Arbitrator outlines the factors to be considered in deciding whether to reinstate an employee discharged for attacking co-worker
When most Canadians think of workplace violence, their immediate reaction is most likely to attribute such incidents to our gun-toting neighbours to the south. But sadly Canadian workplaces are not so innocent or free from such violence.
The 1999 OC Transpo shootings, which left four Ottawa transit workers dead at the hands of a co-worker who subsequently killed himself, has brought the issue of workplace violence to the forefront and has forced unions, employers and employees alike to address how to deal with such incidents of violence at work.
While the Ottawa tragedy is an extreme example, workplace violence can also be physical assaults, psychological abuse, intimidation, stalking, vandalism and sabotage.
Prior labour arbitration decisions have generally recognized that incidents of workplace violence necessitate serious disciplinary consequences, up to and including dismissal. However, there are no hard and fast rules and the appropriate penalty will depend on the circumstances of each particular case.
Arbitrators must balance the employer’s duty to ensure a safe workplace with such factors as the employee’s work record and workplace conduct, whether the employee was provoked, whether the employee expressed remorse for his actions, and whether the employee has undertaken rehabilitative measures.
These difficult issues were addressed in a recent Ontario arbitration decision. The grievor in the matter, an electrician with 11 years seniority, was fired on June 13, 2000 by his employer after he allegedly attempted to choke a fellow employee. On that day, the victim saw the grievor, whom he described as a good friend, talking to another employee. The victim testified that he gestured to a fourth co-worker in a sort of “look at those guys talking” gesture which he repeated several times.
When the grievor saw this gesture, he approached the victim saying he didn’t like his “jokes” mocking the way he spoke and then grabbed him by the neck. After breaking free of the grievor’s grasp and walking away, the victim testified that he felt “scared and embarrassed.” The next day, and again the next week, the grievor apologized to the victim for his actions.
The arbitrator hearing the case found as a fact that the grievor did indeed assault a fellow employee on June 12, 2000. He accepted the grievor’s evidence that he was provoked by his co-worker’s hand gestures, repeatedly mocking him as he was talking to another employee, took exception to the gestures and that the grievor reacted by pushing, or putting his hand around, the victim’s neck. The grievor’s actions were characterized by the arbitrator as an assault, but one which was “certainly at the minor end of the spectrum of common assaults”. The victim indicated he was not hurt, and there were no marks on his neck.
The arbitrator also accepted the company’s submission that it has a statutory obligation under the Ontario Occupational Health and Safety Act to provide a workplace free from harassment. Accordingly, he found that the plant manager was proper in taking the incident seriously, to investigate it, and to regard it as a serious disciplinary incident. However, despite this, the arbitrator declined to uphold the discharge as he was not persuaded that it was warranted in this case.
Instead, in determining what the appropriate penalty would be, the arbitrator considered the following factors. In his favour, the grievor was a long-service employee with an exemplary work record. Second, he was genuinely remorseful as evidenced by his two apologies to the victim and also to the company at the arbitration. The grievor also testified that he knew what he did was wrong and that it would never happen again.
Third, on his own initiative, the grievor took steps to deal with his problem by taking classes in anger management and relaxation therapy, and sought medical treatment. Lastly, the victim indicated that he had no fear whatsoever in working with the grievor again if he was reinstated. He indicated that he did not consider the grievor to pose a threat to him or anyone else. The main factor weighed against the grievor was that six months prior to the discharge incident, he had received a three-day suspension for similar conduct, that is a physical assault on another employee.
The arbitrator determined that the grievor was to be reinstated without compensation but without losing his seniority. However, his reinstatement was subject to the condition that if he was accused of any assaultive or harassing behaviour in the workplace in the next two years, the matter was to be returned to the arbitrator. It was emphasized that if the grievor wished to continue his employment at the company, he was well-advised to reduce the stress of overtime, put into practice the techniques of anger management he was being taught and avoid giving cause to come before the arbitrator again at a hearing.
Policies
Currently, Saskatchewan and British Columbia are the only provinces with workplace violence regulations in place.
Among its 77 recommendations, the jury in the OC Transpo shooting inquest recommended that federal and provincial governments enact legislation to prevent workplace violence and that employers develop zero-tolerance policies about violence and harassment. But employers need not wait until minimum statutory requirements are enacted to take action. It is in the business, legal and moral interests of employers to ensure that employees are being protected now.
The jury’s recommendations included developing and visibly posting a code of conduct that asserts the right of all employees to be treated with respect and dignity by co-workers and managers; including anti-violence and anti-harassment policies and procedures in employee orientation packages and training programs; consulting risk assessment specialists to help multidisciplinary workplace teams (including management, HR, employees, security, health care and legal) to identify, assess and manage potential risk situations; insuring workplace policies impose progressive discipline following thorough on investigations that confirm allegations of workplace violence and harassment; training all supervisors and managers to be more sensitive to the concerns and complaints of employees; and holding supervisors and managers accountable for the implementation and enforcement of the company’s anti-harassment and anti-violence policies.
For more information: C.A.W.-Canada Inc. v. Albis Canada Inc., Ontario Grievance Arbitration, Professor Ian A. Hunter - Sole Arbitrator, September 11, 2000. For a copy of the OC Transpo Inquest Jury Recommendations, contact the Office of the Chief Coroner at (416) 314-4000 or go to http://ottawa.cbc.ca/archives/ocjuryrecs.
