Bill 168, the 2010 amendments to the Occupational Health and Safety Act recognized the importance of maintaining workplaces free from violence and harassment and required employers to develop and implement workplace violence and harassment policies. This article will explore how Bill 168 has influenced court and arbitral decisions where employees have been terminated without notice following an incident of workplace violence.
SHAKUR V. MITCHELL PLASTICS, 2012 ONTARIO SUPERIOR COURT1
The Plaintiff, Wazir Shakur, was a 35-year-old machine operator who had worked for Mitchell Plastics for six years. He had a clean disciplinary record. On August 17, 2007, Mr. Shakur was involved in a verbal altercation with another employee of the Company. Witnesses described it as "trash talk". During the altercation, Mr. Shakur slapped the other employee across the face with his hand causing temporary redness. After an investigation, Mr. Shakur was dismissed without notice. He subsequently commenced an action for wrongful dismissal.
Before the Court, the employer argued that because of the "serious societal concern with respect to workplace violence, as evidenced by recent amendments to the Occupational Health and Safety Act" the slap justified dismissal without notice.2 The Employer also relied on the Employee Handbook, which contained rules prohibiting "threatening, intimidating, or coercing fellow employees" as well as fighting.
The Court determined that although workplace violence is a serious issue, the slap was not sufficient to justify dismissal without notice and that it was not the type of misconduct which would give an employer just cause for dismissal. The Court also found that Mr. Shakur was provoked by something the other employee said, and that this fact helped explain the slap.
The Court further found that although the Employee Handbook contained prohibitions on violence, Mitchell Plastics had not trained its employees on the policy, or the consequences of violating the policy. As such, the Court found that progressive discipline would have been more appropriate and awarded Mr. Shakur pay in lieu of notice of 4.5 months.
THREATS IN THE WORKPLACE
One of the important amendments introduced by Bill 168 is that workplace violence includes threats and threatening behaviour, in addition to the use or attempted use of physical force.3 The following arbitral decisions involve employees terminated without notice for making threats in the workplace.
In United Steelworkers Union v. Plastipak Industries Inc.4, an employee was terminated without notice after telling her plant manager: "the first element to attack is water – the next is fire." As the factory had been damaged by a flood earlier that year, the plant manager interpreted the comment as a threat to set fire to the factory.
The arbitrator determined that the statement constituted violence under the workplace violence definition and that the dismissal without notice was justified on the basis that the employee had a disciplinary record and the statement was made after she had received a 5-day suspension.
In United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135 v. National Steel Car Ltd.5 an employee was terminated without notice after he threatened to return to work with "ammo", in the course of a verbal confrontation with another employee.
In this case, the arbitrator found that the termination of the employee was an excessive penalty on the basis that the employee had no disciplinary record and had only made the statement after the other employee offered to "take it outside". The arbitrator, however, found that a six-month suspension without pay was an appropriate penalty.
These recent decisions illustrate that both the provisions of Bill 168 and an employer's policies in this area are important considerations in determining whether an employer has just cause for a dismissal. The result in each case however, depends on the specific factual circumstances which led to the violence or threats of violence.
The decisions indicate that an isolated incident of violence between co-workers of the same level may not be sufficient to warrant termination without notice when:
1) the action does not result in harm or injury;
2) the employee has an unblemished disciplinary record;
3) the action can be explained as a reaction to provocation; and/or
4) the employee has not received training on the workplace violence and harassment policy and the consequences of breaching it.
On the other hand, incidents of violence which are unprovoked or where the policy specifies that immediate dismissal is the consequence, are more likely to be considered sufficiently serious to destroy the employment relationship and warrant termination without notice.
It is important to note that under Bill 168, an employer must review workplace violence policies and ensure that employees are made aware of these policies on a regular basis.
1 Shakur v. Mitchell Plastics, 2012 ONSC 1008
2 Ibid. at pr. 16.
3 Occupational Health and Safety Act, RSO 1990 c O.1 at s. 1
4 United Steelworkers Union v. Plastipak Industries Inc., June 7, 2012, Arbitrator Norman Jesin
Edited by Jennifer Fantini and Naomi Calla.About BLG
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