GM acted in anger at perceived insubordination, not safety concerns
A manager at an Ontario company breached safety rules when he grabbed a worker he believed was being insubordinate, an arbitrator has ruled.
Cargill Limited operates a beef harvest and livestock byproduct facility in Guelph, Ont. The worker was a skid off operator who was hired in 2010 and worked in the skid off area since 2015.
On June 12, 2019, the facility’s general manager was walking through the skid and warehouse area of the shipping and warehouse department. In that area, employees took boxes of product off conveyor belts and staked them on pallets or skids.
The general manager saw a trainee talking to other employees while standing in the middle of an empty pallet. He approached and explained that standing on pallets wasn’t permitted because of food safety concerns, and the trainee stepped off the pallet.
As the general manager walked away, he heard an unidentified employee say “Have a nice day” in a sarcastic tone. He returned and explained to all of the employees in the area that he spoke to the trainee for educational purposes and there would be no discipline. However, after he finished speaking, the worker walked across the same skid that the trainee had been standing on.
The general manager asked the worker why he was doing what he had just talked about and the worker replied that there was nowhere else to go. The general manager said that the worker could go around another way and they could figure out the spacing between pallets. The conversation escalated and became tense.
The worker bent down to pick up the skid – which measured about three feet by four feet and weighed about 64 pounds – and, as he moved it to almost vertical, he felt two hands on his shoulders squeezing the muscles beside his neck. He was jolted forward and backward, forcing him to duck down to get out of the grip. He dropped the skid, which landed in front of his feet.
The worker was upset, as he felt that he could have been injured if the skid had fallen on him or he had fallen. He told the general manager to never put his hands on him and asked why he would do that, but the general manager didn’t answer.
A short time later, the general manager emailed Cargill’s senior specialist in employee relations saying that he put his hand on the worker’s back and said to stop and they would “figure it out” after the worker “directly and blatantly” walked across a pallet. Later that day, he sent a second email with more details, saying that he put his left hand on the worker’s upper back and making a “stop” motion with his right hand, telling the worker to “hold on” after the worker “aggressively grabbed the pallet.”
Cargill investigated the incident and interviewed both the general manager and the worker. The worker was sent home pending investigation.
In his interview, the general manager slightly changed his account, saying that he put his hand on the worker’s back and the other hand on the pallet while telling the worker to put the pallet back so they could figure it out. He said that he was “pretty sure” that the contact was with one hand, although “it was a possibility” that he used two.
The worker maintained that the general manager gripped both of his shoulders and he felt the contact vividly because he had a sunburn.
Other employees were interviewed, but there was no consensus as to how many hands the general manager used or where they touched the worker.
Cargill’s investigation wrapped up on June 13 and determined that the incident did not constitute workplace bullying or violence under the company’s Violence, Discrimination and Harassment Prevention Policy or the Ontario Occupational Health and Safety Act (OHSA).
The worker wasn’t happy with the conclusion and filed a grievance alleging a violation of the collective agreement – which incorporated the OHSA - the OHSA, and Cargill’s violence policy.
Specifically, the worker’s grievance referred to a collective agreement provision and an OHSA section that required the employer to “take every precaution reasonable in the circumstances for the protection of a worker.”
Cargill and the general manager maintained that the general manager’s intention was to bring the food safety concern to everyone’s attention, and he was disappointed by the worker’s act of defiance. He acknowledged that he didn’t have a safety concern about the worker picking up the pallet, but he did it aggressively and he was concerned what the worker would do with it.
The arbitrator found that the worker’s account of the incident was more credible, as it was consistent and his immediate reaction of telling the general manager to never put his hands on him supported it. The general manager, however, changed his story in his two emails and his interview. It also was unclear how not touching either of the worker’s shoulders would prevent him from moving the skid, the arbitrator said.
The arbitrator noted that the worker’s sunburn emphasized the general manager’s grip, although it made the force of the grip uncertain due to the worker’s sensitivity.
The arbitrator also questioned whether safety was on the general manager’s mind, as he didn’t mention it in his emails to the employee relations specialist or raise it with the worker at the time. In the emails and the interview, the general manager consistently said that the worker was “loud, belligerent, aggressive” and unco-operative. It was more likely that the general manager’s concerns and actions were related to what he viewed as the worker’s insubordination and not safety, the arbitrator said.
The arbitrator found that the general manager’s actions preventing the worker from moving the pallet while he was in the middle of doing so was a breach of Cargill’s obligations under the collective agreement and the OHSA, as the general manager did not take “every precaution reasonable in the circumstances for the protection of a worker” – the physical intervention could have caused physical injury to the worker.
The arbitrator added that just because no injury occurred didn’t diminish the seriousness of the general manager’s “uncontrolled actions without regard to the potential safety risks.” Since a violation of the collective agreement and the OHSA were found, the arbitrator said it was unnecessary to address whether there was also a violation of Cargill’s violence policy.
Cargill was ordered to pay the worker $3,000 in damages for the breaches. See Cargill Ltd. (Dunlop Drive) v. United Food & Commercial Workers Canada, Local 175, 2023 CanLII 43077
