The Ontario Court of Appeal has given employers yet another good reason to be wary about hiring employees on fixed-term contracts.  In Howard v. Benson Group Inc. (2016) ONCA 256, a unanimous Court awarded a terminated employee 37 months’ pay, equivalent to $194,284.93, upon termination of his employment agreement after just 23 months of work.  The employer had not alleged that he was terminated for just cause, and instead opted to exercise its (purported) termination rights under a clause in the employment agreement.

When the plaintiff brought a motion for summary judgment for an alleged breach of the employment contract, Justice Mackenzie of the Ontario Superior Court found the termination clause to be void as a result of its ambiguity, and excised it from the agreement.  Instead, Justice Mackenzie ordered a mini-trial on the appropriate period of notice based on the common law Bardal factors, and on the issue of whether the plaintiff mitigated his losses sufficiently by trying to find other work.  The Plaintiff appealed.

Background

John Howard was 57 years old when he began his employment with Benson Group Inc. in September of 2012 in the role of Truck Shop Manager on a five year fixed-term contract.  In May of 2013, Mr. Howard was promoted to the position of Sales Development Manager, with a base salary of $60,000.00 as well as participation in a bonus incentive program.  The initial contract from September 2012 remained in force, with the exception of additional salary and benefits commensurate with the promotion.

The employment relationship continued until July 28, 2014 when Benson Group exercised its contractual right to terminate the employment agreement, and pay its notice and severance obligations in accordance with the Employment Standards Act.  Subsequently, Mr. Howard sued on the basis that the clause, as follows, was too ambiguous to be enforced:

“8.1.      Employment may be terminated at any time by the Employer [the defendant] and any amounts paid to the Employee [the plaintiff] shall be in accordance with the Employment Standards Act of Ontario. [sic]”

When the trial judge found that this clause was unenforceable, and directed a mini-trial on the amount of common-law damages payable to the plaintiff, the plaintiff appealed this decision.  The plaintiff maintained the position that this was purely a breach of contract issue, and that he was entitled to the full value of the contract as it would be at the expiry of its five year term.

The Issue

Where an employee is employed on a fixed-term contract, and there is no clause (or an invalid clause) dealing with early termination of employment, is that employee entitled to the value of the balance of the employment agreement?

The Result

When drafting early termination clauses, an employer is required to achieve a high level of certainty; a principle stated in Ceccol v. Ontario Gymnastic Corporation, 2001 CanLII 8589 (ON CA).  Where the employer does not achieve such certainty, the ambiguity will be resolved against the employer and in favour of the employee.  This follows the long-standing principle of contra proferentum, in which ambiguities in a contract are construed against the person who drafted it, which is usually the employer.

In this case, the phrase “any amounts paid” was particularly troubling for the trial Judge, as questions arose regarding the specific “amounts” being referred to, and when exactly they were or would be “paid”.  Primarily because of the inability to discern the meaning of this phrase, this part of the agreement was found to be unenforceable, and the Court exercised its jurisdiction to remove that clause from the agreement.  Instead, the trial judge would have applied the Bardal factors to determine an appropriate notice period.  The Bardal factors are a consideration of the employee’s age, length of service, expertise, and availability of alternate similar employment to determine an appropriate notice period.  On these facts, 6 months’ pay would likely be considered a generous notice period under this common law principle; not 37 months.

Interestingly, and noted in the written judgment of Justice Miller, counsel for the appellant did not appeal the finding that the clause dealing with termination without cause was invalid.  Accordingly, no analysis of the validity of that clause was undertaken by the Court of Appeal.

The Court clearly states that there is a rebuttable presumption that a common-law notice period will apply in the absence of a notice period specified in the employment contract.  This presumption can only be rebutted where the employment agreement clearly specifies some other period of notice, whether expressly or impliedly.  Where no such right to termination exists, an employee is entitled, on early termination without cause, to the balance of the amount of the employment agreement.  In this case, the Court of Appeal made an outright award of the remaining amount payable to the plaintiff under the contract, and further stated there was no requirement for the plaintiff to mitigate his damages.

