Threats in the workplace and Bill 168 – Arbitrator upholds termination

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Bill 168 amended Ontario’s Occupational Health and Safety Act to require employers to take numerous steps to prevent violence in the workplace. The full effect of Bill 168 is unknown, mainly because the amendments, in force since June 15, 2010,  have yet to attract significant judicial or quasi-judicial consideration.  However Arbitrator Newman recently considered, in some detail, Bill 168’s changes to the legal landscape. Her decision indicates that the amendments have significantly affected workplace law in Ontario, particularly with respect to how employers, supervisors, workers, adjudicators, arbitrators and judges must view threats of violence in the workplace.

The Corporation of the City of Kingston and Canadian Union of Public Employees, Local 109 (August 2011) involved the grievance of an employee who was terminated after 28 years’ of service for uttering a death threat to a fellow employee.  The employment relationship had always been tense. There was a history of angry confrontations between the 47-year-old grievor and her supervisors and co-workers.  She admitted to having problems managing her anger and had received counselling in the past. 

The culminating event occurred in July 2010 when the grievor was alleged to have threatened the life of the union’s local president.  Although there were no witnesses and the grievor denied uttering the threat, the Employer concluded, after investigating, that the threat had occurred.  The Employer took the position that the violent conduct irretrievably damaged the employment relationship and that, in light of the Bill 168 amendments and the seriousness of the incident, it had no choice but to terminate the grievor’s employment. 

The Union grieved the dismissal on the basis that Bill 168 did not legislate zero tolerance for misconduct, nor did it supplant the common law requirements of progressive discipline, and proportionality, in responding to misconduct.   In the Union’s view, the decision to terminate was premature and was based on an unproven perception of danger.

THE EFFECT OF BILL 168 IN CASES INVOLVING THREATS IN THE WORKPLACE

Arbitrator Newman began her analysis by considering the purpose of Bill 168.  The reforms were based on the hindsight provided by inquests into the deaths of victims of workplace violence.  The legislation’s aims were to enable workplace parties to be aware of workplace violence, and to react appropriately in order to enhance overall workplace safety.  The Arbitrator pointed out that workplace safety is so vitally important it even “trumps” personal privacy.  Under the Bill 168 amendments, employers are required to provide information, including personal information, to a worker, if the worker is likely to encounter an individual with a history of violent conduct and if the worker is likely to be exposed to physical injury.

The Arbitrator considered whether the termination was an appropriate and proportionate disciplinary response to the grievor’s misconduct. She discussed the effect of the Bill 168 amendments in cases involving threats of violence in the workplace.   In her view, there are four fundamental ways in which Bill 168 impacts such cases.

THREATENING LANGUAGE IS “WORKPLACE VIOLENCE”

First, Bill 168 clarifies that using threatening language in the workplace falls into the new category of workplace violence for the purposes of the Ontario’s Occupational Health and Safety Act (the “OHSA”).  Where there is an allegation of a threat in the workplace, the parties must address the allegation as one of violent misconduct.  Arbitrator Newman pointed out that there need not be evidence of an immediate ability to do physical harm, or even evidence of intent to do harm.  The workplace violence in such cases is the utterance of the threatening words.

EMPLOYERS REQUIRED TO FULLY INVESTIGATE AND REACT APPROPRIATELY

Second, Bill 168 has changed the manner in which workplace parties must respond to an allegation of a threat in the workplace.  Workers and supervisors are required to report incidents of workplace violence. The employer is required to investigate the incident in a full and fair manner.  The employer’s response must be informed, reasonable and proportionate.  The Arbitrator clarified that this obligation is not to be construed as requiring automatic termination for misconduct.  In this respect the Arbitrator agreed with the Union’s position, stating:

There is nothing in the Occupational Health and Safety Act that requires that an employee, found to have committed an act of workplace violence, be automatically terminated … It is not legislation that expressly restricts arbitral discretion in assessing the appropriateness of penalty.

However the employer cannot be passive or indifferent to reports of workplace violence.  Such inaction would constitute “an abrogation of the employer’s obligations under the OHSA, and would expose that employer to the penalties and offences set out in that Act.”

“SERIOUSNESS OF THE INCIDENT” GIVEN GREATER WEIGHT

Third, Bill 168 has affected how an arbitrator might assess the reasonableness of termination when a threat is found to have been made.   Whether termination is reasonable in the circumstances is assessed by considering the factors outlined in Dominion Glass Co. and United Glass and Ceramic Workers, Local 203 (1975):

Who was threatened or attacked?
Was this a momentary flare-up or a premeditated act?
How serious was the threat or attack?
Was a weapon involved?
Was there provocation?
What is the grievor’s length of service?
What are the economic consequences of a discharge on the grievor?
Is there genuine remorse?
Has a sincere apology been made?
Has the grievor accepted responsibility for his or her actions?

The Arbitrator said these factors continue to apply, albeit with a potentially greater weighting afforded to the seriousness of the incident, as a result of Bill 168.  The Bill 168 amendments were seen by the Arbitrator to have elevated the seriousness of threats of violence to the level of actual violence.  This means that an arbitrator may be inclined to give greater weight to the seriousness of the incident than other factors. 

“WORKPLACE SAFETY” AN ADDITIONAL FACTOR

Finally, the Bill 168 amendments add an additional factor to those normally considered when assessing the reasonableness and proportionality of the discipline.  Arbitrator Newman identified this additional factor as “workplace safety.” She stated this requires a determination of whether the misconduct is likely to be repeated. Arbitrator Newman explained:

That element of inquiry is required, in light of the amendments, because the employment relationship will be incapable of reparation, if the offending employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace under the OHSA.

In applying the post-Bill 168 framework to the facts before her, Arbitrator Newman gave considerable weight to the grievor’s 28 years’ of service.  She stated that this was the most compelling factor militating against termination.  However the grievor’s significant length of service was undermined by the grievor’s conduct and evidence at the hearing.  The grievor never seemed to accept responsibility for her misconduct.  She did not demonstrate any appreciation of the seriousness of her actions, or show any remorse.  In addition, she provided no evidence that she had tried to alter her behaviour.  This was seen to render the employment relationship unworkable, since the likelihood of a repetition of events seemed possible.

Turning to the Employer’s conduct, Arbitrator Newman found that the Employer reacted with the appropriate deliberateness required in the circumstances. The Employer investigated the incident and involved senior levels of management in determining the appropriate response.  The Arbitrator dismissed the grievance after concluding that termination was appropriate and proportionate in the circumstances.

In Our View

This early interpretation and application of the Bill 168 amendments clearly demonstrates that employers must react quickly and appropriately when there is an allegation of workplace violence, including threats of violence.  Employers must investigate such allegations in a thorough and fair manner.  The common law requirements of reasonableness and proportionality in responding to misconduct continue to apply. However this decision indicates that serious discipline, including termination, will often be accepted as appropriate in situations involving threats in the workplace.

For further information, please contact JD Sharp at (613) 940-2739.