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Bill 168 in action at union arbitration

Donna Hudson, a former employee of the City of Kingston, grieved the termination of her employment when she was dismissed for uttering a death threat against a co-worker. Although she admitted having “anger management problems,” she unsuccessfully grieved the termination of her employment.

Canadian Union of Public Employees, Local 109, represented by Union counsel, Peggy Smith, argued that there is no just cause to terminate Hudson’s employment. Christopher Edwards, counsel for the employer, relied upon the Bill 168 amendments to the OHSA, dealing with workplace harassment and violence, to uphold the discharge.

In hearing the arguments and evidence, Arbitrator  Elaine Newman found, as a fact, that Hudson had a history of behavioural problems in the workplace, including her attendance at work. Hudson became aggressive, at one point, in a meeting to discuss the issue of her attendance. She put her hand very close to the face of the local union president, John Hale, with whom she had the meeting. Hudson was then given a three-day suspension for misconduct and referred to the employee assistance program.

Following her suspension, Hudson took a three-month sick leave.

Upon her return to the workplace, Hudson was involved in another incident of verbal abuse towards a co-worker, and was given a warning letter. One month later, she attended a three-hour session on Bill 168 awareness. Thereafter, the employer paid for Hudson to attend anger management classes and advised that if she remained discipline-free for one year, her disciplinary record would be wiped clean.

Two days following the completion of her anger management training, Hudson made a verbal threat of violence to Hale at the workplace. Hale took this threat seriously and Hudson’s employment was subsequently terminated.

In her review of the facts and law with respect to this case, arbitrator Newman made four significant findings with respect to the Bill 168 amendments.

First, the arbitrator held that offensive language that is vexatious and unwelcome is harassment, and may in fact fit the definition of violence under the Bill 168 amendments.

The arbitrator went on to find that the conduct of Hudson met the definition of workplace violence under the Bill 168 amendments.

Second, the arbitrator held that the utterance of a threat is workplace violence and must be properly reported, investigated and addressed by the employer. The arbitrator held that the employer does not have the option of ignoring any incident of workplace violence. Further, the arbitrator held that the history of discipline, level of seniority, seriousness of the misconduct, impact of the misconduct, and likelihood of improvement of behaviour were all reasonable factors in assessing the appropriateness of discipline.

Third, the arbitrator held that Bill 168 provides direction on the weight or importance to be given to the factor of “the seriousness of the incident” in discipline. Bill 168 makes it clear that threats of violence should be considered as very serious and should not be tolerated in the workplace.

Fourth, the arbitrator applied Bill 168 to consider the risk of violence in relation to workplace safety. The arbitrator asked the question, “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?” Further, the arbitrator asked the question, “To what extent is it predictable that the misconduct demonstrated will be repeated?”

In answering these questions, the arbitrator held that given the history of this particular griever, there was an intention to intimidate Hale. Further, although there was no physical assault, the threat actually did cause actual harm. Hale was shaken, emotionally distraught and took the threat seriously.

The arbitrator concluded, in upholding the termination, that “the emotional impact of a death threat is considerable, and constitutes actual harm upon its victim.”

The arbitrator complimented counsel for their civility to the hearing process — a fitting contrast to the conduct of the griever.

There is no doubt that Bill 168 is a substantial and important amendment to the OHSA. The purpose of the OHSA is not only to prevent unintentional harm, but also intentional harm to workers in the workplace. The arbitrator’s decision to uphold the termination of an employee with 28 years seniority demonstrates the importance to workers, union members, union leaders and employers of being aware of the Bill 168 amendments to the OHSA.

Norm Keith

Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information.
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