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By Malcolm J. MacKillop and Hendrik T. Nieuwland Dealing with verbal threats Test case of Bill 168 shows threatening language will be taken seriously. harassment under the Occupational Health and Safety Act, R.S.O. 1990 c. O.1. The two most significant changes under Bill 168 are the expanded defin- ition of workplace violence to include verbal threats of physical violence, and the expanded duties of employers who are now required to "take every pre- caution reasonable in the circumstances for the protection of a worker." Kingston (City) v. Canadian Union B of Public Employees, Local 109 (Hudson Grievance), 2011 O.L.A.A. No. 393, rep- resents one of the first cases to deal with these two changes under Bill 168. In this case, the arbitrator upheld the City of Kingston's right to terminate a 28-year employee for verbally threat- ening a co-worker. In her decision the arbitrator held that Bill 168 made sig- nificant changes to the law, and out- lined four ways Bill 168 changed the legal analysis in cases involving verbal threats in the workplace. 1. Workplace threats are no longer an "unfortunate choice of words." The arbitrator held that Bill 168 clari- fied the way we must think about inci- dents involving inappropriate use of language in the workplace. Language that threatens to end a person's life or suggests impending danger is classified as workplace violence under Bill 168. As the arbitrator noted: "There need not be evidence of an immediate ability ill 168 came into effect on June 15, 2010. It imposed new obligations on employers with respect to workplace violence and 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 attack. No employee is required to look over their shoulder because they fear that which might follow." Bill 168 no longer allows arbitra- tors to classify threatening language as merely an "unfortunate choice of words." The arbitrator made it clear that where a threat is reported it must now always be treated very seriously: "The critical point is that it will not do for an employer to disregard, to minimize, or to turn a blind eye to a report of workplace violence in the form of a threat. An employer may not be passive or indifferent to any report of workplace violence. That option no longer exists in Ontario. It would con- stitute an abrogation of the employer's obligations under the Occupational Health and Safety Act, and would expose that employer to the penalties and offences set out in that Act." 2. Workplace threats must be reported and investigated. Bill 168 changed the manner in which the employer and employee must react to a threat. Since a threat is considered workplace violence, it must be reported, investigated, and addressed appropri- ately based on an assessment of the existence of real danger. The arbitrator clarified that the ser- iousness of the allegation does not mean the employer can act without the facts. The employer must investigate workplace violence "with a full and fair approach, assessing objectively verifiable fact, and ensuring that decision-making in responding to the incident is informed, reasonable, and proportionate." The arbi- trator did caution, however, that dismiss- al is not always justified when a threat occurs, since Bill 168 did not restrict arbitral discretion in assessing the appro- priateness of the penalty. 3. The seriousness of the threat is given greater weight in assessing discipline. The arbitrator found that the usual factors still apply when assessing the appropriate form of discipline when a threat is made by an employee. However, in the arbitrator's view the seriousness of the incident should now be given greater weight against all other factors. 4. Workplace safety must be considered when assessing discipline. The arbitrator interpreted Bill 168 as adding workplace safety as a new fac- tor in assessing the proportionality of the discipline. In the arbitrator's view the new question to be asked is "to what extent is it predictable that the misconduct demonstrated here will be repeated?" The arbitrator concluded: "That element of inquiry is required, in light of the amendments, because the employment relationship will be incapable of reparation if the offending employee is likely to render the employ- er incapable of fulfilling its obligation to provide a safe workplace under the Occupational Health and Safety Act." This is a welcome decision for employers. It confirms that verbal threats in the workplace should never be tolerated, and signals to employers that it is appropriate for them to strictly apply their Bill 168 policies and pro- grams in the workplace. IH Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. INHOUSE FEBRUARY 2012 • 13