An Ontario arbitrator recently ruled that a manager breached safety rules when he grabbed an employee he believed was being insubordinate. As a result, the employer was ordered to pay the employee $3,000 in damages for the breaches.
Facts of the case
The employer operates a beef harvest and livestock byproduct facility in Guelph, Ontario. The employee was a skid-off operator who was hired in 2010 and worked in the skid-off area since 2015.
On June 12, 2019, the general manager and highest-ranking official in the plant was walking through the skid-off and warehouse area of the shipping and warehouse department. Employee duties in the skid-off include taking boxes of product off conveyor belts and stacking them on pallets or skids. Employees in the area wear hearing protection.
The general manager saw a trainee talking to other employees while standing in the middle of an empty pallet. He approached and explained that standing on pallets wasn’t permitted because of food safety concerns, and the trainee stepped off the pallet. The employee in this case was in the area during this exchange.
As the general manager walked away, he heard an unidentified employee say, “Have a nice day” in a sarcastic tone. The general manager interpreted it as a challenge to what he had said to the trainee. He returned and explained to all of the employees present in the area that he spoke to the trainee for educational purposes and that there would be no discipline. However, after he finished speaking, the employee in this case walked across the same skid that the trainee had been standing on. The general manager asked the employee why he was doing what he had just talked about, and the employee replied that there was nowhere else to go. The general manager said that the employee could go around another way, and they could figure out the spacing between pallets. The conversation escalated and became tense.
Then the employee picked up the pallet in question to move it. The general manager physically stopped him from doing so. According to the employee, the skid measured about three feet by four feet and weighed about 64 pounds. While the skid was almost vertical, the general manager’s two hands were on his shoulders. The muscles beside his neck were being squeezed. He was jolted forward and backward. The employee had to duck down to get out of the “grip.” He dropped the skid as a result. It landed at his feet in its original position.
The employee objected to the general manager’s actions. Another escalating exchange between the two followed.
The employee felt that he could have been injured if the skid had fallen on him or he had fallen. He told the general manager to never put his hands on him and asked why he would do that, but the general manager didn’t answer.
The general manager reported the incident to the employer’s senior specialist in employee relations saying that he put his hand on the employee’s back and said to stop and they would “figure it out” after the employee “directly and blatantly” walked across a pallet. Later that day, he sent a second Email with more details, saying that he put his left hand on the employee’s upper back and made a “stop” motion with his right hand, telling the employee to “hold on” after the employee “aggressively grabbed the pallet.”
An investigation ensued. However, the employee was sent home pending investigation after he was interviewed.
The general manager’s account and the employee’s account differed on what happened. Other employees in the nearby vicinity at different vantage points gave varying accounts about what they saw. There was no unanimity or consensus about how many hands the general manager used or where they contacted the employee. Overall, their evidence did not meaningfully corroborate the conflicting accounts of the employee and the general manager.
On completion of the investigation, it was determined that the incident did not constitute workplace bullying or violence under the company’s Violence, Discrimination and Harassment Prevention Policy or the Ontario Occupational Health and Safety Act (OHSA).
The employee wasn’t happy with the conclusion and filed a grievance alleging a violation of the collective agreement which incorporated the OHSA and the company’s violence policy. Specifically, the employee’s grievance referred to a collective agreement provision and an OHSA section that required the employer to “take every precaution reasonable in the circumstances for the protection of an employee.”
In resolving the conflicting accounts of the employee and the general manager, the arbitrator considered the well-known excerpt from Faryna v Chorny, 1951 CanLII 252 (BC CA),  2 D.L.R. 354 (B.C.C.A.). At page 356, the Court reasoned in part: “The real test of the truth and story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”
In resolving this question, the arbitrator found that the employee’s account that the general manager put two hands on his shoulder was accurate and reliable. In that regard, he has been consistent throughout. This includes his immediate reaction afterward, namely telling the general to never put his hands on him. The general manager’s account had several material changes. For example, the general manager changed his story in his two Emails and his interview. It also was unclear how not touching either of the employee’s shoulders would prevent him from moving the skid, the arbitrator said.
The arbitrator also questioned whether safety was on the general manager’s mind, as he didn’t mention it in his Emails to the employee relations specialist or raise it with the employee at the time. In the Emails and the interview, the general manager consistently said that the employee was “loud, belligerent, aggressive” and unco-operative. It was more likely that the general manager’s concerns and actions were related to what he viewed as the employee’s insubordination and not safety, the arbitrator said.
The arbitrator found that the general manager’s actions preventing the employee from moving the pallet while he was in the middle of doing so was a breach of the employer’s obligations under the collective agreement and the OHSA, as the general manager did not take “every precaution reasonable in the circumstances for the protection of an employee”-the physical intervention could have caused physical injury to the employee.
The arbitrator added that just because no injury occurred didn’t diminish the seriousness of the general manager’s “uncontrolled actions without regard to the potential safety risks.” Since a violation of the collective agreement and the OHSA were found, the arbitrator said it was unnecessary to address whether there was also a violation of the employer’s violence policy.