You make the call
This instalment of You Make the Call features a truck driver who was fired after a physical altercation with a co-worker.
Loomis Express, a shipping company, employed Daniel Araia as an “owner operator” in its Southern Alberta region since 2007. As an owner operator, Araia drove a truck carrying freight for Loomis but owned his own truck. He had no discipline on his record.
On Aug. 25, 2017, Araia was loading his truck with freight to deliver at a Loomis warehouse. A warehouse employee was bringing the freight to the truck so Araia could load it onboard. However, at one point the warehouse employee placed Araia’s freight directly on the floor, contrary to regular practice — the freight was supposed to be delivered to the truck on skids, which are removed after the freight is loaded to make room for more loading.
Araia asked the warehouse employee to place his freight on a skid and ensure the path to the truck remained clear, to which the warehouse employee — according to a nearby witness — replied, “I could put it in a certain way but you wouldn’t f---ing like it.” Another employee reported that the warehouse employee “lost his cool,” started gesticulating and making comments about Araia’s language skills and race. Araia walked away, but the warehouse employee continued to mock him.
Araia moved closer to the warehouse employee and asked him what he said. The warehouse employee responded by moving closer until the two men were face-to-face. They began speaking in loud voices and the brim of the baseball cap that the warehouse employee was wearing kept butting Araia in his forehead. The warehouse employee pushed or hit Araia’s shoulder, and this set off an exchange of blows between them. After they struck each other a few times, another employee broke up the fight.
Immediately after the incident, Araia reported it to the operations supervisor, who saw that his face was bruised and he was angry. Araia said the warehouse employee had fought with him and had threatened to “break his face.” The supervisor then spoke with the warehouse employee, who to him seemed calm and told him the altercation was a “mutual thing.”
Both employees were held out of service while Loomis investigated. The company interviewed several employees and Araia said the warehouse employee was “punking” him and talking down to him, making fun of his English. The warehouse employee admitted he was stacking the skids and putting Araia’s freight on the ground, but Araia and other owner operators were talking down to him.
Another employee who witnessed the altercation said he didn’t report it at the time because it was something that was dealt with in the day-to-day operations.
Loomis completed the investigation and decided to terminate both employees for breaching the company’s workplace violence policy. Araia’s letter of termination stated that he had committed an act of workplace violence as defined by the company’s policy. The policy, on which all employees were trained, stated that physical attacks and verbal abuse constituted workplace violence and would not be tolerated.
The union grieved the termination as excessive.
You Make the Call
Was termination an excessive amount of discipline?
OR
Was the altercation a serious enough breach of the workplace violence policy to warrant termination?
If you said termination was excessive, you’re right. The arbitrator found Loomis’ workplace violence policy and the way the company disseminated and enforced it was admirable, but there were mitigating circumstances to consider that were in Araia’s favour.
The arbitrator found that the warehouse employee clearly provoked the altercation by insulting and mocking Araia and then placing his freight on the ground to impede his loading. The insults along with butting his cap brim against Araia’s forehead was “provocative workplace violence and could serve no other purpose than an attempt to provoke (Araia),” the arbitrator said.
However, though Araia initially walked away from the taunts, he changed his mind and went face-to-face with his tormenter, which then led to the physical altercation — despite the fact he was aware of the workplace violence policy and was not in any danger that could support an argument of self-defence. The fact that he was provoked did not completely excuse his behaviour, said the arbitrator.
The arbitrator noted that Araia had 10 years of discipline-free service and the altercation was an isolated incident. Given these factors, along with the fact he was provoked and he reported the incident immediately, the arbitrator determined that a lesser penalty than dismissal was warranted.
Loomis was ordered to reinstate Araia to his employment with a 30-day suspension on his record and compensation for any lost pay since the end of the suspension period.
For more information see:
• Loomis Express and Unifor, Local 4050 (Araia), Re, 2018 CarswellAlta 2665 (Alta. Arb.).
