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36-year employee properly dismissed for “unprovoked momentary outburst” with knife

A 57 year old employee with 36 years of service was properly fired for one incident in which he cut another employee with a knife, a labour arbitrator has decided.

The employee was a custodian with a textiles company.  He carried two “utility/box” cutting knives, which had short retractable blades.  While eating lunch one day, he became annoyed when a co-worker banged on the lid of his Tupperware container, causing several loud noises.  The employee produced two utility knives and said to the co-worker, “Would you like the curved blade or the straight blade?”  The employee began to swing one utility knife towards the co-worker’s legs, and then above the table towards his chest.  The co-worker reached out to grab the employee’s arm and, in his attempt to protect himself, received a shallow cut to his forearm, which started to bleed.  About an hour later, while the co-worker was leaving the workplace, the employee said, “You are lucky that I didn’t stab you in the heart.”

The employer fired the employee.  The union grieved the firing.  The employee was also charged with and pleaded guilty to the criminal offences of assault with a weapon and uttering a threat.

At arbitration, the arbitrator upheld the dismissal. He found that there was no justification for the employee’s outburst.  Rather, “it was simply an irrational act of anger”.  Although the employee had obtained counselling and anger management training his “unexplainable act” still made it questionable as to whether he would do something similar in future.  Also, the harm to the co-worker could have been grave.  Rather than apologizing to the co-worker, the employee commented that “You are lucky that I didn’t stab you in the heart.”  Further, the judge in the employee’s criminal case ordered that he have no contact with his injured co-worker, which made it very difficult for the employee to return to work.

As a result, the arbitrator was not satisfied that the fact that the employee received counselling and anger management training provided sufficient confidence that he would not engage in similar misconduct if he returned to work.  The fact that the employee’s misconduct was an “unprovoked momentary outburst” was “more of a concern than a consolation”.  Even though the grievor was 57 years  old and had 36 years of service, the discharge was appropriate.  This decision shows arbitrators’ increasing willingness to uphold employers’ decisions to terminate for workplace violence.

Firestone Textiles Company v United Food and Commercial Workers Canada, Local 175, 2014 CanLII 76772 (ON LA)

36-year employee properly dismissed for “unprovoked momentary outburst” with knife

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code - of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

No punches thrown, but employee properly dismissed for yelling, swearing and abusive conduct

An employee need not physically assault a co-worker in order to be dismissed for workplace violence, an arbitrator’s decision shows.

The employer had 8 “Golden Rules” of workplace health, safety and environmental standards.  The employee had signed a document that said he understood that failure to comply with the Golden Rules and all other posted plant safety rules “may result in disciplinary action up to and including termination”.

Less than 3 months later, the employee got into an altercation with a co-worker.  There was yelling, swearing and abusive language.  A third employee intervened to separate the two employees when it looked like they were about to hit each other.

The employer’s investigation found that the employee had called the other employee, who was said to have a heavy build, a “fatass” and made a derogatory reference to the other employee’s sexual orientation.  When the third employee tried to break up the altercation, the employee continued to argue with and antagonize the other employee.  Also, both men had removed their hard hats, indicating that they were preparing to hit each other with their fists.

The union argued that this incident of fighting and violence was at the “low end” of the spectrum.  The union noted that there was no physical contact between the fighting employees; “it was all words”.  Also, there were no physical injuries.

The arbitrator disagreed, finding that the employee chose to use words that directly attacked the other employee’s physical appearance and his sexual orientation.  This was “over and above both employees’ use of more traditional, garden-variety, profanities”.  Further, “particularly hurtful comments directed at an individual’s appearance can, even in the absence of physical violence, warrant termination of employment”.  Further, the employee continued to “egg on” the other employee after the third employee tried to break up the altercation.  Lastly, the plant operated around the clock and the employer required all employees, who had been trained on its workplace violence policy, to exercise some degree of self-restraint.  The employee had, instead, tried to escalate to physical violence and likely would have done so if the third employee had not intervened.

The employee had only 15 months of service, had received extensive training on the employer’s workplace violence policy and harassment policy, and had been given a copy of the employer’s “Golden Rules”. He showed very little insight into how his own behaviour was a contributing factor.  He did not see himself as accountable for his own actions.  He did not apologize until the day of the hearing.

