Canadian Safety Reporter

CSR | May 2015 | News ©2015 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safety-reporter.com Published 12 times a year by Thomson Reuters Canada Ltd. 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Smith Marketing Manager Mohammad Ali mm.ali@thomsonreuters.com (416) 609-5866 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 Aggressive behaviour not a threat but lack of remorse a problem Despite disruptive behaviour, no reduction in worker's suspension: Arbitrator AN ARBITRATOR has found an Ontario worker was not guilty of threatening workplace violence but did not reduce the worker's suspension because he felt no remorse for his intimidating be- haviour. The worker was a welder me- chanic employed for 20 years at a facility in Sarnia, Ont., operated by Procor, a company that re- paired and recertified tank cars. On April 12, 2013, the worker was at a morning meeting dis- cussing whether a tank car he was working on was ready to go. After the meeting, his supervi- sor walked over to the car to check on it. The work order for the car stated the work had been completed, but the supervisor noticed the reflective strips and decals that indicated where the car had been requalified had not yet been attached. That work had been assigned to the worker originally, but a few days earlier it had also been assigned to an- other employee who had since been suspended. The supervisor found the worker leaning on a desk and talking to the lead hand. He asked him to apply the decals and reflector strips, and the worker stood up and yelled into his face "Why didn't you get Tom to do it yesterday? He stood around all day and did f--- all and you watched him." The supervisor claimed the worker was about 12 inches away and he could feel the worker's spit on his face as he shouted. The supervisor backed away and told the worker to do the work, and the worker yelled, "Where's Tom?" The supervisor replied that Tom was absent and he was giving the worker direc- tion. to which the worker said, "Don't treat me like a child." The supervisor testified he felt threatened and thought the worker might hit him. He told the worker he was being "bois- terous and disruptive and you need to leave the plant." The worker just stood there, so the supervisor said he was going to call 911 and the police. The plant manager stepped in and told the worker he had to go home. The supervisor followed the worker "20 to 25 feet" behind him to ensure he left the plant and didn't do anything. Then he went home, telling the plant manager he was shaken up. Once home, the supervisor took medication for a heart problem. The 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 conde- scending 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 Procor concluded the investigation, it determined the worker "did por- tray workplace violence, intimi- dation and boisterous behaviour against (the supervisor)." Pro- cor's workplace violence and harassment policy included "a statement or behaviour that it is reasonable for a worker to inter- pret as a threat to exercise physi- cal force against the worker, in a workplace, that could cause physical injury to the worker" in its definition of workplace violence. The worker was sus- pended for five days without pay, which the union grieved. The arbitrator found that the worker's behaviour was insubor- dinate, as he was directed to do a task and challenged the super- visor. In addition, this behaviour — corroborated by both the su- pervisor and the plant manager — was not "calmly insubordi- nate," but involved aggression towards his supervisor. The su- pervisor and plant manager both told the worker to go home and the supervisor contemplated calling police, which was con- sistent with being faced with in- timidating behaviour. Though the worker acted ag- gressively, the arbitrator found he didn't say anything that could be construed as a threat. There- fore, the issue was whether the aggressive behaviour was serious enough on its own to meet the definition of workplace violence. The arbitrator found the worker's disruptive behaviour was an attempt to intimidate his supervisor, but was not enough to qualify as workplace violence. The supervisor may have felt threatened, but the arbitrator determined it was not objec- tively reasonable to interpret the worker's actions as a threat to use physical force. However, the arbitrator de- cided not to reduce the suspen- sion 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 supervisor ended up in the hos- pital. See Procor Ltd. and BBF, Lo- cal 128 (Smith), Re, 2015 Car- swellOnt 2494 (Ont. Arb.). He acknowledged he acted in an intimidating and aggressive way but did not apologize for it.

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