In one of the first decisions to closely examine the obligations
of employers and employees under the workplace violence provisions
of Ontario's Occupational Health and Safety Act (the
"Act"), an arbitrator has upheld the dismissal of an
employee for uttering a death threat to a co-worker.
In The Corporation of the City of Kingston and C.U.P.E.,
Local 129, Donna Hudson ("Hudson") had a long
history of verbal outbursts towards co-workers and members of
management. In April 2009, Hudson received a three-day suspension
for a verbal outburst that took place in front of other employees.
In September 2009, Hudson attended mandatory violence and
harassment training in connection with the changes to the Act. On
July 26, 2010, as part of a negotiated resolution to previous
discipline, Hudson completed anger management counselling.
Hudson was scheduled to return to work from an absence on July
28, 2010 and was required to attend a return-to-work meeting to
discuss any restrictions and accommodations. Hudson met with her
local union President, John Hale ("Hale") prior to the
meeting to discuss her return to work. During that meeting, Hudson
became angry with Hale and mentioned a former union steward, who
had recently died. Hale told her, "Don't talk about Brian
– he's dead", to which Hudson replied,
"Yes, and you will be too." Hudson was then terminated
from her employment.
Hale's evidence at the arbitration hearing was that he did
not interpret Hudson's words as a threat but that he was
profoundly angry at her. However, the arbitrator found that
"it is not necessary, in order to determine whether the threat
was uttered, to find that the speaker of the words had the actual
ability to carry out the threat." Nor was it necessary to find
that the "victim" of the threat had an immediate and
urgent fear of death. These are considerations that go to the
seriousness of the incident.
In reviewing the legislation, arbitrator Newman found that the
amendments to the Act have four significant effects on adjudicating
this kind of misconduct:
Language is violence. What once might have been characterized
as "an unfortunate choice of words" or "shop
talk" is now considered violence under the Act and must be
dealt with in the context of Ontario's health and safety
Everyone stops cold. As arbitrator Newman stated in the
decision, "the utterance of a threat in the workplace requires
that the workplace stop cold." As with any other health and
safety matter, the mechanisms of the Act apply: report, investigate
Threats are serious workplace misconduct. Adjudicators can no
longer find that an employee was "blowing off steam". A
threat in the workplace is, in and of itself, serious workplace
Safety must be considered. Because the Act is designed to
prevent workplace accidents and ensure employees work safely, the
adjudicator must ask whether the employee will continue to pose a
risk to the safety of other employees, including the right of an
employee to work free from workplace violence.
After reviewing the above factors in the context of the case,
arbitrator Newman upheld the dismissal. While Hudson was a
long-serving employee, her record of previous discipline coupled
with her inability to take responsibility for her actions and
failure to apologize for her behaviour, led the arbitrator to
uphold the dismissal.
Lessons For Employers
This decision assists an employer in imposing discipline on
employees who utter threats in the workplace. As arbitrator Newman
rightly pointed out, not every threat will lead to the dismissal of
an employee and an employer must still review the context in which
the threat was made to determine if dismissal is an appropriate
response. However, the framework outlined above confirms that an
employer also has the right (and the responsibility) to ensure that
an employee understands that threats in the workplace constitute
serious workplace misconduct and violates the Act.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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