The arbitrator upheld the dismissal.

Unifor Local 80-0 v Certainteed Insulation Canada, 2015 CanLII 600 (ON LA)

No punches thrown, but employee properly dismissed for yelling, swearing and abusive conduct

Run over by shoplifter in parking lot, retail employee may sue employer and supervisor despite having WSIB coverage

A retail employee who helped pursue a shoplifter, in violation of the employer’s workplace violence policy, was not entitled to WSIB benefits and could sue the employer and a supervisor in the courts for her injury.

The employee was standing outside the grocery store, where she worked, on her break. The supervisor, who had just finished his shift, followed a suspected shoplifter to his van.  The employee also followed.  The supervisor confronted the shoplifter who accelerated away and ran over the employee with both his front and rear driver-side wheels.  The employee was hospitalized and had not yet returned to work.

The employee sued the employer and the supervisor seeking damages.  The employer applied to the Workplace Safety and Insurance Appeals Tribunal for a declaration that the employee’s right to sue was taken away by the Workplace Safety and Insurance Act because she had Workplace Safety and Insurance Board coverage.

The WSIAT held that the employee’s injury did not arise out of and in the course of her employment.  It was important that the employee, in participating in the confrontation of the shoplifter, had violated both the employer’s “Non-Pursuit Policy” and Workplace Violence Policy which prohibited most employees from pursuing shoplifters.  Further, she was on a break at the time of the incident.  Pursuing shoplifters was not one of her duties and was not even incidental to her duties.  Her pursuit of the shoplifter was of no benefit to the employer because it violated company policy and made her unavailable to return to her regular duties.  For similar reasons – plus the fact that he had finished his shift - the supervisor was found not to be in the course of his employment at the time of the accident.

As such, the employee was entitled to sue both the employer and the supervisor in the courts.

It is interesting to note that the employee’s own misconduct (violating the company’s non-pursuit policy) was one of the factors that took her “out of the course of” her employment and permitted her to sue the employer instead of claiming WSIB benefits.

Guizzo v. Metro Ontario Inc., 2014 ONWSIAT 2526

Run over by shoplifter in parking lot, retail employee may sue employer and supervisor despite having WSIB coverage

“If you think your salary is low . . .”: employer’s presentation was “offensive, distasteful and inappropriate as a motivational tool”, but not illegal

An adjudicator has criticized an employer’s motivational presentation as “offensive, distasteful and inappropriate as a motivational tool”, but found that it was not illegal.

The presentation was delivered by a Regional Manager with the Ontario Ministry of Transportation to Transportation Enforcement Officers employed by that Ministry.  It was called, “New Year New Outlook”.

The presentation contained “graphic imagery of poverty in the developing world” and compared this imagery to “trivial” problems in the developed world. One slide asked, “If you think your salary is low, how about her?” accompanied by a photo of a child.  Another slide asked, “Why do we complain?” while the next slide stated, “Let’s Have New Expectations!”

Some employees, noting that the collective agreement was set to be negotiated that year, felt that the presentation was a tool to disincentivize the union from bargaining an advantageous agreement for them.  One employee said she felt that the presentation was calling her and other employees lazy and insinuating that they demanded too much.  Employees felt that the presentation was condescending and presumptuous and suggested that they were lucky to have jobs.

The union argued that since the majority of the images of poverty in the developing world showed people of colour, the use of those images violated the Human Rights Code.  The adjudicator, a member of the Grievance Settlement Board, noted that none of the employees asserted that they have racial characteristics that were protected under the Code; hence, there was no discrimination proven.

The union also argued that the presentation constituted harassment under the Human Rights Code.  The adjudicator rejected that argument because the union had not even “asserted that the harassment alleged to have taken place was because of a protected characteristic possessed by any of the” employees.

Lastly, the adjudicator decided that there were no facts asserted that showed that any of the employees suffered any discriminatory treatment because of their union membership or activity.  The employer’s message that they should be content with their employment terms was not discriminatory because of their union membership.