Finding Fairness

This result appears grossly inequitable, given the employer likely intended to pay approximately $2000.00 on early termination and ended up facing a judgment of over $200,000.00, after factoring in costs on appeal.  Aside from this point, the Court may have erred in finding that there was no specified period of notice.  There was indeed a specified period of notice, agreed to by both parties, that simply could not have been ascertained and was accordingly excised from the agreement.  While it may be correct to disregard this provision, it is still useful in attempting to determine the intention of the parties.  The error, if any, may be concluding the presumptive application of a reasonable period of notice under the common law had been rebutted.

Based on these reasons, the result would likely be the same if there was a 10, 20 or 30 year contract.  However, if the employer hired the employee for an indefinite term than the employer could exercise its right to terminate without cause on reasonable notice, which would be significantly less expensive.  The other lesson for employers is that clear and concise drafting in employment agreements can have huge cost-saving consequences, and can often avoid litigation all together.

Mary Pilon worked for the City of Cornwall for 23 years.  In her final years with the City, she was a customer service representative in the Finance Department.  She left her job in September 2005 under the advice of her family physician. Pilon suffered from colitis, a condition where the colon becomes inflamed, causing among other things, severe abdominal pains and a constant urge to use the washroom. Her doctor noted as part of her claim for Employment Insurance benefits, “the harassing and unprofeossional treatment she received [at work] caused her illness.”

As part of her disability, the applicant, Pilon, required unrestricted access to the washroom during work hours. The applicant’s need for an accommodation around her use of the washroom unfortunately became an element of tension in the workplace. The applicant claims she was harassed by co-workers beginning in 2002 in the form of heightened scrutiny and complaints to management about her use of the washroom outside of scheduled break times.

This issue was a recurring one. These complaints were overtly expressed by one of the applicant’s co-workers but there were also subtle suggestions by others which took the form of complaints that the applicant was not at her desk, or that she disappeared during the work day or that she took too long breaks. The workplace became increasingly dysfunctional and eventually led to an “informal” investigation by the employer.

The Investigation

The investigation was conducted by a Labour Relations Coordinator in Human Resources. Six individuals from the workplace were interviewed, as well as the applicant. The interviews were taped, however, the City refused to provide a copy of the tape to the applicant when asked. The City stated at the time that they would have to consult counsel. This issue was never resolved. When the question of the tapes arose during the proceedings in front of the Human Rights Tribunal, the respondents stated that the tapes had been lost.

The result of the investigation was a report. The report concluded: “The [investigation’s] findings do not clearly define a harassment issue, however several incidents, if not dealt with immediately, may result in a poisoned atmosphere being created which could be considered harassment under the … Human Rights Code.” The City did not implement any of the report’s recommendations, nor was a copy of the report given to the applicant.

After the investigation, co-workers continued to complain about the applicant’s performance, specifically in relation to her excessive absences from her desk. In September 2005, the applicant’s doctor informed the City that “emotional distress due to psychologically unhealthy work environment and harassment” was exacerbating her medical condition, and subsequently recommended she leave her placement. On two more occasions, the applicant demanded the City investigate her allegations of harassment and failure to accommodate, but the city declined, saying those allegations had already been proved groundless.

The applicant also filed grievances with her union. The union withdrew the grievances after it conducted its own investigation of the complaints.  According to the Tribunal, the union’s investigation was not as thorough as the City’s.  Ultimately, the union took the view that the employer’s request that the applicant restrict her use of the washroom to her breaks was silly but was not harassment.  The adjudicator in the matter stated bluntly that the union’s position was wrong and completely missed the point.

Relying on the results of the union’s investigation, the City demanded that the applicant return to work as her absence was not for medical reasons.  The applicant refused, and the City subsequently terminated her employment.  The applicant then brought a complaint before the Human Rights Tribunal of Ontario, claiming the City did not accommodate her disability.

