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Ray Rice and the NFL Remind Ontario Employers that they may have Domestic Violence issues to address at their Workplace

Domestic violence has been prevalent in the news lately with many people voicing their opinions on how the Baltimore Ravens and the National Football League handled information presented to them that Ray Rice, arguably one of the league’s star players and a Super Bowl champion, struck his wife outside of the workplace causing her significant injury.  

The intention of this blog is not to get into Mr. Rice’s contract which accounts for conduct outside of the workplace or the Baltimore Ravens and National Football League’s position as employers in the spotlight.  Instead, the intent of this blog is to inform Ontario employers that there is law that governs the interaction of domestic violence and the employment relationship.  

In terms of whether discipline is warranted for an employee that that engages in the off-duty conduct like that of Mr. Rice it is important to be aware of the regularly referred to Millhaven Fibres factors established by the Ontario Labour Relations Board in a unionized context which places the onus on the Company to show that:

(1) the conduct of the employee harms the Company's reputation or product;

(2) the employee's behaviour renders the employee unable to perform his/her duties satisfactorily;

(3) the employee's behaviour leads to refusal, reluctance or inability of the other employees to work with him;

(4) the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees; and,

(5) the conduct of the employee places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

The employer need not prove all of these factors to satisfy its onus.  If one or more of the five factors are established the employer likely has the right to discipline the employee, however, termination is not always the discipline warranted as each circumstance and employer is unique.

Often more important than knowing if an employer can discipline an employee for being the source of domestic violence is knowing that as an employer there are circumstances in which you must protect an employee from domestic violence. Under Section 32.0.4 of Ontario’s Occupational Health and Safety Act (“OHSA”) if an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.     

Section 32.0.4 of the OHSA’s intent is not to create unreasonable responsibilities for unforeseen events on employers but instead to ensure there is not a culture of silence or a “not my issue” approach when there is a reasonable possibility that an employee’s angry partner or family member is likely to commit an act of violence at the workplace.  For example, an employer would be required to take precautions when:

• a former partner shows up at the workplace making threats against the worker;
• an employee comes to work with a “black-eye” and there is evidence to suggest the individuals spouse is responsible;
• an employee receives threatening telephone calls at work from a family member; or
• a worker complains about the harassing behavior from a former lover and colleague.

In situations such as those presented above the employer should document the occurrence and adapt a consultative approach with the employee in creating a preventative strategy.  Specifically, the employer should consider the following precautions when consulting with an employee that has been threatened and/or may be in danger:

• ensuring the employee does not have to walk to a vehicle or transit alone;
• working in an environment with a number of people;
• alerting staff members of a threatening and/or dangerous person;
• a strategy to exit the workplace safely;
• requirements to contact the police and to contact management after it is safe to do so;
• ensuring a telephone is easily accessible or that a cellphone is permitted for emergency purposes;
• Granting medical leaves when appropriate;
• moving the employee to a different work location;
• allowing the employee time off to get a restraining order against the potentially violent individual; and,
• ·varying the employee’s hours and work habits;

It should be evident that there are a number of important considerations for employers as domestic violence and the workplace often interact.  Please consider contacting the lawyers at CCPartners prior to disciplining an employee for their involvement in a domestic violence situation, when conducting an investigation, prior to placing security measures in the workplace and/or developing a plan to deal with potential violence.