Violence in the workplace is unacceptable. That’s hardly a startling statement. But what is the punishment for violence? At what point does it rise to the level that will justify a dismissal for cause? Where is the line drawn between dismissal and some other milder form of punishment?
The Ontario Arbitration Board recently dealt with a case where a dairy worker assaulted a security guard and whether or not the violence justified dismissal. In doing so, it dug up an arbitration decision from 1975 that contains a number of questions that can be asked in figuring out whether the line has indeed been crossed.
Worker attacked security guard
The worker was a lead hand at a dairy products processing facility operated by Natrel Inc. He had been with the company for more than 20 years. On April 13, 2005, he was working alone during the night shift.
A 19-year-old security guard was patrolling Natrel’s premises that night. The guard was an employee of an outside agency that contracted with Natrel to provide security. At some point during the night, the guard spotted the worker washing his personal vehicle in a wash bay. There is a sign posted indicating that the washing of employees’ personal vehicles is prohibited in the washing bays.
The guard’s account
The guard said he approached the worker and asked him if he knew he wasn’t allowed to wash his own vehicle. The guard said they had some discussion about whether there were, in fact, any posted notices. Both the worker and the guard said the discussion led to the worker simply saying, “Well, report me.”
The guard said he asked for the worker’s name and had just finished recording the name and licence plate number when the worker began shouting about losing his job and accusing the guard of laughing about it. The guard said the worker then ran forward and struck him on the face three times with a closed fist. As a result, the guards helmet and safety glasses were knocked off. The glasses were broken, and the guard received cuts on his left cheek, bruising under his eye and his nose started to bleed.
The guard said the worker immediately apologized for the attack and asked if there was anything he could do to help. The worker also repeatedly said he didn’t want to lose his job. The guard said the worker indicated he didn’t want the matter to go any further.
The worker’s account
The worker had a slightly different recollection of what transpired. He admitted he was washing his own car, but would not directly admit that he knew it was against company policy. He said a previous supervisor had indicated that it was OK to use the wash bay as long as he left it clean when he was finished.
He said the guard ordered him to remove his car immediately from the wash bay. The worker said that at the time he wasn’t feeling well, was suffering from headaches and a lack of sleep and he had wanted more time off from work than he had been receiving. He admitted that he had just had a holiday, but said he wasn’t himself.
The worker said the guard was grinning and said that he didn’t care about the worker’s job. The worker said this made him feel “mad.” The arbitrator said his evidence was “very unclear” about what happened next. The worker admitted to rushing the guard and hitting him on the face. But he adamantly denied hitting him three times with a closed fist. He said he hit him just once with an open-handed blow.
The arbitrator asked the worker to demonstrate how the blow he claims to have delivered could have been executed. But the worker was unable to show clearly how he could have delivered the single blow he admits to, the arbitrator said.
Photographic evidence and dental records confirmed the guard suffered a swollen nose, bruising under his eye, cuts to his left cheek and that he needed to have two teeth filed by a dentist.
What happened after the attack
After the assault, the guard, in shock, spent a few minutes finishing up his patrol and returned to the guardhouse. On his way, he saw the worker near the coffee shop.
The worker offered to buy him a coffee and a pop. But the guard declined. The guard then contacted his agency and reported that he had been hit three times. He asked that the police and an agency supervisor be sent to the scene.
When the supervisor arrived, the worker came to the guardhouse and said, through a glass door, “ I thought this wasn’t going to go further.” Shortly after that, the police arrived. They asked the guard if he wanted to press charges and go to a hospital. The guard declined the hospital and said he wanted to wait to see what Natrel did about the incident before deciding to press charges. After Natrel suspended and then fired the worker, no charges were laid.
Dan Beausoleil, the plant manager, said the decision to fire the worker was made after an investigation of the incident and a review of his personnel record which included a two-day suspension in 2004 for “tampering with product” and a written warning in 2003 for being absent without leave.
“The incident was deemed to be very aggressive — almost violent — something we really hadn’t experienced before,” said Beausoleil. “Because of that, we took it very seriously. With this, combined with what we’d seen on his record, his return to work could impact on the operation in a very negative way. The decision wasn’t lightly taken. The company concluded that assaulting a security guard would be akin to assaulting a supervisor in terms of responsibility.”
Beausoleil took into account the fact the worker apologized to the security guard. But there was concern he never apologized to Natrel. Instead, at the termination meeting, the worker said that he felt he had been “harassed” by the security guard, suggesting the assault had been justified.
