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Workplace New Year’s Resolution #2: It Pays to Be Remorseful (And to Be Unionized)!
We can probably all agree that workplace violence can not and should never be tolerated. In my view, Employers should take a very firm stance and terminate any employees who intentionally physically assault another employee, particularly when they don’t show remorse. I’ve come across a recent decision that runs counter to this opinion, and while I don’t often critique decisions on Slaw, Kruger Inc., v. Unifor, Local 1646, 2014 CanLII 66101, deserves some discussion.
The Employer is unionized by Unifor and so the decision to terminate the Employee was challenged in a grievance. The facts are simple are relatively uncontested. Two employees were working on the floor and got into an argument. They were both aware of the Employers’ anti-violence policies. The following excerpt explains clearly what happened:
[12] … [Employee A’s] appearance in the car, brushing against her as he got in, with a screwdriver in his hand, considerably startled the grievor. [Employee B (she)] spun round to face him. He tried to reach towards the control panel. In her panic, fright, and fury, she sought to prevent him from shutting down her machine, knowing her supervisor’s instruction was to keep the machine working. She grabbed hold of [Employee A’s] shirt and shook him roughly, also squeezing his upper arm, screaming very loudly at him to get off her car. He put up his arms to protect himself. She moved his arm aside, where he held the screwdriver. She kept screaming very loudly, yelling that he should call Karl, the supervisor, and swearing at him. He took his walkie-talkie, attached to his clothing in front of him, to summon the supervisor. She grabbed his walkie-talkie, stretching out the coiled handset cord and wrapping it around his neck. She too was trying to use the speaker to call for Karl. In doing so, she was also throttling Mr. Zhu. He unwrapped the wire from his neck and backed away.
The Employee was met, refused to acknowledge that she had done anything wrong and said she “would do it again in the same circumstances”. The Arbitrator agreed that the “grievor considerably over-reacted to the situation” and “her conduct was a serious assault on a fellow employee”. Shockingly, the Arbitrator nonetheless overturned the termination, substituting a suspending, saholdingying that while she had not been remorseful at the time of the incident, she was remorseful later:
[28] At the time of the filing of the grievance two important facts were missing from the Employer’s consideration then; facts that became apparent only as a result of the arbitration hearing. The first is that the grievor has now made clear that she would not act as she did at the time of the incident. At the time of the grievance, the grievor had said she would have acted as she did if the same situation arose. That showed inadequate remorse at the time of the incident; she did not then adequately appreciate the wrongfulness of her behaviour. At the hearing the grievor showed considerable remorse and a clear understanding that she had overreacted and behaved wrongly. She was able to make clear that she would not repeat what she had done. The second fact is that the grievor had apologized and continued to apologize to Mr. Zhu for the harm she caused him. These facts were not available to the Employer at the time of termination.
Of course she was remorseful – she had been terminated for cause and was at a hearing. She clearly wasn’t remorseful right after the incident. In a non-unionized environment, perhaps she may have been able to allege an absence of just cause and won pay-in-lieu (unlikely), but she could not have been reinstated (in Ontario at least). That being said, I can’t see a MOL officer acknowledging that an employee committed a “serious assault” on a colleague and not finding just cause.
So what can we draw from this? I’m not really sure.. What I can say is that if I were the Employer, I would also have terminated and fought the grievance and then tried to have it reviewed. If you’re an employee and assault someone… be remorseful.
Am I being too harsh here? Comments please!
What I fail to understand (and have seen time and time again) is why HR in this case did not make use of the criminal complaint options available to them. While criminal and administrative law are different animals a refusal to make a criminal complaint about an assault that happened on site, had witnesses and was confessed to escapes me. I do know that HR are not the police and there some good reasons why HR doesn’t refer every suspicion of a criminal act on to authorities. That being said, a criminal conviction is this matter (very likely given the facts) would have allowed the employer to say that a crime had been perpetrated on their work site by the grievor and would have had that claim evidenced by a judges decision. This would have lent gravitas to the employers argument. In my view all Workplace Violence policies should establish that all assaults are referred to the police as a matter of policy – regardless of whether the victim chooses to participate in the criminal complaint process or not. This is a classic example of HR thinking with admin law blinders on – on top of some HR policy being violated a legitimate crime was committed. They should have acted accordingly.
I agree generally. As they say, bad cases make bad law. Thanks for your comment.
The seminal case wrt to termination for workplace violence, i.e. Kingston (City), has established that acts of workplace violence do not justify automatic termination, and I agree with that, given that discipline is corrective and termination in the unionized environment is saved for when behaviour cannot be corrected or the act is particularly heinous (which suggests a complete repudiation of the employment relationship).
While the remorse in this case may have been less than genuine, it is not automatic that a grievor will show remorse at a hearing, and often a grievor will continue to show no remorse right to the bitter end.
I do think that employers should be careful in differentiating between kinds of workplace violence in order to craft disciplinary penalties, but this is a strategic, labour relations, consideration (i.e. you don’t want to get into endless line drawing discussions with the union) and not one founded on current arbitral jurisprudence.
Also note that reinstatement is not the automatic award in cases of termination. It is possible for the employer to argue that despite the fact that it didn’t have just cause it should not have to tolerate the grievor’s presence. The award is then an amount of money which is calculated in several different ways.
Her reaction, described as an overreaction, was “panic, fright and fury” – noting “panic” and “fright” first. The decision notes other aspects which were apparently significant to the grievor at least including the screwdriver in the other worker’s hand (which she tried to push away?), his trying to shut the equipment down, etc.
That is, did the grievor subjectively think she was defending herself from a startling threatening situation with a possible weapon (screwdriver, she tried to push his arm away also) which however objectively unreasonable, differentiates this from the more typical workplace assault? That even if not reasonably self-defence there was still “provocation” of a sort?