Impact Of Bill 168 On Terminations For Cause

 
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Bill 168, the 2010 amendments to the Occupational Health and Safety Act recognized the importance of maintaining workplaces free from violence and harassment and required employers to develop and implement workplace violence and harassment policies. This article will explore how Bill 168 has influenced court and arbitral decisions where employees have been terminated without notice following an incident of workplace violence.

SHAKUR V. MITCHELL PLASTICS, 2012 ONTARIO SUPERIOR COURT1

The Plaintiff, Wazir Shakur, was a 35-year-old machine operator who had worked for Mitchell Plastics for six years. He had a clean disciplinary record. On August 17, 2007, Mr. Shakur was involved in a verbal altercation with another employee of the Company. Witnesses described it as "trash talk". During the altercation, Mr. Shakur slapped the other employee across the face with his hand causing temporary redness. After an investigation, Mr. Shakur was dismissed without notice. He subsequently commenced an action for wrongful dismissal.

Before the Court, the employer argued that because of the "serious societal concern with respect to workplace violence, as evidenced by recent amendments to the Occupational Health and Safety Act" the slap justified dismissal without notice.2 The Employer also relied on the Employee Handbook, which contained rules prohibiting "threatening, intimidating, or coercing fellow employees" as well as fighting.

The Court determined that although workplace violence is a serious issue, the slap was not sufficient to justify dismissal without notice and that it was not the type of misconduct which would give an employer just cause for dismissal. The Court also found that Mr. Shakur was provoked by something the other employee said, and that this fact helped explain the slap.

The Court further found that although the Employee Handbook contained prohibitions on violence, Mitchell Plastics had not trained its employees on the policy, or the consequences of violating the policy. As such, the Court found that progressive discipline would have been more appropriate and awarded Mr. Shakur pay in lieu of notice of 4.5 months.

THREATS IN THE WORKPLACE

One of the important amendments introduced by Bill 168 is that workplace violence includes threats and threatening behaviour, in addition to the use or attempted use of physical force.3 The following arbitral decisions involve employees terminated without notice for making threats in the workplace.

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