A six-foot-two, 300-pound employee’s hostile, intimidating comment to a smaller co-worker in the company washroom was just cause for a three-day suspension, an arbitrator has decided.
In Workers United Canada Council v. Winners Merchants International, the evidence was that the suspended employee said, “I am your worst nightmare” to the co-worker as he stood over him in a threatening way. The co-worker was five-foot-eight and did not have the use of his left arm.
Although the union argued that the comment was said “in a joking manner," the arbitrator disagreed. She held that the line, “I am your worst nightmare” meant “I am someone you should be afraid of." It was “classic bullying” which took place in the washroom “which is the traditional hang out of bullies." The arbitrator found that the employee had perceived that his co-worker was anxious and tried to intimidate him.
The arbitrator stated:
“The grievor’s comment was not specifically a threat of physical harm but it was a violation of the company’s Workplace Violence Policy because it was inappropriate behaviour that could insinuate violence and because it was hostile language that would be intimidating to a reasonable person. The conduct was just cause for some discipline. It was not a first offence because the grievor received a one day suspension a few months before for making a threatening comment. The three day suspension he received was, therefore, in accordance with the principles of progressive discipline.”
The decision is part of a growing line of post-Bill 168 cases in Ontario, in which arbitrators have shown decreasing tolerance for workplace violence and harassment. Bill 186 amended the province's Occupational Health and Safety Act in 2009 to include violence and harassment in the workplace. Even one threatening comment can result in discipline.
Adrian Miedema is a partner in the Toronto Employment Group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. For more information, visit www.dentons.com or www.occupationalhealthandsafetylaw.com.