Human Rights Tribunal of Ontario’s Decision

The adjudicator concluded the City of Cornwall, its Director of Finance, Manager of Human Resources, and the applicant’s supervisor all violated procedural obligations to accommodate the applicant on several occasions. First, there was the City and Manager of Human Resources failure to properly investigate her initial complaint in May of 2004, as well as subsequent requests in October and December 2005. Further, the adjudicator noted that when provided with evidence that the applicant was ill due to the unresolved workplace issues, the Manager of Human Resources failed to make the proper enquiries. Finally, the adjudicator held that the City failed in its procedural obligations in the manner in which the applicant’s employment was terminated.

The adjudicator also found that the City and Director of Finance failed in their substantive obligation to accommodate in two separate matters. The first matter relates to the letter requesting the issue be resolved sent in May 2004, and the subsequent response trivializing the complaint. The second matter relates to the termination of her employment based on the results of a union investigation that the adjudicator calls “not particularly insightful”, as opposed to strong medical evidence that received virtually no inquiry. The adjudicator colourfully noted: “To the extent that the respondent employer relied on the union’s conclusions to justify taking steps to terminate the applicant’s employment, it did so at its peril.”

Finally, the adjudicator also found that the Director of Finance and the applicant’s supervisor “condoned harassment” of the applicant by failing to insulate her from the complaints of other employees that were related to her use of the washroom at times other than her formal break times.

Remedies

Under the Ontario Human Rights Code, a person whose rights have been infringed is entitled to monetary compensation for actual losses arising out of the infringement. The purpose of this is to restore the person to the position they would have been in had the discrimination not occurred.
In this matter, the applicant sought a broad range of remedies from the Human Rights Tribunal. Ultimately, she was awarded $20,000 in damages for injury to her feelings, dignity, and self respect, as well as $3,000 for her medical costs. Additionally, the City of Cornwall was told to pay the applicant almost three years, less any other business or employment income she earned in the meantime.

Not surprisingly, the adjudicator ordered the Director of Finance, Manager of Human Resources, and supervisor of the applicant to complete the Ontario Human Rights Commission’s online training module on human rights, and provide a copy of the certificate of completion to the applicant.

Analysis

The decision of the Human Rights Tribunal in this matter highlights two separate procedural obligations for municipal employers: the obligation to accommodate by being procedurally fair to the person requesting accommodation, and the obligation to investigate and provide details of the investigation. Based on the outcome of this case, the Tribunal has made it clear that municipal employers must be proactive in addressing complaints. If employee complaints are not taken seriously and the procedural duty to accommodate is not met, then employers could potentially be forced to pay out hundreds of thousands of dollars.

I) The obligation to accommodate by procedural fairness

One of the precedents referenced by the adjudicator was the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3.  In delivering the judgment of the Court, Justice McLachlin (as she was then) noted that the duty to accommodate has both a substantive and a procedural component, and that to meet the procedural part of the duty to accommodate, an employer must take adequate steps to explore what accommodation is needed, and to assess accommodation options.

In the current matter, the Human Rights Tribunal took the duty to accommodate one step further, establishing that an employer is required to accommodate to the point of undue hardship, and that the person with a duty to accommodate must make a real and bona fide effort to accommodate Code-related needs. However, the burden doesn’t completely fall upon the employer’s shoulders. The person requiring accommodation must also cooperate in the attempt to find suitable accommodation.  This can be done by making their needs known and providing all required information to the employer.

