by Norm Keith (reprinted with permission)
The first important decision arising from the Bill 168 amendments to Ontario’s Occupational Health and Safety Act (OHSA) has determined verbal threats of workplace violence constitute violence under the new law, which came into force on June 15, 2010.
Donna Hudson, a former employee of the City of Kingston, Ont., grieved the termination of her employment when she was dismissed for uttering a death threat against a co-worker. Although she admitted having “anger management problems,” she claimed the termination of her employment was not appropriate. This case highlights the growing problem of incivility threats of violence and violence in the workplace.
Hudson had a history of behavioural problems in the workplace, including poor attendance at work. She had become aggressive in a meeting to discuss the issue of her attendance and put her hand very close to the face of the local union president, John Hale. Hudson was given a three-day suspension for misconduct and referred to the employee assistance program. Following her suspension, Hudson took a three-month leave of absence based on sick leave.
Upon her return to the workplace, Hudson was involved in another incident of verbal abuse towards a co-worker and was given a warning letter. One month later, she attended a three-hour session on Bill 168 awareness. Thereafter, the city paid for Hudson to attend anger management classes and advised that if she remained discipline free for one year, her disciplinary record would be wiped clean.
Two days later, following the completion of her anger management training, Hudson made a verbal threat to Hale at the workplace. Hale had requested Hudson not talk about a deceased friend of his, to which Ms. Hudson responded “yes, and you will be too.” This threat was taken seriously by Hale and Hudson’s employment was subsequently terminated.
In the arbitration that followed, the arbitrator made four significant findings with respect to the Bill 168 amendments to the OHSA.
First, the arbitrator held that offensive language that is vexatious and unwelcome is harassment, and may in fact fit the definition of violence under the Bill 168 amendments. Violence is defined as “a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force, in a workplace, that would cause physical injury to the worker. The arbitrator went on to find that Hudson’s conduct met the definition of workplace violence under the Bill 168 amendments.
Second, the arbitrator held that the utterance of a threat is workplace violence and must be properly reported, investigated and addressed by the employer. The employer does not have the option of ignoring any incident of workplace violence, said the arbitrator. Further, the arbitrator found that the history of discipline, level of seniority, seriousness of the misconduct, impact of the misconduct and likelihood of improvement of behaviour were all reasonable factors in assessing the appropriateness of discipline.
Third, the arbitrator held that Bill 168 provides direction on the weight or importance to be given to the factor of “the seriousness of the incident” in discipline. Bill 168 makes it clear the threats of violence should be considered as very serious and should not be tolerated in the workplace.
Fourth, the arbitrator applied Bill 168 to consider the risk of violence in relation of workplace safety. The arbitrator asked 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?” Further, the arbitrator asked the question “to what extent is it predictable that the misconduct demonstrated will be repeated?”
In answering these questions, the arbitrator held that given Hudson’s history, there was an intention to intimidate Hale. Further, although there was no physical assault, the threat did cause actual harm. Hale was shaken, emotionally distraught and took the threat seriously. The arbitrator concluded, in upholding the termination, that “the emotional impact of a death threat is considerable, and constitutes actual harm upon its victim.” In a dramatic end to a reasonably difficult case, the arbitrator complimented counsel for their civility to the hearing process, a fitting contrast to Hudson’s conduct in the workplace.
There is no doubt Bill 168 is a substantial and important amendment to the OHSA. The purpose of the OHSA is not only to prevent unintentional harm, but also intentional harm to workers in the workplace. The arbitrator’s decision to uphold the termination of an employee with 28 years of seniority demonstrates the importance of workers, union members, union leaders and employers of being aware of the Bill 168 amendments to the OHSA.
Norm Keith is a partner at Gowling Lafleur Henderson LLP in Toronto and leads the firm’s National Occupational Health and Safety, Workers’ Compensation and Workplace Risk Management practice. Mr. Keith is offers seminars on understanding Bill 168 and preventing harassment and violence in the workplace. He can be reached at 1-866-862-5787, ext. 85699 or firstname.lastname@example.org, or visit http://www.gowlings.com/ohslaw.