Verbal threats should be taken seriously
Question: How should an employer handle verbal threats from one employee to another?
Answer: It has always been the case that employers were responsible for providing a safe workplace for their employees. However, the nature and degree of this obligation has changed significantly in recent years.
The changes have been particularly dramatic in Ontario, where Bill 168 amended the Occupational Health and Safety Act to address, among other things, workplace violence and harassment. One aspect of the amendments was the recognition that threats can constitute violence in their own right. The end result is that while in the past, employers may have been able to comply with their duties without taking significant steps in the event of a relatively nominal threat, the action required on the part of employers has, in many circumstances, changed as a result of the changes in the legislation.
One of the first decisions that was recently handed down relating to Bill 168 is particularly instructive. In that case, a worker for the City of Kingston had uttered words which could have been interpreted as a death threat against her union representative. The employer ultimately decided to dismiss the employee, relying in part upon its obligation pursuant to Bill 168 to take all reasonable steps in order to maintain a safe workplace. The union grieved the dismissal, arguing that Bill 168 did not change the fact that in order to justify summary dismissal, the employer had to engage in a contextual analysis and impose discipline that was proportional to the misconduct in question.
Ultimately, the dismissal was upheld. In a thorough and lengthy decision, the arbitrator provided useful guidance to employers going forward. Among other things, the decision confirms that a threat, for the purpose of intimidation, constitutes an act of violence, regardless of whether the person issuing the threat genuinely intends to follow through, has the ability to follow through, or whether the person receiving the threat actually feels threatened. Threats cannot be ignored or dismissed, but must be fully investigated and addressed. Furthermore, while it remains the case that an employer must take a contextual approach when assessing the appropriate level of discipline to impose, threats are now to be taken more seriously than they may have been in the past.
