Going to safety extremes

Employee in U.S. fired after abusive ex-husband shows up at work

By Jeffrey R. Smith

Health and safety has to be a top priority for employers.

There’s a pile of legislation that places a heavy onus on employers to make sure workers are protected as much as possible from dangerous situations that could lead to injury or worse. It’s also in the employers’ interest to keep their workers healthy and productive. But how far should an employer go to make sure its workplace is safe?

There was a lot of discussion three years ago when Ontario’s Bill 168 came into force. The bill amended the province’s Occupational Health and Safety Act with more protections against workplace violence and harassment. Included in the provisions was a requirement to protect employees from things like domestic violence if there was a risk it would spill into the workplace.

Employers were also required to inform employees about other employees who had a history of violence if there was a risk of exposure to violence at the hands of those with a violent past.

The concern about domestic violence carrying over into the workplace was in part due to events like the 2005 murder of Windsor, Ont., nurse Lori Dupont at the hospital where she worked. Dupont was stabbed by her ex-boyfriend, who also worked at the hospital, months after their breakup. When it became known that hospital administrators had been aware the ex-boyfriend had been harassing Dupont, calls for better protection for workers began and led to Bill 168.

But how far should employers take their responsibility? Earlier this year, a worker at Holy Trinity School in San Diego, Carie Charlesworth, warned her principal that she had been having trouble with her abusive ex-husband and the school should keep an eye out for him in case he came to the school to harass her. When the husband did show up, the school had to be locked down.

The school was afraid the ex-husband’s disregard for restraining orders and violent behaviour could lead to future problems at the school, so it terminated Charlesworth’s employment.

Though the ex-husband was in jail, the school told her it couldn’t tolerate the risk of other altercations when he was released later in the year.

Granted, this case was in the United States and it’s highly unlikely a Canadian employer could use such justification for dismissal — the school may still not get away with it because Charlesworth indicated she was planning to file a lawsuit — but it demonstrates the lengths to which an employer might feel it has to go to ensure a safe workplace.

There have been Canadian cases where an employee’s unsafe actions were serious enough to be just cause for dismissal, but there are also others where it was ruled to only warrant other forms of discipline. Obviously, punishing a victim of domestic violence for the actions of her abuser isn’t fair, but was the measure completely unreasonable given the nature of the workplace — a school with children that could be exposed to harm from the ex-husband?

There are many ways an employer can make a workplace safer for its employees, but if things reach a point where it’s simply safer without a certain employee there, should that be reason enough to let that employee go?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.

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