Pipe-throwing employee a risk to re-offend: Arbitrator

Risk of serious injury in incident was small but employee was a risk for further workplace violence, giving employer just cause for dismissal
|employmentlawtoday.com|Last Updated: 08/29/2012

An Ontario employer had just cause to dismiss a unionized employee for workplace violence when there was a risk the employee would do it again, an arbitrator has ruled.

The employee was a 41-year-old manufacturing operator for Walker Exhausts, a manufacturer of exhaust systems for the automotive industry in Cambridge, Ont. Hired in October 2009, the employee received training in January 2011 along with other workers on Ontario’s Bill 168 dealing with the prevention of workplace violence.

On Nov. 4, 2011, the employee was asked by a set-up person to switch machines, a normal practice in the plant. However, the employee felt the request was unfair because of recent work assignments and refused. Another machine operator asked the employee loudly why he wouldn’t switch machines, which made the employee angry. As the other machine operator discussed it with the set-up person, the employee picked up a metal pipe about 20 inches long and threw it at the two other workers. The pipe hit the floor a few feet in front of them and more angry words were exchanged.

The employee was sent to his supervisor’s office, who suspended him pending an investigation. The employee acted aggressively towards the supervisor and, as he left, threw his gloves towards the supervisor.

The same day, the company received a complaint from another worker that the employee had struck him in the ribs with an open hand the day before. It also learned the employee had been involved in an incident in October 2010 and had been required to take an anger management program through the employee assistance program, but had failed to complete it.

The employee admitted to striking the other worker with his hand the previous day, but said it wasn’t in anger and it seemed to be a minor incident. He also claimed he didn’t complete the anger management counselling because he didn’t think it was necessary. He admitted to being angered by the gesturing and yelling by the other operator and said he threw the pipe to make him stop, acknowledging that he knew it was wrong and he felt bad about it.

On Nov. 22, 2011, the employee’s employment was terminated for cause.

The arbitrator found that the employee may have been aggravated by his co-worker’s conduct and his intention in throwing the pipe was to intimidate the co-worker. Though the risk for serious injury was minimal, there was some risk and there was an “implied threat of violence” in the employee’s actions.

The arbitrator also noted that the employee continued to be angry in his supervisor’s office several minutes later and acted “both aggressively and insubordinately” towards the supervisor. Given that he was instructed to attend anger management counselling but didn’t, the employee seemed to have a problem with anger that prevented him from thinking clearly and made it likely another incident would occur if something made him angry, said the arbitrator.

The arbitrator also considered that the employee had relatively short service with the company and didn’t show any remorse. He also failed to explain why he acted angrily to his supervisor following the incident.

The arbitrator upheld the termination, finding the employee gave little indication that he could be rehabilitated and returned to the Walker plant without a risk of something similar happening again.

“The (employee) has acknowledged that his conduct was wrong, but there is no suggestion that he thought otherwise at the time,” said the arbitrator. “What is of concern is his ability to restrain himself from wrongdoing when he becomes angry.”

For more information see:

Walker Exhausts v. U.S.W. (Local 2894), 2012 CarswellOnt 9298 (Ont. Arb. Bd.).

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