Threats are “Violence” Post-Bill 168: Firing of Long-Term Employee Upheld

Workplace threats are now “violence” in Ontario and justify strong discipline, the decision of an Ontario arbitrator suggests.  Bill 168 added workplace violence and harassment to the Occupational Health and Safety Act and defined “workplace violence” to include threats.

The case involved a long-service employee of the City of Kingston.   In a heated discussion, she said to a co-worker, who was also her local union president, “Yes, and you will be [dead] too”, referring to a former local union president who had died.

The grievor, a labourer/truck driver in the City of Kingston’s parks department, had a tortured work history during her 27 years of service.  She had been fired in 1989 and reinstated by a labour arbitrator.  She was fired again in 1992 and was reinstated during the grievance procedure.  She had also filed a human rights complaint which the Ontario Human Rights Commission decided in 1992 not to send to a hearing.  In 2001 and 2004, she had received “non-disciplinary verbal warnings” for shouting at her supervisor and angrily confronting a co-worker.  She admitted that she had “always had a short fuse, and a bad temper”.  She had ongoing attendance issues and had attended an anger management course.

The union grieved the grievor’s discharge for the threat.  Arbitrator Elaine Newman said that Ontario’s Bill 168 affected, in four different ways, the approach to cases of discharge for uttering a threat: (1) Bill 168 provides that threats are now “violence”; (2) employers are now obligated to investigate and address all threats of violence; (3) arbitrators must consider threats to be serious incidents, when assessing whether termination was reasonable; and (4) arbitrators must now consider workplace safety in that assessment.

In this case, even though the arbitrator found that the grievor did not really intend to end her co-worker’s life, the incident was very serious, the co-worker was shaken, and – importantly – the grievor did not apologize, accept responsibility for her actions, or show any willingness to correct her propensity for anger-induced behaviour.  She was, therefore, the “author of her own circumstances.”  The termination was appropriate.

This decision provides a useful precedent for employers – both unionized and non-union – to impose strong discipline on employees who engage in violence, including threats, in the workplace.  In the face of high-profile workplace deaths from violence, one expects to see more hard-line responses to violence in future.

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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