Canada: "Shut Up!" — It’s Not Verbal Abuse

Last Updated: August 19 2011
Article by Fazilah Hussain

Most Read Contributor in Canada, September 2018

The Ontario Superior Court of Justice overturned a recent arbitral decision that upheld an Employer's decision to discharge the Grievor, a patient support worker, for verbal abuse. The Grievor had yelled "Shut up!" at a patient. This case poses some important reminders for employers, particularly when relying on a zero-tolerance policy.

Facts

The Grievor was a long-service employee of Community Living Thunder Bay, working as a Support Worker. The Employer provided 24-hour care and services to individuals with intellectual disabilities, allowing them to function and participate in society with dignity. Support workers hired to care for these individuals are employed in a position of trust, according to the Employer.

On April 19, 2006, the Grievor, along with two other support workers and two patients, were travelling in a minivan on a day trip from Thunder Bay to Kakabeka Falls. During the drive, the Grievor allegedly yelled "Shut up!" at one of the patients. On that same trip, upon passing an abattoir, the other support workers alleged that the Grievor made an inappropriate comment with reference to the patient and the abattoir. Later that same evening, the two support workers observed an incident between the Grievor and the second patient, which one of the co-workers subsequently reported to the Employer as an incident of physical abuse. The incident report did not include information about what had allegedly occurred earlier that day in the van. The Grievor was suspended while the Employer conducted an investigation into the allegation of physical abuse. Each of the two employees, along with the Grievor, was interviewed. During the interviews, the "Shut up!" incident was revealed to the Employer. The Employer, taking the interviews into consideration, discharged the Grievor.

Collective Agreement and Relevant Policies

The Collective Agreement between the Employer and the Union contained a provision stating that any acts of abuse would result in the discharge of the employee. The discharge penalty was outlined in the Collective Agreement as being the "specific penalty" for the purpose of Section 48(17) of the Labour Relations Act (LRA). Section 48(17) of the LRA allows an arbitrator to substitute a sufficient penalty in cases where the Collective Agreement does not contain a specifically identified penalty.

The Employer has a Staff Code of Conduct as well as an Abuse Policy in place. The Abuse Policy defines both physical and verbal abuse. Verbal abuse is defined to include "any communication towards an individual that may be reasonably perceived to be demeaning, seductive, suggestive, exploitive, insulting, derogatory or humiliating."

Arbitration

Arbitrator Levinson presided over the hearing into the matter, and assessed the allegations made by the two employees who had witnessed the alleged incidents on April 19, 2006. In his decision, Arbitrator Levinson acknowledged that the standard of proof in these cases required him to consider the evidence on a balance of probabilities, assessing whether the evidence was "sufficiently clear, convincing and cogent."

With respect to the allegation of physical abuse, the Arbitrator found that the evidence presented by the Grievor and the other two employees was inconsistent and irreconcilable, and thus could not be proven on the balance of probabilities test. He found the same with respect to the allegation of the inappropriate comment regarding the patient and the abattoir.

However, the Arbitrator found that, based on the evidence presented, the Grievor did in fact tell the patient to "shut up" in a loud voice.

The next issue faced by the Arbitrator was to determine whether the Grievor's action — namely telling the patient to "shut up" — constituted abuse within the ambit of the Collective Agreement. Here, the Arbitrator held that the Grievor's action did fall under the definition of abuse in the Employer's Abuse Policy, and that the context in which the statement was made was abusive.

The Arbitrator had no jurisdiction to substitute the discharge penalty, given the wording of Section 7.11 of the Collective Agreement.

Appeal

On Appeal of this decision, Arbitrator Levinson's ruling upholding the discharge was overturned for being unreasonable for the following reasons:

1.  At the time where the Collective Agreement was negotiated, it was not in the mind of either party that a single incident of yelling "shut up" would constitute abuse. The court quoted from the Central Park Lodges case, which noted that:

Not every inappropriate interaction with a resident is resident abuse. Health care aides are allowed to have human failings and cannot be held to a standard of perfection.

2. The Employer's Abuse Policy, specifically the definition of abuse, was not referred to and not incorporated into the Collective Agreement.

3. The court stated that in order to find that yelling "shut up" constituted abuse according to the definition as outlined in the Abuse Policy, the action must  have the characteristics outlined in the definition; namely that the action was demeaning, insulting, humiliating or derogatory. However, there was no evidence presented that would demonstrate that these characteristics were present.

Tips for Employers

This case serves to remind employers of the following:

  • Employers who interact with the public, or with vulnerable clients, should always have a clearly written policy with a definition of what constitutes abuse. Where appropriate, examples should also be included.
  • A Collective Agreement ought to include or incorporate the employer's policy or definition of abuse.
  • Even where a serious issue such as theft, breach of trust, abuse, etc. is on the table, arbitrators and courts will still consider the totality of surrounding facts and circumstances.
  • The presence of an employer's zero-tolerance policy for harassment, abuse, etc. does not mean that such policies will be upheld in all circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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