The worker’s rehab attempts
After being fired, the worker said he used the company’s employee assistance program (EAP) to attend “five or six anger management sessions.” He set up the appointments himself within a week of the incident. He said that, after a few sessions, the counsellor advised him that he was “well-centred” and he did not need any further assistance.
But there was no corroboration of his attendance and there was no report filed from the counsellor. On a positive note, the worker was able to find another job relatively quickly with a well-established company.
The worker was given an opportunity to show he has an understanding of what had occurred. He was asked if he accepted that what he had done was very serious. His response was: “Yes. But I think it was made out to be more serious than it was. It was an isolated incident, my whole family is paying for it.” When asked if he was suggesting the whole incident had been blown out of proportion by the company, he agreed by saying, “It could have been done differently.”
The union’s view
The worker in this case was a member of the Canadian Auto Workers (CAW). The CAW conceded the worker did assault the guard, but argued discharge was an excessive response. The worker had been with the company for a long time and this was an isolated incident, it argued.
It pointed out that the worker apologized immediately and repeatedly after the incident and suggested the incident was an “emotional outburst” and there is no evidence to suggest it would happen again.
The arbitrator’s decision
Taking all of the factors into account, the arbitrator was left with the inescapable conclusion that a serious assault took place in the workplace against a person in a position of authority.
“Assaults are never acceptable,” the arbitrator said. “Assaults on supervisory staff are completely unacceptable. Unprovoked attacks cannot be condoned. An assault causing physical injuries is a very significant event. All this points to the reasonableness of an extremely serious sanction.”
The arbitrator said the worker’s 20 years of good service was a significant factor. “But even significant seniority is not a licence for violence. It is very sad to think that a momentary, unpremeditated and foolish reaction to being told to move a car out of an unauthorized area could destroy 20 years of service.”
But there were simply no mitigating factors to remotely justify the attack.
The arbitrator concluded the employment relationship had been irrevocably destroyed and therefore the company was justified in terminating his employment.
For more information see:
• Natrel Inc. v. C.A.W. Canada, Local 462, 2005 CarswellOnt 8283 (Ont. Arb. Bd.)
When violence warrants dismissal
Arbitrator turns to 1975 decision that outlined 10 questions to ask about violence at work
The arbitrator said, pointedly, there is “no room for violence in the workplace. If it occurs, it must always be taken seriously.” However, not every incident of violence will justify dismissal.
The arbitrator turned to Dominion Glass Co. v. U.G.C.W., Local 203, a 1975 arbitration decision, for assistance in determining if the violence in this case warranted dismissal.
Drawing on the analytical approach used in that decision, the arbitrator said the following factors were taken into the decision:
•Who was attacked? The attack was on a security guard, charged with ensuring the physical integrity of the workplace and employee compliance with posted policies. This occurred during a night shift when no supervisor was on duty. Therefore, the security guard was in the shoes of management to some extent.
By virtue of his position, the guard had some authority over the worker in the sense the guard had the power to tell him to leave the vehicle washing bay. Therefore, the guard can be seen to be in a position of a supervisor when the assault occurred. Ironically, the arbitrator said, he also must be accepted as being vulnerable because he was inexperienced, smaller, weaker and less familiar with the facilities than the worker.
•Was this a momentary flare-up or a pre-meditated attack? This was clearly not a pre-meditated attack. “It was truly a ‘momentary flare-up.’”
•How serious was the attack? The assault did have significant physical consequences. The guard was injured. He was cut on the face, bruised and needed both medical and dental attention. He felt pain for more than a week after the attack. He also was compelled to undergo blood tests because of concerns over the fact the worker had cut open his own hand from the force of the attack.
•Was there provocation? The worker said he felt threatened by the guard’s physical actions and was angered by the fact the guard was dismissive about the consequences of what would happen if a report was filed about his personal use of the wash bay.
But it was the guard’s job to file such reports. Even if the guard acted a bit improperly or was insensitive, it cannot be concluded that his actions amounted to provocation, the arbitrator said.
“If this were accepted to be provocation, then any supervisor or person with authority, who advised an employee that their misconduct was about to be reported would be opening themselves up to being assaulted,” the arbitrator said.
The arbitrator said it was tempting to accept the worker’s suggestion that his actions might have been triggered by lack of sleep and irritability from a headache.