The adjudicator went on to state that by deciding that the presentation did not violate the collective agreement or the Human Rights Code, he was not saying that the presentation was “fine”.  Instead, he stated:

“The Board’s acceptance for purposes of this motion that the presentation was offensive, distasteful and inappropriate as a motivational tool, cannot possibly lead to a finding that any of the collective agreement or statutory rights of the grievors were violated . . . The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was ‘fine’ or that the Board endorses such conduct.  The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees.”

The grievance against the presentation was therefore dismissed.

Ontario Public Service Employees Union (Brydges et al) v Ontario (Transportation), 2014 CanLII 74778 (ON GSB)

“If you think your salary is low . . .”: employer’s presentation was “offensive, distasteful and inappropriate as a motivational tool”, but not illegal

False assault allegation against supervisor was just cause for dismissal: video evidence was conclusive

An employee who filed a written complaint, falsely alleging that his supervisor deliberately ran into him with a sharp blow from his shoulder, was dismissed for cause, an arbitrator has held.

Unfortunately for the employee, video evidence showed his allegation to be false.

The employee, a warehouse worker, had seven years of service and had received two prior suspensions in the previous twelve-month period.

The supervisor denied the allegation, and no witnesses supported the employee’s version of events.  Video evidence showed the corridor at the time when, according to the employee, he was assaulted.  The video showed that no such assault took place.

The arbitrator held that the evidence was overwhelmingly against the employee’s account of what had occurred. In particular, the video showed that there was no contact.  The employee had falsified the allegation against his supervisor.  This was very serious, as the allegation was that the supervisor had committed assault.  That allegation, if accepted, “could have extremely negative consequences” for the supervisor including possible criminal charges. The allegation was calculated to harm the supervisor.  The making of the allegation was so serious as to “undermine the possibility of any ongoing employment relationship”.

As such, the employee was dismissed for just cause.

DB Ontario Inc. v United SteelworkersLocal 3327, 2014 CanLII 77057 (ON LA)

 

False assault allegation against supervisor was just cause for dismissal: video evidence was conclusive

OLRB Agrees to Hear Another Harassment Case

The debate continues as to whether the Ontario Labour Relations Board has jurisdiction to hear harassment-reprisal complaints under the Occupational Health and Safety Act, but another Vice-Chair of the OLRB has said “yes”.

As we wrote in another post, an earlier OLRB decision called Investia had suggested that because the OHSA does not require employers to prevent harassment – but only to have a harassment policy and program, to provide “information and instruction” to employees on harassment, and to post the policy – the OHSA does not protect employees who were dismissed for complaining about harassment.

Recent decisions of the OLRB, and now the OLRB’s November 21, 2014 decision involving Celco Inc., have come to the opposite conclusion.  In the Celco case, an employee alleged that she had experienced continuing workplace harassment from a co-worker and had complained to the employer about it several times.  She said that the employer took no action, but rather dismissed her from her employment the same day she complained to the employer about harassment.

Vice-Chair Derek Rogers of the OLRB stated:

“The applicant has asserted that she sought to have the responding party investigate and deal with her complaints and that she sought enforcement of the Act by making her reports.  For the purposes of the responding party’s motion and at this stage of the proceedings, that is sufficient in the Board’s view . . . According to the applicant’s allegations, there was a very close temporal nexus between the applicant’s raising issues about what she alleged as ‘workplace bullying’ by a co-worker (by then promoted to a supervisory position over the applicant) and the notification by Celco that the applicant’s employment was terminated.  The timing of the ‘without cause’ termination of employment and the allegation that there was no rationale offered other than that the applicant was not happy at Celco are sufficient in the Board’s view to support the proposition that Celco should be called upon to explain its position regarding the employment termination.”

As such, the OLRB permitted the employee to advance her complaint that she was retaliated against for complaining about harassment, and that that retaliation violated the OHSA.  The OLRB rejected the employer’s request to dismiss the complaint at an early stage.

One lesson from the decision is that wherever there is a risk that the employee will allege that her dismissal was in retaliation for her raising safety concerns, the employer should, in the termination letter, provide a clear and supportable non-retaliatory rationale for the termination.  By not offering a rationale, the employer may encourage a presumption that the employee was dismissed in retaliation for raising safety issues.