Whether an employer is being procedurally fair to the person requesting the accommodation depends on the circumstances. The Human Rights Tribunal did not go into much detail about what, specifically, constitutes procedural fairness in accommodation in these circumstances. One thing the Tribunal did allude to was that the applicant deserved a completed and appropriate response to her request for accommodation.  The fact that she didn’t receive one suggests that formally responding to a complaint is the first and most important step in the duty to procedurally accommodate. The Supreme Court of Canada has also offered some guidance, approving the following analysis from Shelagh Day and Gwen Brodsky [“The Duty to Accommodate:  Who Will Benefit?” (1996), 75 Can. Bar Rev. 433], which gives some guidance:

Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit.  We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness…In short, accommodation is assimilationist.  Its goal is to try to make “different” people fit into existing systems.

Based on the above principles, a municipal employer does not have to change its entire organizational structure in order to accommodate. All that is needed is a few simple concessions.  In the matter involving the City of Cornwall, the applicant did make her condition known to her supervisors and those above her.  With doing as little as granting extra washroom breaks and informing the applicant’s coworkers of the reasons for the accommodation (at the consent of the applicant), the situation could have been avoided. The fact that at one point, the Director of Finance wrote a letter in response to the applicant’s complaint saying “The City has never refused your requests for washroom breaks,” indicates that the City of Cornwall is either ignoring the complaint or simply does not understand what it means to accommodate. Granting washroom breaks is not what’s at issue, rather, it’s the need to accommodate the disability and to take the necessary steps to create an understanding amongst coworkers.

II) The Obligation to Investigate

In terms of the obligation to investigate and to provide details of the investigation, the Human Rights Tribunal noted that where an employee has made a formal request for accommodation to an employer and there has been an investigation leading to a report, it is appropriate and required under the Code’s duty to accommodate to share the results of their investigation with the applicant. In this case, the City of Cornwall shelved its report and did not share any of its details with the applicant.

It was significant issue for the applicant that she was never provided a copy of the Report and heard nothing about the results of the investigation.  She testified that had she seen the Report at the time, it might have given her some comfort that her concerns were being taken seriously at the very least. The applicant also took the position that the failure to provide her the Report or implement any of its recommendations was a reprisal, although the adjudicator did not agree. Nonetheless, a consequence of not ever being provided with the Report or any follow up on the investigation, the applicant stated that she didn’t know if her request for appropriate accommodation had been acknowledged by the respondents.

It’s worth noting that the Report came from an investigation that was made in accordance with the City of Cornwall’s Harassment in the Workplace policy.  Most municipal employers will likely have a similar policy that contains procedural guidelines for filing a complaint, the investigation process, and what information must be provided.

One of the issues involving the Report was whether it was formal or informal. The City of Cornwall maintained the Report was informal, but this assertion was rejected. This distinguishing feature comes down to whether the investigation is in direct response to the complaint. If it is, then it will likely be characterized as formal, meaning its results must be shared with the complainant.

Interestingly, the City maintained that because there was no specific complaint, it was not required to conduct a formal review pursuant to its policy.  However, City officials called upon to testify could not point to any policy document which drew the distinction between a formal versus informal investigation. Further, the Report itself refers to a complaint being made on several occasions. The adjudicator called the position of the City “difficult to understand”. In the end, it was held that the applicant would have no way of knowing that the investigation she participated in was not in response to her complaint and request for accommodation and would have reasonably expected a response to her concerns.

Ultimately, it can be inferred from this decision that where an employee makes a complaint about workplace harassment, a municipal employer should conduct a formal investigation, and the substance of the findings must be shared with the complainant.

The following is a list of the procedural steps that should be taken:

1) Formally acknowledge the complaint in writing;
2) Investigate the matter;
3) Consider all relevant information;
4) Compile a report;
5) Determine what, if any, accommodations must be met;
6) Share the findings of the report with the complainant;
7) Make a real and bona fide effort to accommodate to the point of undue hardship.

