A unionized worker who was fired after backing into a door, causing almost $500 in damage, was awarded his job back by an arbitrator because there was no evidence he did it on purpose.
Art Swain worked for New Flyer Industries Ltd. for 14 years. On Nov. 16, 2004, he was backing up a loading machine when a co-worker yelled to him that he was going to hit a door. Swain stopped, looked up, cursed the door and resumed backing up. The loader hit the bottom of the door, causing damage that was repaired two days later at a cost of $476.
The company investigated the incident and Swain was fired. Through his union he filed a grievance to the Manitoba Arbitration Board.
New Flyer claimed Swain had done wilful damage in excess of $200 to company property. Under the collective agreement between the company and the union this was an “intolerable offence” punishable by instant dismissal. The parties had already negotiated the applicable penalty and since all the facts had been proven, the termination must be upheld, said the company.
Swain’s union disputed the extent of damage done to the door. It argued, furthermore, that Swain did not have a malicious intent when he collided with the door, and thus could not be guilty of an intolerable offence. In short, it was an accident.
Warehouse supervisor John Scheepers testified he wasn’t certain Swain had caused all the damage to the door. Doors were occasionally dented, and in the past the company “just lives with the damage,” he said.
Another witness, who’d been with the company for 15 years and was a shop steward, said he looked at the door after Swain collided with it and it appeared no more damaged than several others. The doors are simple track-and-pulley contraptions. The usual practice was to tell a foreman, who would bang it until it functioned as required, he said. He echoed Scheepers’ testimony that a worker had never before been disciplined for doing damage to a door.
All the parties in the case agreed that ultimately the key issue was Swain’s intent when he damaged the door. The company argued his conduct in stopping the loader and cursing just prior to the collision was proof he intended to ram the door. His failure to report the incident afterward is more evidence it was not merely an accident, it said.
Swain testified that he was under considerable stress at home and was having a troubled day. He said when he damaged the door he thought he had enough clearance to drive under it. Under cross-examination he denied that his actions were intentional; and said he intended to report the incident to a supervisor, but simply forgot.
An employee can be terminated for wilful conduct that falls short of sabotage. But as worded in the collective agreement “wilful" means more than just voluntary and deliberate: it must require a premeditated or malicious motive to cause damage, the board found.
This deliberate intent can be inferred from an employee’s actions, but in this case the board was satisfied Swain did not intend to cause damage to the company. His actions were more consistent with a careless attitude than with a deliberate attempt to cause damage or a random act of destruction. He did not intend to cause his employer financial harm.
Swain was under stress, which made him careless and impatient. He was negligent in failing to take reasonable care while passing through the door. He had a spur of the moment reaction to a frustrating situation. The whole incident took just a few seconds, the board found.
An unthinking act is not the same as a premeditated or malicious act. While acts of momentary frustration or negligence can be cause for discipline, they do not necessarily constitute an intolerable offence.
Swain earned “no medals for his conduct,” said the board. But since the company had not proven he was guilty of wilful damage it had to give him his job back with full redress.
For more information see:
New Flyer Industries Ltd. v. CAW-Canada, Local 3003
, 2005 CarswellMan 528,  L.V.I. 3613-3 (Man. Arb. Bd.)
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