Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2019 News |Canadian Safety Reporter Shipping company workers unload on each other Worker fired after physical altercation that followed taunts by co-worker BY JEFFREY R. SMITH AN ALBERTA worker who was involved in a fight with a co- worker has been reinstated with a suspension by an arbitrator be- cause the worker didn't start the fight and hadn't been involved in any such altercations previously. Loomis Express, a shipping company, employed Daniel Araia as an "owner operator" in its Southern Alberta region since 2007. As an owner opera- tor, Araia drove a truck carrying freight for Loomis but owned his own truck. He had no discipline on his record. On Aug. 25, 2017, Araia was loading his truck with freight to deliver at a Loomis warehouse. A warehouse employee was bringing the freight to the truck so Araia could load it onboard. However, at one point the ware- house employee placed Araia's freight directly on the floor, con- trary to regular practice — the freight was supposed to be deliv- ered to the truck on skids, which are removed after the freight is loaded to make room for more loading. Araia asked the warehouse employee to place his freight on a skid and ensure the path to the truck remained clear, to which the warehouse employee — ac- cording to a nearby witness — replied, "I could put it in a certain way but you wouldn't f---ing like it." Another employee reported that the warehouse employee "lost his cool," started gesticu- lating and making comments about Araia's language skills and race. Araia walked away, but the warehouse employee continued to mock him. Worker returned to confront taunter Araia moved closer to the ware- house employee and asked him what he had said. The warehouse employee responded by moving closer to Araia until the two men were face-to-face. They began speaking in loud voices and the brim of the warehouse employ- ee's baseball cap kept butting Araia in his forehead. The ware- house employee pushed or hit Araia's shoulder, and this set off an exchange of blows between them. After they struck each other a few times, another em- ployee broke up the fight. Immediately after the inci- dent, Araia reported it to the operations supervisor, who saw that his face was bruised and he was angry. Araia said the ware- house employee had fought with him and had threatened to "break his face." The supervisor then spoke with the warehouse employee, who to him seemed calm and told him the alterca- tion was a "mutual thing." Both employees were held out of service while Loomis investi- gated. The company interviewed several employees and Araia said the warehouse employee was "punking" him and talking down to him, making fun of his English. The warehouse em- ployee admitted he was stack- ing the skids and putting Araia's freight on the ground, but Araia and other owner operators were talking down to him. Another employee who wit- nessed the altercation said he didn't report it at the time be- cause it was something that was dealt with in the day-to-day op- erations. Loomis completed the inves- tigation and decided to termi- nate both employees for breach- ing the company's workplace violence policy. Araia's letter of termination stated that he had committed an act of work- place violence as defined by the company's policy. The policy, on which all employees were trained, stated that physical at- tacks and verbal abuse consti- tuted workplace violence and would not be tolerated. The union grieved the termi- nation as excessive. The arbitrator found Loomis' workplace violence policy and the way the company dissemi- nated and enforced it was admi- rable, but there were mitigating circumstances that were in Ara- ia's favour. Worker was provoked The arbitrator found that the warehouse employee clearly provoked the altercation by in- sulting and mocking Araia and then placing his freight on the ground to impede his loading. The insults along with butt- ing his cap brim against Araia's forehead was "provocative workplace violence and could serve no other purpose than an attempt to provoke (Araia)," the arbitrator said. However, though Araia initial- ly walked away from the taunts, he changed his mind and went face-to-face with his tormenter, which then led to the physical altercation — despite the fact he was aware of the workplace vio- lence policy and was not in any danger that could support an ar- gument of self-defence. The fact that he was provoked did not completely excuse his behaviour, said the arbitrator. The arbitrator noted that Ara- ia had 10 years of discipline-free service and the altercation was an isolated incident. Given these factors, along with the fact he was provoked and he reported the incident immediately, the ar- bitrator determined that a lesser penalty than dismissal was war- ranted. Loomis was ordered to rein- state Araia to his employment with a 30-day suspension on his record and compensation for any lost pay since the end of the suspension period. For more information see: • Loomis Express and Unifor, Local 4050 (Araia), Re, 2018 CarswellAlta 2665 (Alta. Arb.). Credit: Shutterstock/Luis Molinero

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