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
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)
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