Violence at work not to be tolerated, but workers had clean record: arbitrator
Two workers who got into a fight and were subsequently fired were awarded their jobs back by an arbitrator. The employer, Worthington Cylinders in Windsor, Ont., fired the workers despite the fact their work records were unblemished.
Brad Poole, the production manager at the plant which employs 127 hourly and 19 salaried workers and manufactures oxygen tanks, decided to fire the two men because the employer’s position on violence in the workplace was “zero tolerance.”
In light of the responsibilities of employers under Ontario’s Occupational Health and Safety Act to take every precaution to protect workers, Poole testified every effort had to be made to ensure violence in the workplace did not occur. Keeping the workers involved in the scuffle on the payroll would have sent an unacceptable message to other employees that the employer was prepared to tolerate violence in the workplace.
Details of the fight
The workers, Carl Ekins and Shawn Brown, were hourly employees who worked the midnight shift. At around 4:45 a.m. on Nov. 16, 2005, the two were standing around the paint line desk with three other workers waiting for a load of cylinders to be delivered. Brown was standing at the desk filling out paperwork. Ekins was drinking hot chocolate from a paper cup. Ekins placed the half-empty cup on top of the desk, which was uneven, and it accidentally tipped over and spilled onto Brown’s paperwork.
Brown picked up the cup and threw it at Ekins. A few spots of hot chocolate sprayed onto Ekins’ T-shirt. Ekins was annoyed because, to Brown’s knowledge, he was wearing one of his better shirts for an interview he’d scheduled that morning for a job in the quality control department. Ekins took the cup and began flicking what was left of the hot chocolate at Brown while advancing toward him.
Brown told Ekins to stop, but he didn’t. So Brown picked up a magic marker and threatened to mark his shirt with it. Ekins, a much larger man than Brown, tried to grab his hands to take the marker away.
Up to this point, the co-workers around the desk regarded the antics as just fooling around or horseplay. They laughed when Ekins was flicking the hot chocolate at Brown. They laughed when Brown picked up the marker and waved it at Ekins. But the laughing stopped when Brown actually used the marker to mark Ekins’ shirt.
When that happened, Ekins lost his temper. He grabbed Brown and shoved him back. Brown replied in kind. They shouted and wrestled for a few moments and, in the fray, Brown’s shirt was almost completely torn off. Then Ekins grabbed Brown by the throat and Brown tried to grab him in the same way, but could not get as secure a hold.
Brown then punched Ekins in the eye, knocking off his safety glasses and cutting him just below the eyebrow. This shocked Ekins, and he let go. Brown turned and started to walk to the men’s room to clean himself up. But Ekins picked up a roll of packing tape and threw it at him. It missed, sailing over his head, but Brown turned around to face Ekins. Ekins then picked up a one-kilogram wood block and chucked it at Brown, striking him in the stomach. Brown returned fire, striking Ekins in the back with the same block. He then turned and went to the men’s room. The fight was over. The entire incident lasted less than three minutes.
Ekins immediately got in touch with the union steward and said he wanted to go to the supervisor’s office to report the fight. Brown implored him not to. He said that if the fight was reported to management, they would both probably get fired. But Ekins reported the fight anyway.
Why employer fired workers
Poole, the production manager, recommended to the operation manager that both workers be terminated. While violence in the plant was rare, the company had an incident three weeks prior to this fight where an hourly employee had been fired for assaulting a senior member of management.
Poole said at several points during the fight, either one of the men could have walked away but chose not to. That’s why he had issues with keeping them on staff. Both men were fired on Nov. 16, 2005. They grieved the dismissal.
The Ontario Arbitration Board ruled in favour of the workers. It said there were a number of factors that indicated a “significant potential” for the successful reinstatement of the workers.
“First, the fight that happened between them seems to be most appropriately characterized as an impulsive act or momentary flare-up that was provoked when Mr. Brown marked Mr. Ekins’ shirt with the magic marker, and Mr. Ekins lost his temper,” the arbitrator said. “It was at that point that their horseplay reeled out of control and flashed into a full-fledged fight. The fight was not a malicious act and was neither premeditated nor deliberate.”
