Canadian Lawyer InHouse

By Malcolm J. MacKillop and Hendrik T. Nieuwland Is it time to review your company's workplace S ince the introduction of Bill 168, which added new workplace violence rules into house counsel have been creating policies and programs that address the risks of workplace violence. So if readers were asked whether there was just cause to terminate an employee who physically assaulted a co-worker, most if not all would likely say "yes." Readers will be sur- prised to learn that according to a recent decision of the Ontario Superior Court of Justice, the answer is no if workplace violence training is deficient. In Shakur v. Mitchell Plastics, Wazir Health and Safety Act, in- the Occupational intimidating, or coercing fellow employ- ees' and 'fighting or attempting to injure another employer' violence policy? Training employees on workplace violence may help employers avoid liability. good employee with a clean work record. The court did acknowledge that work- place violence was a serious issue in light of Bill 168. Bill 168 defines "workplace violence" as "the exercise of physical force by a person against a worker, in a work- place, that causes or could cause physical injury to the worker. clearly fell within that definition. Section 28 of the OHSA sets out the duties of workers, one of which is to not "engage in any rough and boisterous conduct. " Shakur's assault Shakur had a verbal argument with a co-worker that ended with him deliv- ering what the court described as "an open-handed strike across the face which resulted in facial redness." Despite this, the court concluded that Shakur was wrongfully dismissed. This may surprise most readers, but the Shakur decision is consistent with the Ontario Court of Appeal' ed that outright dismissal was not justi- fied, noting that Shakur was an otherwise Thompson v. Lex Tec Inc. In that case Gary Thompson was fired when he swore at and pushed his manager. The court con- cluded Thompson was wrongfully dis- missed because the assault was an isolated incident and he had an otherwise clean employment record. Similarly, the court in Shakur conclud- s decision in 168 says this duty applies to workplace violence. Therefore the OHSA expressly prohibits the type of misconduct engaged in by Shakur. However the OHSA also places an " Bill obligation on employers to "provide information, instruction, and supervision to a worker to protect the health or safety of the worker, on the employer's workplace violence training instead of focusing on the fact that Shakur had engaged in conduct dir- ectly contrary to his OHSA obligations. While the employer had workplace vio- lence policies and distributed them to all employees, the court concluded that the employer had not done enough to train its employees about the consequences of engaging in workplace violence, saying the following: "Although the employee handbook contained rules prohibiting 'threatening, obligation to provide workplace violence training. In Shakur, the court chose to focus " which would include an Mitchell Plastics did nothing to train its employees with respect to the intent and purpose of the rules and the conse- quences of breaking them beyond distrib- uting the handbook, and revisions to it, to its employees and leaving them to read it and interpret it for themselves." This is a very troubling analysis. It appears to suggest that employees who are given workplace violence policies can- not be taken to know in this day and age that physically assaulting a co-worker is serious misconduct that can result in dismissal. It also appears to suggest that there are degrees of physical violence that are tolerable in the workplace, even though the legislature, through Bill 168, has clearly stated that employees shall not engage in workplace violence. There is an old legal rule that says, "statute trumps common law." While the Supreme Court of Canada has frowned upon a zero-tolerance policy for employee misconduct, preferring instead a context- ual analysis that assesses the misconduct against all of the circumstances of the employment relationship (see McKinley v. BC Tel), that is a common law rule that should be trumped by the legislature' clear direction that workplace violence is not to be tolerated. While flawed, the Shakur decision s should serve as a reminder to employers that courts will hold them to a high stan- dard regarding their workplace policies. It is important to remind management that employers need to regularly distribute workplace violence policies and provide ongoing workplace violence training. In light of Shakur, it is clear that good employee training will be essential to jus- tify the termination of an employee who engages in workplace violence. IH Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. INHOUSE JUNE/JULY 2012 • 13 , the evidence is that

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