THE EMPLOYERS' EDGE
Arbitrator Upholds Just Cause Dismissal for Uttering a Death Threat in the Post-Bill 168 Workplace
As most employers know, Bill 168 amended the Occupational Health and Safety Act to include significant safeguards against violence in the workplace. The impact and significance of Bill 168 continues to evolve as adjudicators interpret and apply the amendments. The recent arbitral decision in The Corporation of the City of Kingston and CUPE is an important early decision in the new world of Bill 168 requirements.
The case dealt with a grievance brought by 47 year old Donna Hudson (“Hudson”), who was dismissed for just cause after 28 years of service. Hudson had a history of anger management issues. She had previously acknowledged having an anger management problem and received counseling to assist her in managing her tendency to lose her temper in the workplace.
The grievor’s dismissal occurred after an angry discussion between her and the Union Local’s President, John Hale (“Hale”) who was also the grievor’s colleague. Unfortunately for Hudson, the incident occurred shortly after her completion of anger management counseling. During the discussion, Hale told Hudson not to speak about a friend who had recently died. Specifically, Hale said, “don’t talk about Brian – he’s dead”. In response, Hale alleged that Hudson said “Yes, and you will be too”.
Hale, shaken, ended the meeting and immediately advised Hudson’s supervisor that he believed that Hudson had threatened his life. The City commenced an investigation into the allegation. Though there were no witnesses to the incident, and Hudson denied threatening Hale, the City concluded that the threat had been made and that the termination of Hudson’s employment was the appropriate disciplinary response.
Arbitrator Newman had little difficulty in finding that Hudson had in fact threatened Hale, despite the fact that there were no witnesses to the actual confrontation. Hale was found to be credible given his reaction after the meeting and his straightforward testimony at arbitration. Arbitrator Newman found him to be more credible than Hudson given the inconsistent nature of her evidence about what she said during the meeting with Hale.
In assessing whether or not Hudson’s dismissal was an appropriate and proportionate response in the circumstances, Arbitrator Newman examined the impact of Bill 168. She found that it significantly modified the manner in which arbitrators should determine appropriate disciplinary penalties where workplace violence had occurred. In particular, she held that Bill 168 had the following impacts.
Language that a reasonable person would interpret as a threat to harm is workplace violence.
Employers must react quickly and decisively to any and all incidents of workplace violence, including verbal threats of violence. Being passive or indifferent to such incidents is no longer an option in light of Bill 168.
Bill 168 impacts how arbitrators assess the reasonableness of termination as an appropriate form of discipline by increasing the severity of threats of violence. Such incidents are simply more serious than they may have been previously regarded.
Bill 168 introduces the additional factor of “workplace safety” in the arbitral analysis of whether or not termination is an appropriate response and reinstatement to employment is possible. If the disciplinary incident is likely to happen again, then workplace safety is jeopardized and termination is the more appropriate disciplinary response.
Arbitrator Newman found that Hudson’s termination was appropriate in the circumstances, despite her 28 years of seniority. The most important factors were her history of angry outbursts in the workplace, her lack of remorse or acknowledgment of wrongdoing and the absence of any evidence to indicate that she was taking positive steps to address her ongoing anger management issues. Newman was not prepared to reinstate Hudson where there could be no assurance that workplace safety would not be jeopardized if she returned to work.
The City of Kingston decision is an important early decision in the evolving impact of Bill 168 on Ontario workplaces. The message is clear: Verbal threats constitute workplace violence and employers are expected to act quickly, thoroughly and fairly in addressing such misconduct. Moreover, where an employer establishes through its investigation that workplace violence has occurred, serious disciplinary consequences will be appropriate, particularly if the employee demonstrates an inability or unwillingness to maintain workplace safety going forward.
The lawyers at CCP are available to address any questions or concerns employers may have about the impact of Bill 168 on your workplace.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.