Workplace Fighting: What Happens After the Dust Settles?

Written by Daniel Standing LL.B., Editor, published by First Reference Inc.

Thankfully, many employers will never have to deal with the aftermath of a physical confrontation that happens in the workplace. But if a fight occurs, the employer is faced with some unique challenges, both in terms of investigating and in meting out punishment to those involved. The recent Ontario arbitration case, Michael Garron Hospital and SEIU, Local 1 Canada (Khan) Re, 2022 CarswellOnt 795, puts these challenges in context and provides a useful precedent to employers who must deal with this unsavoury situation.

Background

Rayard Khan and Michael Nielen worked as porters at Michael Garron Hospital in Toronto. What happened between them on August 5, 2020, makes it hard to believe they were one-time friends.

The conflict began when Khan had to deliver a patient to the same hospital room where Khan’s father had previously died. It upset Khan to the point where he had to leave the hospital to compose himself so he went to his car for a cigarette. While outside, Nielen approached him and asked for a cigarette, to which Khan replied, “Not now, I am not in the mood.” He didn’t want Nielen to see him crying. More must have been said between the two because Nielen later left a voicemail for Khan saying things like, “Do it again, see what happens,” and “If you talk to me like that again, we are going to have a big fucking problem.”

The next day, things further escalated when their verbal sparring led Khan to invite Nielen outside to settle their differences. The arbitrator concluded this could only mean that Khan wanted to fight. While in the parking area, Nielen tried to get away several times but Khan, the larger of the two, stood in his way, yelling and pointing at him. Then he struck Nielen. The altercation continued until Nielen walked down the street while Khan continued to yell and point at him.

The entire sequence was captured on the hospital’s security footage and was observed by a colleague. The employer viewed Nielen as being less blameworthy, so it suspended him for 10 days. Khan, who had a previous three-day suspension for related misconduct on file, was dismissed.

The arbitrator’s decision

When an employee is fired for cause, the threshold question is whether any discipline was warranted at all. Here, the arbitrator easily concluded that a serious violation had occurred because the misconduct was in violation of several workplace policies and the Occupational Health and Safety Act. Khan’s actions, said the arbitrator, were akin to a bully in a schoolyard. His aggressive pursuit of Nielen made the incident quite serious.

Aggravating the situation were Khan’s prior disciplinary record and his decision to lie to the investigators about what happened.

Also problematic for Khan was his inability to plead provocation in mitigation of his penalty. This was unlike a case the union cited where the altercation started and ended quickly; rather, this carried over from the hallway into the parking lot where Khan’s pursuit of Nielen continued. All the while Khan’s statements that he was “not running,” and that Nielen “knew where [Khan] parked” were not statements from someone who was provoked into an impulsive physical reaction, according to the arbitrator.

As this was “not a case where a long service employee with a clean record was caught up in an escalating conflict and deserves a second chance,” the grievance was dismissed.

Key takeaways

One can imagine the difficulty the hospital would have faced had its investigation been reliant solely on the two men’s versions of events. When the stories are markedly different, there is a real prospect that someone is lying. This is when alternate sources of evidence become critical, whether it be surveillance video or eyewitness accounts. Steps should be taken to safeguard such evidence at the earliest opportunity.

Finally, if those who are involved in the altercation are not equally culpable, different punishments can be meted out. While the disparity in punishments might raise a red flag for an arbitrator, so long as they are proportionate to the person’s role in the conflict, the punishment stands a good chance of being upheld.