The pair were shocked they had actually become involved in a fight, and were immediately remorseful of their conduct. They apologized to their supervisor. At the hearing, they apologized again and noted they had apologized to each other.
No history of violence
Neither worker had a history of violence, making threats of violence or similar unstable conduct in the workplace. Poole agreed it was out of character for Brown and Ekins to become involved in a fight. Both had clear disciplinary records.
The arbitrator then turned his attention to Poole’s concern that they could have walked away from the fight sooner but chose not to.
“The most obvious point at which this could have happened was when Mr. Ekins released his hold on Mr. Brown after being punched in the eye, and Mr. Brown began walking towards the men’s room to get cleaned up,” the arbitrator said. “That’s when Mr. Ekins kept the fight going for several seconds more by throwing the packing tape and then the wooden block at Mr. Brown. In turn, Mr. Brown re-entered the fight by throwing the wooden block back.”
But the arbitrator said no more than a second or two passed between Brown’s walking away and the throwing of the objects — far too soon for the heat of the moment to have dissipated.
The arbitrator ruled the workers should both be reinstated as of April 18, 2006, with full credit for service and seniority. However, the arbitrator stopped short of awarding compensation for lost wages and benefits. The union had argued that a two-week suspension would suffice, rather than the five months the workers were ultimately out.
Counsel for the employer had pointed out that times had changed, and the arbitrator agreed. While an incident of fighting on the job might not have been a big deal 20 or 30 years ago, the norms of society had evolved to the point where violence at work was now regarded as one of the gravest offences.
“In cases of violence in the workplace and threats of violence in the workplace, employees must be held to higher standards of conduct than in the past,” the arbitrator said. “Otherwise, it will become impossible for employers to carry out their obligation to take reasonable steps to protect the health and safety of workers by deterring other employees from engaging in similar misconduct.”
For more information see:
• Worthington Cylinders v. U.S.W.A., Local 9143, 2006 CarswellOnt 5608, 149 L.A.C. (4th) 417 (Ont. Arb. Bd.)
Brad Poole, the production manager at the plant which employs 127 hourly and 19 salaried workers and manufactures oxygen tanks, decided to fire the two men because the employer’s position on violence in the workplace was “zero tolerance.”
In light of the responsibilities of employers under Ontario’s Occupational Health and Safety Act to take every precaution to protect workers, Poole testified every effort had to be made to ensure violence in the workplace did not occur. Keeping the workers involved in the scuffle on the payroll would have sent an unacceptable message to other employees that the employer was prepared to tolerate violence in the workplace.
Details of the fight
The workers, Carl Ekins and Shawn Brown, were hourly employees who worked the midnight shift. At around 4:45 a.m. on Nov. 16, 2005, the two were standing around the paint line desk with three other workers waiting for a load of cylinders to be delivered. Brown was standing at the desk filling out paperwork. Ekins was drinking hot chocolate from a paper cup. Ekins placed the half-empty cup on top of the desk, which was uneven, and it accidentally tipped over and spilled onto Brown’s paperwork.
Brown picked up the cup and threw it at Ekins. A few spots of hot chocolate sprayed onto Ekins’ T-shirt. Ekins was annoyed because, to Brown’s knowledge, he was wearing one of his better shirts for an interview he’d scheduled that morning for a job in the quality control department. Ekins took the cup and began flicking what was left of the hot chocolate at Brown while advancing toward him.
Brown told Ekins to stop, but he didn’t. So Brown picked up a magic marker and threatened to mark his shirt with it. Ekins, a much larger man than Brown, tried to grab his hands to take the marker away.
Up to this point, the co-workers around the desk regarded the antics as just fooling around or horseplay. They laughed when Ekins was flicking the hot chocolate at Brown. They laughed when Brown picked up the marker and waved it at Ekins. But the laughing stopped when Brown actually used the marker to mark Ekins’ shirt.
