THE EMPLOYERS' EDGE
Slapping Co-Worker not Just Cause Where Employer Does not Train Employees on Workplace Violence Policies
An Ontario judge recently found that an employee was not dismissed for cause after he struck a co-worker in violation of the employer’s workplace violence policy.
In Shakur v. Mitchell Plastics (2012 ONSC 1008), Shakur was a machine operator with six years of seniority and a clean disciplinary record. There was some evidence that Shakur and a co-worker, Kelley, regularly engaged in “verbal jousting” at work. One such incident led to Shakur striking Kelley with an open hand following provocation by Kelley, causing facial redness. There was no evidence of other injuries arising out of the strike.
In response to the incident, Mitchell Plastics’ human resources department conducted an investigation and received instructions from the owner to terminate Shakur’s employment and impose a suspension on Kelley. Shakur was handed a termination letter stating that his employment was being terminated for cause and citing the “General Plant Rules” contained in the Employee Handbook and the Ontario Human Rights Code as authorities supporting the termination. Shakur filed a claim for wrongful dismissal and Mitchell Plastics defended, claiming that it terminated Shakur’s employment for cause.
In finding that Shakur’s employment was not terminated for cause, the Superior Court of Justice agreed with Mitchell Plastics that workplace violence is a serious issue. However, employees must know the standards of behaviour that they have to meet at work. In this case, Mitchell Plastics’ Employee Handbook contained rules prohibiting fighting, injury to co-workers and other violence by employees. However, Mitchell Plastics did not do anything to train its employees on the intent and purpose of the rules and the consequences for breaking them. Mitchell Plastics distributed the Employee Handbook and any revisions to it without taking any further steps, leaving employees to read it and interpret it themselves. There were no training sessions to assist employees in understanding the rules. The Court found the lack of training to be unacceptable. In addition, the Employee Handbook specifically referred to progressive discipline as the appropriate measure to take in situations of workplace violence. So not only did Mitchell Plastics fail to train its employees on the rules contained in the Employee Handbook, but it failed to follow those rules itself. As a result, the Court found that Shakur’s employment was not terminated for cause and he was therefore entitled to payment in lieu of reasonable notice.
In light of Bill 168 and the great emphasis courts and administrative tribunals have been putting on avoiding and managing workplace violence as of late, the Court’s reaction to the violent incident that occurred in this case was surprisingly mild. However, this case should be a reminder to employers that it is not sufficient to simply draft and implement a workplace violence policy. It is the employer’s responsibility to ensure that employees are aware of the policy, that they understand it, and that they receive training with respect to it. Simply having a policy in place will not, at the end of the day, assist employers wishing to terminate the employment of violent employees.
In addition, employers should follow the disciplinary consequences outlined in their policies and not impose a dismissal in every case of violent behaviour if their workplace violence policies do not call for dismissal in the circumstances.
The lawyers at CCP can assist in drafting effective workplace violence policies, preparing effective training materials of workplace expectations and can assist employers in determining if there is just cause for dismissal for violence-related conduct.
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.