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EMPLOYMENT LAW
Nov 25, 2014

Serious issue, serious response

Employers must respond swiftly and strongly in dealing with workplace violence – but how strongly?
    

By Jeffrey R. Smith

Workplace violence is something employers are acutely aware, thanks to a few unfortunate and well-publicized incidents over the past few years and changes in laws that have partly been spurred by such incidents. Legislation such as Ontario’s Bill 168 has placed a greater responsibility on employers to make sure employers are safe not just from occupational accidents, but threats from other people — whether co-workers, customers or other outside individuals.

In order to ensure their workplaces are safe for employees, employers must crack down whenever workplace violence or threats happen. But what is the right way to respond? Are we sensitive enough to the threat of violence that termination should pretty much be automatic, or should there be levels of progressive discipline like for other forms of employee misconduct?

Of course, threats or violence can have a more serious effect than many other forms of misconduct. While physical injury can happen, sometimes the non-physical effects can last longer. A victim of workplace violence or threats can feel endangered, scared, unable to concentrate and traumatized to the point where it carries over into personal life. The effects on both productivity at work and quality of life for victims, along with a poisoning of the workplace environment, can have long-lasting effects that employers have to deal with assertively.

Let’s look at a recent Ontario arbitration case where a worker was fired after an altercation at work. The workplace was a cardboard box factory with an assembly line. The worker faced pressure to keep things on the line moving, and one day there was a growing backlog when a co-worker asked to access the control panel of the product transfer vehicle the worker was operating.



The co-worker intended just to take the vehicle’s manual to help in repairs of another vehicle, but didn’t communicate this and the worker thought he wanted to do maintenance on her vehicle. She didn’t have time to stop and let him do that, so she said no and continued to work.

The co-worker was concerned he couldn’t do his repair assignment, so he decided to jump into the vehicle in an attempt to get the manual. The area inside was small, so the worker screamed when the co-worker appeared in the vehicle with her, turned around and pushed him. She tried to grab the co-worker’s walkie-talkie in an attempt to contact the supervisor, and somehow managed to wrap the cord around his neck.

Once things settled, the employer fired the worker for violating its policy on workplace violence. However, the worker – who had no previous incidences of violence or other misconduct – was apologetic. Though she initially said she would do the same thing again, she later testified she would not and apologized to the co-worker after she was terminated.



The arbitrator agreed the worker’s misconduct was serious, but she wasn’t solely responsible for the incident. The co-worker – who wasn’t disciplined – caused the situation and the worker was only reacting to it – there was nothing premeditated. The company was ordered to reinstate the worker with a three-month suspension in place of dismissal: see Kruger Inc. and Unifor, Local 1646 (Gatto), Re, 2014 CarswellOnt 15713 (Ont. Arb.).

The above case demonstrates that, although workplace violence should be taken seriously, termination of employment is not necessarily the solution in dealing with an employee who is responsible for it. Like many things in employment law, other factors such as the employee’s record, service, and the particular circumstances should be considered when determining how to respond.

    
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