Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Vale employees fired after assaulting picket-line crosser Workers claimed it was a chance encounter but evidence pointed to premeditated 'scab hunt': Arbitrator By JEffrEy r. SmiTh An OnTAriO emplOyer had just cause to fire three striking workers who were involved in an assault on another worker who crossed the picket line, an arbi- trator has ruled. In July 2009, workers at Vale Canada's nickel smelting plant in Sudbury, Ont., went on strike. After six months of a fierce labour dispute, Vale decided to try to begin its smelting operations. Some employees along with replacement workers and contractors were brought in to get the plant up and run- ning again. One of the workers who decided to cross the picket line in January 2010 was acid plant operator Todd Chretien. Chretien had been struggling financially and decided he needed to get working again. Other union members found out and his picture was posted on the union's Facebook page with the "scab" label. Chretien experienced some harassment stemming from his decision, including the word "scab" spraypainted on his car and his tires slashed. A poster was also placed on his car and in his apartment building calling him a scab. On Jan. 14, 2010, a private security firm hired by Vale discovered striking worker, union activist and 19-year employee Mike French in his car at Chretien's apartment building. French said he was looking for a new apartment and it was a coincidence it was Chretien's building, but a scab poster was later found in the lobby and French had been seen carrying a piece of paper into the building. Altercation with physical assault On Jan. 19, Chretien was not working and went for a run in the early afternoon. He saw a truck that matched the description of the one that had been seen at his apartment pass him. e truck stopped, turned around, and pulled over ahead of Chretien. French got out of the truck along with two other striking Vale workers, James Patterson and Patrick Veniot — who had 16 and 22 years of service with Vale, respectively. According to Chretien, the three men loudly insulted him and called him a scab. French hit him, knocking him to the ground, while the other two looked on and continued to yell at him. Chretien suffered minor injuries and the three striking work- ers were all charged with harassment. ey were acquitted, but French was charged and convicted with assault. On Jan. 22, Vale dismissed French, Pat- terson and Veniot for participating in the assault and engaging in a "premeditated ef- fort to harass and intimidate" an employee who was exercising his "lawful right to con- tinue to work for our company." e com- pany deemed the incident "a fundamental rejection of the principles and values of our company and a complete repudiation of your ongoing obligations as an employee." Workers denied premeditation e three men grieved their dismissals, claiming it was a coincidence they came across Chretien, as they were getting some- thing to eat before going to a union meet- ing. When they saw Chretien jogging, they wanted to have a discussion with him. French said Chretien escalated the situa- tion with insults and yelling, which led to French giving in to his anger and throwing a punch. Patterson and Veniot said they weren't part of the assault and they were all victims of Vale's attempts to undermine the union. French also denied having anything to do with vandalizing Chretien's car or leaving posters in the lobby of his apartment build- ing, claiming he didn't know where Chre- tien lived. e arbitrator found French wasn't truth- ful about several things. First of all, it was unlikely he had been at Chretien's building by coincidence when looking for an apart- ment. As it turned out, French didn't go to any other places looking for an apartment and he had been seen with a piece of pa- per entering the building — after which a scab poster was found. Also, French's ex- planation that the three men happened upon Chretien jogging while on the way to a union meeting didn't pass muster — the meeting was on the other side of town at that time, the union official called them wondering where they were and there was no reason for them to be near Chretien's residence. Nor was it likely they would have spotted him jogging if they weren't looking for him, said the arbitrator. e arbitrator also found that although French issued a court-ordered apology to Chretien, there was no acceptance of re- sponsibility or show of remorse. In fact, French had reportedly said at a union meet- ing the next day that "I am the one that hit that f---ing scab." Add to that the fact French was convicted of assault, so the ar- bitrator found the assault was premeditated and not in the heat of the moment. While Patterson and Veniot didn't par- ticipate in the physical assault, the arbitra- tor found they were still part of the effort to harass and intimidate Chretien. ey went along for the ride — which the arbitrator al- ready determined was meant to specifically look for Chretien — participated in verbal insults and did nothing to stop the assault. ey were also untruthful about the inci- dent and showed no remorse for what hap- pened, said the arbitrator. ough all three workers had lengthy service records with no discipline, this wasn't sufficient to set aside a termination for workplace violence, said the arbitrator. e grievances were dismissed and the ter- minations upheld. "Mr. French was, even though he denied it, and in his words, on a 'scab hunt' while (Patterson and Veniot) made a bad situation worse by yelling 'f---ing scab.' Significantly, they did nothing to interrupt or interfere with the physical assault. e specific par- ticipation of the three (workers), and their dishonesty in their evidence about it, justi- fies termination on a just cause standard," said the arbitrator. For more information see: • Vale Canada Ltd. and USW, Local 6500 (French), Re, 2013 CarswellOnt 13069 (Ont. Arb.). Though all three workers had lengthy service records with no discipline, this wasn't sufficient to set aside a termination for workplace violence

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