An Ontario labour arbitrator just allowed an employee’s grievance after the employer terminated him for swearing, refusing to leave the workplace and threatening the vice-president with a shovel. As horrible as this incident sounds, the employer had absolutely no proof of the events because the employer did not follow its own policy and conduct a proper investigation.
What allegedly happened
The incident occurred at the end of a workday after the employee wanted to work overtime but was asked to leave. The refusal made him very angry; so angry, that he allegedly told the plant manager to “go to hell,” and then refused to leave. When the vice-president, who was also the general manager of the company, came by and told the employee to leave, the VP too was told to go to hell, and the employee continued to ignore the requests to leave. When the vice-president asked the employee if the plant manager asked him to go home, the employee responded, “That f****** guy doesn’t want me to work overtime.” When the vice-president raised his voice and said that the employee had to listen to the plant manager, the employee picked up a shovel and moved it forward in a suggestive manner and said, “You can’t talk to me like that, I have kids as old as you.”
It was not until the vice-president threatened to call the police that the employee finally left the workplace. Needless to say, the management team was upset by this, especially since a different employee had actually assaulted the plant manager with a shovel a year earlier.
The employee was terminated the next day. The termination letter referred to the incident, and said that it was a culminating incident (the last straw) in terms of previous problems the employee had with management. The company submitted that it had just cause to dismiss the employee because he was insubordinate and engaged in workplace violence by using a shovel in a threatening manner during the altercation.
So what went wrong?
The employer clearly relied upon the employee’s prior incidents of discipline to justify the termination; this was a problem because it violated the sunset clause in the collective agreement (any warnings had to be removed from the file after 12 months of no disciplinary problems) and a settlement agreement made between the union and the employer a couple years earlier.
In addition, the employer did not follow its workplace violence and harassment policies and procedures under Ontario’s Occupational Health and Safety Act. It did not hold a proper investigation into the incident, discuss the matter with the employee, talk to any witnesses or document anything. The employer showed up at the grievance with nothing but an assertion.
Consequently, the employee was reinstated and fully compensated.
The arbitrator said that even if the employer had taken other, more appropriate, disciplinary measures, the arbitrator would still have found the employer failed to show that the employee threatened the vice-president/general manager with a shovel.
Employers, you need to make sure you act in accordance with the collective agreement (when applicable) and policies, procedures and practices in place, especially with regard to procedures required by law and concerning disciplinary measures.
In this case, the procedures for reporting discrimination or harassment were set out in the policy, along with investigation procedures which included interviewing the relevant person and others involved.
In addition, the collective agreement required the previous discipline listed in the employee’s employment file to be removed as a result of a settlement a few years earlier. The agreement prevented the employer from relying on past incidents to justify a more severe form of discipline based on a current threat.
The employer simply failed to follow its own extant policies and procedures for conducting an investigation. Subsequently, the employer had no documented proof whatsoever to justify termination with cause when it showed up at the grievance.
Employers have to follow the policies and procedures they have in place, in particular, on workplace violence and harassment prevention, and discipline before making a rash decision to terminate employees.
First Reference Human Resources and Compliance Editor
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