Domestic violence has been prevalent in the news lately with
many people voicing their opinions on how the Baltimore Ravens and
the National Football League handled information presented to them
that Ray Rice, arguably one of the league's star players and a
Super Bowl champion, struck his wife outside of the workplace
causing her significant injury.
The intention of this blog is not to get into Mr. Rice's
contract which accounts for conduct outside of the workplace or the
Baltimore Ravens and National Football League's position as
employers in the spotlight. Instead, the intent of this blog
is to inform Ontario employers that there is law that governs the
interaction of domestic violence and the employment relationship.
In terms of whether discipline is warranted for an employee that
that engages in the off-duty conduct like that of Mr. Rice it is
important to be aware of the regularly referred
to Millhaven Fibres factors established by the
Ontario Labour Relations Board in a unionized context which places
the onus on the Company to show that:
(1) the conduct of the employee harms the Company's
reputation or product;
(2) the employee's behaviour renders the employee unable to
perform his/her duties satisfactorily;
(3) the employee's behaviour leads to refusal, reluctance or
inability of the other employees to work with him;
(4) the employee has been guilty of a serious breach of the
Criminal Code and thus rendering his conduct injurious to the
general reputation of the Company and its employees; and,
(5) the conduct of the employee places difficulty in the way of
the Company properly carrying out its function of efficiently
managing its Works and efficiently directing its working
The employer need not prove all of these factors to satisfy its
onus. If one or more of the five factors are established the
employer likely has the right to discipline the employee, however,
termination is not always the discipline warranted as each
circumstance and employer is unique.
Often more important than knowing if an employer can discipline
an employee for being the source of domestic violence is knowing
that as an employer there are circumstances in which you must
protect an employee from domestic violence. Under Section 32.0.4 of
Ontario'sOccupational Health and Safety
Act ("OHSA") if an employer becomes aware, or
ought reasonably to be aware, that domestic violence that would
likely expose a worker to physical injury may occur in the
workplace, the employer shall take every precaution reasonable in
the circumstances for the protection of the worker.
Section 32.0.4 of the OHSA's intent is not to
create unreasonable responsibilities for unforeseen events on
employers but instead to ensure there is not a culture of silence
or a "not my issue" approach when there is a reasonable
possibility that an employee's angry partner or family member
is likely to commit an act of violence at the workplace. For
example, an employer would be required to take precautions
a former partner shows up at the workplace making threats
against the worker;
an employee comes to work with a "black-eye" and there
is evidence to suggest the individuals spouse is responsible;
an employee receives threatening telephone calls at work from a
family member; or
a worker complains about the harassing behavior from a former
lover and colleague.
In situations such as those presented above the employer should
document the occurrence and adapt a consultative approach with the
employee in creating a preventative strategy. Specifically,
the employer should consider the following precautions when
consulting with an employee that has been threatened and/or may be
ensuring the employee does not have to walk to a vehicle or
working in an environment with a number of people;
alerting staff members of a threatening and/or dangerous
a strategy to exit the workplace safely;
requirements to contact the police and to contact management
after it is safe to do so;
ensuring a telephone is easily accessible or that a cellphone is
permitted for emergency purposes;
Granting medical leaves when appropriate;
moving the employee to a different work location;
allowing the employee time off to get a restraining order
against the potentially violent individual; and,
·varying the employee's hours and work habits;
It should be evident that there are a number of important
considerations for employers as domestic violence and the workplace
often interact. Please consider contacting the lawyers at
CCPartners prior to disciplining an employee for their involvement
in a domestic violence situation, when conducting an investigation,
prior to placing security measures in the workplace and/or
developing a plan to deal with potential violence.
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.
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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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