Arbitrators: Violence ≠ Just Cause for Termination If It’s a First Offence

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Employers are getting mixed signals on workplace violence. OHS laws are telling them to adopt strict anti-violence policies and show zero tolerance of workers who violate them. But then when the hammer comes down, courts and arbitrators are ordering them to back off and use progressive discipline.    

Saskatchewan Arbitrator Nixes Violence Firing

The most recent example of this phenomenon is a January 13 ruling by an arbitrator in Saskatchewan.

The case began when a nursing home employee named Montgomery forcibly wrenched a towel from the hands of his female co-worker. Montgomery claimed it was just a joke and that he didn’t use that much force. But he apparently squeezed his co-worker’s wrists hard enough to leave them red, swollen and marked. Although Montgomery later apologized, the arbitrator found the apology less than heartfelt.

Aggravating the situation was the fact that Montgomery worked at a nursing home with vulnerable residents. Based on the flash of violence Montgomery had displayed with his co-worker, management concluded that he posed a danger to residents. So they decided to fire him.

But Montgomery had worked at the home a long time and this was his first offence. So the union contended that he should have gotten a milder penalty under the progressive discipline policy.

The arbitrator agreed and knocked the penalty down to a 3 months’ suspension. The arbitrator acknowledged that the incident was serious but said management had overreacted. Based on Montgomery’s clean record, the whole thing was just “an aberration,” “horseplay gone awry.” And it didn’t support management’s conclusion that Montgomery posed a danger to residents. So there was no just cause for dismissal [Sask. Assoc. of Health Organizations v. CUPE, Local 3967 (Montgomery Grievance), [2011] S.L.A.A. No. 1, Jan. 13, 2011].

The Reluctance of Arbitrators to Uphold Zero Tolerance

One reason the employer in Montgomery lost was that it didn’t have the right kind of zero tolerance policy. The nursing home had a zero tolerance policy for violence and abuse of residents; but the policy didn’t extend to violence against co-workers. As a result, the nursing home had to justify termination as necessary to protect residents. It was a connection the arbitrator didn’t buy.

So part of the moral of Montgomery is to ensure that your zero tolerance policy extends to violence by workers against co-workers.

But it’s not just a policy issue. What we’re seeing is a general unwillingness on the part of arbitrators to remove acts of violence from the realm of progressive discipline. Result: Engaging in violence is often found not to be just cause for termination if it’s a first offence.

Recent examples where termination for violence in the workplace was cut to suspension:  

  •  1 month for hurling a block at a co-worker’s head (Ontario) [Sinclair Grievance, [2010] O.L.A.A. No. 407, Aug. 9, 2010];
  • 5 days for bullying and challenging co-worker to a fight (Alberta) [Dow Grievance, [2010] A.G.A.A. No. 11, March 31, 2010];
  • 2 months suspension for fighting in lunchroom (BC) [Costas Grievance, [2010] B.C.A.A.A. No. 146, Oct. 12, 2010]; and
  • Unspecified suspension for calling colleague a “f***ing c***” and inadvertently brushing her while violently swinging his arm to get around her as she stood in doorway (Federal) [Zanette Grievance, [2010] C.L.A.D. No. 294, Oct. 12, 2010].

Conclusion

Having the right kind of zero tolerance policy is the crucial first step—as the nursing home in Montgomery learned the hard way; but even a good policy might be hard to enforce when the act of violence is the worker’s first offence.