I. INTRODUCTION
It has now been just over five years since Bill 168, now known as Part III.0.1 of the Occupational Health and Safety Act (Ontario) ( "OHSA" or the "Act"), amended the OHSA on June 15, 2010. As Ontario employers are now generally aware, the amendments required employers to establish workplace violence and harassment policies, develop programs to implement those policies and provide employees with information regarding these policies and programs.
The purpose of this paper is to review the arbitral, common law and tribunal jurisprudence that has since emerged interpreting the amendments to the OHSA. The paper begins with a summary of Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance)1 which is now widely regarded as the leading arbitral decision considering the Bill 168 amendments. This is followed by a review of the recent Ontario Labour Relations Board ("OLRB" or the "Board") decision in Hydro One Inc. v. CUSW2. Two civil court decisions, Shakur v. Mitchell Plastics3 and Phanlouvong v. Northfield Metal Products (1994) Ltd.4 are then considered. This is followed by a detailed summary of OLRB decisions involving applications under Section 50 of the OHSA alleging reprisal conduct on the part of employers.
The paper includes a note on Bill 132 which is the Ontario government's proposed new legislation dealing with amendments to various statutes with respect to sexual violence, sexual harassment, domestic violence and other related matters.
The concluding section of the paper sets out lessons and takeaways for employers that can be drawn from the case law.
II. REVIEW OF CASE LAW IN THE UNIONIZED WORKPLACE
(i) Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance)
In Kingston (City) v. Canadian Union of Public Employees ("CUPE"), Local 109 (Hudson Grievance), the arbitrator considered what impact the amendments to the OHSA introduced by Bill 168 have on the manner in which discipline relating to workplace threats is treated. The arbitrator concluded that verbal threats constitute violence, not merely harassment. In light of Bill 168, arbitrators must attribute more weight to the seriousness of an incident in determining the reasonability of a particular penalty in cases where employees have made threats of violence. Furthermore, the employer's obligation to provide a safe workplace environment must also be considered in assessing whether dismissals should be upheld.
The circumstances giving rise to this case involved the dismissal of Donna Hudson (the "grievor"), a 47 year-old employee of the City of Kingston with 28 years of service. The grievor was discharged for uttering a death threat against John Hale, a colleague who happened to be president of CUPE Local 109 (the "Union"). The grievor admitted to having an anger management problem and had received discipline for incidents relating to her explosive temper in the past.
In September 2009, the grievor participated in training programs related to workplace violence and safety. In July 2010, as part of a settlement involving her previous grievances, the grievor attended anger management counselling. She reported that the counselling had been very helpful. Two days following the completion of her counselling, the grievor confronted Hale during a meeting and made a death threat against him.
The grievor accused Hale of trying to damage her career, and accused a former steward, a friend of Hale's who was recently deceased, of the same behaviour. Hale told the grievor not to talk about his friend because he was dead, to which the grievor replied "yes, and you will be too." Hale reported the incident, and an investigation ensued. The grievor denied that she had threatened Hale's life. Hale expressed that he was nervous about the threat, and feared what would happen to him and his family if the grievor were dismissed. He eventually reported the threat to the police at the insistence of his wife. After investigating the incident, reviewing her file, and noting that the grievor had just completed anger management counselling and yet continued to behave inappropriately, the employer made the decision to discharge her for cause.
The Union filed a grievance on her behalf, and submitted that Bill 168 did not create a zero-tolerance policy for workplace violence or harassment. The Union claimed that discipline must be proportionate and progressive and, given the grievor's length of service, discharge was inappropriate in this case. However, the employer maintained that the seriousness of the incident irreparably damaged the employment relationship. Of further import, the grievor had received training regarding workplace violence and had undergone anger management counselling to no avail. The employer submitted that dismissal was therefore the appropriate response in the circumstances.
The arbitrator concluded that discharge was warranted. First, the arbitrator made a factual determination that the grievor had made a death threat, for which she remained unapologetic and did not accept responsibility. Second, the arbitrator considered the purpose of Bill 168 and its effect on the employer's obligation to prevent workplace violence, including threats of violence.
The arbitrator identified four principal ways in which Bill 168 had affected the assessment of the reasonability of employee discharges similar to the one in the instant case. First, it clarified that arbitrators must take threats in the workplace more seriously. The arbitrator noted that a death threat constituted real violence, not just harassment, and she underscored the gravity of such threats.
