June 12, 2012

An Update to Bill 168, Workplace Violence and Harassment

Case Law to date – Trends in Employer Behavior

It has now been almost two (2) years since Bill 168 came into force (it became operational June 15, 2010). This paper provides a discussion of the major operational trend we have seen in respect of employers’ reaction to Bill 168 and provides a summary of the case law that has developed to date.
Bill 168 – Summary of What Changed?
Bill 168 significantly expanded the duty of employers to ensure that they provide a violence- and harassment-free workplace to their workers. The new legislation stood in contrast to section 25(h) of the Occupational Health and Safety Act (which section provides that an employer must “take every precaution reasonable in the circumstances for the protection of a worker”); from which one can only infer a duty to maintain a violence- and harassment-free workplace.

Bill 168 introduced:

definitions of workplace violence and harassment;
a duty of employers to implement policies and programs to prevent and address incidents of workplace violence and harassment;
a duty of employers to assess and reassess risks of workplace violence;
a duty of employers to advise employees of general and specific risks of workplace violence;
a duty of employers to intervene in circumstances where domestic violence may spill into the workplace; and
a right of employees to refuse to work where they have reasons to believe that workplace violence may endanger them.

Bill 168 – What did not change?

Contrary to the approach that has been taken by some employers, Bill 168 did not create a situation of zero tolerance for workplace violence and workplace threats. By this we mean, that Bill 168 did not create a situation where an employer will be justified in terminating the employment of an employee for just cause in every situation where an employee has engaged in workplace violence and/or workplace threats that are contrary to an employers’ publicized workplace violence and harassment policy.

The test for termination of employment for just cause has not changed. That test remains as set out by the Supreme Court of Canada in McKinley v. BC Tel 2001 CarswellBC 1335 (S.C.C.).

The Courts always use a contextual approach when determining whether an employee’s misconduct justifies dismissal without notice. The Supreme Court of Canada has indicated that, “misconduct does not inherently justify dismissal without notice unless it is ‘so grievous’ that it intimates the employee’s abandonment of the intention to remain part of the employment relationship.” Courts and Labour Arbitrators often characterize terminations for “just cause” as the “capital punishment” of employment relationships and therefore such level of discipline is usually reserved for situations where the employment relationship cannot be continued due to the nature of the misconduct on the part of the employee.
In the case of workplace violence, workplace threats and workplace harassment, the Courts and Labour Arbitrators have shown that under Bill 168 they will consider the following factors in determining the appropriate level of discipline for workplace violence, threats and/or harassment:
The seriousness of the act of misconduct
The seniority of the employee
Whether there is a past history of good performance or bad performance?
Whether there is a past history of violence and/or anger management issues and whether the person received or was offered assistance to correct that behaviour
Has the employee been warned of previous similar misconduct previously?
Does the employer have a clear policy surrounding workplace violence, threats and harassment?
Has the employee been properly trained in that policy?
Whether the employee was provoked?
Whether the misconduct was premeditated or reactionary?
Did the offending employee apologize for their acts of misconduct and attempt to make amends?
Would there be ongoing acrimonious relationships between the employees in question in the workplace?
Overall, the key question is whether the actions of the employee created a situation where continued employment is not possible?

It has been our experience that employers have been overly “bullish” in making decisions to terminate for just cause in situations of workplace violence, threats and/or harassment. Many cases are still making their way through the Courts, but it is our expectation that over the next several years we are likely to see many cases where the Courts determine that the workplace violence, threats and/or harassment in question did not justify a termination for just cause.
A summary of some early Court decisions and Labour Arbitration decisions follow. The paper outlines each fact scenario. The decision in each case is noted starting at page 10.

CASE SUMMARIES

1. Shakur v. Mitchell Plastics, 2012 ONSC
Mr. Shakur worked at Mitchell Plastics for 6 years as a machine operator when his employment was terminated for just cause for slapping a co-worker across the face in the midst of what was described as “verbal jousting” or “trash talking” on August 17, 2007. Mr. Shakur was presented with a letter explaining that Mitchell Plastics was terminating his employment for cause due to engaging in an act of harassment, contrary to Company Policy and the Human Rights Code.

There was evidence that this type of verbal exchange between the two employees was routine but this was the first time the verbal banter had escalated to physical contact. The only independent witness to the incident was Mr. Shakur’s supervisor.

The incident was reported to Human Resources and an investigation was commenced the same day. The two employees involved in the altercation were interviewed and a brief preliminary report of the investigation was sent to Ms. Dykeman who discussed the issue with the President of the company. The President of the company directed Ms. Dykeman to terminate Mr. Shakur with cause on the information that was provided and indicated that he would reconsider the decision if the circumstances of the incident were different than what was reported. Two other employees received a suspension for their involvement in the events leading up to the incident. He stated that the behavior demonstrated by Mr. Shakur would not be tolerated in the plant.

