The blame game

Should employers be at fault if acrimony between co-workers escalates to violence?

By Jeffrey R. Smith

Employers have a legal duty to keep the workplace environment safe and protect employees from potentially damaging circumstances, such as harassment or violence. But that isn’t always possible.

There have been numerous cases of workplace harassment, and even violence, that have taken place — and more are happening all the time. And in some of these cases, the employers are partly at fault because they haven’t made reasonable efforts to keep the workplace safe and free of harassment and violence.

But sometimes the employer does make reasonable efforts and it still happens. How much responsibility should it take in those situations?

While certain outcomes can be predictable, it’s not always evident what someone is going to do. When an employee harasses another, the employer has to investigate and analyze the situation before taking proper action. Depending on the seriousness of the misconduct, it can discipline or dismiss the harasser or find another solution, such as separating the harasser from the harassed.

Having a clear policy that’s enforced consistently can dictate the course of action in many cases. If proper action isn’t taken, then the employer can be liable for the harassment and its effect on the victim.

But sometimes employees act unpredictably and the employer may not be liable for that. A couple of years ago, an employee for a Saskatchewan company was hit in the head with a lunchpail by a co-worker at work. The union filed a grievance against the company, claiming it violated provincial occupational health and safety legislation by failing to provide an injury-free workplace.

The assailant was known to not get along with the victim and had demonstrated bullying behaviour — and there was no doubt management knew of this. However, the arbitrator found the assault was unlike any of the assailant’s previous behaviour, which was limited to verbal insults and comments. There was nothing indicating he would resort to physical harassment and violence, which made the assault unforeseeable for the employer, said the arbitrator.

The union’s request for damages for the victim for the violent act were denied, though the arbitrator ordered the company to keep the assailant and the victim separate at the workplace and minimize the chances of them crossing paths: Shaw Pipe Protection Limited v Construction and General Workers' Local Union No 180 (Oct. 7, 2013) D. Ish – Arb. (Sask. Lab. Arb.).

So the employer was found to be not liable for the violence that happened between employees at its workplace because the employee responsible for it hadn’t done it before. This decision could be encouraging for employers in similar situations that feel they can’t be on top of everything, but it should still remind employers to make sure they take all measures necessary when there is animosity in the workplace.'

When there is known strife at a workplace, it’s not a good idea to let things simmer. A situation like the one above could be an example of things that start out as verbal jousting but can escalate to worse. If it turns out an employer knows of such a situation but did absolutely nothing, there could still be some liability. In the above case, the assault wasn’t considered foreseeable, but there could be similar circumstances where it could be the likely outcome.

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