Jacqueline Connor is a lawyer and the assistant editor of CLV Reports, a labour relations newsletter. For subscription call 1-800-387-5164.
The 1999 OC Transpo shootings, which left four Ottawa transit workers dead at the hands of a co-worker who subsequently killed himself, has brought the issue of workplace violence to the forefront and has forced unions, employers and employees alike to address how to deal with such incidents of violence at work.
While the Ottawa tragedy is an extreme example, workplace violence can also be physical assaults, psychological abuse, intimidation, stalking, vandalism and sabotage.
Prior labour arbitration decisions have generally recognized that incidents of workplace violence necessitate serious disciplinary consequences, up to and including dismissal. However, there are no hard and fast rules and the appropriate penalty will depend on the circumstances of each particular case.
Arbitrators must balance the employer’s duty to ensure a safe workplace with such factors as the employee’s work record and workplace conduct, whether the employee was provoked, whether the employee expressed remorse for his actions, and whether the employee has undertaken rehabilitative measures.
These difficult issues were addressed in a recent Ontario arbitration decision. The grievor in the matter, an electrician with 11 years seniority, was fired on June 13, 2000 by his employer after he allegedly attempted to choke a fellow employee. On that day, the victim saw the grievor, whom he described as a good friend, talking to another employee. The victim testified that he gestured to a fourth co-worker in a sort of “look at those guys talking” gesture which he repeated several times.
When the grievor saw this gesture, he approached the victim saying he didn’t like his “jokes” mocking the way he spoke and then grabbed him by the neck. After breaking free of the grievor’s grasp and walking away, the victim testified that he felt “scared and embarrassed.” The next day, and again the next week, the grievor apologized to the victim for his actions.
The arbitrator hearing the case found as a fact that the grievor did indeed assault a fellow employee on June 12, 2000. He accepted the grievor’s evidence that he was provoked by his co-worker’s hand gestures, repeatedly mocking him as he was talking to another employee, took exception to the gestures and that the grievor reacted by pushing, or putting his hand around, the victim’s neck. The grievor’s actions were characterized by the arbitrator as an assault, but one which was “certainly at the minor end of the spectrum of common assaults”. The victim indicated he was not hurt, and there were no marks on his neck.
The arbitrator also accepted the company’s submission that it has a statutory obligation under the Ontario Occupational Health and Safety Act to provide a workplace free from harassment. Accordingly, he found that the plant manager was proper in taking the incident seriously, to investigate it, and to regard it as a serious disciplinary incident. However, despite this, the arbitrator declined to uphold the discharge as he was not persuaded that it was warranted in this case.
Instead, in determining what the appropriate penalty would be, the arbitrator considered the following factors. In his favour, the grievor was a long-service employee with an exemplary work record. Second, he was genuinely remorseful as evidenced by his two apologies to the victim and also to the company at the arbitration. The grievor also testified that he knew what he did was wrong and that it would never happen again.
Third, on his own initiative, the grievor took steps to deal with his problem by taking classes in anger management and relaxation therapy, and sought medical treatment. Lastly, the victim indicated that he had no fear whatsoever in working with the grievor again if he was reinstated. He indicated that he did not consider the grievor to pose a threat to him or anyone else. The main factor weighed against the grievor was that six months prior to the discharge incident, he had received a three-day suspension for similar conduct, that is a physical assault on another employee.
The arbitrator determined that the grievor was to be reinstated without compensation but without losing his seniority. However, his reinstatement was subject to the condition that if he was accused of any assaultive or harassing behaviour in the workplace in the next two years, the matter was to be returned to the arbitrator. It was emphasized that if the grievor wished to continue his employment at the company, he was well-advised to reduce the stress of overtime, put into practice the techniques of anger management he was being taught and avoid giving cause to come before the arbitrator again at a hearing.
Policies
Currently, Saskatchewan and British Columbia are the only provinces with workplace violence regulations in place.
Among its 77 recommendations, the jury in the OC Transpo shooting inquest recommended that federal and provincial governments enact legislation to prevent workplace violence and that employers develop zero-tolerance policies about violence and harassment. But employers need not wait until minimum statutory requirements are enacted to take action. It is in the business, legal and moral interests of employers to ensure that employees are being protected now.
The jury’s recommendations included developing and visibly posting a code of conduct that asserts the right of all employees to be treated with respect and dignity by co-workers and managers; including anti-violence and anti-harassment policies and procedures in employee orientation packages and training programs; consulting risk assessment specialists to help multidisciplinary workplace teams (including management, HR, employees, security, health care and legal) to identify, assess and manage potential risk situations; insuring workplace policies impose progressive discipline following thorough on investigations that confirm allegations of workplace violence and harassment; training all supervisors and managers to be more sensitive to the concerns and complaints of employees; and holding supervisors and managers accountable for the implementation and enforcement of the company’s anti-harassment and anti-violence policies.
For more information: C.A.W.-Canada Inc. v. Albis Canada Inc., Ontario Grievance Arbitration, Professor Ian A. Hunter - Sole Arbitrator, September 11, 2000. For a copy of the OC Transpo Inquest Jury Recommendations, contact the Office of the Chief Coroner at (416) 314-4000 or go to http://ottawa.cbc.ca/archives/ocjuryrecs.
Jacqueline Connor is a lawyer and the assistant editor of CLV Reports, a labour relations newsletter. For subscription call 1-800-387-5164.
