Maple Leaf Foods worker fired for making threats

Worker at Winnipeg plant threatened violence against his supervisor, says arbitrator
|employmentlawtoday.com

A worker at Maple Leaf Foods in Winnipeg was fired after he made threats against his supervisor. The decision to terminate his employment was upheld by an arbitrator, who said the threats were serious. But the arbitrator also pointed out that the stance taken by the worker and his union — mainly to deny any wrongdoing — made it impossible to substitute any lesser form of penalty.

Wayne Jarmuske was fired on May 18, 2004, after he allegedly made threats against his supervisor, Carl Sulymka. The threats were not made by Jarmuske directly to Sulymka, but were made in a conversation between him and David Erl, the health safety and security manager at the company’s facilities in Winnipeg, on May 14.

Jarmuske grieved the termination. The events took place at two facilities operated by Maple Leaf Pork in Edmonton. The Marion Street facility is a slaughterhouse for pigs. Between 120 and 130 bargaining unit employees work at Marion Street. The other location is on Warman Road, a larger processing facility that does processing and packaging. It has about 600 bargaining unit employees and various office and support facilities, including finance, HR and health and safety.

Jarmuske was a lead hand on the night shift at the Marion Street facility. In May 2004, Sulymka was the night shift supervisor at Marion Street and was the person Jarmuske reported to.

On May 11, 2004, there was a blood spill at the plant. Blood is typically collected in a pit within the plant, and pumped a considerable distance through pipes and hoses to a tanker truck. The blood spill likely occurred when a clamp, which attached a high pressure hose to the tanker truck, became disconnected. The disconnection likely occurred as a result of human error in attaching the hose to the tanker truck or as a result of a malfunction of the clamp.

Sulymka discovered the leak when he was walking outside of the plant from his office towards the barn area of the facility, where pigs are delivered for slaughter. Sulymka's path took him past the location where the tanker truck was parked. He noticed the spill and concluded, based on the quantity of the blood, that the spill had been ongoing for a considerable period of time.

He continued past the area of the spill through the main door of the barn and noticed Jarmuske and another employee, Clint Tessier, talking inside the barn. They were in a location from which they would not have been able to see the blood spill. Sulymka directed their attention to the spill and ordered them to deal with it.

Over the next few days, Sulymka considered the issue of the spill and concluded that, given Tessier's job duties and functions, he was directly responsible for not having discovered and rectified the spill earlier. He also concluded Jarmuske was indirectly or vicariously responsible for those omissions. Sulymka also concluded a disciplinary response was warranted. Accordingly, notices of written warnings were prepared, one for Tessier and one for Jarmuske, which were signed by Sulymka. The notices were dated May 13 and Sulymka intended to deliver the notices to Tessier and Jarmuske, individually, in the presence of a shop steward during the course of the night shift on May 13.

Sulymka delivered the notice of written warning to Tessier during the early portion of the night shift. In the latter portion of the shift, Sulymka summoned Jarmuske to a meeting room in the office area of the Marion Street facility. By the time Jarmuske had been told to come to the office, he was aware Tessier had received a formal written warning and that he was also to receive such a warning. Jarmuske considered it unfair that he was to receive a written warning.

There was a dispute between the parties as to several facts with respect to the events of the evening of May 13. It is not disputed that once Jarmuske arrived in the office area, he promptly proceeded to a computer to download some data onto a computer disk, which was a normal part of his responsibilities at the end of his shift. It is also not disputed that Sulymka called a colleague in HR to obtain advice as to how he ought to handle his unwillingness to accept the notice of written warning.

The advice received by Sulymka was not to press the issue that night, but to deal with it the next day. Accordingly, Sulymka told Jarmuske he should go home and the situation would be dealt with the next day.

Immediately upon Sulymka telling him he could go home, Jarmuske took the computer disk he had been working with and threw it, or flipped it, over a divider — the disk struck a wall. Sulymka interpreted the actions as an "outburst,” motivated by disrespect and anger. Sulymka told Jarmuske he was suspended and was not to report back to work without first making arrangements through the HR department. Although other people who were present heard Sulymka tell Jarmuske he was suspended, he said he did not hear Sulymka suspend him and that he left the Marion Street premises that night not realizing he had been suspended.