Ram v Celco Inc., 2014 CanLII 74839 (ON LRB)

OLRB Agrees to Hear Another Harassment Case

Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

An employee’s persistent mockery and intimidating conduct towards a supervisor warranted a 6-month suspension, an arbitrator has held.

The employee’s conduct included the following:

1. On one occasion, after the supervisor greeted him, the employee started hollering aggressively at him, “Oh that’s the way it’s gonna be … Hi Dan, Oh Hi Dan, How are you.”  The employee continued to yell at the supervisor until he was far enough away that he could not hear him.

2. The next week, the employee was parked nearby and when he saw the supervisor, he rolled his window down and started hollering an aggressive and sarcastic greeting to him.

3. The next week, the supervisor met up with the employee who gave him a similarly aggressive greeting.

4.  When the supervisor was leaving work at the end of another day, the employee drove up in a truck so that he was close to the supervisor and rolled his window down and aggressively and sarcastically greeted him.

5.  On another occasion, the supervisor observed the employee see him, and said “good morning” and he replied with the aggressive greeting.  The employee continued with the loud aggressive greeting until the supervisor unlocked the door to the stores area and went in.

6.  Another day, the employee approached the supervisor and loudly greeted him, interrupting his conversation with another worker.

7.  Lastly, on another occasion, the employee very loudly and aggressively called out to the supervisor and carried on with an aggressive and bullying greeting.  This continued until the supervisor had reached the doorway that exits into a hallway.

The supervisor reported that the employee’s conduct was causing him to have trouble concentrating, he wasn’t sleeping, and his wife was concerned for their safety. He went to see his doctor and was referred for counselling.

The arbitrator found that the employee’s conduct appeared to relate to the supervisor’s efforts to bring some efficiency to an area of the company’s operations that was “in demonstrable need of change”.  The employee admitted that he had been deliberately sarcastic, that he knew his conduct was unwelcome, and that he had tried to get under the supervisor’s skin.  The arbitrator decided that his conduct violated the company’s violence and harassment policy.

The arbitrator stated that the employee’s conduct was “juvenile and unworthy of a 12 year old, let alone a man in his 50s.  It also however had a goading, threatening quality to it.”

The arbitrator concluded, however, that the employee’s conduct was “more immature than intentionally threatening”.  Also, had the supervisor warned the employee right away or reported the incidents under the violence and harassment policy (he said that he had not reported because he “did not want to make trouble” and feared how the employee would react), the employee might have changed his ways.

Given that, and the employee’s 34 years of service, the arbitrator reinstated the employee with no back pay, resulting in a six-month suspension without pay.  The employee was given “one last opportunity to show he can conduct himself in a civil and respectful way in his workplace.”

Hinton Pulp, A Division of West Fraser Mills Ltd. v Unifor Local 855, 2014 CanLII 57678 (AB GAA)

Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

Fake e-mail to other employees results in criminal mischief conviction

An Ontario employee has been convicted of criminal mischief after sending a fake e-mail to fellow employees, degrading another co-worker.

The employee, apparently upset that the co-worker rejected his request that they be more than friends, sent an e-mail to nine other employees, purportedly from the female co-worker. The e-mail degraded the co-worker professionally, sexually and physically.

The employee pleaded guilty to criminal mischief.

The employee also pleaded guilty to separate criminal harassment charges, apparently unrelated to the workplace. He received a suspended sentence and two years’ probation on the mischief charge, and 90 days’ imprisonment (in addition to 2 months’ time served) on the criminal harassment charge.

R. v. Dewan, 2014 ONCA 755

Fake e-mail to other employees results in criminal mischief conviction

Court considers safety, fatigue of replacement workers in granting picketing injunction

A British Columbia judge has considered an employer’s concerns for the safety of replacement workers, in granting an injunction against picketing workers.

