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Queen's University
 

Zochem

Zochem, division of Hudson Bay Mining and Smelting Co. Ltd. v. Communications, Energy and Paperworkers union of Canada, Local 591 G (Harvey Grievance)  [2101] O.L.A.A. No. 466

Facts

A worker performing shipping duties (Harvey) was dismissed after two incidents involving harassing behaviour towards his supervisor.

In the first incident, Harvey responded to legitimate criticism about his work performance by raising his voice, slamming his hard hat against a filing cabinet and stamping his foot against a piece of wood, crushing it.  The supervisor told him to seek Union representation. When the supervisor followed up on this directive, the worker rushed towards him, jumping over a barrier and yelling profanities.

The second occurred five hours later, when the supervisor met with the worker and the union representative in a disciplinary meeting. In this meeting, the worker was advised that he was being suspended indefinitely for that morning's bout of insubordination. The worker's anger escalated and he began to denigrate the supervisor's ability to perform shipping duties. Following the meeting, on the walkway outside the supervisor's office, the worker picked up a six-foot metal bar, turned around and marched back towards the supervisor's office.  The supervisor, who was watching from the window, became alarmed. The Union representative intervened, gesturing for the worker to stop and telling him to think about his kids. The worker dropped the bar, but continued to walk towards the office where the supervisor returned to his desk, intimidated. The worker starred in through the window for a number of seconds but the supervisor kept his eyes on the desk, in order not to provoke him. At a follow-up disciplinary meeting, the worker apologized for his insubordination but justified his actions. He was dismissed.

Issues

  1. Do employers have a heightened responsibility to protect workers from violence and violence in the workplace in the wake of Bill 168?
  2. Did the harassment amount to violence or the threat of violence?
  3. If termination was too severe, what discipline would be appropriate?

Rulings

  1. Yes
  2. No
  3. Yes

Reasons

  1. The arbitrator agreed : "I agree with Counsel for the employer that it is important to take into account in the process of weighing all the factors the heightened awareness and expectation in society today that employers will take the appropriate steps to protect all their workers from violence or threats of violence in the workplace and to promote a safe working environment. This expectation has recently become public policy through the protection for workers from workplace violence, threats of violence, harassment and intimidation by imposing on the employers the legal duty to develop policy and programs to control the risks of such conduct" (36).
  2. The Arbitrator ruled that the worker had engaged in "angry, abusive and intimidating behaviour" which escalated over time and culminated in conduct that was implicitly violent and threatening. This insubordination was inappropriate and warranted discipline; even the first incident should have resulted in suspension. However, the overall conduct did not amount to violence (defined as physical contact) or to a direct threat of violence (an utterance of threatening words). Thanks to the intervention of the union representative, "the potential danger of physical harm to Crichlow never got to the point where Crichlow needed to take immediate protective action. These circumstances do not negate the seriousness of the grievor's misconduct but they do not elevate it to circumstances involving the actual used of a weapon where harm was caused or where there was a clear and present threat of immediate harm with a weapon against a supervisor or worker" (34). In other works, "the totality of the conduct here is serious but does not involve physical violence or the immediate threat of physical harm" (page 37).
  3. For this and other reasons (mitigating factors such as his 16 years of service and clean disciplinary record), the penalty of dismissal was reversed and replaced with that of an unpaid suspension and a conditional return to work. Before coming back to work, the worker was ordered to participate in an anger management program and to write a sincere apology to his supervisor. In the event that the worker participated in "threatening or violent behaviour" upon his return to work, he would be immediately terminated and would have no recourse to arbitration (except to argue the facts).

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000