Workplace New Year’s Resolution #2: It Pays to Be Remorseful (And to Be Unionized)!

• Author: Gabriel Granatstein
• Date: January 12, 2015

We can probably all agree that workplace violence can not and should never be tolerated. In my view, Employers should take a very firm stance and terminate any employees who intentionally physically assault another employee, particularly when they don’t show remorse. I’ve come across a recent decision that runs counter to this opinion, and while I don’t often critique decisions on Slaw, Kruger Inc., v. Unifor, Local 1646, 2014 CanLII 66101, deserves some discussion.

The Employer is unionized by Unifor and so the decision to terminate the Employee was challenged in a grievance. The facts are simple are relatively uncontested. Two employees were working on the floor and got into an argument. They were both aware of the Employers’ anti-violence policies. The following excerpt explains clearly what happened:

[12] … [Employee A’s] appearance in the car, brushing against her as he got in, with a screwdriver in his hand, considerably startled the grievor. [Employee B (she)] spun round to face him. He tried to reach towards the control panel. In her panic, fright, and fury, she sought to prevent him from shutting down her machine, knowing her supervisor’s instruction was to keep the machine working. She grabbed hold of [Employee A’s] shirt and shook him roughly, also squeezing his upper arm, screaming very loudly at him to get off her car. He put up his arms to protect himself. She moved his arm aside, where he held the screwdriver. She kept screaming very loudly, yelling that he should call Karl, the supervisor, and swearing at him. He took his walkie-talkie, attached to his clothing in front of him, to summon the supervisor. She grabbed his walkie-talkie, stretching out the coiled handset cord and wrapping it around his neck. She too was trying to use the speaker to call for Karl. In doing so, she was also throttling Mr. Zhu. He unwrapped the wire from his neck and backed away.

The Employee was met, refused to acknowledge that she had done anything wrong and said she “would do it again in the same circumstances”. The Arbitrator agreed that the “grievor considerably over-reacted to the situation” and “her conduct was a serious assault on a fellow employee”. Shockingly, the Arbitrator nonetheless overturned the termination, substituting a...