An employee who was dismissed after threatening management in a
suspension meeting was not entitled to reinstatement – even
though the suspension being imposed in the meeting was unjust
– an Ontario arbitrator has decided.
The employee, a nurse at a hospital, became upset in the
suspension meeting and threatened to retaliate, stating that he had
"a plan" to deal with the management present. He stood up
on a number of occasions and pointed his finger at the managers. He
also raised his voice and spoke in a stern manner. The arbitrator
decided that a reasonable person in the room would have had reason
to believe the employee was threatening them. This was not a
momentary flare-up, but was the second incident in which the
employee was unable to control his emotions and acted
Arbitrator John Stout stated that, "there is generally a
greater concern today about threats and violence in the workplace.
Arbitrators have recently shown a decreasing tolerance for threats
or violence in the workplace".
Most aggravating, according to the arbitrator, was the fact that
the employee did not accept that he did anything wrong, and did not
apologize. However, it was important that the suspension being
imposed at the time of the employee's outburst was not just;
the outburst was not premeditated; the threats were not intended to
be physical but threats of legal action. Dismissal, without
compensation, was therefore an excessive response.
The arbitrator nevertheless denied reinstatement. The employee
mistrusted the hospital and had contempt for management and even
for his union. He blamed everyone else and accepted very little
responsibility for his own actions. His relationship with the
hospital was poisoned and a return to work would not fix it.
Therefore, the arbitrator awarded the employee damages instead of
Humber River Regional Hospital v. O.N.A., 2012 CarswellOnt 8834
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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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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