Links

• Pilon v. Cornwall (City), 2011 HRTO 1695
• Pilon v. Cornwall (City), 2012 HRTO 177 (Decision on Remedy)
• Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU
• Ontario Divisional Court’s decision in   Adga Group Consultants Inc. v. Lane, (2008) 91 OR (3d) 649
• Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate

Labour Law & Disability – Coverage of Personal Bodily Assistive Devices

In order to accommodate an employee with a disability, employers often have to adapt various aspects of their work environment to suit the employee’s needs (Ontario Human Rights Code, RSO 1990, c. H.19, s 5, 11, 17 [“The Code”]). However, the results from an arbitration done in 2011 investigated how far an employer’s responsibility extends, and where the line is drawn between accommodating accessibility and relying on the employee’s personal responsibility.

In Thunder Bay Catholic District School Board [“The Board”] and Ontario English Catholic Teachers’ Association [“The Association”], 2011 CanLII 38669 (ONLA) the arbitration revolved around whether a personal bodily assistive device, in this case a hearing aid, was a necessary requirement for an employer to provide for their employee. Traditionally employers would only accommodate employees by way of making changes to the workplace or methods of performing work, however this case considers whether providing personal bodily assistive devices would be necessary for the employer to provide for use in and outside of the workplace.

Facts

The case revolves around Ms. A, a secondary school teacher with a degenerating inner ear disorder. Ms. A’s ailment causes her hearing functions to deteriorate in addition to causing periodical vertigo.

The Board had gone to great lengths to accommodate other aspects of Ms. A’s disability. Ms. A was provided with a soundproof office to block out ambient noises and assigned to teach students one-on- one instead of in big groups. As well, Ms. A was provided a portable microphone system to supplement her hearing, a special telephone which was customized for those with hearing impairment, and she was assigned to a school near to her house in order to prevent vertigo over long drives.

The personal bodily assistive device that Ms. A is claiming compensation for is a set of digital hearing aids. Ms. A claims that the digital hearing aids are necessary for her to properly do her job. She claims that without the digital hearing aids she cannot complete her supervisory responsibilities, hear announcements, meet with parents, and deliver the required curriculum to her students.

Issue

The main issue in this arbitration is whether compensating Ms. A for the digital hearing devices is necessary for The Board to fulfill their duty to accommodate her under their collective agreement and to satisfy The Code.

The Board is not disputing any of the facts above, however their main concern is that once an allowance is made for one personal bodily assistive device (the digital hearing aids), there could be a strong argument for them to supply more. This could open the floodgates to possibly include devices such as eyeglasses and prosthetics. So far, The Board has refused to cover any portion of the cost of the digital hearing aids, and the two parties have sought out to resolve the issue through arbitration.

Decision 

Gordon F. Luborsky, the arbitrator, found that The Board was interpreting the governing law too narrowly, and that it was found that The Board must partially cover Ms. A’s hearing device. The devices were found to be:

“Absolutely necessary in concert with the other accommodative measures put in place by the Board for Ms. A to fulfill her fundamental teaching duties or requirements in compliance with her statutory obligations and contractual expectations.”

In terms of the results of the arbitration, Mr. Luborsky ultimately left it up to the two parties to decide on a final outcome and reach a “reasonable compromise”, however he does make a suggestion. After a long calculation it was concluded that Ms. A spends about 17.5% of all the hours in a calendar year at work, therefore the arbitrator suggests that this is an appropriate amount for The Board to cover (about $400 per hearing aid).

To justify this decision Mr. Luborsky points out that as technology allows for more devices to interact with the human body the “’bright line’ between the world of the employer and that of the employee in the search for appropriate accommodation has become blurred, which is a trend that is likely to continue into the future.” [para 59] Furthermore, Mr. Luborsky looks to Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital and Sault Ste. Marie General Hospital, (1999) CA C28113 at para 55, which states:

the employer may provide devices and instruments that would allow the disabled employees to perform close to the same level as the able-bodied employees. The duty is on the employer to take all steps short of undue hardship to accommodate the needs of the person discriminated against so that they can compete equally with the other employees. It is by attempting to accommodate their actual characteristics so as to bring them within the workplace environment that the employer complies with the Code. [Emphasis added]

Comments

The important aspects of this case, besides the interpretation of The Code and the collective agreement between the Board and The Association, are the implications involved with extending workplace accommodation to include personal bodily assistive devices. Through relevant case law and statute a compromise was found that the Board was only liable for the portion of reimbursement that pertained to the use of the assistive devices during work hours. It is important for businesses and employers to be aware of these evolutions of the law in order to comply with the Code and provide the best possible assistance to employees.

