Video captures Ontario worker's violent misconduct

Physical assault, verbal threats against co-worker disproportionate to disagreement between them

Video captures Ontario worker's violent misconduct

An Ontario worker recently discovered that the proliferation of technology can make it a lot easier to prove an employee’s misconduct and more difficult to deny it.

“This is kind of interesting from a procedural and tactical perspective now, with everybody having cellphones and there are cameras and monitors in workplaces,” says Lorenzo Lisi, partner and leader of the Workplace Law Group at Aird & Berlis in Toronto. “This is more common these days where somebody says, ‘I don't really need [a witness], I have the evidence on video or on somebody's cellphone.’ I'm sure that helps with the investigation.”

The worker was employed as a porter at Michael Garron Hospital in Toronto since October 2018. He had one three-day suspension on his disciplinary record.

On Aug. 4, 2020, the worker was asked to transport a patient to a hospital room where the worker’s father had passed away a year earlier. He became emotional, so afterwards he went outside to smoke a cigarette in his car. A co-worker approached him to ask for a cigarette, but the worker said no as he didn’t want the co-worker or his companion to see him crying.

A short time later, the co-worker called the worker and left a voicemail taking exception to the way the worker had spoken to him. The message was vulgar, derogatory, misogynistic, and threatening.

Conflict continued the next day

The next day, the worker passed the co-worker in a hallway. Video surveillance footage showed a verbal exchange and the co-worker turning to make a remark as he approached an elevator. The worker turned around and followed him to the elevator, pressing a button to stop the doors from closing and stepping partly inside. Other employees nearby heard the commotion.

A short time later, the worker was driving his car into the parking lot, saw the co-worker, and swerved his car towards him. He then approached the co-worker and another employee reported that they both put their hands up with some contact, and then the worker stood in a “fight position” with his hands up. The co-worker started walking away, but the worker pursued him.

The worker blocked the co-worker from exiting the parking lot ramp and struck him with one hand. The co-worker turned away and the worker returned to his car. However, when the co-worker walked by again, he got out and blocked him from going up the ramp again. This continued multiple times until the co-worker was finally able to leave, although the worker continued to yell and point as he walked down the street. Video surveillance cameras also recorded this incident.

Both employees filed complaints to the hospital, which conducted an investigation. The worker claimed that he didn’t touch the co-worker, but when he was shown the video footage and asked why he lied, he said that he was concerned about being fired. This raised concerns about credibility and trust, says Lisi.

“They found that he wasn't truthful about what occurred, which I think is a big deal in this case,” he says. “He basically lied about what occurred and from the employer's perspective, that was a real problem because they had evidence on video. I think that was really determinative in this case.”

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The hospital determined that the seriousness of the worker’s actions on the surveillance footage, his lying about it, and the prior suspension on his record warranted termination. The co-worker was suspended for 10 days for his part in the events.

The union grieved the dismissal, arguing that it was a conflict between two people but there was an unequal application of discipline.

The arbitrator noted that the worker was “clearly angry,” but his behaviour wasn’t a momentary lapse of judgment or in the heat of the moment. Pursuing the co-worker to the elevator and then repeatedly blocking him from leaving the parking lot before hitting him, was “pursuit akin to a bully in a schoolyard chasing an individual who clearly wanted to avoid a fight,” according to the arbitrator. This was serious behaviour that breached the hospital’s Workplace Violence Prevention Policy and met the definition of “workplace violence” under the Ontario Occupational Health and Safety Act.

The arbitrator also found that the worker had several opportunities to de-escalate the situation, but he pursued the co-worker the next day. This was disproportionate to any issue he may have had with the previous day’s voicemail, the arbitrator said.

In addition, the worker was dishonest in the investigation and demonstrated no recognition of the seriousness of the misconduct, found the arbitrator, and the video surveillance footage was sufficient to prove the misconduct.

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Video proved worker’s behaviour, lie

The video footage not only clarified what happened, but helped ensure a straightforward investigation for the hospital, says Lisi.

“They had evidence of the fact that [the worker] came back, he blocked his access, he went up the ramp, he got in front of him again — these were all issues of evidence, which allowed the arbitrator and the employer to say, ‘We know what happened in the investigation.’”

The arbitrator added that the different discipline for the co-worker was reasonable, as the hospital’s investigation correctly determined that the worker’s misconduct was more serious and the 10-day suspension for the co-worker was still a serious level of discipline.

“There is a proportionality issue here — it doesn't always mean identical disciplinary penalties, it requires a closer examination of culpability.” says Lisi. “The [co-worker] may have been vocal, but on several occasions he tried to walk away, and the [worker] was the pursuer and the aggressor.”

“Those are different issues and they're entitled to say, ‘We're going to treat them differently.’”

The decision highlights the importance of a thorough investigation into employee misconduct as well as dealing with workplace violence as a serious workplace offence, according to Lisi, who notes that employers have obligations under health and safety legislation to protect their employees from workplace violence.

“We used to say theft was a capital punishment workplace offence,” he says. “In the workplace, for unionized employees, I think violence in the workplace has become paramount and it's really important that employers understand their obligations and take appropriate action.”

See Michael Garron Hospital and SEIU, Local 1 Canada (Khan), Re, 2022 CarswellOnt 795.

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