The balance between workplace safety, accommodation and morale
By Jeffrey R. Smith
Throw a punch at work? You can probably expect to be sacked. Or can you?
Workplace violence is big these days. Well, not the violence itself, but a lot of attention has been focused on workplace violence and what employers should — and must — do to ensure their workplaces are safe and healthy for employees.
Doing what is necessary to prevent violence in the workplace — as well as dealing with it when it does happen to effectively stop it from happening again — usually means getting rid of the perpetrators.
Committing workplace violence is one of the most serious forms of misconduct employees can partake in, which means employers can usually use it as just cause for the ultimate form of workplace discipline — termination of employment. Clear zero-tolerance policies can make such incidents open-and-shut cases ending with dismissal of the offending employee.
However, as serious as workplace violence is, employers should keep in mind there can be circumstances that require another solution.
Take a recent decision by the Canada Public Service Labour Relations and Employment Board, which pondered the case of a federal government employee who slapped his supervisor at work hard enough to leave a lasting red mark after a short argument. The act frightened the supervisor, who ran down three flights of stairs to find security with the employee following him all the way.
The employee admitted it was a regrettable incident, but didn’t formally apologize to the supervisor or the employer. Other employees were afraid of the employee returning to work because he had become increasingly unhappy at work and wasn’t on good terms with most of his colleagues. As a result, the employer fired him after several months of investigation and meetings with the employee.
However, the employer didn’t give weight to a medical note the employee provided at an investigative meeting a few months after the incident. The note explained that the employee had a medical condition and medication that sometimes led to mood swings and outbursts. The employer also ordered a medical assessment that found the employee had a condition that could have contributed to the incident, though it couldn’t say for sure without an assessment of the employee at the time.
The board found that while the workplace assault was serious and warranted severe discipline, the employer should have given more consideration to the medical information it had. The possibility had been raised that a medical condition could have contributed to the misconduct, but the employer didn’t properly investigate the possibility of accommodating him, particularly since there was a prognosis that the employee would be able to return to work.
The employer was ordered to reinstate the employee. Though the employer didn’t have to pay any compensation for lost wages in the three-plus years since the dismissal — this gap in pay serving as discipline for the serious misconduct — it was on the hook for $25,000 in damages for discriminating against the employee: See Rahmani c. Administrateur general (ministère des Transports), 2016 CarswellNat 460 (Can. Public Service Lab. Rel. and Emp. Bd.).
So it goes to show that while workplace violence is one of the most serious things an employee can do, termination of employment isn’t always a done deal. As with any form of employee misconduct, a proper investigation of the circumstances is necessary and any extenuating circumstances considered.
But in such circumstances where workplace safety might be at risk, how much accommodation is necessary? Even if such an employee is deemed fit to return to work, how should the employer handle employees who are afraid to work with the employee again? Can employee fear be seen as undue hardship against accommodation?