“One can certainly understand and be sympathetic to the strains created by such conditions,” the arbitrator said. “They may explain a person’s reactions and tend to cloud good judgment, but they do not justify violence.”
•The disciplinary record of the worker. The worker had a written warning and a two-day suspension imposed in 2003 and 2004 for unrelated misconduct. The arbitrator said this was not a serious record, given his 20 years with the company, but found it interesting that his conduct seemed to be beginning to attract discipline in the recent two years. (There was no sunset clause in the contract.)
•The length of service of the worker. The worker in this case had been with Natrel for more than two decades and was a lead hand, something that indicated he had earned a level of trust and respect from the company.
•The economic conditions resulting from discharge. The arbitrator said discharge always results in financial pressures on an employee and his family. Though the worker was able to find another job quickly, the new position was not as lucrative or as good a job as the one he had with Natrel. This clearly has had a significant and negative impact on the worker and his family, the arbitrator said.
•The presence or absence of an apology. The worker immediately apologized to the guard, but there was no evidence he apologized to the company. On the contrary, the arbitrator said the worker actually blamed the company for a lot of what happened.
“There is no evidence that would indicate that he fully appreciates why the company took the incident so seriously or why an incident of violence such as this is not considered acceptable in the workplace,” the arbitrator said. “This was epitomized by his statement, ‘I apologize if I did anything wrong.’ The presence of the word ‘if’ in this statement is very troublesome.”
The arbitrator said his apology had to be tempered by his continued denial of wrongdoing.
•Acceptance of responsibility for his actions. This factor is closely tied to the apology. The worker admitted the assault, but offered several explanations that were more akin to excuses rather than mitigating factors, the arbitrator said. Further, he blamed the company for most of what happened, claiming he felt harassed, that he was overworked and that he was unfairly prevented from washing his car.
•Was the worker candid in his testimony? The arbitrator made a number of comments on this front. One of the more interesting, however, was the fact that the worker deliberately attempted to mislead the arbitrator. The worker claimed he had no involvement with the police in the last 20 years. This was an unnecessary denial and was proven to be untrue when the employer produced records of three convictions for assault within that period. “The assault convictions in themselves are not relevant to this case,” the arbitrator said. “But the deliberate and false claim of a clean police record does signal a lack of candour by the worker.”
For more information see:
• Dominion Glass Co. v. U.G.C.W., Local 203, (1975), 11 L.A.C. (2d) 84 (Ont. Arb. Bd.)
Worker attacked security guard
The worker was a lead hand at a dairy products processing facility operated by Natrel Inc. He had been with the company for more than 20 years. On April 13, 2005, he was working alone during the night shift.
A 19-year-old security guard was patrolling Natrel’s premises that night. The guard was an employee of an outside agency that contracted with Natrel to provide security. At some point during the night, the guard spotted the worker washing his personal vehicle in a wash bay. There is a sign posted indicating that the washing of employees’ personal vehicles is prohibited in the washing bays.
The guard’s account
The guard said he approached the worker and asked him if he knew he wasn’t allowed to wash his own vehicle. The guard said they had some discussion about whether there were, in fact, any posted notices. Both the worker and the guard said the discussion led to the worker simply saying, “Well, report me.”
The guard said he asked for the worker’s name and had just finished recording the name and licence plate number when the worker began shouting about losing his job and accusing the guard of laughing about it. The guard said the worker then ran forward and struck him on the face three times with a closed fist. As a result, the guards helmet and safety glasses were knocked off. The glasses were broken, and the guard received cuts on his left cheek, bruising under his eye and his nose started to bleed.
The guard said the worker immediately apologized for the attack and asked if there was anything he could do to help. The worker also repeatedly said he didn’t want to lose his job. The guard said the worker indicated he didn’t want the matter to go any further.
The worker’s account
The worker had a slightly different recollection of what transpired. He admitted he was washing his own car, but would not directly admit that he knew it was against company policy. He said a previous supervisor had indicated that it was OK to use the wash bay as long as he left it clean when he was finished.
He said the guard ordered him to remove his car immediately from the wash bay. The worker said that at the time he wasn’t feeling well, was suffering from headaches and a lack of sleep and he had wanted more time off from work than he had been receiving. He admitted that he had just had a holiday, but said he wasn’t himself.
