"The first element to attack is water, the next is fire": arbitrator upholds termination of "modern-day prophet"
On June 15, 2010, Bill 168 received royal assent and formally introduced the statutory definitions of "workplace violence" and "workplace harassment" into Ontario's Occupational Health and Safety Act.
Specifically with respect to workplace violence, the following behaviour is now prohibited by the Occupational Health and Safety Act:
- exercising physical force against another worker, where the force causes or could cause physical injury to the worker;
- attempting to exercise physical force against another worker, where the force could cause physical injury to the worker;
- making a statement or exhibiting behaviour, in a workplace, that could reasonably be interpreted as a threat to exercise physical force against another worker.
The recent award in United Steel Workers v Plastipak Industries Inc. provides an instructive example of applying the workplace violence provisions where a worker makes an implied threat towards a colleague.
In February 2011, Plastipak experienced a major flood after a water pipe on the production floor burst. The flood caused structural damage as well as the destruction of both equipment and product. At least one employee had to be rescued and the plant was shut down for a week to complete repairs.
Approximately one year later, the grievor and another employee were working on the production line packing boxes. While doing so, both employees packaged defective product. Based on her previous disciplinary record, the grievor was given a five-day suspension as a result of her production error. In contrast, the grievor's coworker, an employee with a discipline-free record, received only a written warning for her production error. Upon learning of the five-day suspension and the differential discipline, the grievor became angry and demanded to speak to the plant manager.
At a meeting to discuss the suspension and differential discipline received by the grievor, the grievor raised her voice and told the plant manager that the plant was full of "wickedness" and, "The first element to attack is water, the next is fire." The grievor then made additional comments suggesting she would "pray for" the plant manager as, "Bad things happen to wicked people."
The plant manager testified that she understood the grievor's statement about water as a reference to the major flood that occurred at the plant in the preceding year. The plant manager also testified that she viewed the grievor's statement "next is fire" as a threat of impending attack by fire. The grievor was known to be a smoker and the plant contained a great deal of flammable materials.
The union framed the grievor's statements differently and presented undisputed evidence that the grievor was a pious woman who regularly discussed Biblical scripture with her coworkers. Based on this, the union argued that the grievor had not intended to make any threat or otherwise intimidate the plant manager. Instead, the union's position was that the grievor sought only to warn management of the divine consequences of unfair decisions.
The arbitrator rejected the union's characterization of events, holding it did not matter that the grievor did not intend to harm anyone. Even if the statements were not intended as a threat, it was clear the comments were made in an attempt to intimidate the plant manager into reconsidering the five-day suspension. Taking into consideration the recent amendments to the Occupational Health and Safety Act, which require employers to address workplace violence and/or threats of violence, the arbitrator held that:
"The Grievor would have me believe that she was a modern day prophet simply issuing a warning for the benefit of Ms. Kosztyla. But I have no doubt that the comments were designed to scare Ms. Kosztyla into rescinding the suspension. There is simply no place for this kind of conduct in the workplace."
The grievance was dismissed and the suspension upheld.
Lessons for employers
In the context of workplace violence the focus of the analysis is often on the presence or absence of an overt statement or action by an employee. The Plastipak award, however, highlights the importance of placing an alleged threat in its complete historical and cultural context. In addition, Plastipak suggests the impact of a statement or action by an employee on a recipient is a bona fide consideration in assessing the proper penalty to be imposed where such threats are uttered.
"Gender identity" and "gender expression" receive Ontario Human Rights Code protection
Toby's Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Expression), 2012 (the Act) received royal assent on June 19, 2012.
The Act has amended the Ontario Human Rights Code (Code) in two material respects:
- The Code now provides for the right to equal treatment without discrimination on the basis of gender identity and gender expression in respect of employment; services; goods and facilities; accommodation; contracting; and membership in a trade union, trade or occupational association or self-governing profession.
- The Code now provides individuals with the right to be free from harassment because of sexual orientation, gender identity or gender expression with respect to accommodation and employment.
As a result of these amendments, Ontario is one of the first jurisdictions in North America to extend specific human rights protections to transgendered, transsexual and intersexed persons.
Although the Code has not been amended to include definitions of "gender identity" or "gender expression," the Ontario Human Rights Commission's Policy on Discrimination and Harassment Because of Gender Identity (the Policy) gives an indication that these terms will be interpreted broadly.
The Policy recognizes that a person's gender identity may be different from his or her birth-assigned sex and also recognizes that a person's gender identity is different from his or her sexual orientation. The Policy defines gender identity as:
...linked to an individual's intrinsic sense of self and, particularly the sense of being male or female. Gender identity may or may not conform to a person's birth-assigned sex. The personal characteristics associated with gender identity include self-image, physical and biological appearance, expression, behavior and conduct, as they relate to gender.
A person's gender identity is fundamentally different from and not determinative of their sexual orientation.
The recent amendments have important implications for Ontario employers. Employers may receive a greater number of requests for accommodation in the workplace on the basis of gender identity or gender expression (e.g., with respect to the use of change facilities). Employers should implement procedures to ensure that an employee's gender identity, if this is disclosed to the employer, remains private and confidential. To do otherwise may result in a violation of the Code. Finally, employers should consider updating their harassment and discrimination policies and procedures to incorporate this significant amendment to the Code.
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