Canada Safeway v. United Food and Commercial Workers Union, Local 401 (Szautner Grievance),  A.G.A.A. No. 1
Use of physical force places the personal safety of the victim at risk. In vernacular terms, bosses can't hit their subordinates (or anyone else for that matter).
A supervisor (Mr. Larock) inspecting a worksite found the area to be covered in dirt and debris contrary to a work order he had given days before. He called a worker (the Grievor) in from his scheduled day-off to discuss the issue. A heated discussion ensued. When the worker argued that he didn't have to be there, the supervisor responded "Well, get out of here!" As he said this, he placed his hand on the employee's upper body and applied just enough pressure to move the worker slightly towards the door. The contact did not cause injury, but it did reactivate pain from an old wound for which the worker had been receiving workman's compensation.
Later that morning, the supervisor attempted to reconcile with the worker, saying "We've worked together for a long time. We're friends" to which the worker responded: "You're lucky I don't put you in jail". The supervisor reported the incident to a human resources manager, who did not follow up until she was contacted by the Safeway Labour Relations Department, one month later. The Department advised her that a grievance had been filed and that she ought to investigate the incident. As a result, the HR manager interviewed the two parties as well as one of two witnesses but failed to track down the second. Four months later, she concluded her investigation in which she found that physical force had been used. Her recommendation was that Larock receive counselling about alternative ways of resolving conflict in the workplace. The employer implemented this recommendation.
The Union then requested a formal apology for its member. In a subsequent meeting, Larock apologized "for what happened" but refused to admit that he had used improper physical force. Unsatisfied, the Grievor then brought his grievance to arbitration.
- Did the manager's conduct amount to workplace violence under the Occupational Health and Safety Act?
- Does the Occupational Health and Safety Act form an implicit part of the Collective Agreement?
- Was the employer's response effective?
- "I find that the use of physical force by Mr. Larock against the Grievor was an act of violence that placed the personal safety of the Grievor at risk. As such, it not only was directly contrary to the company's own policy, but more significantly for our purposes, violated the Employer's obligations under the province's Occupational Health and Safety Act, thereby breaching the collective agreement. It is hard to imagine any circumstance in which the use of physical force by a managent person against an employee would not be considered a contravention of an employer's obligation to ensure a safe workplace, even if the impugned act is in no way condoned. Use of physical force places the personal safety of the victim at risk. In vernacular terms, bosses can't hit their subordinates (or anyone else for that matter). Such behaviour is, by definition, inimical to the safety of the employee on the receiving end. While it is true that the use of physical force by Mr. Larock was isolated, brief, and not very substantial, that does not diminish its seriousness. Any use of physical force by a manager against an employee, no matter how small, infringes on the employee's right to a safe workplace. I see no reason why a singular event would not constitute a violation of the Occupational Health and Safety Act, [...] in the same way that a single act of verbal abuse or discriminatory behaviour has been found to violate anti-harassment and anti-discrimination policies or laws [...]" [para 75]
- "The union's position and authorities supporting the view that the OHSA formed an implicit part of the collective agreement which had been violated was persuasive. Contrary authorities cited by the employer were rejected. There was therefore jurisdiction flowing from OHSA, an implicit part of the collective agreement, to consider the grievance and provide remedies. The use of force by Larock had been an act of violence that had placed the personal safety of the grievor at risk and violated the OHSA, therefore breaching the collective agreement." (page 2)
- The arbitrator found the employer's response to be ineffective. The HR manager did not follow up when alerted by the supervisor immediately following the incident. It only investigated when it was advised to by the Department of Labour Relations, upon the filing of a grievance. Moreover, the time it took to conduct the investigation (4 months) was too long. Although the investigation report found that Larock had used physical force against the worker, and even though Larock was counselled on more appropriate ways to deal with problematic situations, neither the employer nor the supervisor admitted or apologized for the use of improper physical force. Furthermore, the grievor was not compensated for the denial of his right to a violence-free work environment (paragraphs 84-87).
The arbitrator awarded the grievor $2500 in damages. He used the following factors to make this determination:
- Severity of the Incident. The more serious the incident or incidents of abuse, harassment or discrimination, the higher the award
- Singular event versus multiple events. The greater the number of instances of abuse, harassment or discrimination, the higher the award
- Duration of events. The longer the time period over which the events were repeated, the higher the award
- Consequences to the victim. The greater the psychological or physical harm to the victim, including spill over beyond the workplace, the higher the damages
- Employer's response: The amount of damages are impacted by the effectiveness of the Employer's response once it became aware, or should have become aware, of the abuse, discrimination, or harassment.