Bill 168 Changes the Assessment of Workplace Violence

30 janvier 2012 | Nadya Tymochenko

( Disponible en anglais seulement )

In a recent arbitration decision upholding a termination, an arbitrator held that Bill 168, which amended the Occupational Health and Safety Act, revises the assessment of workplace violence.

The grievor was terminated for a threat made to her union representative during a return to work meeting following her attendance in an anger management counselling course which she had completed successfully. The union argued that there had been insufficient progressive discipline prior to the termination and that the grievor had not been sufficiently supported by her employer regarding her anger management issues, despite the fact that there was no contributing disability.

The grievor had a history of confrontational behaviour and had been disciplined with warning letters and minor suspensions over the course of many years.  An incident preceding the culminating incident had resulted in the grievor consenting to attend an anger management course.  She attended and completed the course successfully and a return to work meeting was scheduled.

Before the return to work meeting, the grievor’s union representative went outside the room to have a private conversation with the grievor.  Shortly afterwards, the union representative returned to the room, very upset and visibly shaken, and reported that the grievor had just threatened his life. Following an investigation of this incident, the grievor was terminated.

The union argued that the grievor should be reinstated because there was insufficient progressive discipline – the longest suspension the grievor had received was 3 days – and the anger management course that the grievor attended was insufficient because, although she completed it successfully, she was unable to maintain her composure during the return to work process.

A medical assessment had been sought by the employer following a prior incident and sick leave.  The assessment found, unequivocally, that the grievor did not have a medical issue contributing to her anger management and that there was an employer/employee issue that required “workplace rather than medical intervention.”

The union also conducted an assessment of the grievor, including a full battery of psychological testing.  The union’s expert gave evidence that the grievor had an anger management problem and that sufficient anger management training and support had not been provided to enable the grievor to successfully cope with her problem.  In the expert’s opinion, the grievor was not likely to commit physical violence, given her history, but she might repeat the swearing, door slamming and yelling that had been exhibited many times in the past.

The employer argued that “threats of violence in the wake of the Bill 168 amendments to the Occupational Health and Safety Act are simply unacceptable. The existing authorities must be read and applied in the context of these amendments…”  The union argued that, “the amendments do not re-write the common law of requiring progressive discipline and proportionate response to misconduct that gives the erring employee fair notice of the seriousness of the misconduct, and a chance to change their behaviour.”

The arbitrator held that the Bill 168 amendments have impacted the analysis of such cases in four ways.  First, Bill 168 has “clarified the way in which 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 to the end of a person’s life or that suggests impending danger falls into a category of its own.”  The arbitrator held that language suggesting death or impending danger is workplace violence.  The arbitrator clarified that it is the words themselves that are workplace violence, despite the presence or absence of any evidence of an immediate ability to inflict the physical harm.

The second change identified is the requirement that an employer must investigate and address a reported incident of workplace violence, such as a threat.

The third change the arbitrator found was with respect to the assessment of the seriousness of an incident leading to termination. The arbitrator stated that, “threats are now categorized, by statutory definition, as falling within the category of workplace violence.  The shift in emphasis is likely to cause an arbitrator who is weighing the seriousness of the incident against the other factors, to give that factor greater weight.”

Finally, the arbitrator held that the fourth change resulting from Bill 168 was the addition of workplace safety as a factor for consideration when determining the reasonability and proportionality of the discipline.

The arbitrator found that the incident in question was an act of workplace violence, and that the employer was entitled to escalate the discipline to be responsive to the seriousness of the incident.  The arbitrator also found that, absent medical evidence for the basis of the grievor’s anger management issues, the grievor was not entitled to be accommodated by the employer.

Given the seriousness of the incident and the grievor’s past behaviours and failure to undertake steps to make changes in her behaviour, the arbitrator upheld the employer’s termination.

Bill 168 has changed the way in which employers must respond to allegations of workplace violence.  It has also changed the way in which prior arbitral decisions regarding workplace violence will be interpreted and applied to current circumstances. Arguably, the impact of an employee’s behaviour on the entire workplace is now a more significant factor when an employer is considering the appropriate next steps to be taken.

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