You Be The Judge Once More

[Turkeytop]

This wasn't one of my cases but from one of my colleagues.. I became familiar with it while researching for a similar case I was handling.


Grievor #!

Male age 27

Job title - Forklift Operator

Rate of Pay - $26/hr.

Seniority - 18 months

Nature of grievance - Improper Discharge

Remedy sought - Reinstatement with full redress for all monetary losses.


Grievor #2

Male, age 25

Job Title - Packer

Rate of Pay - $23.55/hr

Seniority - 7 months

Nature of Grievance - Improper Discharge

Remedy sought - Reinstatement with full redress for all monetary losses.

The Company employs 90 people manufacturing steel entry doors for the home building industry. The plant is located in Mississauga, ON, a sprawling suburb, west of Toronto. Like the community in which the plant is located the work force is multi-racial and multi-ethnic.

The two grievors were members of rival Asian gangs. On one day in the plant a disagreement between the two of them erupted into physical fighting. During the fight, one of the grievors grabbed up a rubber mallet and was swinging it at the head of the other person. Some coworkers stepped in , grabbed the mallet and separated the combatants. By then the foreman had arrived on the scene. To told them both to leave the plant immediately and report to his office at the beginning of the shift the following day.

The next morning, in the presence of a shop steward, the foreman handed each of the grievors a written notice of discharge.

Before they left the plant, the steward wrote grievances for them and had them sign.

Do the grievances succeed?

[Robert Faygo]

Any history of discipline for either?

Any probationary period involved, especially for grievor #2?

Any injuries / did the police get involved?

[Bryce]

Job Title - Packer

Hope it wasn't a fudge factory...

Billy, what does YOUR dad do for a living...

[Turkeytop]

Any history of discipline for either?

Any probationary period involved, especially for grievor #2?

Any injuries / did the police get involved?

No prior discipline

Probation was 45 working days. Neither employee was on probation.

No serious injuries. Skinned knuckles, fat lip etc.

Police not involved

[Robert Faygo]

All that said, I don't think the firings held.

Both got their jobs back, but had to serve an unpaid suspension of a week. Both notified that further physical altercations would result in termination.

After a couple years of no disciplinary incidents, their work records would be cleared.

[Turkeytop]

Something I should have mentioned in the original post. When an employee is hired they are given a copy of the collective agreement and a copy of a booklet of Plant rules. One of the rules therein says that fighting will not be allowed and will result in discharge.The rule book is a document issued unilaterally by the Company and does not form part of the collective agreement. The Union had never agreed to the rules.

[TC Talks]

Isn't fighting an instant dismissal typically?

Does Bryce seem to be unveiling his closet fixations?

[Turkeytop]

Isn't fighting an instant dismissal typically?

Does Bryce seem to be unveiling his closet fixations?

While you were posting I was editing my previous post. If you go back and read it it may clarify things for you.

[Robert Faygo]

Even with the extra detail, I'm sticking with my guess on the outcome.

[TC Talks]

I think it's fighting. The company will create a path for these two to leave.

[Turkeytop]

Arbitration is a very costly procedure for both parties. Even a one day hearing can cost thousands. Often they take two or more days. In this case there were two grievors and it would have been necessary to schedule two hearings

Because the circumstances in both grievances were almost identical, The Union proposed to the Company that they refer only one of the grievances to arbitration and then apply the terms of the arbitrator's award to both grievors. The Company said they would agree to that provided the grievor whose case went to arbitration would be the one who had wielded the mallet. The Union agreed.

[Rate This]

Arbitration is a very costly procedure for both parties. Even a one day hearing can cost thousands. Often they take two or more days. In this case there were two grievors and it would have been necessary to schedule two hearings

Because the circumstances in both grievances were almost identical, The Union proposed to the Company that they refer only one of the grievances to arbitration and then apply the terms of the arbitrator's award to both grievors. The Company said they would agree to that provided the grievor whose case went to arbitration would be the one who had wielded the mallet. The Union agreed.

That would be the guy you’d go after if you wanted them both gone me thinks. Once he wields a weapon things change a bit.

[Turkeytop]

In any discharge case, the burden of proof is on the Company. They must prove two things. First, that the employee committed the alleged offense and second, that the level of discipline meted out was appropriate for the offense.

In this case they would have no problem proving the guilt of the employee. Fighting is regarded as one of the most serious workplace offenses one can commit (unless they're a hockey player).

The best the advocate for the Union can do is argue for mitigation of the penalty. One of the most compelling pieces of mitigating evidence is a long, unblemished record. This employee didn't have a long record of any kind. Another mitigating factor is a show of remorse. This guy expressed remorse at the hearing, but at that time it comes across as self serving.

My colleague presenting the case had to grasp at some straw for mitigation. Canada has two official languages, English and French. The grievor was fluent in neither. He spoke some English, but he couldn't read any English. The Collective Agreement, the rule book and the discharge letter were all written in English. The Union argued that, because of that failure to communicate with the employee in his own language, the discharge should not stand.

[Deleted User 14896]

Something I should have mentioned in the original post. When an employee is hired they are given a copy of the collective agreement and a copy of a booklet of Plant rules. One of the rules therein says that fighting will not be allowed and will result in discharge.The rule book is a document issued unilaterally by the Company and does not form part of the collective agreement. The Union had never agreed to the rules.

Interesting. I'm going to assume they are given this booklet before they join the union. By accepting the booklet, they are agreeing to the booklet as a condition of employment. Before they are represented.

It would surprise me if arb would of sided with the union. Fighting is Safety. I'm thinking it's not in the contract to wear cut resistant gloves or your helmet. Company rules.

Good chance these foreigners (like most foreigners) are the hardest workers in the plant. And that's why the company didn't get rigid about what's in their booklet with these two.

And to be honest, it can be implied the union does agree to the booklet. Every contract, the union knows what's in it. And still signs the contract.

[km1125]

All that said, I don't think the firings held.

Both got their jobs back, but had to serve an unpaid suspension of a week. Both notified that further physical altercations would result in termination.

After a couple years of no disciplinary incidents, their work records would be cleared.

Generally, I would agree with this, but also make the caveat that the person who STARTED the fight should be singled out and perhaps serve a harsher punishment, even discharge. As with one of the earlier cases, I do not think you should be penalized for defending yourself. Only if the defender turned into an aggressor in the confrontation and it appeared he had the ability to stop (without the initiator gaining ground), then I think treating them the same would be appropriate.

RE: "The Union argued that, because of that failure to communicate with the employee in his own language, the discharge should not stand." If THE EMPLOYEE could not read the document, he/she should not have agreed to it until THEY sought out someone that could translate it into language they could understand. Lots of us have to do that when we get a legalese document, even though it's supposedly written in English.