Bullying isn’t just a schoolyard thing. It also affects working adults, as well as the overall atmosphere of the workplace.  In 2009, the Ontario government introduced Bill 168, which amended the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill places positive obligations on employers to keep their workplaces free from bullying.

Since the introduction of Bill 168, courts and labour arbitrators have made it clear that these obligations will be strictly enforced.  This article will consider how to identify workplace bullying, briefly examine Bill 168, then look at several legal decisions that discuss the Bill’s application.

What is bullying?

As a very general definition, bullying is an aggressive behavior of harassment or violence, usually directed to one person.  Bill 168 separates workplace violence and workplace harassment, offering these definitions:

“workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome;

“workplace violence” means:

(a)  the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
(b)  an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
(c)  a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

A good example of workplace bullying (and how expensive it can be for employers) can be seen in the British Columbia Supreme Court’s decision in Sulz v Canada (Attorney General), [2006] 263 DLR (4th) 58.  In this case, the plaintiff, a former female member of the Royal Canadian Mounted Police (“RCMP”), claims that her immediate supervisors harassed her to the extent that she became so clinically depressed, she had no choice but to accept a medical discharge. The plaintiff was subjected to vulgar and aggressive language from her superiors, and received threats to her employment for going on medical leave due to complications with her pregnancy.

The Court found that the bullying had a severely negative impact on her mental health, affecting not only on her ability to work, but also on the extent to which she can enjoy her life and function as a member of her family and her community. As a result, the Court awarded the plaintiff $225,000 for past wage loss, $600,000 for future wage loss, and $125,000 for general damages, amounting to a grand total of $950,000.  The Crown appealed this decision, but the appeal was dismissed by the B.C. Court of Appeal.

Bill 168

The Bill officially came to life in 2010 when it received Royal assent. Among some of the obligations placed on employers, Bill 168 mandates that employers prepare policies relating to workplace violence and harassment, and review the policies at least once per year.  The Bill also prescribes how the program to implement the policies should be conducted, as well as how information should be distributed to employees. But perhaps most importantly, the Bill imposes a duty on employers to take precautions for the protection of an employee if there is a likelihood the employee may be subjected to bullying, either through harassment or violence, in the workplace.

For small and medium-sized employers, developing and implementing Bill 168’s policies can cumbersome and expensive, considering their limited resources.  Lawmakers did account for this problem to a degree by adding an exception that the regulations do not apply if the number of employees regularly employed at the workplace is five or fewer, unless an inspector orders otherwise. But if an employer has more than 5 regular employees, the rules must be strictly followed.

Recent examples of Bill 168 in action

In General Motors of Canada Ltd. V. Martin, 2009 CanLII 71654 (ON LRB), the Ontario Labour Relations Board heard a matter involving three separate complaints over a period of several months in 2009.  In all three complaints, an employee had verbally harassed another employee, either by threatening him with violence, or by calling him inappropriate names. The Board said this conduct amounts to workplace harassment.  What made this decision interesting is that fact that Bill 168 received royal assent after the alleged complaints, but before the Board’s decision was handed down.  As well, this particular GM plant in Windsor, ON, was scheduled to close.  It was argued that implementing Bill 168’s policies and training the workforce would be unnecessary.  The Board disagreed, ruling that GM was statutorily obligated to train the workers at the plant on a policy and program prior to the plants closing.

