Another Arbitral Look at Bill 168
In National Steel Car Ltd. v. United Steelworkers, Local 7135, Arbitrator Craven addressed a situation of workplace violence and the impact of Bill 168.
The grievor was a radio control crane operator who worked under the direction of Al Gogo, a lead hand, and under the supervision of foreman Albert Cule. There was a history of conflict between the grievor and Mr. Gogo.
On May 31st, 2011, Mr. Gogo believed that the grievor had taken an extended lunch break and reported this to the grievor’s supervisors. Later that same day, the grievor approached Mr. Gogo and called him a “rat”. The two men began to yell and exchange obscenities, and Mr. Gogo suggested to the grievor that they “take it outside” and “do this like a man.” The grievor walked away from the suggestion of a fistfight, but was overheard saying that he was going to “get” or “bring” his “ammo”. Mr. Gogo interpreted the comment as a threat of gun violence, given that he was aware that the grievor owned firearms.
Mr. Gogo complained of the incident to his supervisor, and the Company launched an investigation. It was revealed during the investigation that witnesses had heard the grievor say something about bringing or loading ammo. However, when the grievor was interviewed, he stated that he had said he would “use his intuition”, which his colleagues had likely heard as “ammunition” and later reported as ammo.
Following further interviews, it was determined that: the grievor had in fact stated that he would bring in or load ammo, the comment amounted to a threat of workplace violence, and the grievor had been dishonest in denying the allegations during the investigation. The grievor was discharged. A criminal charge was also laid, but was withdrawn after the grievor entered into a peace bond.
On the evidence, Arbitrator Craven determined that the grievor had said something similar to “next time I’ll bring my ammo”. It was also found that the grievor had not been forthright during the investigation, nor at arbitration.
Although the evidence revealed that the common reaction to the event by witnesses had been surprise, rather than terror, the arbitrator relied on the definitions of “workplace violence” under both Bill 168 and the Company policy, and found that it was reasonable for Mr. Gogo and witnesses to have understood the grievor’s comment to be a threat to exercise physical force against them in the workplace.
Arbitrator Craven also found that Mr. Gogo had also engaged in a form of workplace violence, which the employees who witnessed it were obliged to report, and which the Company was required to investigate. However, Mr. Gogo’s workplace violence had not been investigated by the Company, and was not the subject of the arbitrator’s award.
In determining whether discharge was an appropriate disciplinary response, the arbitrator considered the traditional mitigating and aggravating factors, including the fact that the grievor was treated differently than Mr. Gogo, the grievor’s outburst was a one-time, momentary flare-up, and the grievor was unlikely to engage in another act of workplace violence.
After consideration of these factors, the arbitrator concluded that a short suspension should be substituted for the discharge. The grievor was reinstated to employment on the condition
that, for a period of two years following the date of the award, any act of workplace violence would result in discharge.
Employers are thus reminded that, while incidents of workplace violence must be taken seriously, a dismissal based on workplace violence is unlikely to be upheld if it is not in accordance with sound labour law principles, including: conducting a proper investigation, treating similar cases similarly, and giving consideration to mitigating factors.