'The more serious misconduct was how the worker attempted to frustrate the investigation process’
A British Columbia employer's decision to terminate a long-serving employee for his involvement in a physical altercation and dishonesty during the subsequent investigation has been upheld by an arbitrator.
The case shows how serious dishonesty, confidentiality, and verbal misconduct can be treated, even if the worker was the recipient of physical abuse and not the perpetrator, according to Mike Hamata, a labour and employment lawyer at Roper Greyell in Vancouver.
“It's important to expressly inform participants in an investigation that the investigation is confidential and to not disclose the facts or contents of the investigation to anyone,” says Hamata. “And also to remind participants in the investigation that they have a duty to be honest and forthright - and that a failure to do so could result in discipline, up to and including termination of employment.”
The worker was a warehouseman for the BC Liquor Distribution Branch (BCLDB) at its distribution centre in Kamloops, BC. Hired in 2013, the worker had a disciplinary record that included seven different suspensions, ranging in length from one to five days, for various instances of misconduct such as unsafe operation of forklifts, breaching safety procedures, sleeping and tardiness at work, impairment at work, and a verbal altercation with a co-worker.
On Jan. 2, 2023, the worker and another employee, referred to as CS, engaged in a series of escalating interactions. CS told the worker that he didn’t wish to engage, but the worker persistently sought him out.
Escalation to workplace violence
According to the worker, things had gotten heated after they were joking around and the worker wanted to resolve things with CS, who was a longtime friend. He sought out CS on the warehouse floor and parked his forklift close to CS’s. They exchanged insults and CS punched the worker, who fell off his machine onto the floor. CS then punched him three or four times in the face as he lay there, but the worker didn’t retaliate.
After the altercation, the worker provided a written statement, saying that CS spoke disrespectfully to him and insulted him, so he threatened to report CS for stealing and drinking alcohol a few months earlier. They called each other “f—king rat bitches” and CS told the worker to get away from him. The worker later acknowledged that the threat to report the worker for stealing alcohol from the warehouse – a fireable offence – prompted the physical assault. He also acknowledged that he should have left CS alone when he knew CS was upset.
BCLDB launched an investigation and sent a letter to the worker and CS on Jan. 12 instructing them not to discuss the investigation with anyone, as it was confidential. However, the worker called a friend – another BCLDB employee - who lived with CS the next day, asking him to connect him with CS so they could “get their stories straight.” He also said he would do his best to say that the allegation that CS stole alcohol was only a rumour. The worker also texted CS.
At an investigation interview, the worker disagreed that he had told the friend about getting their stories straight, but he said that it was “kind of implied” and “I just wanted to figure out what we were going to say because I wanted to help him.” He also told the investigators that the allegation of theft against CS was “just a rumour, and I don’t even think it is true.”
The agency placed the worker on paid suspension on March 27.
Breach of confidentiality
BCLDB’s investigation determined that the worker’s actions, including provoking the incident and breaching investigation confidentiality by trying to contact both CS and the friend, violated its Standards of Conduct, which required employees to report misconduct. On July 17 it terminated the worker’s employment for cause, informing the worker that his conduct “irreparably damaged the fundamental basis of the employment relationship beyond repair.”
BCLDB seemed to do a good job with its investigation and it was clear on the confidentiality requirement so the union couldn’t claim that the worker didn’t know, according to Hamata.
“This case turned on the fact that the employer expressly informed the worker that he was required to keep confidentiality about the investigation and it also informed the worker that he had a duty to be honest in the investigation,” he says. “It’s a good reminder to those doing investigations to be clear to everyone participating about their obligations of confidentiality and their duty to be forthright and to participate in the investigation - the best way to do that is through a statement to participants that you can read to every single witness being interviewed.”
The union grieved, arguing that termination was excessive as the worker accepted responsibility for his conduct and had the potential for rehabilitation.
The arbitrator highlighted two categories of misconduct for which the worker was terminated. The first was inappropriate workplace conduct when the worker escalated tensions by seeking out CS despite being asked to stop, which culminated in the worker referencing a sensitive workplace matter - CS’s alleged theft of alcohol – that was perceived as a direct threat to CS’s employment and prompted the physical response. The second element of misconduct was the worker’s breach of confidentiality and dishonesty during the investigation by contacting CS and the friend about the investigation and being obtuse about his knowledge of CS’s actions, initially describing them as rumours but later admitting to witnessing the theft at the arbitration hearing.
Disciplinary history
The arbitrator found the worker’s testimony unreliable, citing numerous inconsistencies in his statements. For example, the worker initially denied direct knowledge of CS's alleged theft but later admitted to witnessing it. His attempts to minimize his actions and shift blame further undermined his credibility, the arbitrator said.
The arbitrator noted that the worker’s prior disciplinary history, which included multiple suspensions for conduct ranging from safety violations to absenteeism, was significant. Although there were periods without incidents, prior corrective measures had not permanently addressed behavioural issues, said the arbitrator.
The arbitrator determined that BCLDB’s decision to terminate the worker’s employment was justified, noting that both elements of the worker’s conduct were serious and they weren’t momentary aberrations. In addition, the worker clearly was willing to lie to BCLDB with regard to his knowledge of CS’s alcohol theft, the arbitrator said.
It’s interesting that the employer and the arbitrator treated the worker’s misconduct so seriously when it was the co-worker who escalated the altercation to a physical one, says Hamata.
“The co-worker who did most of the physical fighting was honest and an appropriate participant in the investigation process, whereas the worker who was terminated did everything he could to frustrate the investigation,” he says. “The arbitrator considered the fight and the worker’s conduct in the investigation process together to conclude that the more serious misconduct was how the worker attempted to frustrate the investigation process, and that that attempt to frustrate goes to the core of the employment relationship.”
Employee dishonesty
Given that the agency’s standards of conduct obliged all employees to act honestly and in good faith, the worker’s misconduct struck at the heart of the employment relationship, the arbitrator added in dismissing the grievance.
The worker’s disciplinary history played a role in the arbitrator upholding the termination, says Hamata.
“I’m not sure if an arbitrator would have upheld the termination for the same misconduct without a significant record of discipline like the worker had here,” he says. “If you see multiple two-, four-, and five-day suspensions, it seems like the employer was giving the worker the benefit of the doubt on multiple occasions and he just ran out of last chances.”
