Ontario’s new workplace violence legislation applied to city employee’s threats against co-worker
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 norm.keith@gowlings.com, or visit http://www.gowlings.com/ohslaw.
OUR BULLY PULPIT 
Canadians are SO far ahead of the Americans. It will take at least 5-10 yrs for any State in the USA to come even close to passing a bill or law like this one. Corporate control just won’t let go of the “reigns”.
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Actually they chose a different approach and got it through really quickly. Instead of trying to push through a Tort law (like the Healthy Workplace Bill) the Canadians chose to expand Workplace Violence legislation that is attached to agency oversight. Employers are required to incorporate policies that address not only workplace harassment but also workplace violence and domestic violence. Employers must educate and train employees about workplace violence and harassment. They must take reasonable steps to protect employees from acts of violence and harassment. We could take a similar approach to this in the US… Here’s a link to a guest blog I posted when Bill 168 first went into effect http://wp.me/pppGp-cC
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This account leaves me a bit troubled because there are too many points of ambiguity where the worker’s acts and intents could be grossly mistorted. While the worker in question may well be a danger, and her acts unacceptable, I am left wondering if that was the case, or if this is a case where the worker was targeted for elimination, had a 28 year record and could not be easily terminated, and was grossly mistreated until she began expressing her anger and possibly rage. In other words, was she the dangerous nut the account makes her out to be, or someone pushed to the breaking point and/or harassed until she became beligerant, and her beligerance cast as “threatening” ?
Only those present at the time really know. But I do know in the U.S., threats are one of the few acts that can used to legitimately fire a person who would otherwise be in a protected class, such as a whistle blower who has reported misconduct, a person of color, a unionized or tenured employee, etc. In such cases, claiming the person made threats, when the person expressed anger, can be very persuasive and an effective tactic to be rid of them and any potential legal claims.
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I certainly understand and share your concerns about the assumption that if everybody in the office says someone is a bully it must be true. That re-framing is at the core of my latest documentary on the topic. I’ve been researching this general topic for about 6 years now and there are reports of people who have been accused of making veiled threats who didn’t. One person told me he tangentially made a reference to a serial shooting in a conversation at work and ended up facing the Police and had to fight to keep his job. How do any of us know what was really said? Is it the intention or the impact? Or, should it be both? It’s interesting that under Bill 168 the case did not rely on a single incident of intimidation alone and also to see how the arbitrator supported the decision. In the Fourth Factor: “…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?” Personally, I’d really like to see a larger national debate on how to legislate bullying here in the U.S. that looks beyond a single perspective of what the answer should be. We haven’t had that yet here. What can we learn from Bill 168 that we can replicate or exclude? Few of the legislators now supporting the version introduced in the U.S. have actually read the bill much less deliberated and studied alternative approaches. That deeply concerns me as a journalist, a citizen, and an employee in the U.S.
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I know what it’s to be threatened/bullied at work…mine came from a male co-worker who couldn’t take no for an answer. After showing up at my home uninvited and being rejected, he continued to harass me at work. I reported him numerous times to management but nothing was ever done to him. I even called the cops on him and they did squat because they said he wasn’t uttering “criminal threats”…he said things like “just wait” and “you’ll get yours I promise”. The police said they didn’t think he’d do anything, so I said “that’s great so do I just wait til he shows up at my door again?” They never had an answer for me. Nice huh?
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I’m really sorry that you haven’t been able to find help and support at work with this problem. It’s not clear from your letter whether you live in the U.S. or what type of harassment you’ve been dealing with. But, I’m assuming that it’s sexual harassment since you said he showed at your home. Here in the U.S. there are protections against that type of harassment especially if it’s quid pro quo (sleep with me or else). It’s often best to seek out advice from an attorney to find out your rights and what types of protections may be available to you – and how best to proceed given your own unique circumstances. Try this link to the EEOC http://www.eeoc.gov/laws/types/sexual_harassment.cfm
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