The threat of violence in the workplace and the ability of employers to control it is an important topic anywhere, but it has received special attention in Ontario in recent years after three employees were killed over a nine-year span in incidents linked to workplace harassment.

In June 2010, Ontario introduced Bill 168, enacting sweeping amendments to the Occupational Health and Safety Act, requiring employers to introduce policies and procedures to prevent violence and harassment in the workplace. Because of the genesis of this legislation, it also applies to conduct outside of the workplace (including potential domestic violence) which might have the impact of affecting employees in the workplace, and to threats of violence where actual violent actions do not occur.

Zero-Tolerance Policies

While no specific penalty is prescribed against for failure to take the necessary steps to protect workers, upon conviction under any charge laid under the Act (which are quasi-criminal in nature), employers can be fined up to $500,000 per charge and individuals can be subject to imprisonment for up to two years.

Not surprisingly, employers believed that they must take these obligations seriously, and most adopted a policy of “zero tolerance”. It appeared that the legislation might have the effect of changing the view of arbitrators.

In 2011, an employee of the City of Kingston, ON, with 28 years of service was terminated for uttering a death threat against a co-worker. Despite having attended harassment and Bill 168 training, and only two days after the completion of an anger management course, an angry confrontation followed in which the grievor was alleged to utter a death threat to a colleague. Although the threat was denied and there were no other witnesses to the event, the City found that the threat had been made and that termination was the appropriate response.

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The New Law of the Workplace

In her decision, the Arbitrator stated that Bill 168 “[has] changed the law of the workplace in a significant way”. Specifically, the Arbitrator found that Bill 168:

• clarifies the way workplace parties and adjudicators must think about incidents involving the use of inappropriate language in the workplace. No evidence of an ability to do harm is required, nor does there need to be evidence of an intention to do harm. Accordingly, incidents of inappropriate language use in the workplace can rise to the level of workplace violence.
• changes the way both the employer and employees must react to alleged threats of violence. Employers cannot be passive or trivialize the allegation, and employees are obligated to report the incident, which the employer must then investigate.
• has an impact on the way an arbitrator assesses the reasonableness of a termination as an appropriate disciplinary response to a threat that has been made - it clarifies that the seriousness of the incident must be considered.
• provides that an additional factor, workplace safety, must be considered when assessing the appropriateness of the discipline imposed. The employer must consider the likelihood that the misconduct could be repeated if the worker were to remain in the workplace, and must give proper consideration to the safety of other workers.

The arbitrator upheld the decision to terminate, affirming that Bill 168 has led to a “clear and significant change” to the law.

This decision appeared to change the legal landscape for employers - when an employee presents a serious and/or ongoing threat to workplace safety through conduct, a lack of remorse or appreciation of the significance of the conduct – without actual violence having occurred, it appeared that arbitrators would be more willing to uphold a termination.

Regrettably, this case appears not to be the case, as two arbitrators have recently returned to the old line of analysis.

Arbitrators Backtrack

In National Steel Car, an employee was alleged to have threatened to another that he was going to “get” or “bring” his “ammo”. This was interpreted as a threat of gun violence. The Company’s investigation determined that the statement had been made, the comment amounted to a threat of workplace violence, and the grievor had been dishonest in denying the allegations during the investigation. The second employee was suspended, while the grievor was discharged.

In determining whether discharge was an appropriate disciplinary response, the Arbitrator considered the traditional mitigating and aggravating factors, including the fact that the grievor was treated differently than the lead hand, the grievor’s outburst was a one-time, momentary flare-up, and the grievor was unlikely to engage in another act of workplace violence.

The Arbitrator concluded that a short suspension should be substituted for the discharge. The grievor was reinstated with back pay to employment, on the condition that for a period of two years following the date of the award, any act of workplace violence would result in discharge.

In a more recent decision, in Cargill Ltd., an arbitrator substituted a five day suspension for a discharge, on the basis that the employer had provided a similar penalty for workplace violence in the past. Here, the grievor had threatened co-workers with physical harm involving the use of dangerous machinery on two separate occasions. The arbitrator concluded that a five day suspension was “sufficient to bring home to the grievor the understanding ... any future incidents of this nature will not be tolerated.”

The Law Loses its Teeth

Employers have an obligation to ensure the safety of workers from workplace violence (including threats of violence), but appear unable to remove the offending employee from the workplace unless physical violence has actually occurred. Arbitrators seem prepared to accept that a suspension is the appropriate response to bring the misconduct to the employee’s attention. This may be true where the employee clearly understands that what they have done is wrong, but can’t be the appropriate response where there is no acknowledgement of the conduct or where remorse is demonstrated only at arbitration.