Lack of remorse or acknowledgment of death threat made termination appropriate discipline: Arbitrator
It has been more than a year since the Ontario government established the amendments to the province’s Occupational Health and Safety Act, which have commonly been referred to as the Bill 168 amendments. Since then there has been little, if any, case law to assist employers and employees with the interpretation and application of the Bill 168 amendments regarding violence and harassment in the workplace. However, on Aug. 18, 2011, the first Bill 168 arbitration decision was made in the matter of Kingston (City) v. Canadian Union of Public Employees, Local 109, which provided well needed insight into how the Bill 168 amendments are to function in the workplace and how they may be used to terminate an employee.
The employee, Donna Hudson, began working for the City of Kingston, Ont., in 1983. Throughout her employment, Hudson received multiple non-disciplinary and disciplinary warnings for various reasons, including arguing and shouting at her supervisor, angrily confronting a co-worker and swearing at her co-workers.
In September 2009, the city conducted training for its employees in preparation for the Bill 168 amendments. Hudson attended one of the training sessions held on Sept. 11, 2009, during which she was informed of the concepts of harassment, verbal and physical violence and the need to be mindful of how one’s words and actions affect other people in the workplace.
On July 28, 2010, two days after successfully completing a required anger management counselling course, Hudson made a verbal threat to her union representative, John Hale, at the workplace. The threat was made after Hale requested that Hudson not talk about a friend of his who was dead, to which Hudson responded by stating, “Yes, and you will be too.”
In accordance with Bill 168, Hale reported the threat to the employer. In response, the city conducted an investigation into the matter, interviewing Hale and Hudson. During her interview, Hudson denied threatening Hale prior to any of the investigators informing her that there was even such an allegation. Additionally, Hudson did not apologize for having made the verbal threat.
Following the conclusion of the investigation, the city determined that, given Hudson’s record of issues at the workplace, her having taken part in Bill 168 training and having completed anger management counselling just two days prior to the day she made the threat, the appropriate disciplinary response was to terminate her employment. Hudson grieved her termination before an arbitration board.
After concluding Hudson made the threat towards Hale, arbitrator Elaine Newman discussed the four ways in which the Bill 168 amendments have impacted the process used to determine the appropriate penalty for acts of workplace violence.
Newman indicated Bill 168 defined the type of unwanted language that constituted harassment, but any language, regardless of whether it fell within that definition, that directly referred to the end of someone’s life or suggested danger was “not just language, it is violence.” In addition, Bill 168 stipulated such language must be reported and addressed by the employer and required workplace safety to be a factor in determining discipline for such misconduct.
After applying the above listed factors, Newman found that the city was justified in terminating Hudson’s employment.
“Having reviewed the evidenceat length, it is with regret that I must conclude that the termination, in this case, is an appropriate and proportionate disciplinary response. This would not have been my conclusion if the grievor's actions or evidence had reflected an acceptance of responsibility for her misconduct, any appreciation of how serious her misconduct was, or what she herself is going to have to do in order to gain control over her angry impulses,” said Newman.
Points of interest for employers
The initial response to the Bill 168 amendments by both employees and employers was one of confusion. There were many questions, such as how the amendments would be correctly applied in the workplace, how would they be correctly enforced, how does an employer ensure they have appropriately satisfied all of the new requirements regarding violence and harassment, and what type of discipline would be found to be a reasonable response to a breach of the Bill 168 requirements.
Though the above Ontario arbitration decision is context specific — and many questions still remain unanswered — the Hudson grievance has defined what an appropriate response may be from an employer in regards to an act of workplace violence and has also shed light on what is expected of both employees and employers when an act of workplace violence has occurred.
However, employers should take note of Arbitrator Newman’s concluding remarks regarding the possibility of an alternative finding if the employee had accepted responsibility, appreciated the seriousness of her misconduct or had known what she would do to gain control over her angry impulses. It appears that termination may not be an appropriate response to a verbal threat in the above context if any of the above factors applied to Hudson’s circumstances, as it is assumed the above considerations are mitigating factors that may reduce the likelihood of future violence in the workplace by the same employee. Given this potential alternative result, employers should consider whether any of these mitigating factors apply as they may result in termination of the employee not being an appropriate response, despite the employee’s violence in the workplace.
