A recent decision rendered by an Ontario Arbitrator raises questions about the hard line that seemed to have been taken by adjudicators as a result of An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters (formerly Bill 168), which amended the Occupational Health & Safety Act in order to address workplace violence and harassment.
In Vale Canada Ltd. v. United Steel Workers of America, there was an ongoing strike and picketing. One of the picketing employees commented, to other picketers, that “I should have brought a gun to shoot” a nearby company security officer who overheard the comment. Somewhat surprisingly, the arbitrator decided that this did not rise to the level of just cause for dismissal.
In his reasons, the arbitrator made mention of the fact that the comment was made in an attempt to be funny and not a threatening tone. Furthermore, the comment was apparently addressed to a group of picketers and not directly toward the security guard. Finally, the evidence suggested that the security guard did not feel threatened by the comment.
This case provides an interesting contract to the very first decision rendered after An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters (formerly Bill 168) came into force. In the Corporation of the City of Kingston v. CUPE, Arbitrator Elaine Newman presided over a case in which the grievor, Donna Hudson, was a 28-year employee with a lengthy history of anger management issues. She had an angry discussion with the Union Local’s President, coincidentally soon after she had completed anger management counselling. In the course of the discussion, her colleague asked her not to speak about a former colleague named Brian, who was dead. Her response, according to the evidence, was “yes, and you will be too”.
In her assessment of the threat, Arbitrator Newman concluded that the law had changed as a result of An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters (formerly Bill 168). In particular, the utterance of a threat of violence, for the purpose of intimidation, would now constitute an act of violence. This is true regardless of whether or not:
- the person issuing the threat has any intention to follow through with it;
- the person issuing the threat has an ability to follow through with it; or
- the person receiving the threat feels afraid.
Arbitrator Newman held that employers can no longer ignore, dismiss or trivialize reported threats or incidents, no matter how insignificant they may seem. Under An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters (formerly Bill 168), reported incidents are now to be thoroughly investigated and addressed.
Furthermore, the seriousness of a threat of this nature has, due to An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters (formerly Bill 168), increased. As those who know me will be aware, just cause for dismissal is an area that I am particularly passionate about. Any alleged misconduct must be assessed within the entirety of the employment relationship. However, one factor will certainly be the seriousness of the misconduct. In the past, a relatively trivial “threat” may not have been deemed to be serious enough to warrant dismissal, all other factors being equal. Now, that same threat will be considered to be further along the spectrum in terms of seriousness. As a result, it will be more likely to result in serious discipline, including termination.
As an aside, it is always important for employers to remember that when they are assessing alleged misconduct, and have determined that some misconduct occurred, they must then move on to determine the appropriate form of discipline. In so doing, our courts are clear that a contextual analysis must be adopted, which considers all relevant circumstances including the length of employment, the employee’s history of misconduct, disciplinary history, the nature of the employee’s position and the degree of trust required, and the employee’s response when confronted with the allegations and its impact upon the employer’s degree of trust in the employee, and the other relevant factors. Proportionality is a crucial consideration in this analysis. Ultimately, the issue is whether the employment relationship has been irreparably harmed, or whether it can continue, in which case some lesser form of discipline will be appropriate.
This most recent decision is interesting because, clearly, the words used were more threatening than those used by the grievor in the City of Kingston case. Despite that, in this case, the Arbitrator determined that the offense was not serious enough to warrant summary dismissal, taking all of these circumstances into account. The City of Kingston decision, and others, seemed to suggest that almost all threats would be serious enough to justify summary dismissal; this case seems to confirm that it is not that simple.
In any event, employers should continue to treat all threats seriously, regardless of the circumstances, wording, tone or reaction of the target of the statement. A proper investigation should be conducted and then the appropriate level of discipline determined.
Miller Thomson LLP