When that happened, Ekins lost his temper. He grabbed Brown and shoved him back. Brown replied in kind. They shouted and wrestled for a few moments and, in the fray, Brown’s shirt was almost completely torn off. Then Ekins grabbed Brown by the throat and Brown tried to grab him in the same way, but could not get as secure a hold.
Brown then punched Ekins in the eye, knocking off his safety glasses and cutting him just below the eyebrow. This shocked Ekins, and he let go. Brown turned and started to walk to the men’s room to clean himself up. But Ekins picked up a roll of packing tape and threw it at him. It missed, sailing over his head, but Brown turned around to face Ekins. Ekins then picked up a one-kilogram wood block and chucked it at Brown, striking him in the stomach. Brown returned fire, striking Ekins in the back with the same block. He then turned and went to the men’s room. The fight was over. The entire incident lasted less than three minutes.
Ekins immediately got in touch with the union steward and said he wanted to go to the supervisor’s office to report the fight. Brown implored him not to. He said that if the fight was reported to management, they would both probably get fired. But Ekins reported the fight anyway.
Why employer fired workers
Poole, the production manager, recommended to the operation manager that both workers be terminated. While violence in the plant was rare, the company had an incident three weeks prior to this fight where an hourly employee had been fired for assaulting a senior member of management.
Poole said at several points during the fight, either one of the men could have walked away but chose not to. That’s why he had issues with keeping them on staff. Both men were fired on Nov. 16, 2005. They grieved the dismissal.
The Ontario Arbitration Board ruled in favour of the workers. It said there were a number of factors that indicated a “significant potential” for the successful reinstatement of the workers.
“First, the fight that happened between them seems to be most appropriately characterized as an impulsive act or momentary flare-up that was provoked when Mr. Brown marked Mr. Ekins’ shirt with the magic marker, and Mr. Ekins lost his temper,” the arbitrator said. “It was at that point that their horseplay reeled out of control and flashed into a full-fledged fight. The fight was not a malicious act and was neither premeditated nor deliberate.”
The pair were shocked they had actually become involved in a fight, and were immediately remorseful of their conduct. They apologized to their supervisor. At the hearing, they apologized again and noted they had apologized to each other.
No history of violence
Neither worker had a history of violence, making threats of violence or similar unstable conduct in the workplace. Poole agreed it was out of character for Brown and Ekins to become involved in a fight. Both had clear disciplinary records.
The arbitrator then turned his attention to Poole’s concern that they could have walked away from the fight sooner but chose not to.
“The most obvious point at which this could have happened was when Mr. Ekins released his hold on Mr. Brown after being punched in the eye, and Mr. Brown began walking towards the men’s room to get cleaned up,” the arbitrator said. “That’s when Mr. Ekins kept the fight going for several seconds more by throwing the packing tape and then the wooden block at Mr. Brown. In turn, Mr. Brown re-entered the fight by throwing the wooden block back.”
But the arbitrator said no more than a second or two passed between Brown’s walking away and the throwing of the objects — far too soon for the heat of the moment to have dissipated.
The arbitrator ruled the workers should both be reinstated as of April 18, 2006, with full credit for service and seniority. However, the arbitrator stopped short of awarding compensation for lost wages and benefits. The union had argued that a two-week suspension would suffice, rather than the five months the workers were ultimately out.
Counsel for the employer had pointed out that times had changed, and the arbitrator agreed. While an incident of fighting on the job might not have been a big deal 20 or 30 years ago, the norms of society had evolved to the point where violence at work was now regarded as one of the gravest offences.
“In cases of violence in the workplace and threats of violence in the workplace, employees must be held to higher standards of conduct than in the past,” the arbitrator said. “Otherwise, it will become impossible for employers to carry out their obligation to take reasonable steps to protect the health and safety of workers by deterring other employees from engaging in similar misconduct.”
For more information see:
• Worthington Cylinders v. U.S.W.A., Local 9143, 2006 CarswellOnt 5608, 149 L.A.C. (4th) 417 (Ont. Arb. Bd.)