The worker said the guard was grinning and said that he didn’t care about the worker’s job. The worker said this made him feel “mad.” The arbitrator said his evidence was “very unclear” about what happened next. The worker admitted to rushing the guard and hitting him on the face. But he adamantly denied hitting him three times with a closed fist. He said he hit him just once with an open-handed blow.
The arbitrator asked the worker to demonstrate how the blow he claims to have delivered could have been executed. But the worker was unable to show clearly how he could have delivered the single blow he admits to, the arbitrator said.
Photographic evidence and dental records confirmed the guard suffered a swollen nose, bruising under his eye, cuts to his left cheek and that he needed to have two teeth filed by a dentist.
What happened after the attack
After the assault, the guard, in shock, spent a few minutes finishing up his patrol and returned to the guardhouse. On his way, he saw the worker near the coffee shop.
The worker offered to buy him a coffee and a pop. But the guard declined. The guard then contacted his agency and reported that he had been hit three times. He asked that the police and an agency supervisor be sent to the scene.
When the supervisor arrived, the worker came to the guardhouse and said, through a glass door, “ I thought this wasn’t going to go further.” Shortly after that, the police arrived. They asked the guard if he wanted to press charges and go to a hospital. The guard declined the hospital and said he wanted to wait to see what Natrel did about the incident before deciding to press charges. After Natrel suspended and then fired the worker, no charges were laid.
Dan Beausoleil, the plant manager, said the decision to fire the worker was made after an investigation of the incident and a review of his personnel record which included a two-day suspension in 2004 for “tampering with product” and a written warning in 2003 for being absent without leave.
“The incident was deemed to be very aggressive — almost violent — something we really hadn’t experienced before,” said Beausoleil. “Because of that, we took it very seriously. With this, combined with what we’d seen on his record, his return to work could impact on the operation in a very negative way. The decision wasn’t lightly taken. The company concluded that assaulting a security guard would be akin to assaulting a supervisor in terms of responsibility.”
Beausoleil took into account the fact the worker apologized to the security guard. But there was concern he never apologized to Natrel. Instead, at the termination meeting, the worker said that he felt he had been “harassed” by the security guard, suggesting the assault had been justified.
The worker’s rehab attempts
After being fired, the worker said he used the company’s employee assistance program (EAP) to attend “five or six anger management sessions.” He set up the appointments himself within a week of the incident. He said that, after a few sessions, the counsellor advised him that he was “well-centred” and he did not need any further assistance.
But there was no corroboration of his attendance and there was no report filed from the counsellor. On a positive note, the worker was able to find another job relatively quickly with a well-established company.
The worker was given an opportunity to show he has an understanding of what had occurred. He was asked if he accepted that what he had done was very serious. His response was: “Yes. But I think it was made out to be more serious than it was. It was an isolated incident, my whole family is paying for it.” When asked if he was suggesting the whole incident had been blown out of proportion by the company, he agreed by saying, “It could have been done differently.”
The union’s view
The worker in this case was a member of the Canadian Auto Workers (CAW). The CAW conceded the worker did assault the guard, but argued discharge was an excessive response. The worker had been with the company for a long time and this was an isolated incident, it argued.
It pointed out that the worker apologized immediately and repeatedly after the incident and suggested the incident was an “emotional outburst” and there is no evidence to suggest it would happen again.
The arbitrator’s decision
Taking all of the factors into account, the arbitrator was left with the inescapable conclusion that a serious assault took place in the workplace against a person in a position of authority.
“Assaults are never acceptable,” the arbitrator said. “Assaults on supervisory staff are completely unacceptable. Unprovoked attacks cannot be condoned. An assault causing physical injuries is a very significant event. All this points to the reasonableness of an extremely serious sanction.”
The arbitrator said the worker’s 20 years of good service was a significant factor. “But even significant seniority is not a licence for violence. It is very sad to think that a momentary, unpremeditated and foolish reaction to being told to move a car out of an unauthorized area could destroy 20 years of service.”
But there were simply no mitigating factors to remotely justify the attack.
The arbitrator concluded the employment relationship had been irrevocably destroyed and therefore the company was justified in terminating his employment.
For more information see:
• Natrel Inc. v. C.A.W. Canada, Local 462, 2005 CarswellOnt 8283 (Ont. Arb. Bd.)
When violence warrants dismissal
Arbitrator turns to 1975 decision that outlined 10 questions to ask about violence at work
The arbitrator said, pointedly, there is “no room for violence in the workplace. If it occurs, it must always be taken seriously.” However, not every incident of violence will justify dismissal.
