International treaty puts heat on employers
Ever gotten into a fight at work? Not just an argument, but a physical altercation?
Hopefully for most of us, the answer is negative. But for some, that is sadly not the case. There have been many cases of employees being fired for physical violence or uttering threats against co-workers and employers getting punished by courts and other decision-makers for allowing violence to happen in their workplaces. All Canadian jurisdictions have anti-violence provisions in their occupational health and safety legislation to combat this menace to the workplace, and now things are going global.
Last year, the federal government ratified International Labour Organization Convention 190 (C190), the Violence and Harassment Convention, 2019 – an international document that requires the governments of countries that sign on to implement laws, policies, and collective bargaining agreements that completely ban violence and harassment at work, including measures to prevent it before it happens.
Now, C190 has officially come into effect. All Canadian jurisdictions are involved, as the federal government worked with the provincial and territorial governments on Canada’s commitment to the treaty. While Canadian employers have had an obligation to protect their employees from workplace violence for a while, now there’s an international element to it.
Broader coverage of workplace violence
In addition, as previously covered in Canadian HR Reporter, C190 will help guide future legislation around workplace violence, harassment, and safety by broadening the definition of where workplace violence can happen and the harm it can cause.
With C190 in place, the heat could get turned up for employers and perpetrators of workplace violence. Of course, those involved in workplace violence in Canada have already been facing the music for some time. And that includes not just physical altercations, but threats.
In one Ontario arbitration case, a male employee who complained about a female co-worker on Facebook and used a nickname and references to her appearance was fired. Another employee posted a comment suggesting a physically aggressive act against the co-worker, to which the employee agreed and suggested another violence and humiliating sex act for the co-worker. The arbitrator found that the employee created a poisoned work environment and the employer had an obligation to maintain a safe and harassment-free workplace, justifying the termination. It helped that the employer had a workplace violence and harassment policy that included off-duty behaviour that affected the workplace.
An Alberta employer also had cause to fire a worker for a pattern of aggressive and threatening behaviour over years. The culminating incident involved the worker throwing a bike chain and lock at a co-worker during an argument, which hit the co-worker’s hand and broke his lunch container. A court found that the employer followed its own policies and used progressive discipline in the previous incidents. The worker was also given an opportunity to explain his behaviour in the investigation, but couldn’t. As a result, the court determined that the employment relationship was irreparably damaged.
Non-discriminatory termination
Employers shouldn’t be afraid of acting to address workplace violence, as long as there are no discriminatory factors in that action. In one interesting situation in Ontario, an employer fired an employee for making violent threats against co-workers, but the employee brought up a mental disability for which he had proof. However, although the employer had accommodated various physical disabilities, it had no knowledge of the mental disability. As a result, the Ontario Court of Appeal found that the mental disability had no role in the termination decision and the employer “fired him as they would any employee who engaged in such workplace misconduct.”
But workplace violence doesn’t just come from employees and sometimes employers have to make sure employees don’t endanger themselves on their own. A few years ago, an Ontario organization that provided services to people with mental health issues became aware that a client had texted another client that he wanted to sexually assault an employee. The employer prohibited contact between the client and the employee, but the client still attended stop-in sessions in which the employee could have been present, although they didn’t encounter each other. The employee also reported that she felt threatened by another client who got too close to her and acted erratically and the employer instructed her to avoid that client’s residence. However, the employee didn’t. An arbitrator determined that the employer breached the province’s Occupational Health and Safety Act by failing to ensure that the first client obeyed the ban and that the employee complied with its direction.
As seriously as employers have to take threats of violence in the workplace, firing the perpetrator isn’t always the solution. Another Ontario employer probably thought it was doing the right thing when it fired an employee for threatening to stab a co-worker in an argument, knowing that the co-worker had been stabbed in the past. However, an arbitrator found that, while the threat was believable, the co-worker had acknowledged that he didn’t think the employee would have carried it out. Since the employee had more than 20 years of service, the arbitrator determined that a 16-month unpaid suspension would serve to recognize the seriousness of the threat.
Despite the above employee’s firing being overturned, he was still saddled with a lengthy suspension, showing that workplace violence and threats should be taken seriously, even if dismissal isn’t the ultimate answer. The effects of workplace violence can be very serious for the victims and the work environment, and employers have legal obligations to strike back at it. Especially now that the fight against it has gone global.