Ms. Dykeman’s evidence was that she conducted a follow-up interview of Mr. Shakur and the other employee involved in the altercation the week following the incident and spoke with the independent witness. The court commented that the interview notes were brief, there were no notes documenting a discussion with the independent witness and that the independent witness was not asked to write a statement of the events she witnessed until August 30, 2007, after the termination of employment was communicated to Mr. Shakur.
There was no evidence that Mr. Shakur had a history of violence or anger management issues and he had no record of prior discipline. The Court accepted that Mr. Shakur was provoked, which does not justify the act, but is said to offer some context.

Mr. Shakur did not apologize but was not given the opportunity to apologize.

Mitchell Plastics’ Employee Handbook contained rules prohibiting threatening behavior or fighting with another employee, however it did not train its employees on the purpose of the rules and the consequences of breaking them.

2. Kingston (City) v Canadian Union of Public Employees, Local 109, (Hudson), 2011
The City terminated the employment of an employee with twenty-eight years’ service after she uttered a death threat against a co-worker. The employee admitted to having an anger management problem. The employee had a disciplinary history that involved two prior terminations (her employment was reinstated both times during the grievance procedures) and disciplinary warnings for inappropriate confrontations. The last incident was subsequent to her attending training on respect in the workplace and preventing harassment. The employee was described as aggressive and easily agitated.

In 2009 she reacted to not being selected to attend an educational program, which she deemed to be unfair, by yelling profane language in front of her peers and supervisors. Following this incident the employee failed to attend work for a few days. A meeting was scheduled with the employee upon her return to work to discuss the decision making process for selecting participants for the program. Prior to the commencement of the meeting, the employee started yelling and swearing while asking if she was going to be disciplined. The yelling and swearing continued throughout the meeting, until such time as the union steward called an end to the meeting. The employee received a three day disciplinary suspension for her misconduct. The employee offered no explanation for her behavior and no apology.

The next incident involved the employee being questioned about an unauthorized absence when she knowingly failed to follow the vacation approval protocol. The employee responded to the questioning with profane language, stating that she would take her vacation when she wanted to, and blaming management for cheating her out of a supervisory position. Following this incident the employee attended a meeting with the Manager of Employee Relations and Health and Safety, to discuss appropriate conduct in the workplace.

Bill 168 training was held shortly thereafter. The employee attended the two hour training session, which communicated that harassment and verbal and physical violence was prohibited in the workplace. It specifically identified that profane language was inappropriate when it was being directed at another person. The employee also individually attended anger management counseling.

Two days following the completion of anger management counseling, the employee threatened the life of a co-worker (the union steward), who approached her to discuss a modified position to accommodate her medical restrictions. The employee again used profane language while accusing her co-worker of not assisting her and of being responsible for her husband being fired. The co-worker was described as being visibly upset and shaken when he walked away from his discussion with the employee. The co-worker was concerned for his safety and the safety of his family following the threat made by the employee and as a result he reported the incident to police. Following the investigation into the last incident, the employee was dismissed for cause.

3. CUSW (Tsironis) v. Hydro One Inc., 2012
Tsironis was employed by Hydro One Inc. for five years, working as a journeyman electrician in the position of sub-foreperson prior to the termination of his employment. This incident arose from a misunderstanding between Tsironis and Bultje, the Foreperson, related to instructions given to the work crew, followed by an exchange of text messages containing profanities. Both individuals were described as “strong willed”, and at no point prior to the altercation did the two individuals have a discussion to clear up the misunderstanding. When Tsironis and Bultje next saw one another there was an altercation between the two which involved Tsironis pushing Bultje causing him to fall on a metal platform down a set of metal stairs. The arbitrator accepted that the act of pushing Bultje was unplanned and a reaction by Tsironis being instigated by Bultje, who first held his hand up as if he planned to hit Tsironis.

Tsironis did not apologize. There was no evidence before the arbitrator that Tsironis and Bultje would be able to successfully reconcile their differences.

4. Cargill Limited v. United Food and Commercial Workers Canada, Local 175, 2012
Cargill Limited terminated the employment of a shipper/receiver who had 15 years of service, with no discipline on his record. The employer’s operations underwent significant organizational changes and its Guelph facility assumed a number of temporary employees from a facility it closed in Rexdale. When the employee returned to work following a short medical leave of absence, he was told that he would not be authorized to operate the forklift and other machinery, which he had used for years, until he obtained certification of his driving skills. The employee was of the view that his employer should have deemed him competent given his work experience. The first incident involved the employee being agitated and angry and stating to co-workers in the smoking area, “when I get my f@#king license back, I’m going to f@#king hit someone, and if anyone asks, I’ll say they hit me first”. The co-workers believed that the employee was “venting” and did not think that he would cause harm to anyone. However, one of the co-workers reported the comment to her supervisor in the event that she was wrong.

