people” who spoke to employees for a short session a few years earlier.
You Make the Call
Was the suspension warranted?
OR
Was the suspension unfair?
If you said the suspension was unfair, you're right. The arbitrator noted that while there were some inconsistencies in Ly’s account of what Nguyen said to him on the morning of Aug. 11, 2016, they were consistent in nature. The arbitrator also found Nguyen was consistent in her account and believed her behaviour didn’t deserve a suspension. However, there was also no basis in either account for a motive for Ly to falsely accuse Nguyen of making racist remarks. They had little interaction at work and didn’t have any history. Therefore, it was more likely that Nguyen made the remarks to Ly in the lunchroom about his bias against Vietnamese people at work and in favour of Indian people, said the arbitrator.
The arbitrator found that MCC’s investigation into the incident was flawed, in that it didn’t consult any potential witnesses and didn’t factor in Nguyen’s clean disciplinary record. There were vague references to previous complaints about her but nothing concrete was presented to Nguyen or referred to in the discipline report. In addition, Nguyen had no opportunity to take responsibility for her actions or defend herself, said the arbitrator.
The arbitrator also found there was uncertainty and no real evidence of the extent of training Nguyen and her co-workers had received on the company’s workplace violence and harassment policy, so Nguyen’s claim of limited training was believable.
The arbitrator determined that a five-day suspension was unwarranted due to MCC’s failure to properly investigate the incident, a lack of proper training on the company’s workplace violence and harassment policy, and the failure of MCC to follow progressive discipline. MCC was ordered to wipe the suspension from Nguyen’s record, substitute a written warning, and compensate her for any lost wages from her suspension.
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