January 19, 2013
By Brad Smith
An arbitrator concluded that Bill 168 changes the law with respect to termination of an employee for workplace violence.
In Kingston (City) v. Canadian Union of Public Employees, Local 109 the arbitrator had to decide if an employee should be terminated after uttering a death threat. The arbitrator dismissed the grievance and thus the employee was properly terminated for workplace violence.
Bill 168 amended the Occupational Health and Safety Act to include workplace harassment and workplace violence. The arbitrator stated Bill 168 “changed the law of the workplace in a significant way”. An employer must protect a worker from a hazardous person in the workplace.
Certain language may be workplace harassment and very serious. But the arbitrator also concluded the “new classification of threatening language as workplace violence is a clear and significant change”. Language that threatens to end a person’s life or suggests impending danger is workplace violence. There does not have to be an immediate ability to do physical harm or an intention to do harm.
Bill 168 does not legislate zero tolerance. The employer must still investigate with a full and fair approach. Even if workplace violence has occurred, termination is not automatic. The discipline must still be assessed in the circumstances using the historical factors used by arbitrators. But the discipline is influenced by Bill 168. Threats have to be taken more seriously and Bill 168 continues the trend to give the seriousness of the incident greater weight.