The employer and Unifor were in a labour dispute.  Unifor was picketing the employer’s place of business.  In an affidavit submitted on the company’s motion for an injunction, a company manager expressed concern over the safety of the replacement workers due to fatigue:

“In addition to the financial consequences of these increased delays and of greater concern to Cascade are the potential health and safety consequences for CanJet and Trenton personnel. It is very rare that we schedule our production work force for 12 hour days for a significant number of days in a row. The reason this is rare is because of a concern we have for the health and safety of the workers due to fatigue. These workers are repairing complex commercial aircraft and are working with complex tools and equipment. During the course of their duties, they are operating flight controls and doing high-skilled professional work that without due diligence could result in significant damage to the aircraft and/or serious injury to personnel. During the time that the bus is stopped when trying to enter or exit the facility, these personnel cannot simply rest as they are constantly subject to picketers yelling, tapping and scraping their picket signs on the bus and peering through the windows of the bus, sometimes with cameras. I have serious concerns that the number of hours these workers are spending at work and on their way to and from work due to the increased delays in crossing the picket line could lead to exhaustion and a serious work place accident.”

Madam Justice Sharma of the B.C. Supreme Court stated that, “In all the circumstances, I find that there is urgency to this application because of the health and safety concerns of the people working for Cascade.”  She added, “It is clear that Cascade may suffer irreparable harm if the injunction is not granted. I am particularly concerned by the escalation of matters since this matter started.”

The employer was therefore entitled to a temporary injunction prohibiting the union members from “blocking, hindering, delaying or obstructing”.

Cascade Aerospace Inc. v. Unifor (Local 114), 2014 BCSC 1461 (CanLII)

Court considers safety, fatigue of replacement workers in granting picketing injunction

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

An arbitrator has upheld the dismissal of a unionized employee for one incident of sexual harassment and threats on Facebook.

After an incident at work in which the grievor was displeased with “X”, a female co-worker, the grievor went home and complained about X on Facebook. Although he did not identify X by name, he referred to what the arbitrator called a “distinctive personal characteristic” of X.  Another co-worker posted a comment on Facebook that suggested performing a physically aggressive act with X’s physical characteristic.  The grievor agreed with the comment and added a further suggestion on Facebook that a violent and humiliating sex act be performed on X.  He then mentioned a cruel nickname associated with X’s personal characteristic.  From start to finish, the grievor’s Facebook session lasted about 2 hours.

Within a few hours, X found out about the Facebook postings.  She complained to the employer, and explained that she had been teased about the personal characteristic when she was a child and was very sensitive about it.  The company then fired the grievor, finding that his comment referring to X was a reference to a violent and aggressive sexual act that was perceived to be a threat of both sexual and physical assault.

Arbitrator Laura Trachuk upheld the dismissal.  She stated that it would be reasonable for a woman reading the Facebook posts to feel threatened. The grievor had suggested, in those posts, that X be sexually assaulted.  He must have anticipated that X would see the posts because his Facebook “friends” included co-workers.  According to the arbitrator, “Making nasty comments on Facebook is not an acceptable response to frustration with a co-worker.”  The references to X’s personal characteristics could only have been made to hurt her.

In closing, the arbitrator stated that, “Some offences are so serious that they warrant discharge.  An employee does not necessarily get one free sexual harassment before he loses his job.”  The grievor was not a long-term employee and the company could have little confidence that he could be trusted never to harass someone else.

United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA)

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

Trucker who punched customer in the mouth was fired for cause

One would think it self-evident that employees who punch a customer’s employee in the face may be dismissed for just cause. But it took an appeal for an employer to win on that issue.

The employee was a truck driver with a small, privately-owned trucking company.   While at a customer’s premises, he got agitated at one of the customer’s employees and punched him in the mouth, knocking out one of his teeth.  The employer dismissed the truck driver and refused to pay his Canada Labour Code termination and severance pay.  The employee then filed a claim for those amounts.

Surprisingly, an Inspector under the Canada Labour Code, who was the first-level adjudicator, decided that the employer did not have just cause for dismissal because the company’s “expectations” had not been clear, there had been insufficient supervision to ensure compliance, and there had been no “clear warnings” as to what would happen if the employee engaged in unacceptable conduct.

The employer appealed to a referee, who disagreed with the Inspector.  The one incident, taken on its own, was just cause for dismissal.  The truck driver showed no remorse for his actions, even at the hearing where he said that the customer’s employee deserved what he got.   The appeal referee found that the truck driver had been evasive and dishonest at the appeal hearing.  The referee held that the punch was unprovoked and constituted just cause for dismissal; this meant that the employee was not entitled to termination pay and severance pay under the Canada Labour Code.