During a driving certification training session the employee in a normal tone said that, if a Toronto worker were to drive towards him, he would hit him and he wouldn’t be the one to get hurt. His supervisor corrected him stating that if someone drove toward him, he would get out of the way. His supervisor did not believe he would hit anyone but reported the comment to the general foreman and the health and safety manager.

The final incident involved the employee yelling at a co-worker from the Rexdale facility who was driving a forklift on the dock. The supervisor witnessed the employee yelling, “are you licensed” and “where did you learn to drive” at his co-worker. The co-worker appeared to be uncomfortable with the comments made. The employee indicated that the co-worker wasn’t driving properly. He was driving a load forward rather than backward, which was a safety concern. The supervisor corrected the co-worker’s driving, following which the employee again yelled out either “go home, Rexdale” or “this isn’t Rexdale, Toto” to the co-worker, which made the supervisor angry. The employee was speaking in an angry tone, and while the comments were not a threat, they were demeaning and disrespectful. The employee was sent home following the final event.

When he was called back to work, he was advised that his employment was being terminated for “threatening violence; intimidation; and creating a poison environment”. The employee later learned from his union representative that the earlier comments formed part of the employer’s reasons for terminating his employment.

The employee explained that the comment made during the training session was taken out of context. There was a discussion about some of the employees not driving safely, primarily the temporary employees, and due to the limited space and wet floors, it would be difficult to make a quick stop. The employee indicated that because he drove a larger machine, he would not be the one to be hurt if there was an accident.

The employee acknowledged that the comment he made in the smoking area was inappropriate. He indicated that he was frustrated but understood that the comment may have been interpreted as his having an intention to harm someone.

5. Ditchburn v. Landis & GYR Powers Ltd., 1997 (ONCA)
At the time of his dismissal Ditchburn was a Senior Sales Executive earning approximately $101,000, he had twenty-seven years of service, no history of prior discipline and exemplary performance evaluations. Although his sales were high, Ditchburn was being left behind with new technology and had effectively been demoted to a less prestigious role. The termination of his employment was the result of a single incident. The incident involved a physical altercation between Ditchburn and a representative of a major customer following a business lunch and drinks at a strip club. Ditchburn and the sales representative had a long professional and person relationship. The fight started when Ditchburn pushed the sales representative after he made an unflattering comment about Ditchburn’s wife. The fight ended when security pulled the two men apart. They both sustained injuries from the fight. The following day Ditchburn’s employment was terminated with cause and he was offered a gratuitous payment of two months’ salary.

6. L.I.U.N.A., Local 183 v. Teston Pipelines Ltd., 2011
The evidence that Carlos, a laborer, threatened to kill his foreman and repeated the threat on a second occasion in 2010 was undisputed. There was evidence that when the incidents occurred, Carlos was stressed due to difficulties he was having in his personal life.

In December of 2009 the foreman, Teodoro, who was operating a front end loader, told Carlos to stop using his cellular phone. Harsh words were exchanged between the two and then Carlos invited Teodoro to climb down from the vehicle and repeat the words to his face. Teodoro accepted the invitation and the two men fought. No punches were thrown but co-workers intervened to separate them. Following the altercation, Carlos and Teodoro went back to work. Carlos alleged that shortly thereafter, Teodoro drove the front-end loader toward him, striking him on the shoulder area of the back, causing him to fall to the ground. The evidence from witnesses on this point was mixed, however, the worker who supported Carlos’ version of events did not report the incident. Carlos did not seek medical treatment and produced no evidence of being bruised or cut by the front end loader. The arbitrator did not find Carlos’ allegations of being hit with the front end loader to be credible.

The first incident in 2010 had started with Teodoro telling Carlos to get off the phone and get to work. Carlos responded by indicating that he was unable to perform the tasks Teodoro directed him to carry out due to medical restrictions. Teodoro responded by telling Carlos that if he was unable to perform the work he should go home because there was not work available to meet his physical limitations. Carlos refused to leave, indicating that he was entitled to work his full shift. Teodoro became angry calling him lazy and using profane language. The use of such language was common on the employer’s construction sites, however, it was inappropriate when it was coming from a working foreman and was directed at a member of his crew. Carlos then called Teodoro’s superior, Marco, and said in a serious tone, “get this guy off the job or I’m going to kill him”. Carlos was sent home for the remainder of the day following the telephone call with Marco and was told to attend at the site the next day. The next day Carlos said to Marco, “he tried to kill me once with some [equipment], before he does that to me I’ll do it to him”. Marco spoke to a lawyer and then reported the statement to police.
Question – What do you think was the appropriate level of discipline?

