Decision 'signals to employers they have a right to take significant action'
An Ontario arbitrator has upheld the discharge of a worker who breached her employer’s respectful workplace policy and then denied and tried to downplay her misconduct.
It’s a good decision for employers because it affirms that employers should take seriously acts of misconduct, according to Rich Appiah, an employment lawyer and principal of Appiah Law in Toronto.
“The decision signals to employers that they have the right to take significant action in circumstances in which they're concerned that employees may engage in forms of workplace violence and harassment in the future.”
Old cellphone in bag
The worker began working at a Purolator facility in Ontario in 2006. There was no discipline on her record, which was limited to the previous 12 months due to a sunset clause in the collective agreement.
Purolator had a policy on security procedures at the facility, which prohibited employees from bringing cellphones into the work area for security reasons. Employees were screened as they entered and exited, and their hand baggage was screened by an X-ray machine. Employees were asked to remove any suspicious items from their bags for closer inspection.
The company also had a workplace relationship policy, which prohibited disrespectful and threatening behaviour in the workplace.
The worker was trained on both of the policies.
On Dec. 20, 2019, the worker put her lunch bag inside a backpack that she planned to take to work. She didn’t know that there was an old, non-functioning cellphone inside a pocket in the backpack.
When the worker arrived at work, she locked her own cellphone in her locker, as was usual practice. She went through security, had the backpack scanned, and sat in the cafeteria for a short period of time. When she left to go to her workstation, she was told that security has seen a cellphone in her bag. She told a union steward about it and said that her cellphone was in her locker, to which the steward replied that if her phone was in her locker, there was no need to go to security.
At the end of her shift, the worker went back through security. She placed her backpack on the conveyor belt for the scanner and walked through.
The loss prevention officer who was operating the metal detector looked at the screen and asked the worker if it was her bag. The worker said that it was, then reached into the machine and grabbed her bag before it was completely out. She headed to the exit, but the officer walked with her and pointed to the bag, indicating that a cellphone was detected.
The worker continued on and waved her finger close to the officer’s face, then went through a turnstile at the exit. Another loss prevention officer followed her down a hallway, but the worker said her phone was in her locker. She handed the bag to the second officer, who took it back to the security area.
A worker’s disregard for security procedures and ensuing lack of remorse provided just cause for dismissal, a Manitoba adjudicator ruled.
Escalation on video
The worker returned to the security area and showed them her cellphone. As the second officer walked towards her, the worker forcefully walked into him with her left arm slightly raised. Her arm moved out and pushed him aside. The officer said that she pushed him, but the worker denied it.
The worker then grabbed her bag after it went through the metal detector again and emptied the contents onto the floor while yelling at the second officer. The old phone was eventually found, inspected, and observed to be an older phone without a battery.
The second loss prevention officer completed an incident report the next day and the manager of the facility launched an investigation.
At an investigation meeting, the worker denied acting aggressively or touching the officer and wrote a statement in which she said if there was contact, it was an accident. She also said the officer had been yelling at her and that she didn’t think she had a phone in her bag, so it didn’t matter what the officer was saying to her.
The manager and an HR person reviewed security footage of the incident, which depicted the worker behaving as the loss prevention officer had described.
“From an evidentiary perspective, the video was critical because there were two versions of events before the arbitrator – the version of the two loss prevention officers and the [worker],” says Appiah. “The worker had no prior history of misconduct, at least in the in the last 12 months, so her credibility was not easily subject to attack, and so the video played a critical role in demonstrating that her version of events was, at best, incorrect.”
A worker’s comments about guns and his co-workers, erratic behaviour, and a lack of remorse for his conduct were sufficient to warrant dismissal, according to an arbitrator.
Discharge for policy violations
On Jan. 8, 2020, Purolator terminated the worker’s employment for violating both the security policy and the respectful workplace policy.
The union grieved the termination on the grounds that Purolator did not have just cause for termination. After viewing the video, the worker said that she didn’t recall making contact with the officer and it was an accident, as well as claiming that they weren’t yelling, they were talking. She said that she would apologize to the loss prevention officer if she had the chance and acknowledged that she acted inappropriately when she emptied her bag onto the floor. She wouldn’t repeat that behaviour going forward, she claimed.
Purolator helped its position by establishing that the worker was aware of its policies and was given an opportunity to explain her misconduct, says Appiah.
“In any case involving a dismissal for cause, establishing an employee's awareness of the policy that's in breach is very important,” he says. “The employer conducted a proper investigation that included taking a statement from all of the relevant parties – conducting such an investigation is important in justifying a dismissal for cause, and giving an employee due process to ensure that the employee’s version of events is heard is important.”
The arbitrator noted that the worker’s conduct was directed against loss prevention officers who were just doing their jobs and the worker was going through a routine that she had performed for all of her 13 years of employment. Had she co-operated and followed policy, the incident would have been a “non-event,” the arbitrator said.
The arbitrator characterized the worker’s behaviour as acting on her belief that there was no cellphone in her bag and she disregarded what the officers were telling her, to the point where it resulted in an “unprovoked assault.”
An Ontario arbitrator found a worker was not guilty of threatening workplace violence but didn’t reduce the worker’s suspension due to a lack of remorse for his behaviour.
‘Inexplicable, momentary flare-up’
The arbitrator found that the worker’s conduct was “an inexplicable, momentary flare-up,” as there was no other explanation other than she didn’t believe a cellphone was in her bag. Although the officer wasn’t injured, the worker physically and verbally abused him, which was serious, said the arbitrator.
The arbitrator also found that, although the worker said she would apologize, she did not acknowledge or take responsibility for the full extent of her misconduct. She was fully aware of the policies and procedures, and her 13 years of service would have mitigated her misconduct had she explained and apologized for her behaviour, said the arbitrator.
However, given the worker’s failure to accept responsibility and attempt to place blame the loss prevention officer, the arbitrator upheld the worker’s discharge.
Potentially violent workers are hard to detect, but a clear policy is a place to start, according to a security expert.
The decision is clear that the worker’s lack of remorse or responsibility was the primary factor in justifying her dismissal, says Appiah.
“She did not take responsibility for her actions, either in the investigation of the incident or during the course of the arbitration,” he says. “The arbitration decision indicates that she acknowledged one aspect of her misconduct but not the totality of the misconduct, including an assault on a co-worker.”
Appiah notes that there is case law that indicates reinstatement is appropriate where an employee can demonstrate that the misconduct won’t happen again, but that wasn’t at play in this case.
“Instead of apologizing, [the worker] wrote a statement and submitted it to her employer that was misleading or inaccurate in terms of what took place,” says Appiah. “She didn't give the arbitrator any reason to demonstrate that if she was reinstated, she would not repeat her misconduct – and she certainly didn't show any remorse.
“Those two factors are really important and are the reason why the arbitrator was so hesitant to reinstate her.”
TC, Local 938 and Purolator Inc. (Williams), Re, 2022 CarswellOnt 16383.