The arbitrator turned to Dominion Glass Co. v. U.G.C.W., Local 203, a 1975 arbitration decision, for assistance in determining if the violence in this case warranted dismissal.
Drawing on the analytical approach used in that decision, the arbitrator said the following factors were taken into the decision:
•Who was attacked? The attack was on a security guard, charged with ensuring the physical integrity of the workplace and employee compliance with posted policies. This occurred during a night shift when no supervisor was on duty. Therefore, the security guard was in the shoes of management to some extent.
By virtue of his position, the guard had some authority over the worker in the sense the guard had the power to tell him to leave the vehicle washing bay. Therefore, the guard can be seen to be in a position of a supervisor when the assault occurred. Ironically, the arbitrator said, he also must be accepted as being vulnerable because he was inexperienced, smaller, weaker and less familiar with the facilities than the worker.
•Was this a momentary flare-up or a pre-meditated attack? This was clearly not a pre-meditated attack. “It was truly a ‘momentary flare-up.’”
•How serious was the attack? The assault did have significant physical consequences. The guard was injured. He was cut on the face, bruised and needed both medical and dental attention. He felt pain for more than a week after the attack. He also was compelled to undergo blood tests because of concerns over the fact the worker had cut open his own hand from the force of the attack.
•Was there provocation? The worker said he felt threatened by the guard’s physical actions and was angered by the fact the guard was dismissive about the consequences of what would happen if a report was filed about his personal use of the wash bay.
But it was the guard’s job to file such reports. Even if the guard acted a bit improperly or was insensitive, it cannot be concluded that his actions amounted to provocation, the arbitrator said.
“If this were accepted to be provocation, then any supervisor or person with authority, who advised an employee that their misconduct was about to be reported would be opening themselves up to being assaulted,” the arbitrator said.
The arbitrator said it was tempting to accept the worker’s suggestion that his actions might have been triggered by lack of sleep and irritability from a headache.
“One can certainly understand and be sympathetic to the strains created by such conditions,” the arbitrator said. “They may explain a person’s reactions and tend to cloud good judgment, but they do not justify violence.”
•The disciplinary record of the worker. The worker had a written warning and a two-day suspension imposed in 2003 and 2004 for unrelated misconduct. The arbitrator said this was not a serious record, given his 20 years with the company, but found it interesting that his conduct seemed to be beginning to attract discipline in the recent two years. (There was no sunset clause in the contract.)
•The length of service of the worker. The worker in this case had been with Natrel for more than two decades and was a lead hand, something that indicated he had earned a level of trust and respect from the company.
•The economic conditions resulting from discharge. The arbitrator said discharge always results in financial pressures on an employee and his family. Though the worker was able to find another job quickly, the new position was not as lucrative or as good a job as the one he had with Natrel. This clearly has had a significant and negative impact on the worker and his family, the arbitrator said.
•The presence or absence of an apology. The worker immediately apologized to the guard, but there was no evidence he apologized to the company. On the contrary, the arbitrator said the worker actually blamed the company for a lot of what happened.
“There is no evidence that would indicate that he fully appreciates why the company took the incident so seriously or why an incident of violence such as this is not considered acceptable in the workplace,” the arbitrator said. “This was epitomized by his statement, ‘I apologize if I did anything wrong.’ The presence of the word ‘if’ in this statement is very troublesome.”
The arbitrator said his apology had to be tempered by his continued denial of wrongdoing.
•Acceptance of responsibility for his actions. This factor is closely tied to the apology. The worker admitted the assault, but offered several explanations that were more akin to excuses rather than mitigating factors, the arbitrator said. Further, he blamed the company for most of what happened, claiming he felt harassed, that he was overworked and that he was unfairly prevented from washing his car.
•Was the worker candid in his testimony? The arbitrator made a number of comments on this front. One of the more interesting, however, was the fact that the worker deliberately attempted to mislead the arbitrator. The worker claimed he had no involvement with the police in the last 20 years. This was an unnecessary denial and was proven to be untrue when the employer produced records of three convictions for assault within that period. “The assault convictions in themselves are not relevant to this case,” the arbitrator said. “But the deliberate and false claim of a clean police record does signal a lack of candour by the worker.”
For more information see:
• Dominion Glass Co. v. U.G.C.W., Local 203, (1975), 11 L.A.C. (2d) 84 (Ont. Arb. Bd.)
