The grievor worked as a Hanger in the employer's poultry
processing plant. He had been employed for five years, which was a
lengthy period of employment for the workplace which had high
turnover. In September 2011 the grievor was suspended 3 days for
elbowing another employee in the chest and yelling and swearing at
him. In May 2012 the grievor threatened to come at the same
employee with a knife and threatened to assault and kill them.
The grievor was terminated in June 2012 and grieved the
The Union contended that the incidents had never taken place
and, if they had, the discipline was too harsh.
The grievances were dismissed and termination upheld. In its
decision, the arbitration board found that the incidents had indeed
taken place and that the discipline in both cases was appropriate.
With respect to the first incident, the majority of the board had
no trouble concluding that a three-day suspension was appropriate,
noting that such behaviour must be brought under control due to its
potential to escalate into something serious. The majority of the
board concluded that termination was appropriate for the second
incident, despite the grievor's relatively long service
history. The previous suspension, the lack of provocation and
remorse, and the grievor's success at finding a new job all
were factors the board considered in upholding his dismissal. The
primary factor, however, was the seriousness of the incident. The
board was conscious of the fact that the victim felt legitimately
threatened by the grievor and that the threats themselves were of
an extremely serious nature. The board was persuaded that a
continued threat to the workplace existed if the grievor were
returned, which created an "ever pressing need to act in a
manner to stabilize the workplace and dispel the threat". As
such, reinstatement was not appropriate and the dismissal
This case is another in a growing line of recent case law,
including in Ontario post Bill 168, that has taken a strong stance
against threats of violence in the workplace. This
case illustrates that where an employee's conduct and lack
of remorse results in a continued threat to the workplace, the
employment relationship will not be salvageable. It also shows that
threats of violence can be treated as seriously as actual violence
in the workplace, particularly where the threats are serious and
credible. While termination will not be applied by arbitrators as
the "automatic" penalty, it will be appropriate in
circumstances where rehabilitation is not possible and risks to the
workplace would remain with an award of reinstatement.
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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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