Although the employee had a spotty performance record, including a warning for a previous violent incident at a customer’s premises in which he was alleged to have threatened one of his co-workers with a hunting knife, the appeal referee decided that he did not need to rely on the past incidents, given the gravity of the later assault on the customer.

Our posts on other dismissal-for-violence cases can be viewed by clicking on the “Violence and Harassment” category on our occupationalhealthandsafetylaw.com blog.

Warner v Moore Brothers Transport Ltd., 2014 CanLII 54390 (ON LA)

Trucker who punched customer in the mouth was fired for cause

Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

Physically demonstrative managers beware: your company’s workers compensation coverage does not necessarily protect you from lawsuits by employees.

Even though her employer had Workplace Safety and Insurance Board coverage, an employee was entitled to bring a lawsuit against an executive who “massaged” her neck, allegedly injuring her, Ontario’s Workplace Safety and Insurance Appeals Tribunal has ruled.

However, the Workplace Safety and Insurance Act prohibited her from suing her employer for the neck injuries.

The employee alleged, in her court action, that the executive officer had injured her when he manipulated her head and neck without her consent, thereby committing assault and battery. The worker had a prior neck condition affecting her shoulder.

The executive officer was known to be physically demonstrative and had been warned by the employer’s human resources manager not to touch employees or customers unless it was necessary.

The WSIAT decided that because the employee was in the course of her employment at the time of the injury, she could not sue the employer.

However, she would be permitted to sue the executive in the courts if she could prove that he was not acting in an employment-related capacity when he massaged her neck.

The WSIAT decided, on the facts of this case, that in administering the massage, the executive “deviated substantially from his regular activity as an executive officer”. The conduct had nothing to do with his work duties, which was shown by the warning from the human resource manager. As such, he was not acting in an employment-related capacity when he massaged her neck, and the employee was permitted to sue him in the courts.

Decision No. 727/13, 2014 ONWSIAT 1128 (CanLII)

Despite Having WSIB Coverage, Worker Permitted to Sue “Physically Demonstrative” Executive Officer who “Massaged” her Neck

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

An employer that dismissed an employee after a harassment investigation did not breach a previous safety-reprisal settlement with the employee, the Ontario Labour Relations Board has held.  In effect, the employer never promised not to dismiss the employee.

The employee had previously filed a safety-reprisal Application against the employer at the OLRB which was settled. The settlement terms stated that the employee was aware that a harassment complaint had been made against him, that the employer intended to retain an external investigator, and that the investigation “may result in discipline”.

After the harassment investigation was concluded, the employer dismissed the employee. The employee then filed a breach-of-settlement Application with the OLRB claiming that there had been no discussion that “discipline” could include “dismissal”.  He said that, instead, there had been a “common understanding” that some form of discipline may result from the harassment investigation, but that the purpose of the discipline would be to correct any misconduct and ensure adherence to company rules and policies.

The OLRB decided:

“The applicant asserts no facts that would lead the Board to conclude that the parties meant to exclude termination as a possible disciplinary response by Brose.  The applicant does not say, for example, that he received an assurance from Brose in the lead-up to the settlement that Brose would refrain from terminating him, or that the range of any possible disciplinary response would exclude termination.  The plain words of the settlement do not qualify the term ‘discipline’.  And as I have pointed out, Brose’s anti-harassment policy specifically contemplates termination as a possibility where harassment is found to have occurred.”

Interestingly, in coming to its decision that “discipline” included “dismissal”, the OLRB noted that the company’s policy on Harassment in the Workplace stated that employees found to have engaged in harassment “will be subject to discipline up to and including termination” – commonly-used wording in employment policies.  This wording suggested that, at least at this company and at least with respect to harassment, termination was a “subset of dismissal”.

