As you will recall, Bill 168 brought about dramatic changes to the Occupational Health and Safety Act
which required employers to protect employees from workplace violence and harassment. At the time the legislation came into force in June of 2010, it was uncertain how employers should apply the various provisions.
An August 2011 decision of Arbitrator Elaine Newman, The Corporation of the City of Kingston and C.U.P.E., Loc. 109, has provided some clarity on how employers should deal with threats in the workplace. In that case, Arbitrator Newman held that threatening a co-worker is cause for dismissal.
In the Kingston case, the grievor had a history of anger management problems and had received several warnings for angry and aggressive behaviour in the workplace. A mere two days after completing an anger management course (paid for by the city), the grievor threatened a co-worker by insinuating that the co-worker might die. After completing an investigation, the city terminated the grievor’s employment taking the position that the threats of violence were unacceptable in light of Bill 168.
Arbitrator Newman held that threatening a co-worker is cause for dismissal and in doing so set out four ways in which Bill 168 has an impact on the process of determining the appropriate discipline for an employee who has uttered threats in the workplace:
1) Threats alone constitute workplace violence. There does not have to be any evidence of intention or ability to commit any physical harm.
2) Employers must act immediately when a threat is made. When an employee reports a threat, the employer ought to conduct an investigation.
3) When determining the reasonableness of a dismissal, arbitrators may give more weight to the seriousness of the incident than to other factors, including length of service, whether the employee had been provoked, and whether the incident was premeditated.
This case provides important direction to employers about how to deal with threats in the workplace. If there has been a threat, employers must immediately investigate. While Bill 168 allows employers to discipline employees for threatening other employees, the decision is clear that the employer’s response to the outcome of the investigation should be reasonable and proportionate.
4) Arbitrators should consider workplace safety
when determining whether to uphold a dismissal.