Ontario’s Bill 168 came into effect in June 2010. It imposed new obligations on employers with respect to workplace violence and harassment under the Occupational Health and Safety Act.
The two most significant changes under Bill 168 are the expanded definition of “workplace violence” to include verbal threats of physical violence and the expanded duties of employers, which now require them to “take every precaution reasonable in the circumstances for the protection of a worker.”
Kingston decision deals with new changes
The August 2011 decision Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance) was one of the first cases to deal with these two changes under Bill 168. In this case, the arbitrator upheld the City of Kingston’s right to terminate a 28-year employee for verbally threatening a co-worker.
In her decision, the arbitrator held Bill 168 made significant changes to the law and outlined four ways it changed the legal analysis in cases involving verbal threats in the workplace.
Workplace threats no longer ‘unfortunate choice of words’
Bill 168 clarified how employers must think about incidents involving inappropriate use of language in the workplace, according to the arbitrator. Language that threatens to end a person’s life or suggests impending danger is classified as “workplace violence” under Bill 168.
“There need not be evidence of an immediate ability to do physical harm. There need not be evidence of intent to do harm. No employee is required, as the receiver of the words, to live or work in fear of attack. No employee is required to look over their shoulder because they fear that which might follow,” said the arbitrator. Bill 168 no longer allows arbitrators to classify threatening language as merely an “unfortunate choice of words.”
The arbitrator made it clear that when a threat is reported, it must now always be treated very seriously.
“The critical point is that it will not do for an employer to disregard, to minimize or to turn a blind eye to a report of workplace violence in the form of a threat,” said the arbitrator.
“An employer may not be passive or indifferent to any report of workplace violence. That option no longer exists in Ontario. It would constitute an abrogation of the employer’s obligations under the Occupational Health and Safety Act and would expose that employer to the penalties and offences set out in that act.”
Workplace threats must be reported and investigated
Bill 168 changed the manner in which an employer and employee must react to a threat. Since a threat is considered workplace violence, it must be reported, investigated and addressed appropriately based on an assessment of the existence of real danger.
The arbitrator clarified that the seriousness of the allegation does not mean an employer can act without the facts. The employer must investigate workplace violence “with a full and fair approach, assessing objectively verifiable fact and ensuring that decision-making in responding to the incident is informed, reasonable and proportionate.”
The arbitrator did caution, however, that dismissal is not always justified when a threat occurs, since Bill 168 did not restrict arbitral discretion in assessing the appropriateness of the penalty.
The usual factors still apply when assessing the appropriate form of discipline when a threat is made by an employee, according to the arbitrator. However, the seriousness of the incident should now be given greater weight against all other factors.
Safety must be considered when assessing discipline
The arbitrator interpreted Bill 168 as adding workplace safety as a new factor in assessing the proportionality of the discipline. The new question to be asked is: “To what extent is it predictable that the misconduct demonstrated here will be repeated?” according to the arbitrator.
“That element of inquiry is required, in light of the amendments, because the employment relationship will be incapable of reparation if the offending employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace under the Occupational Health and Safety Act.”
Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance) is a welcome decision for employers. It confirms verbal threats in the workplace should never be tolerated and signals to employers it is appropriate to strictly apply Bill 168 policies and programs in the workplace.
Malcolm MacKillop and Hendrik Nieuwland practise employment law at Shields O’Donnell MacKillop in Toronto. For more information, visit www.djmlaw.ca.