Horseplay can have dire consequences and for that reason, among others, most employers prohibit any sort of rough, boisterous, or rowdy play in the workplace.
A recent case involving the termination of a long-service (35 year) employee considered whether, on the facts of that case, discharge was appropriate in a proven case of horseplay. The grievor, a foreman, walked by another employee who was standing at the front counter, took out his lighter and lit the employee’s safety vest on fire and exited the building to assist a customer. Another employee, seeing that the safety vest had caught on fire, rushed over and tried to pat out the flames, burning his hand in the process.
According to the Arbitrator:
The Employer has a comprehensive Safety Management System. Safety meetings are held monthly. One section of the Manual states that horseplay “is forbidden and may result in disciplinary action”.
The employer’s approach to horseplay was described as “zero tolerance”.
The Arbitrator disagreed:
I am not persuaded by the Employer’s argument that there is zero tolerance to horseplay. Although I have no examples that demonstrate otherwise, the manual itself states that horseplay “may result in disciplinary action” (emphasis added).
The Arbitrator applied the long-standing approach to discipline in Wm. Scott and Co. Ltd. And Canadian Food & Allied Workers Union, Local P-162, [1977] 1 Can L.R.B.R. 1 (“Wm. Scott”) where the arbitrator asks three questions.
- Has the employee given just and reasonable cause for some form of discipline by the employer?
- If so, was the discharge an excessive response in all the circumstances of the case?
- Finally, if the discharge is considered excessive, what alternative measure should be substituted as just and equitable?
The Union, in this case, conceded that just cause was present and that some form of discipline was warranted.
In reviewing the appropriateness of the penalty, the Arbitrator will consider:
- The previous good record of the grievor.
- The long service of the grievor.
- Whether or not the offence was an isolated incident in the employment history of the grievor.
- Provocation.
- Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated.
- Whether the penalty imposed has created a special economic hardship for the grievor in light of his particular circumstances.
- Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination.
- Circumstances negativing intent, e.g. likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it.
- The seriousness of the offence in terms of company policy and company obligations.
- Any other circumstances which the board should properly take into consideration.
While the Arbitrator found that the incident was serious, the grievor did not act in a manner that was malicious or reckles. The grievor did act carelessly and stupidly, according to the Arbitrator, but his actions were not premeditate. Furthermore, he was a long-service employee. The Arbitrator concluded that, “in the circumstances of this case”, discharge was excessive and substituted a suspension, without pay, from the date of termination until approximately one (1) week after the date of the Award.
