What rules does Ontario’s Bill 168 layout for employers when it comes to verbal harassment in the workplace?
The Bill 168 amendments, which came into force on June 15, 2010, imposed new obligations on employers in Ontario with respect to workplace violence, including the use of threatening language, under the Occupational Health and Safety Act. What Bill 168 tells us is “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force, in a workplace, that could cause physical injury to the worker” constitutes workplace violence and must be taken seriously.
Workplace threat meant to intimidate is workplace violence
The definition of workplace violence under the act is quite broad and uses language that reflects the preventative nature of the Bill 168 amendments. As Arbitrator Newman explains in what is one of the first cases to address this issue, Kingston (City) v. C.U.P.E., Local 109: “The violence is the utterance of the words. There need not be evidence of an immediate ability to do physical harm. There need not be evidence of intent to do harm.”
Circumstances considered to be workplace violence
• When one employee confronts another, with voice angrily raised, and where his physicality intimidates to such an extent the recipient is made to feel unsafe.
• When an employee makes a conscious effort to seek out her manager and warn her in a loud and aggressive manner that harm will befall her and the plant in an attempt to scare the manager into rescinding a suspension just imposed.
• When threats of killing a foreman are not meant as a joke, are not construed as such by witnesses, including the foreman, and are repeated calmly the next day.
• When, to settle a dispute, a lead hand challenges the grievor “to take it outside” and the grievor states he is going to get “ammo” when the lead hand was aware that the grievor owns firearms (Both employees were found to have committed acts of workplace violence).
• Where the conduct of an employee is of a sort that creates a fear that angering him could lead to further and perhaps greater physical violence.
Statements have not been found to be workplace violence in the following context:
• Where the use of profanity and name-calling by an employee does not involve a threat of physical force or injury (although conduct could amount to workplace harassment).
Workplace violence must be reported
The employer must take steps to ensure its workplace harassment and violence policies are known and understood and that employees report all incidents of workplace violence.
Workplace violence must be investigated and addressed
The employer must investigate 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 employer is obliged to thoroughly examine not only incidents of workplace violence but, also, workplace violence committed “in reaction” to such incidents.
Employers’ discretion in assessing appropriateness of penalty
To be clear, the act does not say all incidents of workplace violence are equally serious, but rather they are all to be taken seriously, investigated and addressed. Once it is established that the threat uttered constitutes workplace violence, the employer has cause to discipline. As one arbitrator puts it, “Nothing will undermine all of the policies and information sessions for employees as quickly as tolerance for an actual incident of workplace violence. ”
Bill 168, however, does not advocate the imposition of “automatic” or “one size fits all” penalties for every act of workplace violence nor does it oust employer discretion in assessing the appropriateness of the penalty. Discipline must be determined on the facts of each case, guided by the usual factors For example, who was threatened? Was this a momentary flare-up or a premeditated act? How serious was the threat? Was there provocation? What was the employment and discipline record of the employee? Was there remorse?
Recent decisions confirm the employer has an obligation to take an employee’s record and remorse into consideration when making decisions with respect to discipline. In addition, it may have to consider any unfairness on its part, including the manifest unfairness of upholding the most extreme sanction against the one employee when no action is taken against another employee who is guilty of similar unacceptable conduct.
Finally, in deciding whether the offending employee whose employment was terminated should be reinstated, the employer must consider consequences for health and safety.
Danielle Leon Foun Lin is an associate lawyer in the Labour & Employment Law Groups at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at (613) 231-8369 or [email protected].
