Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Intimidation of supervisor told the worker he was being "boisterous and disruptive and you need to leave the plant." e worker just stood there, so the supervisor said he was going to call 911 and the police. e plant manager stepped in and told the worker he had to go home. e supervisor followed the worker "20 to 25 feet" behind him to ensure he left the plant and didn't do anything. en he went home, telling the plant manager he was shaken up. Once home, the supervisor had to take medication for a heart problem. e worker agreed with what was said between him and the supervisor but denied swearing or yelling at him, or that he acted in a threatening or intimidating manner. He testified he felt he was being spoken to in a condescending manner, which wasn't appropriate for a worker with his length of service. He also said he was standing about four feet away from the supervisor. Procor told the worker to stay home while it investigated the incident. He was off work for five weeks with pay. When Pro- cor concluded the investigation, it deter- mined the worker "did portray workplace violence, intimidation and boisterous be- haviour against (the supervisor)." Procor's workplace violence and harassment policy included "a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker" in its defini- tion of workplace violence. e worker was suspended for five days without pay, which the union grieved. e arbitrator found that the worker's behaviour was insubordinate, as he was di- rected to do a task and challenged the su- pervisor. In addition, this behaviour — cor- roborated by both the supervisor and the plant manager — was not "calmly insubor- dinate," but involved aggression towards his supervisor. e supervisor and plant man- ager both told the worker to go home and the supervisor contemplated calling police, which was consistent with being faced with intimidating behaviour. ough the worker acted aggressively, the arbitrator found he didn't say anything that could be construed as a threat. erfore, the issue was whether the aggressive behaviour was serious enough on its own to meet the definition of workplace violence. e arbitrator found the worker's disrup- tive behaviour was an attempt to intimidate his supervisor, but was not enough to qual- ify as workplace violence. e supervisor may have felt threatened, but the arbitrator determined it was not objectively reason- able to interpret the worker's actions as a threat to use physical force. However, the arbitrator decided not to reduce the suspension because the worker showed no remorse for his misconduct. He acknowledged he acted in an intimidating and aggressive way but did not apologize for it. He also testified he didn't care if the su- pervisor ended up in the hospital. See Pro- cor Ltd. and BBF, Local 128 (Smith), Re, 2015 CarswellOnt 2494 (Ont. Arb.). « from AGGRESSIVE on page 1 No union representation makes worker's dismissal null and void: Arbitrator AN ARBITRATOR has reinstated a union- ized Ontario worker who was fired for sleeping on the job but wasn't allowed union representation before he was dismissed. e worker was employed with Crosby Canada, a manufacturer of forged and as- sembled steel products such as hooks, shackles, clamps and other items used in the construction, mining, and oil and gas industries. He was part of a crew that oper- ated large pieces of equipment used in the manufacturing process. e crewmembers rotated through the machines every 15 min- utes so they each used all of the machines. Crosby employees were allowed to trade shifts, and the worker traded his shifts so he could work almost exclusively on the mid- night shift. He had one incident of discipline for sleeping at work on his record. On July 18, 2014, the worker was stationed at a machine called a heater, which heated steel billets from a hopper and a chute. e person manning the heater had to monitor billets as they were fed into the chute to en- sure there wasn't a jam, which could cause the heater to explode. e supervisor came by on his regular rounds and, as he walked towards the heat- er, he saw one of the other crewmembers waving his arms in the direction of the heat- er. He saw another employee smiling while looking at the worker and, when the su- pervisor approached the heater he saw the worker sitting in the heater chair — which was facing him — with his head bent down and eyes closed. e supervisor reached up and touched the worker, who woke up startled. e supervisor asked the worker to come to the office. When they reached the outside of the office, they had a discussion about the situation. e worker denied sleeping and said he had just "closed his eyes for a bit." e supervisor told the worker to go home and the worker continued to deny he had been sleeping, saying it was "bulls---," though the supervisor said he was polite throughout the conversation. e other crewmembers were inter- viewed and two of them said the worker had slept on the job before, though neither had seen him sleeping on that shift specifically. A third crewmember said he didn't see any- thing. Crosby determined the worker was sleep- ing on the job and dismissed him for cause. e union challenged the termination, say- ing he had not been provided with union representation for either his discussion with the supervisor or the decision to termi- nate under the collective agreement, which stated: "When the company meets with an employee to obtain information that may lead to such employee's reprimand, suspen- sion or discharge, a committeeperson shall be present. An employee shall only be disci- plined, suspended or discharged in the pres- ence of his/her committeeperson." Crosby argued there was no prejudice to the worker as it conducted a fair and com- plete investigation and the worker didn't lose any pay during the investigation. e arbitrator found there was no doubt the worker was caught sleeping at work and when he was sent home on July 18, it consti- tuted a suspension — though paid — while the company investigated. And the suspen- sion happened without giving the worker union representation, said the arbitrator. e arbitrator also found there was no reason why the supervisor could not have contacted a union representative before continuing the discussion with the worker and sending him home. ough there was no union representative working on the night shift, it would have been reasonable to wait a few hours before making the decision, said the arbitrator. "Mere inconvenience does not justify the denial of providing the union representa- tion that is required by the collective agree- ment," said the arbitrator. e arbitrator found the worker was de- nied his contractual right to union repre- sentation before being suspended and dis- missed, which rendered the dismissal null and void. Crosby was ordered to reinstate the worker. See Crosby Canada Inc. and Unifor, Local 1285 (Pegoretti), Re, 2015 Car- swellOnt 3283 (Ont. Arb.).

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