“Particularly hurtful comments directed at an individual's appearance can, even in the absence of physical violence, warrant termination of employment,” confirmed arbitrator Andrew Tremayne.
Employee Musonda Zimba and a co-worker got into an altercation together while working at CertainTeed Insulation Canada
– no punches were thrown but Zimba launched a scathing verbal attack on his fellow employee, targeting his appearance and sexual orientation.
The pair removed their hardhats, indicating they were about to exchange blows, and when a third employee attempted to diffuse the situation, Zimba continued to antagonize the other worker – swearing and calling him, among other things, a “fat-ass.”
Zimba, who had just 15 months’ service, was dismissed when the employer, CertainTeed Insulation Canada, decided he had breached its workplace violence policy – when the union filed grievances, the arbitrator upheld CertainTeed’s initial decision.
“The employee chose to use words that directly attacked the other employee's physical appearance and his sexual orientation,” explained employment law
yer Adrian Miedema.
The arbitrator accepted that some swearing and verbal altercations were naturallygoing happen in most workplaces but ruled Zimba’s choice of words were “over and above both employees’ use of more traditional, garden-variety, profanities.”
For employers attempting to establish just cause in similar circumstances, consider the following:
- The employee’s length of service.
- How personal the attack was and if it could be considered discrimination.
- The extent of training the employee had already received on the workplace violence policy.
- The employees behaviour following the incident:
- Did they continue the tirade when the other person had stopped?
- Did they accept responsibility or apologise?
For more information on harassment and bulling in the workplace, employment lawyers Stuart MacKay and Sean Flaherty will be hosting a seminar, "Tackling a Silent Epidemic" at the HR Masterclass, on April 17.
The McKenzie Lake lawyers will offer practicle and implementable advice on how employers can effectively define, recognize, document, and address issues relating to workplace bullying.
For more information on the HR Masterclass, which takes place in Toronto, click here.
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Ruling in favour of the employer, one arbitrator has said workplace violence doesn’t necessarily have to get physical to warrant dismissal – sometimes, verbal abuse is enough to establish just cause.