All jurisdictions’ OHS laws—including Ontario’s new workplace violence and harassment requirements—either expressly or implicitly require employers to take measures to prevent workplace violence. Such measures include the creation of workplace violence policies and the imposition of discipline against workers who violate those policies. But tensions that have been building up at work might erupt into actual violence outside the confines of the workplace. For example, two workers who hate each other could get into a fistfight at a company softball game or a worker could punch someone during an off-site business conference. However, if your company’s violence policy only addresses violence within the workplace, your hands may be tied when you try to discipline the workers involved in such incidents.
Worker Tries to Escape Discipline for Off-Site Violence
A company in Manitoba was able to avoid this trap by carefully crafting its workplace violence policy. Two female workers, Martha and Hayat, didn’t like each other. Each one badmouthed the other to co-workers. There were also three non-violent incidents between them, including one in which they refused to work together. Management was aware of the situation and tried to resolve it without success.
One day, Martha saw Hayat in the management office and concluded that Hayat was trying to get her into trouble. So she drove to Hayat’s home and confronted her on the street. Martha claimed that Hayat knocked off her glasses and then ran away. Martha chased down Hayat, grabbed her and began punching her. She also pulled Hayat’s hair out at the roots. Bystanders eventually broke up the fight. Although Martha gave the company a letter of apology the next day, it fired her. The union filed a grievance, arguing that termination was excessive.
A Manitoba arbitrator upheld Martha’s firing. The arbitrator noted that the company had a clear zero-tolerance policy on workplace violence that specifically barred violence at off-site locations, including “contact at home if there are real or implied consequences related to the workplace.” Workers were trained on this policy, which was also posted in the plant. Martha was aware of this policy but she still went to Hayat’s home—not to talk about their issues as she claimed but with a “hostile and aggressive” intent, said the arbitrator. Martha goaded Hayat, unworried about getting hurt because she was much taller, heavier and stronger. The assault could have been much worse if a burly truck driver hadn’t intervened.
The arbitrator also wasn’t swayed by Martha’s apology, finding it insincere and lacking in remorse or empathy for Hayat. In fact, Martha saw herself as the victim. In light of the company’s duty to ensure the future safety of other workers, the arbitrator concluded that the company’s decision to fire Martha was neither excessive nor unreasonable [Phillips & Temro Industries Ltd. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9074-34 (Ahmo Grievance)].
Solution: Ban All Work-Related Violence—Regardless of Location
Employers should follow the Manitoba company’s lead and set clear anti-violence policies that are broad both in terms of actions, including discrimination, harassment and physical violence, and locations. In particular, your company should specify that such actions are barred whether they occur on company property, off-site (such as at meetings or conferences) or at workers’ homes if the actions may impact the workplace (such as if they involve two workers).
Here’s Model Language that you can add to your company’s workplace violence policy to ensure that it covers all work-related violence, regardless of where that violence occurs (show this language to your company’s attorney first):
MODEL LANGUAGE
This policy prohibits discrimination, harassment and violence on company premises and also at off-site locations, including, but not limited to, off-site meetings or conferences, client locations, social situations related to work or workers’ homes if there are real or implied consequences related to the workplace.
Your company must also be prepared to impose appropriate discipline if workers violate this policy. Only then can it be assured that it has taken all reasonable steps to protect workers from workplace violence.
SHOW YOUR LAWYER
Phillips & Temro Industries Ltd. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9074-34 (Ahmo Grievance), [2008] M.G.A.D. No. 31, Nov. 18, 2008
Loading ...
