Absence of a current violence policy

Question: An employee threatened and physically assaulted a co-worker. Our workplace policies are being re-written and we don’t currently have a policy that prohibits violence or threats in the workplace. However, it is common sense that this type of behaviour is not acceptable at work. Can we dismiss this employee despite the lack of a policy?

Answer: In Canada, employers have an obligation to protect their employees from violence in the workplace. Most Canadian jurisdictions have a general provision in their occupational health and safety legislation which requires employers to take precautions to protect the health and safety of employees. Specific workplace violence regulations are now in place in many provinces, including Ontario, British Columbia and Alberta.

It is advisable for employers to implement workplace violence policies. In fact, some Canadian jurisdictions now require it. For example, Ontario employers are required to have a policy respecting workplace violence and harassment. Similarly, British Columbia employers must perform a “risk assessment” in workplaces where a risk of injury from violence may be present. If such a risk is identified, the employer must establish policies and procedures to minimize or eliminate the risk.

In both union and non-union workplaces, breach of a workplace violence policy may be just cause for dismissal, depending on the seriousness of the misconduct and the surrounding circumstances. But even if no specific policy exists, dismissal may still be justified. The existence of a policy is only one of the factors that must be considered to determine just cause. An employee should not need a policy to understand that it is unacceptable to threaten and physically assault a co-worker.

Whether or not you have cause to dismiss this employee will depend on the specific facts of the case, including considerations such as the severity of the misconduct, whether the employee has a prior disciplinary record, whether the employee has apologized and is remorseful, and whether he or she was provoked. As threats and assault are usually at the serious end of the misconduct scale, the threshold for dismissal is likely to be lower than it would have been for a lesser infraction.