The Board’s Vice-chair John Lewis took the opportunity to make the following comments about Bill 168:

With the passage of Bill 168, the Act requires employers to prepare and post workplace violence as well as workplace harassment policies.  Employers are required to develop and maintain programs to implement both the workplace violence policy and the workplace harassment policy.  Workplace violence programs are required to have measures and procedures for workers to report incidents of workplace violence to the employer or supervisor and the means by which the employer will investigate and deal with incidents or complaints of workplace violence.

Bill 168 also requires employers to train workers as to the contents of workplace violence and workplace harassment policies.  The Bill also requires employers assess risks of workplace violence that may arise from the nature of the workplace and the work performed and must advise the Joint Health and Safety Committee, or the health & safety representative or workers directly of the results of such assessment.  Bill 168 even requires the employer to provide personal information about a person with a history of violent behaviour but such information is limited to what is reasonably necessary to protect a worker from physical injury. [Emphasis added]

In Universal Workers Union (Labourer’ International Union of North America, Local 183) v. Teston Pipelines Ltd, 2011 CanLII 78812 (ON LRB), the Labour Relations Board was tasked with deciding whether to uphold a 5-day suspension imposed on a worker who threatened to kill his foreman on two separate occasions. In making its decision, the Board made the following unarguable comment of law: “No employee should ever threaten to kill anyone else at work, much less his foreman.”

The Union argued that the worker was under considerable emotional stress at the time the comments were made, fuelled by a recent separation from his wife and children. Ultimately, the Board decided that these threats fit squarely within the definition of workplace violence, and that the employer is required to act, both to deal with the unacceptable behaviour, and to take steps to ensure that its policies are known and understood. The suspension was upheld.

In Kingston (City) v. Canadian Union of Public Employees, Local 109, 2011 CanLII 50313 (ON LA), Arbitrator Elaine Newman heard a matter involving an employee with 28 years seniority bullying a co-worker. The main allegation relates to when the woman made a death threat to her Local Union President. The Arbitrator held that under the Bill 168 amendments, an employer must react to an allegation of a threat: it must not be trivialized. In this case, it was held that the Employer took this language very seriously, and made that message clear and unequivocal.

However, it was noted that here is nothing in the Occupational Health and Safety Act that requires that an employee, found to have committed an act of workplace violence, be automatically terminated. While there are a variety of ways to deal with the matter, it is ultimately for the employer to determine, at the end of an appropriate investigation and consideration of options.  In this case, the City of Kingston decided to terminate the employee, factoring in the employee’s history of harassment in the workplace. The Arbitrator upheld the City’s decision.

Comments and employer’s duties

Bill 168 was introduced mainly as a result of the lobbying efforts of the family of Lori Dupont and Theresa Vince.  Dupont was killed by her ex-boyfriend, Dr. Marc Daniel, in 2005 at Hotel-Dieu Grace Hospital in Windsor, Ont., where they both worked. The hospital was aware Daniel had been harassing Dupont and that the situation was getting worse, but it did not discipline him. Theresa Vince was shot in the face and killed in Chatham in 1996 by a boss who had sexually harassed her for more than a year and against whom she had filed a harassment complaint.

The amendments are based on the theory that workplace violence can be foreshadowed, and that in many cases, it’s predictable.  By heeding the signs of danger, communicating clearly, and acting with clarity, violence can be prevented when employers, supervisors, and workers come together.

Under Bill 168, Employers must:

1. develop and maintain an unambiguous program to implement workplace violence and harassment policies;
2. designate a person as a workplace coordinator with respect to workplace violence and workplace harassment, and set out the duties of the coordinator;
3. take every reasonable precaution in the circumstances to ensure the protection of a worker should the employer become aware, or ought reasonably to be aware, that domestic violence that would expose a worker to physical injury may occur in the workplace;
4. provide information and instructions to the employees on the contents of the policy and program with respect to workplace violence and harassment; and
5. set out a fair and transparent process for investigating complaints;