[vc_row][vc_column][vc_column_text]April 11, 2012

By Brad Smith

Based upon the Ontario Superior Court decision in Shakur v. Mitchell Plastics, an employer cannot rely upon Bill 168 alone to enforce zero tolerance of workplace violence.

Bill 168 amended the Occupational Health and Safety Act to include workplace harassment and workplace violence. Many view Bill 168 as ushering in a new era with respect to workplace harassment and workplace violence. The Shakur decision suggests this view may be misplaced.

In Shakur, after language described as “trash talk”, “off-colour language”, “salty language”, or acting like “two kids in a courtyard”, the employee slapped a co-worker. The employer terminated the employee for cause based upon workplace violence.

The employer argued the Bill 168 made workplace violence a serious societal concern. The trial judge agreed that workplace violence is a serious issue, reinforced by Bill 168. The judge stated that “the prevention of workplace violence is a shared responsibility placed on employers and employees”. Although the employer’s employee handbook prohibited workplace harassment and workplace violence, the employer did not train its employees regarding its rules.

The employer had also argued the employee was bound by a written agreement that limited its liability to the notice in the Employment Standards Act. The trial judge rejected the argument. The employee was asked to sign the agreement after he was offered and accepted employment and had started work. The judge concluded the employee was not bound by the agreement because of the lack of consideration.

As a result, the trial judge concluded the employer did not have cause to terminate the employee and awarded the employee damages for wrongful dismissal.

Lessons learned from this case:

• Bill 168 alone is not enough enforce zero tolerance for workplace violence or workplace harassment
• An employer must have rules that are enacted, trained and enforced
• An employer must make a written contract of employment a condition of hiring. This is consistent with the case of in McLean v. The Raywal Limited Partnership.

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