Employee’s lack of remorse affects suspension

Worker became 'disruptive'
|Canadian Labour Reporter|Last Updated: 02/23/2015

The International Brotherhood of Boilermakers Local 128 filed a grievance alleging Procor imposed a five-day suspension of Brian Smith without just cause. On April 12, 2013, Smith was ordered to leave the company’s Ontario-based facility after becoming “boisterous and disruptive.” Following an investigation, he was suspended for five days. Smith’s supervisor, Ray Shannon, said he approached Smith that day to question him about a work order. The work order said that work on a car — performed by Smith and a fellow employee — had been completed. However, the reflective strips and decals that are applied to indicate where the car had been re-qualified had not been attached. Shannon testified he handed the work order to Smith and asked him to apply the reflective strips and decals. But Smith stood up and began yelling in his face, swearing and demanding why Shannon hadn’t asked the other employee working on the car to do the work, according to Shannon. The worker was reportedly inches away from Shannon during the interaction, and Shannon said he could feel spit flying onto his face. After backing away, the supervisor said he once again told Smith to complete the work, but Smith continued to yell. Shannon told Smith he was being disruptive and would need to leave the plant. Shannon claimed Smith refused to move, and so if Smith would not leave the facility, Shannon would be forced to call 911. After Smith was escorted off company property, Shannon went home. He claimed he was so shaken by the incident, he had to take his heart medication. While Smith’s account of what was said during the interaction largely coincided with Shannon’s, he denied ever swearing or raising his voice. Smith also denied acting in a manner that could be considered threatening or intimidating. It was also made clear that everyone involved in, or who witnessed, the encounter was wearing ear protection and surrounded by employees carrying out loud work. Following an investigation, Smith was suspended for five days after the employer concluded he “did portray workplace violence, intimidation and boisterous behaviour.” The union grieved the suspension, claiming it cannot be definitively concluded Smith threatened or intimidated Shannon. While some of the witnesses testified Smith did in fact yell, others said Smith spoke calmly with Shannon and seemed shocked when he was asked to leave. Procor, however, requested the grievance be denied, arguing it had just cause to discipline Smith. Smith could have complied with Shannon’s request, the employer asserted, but instead decided to debate it. There was no evidence Smith had something else to do. On the contrary, the employer said, Smith simply wanted to challenge his supervisor and be uncooperative. The employer submitted the suspension was justified because the spittle that landed on Shannon’s face during the interaction constitutes physical con- tact. Shannon was afraid Smith’s threatening behaviour would lead to a physical altercation, said Procor. According to arbitrator Laura Trachuk, it cannot be disputed Smith was insubordinate. “He was directed to do a task and, rather than complying immediately, he challenged his supervisor,” she said. “That insubordination was just cause for discipline. Nevertheless, it would not, on its own, justify a five-day suspension.” While Smith was disruptive and boisterous, he did not say anything threatening, Trachuk found, and yelling at someone is not necessarily enough to establish work- place violence. “As his behaviour did not amount to workplace violence, I might have reduced the suspension if the grievor had shown any remorse,” Trachuk said. “However, he did not. The grievor was at fault… yet the grievor never acknowledged that he did anything wrong. Furthermore, he never apologized for even inadvertently causing dis- tress to Mr. Shannon.” Because of Smith’s lack of remorse, Trachuk could not find that a lesser penalty would meet the employer’s needs of corrective discipline. The grievance was, therefore, dismissed. Reference: Procor Limited and the International Brotherhood of Boilermakers Local 128. Laura Trachuk — arbitrator. David I. Wakely for the employer, Jesse Kugler for the union. Feb. 5, 2015.