An Ontario labour arbitrator has reinstated a dismissed employee
after the employer improperly relied on previous discipline and
also failed to prove that the employee had threatened a manager
with a shovel.
The employer had violated a previous settlement by failing
to remove previous discipline from the employee's record and
then relying on that discipline in its dismissal of the employee
after the shovel incident. For that reason alone, the
termination was "null and void".
Commenting on the employer's obligations under the
Occupational Health and Safety Act in relation to
workplace violence, the arbitrator stated:
"In making this decision, I am cognizant of the
company's obligations under the OHSA. However, even if I had
determined the merits of the company's other reasons for
discharge, I would not have found that the company met the onus of
demonstrating that the grievor had threatened Mr. A. Bombini with
the shovel. There is, therefore, no potential conflict with the
company's obligations under the OHSA in returning the grievor
to the workplace."
Although in this case the arbitrator found that the employee had
not threatened with the shovel, this decision demonstrates the
importance of following appropriate process and showing care in
preparation of the termination letter. Even a strong
dismissal case can be lost where, as here, the employer violated
the collective agreement by attempting to rely on outdated or
"sunsetted" discipline to bolster its workplace-violence
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Back in July 2012, we covered "PVYW v Comcare" (No 2),  FCA 395, which concerned an employee in the HR department of an Australian government agency who was injured on a work-related trip to a country town in New South Wales.
The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.
A discussion on the judicial decision in a recent case, where a BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.