On June 15, 2010, amendments to Ontario’s Occupational Health and Safety Act came into force. These amendments, introduced by Bill 168, significantly broadened the scope of the act by requiring employers and employees to take steps to prevent and address violence and harassment in the workplace.
The grievor, Donna Hudson, was a 47-year-old employee with 28 years of seniority. Hudson had a history of anger management problems. During her employment with the City of Kingston, Hudson was disciplined or received warnings for several incidents of angry or aggressive behaviour towards supervisors and co-workers.
Following a series of outbursts in 2009, in which Hudson’s angry behaviour escalated to swearing and slamming a door, Hudson agreed to attend an anger management course arranged and paid for by the city.
Two days after completing her anger management course, Hudson met with John Hale, a co-worker and her union president, to discuss her return to work. The discussion became heated and at one point, Hale asked Hudson not to talk about a friend who had recently died, to which Hudson responded, “Yes, and you will be too.”
Hale immediately reported the threat to management, who commenced an investigation. Following the investigation, during which Hudson denied making the threat and refused to apologize, the city concluded that it had no choice but to terminate Hudson. The city took the position that threats of violence are unacceptable in the wake of Bill 168 and that Hudson’s violent misconduct irretrievably damaged the employment relationship, given the seriousness of the incident, Hudson’s previous conduct, the city’s failed attempts to rehabilitate her, and its obligation to provide a safe workplace to its employees.
The union argued that Bill 168 did not mandate a zero-tolerance approach to workplace violence and that in the circumstances of the case, dismissal was disproportionate and unwarranted.
After reviewing the content and purpose of Bill 168, arbitrator Elaine Newman concluded, “The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way.”
She then identified four ways in which Bill 168 has had an impact on the process of determining the appropriate penalty for workplace threats:
1. Threats must be considered workplace violence: Threatening statements are expressly included in the definition of workplace violence in the act. When an alleged threat is reported, the parties must address the allegation as one of violent misconduct. The workplace violence is the utterance of the words. Evidence of an intention or the immediate ability to do physical harm is not required.
2. Workplace threats require action: According to Newman, “The utterance of a threat in the workplace requires that the parties stop cold. They must report. They must investigate. They must assess the existence of real danger. They must act.”
Workers who become aware of a threat are required to report it. Upon receiving a report, employers cannot trivialize or ignore the allegation, but are required to conduct a full and fair investigation, ensuring that any decision-making in response to the incident is informed, reasonable, and proportionate.
Newman was clear that even after Bill 168, appropriate discipline must be determined on the facts of each case and that it would be a mistake for any employer to assume that Bill 168 makes termination automatic or necessary if an employee’s misconduct amounts to workplace violence.
3. Arbitrators may give more weight to the seriousness of the incident: Traditionally, arbitrators have assessed the reasonableness of an employer’s decision to terminate by considering a number of factors including the grievor’s length of service, the seriousness of the incident, whether there was any provocation, the person who was threatened, and whether the incident was premeditated.
While these factors still apply, the fact that a threat is now categorized as workplace violence may cause an arbitrator to give greater weight to the seriousness of the incident over the other factors.
4. Arbitrators should also consider workplace safety: In addition to the traditional factors considered by arbitrators when assessing the reasonability and proportionality of discipline, arbitrators should now consider the additional factor of workplace safety.
Newman formulated the question arbitrators must ask as: “To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?”
This additional factor is required because an employment relationship will be incapable of being repaired if an employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace under the act.
In the circumstances of this case, Newman found that Hudson’s termination was justified. While her 28-year seniority militated strongly against termination, her seniority was outweighed by the seriousness of her threat, her lack of acknowledgment or remorse about her actions, and the fact that there was no indication that her behaviour would be different if she was returned to the workplace.
As one of the first cases to examine the impact of Bill 168, this case provides important guidance to workplace parties about how they should react to incidents of workplace violence, including threats. As this award shows, it is not acceptable for parties to brush off or ignore verbal threats. Threats must be reported, employers must investigate, and a response must be chosen that is reasonable and proportionate to the individual circumstances.
Justin Tetreault represents both employers and employees in all aspects of employment law. He practises with Grosman Grosman & Gale LLP in Toronto.