‘Disorderly conduct’ too broad for automatic termination under collective agreement
A shouting match and physical altercation at work were considered serious misconduct but didn’t qualify for dismissal under a collective agreement provision for disorderly conduct, the Ontario Arbitration Board has ruled.
Ted Lafleur, 50, worked for 16 years at a paper mill in Thorold, Ont., which manufactured board liners for drywall. Lafleur’s job involved cutting samples out of reels of paper to test their consistency, with the help of another employee.
For many years, the mill was dominated by male workers with many years of service. As a result, they were used to handling disputes among themselves — including settling arguments in the parking lot. A collective agreement outlined penalties for workplace misconduct, such as suspensions, but management rarely got involved.
Lafleur often worked with Marc Robillard who had been at the mill for a similar length of time. In the past, they had disputes that led to brief wrestling matches in the workplace, but these were fairly common at the plant and tolerated by the company.
In 2006, Georgia Pacific Canada bought the mill and implemented a new code of conduct that prohibited “bullying, violence, threats, intimidation and other disruptive behaviour in the workplace” and required employees who witnessed such behaviour to report it.
All employees were trained on the code of conduct and it was posted in the mill. The code was also incorporated into “mill rules” in the collective agreement, which included a list of behaviours that were cause for discharge, including disorderly conduct.
On Nov. 10, 2009, Lafleur was working with Robillard cutting test pieces of paper. The two men didn’t speak to each other. However, several times during the shift, Robillard went missing and Lafleur had to cut samples on his own. Lafleur thought Robillard’s behaviour was odd and passive aggressive so he brought it to his supervisor’s attention. The supervisor heard Lafleur’s concerns but didn’t take any further action.
Near the end of the shift, Lafleur began cutting a reel of paper on his own but when Robillard showed up, he flipped the heavy sheet and it hit Lafleur on his hardhat and caused him to stagger. Initially, Lafleur didn’t say anything but he became angry.
The two were scheduled to work together over the next several days and Lafleur wanted to clear the air. So, after the final sample was cut, he approached Robillard and asked what happened.
Lafleur claimed Robillard responded by shoving him in the chest and yelling at him, threatening to “beat you in the head.” The two began yelling at each other and Lafleur claimed he pushed back at Robillard with his chest because Robillard was in his “personal space.” Lafleur then challenged Robillard to a fight outside.
Robillard reported the incident to the HR manager a few minutes later and she began an investigation. She determined Lafleur showed no remorse for his actions and also learned Lafleur had reported Robillard’s earlier behaviour to his supervisor.
Georgia Pacific decided Lafleur should be terminated for his misconduct because his behaviour fell under the definition of disorderly conduct in the collective agreement’s reasons for discharge. The company also felt since Lafleur showed no remorse, his attitude wouldn’t change and it had to set an example that it took threats and violence in the workplace seriously. Robillard was not disciplined.
Definition of misconduct too broad: Board
While the Ontario Arbitration Board agreed Lafleur’s misconduct could be considered disorderly, it found the category of disorderly conduct was broad and discharge wasn’t necessarily the only form of punishment available.
The collective agreement also provided for a board of arbitration to modify penalties to “what it deems just and equitable” and limiting one type of discipline for a broadly defined form of misconduct would run contrary to that provision, noted the board.
The list of causes for discharge in the mill rules was “for informational purposes only,” found the board, and served as notice to employees that discharge was one of the possible outcomes, but not the only one. This made the rules more consistent with the company’s code of conduct, which warned employees of “disciplinary action, up to and including termination,” implying there could be less harsh discipline than discharge.
“One would think if the parties had agreed to the specific penalty of discharge for the violation of any of those rules, at any level of culpability, the company would have made that abundantly clear to the employees in the training of employees and posted notices, which the company has not done,” said the board.
The list of infractions in the collective agreement’s mill rules did not provide for discharge as the only form of discipline, leaving it free to consider mitigating factors, said the board.
Since Lafleur was a long-time employee with no previous discipline issues, his supervisor did nothing about his earlier concerns about Robillard and Robillard contributed to the situation through his actions, Lafleur should be reinstated with an 11-month unpaid suspension, ruled the board. That was the time between his firing and Oct. 4, 2010, when he accepted responsibility for his misconduct in front of the board.
Georgia Pacific was ordered to pay Lafleur’s salary and benefits from Oct. 4, 2010, up until his reinstatement.
For more information see:
•Georgia Pacific Canada Inc. v. C.E.P., Local 192, 2011 CarswellOnt 2463 (Ont. Arb. Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.