Firing of worker who shoulder-checked supervisor excessive: BC arbitrator

Previous discipline but no proof of intention; six-month suspension for dishonesty during investigation
By Jeffrey R. Smith Jun 13, 2024

A British Columbia employer was unable to prove that a worker who expressed displeasure with a supervisor and later shoulder-checked him did so intentionally, said an arbitrator in reducing the worker’s dismissal to a six-month suspension.

Crown Packaging operates a cardboard container manufacturing plant in Richmond, BC. It hired the now 50-year-old worker in 1992, and the worker eventually became a knife operator at the plant.
The worker was considered a good employee and others benefited from his three decades of experience. However, he tended to speak loudly and often swore. This led to a one-day suspension in March 2021 for inappropriate exchanges with other employees.

In November of that same year, the worker was suspended again, this time for three days, after another inappropriate verbal exchange during which he threw a stair on the ground. About one year later, the suspension on his record was adjusted to two days with no mention of the stair throwing.

On Sept. 3, 2023, a crew member failed to report for their weekend overtime shift, leaving the crew short. Although the company’s “short” protocol for running with one less person didn’t apply on weekends, the new supervisor asked the crew to start work. The crew was reluctant, but after a delay they started working. Two employees were disciplined.

Worker warned not to do ‘anything stupid’

The worker was displeased with the way the company handled the incident and told his supervisor about it, as well as some friends in a group chat. Five days later, the worker told his supervisor again that the matter hadn’t been handled properly and said the new supervisor had lied about it. The worker had never met the new supervisor, but he knew who he was.

According to the worker’s supervisor, the worker was “fired up,” so he told the worker on Sept. 9 not to do “anything stupid” as he was aware of the worker’s previous suspensions.

At the end of the worker’s shift that day, he was walking along a walkway holding his cellphone so he could activate an app that would log him out of work. He was in a hurry because he had to drive his teenaged daughter to a train.

The worker came up behind the new supervisor, who was speaking with another employee in the walkway. As he passed, the new supervisor turned away from the other employee and the worker came into physical contact with him. According to the new supervisor, it was a “hard hit” that made his shoulder sore for a few hours afterward, as the worker was a large man. The worker continued walking without turning or apologizing. The new supervisor felt that it was a deliberate assault and asked the other employee about it. The other employee agreed it was a hard it, but he couldn’t tell if it was intentional.

Crown Packaging investigated and asked the worker for his version of the incident. The worker said that he had felt the contact but he thought it was an incidental brush, so he continued on his way. He said it wasn’t intentional and he offered to apologize to the new supervisor, but the new supervisor didn’t want to hear it. He didn’t mention that he was in a hurry and denied discussing the new supervisor with anyone.

Previous discipline

The company considered the worker’s anger issues, his previous discipline, the fact that he had told his own supervisor that he was upset with the new supervisor, and that the worker hadn’t turned or apologized after the physical contact. It determined that the worker hadn’t controlled his anger
issues and “deliberately shoulder checked [the new supervisor] in retaliation for the handling of the Sept. 3 incident.”

On Sept. 11, Crown Packaging terminated the worker’s employment for assaulting a supervisor and for dishonesty during the investigation. The union grieved, arguing that the contact was an “innocent accident warranting no discipline” and the worker was truthful in the investigation.

The arbitrator found that the new supervisor had no reason to exaggerate, as he didn’t know the worker and had no interest in what happened to him. He also immediately reported the incident as a hard hit to his shoulder. The arbitrator also found that the worker had reason to downplay the contact because “a hard hit is more consistent with an intentional one.” In addition, the worker was a large man and may have experienced the contact differently than the new supervisor, said the arbitrator in preferring the supervisor’s version of the severity of the contact.

The arbitrator found multiple factors supporting Crown Packaging’s position that the hit was intentional – the worker didn’t stop and apologize, he had told his own supervisor and some friends that he was upset at the new supervisor, and he had two previous suspensions for aggressive or insolent behaviour.

However, the arbitrator found some mitigating factors as well – the worker may not have felt the force of the contact as much because of his size, he was in a hurry, the other employee couldn’t tell if it was intentional, and the worker was willing to apologize once the company confronted him with the effects of the physical contact. In order to justify discipline, Crown Packaging must be able to show that the contact was intentional on a balance of probabilities, the arbitrator said.

“There was undisputed evidence of a collision between two people and the employer immediately inferred intent on two bases – [the worker] didn’t stop and immediately apologize, though he did apologize very soon afterwards, and his history of [discipline],” says Michael Penner, a labour and employment lawyer with Kent Employment Law in Victoria. “So they put two and two together, and it doesn’t sound like they deviated from their belief that this collision was intentional,” says Penner.

No objective evidence of intention
However, there wasn’t other objective evidence to verify the severity of the hit or the demeanor of the worker, as the only other witness couldn’t identify whether it was intentional, says Penner.

“The only way they were going to make their case was to cross-examine the worker, and they got pretty far but not quite far enough to prove intent,” he says.

The arbitrator found that the worker’s explanation for not stopping and apologizing – he was in a hurry and didn’t feel the contact as much – was reasonable. It would also be “reckless and self-destructive” to intentionally assault a supervisor in front of a witness with the worker’s discipline record and shortly after being warned not to do anything stupid, said the arbitrator.

The arbitrator determined that, on a balance of probabilities, that the contact was an accident. Although it was “rude or insensitive” for the worker not to stop and check on the new supervisor following the contact, it wasn’t deserving of discipline, the arbitrator said.

However, the arbitrator agreed with the company that the worker was dishonest and not forthright in the investigation. He didn’t explain that he was in a hurry to pick up his daughter, which could have affected the findings, and he minimized the force of the contact. The worker also lied when he said he didn’t discuss the new supervisor with anyone, said the arbitrator.

Dishonesty deserved discipline
The arbitrator found that the worker’s dishonesty about the force of the contact and his discussions about the new supervisor was “central to the investigation and deserving of discipline.”

The arbitrator determined that termination was excessive, as the physical contact wasn’t intentional. However, a six-month suspension was appropriate for the worker’s dishonesty in light of his past discipline, the arbitrator said.

Although Crown Packaging wasn’t able to prove beyond reasonable doubt that the physical contact was intentional, it wasn’t a bad idea to proceed with dismissal and risk the arbitrator reinstating the worker, according to Penner.

“If you believe it was an intentional assault by a worker on his manager, then that is reasonable to skip over progressive discipline, although when terminating a 30-year employee you have to be pretty sure he did it, he says. “But at the same time, this might be a situation where you do it knowing it might be challenged, simply because if you don’t do it, that manager is going to have no trust in his own management team and, if you don’t fire a guy who assaulted a manager, then it might open the door [to insubordinate behaviour].”

“The [worker’s] prior discipline was at least in the same ballpark as the alleged assault and showed that this is a hothead who loses his temper at work, he was warned about it before, and he’s had a chance to correct his behavior,” adds Penner. “It may have been a scenario where the employer said, ‘We’re willing to have an arbitrator tell us we have to take him back, but we’re not prepared to voluntarily do that – we can’t bring this guy back due to the optics [for the workplace].’”

See Crown Packaging v. Unifor, Local 433, 2024 CanLII 42123.’

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