In June 2010, Bill 168 introduced significant amendments to the Occupational Health and Safety Act (OHSA) as it relates to violence in the workplace. As one of the first decisions to deal with the Bill 168 amendments in detail, Arbitrator Elaine Newman's award in Kingston (City) v. Canadian Union of Public Employees, Local 109 underscores the new obligations of employers in responding to threats made in the workplace. Arbitrator Newman upheld an employer's decision to terminate an employee for making a death threat to a co-worker, and found that employers must react to workplace threats in much the same way that they would react to workplace violence.
The grievor was a 47 year old employee with 28 years of seniority. In the years prior to the incident, the grievor's employment relationship had been punctuated by a history of some tension and anger, including past warnings for arguing with and shouting at a supervisor, and angrily confronting a co-worker.
Approximately one year prior to the grievor's termination, the grievor had angrily confronted a supervisor by yelling, swearing, and slamming a door. A meeting to discuss this incident resulted in a further angry outburst by the grievor. As a result, the grievor received a three-day (subsequently reduced to one-day) suspension. Several months later, a further angry outburst towards a supervisor resulted in a warning letter.
Following these incidents, the grievor agreed to attend an anger management program, which was arranged and paid for by the employer. As additional incentive, the employer agreed to pay $2,000 to the grievor upon completion of the program.
Two days after completion of the anger management program, the grievor met with the President of the local union to discuss a return to work plan. The discussion became heated, and the grievor made a death threat against the President. The employer terminated the grievor, citing both the seriousness of the incident and Bill 168's more stringent requirements on employers to react to threats of violence in the workplace.
The Arbitrator's Decision
In determining whether the decision to terminate was justified, the Arbitrator found that "The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way." In the context of workplace threats, the Arbitrator identified four significant impacts of Bill 168:
- Language can amount to violence. Language that suggests impending danger or refers to the end of a person's life is no longer "just language." Threatening language is now clearly considered violence, and must be addressed by the employer as workplace violence.
- Threats in the workplace require action. The serious nature of threats made in the workplace requires an equally serious employer response. In order to satisfy its obligation to provide a safe workplace, an employer must ensure that threats are reported, investigated, and addressed in a manner appropriate to their categorization as violence.
- Arbitrators will give more weight to the seriousness of threats. Prior to Bill 168, Arbitrators assessing the reasonableness of a decision to terminate as discipline for a threat would look to the factors from Dominion Glass Co. and United Glass & Ceramic Workers, Local 203 (1975). These factors include, among other considerations: the seriousness of the threat, who was threatened, whether there was provocation or premeditation, the grievor's length of service, and whether the grievor was remorseful or had apologized. The Arbitrator confirmed that these same factors will still apply, but the "seriousness" factor, in light of the changes of Bill 168, should be given substantially more weight in determining whether a termination was reasonable.
- The factor of "workplace safety" should be added. In addition to the Dominion Glass factors discussed above, the Arbitrator found that an additional factor should be considered when assessing the reasonableness of the discipline for workplace threats: workplace safety. This factor requires employers to ask the question: "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?" Where it is likely that the violent behaviour will be repeated, an Arbitrator will be more likely to find that termination for the behaviour was reasonable.
After assessing the circumstances based on the factors set out above, Arbitrator Newman found that, notwithstanding her lengthy seniority, the employer was justified in terminating the grievor, and dismissed the grievance. The decision notes that termination may not have been the end result if the grievor's actions or evidence had reflected an acceptance of responsibility for her misconduct, any appreciation of how serious her misconduct was, or what she herself is going to have to do in order to gain control over her angry impulses. However, by showing no understanding that she was the author of her own misfortune, and taking no meaningful steps to change her behaviours, Arbitrator Newman found that termination was justified.
As one of the first decisions to discuss the changes of Bill 168 in depth, the decision of Arbitrator Newman highlights the seriousness with which employers are now required to treat incidences of workplace threats. The new OHSA categorization of threats as violence means that, in the words of Arbitrator Newman, "The utterance of a threat in the workplace requires that the workplace parties stop cold. They must report. They must investigate. They must assess the existence of real danger. They must act."
The increased seriousness of workplace threats may imply that Arbitrators will be more willing to agree with the reasonableness of an employer's disciplinary action, or even termination, imposed in response to workplace threats.
However, despite this new approach Arbitrator Newman was careful to point out that Bill 168 does not result in a "zero tolerance" policy for workplace threats. Even after the amendments of Bill 168, the discipline imposed by an employer must be reasonable and proportionate—a determination which will still be guided by the factors discussed above. Furthermore, an individual's actions in response to the workplace threat will have some bearing on the incident and the necessity of discipline, up to and including termination of employment for just cause.
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