Canadian Labour Reporter - sample

tion crew and was driving a buggy. He parked at the end of an aisle in an unused part of the building and walked up another aisle to clean and reset some baffles, which in- volved shaking the dust off them, adjusting them and locking them in place. He didn't see any white lights that would have signified the pow- er was off. DaSilva was in a cloud of dust from a baffle when he heard screaming. He made out some- one jumping up and down, so he went back down the aisle. The man was George Gregg, a pot start-up operator. Gregg walked toward DaSilva and shouted, "What the f--- are you doing here?" DaSilva re- sponded with "Who the f--- are you?" and Gregg told him he was the occupational health and safe- ty representative. Gregg told him they were off power and asked DaSilva — amongst some profanity — if he could see the white lights. Silva said, "I can now." Gregg insisted DaSilva needed to leave the section, but DaSilva said he could be there as he was just doing his job. The argument between the two men got louder, with each insulting the other with profanities. Gregg went to the supervisor's office and reported to the occupa- tional health and safety represen- tative that there was an "idiot" in the section and returned to DaSil- va. DaSilva said Gregg had a "big mouth for ratting him out" and then said, "We'll talk about this in some other f---ing place." This upset Gregg and he later testified he felt fearful and wanted to "get out of there," though he said "f--- whatever." The health and safety repre- sentative arrived and told them to calm down, but Gregg contin- ued to shout. DaSilva said, "Man, you have a big mouth — I've had enough of this," and left. When he arrived back at the shop, DaSilva told his supervisor he had been involved in interac- tions with "some guy and then two other guys" but the supervisor didn't take an official statement. Gregg went to his supervisor and reported the altercation, say- ing it wasn't just about the safety, "it was about the threat." He gave what he termed a "bare bone synopsis — do with it what you want — I'm looking at it and probably won't see this person for six months." Gregg then met with the plant services coordinator five days later, where he explained it was his job to keep people out of the area when the power was off and they were both "yelling and hollering." When Gregg was asked if he felt threatened, Gregg responded that he didn't want it to come to what it did and DaSilva was "a f-- -ing idiot." He also acknowledged that when he got worked up it was hard to de-escalate and he didn't recall what was actually said in the altercation. Rio Tinto investigated the al- tercation and determined that DaSilva directed a threat at Gregg. DaSilva was suspended for three days without pay. The union, Unifor, grieved the suspension, arguing there wasn't sufficient cause to issue the sus- pension. It pointed out the Gregg was the aggressor in the alterca- tion, approaching DaSilva while shouting profanities. In addition, Gregg didn't report feeling threatened when he ini- tially reported it to the health and safety representative. Arbitrator weighs in Arbitrator Wayne Moore found that Gregg was known to be excit- able and he himself acknowledged he had difficulty controlling his emotions. He also was confused about the altercation and what was said a few days afterwards, so his version of events could not be considered reliable for the most part. However, Gregg was consistent in that he reported to both his su- pervisor and other management during the investigation that DaSil- va said something to the effect that they would discuss it someplace else, so Moore found it was likely this was the case. Moore found that while Gregg testified he was fearful and wanted to get away from DaSilva, he didn't initially report a threat to the su- pervisor and the health and safety representative — which Moore thought was "improbable, given Gregg's excitable personality and the fact that he was both excited and angry." In addition, the fact that Gregg went back to DaSilva after going to the office made it less likely he felt threatened, said Moore. Moore also found that the shouting in itself wasn't out of the ordinary, since the workplace was loud and both employees were wearing ear protection. Though Gregg mentioned a threat to his supervisor after the altercation, his comments and be- haviour after the altercation and during the investigation weren't consistent with someone who genuinely felt threatened, said Moore, in finding there wasn't sufficient cause for discipline. Rio Tinto was ordered to ex- punge the suspension from DaSil- va's record and compensate him for lost wages and benefits from the three missed days of work. For more information see: • RIO Tinto Alcon Inc. Kitimat Works and Unifor, Local 2301 (DaSilva), Re, 2016 CarswellBC 2565 (B.C. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < B.C. pg. 1 Co-worker didn't initially report threat to supervisor Photo: jordache (Shutterstock)

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