[author: Adrian Miedema]
An arbitrator has upheld the dismissal of a unionized employee where the risk of him committing another violent act outweighed his hopes of being rehabilitated.
A fellow employee had asked the grievor to switch machines at the plant, which produced exhaust systems. The grievor refused. The work refusal was reported. While the fellow employee had a discussion with another machine operator about 20 feet away from the grievor, the grievor picked up a metal pipe and threw it in the direction of those employees. The pipe hit the concrete in front of the employees. The grievor was called to the office of a supervisor where he continued to be aggressive. Later that same day, another employee told the company that the grievor had assaulted him the previous day; the grievor admitted to striking that employee with an open hand in the ribs but said he did not do so in anger. Also on that date, the company learned that the grievor had failed to complete an anger management counselling program, which he agreed to attend after a previous workplace incident.
Arbitrator Owen Gray stated that “the central question will be whether ‘the insubordinate or violent conduct of the employee was such as to make it improbable that he would be able to function effectively in the plant again.’” He referred to Bill 168 which added workplace violence provisions to the Ontario Occupational Health and Safety Act.
The arbitrator stated that although the risk of injury from the pipe-throwing incident was not great, no injuries ensued; however, the grievor’s conduct, which was intended to intimidate rather than injure, was of a sort that creates a fear that angering him could lead to further and perhaps greater violence. “The implied threat of violence is the most concerning feature of this aspect of the grievor’s conduct.”
The grievor was not a long-service employee, having just over two years’ service. He had made no effort to apologize or express remorse, even at the hearing. He could not explain his aggressive approaches to his supervisor, and did not provide any evidence that he understood that his conduct was wrong.
The arbitrator concluded that hope of reform was not enough. The arbitrator was not persuaded that the risk of a similar or more serious incident was sufficiently low that the grievor’s co-workers, supervisors and employers should be exposed to that risk. The grievance was therefore dismissed.
This is another decision in a line of arbitral decisions taking a hard line – a risk-averse approach – against workplace violence. The interesting aspect of this decision is that the arbitrator looked to the grievor to prove, as a condition of being reinstated, that there was no risk of a similar violent behaviour in the future. Where the grievor could not do so, his dismissal was upheld.
Walker Exhausts v. USW (Local 2894), 2012 CanLII 42290 (Ontario Labour Arbitrator)