1. A brief summary of the facts of the case. Tell me what you want (in other words, reinstatement of the grievor, substitution of a lesser penalty or upholding the decision to terminate the grievor's employment).
2. Is the employment relationship restorable? Major misconduct such as theft, assault or insubordination tend to be seen a major breaches of trust in the employment relationship. You are management, you are arguing that this relationship is NOT restorable and citing similar cases.
3. Conclusion: Provide a very brief conclusion that clearly tells the arbitrator what you want. You are management, you want the arbitrator to uphold the dismissal.

Labour Arbitration Case: Second Chance Sports: A Second Chance for an Instigator

2001-2018

Second Chance Sports (SCS) was a sports equipment manufacturer based in Southern Ontario. Its founder, Jeff Prince, had built a thriving business. As a former professional athlete, Jeff felt that workers thrived on competition. Jeff would often bring in special bonuses and contests to motivate his workforce. He also believed in celebrating the success of the company. The company's summer picnic and seasonal party in December were two main events where workers and their families would get together and have a great time. The June summer picnic featured a variety of foods, carnival games, and horse rides, as well as some leisure activities (e.g., beach volleyball, and softball). At the seasonal party in December, Jeff would hand out presents to the employee's children and there was always lots of food and music. Expenses for these company events were paid by Jeff, not the company.

Employees would get individual productivity bonuses in December and June. Furthermore, Jeff's company was actively involved in the community by donating to many worthy causes. He also gave employees five paid days per year to volunteer for a local charity of their choice.

2019

Jeff was surprised to learn that a union certification application had been filed. He had perceived there to be no need for a union and felt he fairly paid his employees. He thought of his employees as family and initially felt betrayed by this application. Over 60% of the employees in the proposed bargaining unit had signed cards indicating support for the union in the first stage of the certification process. Approximately 75% of the employees in the proposed bargaining unit voted for the union in the second stage of this process. Several employees indicated to Jeff that lax safety standards, inconsistent discipline and discharge practices, and favouritism in promotions, were key reasons why they supported a union. On June 28, 2019, the Ontario Labour Relations Board (OLRB) certified the Ontario Manufacturers Union (OMU) as the legal bargaining representative of the 100 employees who worked for Jeff at Second Chance Sports' (SCS) plant.

Ultimately, Jeff decided that he would work with the union to improve workers' concerns. He recognized that certain aspects of life in the manufacturing plant were no longer acceptable, including frequent physical altercations between workers and verbal harassment in the form of "jokes," that were often in poor taste. As such, locker room pranks that were part of the old corporate culture were no longer allowed. Jeff and OMU negotiated a collective agreement that included sections on safety, anti-harassment, and bullying, where all sections were consistent with the Ontario Health and Safety Act (OHSA). The new collective agreement also brought in consistent discipline and discharge procedures to address workers' concerns. The agreement also brought in structured criteria for promotions, that included both seniority and merit to address past allegations of favouritism. Overall, Jeff found the union to be reasonable and he appreciated their expertise on health and safety.

Near the end of 2019, Jeff accepted an offer to sell his business to a larger sports equipment manufacturer. Jeff was exhausted, his mental health was suffering from running his own company, and he wanted to spend more time with his spouse and grandchildren. The new owners terminated most of Jeff's management team, including the plant manager, and instead brought in their own management team to run SCS.

2020 and 2021

Shortly following the new management, the global pandemic shut the plant down for part of 2020. When the plant re-opened, management worked with the union to ensure that proper safety procedures were in place (i.e., masks, social distancing, hand sanitizer, etc.,), along with more generous sick leave provisions, so that workers would get paid sick leave. This helped to ensure that employees who were sick did not come to work and risk the safety of the other employees. Once vaccines were available, the company organized special clinics with the local health authority to ensure that workers and their families were able to get vaccinated.

2022

As the threat from the pandemic evolved from dire to endemic, life at the plant resumed some sense of pre-2020 normalcy. Worker morale was good, productivity was increasing, and (compared to before the plant was unionized) there were fewer reported accidents.

