A couple of months ago, I was looking out of my office window at the snow on the ground. It briefly brought me back to when I was in elementary school and I would look forward to recess and the snowball fights that would ensue. Of course throwing snow balls was eventually banned, leaving us to spend our recesses staring at the snow thinking of all the fun things we could do with it once we got home. But every now and then one of my classmates would be brave enough to hurl a snowball at another student who had been making fun of him throughout the day. The whole episode would be over quickly. The student would get hit in the back of the head with the snow ball, the supervising teacher would see it, and then the entire class would get detention, including both the person who got hit and the person who threw the snowball.
I could never understand that. The classmate who got hit and never touched a snowball was being punished as a result of the actions of his classmate. Such a blanket punishment makes just as little sense today as it did back in elementary school, and it makes even less sense in a workplace environment. Luckily, in a recent decision in an Ontario labour arbitration, arbitrator John Stout recognized this and made sure that a similar decision, where punishment was meted out equally to all those involved in an event despite their culpability, was rectified.
In Purolator Courier Limited v Teamsters Local Union, Local 938 at issue was a fight that broke out amongst a few employees. The employer terminated all of those employees that were involved in the fight citing that they had violated the company policy by participating in such aggressive behaviour.
At the arbitration, however, it became clear that despite the many versions of the fight that were given by the employees involved, as well as those employees who witnessed it, one of the employees that was dismissed was targeted and attacked by the other employees. Regardless, the employer terminated all of those involved.
This is not to say that the employee who was being attacked was completely innocent. Similar to our student above who had been making fun of the classmate who eventually hit him with a snowball, witness accounts did note that the employee who was subject to the attack may have offended another employee with the particular language he chose to use when addressing her.
However, the use of such language when compared to the attack perpetrated by the other employees should be treated differently when contemplating the appropriate punishment. The arbitrator acknowledged this and as a result found that the termination of the employees who attacked and targeted the individual employee was just, whereas the termination of the employee who was attacked was unwarranted. The arbitrator differentiated between the acts of the individuals involved and as a result ordered that the attacked employee be suspended for three days, rather than his employment being terminated.
While it is usually in criminal law that the common adage, ‘let the punishment fit the crime’ is most often heard, employers should take heed to this decision and be sure that if discipline is being meted out in the workplace, it “fits” the actions of the employee.
Marty Rabinovitch and Anthony-George D’Andrea, Student-at-Law