Co-authored with Brian Robertson, B.A, LL.B., Senior Training Associate

A recent labour arbitrator’s decision—to uphold the City of Kingston’s right to terminate a 28-year employee for issuing a verbal threat against a co-worker—was based in large part on the arbitrator’s view that “the classification of threatening language as workplace violence” under the Occupational Health and Safety Act represents a “clear and significant change” to the law in Ontario.

In a detailed 68-page decision, which represents some of the very first quasi-judicial interpretation of the Bill 168 amendments to the OHSA, and which should be of interest to employers all across the province, the arbitrator found that the amendments change the way in which employers must now respond to verbal threats. In short, because the uttering of a threat of violence now legally constitutes an act of violence, employers can no longer dismiss such behaviour as mere talk.

Case overview

A labour arbitrator found that a public sector employee had made a death threat against a union representative in the workplace. After a lengthy investigation, the employer terminated the employee, in part because of the employer’s obligation under the OHSA to take all reasonable steps to maintain a safe workplace.

The employer’s position was that the Bill 168 amendments signalled that threats of violence are simply unacceptable.

The union argued that Bill 168 is a new piece of legislation that should not alter the need for the employer to adopt a proportional response to employee misconduct.

The arbitrator began her reasons by stating, “The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way. … an employer must protect a worker from a hazardous person in the workplace.”

The arbitrator went on to identify four significant ways in which the Bill 168 amendments have altered the legal landscape in Ontario.

1. Use of inappropriate language in the workplace

The amendments clarify the way in which workplace parties, adjudicators, arbitrators and judges must think about incidents involving the inappropriate use of language in the workplace. “The Amendments make it clear that language that is vexatious and unwelcome is harassment, and very serious in its own right. But language that is made in direct reference to the end of a person’s life or that suggests impending danger, falls into a category of its own. This is not just language, it is violence.”

Further, “Where an alleged threat is reported, the incident falls into a new category. The parties must address the allegation as one of violent misconduct. It must be addressed as a very serious allegation.” It is the utterance of the words that constitutes workplace violence. “There need not be evidence of an immediate ability to do physical harm. There need not be evidence of intent to do harm. No employee is required, as the receiver of the words, to live or work in fear of attack.”

2. Employer and worker responsibilities

Bill 168 changed the way that both employers and workers must react to an allegation of a threat of violence. Employers cannot trivialize threats in the workplace and must take steps to ensure such actions are reported, investigated and addressed. As the arbitrator observed, “A worker who becomes aware of a danger is required to report the incident. … The utterance of a threat in the workplace requires that the workplace parties stop cold. They must report. They must investigate. They must assess the existence of real danger.”

The employer must act wisely, objectively and fairly. To avoid overreacting to workplace threats, the employer “must investigate allegations of workplace violence with a full and fair approach, assessing objectively verifiable fact, and ensuring that decision-making in responding to the incident is informed, reasonable and proportionate.”

Employers must not assume that the sum of arbitral jurisprudence is less relevant under the amended law. The Bill 168 amendments do not “make terminations automatic or necessary if the misconduct amounts to workplace violence.”

In the present case, the arbitrator found that the employer had investigated the allegations with care and attention and had assessed a range of factors in determining whether termination was the appropriate course of action.

3. Seriousness of workplace threats

In assessing the reasonableness of termination as a course of action following a workplace threat, the arbitrator identified the need to place additional weight on the seriousness of the incident in the wake of Bill 168. By statutory definition, threats now fall under the category of workplace violence. Arbitrators must weigh this fact carefully against other factors.

4. Workplace safety

In considering the reasonability and proportionality of discipline when a threat is reported, employers must ask, “To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?”. The arbitrator stated, “The employment relationship will be incapable of reparation, if the offending employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace under the Occupational Health and Safety Act.”

The arbitrator made it clear that the grievor was “entitled to thoughtful consideration, particularly in light of her very long years of service, of whether any other form of discipline will serve the goals of imposing appropriate and proportionate discipline, while ensuring a safe workplace.”

The arbitrator concluded that the grievor had not intended to actually end the life of the person she threatened. Rather, the arbitrator viewed the actions of the grievor as venting her frustration and anger toward the other workplace party. Nonetheless, “the threat did cause actual harm.” The subject was “provoked to extreme anger”, “shaken”, “upset”, “nervous” and “fearful”. “The emotional impact of a death threat is considerable, and constitutes actual harm upon its victim.”

Conclusion

This landmark decision holds a number of important lessons for Ontario employers, including:

• The utterance of a threat of violence—for the purpose of intimidation—constitutes an act of violence
• This is true regardless of whether or not:
  • The person issuing the threat has any intention to follow through
  • The person issuing the threat has any ability to follow through
  • The person receiving the threat feels afraid
• A worker who hears another worker issuing a threat must report the incident
• Employers cannot ignore, dismiss or trivialize reported threats and incidents
• Reported incidents must be thoroughly investigated and addressed
• When considering how to discipline an employee for uttering a threat, an employer must:
  • Place extra weight on the seriousness of this sort of misconduct
  • Assess the likelihood that the misconduct could or would be repeated if the worker remained in the workplace
  • Act in a manner which gives due consideration to the safety of other workers
• In some cases, termination of the employee will be a reasonable and measured response

The Bill 168 amendments have been law in Ontario for over a year now, and we are just beginning to find out how the provisions under this new set of rules are going to be applied. Employers need to keep abreast of these legal developments as they unfold.

The case at hand was adjudicated in the context of the Ontario Labour Relations Act. The arbitrator’s findings are not binding upon judges deciding cases brought under the Occupational Health and Safety Act. However, the case represents an important milestone in that it is the first, in-depth judicial or quasi-judicial review of the Bill 168 amendments. It would seem both likely and plausible that the arbitrator’s findings in this case foreshadow what lies ahead as more Bill 168 cases are decided.

The arbitrator’s statutory interpretation of Bill 168 in this case should serve as a rallying call to Ontario employers. Despite the cogent rationale for developing a comprehensive workplace violence prevention program, a number of employers have not taken the necessary steps. Workplace violence initiatives are all-too-commonly seen as a distraction from “business as usual” and the associated financial and human resource costs of planning are often questioned.

A growing body of research suggests that organizations that are not prepared to address the risk of workplace violence face severe legal, reputational and operational liabilities. The business case for making workplace violence prevention a priority is at hand, and the call to action has gone out to HR professionals, legal officers, security and safety managers, corporate executives and boards of directors. Is your organization answering the call?

David Hyde and Brian Robertson
David Hyde and Associates