CASE DECISIONS
1. Shakur v. Mitchell Plastics, 2012 ONSC
The Court concluded that Ms. Shakur’s actions did not justify a dismissal for just cause, despite the Bill 168 amendments to the Occupational Health and Safety Act, the Court found that there was no evidence that Mr. Shakur had a history of violence or anger management issues and he had no record of prior discipline. Additionally, the Court accepted that Mr. Shakur was provoked, which does not justify the act, but is said to offer some context. The Court stated that Mitchell Plastics could have sent the message that workplace violence would not be condoned by imposing the progressive discipline measures referred to in the Employee Handbook.

The failure to apologize for misconduct is a factor that may be considered by the Court in assessing whether there was just cause for dismissal. In some circumstances the absence of an apology may be considered evidence on the part of an employee to repudiate the employment relationship. In this case however, Mr. Shakur was not given the opportunity to apologize.

The Court reinforced that workplace violence is a serious issue and the prevention of such is the responsibility of both employers and employees. Mitchell Plastics’ Employee Handbook contained rules prohibiting threatening behavior or fighting with another employee, however the Court pointed out that it did not train its employees on the purpose of the rules and the consequences of breaking them.

2. Kingston (City) v Canadian Union of Public Employees, Local 109, (Hudson), 2011
The arbitrator accepted that the employee did not recognize the seriousness of her misconduct and had not shown remorse for having made the threat. The arbitrator concluded that the employee did not genuinely intend to end the life of the co-worker, but did intend to intimidate him with language and cause him fear due to the extent of her frustration and anger. It was found that the verbal threat caused the co-worker actual harm. Absent evidence that the employee had made an effort to change her behavior, there was a continuing concern for the physical and emotional well-being of her co-workers, causing a lack of confidence if she were to return to work, that the workplace would be safe. Therefore, the termination was upheld.

3. CUSW (Tsironis) v. Hydro One Inc., 2012
In reaching the decision to uphold the termination of Tsironis’ employment, the arbitrator considered the inherent danger of the surface on which the two were standing during the altercation and the absence of an apology from Tsironis. The absence of an apology was significant because it was not clear that Tsironis appreciated the employer’s message that it would not condone workplace violence, even in the circumstances in which he was faced. The arbitrator explained that absent evidence that Tsironis and Bultje would be able to successfully reconcile their differences, the employer would suffer the burden of having to ensure that the two employees were kept apart, which was not considered reasonable when the concern arises from the inability of the two employees controlling their personal interactions.

4. Cargill Limited v. United Food and Commercial Workers Canada, Local 175, 2012
The arbitrator found that Bill 168 reinforced the arbitral view that threats, as a form of violence, are considered at the grave end of the misconduct scale. The threats made by this employee were serious because he threatened physical harm involving the use of dangerous machinery. The threats however were not considered to be premeditated. The arbitrator said that threats of this nature are inappropriate in the workplace because those who hear the threat then have the burden of determining whether the statements are intended to be taken seriously.

The arbitrator found that the conduct of the employee warranted discipline but not the termination of his employment. The arbitrator accepted that the apology of the employee was genuine and that he recognized his conduct to be inappropriate. When determining the appropriate discipline, the arbitrator considered the discipline imposed by the employer for similar incidents and decided that a five day suspension was appropriate. The employee was reinstated with the payment of lost wages and benefits.

5. Ditchburn v. Landis & GYR Powers Ltd., 1997 (ONCA)
Ditchburn dedicated twenty-seven years of his life to the company and measured his self-worth by his status within the company. There was no evidence that Ditchburn had a problem with alcohol or had a history of embarrassing the company with bad behavior. The Court found that this was an isolated incident and that Ditchburn should have received more support from the company, even in the face of a breach of company policy. The Court stated that the company suffered no damages from the incident and used this isolated act of bad judgment to terminate the employment of someone who was no longer a suitable fit for the direction of the company. The Court awarded the payment of twenty-four months in lieu of notice. The wrongful termination was upheld by the Court of Appeal but the reasonable notice period was reduced to twenty-two months.

6. L.I.U.N.A., Local 183 v. Teston Pipelines Ltd., 2011
Senior management met and discussed the incident and decided that a five day suspension was appropriate in the circumstances. A death threat was considered serious and a disciplinary response was considered necessary, both to bring home the seriousness of the matter to Carlos and to demonstrate the seriousness of the offence to other employees.
The arbitrator concluded that a five day suspension was appropriate in the circumstances and stated that no employee should ever threaten to kill anyone else at work, much less his foreman. To do so is improper and is a culpable criminal offence. Once it is established that such a threat was made, the employer has cause to discipline the employee. In determining the appropriate discipline, the arbitrator noted that when the threat was repeated the day following the initial incident, it was not a reaction to a momentary flare-up of anger. The arbitrator also noted that Carlos did not apologize for his conduct.

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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