Second, Bill 168 changed the way that employers and workers alike must react to threats in the workplace. The employee has an obligation to report such incidents, and the employer must take direct action to address allegations of threats. The arbitrator was careful to point out, however, that the employer cannot engage in an automatic response to such violence. The employer's response must still be reasonable, informed, and proportionate.
Third, Bill 168 impacted how an arbitrator must assess the reasonableness of the penalty for making threats in the workplace. The arbitrator concluded that the usual factors articulated in Dominion Glass Co. and United Glass & Ceramic Workers, Local 2035 (i.e. who was threatened or attacked?; was this a momentary flare-up or a premeditated act?; how serious was the threat or attack?; was there a weapon involved?; was there provocation?; what is the grievor's length of service?; what are the economic consequences of a discharge on the grievor?; is there genuine remorse?; has a sincere apology been made?; and has the grievor accepted responsibility for his or her actions?) are still relevant. However, more weight must be given to the seriousness of the incident in light of this new legislation.
Fourth, Bill 168 added workplace safety as an additional factor that must be considered in assessing the reasonability and proportionality of the employer's disciplinary response. The critical question is: "to what extent is it predictable that the misconduct will be repeated"? The purpose of this inquiry is to gauge whether the employee could conduct herself in the workplace in a manner that is safe for others moving forward.
After considering all of the factors in light of the evidence, the arbitrator decided that the grievor's discharge should be upheld. The determinative factor was that the safety of the workplace would be at risk if the grievor were reinstated. There was no evidence before the arbitrator that anything had changed in the grievor's attitude or conduct. Significantly, the grievor had not taken steps to control her anger, had not accepted responsibility, and had not shown any remorse for her behaviour. The grievance was therefore dismissed.
(ii) Hydro One Inc. v. CUSW
Hydro One Inc. v. CUSW involved a grievance referred to the OLRB under section 133 of the Labour Relations Act, 1995.6 The grievance concerned whether the unpaid suspension and ultimate discharge of the grievor, Wendi Allan, were justified.
The grievor alleged that she had experienced discriminatory treatment throughout her employment and had been forced to work in a poisoned work environment for many years. The Board dealt with the referral as a grievance of the grievor's discharge, and rejected the notion that allegations about discrimination and a poisoned work environment were independent issues. Rather, it treated these allegations as going to the issue of mitigation and remedy only.
The grievor worked as an electrical journeyperson for Hydro One Inc. ("Hydro One"). At the date of her discharge, she had been working in this position for approximately five months at the Manby Transfer Station ("Manby") in Toronto. The Board accepted that while she was an apprentice, the grievor was "subjected to inappropriate and offensive conduct ... which may well have amounted to gender harassment." The grievor also gave evidence about other incidents of inappropriate conduct and "sexist talk among the crews," but the Board noted that these allegations were vague and that the grievor never filed a formal complaint.
The grievor also testified about unpleasant sexist behaviour on the part of Carl DeKoning. The grievor worked with Mr. DeKoning when she was an apprentice, and testified that, back then, he "talked down" to her and demonstrated certain attitudes about women generally. On a later occasion while working at Richview Transfer Station ("Richview"), the grievor observed Mr. DeKoning performing a task that she felt endangered another worker and she responded by calling Mr. DeKoning "a f[*]cking idiot". She received a written disciplinary warning for insubordination, but also received an assurance from her then supervisor that she would not be re-assigned to Richview (where Mr. DeKoning remained) and that Mr. DeKoning would not be assigned to Baywood Panel Shop (where the grievor was then assigned).
In 2011, the grievor was transferred to Manby. Shortly before this transfer, she had been accused of threatening a co-worker, resulting in a police investigation but no charges. There was no evidence that Hydro One was aware of this accusation or that it was a factor in the grievor's transfer.
