Arbitrator's decision sheds light on the line of tolerable conduct

by |

In one of the first cases to deal with the amendments to the Occupational Health and Safety Act, an arbitrator’s decision has underscored the new obligations for employers in responding to threats made in the workplace.

In June 2010, Bill 168 introduced significant amendments to the OHS Act in terms of handling violence in the workplace. In the case of Kingston (City) v. Canadian Union of Public Employees, Local 109 Arbitrator Elaine Newman upheld an employer’s decision to terminate an employee for making a death threat against a co-worker, and found that employers must react to verbal workplace threats in much the same way that they would react to workplace violence. “The utterance of a threat in the workplace requires that the workplace parties stop cold. They must report. They must investigate. They must assess the existence of real danger. They must act,” Newman said.

The sacked employee had 28 years of seniority, and had a work history punctuated with verbal outbursts and warnings for shouting at supervisors and aggressively confronting colleagues. After a final incident, which led to a one-day suspension, the former employee was required to attend an anger management program that was arranged and paid for by the employer.

However, after the completion of the anger management program, the former employee met with the president of his union to discuss a return to work plan, but the discussion became heated and the former employee made a death threat against the union official. As a result, the employer terminated the employee, citing both the seriousness of the incident and Bill 168’s more stringent requirements on how employers are to react to threats of violence in the workplace.

The Arbitrator’s decision

In determining whether the decision to terminate was justified, the Arbitrator found that “The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way.” In the context of workplace threats, the Arbitrator identified four significant impacts of Bill 168:

  • Language can amount to violence
  • Threats in the workplace require action
  • Arbitrators will give more weight to the seriousness of threats
  • The factor of “workplace safety” should be added, that is to say, employers must ask the question: “To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?” Where it is likely that the violent behaviour will be repeated, an Arbitrator will be more likely to find that termination for the behaviour was reasonable.

After assessing the circumstances based on the factors set out above, Arbitrator Newman found that, notwithstanding the employee’s lengthy seniority, the employer was justified in terminating the employee, and dismissed the grievance brought by the former employee.

Employment law specialists Stikeman Elliott said the decision was one of the first to discuss the changes of Bill 168 in depth, and noted that the case highlighted the seriousness with which employers are now required to treat incidences of workplace threats. However, “Bill 168 does not result in a ‘zero tolerance’ policy for workplace threats. Even after the amendments of Bill 168, the discipline imposed by an employer must be reasonable and proportionate.”


Latest News

Silicon Valley firms sued over “no-poaching” pact
Succession planning rated a top concern
Larger waistline, lower pay check

HRM Online forum is the place for positive industry interaction and welcomes your professional and informed opinion.

Name (required)
Comment (required)
By submitting, I agree to the Terms & Conditions