Since 2020, Sam Sharp has been the plant manager. Sam had a very different style than the previous plant manager, William (Bill) Beau Baggins. Bill had been with Jeff since the very beginning and was widely regarded as a very kind, but somewhat mediocre, manager. The new owners felt that many of the problems that had emerged pre-pandemic were the result of Bill's relaxed management style. In fact, Bill's favourite expression had been, "No new ideas, things are fine the way they are."

Sam was very knowledgeable about the new health and safety legislation and unilaterally brought in strict safety protocols with the intention of better protecting his workers. He installed security cameras throughout the plant and introduced mandatory safety training for all plant workers. While the union knew about the new safety training, they (nor the workers) were not aware of the new security cameras. Sam's no-nonsense management style was not well received by the union (OMU) or its workers, but Sam did not care. He would tell people his job was to "be respected, not liked" and he did not care what people thought of him as long as the accident rate decreased, and workers were safe.

It is with this context in mind that brings us to the grievance and subsequent arbitration. Owen Lift had worked for the company since 2019 as a machinist. He was a solid worker (average performance ratings) with two sons attending the local university. Owen's spouse was an active volunteer within the community but did not work in paid employment. Owen was well-liked by his co-workers, but his vocal and adversarial nature meant that he had a couple of yelling matches with Sam. Several arguments between Sam and Owen involved the timing of the safety training being scheduled after the shift was over, thus conflicting with employees' family responsibilities. Owen also felt that Sam was a bully, and that Sam was unnecessarily harsh with some of the quieter employees in the plant. When the union was formed, Owen was elected to be the Shop Steward. Owen loved this role because he himself was an advocate for his fellow union members.

The Accident

September 6, 2022, started like most days for Owen. He got up early, kissed his spouse goodbye, and arrived at work fifteen minutes before his scheduled 7:30 AM shift. Frank Reyes, another machinist, rushed into the locker room and told Owen that Owen's best friend, Larry Donner, had been hurt. Larry had been working on a machine performing regular maintenance with Tom Sharp. Tom was Sam Sharp's nephew and had worked for the company for almost a month as an apprentice machinist. The running joke in the plant was that other workers called Tom "not so Sharp" because he seemed to not care about anyone but himself and would often make minor mistakes. Because he was the plant manager's nephew, people seemed reluctant to file formal complaints about him. Owen arrived just as they were taking Larry to the hospital by ambulance. As a result of the workplace accident, Larry had suffered a broken rib and a fractured jaw. Notably, before Larry began working on the equipment, the machine had not been locked out or tagged (i.e., ensured that the machinery was not working and marked to express this lack of power). It is important to know that all machinists have received a copy of the procedure, there are visual aids with the steps involved in the locking out and tagging process, and all machinists have received training.However, it is also important to note that this specific procedure does not appear anywhere in the collective agreement between the union (Ontario Manufacturers Union) and the company (Second Chance Sports).

The subsequent facts of the case are somewhat in dispute. Owen claimed he saw Tom joking around with two other co-workers about fifteen minutes after the ambulance left the plant. Tom denies this allegation. Owen quickly confronted Tom and a verbal altercation followed. Punches were exchanged and several employees moved quickly to separate Tom and Owen. Sam arrived and promptly fired Owen without any union representation (contrary to the procedures in the collective agreement). Owen was enraged, shoved Sam, and made several verbal threats towards Sam as two employees restrained Owen and pushed him away from Sam. Notably, Larry eventually made a full recovery and returned to work, while Tom received a three-day suspension for his role in the incident. Recent efforts to resolve this grievance have failed and this dispute has gone to grievance arbitration.

The Arbitration Hearing (Fall 2023)

During the arbitration hearing, SCS company lawyers submitted video evidence that demonstrates that Owen was the aggressor throughout this incident. It is management's position that they cannot condone physical violence in the workforce. They enter as evidence both Owen's average performance ratings and previous verbal arguments with Sam. Sam claims he has begun to feel unsafe as a result of his interactions with Owen and claimed that it was only a matter of time before something like this were to happen.

Conversely, the union's position is that the video evidence is inadmissible since the union and its employees had no knowledge of the security cameras. Furthermore, the union says management breached the collective agreement by not having any union representation during the termination. The union also noted that Owen is the sole income earner for his family and that termination would result in undue hardship for his family.