Jeffery v Brose Canada Inc, 2014 CanLII 49707 (ON LRB)

“Discipline” included “dismissal”: employer did not breach safety-reprisal settlement when it dismissed employee after harassment investigation

No OHSA Charges Laid in Death of Alberta Youth Home Worker

A 19-year-old has pleaded guilty to second-degree murder after he stabbed to death a youth worker at a supported independent living facility in Alberta in 2012.  At the time of her death, the worker was working alone overnight.  The boy was a resident of the home, which taught life skills to teens.

The Canadian Press reports that although Alberta Occupational Health and Safety investigated the death and provided the results of its investigation to the Crown, the Crown did not pursue any charges under the Occupational Health and Safety Act (see Teen who stabbed Alberta youth home worker pleads guilty to second degree murder).

According to the Edmonton Journal, the worker’s family has launched a lawsuit against the Government of Alberta in which they allege that her employer “failed to meet the standards of the Occupational Health and Safety Act and ‘intentionally, recklessly and negligently’ failed to make sure” that the worker was safe at work (see Family of slain Camrose caregiver sues Alberta government).

No OHSA Charges Laid in Death of Alberta Youth Home Worker

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held.  However, the company’s harassment policy was deficient and needed to be rewritten.

The decision arose from a union grievance alleging that the employer had not provided an injury-free workplace.  An employee, Kryzanowski, alleged that another employee, Wilson, had struck him in the head from behind with a “rather substantial sized plastic lunch pail”. The union alleged that the company had breached the collective agreement and the Saskatchewan Occupational Health and Safety Act because of its actions or inactions both before and after the incident.

The arbitrator stated that there was no doubt that the assault constituted harassment as defined in the OHSA.  ”A serious physical assault, such as this one, is perhaps the most profound single incident of harassment that exists.”  However, according to the arbitrator, the core question was whether the company, through its management personnel and supervisors, knew or should have known that Wilson was a physical threat to other employees and failed to take steps to prevent it.

The arbitrator decided that although Wilson had demonstrated “meanness and bullying” behaviour towards Kryzanowski through numerous disrespectful comments, and the company’s management were sufficiently aware of Wilson’s conduct to know that he was mean-spirited and had anger problems, none of his previous actions were physical alterations and there was no evidence that he was on the verge of physically attacking a fellow employee.  The assault was not foreseeable by the company.

As such, Kryzanowski was not entitled to damages for the assault.  However, the company was ordered to keep Wilson and Kryzanowski on different shifts and direct Wilson to have no contact with Kryzanowski.

Lastly, the arbitrator found that the company’s harassment policy did not comply with the OHSA and regulations in that it was not kept current and did not include specific contents required by the regulations.  The arbitrator ordered the company to “take immediate steps to comply with the Occupational Health and Safety Act by writing its harassment policy to be compliant with the Act and regulations.”

Shaw Pipe Protection Limited v Construction and General Workers’ Local Union No 180, 2013 CanLII 94439 (SK LA)

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

An electrician’s comment, “Don’t worry about me, I carry weapons” and “it would really feel good to kill something today” constituted workplace violence but did not warrant dismissal, the Ontario Labour Relations Board has held.

The employee had a strained relationship with an Electrical Foreman.   When a female co-worker noticed her in distress about the presence of the foreman, she offered to accompany the employee to the washroom. The employee then made the “weapons” comment, afterwards saying that she was referring to the tools that she carries such as an electrician’s knife and spud wrench, but that she would never harm anyone except to defend herself.  Later in the day, in a meeting with her supervisor and union representatives, she complained again about the foreman and said that she “had a knife”.

An investigator concluded that the employee had made “violent comments” and was emotionally unstable.

The OLRB decided that the employee’s comments “could reasonably be interpreted to constitute a threat to exercise injurious or potentially injurious physical force.”  However, there was nothing premeditated about the threats and there was no previous pattern of threatening conduct on her part. She was “guilty of having engaged in violent threats, but in comparing them with the kinds of behaviour in the cases cited to me by both parties, her comments were at the lower end of the spectrum.” 

The OLRB did not believe that the employee was likely to repeat “such extreme conduct” or that she was a threat to the safety and well-being of other employees.  The dismissal was, therefore, excessive.