The next morning at approximately 9 a.m., Jarmuske went to the Marion facility and spoke to some co-workers about the events of the previous evening. One of the co-workers to whom he spoke was Mark Mistelbacher, who was a shop steward. Mistelbacher concluded Jarmuske was "stressed out" and he urged him to go see the company nurse to obtain the necessary forms to apply for a medical leave. The nurse's office was located at the Warman Road facility.

Another of the Jarmuske’s co-workers, Rene Marion, a maintenance supervisor, told Jarmuske that Danforth, the general supervisor of the Marion Street plant, to whom Jarmuske wished to speak about the events of the previous evening, was at the Warman Road facility that morning. Accordingly, Jarmuske went to the Warman Road facility with the intention of meeting with both Danforth (to discuss the blood spill incident) and with the nurse (to obtain documents necessary to apply for a medical leave).

Upon arriving at the Warman facility, Jarmuske encountered Danforth and had a brief meeting with him. He then met with the nurse, Julie Visser and Erl, the health safety and security manager of both the Marion Street and Warman Road facilities. After a brief meeting with Visser and Erl, Jarmuske accompanied Erl to Erl's office where they met alone. Erl believed Jarmuske had been drinking.

The company alleges that while Jarmuske was meeting with Erl, he made a series of serious threats of violence against Sulymka. Those threats prompted Erl to ask Jarmuske to leave the premises. Jarmuske adamantly denied that he threatened Sulymka in any way either in his meeting with Erl, or at any time. Erl gave Jarmuske with two taxi vouchers (one for Jarmuske to use to go home that day, the other for him to return the next Monday to retrieve his vehicle).

Erl said when he asked Jarmuske to leave, he told him not to communicate with any Maple Leaf employees and to stay off all Maple Leaf premises over the weekend and to call him before picking up his vehicle.

After Jarmuske left the premises, Erl consulted with various people and ultimately reported the events of that morning to the police. The report to the police resulted in Jarmuske being picked up by police twice over the next few days, once for the purpose of having a mental health assessment conducted, and the other to be detained overnight in custody on the criminal charge of uttering threats.

The company decided to terminate Jarmuske’s employment and did so on May 18 by means of a letter delivered to Jarmuske by a private security firm engaged by the Company.

The termination letter

Wayne:

The Company and the Union have made several attempts to contact you by phone. Since we have not been able to reach you on this day we have no choice but to hand deliver the company response to the incident that occurred on May 14th, 2004.

Your actions of threatening a supervisor on Friday May 15th, 2004 [(sic) May 14th, 2004] were unacceptable. It is the Company's position that actions of this nature are harmful in creating a positive working environment. This [is] everyone's responsibility and as such it is expected that all employees of Maple Leaf Pork Winnipeg, will treat one another with respect and courtesy at all times.

In light of the above, this letter will serve as notice that your employment with Maple Leaf Pork Winnipeg has been terminated effected [(sic) effective] May 18th, 2004 and you are not to return to or enter any Maple Leaf Property.

The Union has been advised of your termination and you are entitled to the rights under the collective agreement.

Sincerely,

Robert Panontin

Human Resources Generalist

Maple Leaf Pork

Winnipeg

What Jarmuske allegedly said to Erl

According to Erl’s testimony, it was obvious Jarmuske was upset with Sulymka because he kept saying things such as “I am not going to accept that paper from Carl,” and that “Carl has no right to suspend me.” He also said, “Carl has a hate on for me.”

Erl said Jarmuske made the following threats:

•"I am a killer for a reason";

•"I am a sticker; I am a sticker for a reason";

•"I love blood";

•"Carl better watch it; he doesn't know who he's dealing with"; and

•"I know how to use a knife".