On August 30, 2011, she was paired to work with Crystal McFadyen. Mr. DeKoning was also working at Manby that day and, upon seeing him, the grievor asked her supervisor why "that f[*]cking [*]sshole" was there. The grievor also told Ms. McFadyen that Mr. DeKoning was following her, and she was visibly shaken and crying at one point. At some point during the morning, Ms. McFadyen offered to accompany the grievor to the washroom. The grievor declined, telling Ms. McFadyen "Don't worry about me. I carry weapons." Ms. McFadyen was surprised and concerned, and reported the incident to the Electrical Foreman In Training, Mike Turner. Ms. McFadyen asked Mr. Turner not to disclose the comment to the foreman, Andrew Banks, until she had an opportunity to go back to the grievor to clarify what she meant.
The grievor later told Ms. McFadyen she meant the tools she carries, such as an electrician's knife and spud wrench. Later in the day, Ms. McFadyen noticed the grievor was having trouble using a pair of pliers. As a joke, the grievor told Ms. McFadyen, "I guess I'll have to sharpen my weapons." In the afternoon, upon encountering some wasps, the grievor told Ms. McFadyen "it would feel really good to kill something today" and jumped at the task of applying insecticide. Ms. McFadyen insisted this comment was not conveyed in a joking manner.
Late in the afternoon, the grievor met with her union representative, David McParland, Mr. Turner and Mr. Banks on an unrelated matter. During the meeting, the grievor raised the issue of Mr. DeKoning and again asked why "that f[*]cking idiot" was on the worksite and complained he was following her. She then said she had a knife. After a pause, she explained she had a knife because she was an electrician. Mr. Banks then said, "Well, we all have knives." At the end of the meeting, the grievor asked if she could go home, and was permitted to leave. The next day, Mr. Banks and Mr. Turner conducted an investigation into the allegation that Mr. DeKoning was following the grievor. On September 1, 2011, the grievor was suspended without pay pending an investigation into the allegedly violent comments she made to Mr. McFadyen, and later to Mr. Banks and Mr. Turner.
Hydro One hired an external investigator to investigate the comments allegedly made on August 30, 2011, and the grievor's workplace behaviour generally. The grievor was interviewed on September 23, 2011. The investigator concluded that the grievor had violated the company's Code of Conduct by engaging in harassing behaviour and by making violent comments. The grievor responded to the investigator's report by letter on November 1, 2011. On November 11, 2011, Hydro One discharged the grievor for cause.
The Board held that the discharge was not discriminatory, but that it was excessive in all of the circumstances. The Board considered the decisions in Kingston and Toronto Transit Commission and ATU, Local 113 (Merolle), Re,7 noting that these decisions were "[m]ore to the point" as they were decided following the Bill 168 amendments to the OHSA.
In considering the Bill 168 amendments, the Board held that they "make clear that, if there ever was any doubt, workplace violence, including threats of physical force, is a very serious matter indeed." However, the Board rejected the assertion that every act of workplace violence should result in dismissal of the worker in question. Citing National Steel Car Ltd.8, a case decided after Kingston, the Board held that the OHSA does not prescribe any particular penalty for workplace violence, and that arbitrators are not precluded from assessing the degree of seriousness of the particular instance of workplace violence.
The Board held that the grievor's comment that she "had a knife" was made in the context of her complaint about the presence of Mr. DeKoning at Manby and was capable of being interpreted as a threat, and that this constituted workplace violence under the definition in the OHSA. The Board held that while the grievor's comments were unacceptable and inexcusable, they were at the less serious end of the spectrum of workplace violence and did not warrant automatic dismissal. Among other things, the Board noted that the comments did not amount to a death threat and that it was not an imminent threat, as the grievor was permitted to return to work the next day.
The Board ultimately concluded that the grievor's conduct warranted serious discipline, but that discharge was excessive. The parties initially tried to resolve the issue of remedy on their own. When they were unable to come to an agreement, they returned to the Board for a decision on that issue. The Board ultimately ordered Hydro One to reinstate the grievor without back pay, but also without a loss of seniority. The Board further ordered that her discharge be removed from her disciplinary record and a 30-day suspension be entered in its place.
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Footnotes
1 [2011] O.L.A.A. No. 393
2 2014 CarswellOnt 10678 (Ont. L.R.B.); 2015 CarswellOnt 3431 (Ont. L.R.B.).
3 2012 ONSC 1008
4 2014 ONSC 6585.
5 [1975] 11 L.A.C. (2d) 84
6 S.O. 1995, c.1, as amended ("OLRA").
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