Canadian Union of Skilled Workers v Hydro One Inc, 2014 CanLII 44660 (ON LRB)

“Don’t worry about me, I carry weapons”: employee’s violent statements warranted serious discipline but not dismissal

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Employees may not raise the same human rights issue before the Human Rights Tribunal of Ontario and the courts, a recent HRTO decision confirms.

The employee had commenced a court action in which he claimed that he was a person with a disability and as a result he experienced panic attacks.  He alleged that he had experienced panic attacks in part because of mistreatment at work.  He made essentially the same allegations in a disability-discrimination case at the HRTO, claiming damages for alleged violations of the Human Rights Code in both cases.

The HRTO dismissed his human rights Application, deciding that because the employee had started a court action claiming damages for alleged violations of the Human Rights Code and that court proceeding had not been finally resolved, section 34 of the Human Rights Code required that the HRTO proceeding be dismissed.  Duplicative proceedings were not permitted.

Toker v. 1044765 Ontario Inc., 2014 HRTO 1159 (CanLII)

Alleging panic attacks due to mistreatment at work, employee’s HRTO application dismissed for duplicating court action

Reprimands for “violation of basic safety protocols” were not discriminatory

After failing in a harassment grievance that was based on the Occupational Health and Safety Act, an employee has failed in his bid to persuade the Human Rights Tribunal of Ontario that safety-related discipline against him was discriminatory under the Human Rights Code.

The employee’s union grievance had alleged bullying and harassment against the supervisor under the Occupational Health and Safety Act; the grievance had been denied.

In his Human Rights Tribunal application, the employee alleged that, in one incident, his supervisor yelled at him about wearing proper safety equipment because he did not have his safety boots on. The employee felt that the safety boots were not necessary.  After another incident, the supervisor gave him a letter about the need to wear appropriate safety equipment.  The employee claimed that, in yet another incident, the supervisor had berated him, called him stupid, and threatened him with being fired.

The Human Rights Tribunal stated that it does not have a general power to deal with allegations of unfairness.  The Tribunal found no link between the alleged actions of the supervisor and any prohibited ground of discrimination under the Human Rights Code (such as sex, race or disability).  It was clear that the relationship between the employee and his supervisor was fraught with tension, and that he had been reprimanded for violation of basic safety protocols, but there was no cogent evidence to prove discrimination.

With increasing workplace attention on harassment, some employees are looking to tribunals such as the Ontario Labour Relations Board and Human Rights Tribunal of Ontario for assistance.  In the case of the Tribunal, the complaint will fail unless the employee can prove that he or she suffered discrimination or harassment because of sex, race, disability or another prohibited ground of discrimination under the Human Rights Code.

Sfara v. Toronto (City), 2014 HRTO 178 (CanLII)

 

Reprimands for “violation of basic safety protocols” were not discriminatory

“Disgruntled and aggressive clients” posed safety threat under OHSA

An employee who was fired after complaining to the Ministry of Labour that she felt threatened by “disgruntled and aggressive clients” was entitled to damages for the retaliatory discharge, the Ontario Labour Relations Board has decided.

The employee worked for an investment/marketing company.  She tried to speak with a company manager about her concerns with aggressive clients and about having the company develop procedures to deal with matters such as violence and harassment. The manager refused to entertain the suggestions.

The employee then contacted the Ministry of Labour and told the MOL that she felt threatened in the workplace and that her employer had no policies to deal with her concerns.  After a co-worker contacted the MOL with concerns, an MOL inspector came to the workplace and ordered the employer to prepare a violence and harassment policy.  The next day, the company dismissed the employee.

The OLRB accepted that the threat posed by “disgruntled and aggressive clients” was a workplace safety issue under the Occupational Health and Safety Act, and that the employee had characterized it as such when she had complained to management.  Also, in the absence of an explanation by the employer (the employer did not attend the OLRB hearing), the OLRB was satisfied that at least part of the company’s reason for dismissing her was her safety complaint.  As such, her termination was an illegal reprisal under the Occupational Health and Safety Act.  She found employment quickly, and was entitled to damages in the amount of four weeks’ wages.

Abigail C de los Santos Sands v Moneta Marketing Solutions Inc, 2014 CanLII 33527 (ON LRB)

 

“Disgruntled and aggressive clients” posed safety threat under OHSA