Erl said he interpreted all of the above noted comments as threats of violence towards Sulymka, indeed threats to kill Sulymka. He described Jarmuske as sitting on the edge of his seat, waving his hands and pointing his fingers.

Erl concluded that the Grievor was not stable, and that he did not want him in his office, or in the plant. Erl indicated that at that point in the conversation, his goals were to calm Jarmuske down, get him off the company premises, put security in place and to advise Sulymka.

A security plan was put in place whereby 24 hour security coverage was placed on both plants and Sulymka was provided with a bodyguard. Erl worked past 6 p.m. that evening, and as he was leaving for the day Jarmuske pulled into the parking lot driving a car. The vehicle that he had left at the Warman Road parking lot was a pickup truck. The passenger window on the Jarmuske’s vehicle was down, and according to Erl he was visibly unstable and "reeked of alcohol." Jarmuske wanted to see Sinclair, or any other representative of management he might know. Coincidentally, Sinclair was just arriving at Warman Road. Erl signalled to Sinclair to call 911. Sinclair did so, and when the Jarmuske saw Sinclair using his cell phone, he left the premises. Erl was concerned Jarmuske was going to the Marion Street plant. Erl indicated to Sinclair that he ought to tell the police to go to the Marion Street plant. Erl proceeded there, and the police had already arrived. Sulymka was on his way out of the building, but there was no sign of the Jarmuske. Erl provided a description of Jarmuske and his vehicle to the police.

Earlier that afternoon, Erl had reported the matter to the police, and two constables had attended at Warman Road and had interviewed Erl.

On Sunday, one of the constables that had attended at Warman Road on Friday afternoon telephoned Erl and recommended that he come in and swear out a formal complaint against Jarmuske and provide a full statement. Erl consulted with his boss, Malinowsky, who judged the situation to be serious and indicated that Erl should do what he thought was necessary.

Erl went to the police station on Sunday evening and made a full report to the police.

Over the course of Monday, May 17, and early Tuesday, May 18, Erl consulted with other members of management, and a decision was made to terminate Jarmuske’s employment.

Erl testified that he, and the other members of management, considered Jarmuske to be a "ticking time bomb" and the company had serious responsibilities with respect to the safety of Sulymka and other employees. Erl took the threats very seriously and testified that all of the other professionals, including Oliver Yaskiw and the police, also took them very seriously.

Jarmuske had been the subject of a previous written warning in September 2003 in which he had been warned that he must learn to control his temper and not to direct his frustration on others. According to Erl, the previous written warning, and the blood spill incident of May 11, and the events of the evening of May 13, had not been a factor in his conclusion that Jarmuske’s employment ought to be terminated. In Erl's mind, the termination was based solely on the threats of violence. Erl indicated he did not know what part the other incidents had played in the thoughts of other representatives of management who had participated in the decision to terminate the Grievor's employment.

Erl expressed the view that to reinstate Jarmuske would be "absolutely ridiculous". Erl opined that Jarmuske has "too short a fuse" and that to rehire Jarmuske would be putting Sulymka and other supervisors in a bad position. Moreover, reinstatement would send the wrong message to other employees indicating the company does not have a very strong security or safety program.

The arbitrator’s ruling

The arbitrator concluded that Jarmuske had indeed made threats of violeance against Sulymka and that his misconduct was serious and warranted discipline.

Although there were some mitigating factors in this case, the seriousness of the threats were insufficient to justify the substitution of a lesser form of discipline.

“In that regard, I would make an additional observation,” the arbitrator said. “The union and (Jarmuske) chose to present this case on the basis that (he) did not threaten Sulymka. I have found otherwise. However, consistent with Jarmuske’s and the union's approach, no evidence was introduced to establish that (Jarmuske) recognized any wrongdoing on his part, or that he would significantly alter his behaviour in the future. (He) was clear in his evidence that he felt he had done nothing for which he should apologize.”

Therefore, the grievance was dismissed.

For more information see:

U.F.C.W., Local 832 v. Maple Leaf Pork

, 2006 CarswellMan 457 (Man. Arb. Bd.)

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