It has been over a year since the Ontario government established the amendments to the Occupational Health and Safety Act, which have commonly been referred to as the Bill 168 amendments. Since then there has been little, if any, case law to assist employers and employees with the interpretation and application of the Bill 168 amendments regarding violence and harassment in the workplace. However, on August 18, 2011, an arbitration decision was made in the matter of Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance) which provided well needed insight into how the Bill 168 amendments are to function in the workplace and how they may be used to terminate an employee.
Background
The employee, Donna Hudson, began working for the employer, the City of Kingston, in 1983. Throughout her employment, Ms. Hudson received multiple non-disciplinary and disciplinary warnings from her employer for various reasons, including arguing and shouting at her supervisor, angrily confronting a co-worker, and swearing at her co-workers.
In September of 2009, the employer conducted Bill 168 training for its employees in preparation for the Bill 168 amendments. Ms. Hudson attended one of the training sessions held on September 11, 2009, during which she was informed of the concepts of harassment, verbal and physical violence, and the need to be mindful of how one’s words and actions affect other people in the workplace.
On July 28, 2010, two days after successfully completing a required anger management counseling course, Ms. Hudson made a verbal threat to her Union representative, John Hale, at the workplace. The threat was made after Mr. Hale requested that Ms. Hudson not talk about a friend of Mr. Hale’s who was dead, to which Ms. Hudson responded by stating, “Yes, and you will be too.”
In accordance with Bill 168, Mr. Hale reported the threat to the employer. In response, the employer conducted a workplace investigation into the matter, interviewing Mr. Hale and Ms. Hudson. During her interview, Ms. Hudson denied threatening Mr. Hale prior to any of the investigators informing her that there was such an allegation. Additionally, Ms. Hudson did not apologize for having made the verbal threat to Mr. Hale.
Following the conclusion of the workplace investigation, the employer determined that given Ms. Hudson’s record of issues at the workplace, her having taken part in Bill 168 training, and having completed anger management counseling just two days prior to the day she made the threat against Mr. Hale, the appropriate disciplinary response was to terminate her employment. Ms. Hudson grieved her termination before an arbitration board.
Arbitration Award
After concluding that Ms. Hudson did make the alleged threat towards Mr. Hale, Arbitrator Elaine Newman discussed the four ways in which the Bill 168 amendments have impacted on the process used to determine the appropriate penalty for acts of workplace violence.
Arbitrator Newman stated,
“First, the Bill 168 amendments have clarified the way in which the workplace parties, adjudicators, arbitrators and judges, must think about incidents involving the inappropriate use of language in the workplace. The amendments make it clear that language that is vexatious and unwelcome is harassment, and very serious in its own right. But language that is made in direct reference [sic] the end of a person’s life or that suggests impending danger, falls into a category of its own. This is not just language, it is violence.”
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“Second, the Bill 168 amendments have changed the manner in which the employer and a worker must react to an allegation of a threat. An employer may not hide its head in the sand, or take a passive stand, hoping that things will sort themselves out. It must not trivialize the allegation. The utterance of a threat is workplace violence, and must be reported, investigated, and addressed.”
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“Third, the Bill 168 amendments have impact upon the manner in which an arbitrator might assess the reasonableness of termination as an appropriate form of discipline when a threat is found to have been made. As the Union argues, the usual factors…still apply to the analysis: who was threatened or attacked?; was this a momentary flare-up or a premeditated act”; how serious was the threat or attack?; was there 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?; and, has the grievor accepted responsibility for his or her actions?”
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“Fourth, and finally, I interpret the Bill 168 amendments to cause on [sic] additional factor to be added to the list of those usually considered when assessing the reasonability and proportionality of the discipline. That factor is workplace safety.”
Arbitrator Newman then applied the above listed factors to Ms. Hudson’s matter and concluded that the employer was justified in terminating Ms. Hudson’s employment and stated the following:
“Having reviewed the evidence at length…it is with regret that I must conclude that the termination, in this case, is an appropriate and proportionate disciplinary response. This would not have been my conclusion if the grievor’s actions or evidence had reflected an acceptance of responsibility for her misconduct, any appreciation of how serious her misconduct was, or what she herself is going to have to do in order to gain control over her angry impulses. Although it is my sincere hope that she is able to achieve this goal, there is no evidence at present to satisfy this Board that she has achieved that level of awareness, or made such a commitment. Had the grievor given evidence that she understood that, as Arbitrator Carter said in 1990, she was the author of her own circumstances, or had she brought evidence to this Board demonstrating that she has taken any meaningful step to change her behaviours, the result would have been different.”
Points of Interest
The initial response to the Bill 168 amendments by both employees and employers was one of confusion. Uncertainty surrounded the many Bill 168 questions such as how the amendments would be correctly applied in the workplace, how would they be correctly enforced, how does an employer ensure they have appropriately satisfied all of the new requirements regarding violence and harassment, and what types of discipline would be found to be a reasonable response to a breach of the Bill 168 requirements.
Though the above decision is context specific, and many questions still remain unanswered, the above decision has defined what an appropriate response may be from an employer in regards to an act of workplace violence, and has also shed light on what is expected of both employees and employers when an act of workplace violence has occurred.
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Related Employment Law Articles
- “Verbal Threat Considered Workplace Violence” (published in Canadian Employment Law Today, October 19, 2011)
- “Verbal Threat Considered Workplace Violence” (published in Canadian HR Reporter, October 10, 2011)
- “Bill 168: Workplace Violence and Harassment – June 15th Deadline Fast Approaching” (originally published in Magazine For Business, Vol 6, issue 1)