Fired for Physical Flare Up Following Phone Find

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

You’re familiar with the scenario: a momentary physical flare-up over nothing provides the employer with arguable grounds for termination. They’re arguable because there are no hard-and-fast rules that termination results in every case of physical violence. In a legal challenge, arbitrators pay close attention to anything the employee says to take responsibility for his or her actions or to show remorse. In 2022 CanLII 112111 (CA LA), we see how significant the mitigating factor of an apology-or the lack of one-can be.

What happened

On her way out the door in the morning, the employee grabbed a bag (her daughter’s) and put her things inside it. Unbeknownst to her, it contained a very old cellphone without a battery. In most workplaces, that wouldn’t be a problem, except here, it was. The employee worked for a large delivery company that required her belongings to be scanned on arrival for security reasons. A policy banned cellphones on the premises, so employees could secure theirs in lockers that were provided for the purpose. On the day in question, the employee went through the scanner like usual, then to the cafeteria, then to her workstation. Although aware that security wanted to talk to her, she worked her shift and next approached security on her way out, when, under video surveillance, she put her things on a conveyor belt.

The metal detector’s find of the cellphone started a process of confirmatory scans. Unable or unwilling to believe the officer, and believing her own phone was locked away, she forcefully walked forward and pushed one of the officers aside. When her bag came out of the scanner, she was told to empty her bag. She upended it, spilling the contents on the ground. At this point she was made aware of the video recording and that a phone (without a battery) was found in the bag, and she left the area.

The employer made its decision to terminate after reviewing the videos, an incident report, the grievor’s statement, after meeting with her and hearing her denial.

The arbitrator’s decision

Ultimately, arbitrator Diane Gee upheld the termination, finding there were too few mitigating factors. Aside from her long service of 13 years, there was nothing weighing in favour of reinstatement. Most of the arbitrator’s comments focus on the presence or absence of an apology. The grievor admitted it was inappropriate to have emptied the bag onto the floor, but this didn’t go far enough, in the arbitrator’s view, given the full extent of her wrongdoing. The missing piece for the arbitrator was a commitment from the employee not to push past people or yell at them. Without that, she had no confidence the grievor was aware of the damage her actions caused. The arbitrator concluded by saying the grievor had been dishonest at several points all along and under oath, seriously undermining the employer’s ability to trust her. This factor, she said, tipped the balance against reinstatement. Employers have a statutory obligation to keep their workplaces safe. With no assurances from the employee, the arbitrator concluded there was a real risk of reoccurrence.

Key takeaways for employers

Employers can take note of this case for its demonstration of the modern arbitral stance on toxic workplace conduct. At one time, some badgering and belittling at work might have been tolerated, but not so anymore. The stakes are high for all involved, and employers can only employ people it feels would be safe in the workplace.

In this case, the employee ended her chance of getting her job back by not apologizing. It seems like a simple formula for success, but not infrequently, grievors don’t apologize. Such a lack of contrition can, in some cases, bolster the employer’s belief that trust has been irreparably broken.