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DECISIONPOINT


LEARNING AND KEY CONSIDERATIONS (continued from page 9)


On August 24, 2012 the Arbitrator’s decision was issued and the grievance was sustained, and the seven-day suspension was expunged from the employee’s record.


The arbitrator’s decision is disturbing in that it favorably cited several factors that should give threat management professionals pause:


The arbitrator’s decision is disturbing in that it favorably cited several factors that should give threat management professionals pause: 1. There was no retaliation and the matter was quickly over. 2. The Grievant and victim became friends. 3. Grievant took responsibility for his actions, and admitted to some anger management issues. 4. His subsequent performance was excellent. 5. Some level of discipline would have been understandable and acceptable, but the almost one-year


The arbitrator’s decision concluded that the employer had violated the collective bargaining agreement’s provision requiring timely resolution of disciplinary matters. In also referencing the mitigating factors related to Grievant’s violent acts, however, the arbitrator calls into question the interpretation and credibility of “zero tolerance” policies The commission of these acts in the context of a correctional setting, with the attendant needs for heightened levels of security and avoiding violence, make the concerns raised by this decision all the more significant Acts of workplace violence may be committed by people that show remorse, individuals that may not be likely to repeat the conduct, or that have otherwise positive relationships with the victim. For the same reason, however, that mental and emotional disabilities leading to violent outbursts have been ruled not to excuse or mitigate violent behavior (see Wills v. Superior Court for the County of Orange), the factors cited above, while within an employer’s discretion to take into account, should not be susceptible to arbitral or judicial discretion absent a showing of inconsistent enforce- ment under the relevant zero tolerance policy.


Many readers will be surprised by the employer’s decision to merely suspend, in fact believing that termination of employment would be the correct level of discipline. The public sector nature of the employment at issue here required a cause finding, and heightens the level of scrutiny related to the disciplinary decision. For reasons related and in addition to those raised in this case, both public and private sector employers are advised that the entire investigation process should follow quickly upon the reporting of the alleged policy violation. Not only does this help avoid the type of “second-guessing” presented in this case, but in the context of workplace violence prevention, “justice delayed” can lead to far graver implications than “justice denied”; it can increase the potential for violence that, but for a dilatory investigation process, possibly may be discovered and avoided.


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