Kingston City v. CUPE, Local 109 (Hudson Grievance): 2011.
This is the termination grievance of a truck driver who was fired for uttering a death threat to the Union President.
The grievor had a history of discipline; a 1-day suspension for a 10-minute tirade directed against managers and union representatives and a written warning for an angry outburst against a manager who had questioned an unauthorized vacation day. Between these two incidents was a three month hiatus in which the grievor failed to attend work. A psychologist's report revealed that her absence was based on feelings of anger, resentment and hurt, but not on any medical condition. While the psychologist recommended that the employer hold a meeting to facilitate the employee's return to work and to repair the work relationship, the employer chose not to follow his recommendations. After her return, the employee attended Bill 168 training. In a grievance settlement over the written warning she agreed to attend anger management counselling in exchange for compensation and was offered a clean slate if she could remain discipline free for the next year.
Over the next seven months, the grievor was absent frequently from work, in part because she had injured her shoulder. Two days after her completion of anger management counselling, the employee came to the work to attend a meeting with management and union representatives designed to facilitate her return to work with modified duties. It was just before this meeting that the grievor uttered the death threat to the president who was outside the building having a cigarette. The small talk turned hostile when the grievor began accusing him and other union representatives of ruining her career and that of her husband. When the president took offense at her accusations of a recently deceased union rep, he said "Don't talk about Brian. "Yes", she uttered, "and you will be too".
The decision to terminate was made after the employer conducted an investigation under Bill 168. The termination was upheld by the arbitrator using the following criteria:
Record of prior discipline
The context of the incident
Premeditation or Spontaneous Event
Whether there was genuine remorse
Whether there was actual harm
Whether there was provocation
If there was an apology and genuine acceptance of responsibility for the act
If there is willingness and ability to correct behaviour
The Safety of the Workplace
Seniority, other mitigating circumstance, and the financial hardship caused by discharge
The arbitrator also outlined several ways in which Bill 168 has changed the way arbitrators must arbitrate cases involving workplace harassment.
- The first "clear and significant change" concerns the new classification of threatening language, which affects the burden of proof. Previously, arbitrators needed to be convinced that the utterer was not speaking in jest and/or that the receptor was at least intimidated by the threat. Under Bill 168, the complainant must prove one thing: that a threat was uttered. "There need not be evidence of an immediate ability to do physical harm, There need not be evidence of intent to do harm. No employee is required, as the receiver of the words, to live or work in fear of attach. No employee is required to look over their shoulder because they fear that which might follow" (234).
- The second change concerns the obligations and responsibilities of the employer. Before, the employer might get away with disregarding, minimizing or turning a blind eye to allegations of violence. "That option no longer exists in Ontario", says the arbitrator. Now, the employer has a duty to report, investigate and resolve all allegations of violence. The investigations must still be conducted in a full and fair way and the resolution must be determined in a reasonable and measured way using traditional criteria to determine penalty: history of discipline, level of seniority, the seriousness of the misconduct, the impact of the misconduct on others, the likelihood of improvement of the grievor's behaviour and the likelihood of restoration of the employment relationship. Employers must not regard Bill 168 as a zero tolerance legislation (243)
- Bill 168 changes the way arbitrators determine the appropriateness of discipline given out for uttering threats the workplace. While they will likely use the traditional criteria as outlined in Dominion Glass (1975): [A) Who was threatened or attacked? B) Was this a momentary flare-up or a premeditated act? C) How serious was the threat or attack? D) Was there a weapon involved? E) Was there provocation ? F) What is the grievor's length of service G) What are the economic consequences of a discharge on the grievor? H) Is there genuine remorse I) Has a sincere apology been made? J) Has the grievor accepted responsibility for his or her actions?] they will place greater weight on the seriousness of the incident, given the new classification of threatening language
- To the Dominion glass list, however, arbitrators will add the following question: "To what extent is it predictable that the misconduct demonstrated here will be repeated?"