A 6'2′, 300-lb employee's hostile, intimidating
comment to a smaller co-worker in the company washroom was just
cause for a three-day suspension, an arbitrator has decided.
The evidence was that the suspended employee said, "I am
your worst nightmare" to the co-worker as he stood over him in
a threatening way. The co-worker was 5'8″ tall and did
not have the use of his left arm.
Although the union argued that the comment was said "in a
joking manner", the arbitrator disagreed. She held that the
line, "I am your worst nightmare" meant "I am
someone you should be afraid of". It was "classic
bullying" which took place in the washroom "which is the
traditional hang out of bullies". The arbitrator found that
the employee had perceived that his co-worker was anxious and tried
to intimidate him.
The arbitrator stated:
"The grievor's comment was not specifically a
threat of physical harm but it was a violation of the company's
Workplace Violence Policy because it was inappropriate behaviour
that could insinuate violence and because it was hostile language
that would be intimidating to a reasonable person. The conduct was
just cause for some discipline. It was not a first offence because
the grievor received a one day suspension a few months before for
making a threatening comment. The three day suspension he received
was, therefore, in accordance with the principles of progressive
The decision is part of a growing line of post-Bill 168 cases in
which arbitrators have shown decreasing tolerance for workplace
violence and harassment. Even one threatening comment can result in
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On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
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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