The fact that an employee had engaged in harassment did not make
it foreseeable that he would assault a coworker, a labour
arbitrator has held. However, the company's harassment
policy was deficient and needed to be rewritten.
The decision arose from a union grievance alleging that the
employer had not provided an injury-free workplace. An
employee, Kryzanowski, alleged that another employee, Wilson, had
struck him in the head from behind with a "rather substantial
sized plastic lunch pail". The union alleged that the company
had breached the collective agreement and the
Saskatchewan Occupational Health and Safety Act
because of its actions or inactions both before and after the
The arbitrator stated that there was no doubt that the assault
constituted harassment as defined in the OHSA. "A
serious physical assault, such as this one, is perhaps the most
profound single incident of harassment that exists."
However, according to the arbitrator, the core question was
whether the company, through its management personnel and
supervisors, knew or should have known that Wilson was a physical
threat to other employees and failed to take steps to prevent
The arbitrator decided that although Wilson had demonstrated
"meanness and bullying" behaviour towards Kryzanowski
through numerous disrespectful comments, and the company's
management were sufficiently aware of Wilson's conduct to know
that he was mean-spirited and had anger problems, none of his
previous actions were physical alterations and there was no
evidence that he was on the verge of physically attacking a fellow
employee. The assault was not foreseeable by the company.
As such, Kryzanowski was not entitled to damages for the
assault. However, the company was ordered to keep Wilson
and Kryzanowski on different shifts and direct Wilson to have
no contact with Kryzanowski.
Lastly, the arbitrator found that the company's harassment
policy did not comply with the OHSA and regulations in that it was
not kept current and did not include specific contents required by
the regulations. The arbitrator ordered the company to
"take immediate steps to comply with the Occupational
Health and Safety Act by writing its harassment policy
to be compliant with the Act and regulations."
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