[ author: Adrian Miedema ]
An Ontario judge has held that an employer which failed to train employees on its workplace violence rules did not have just cause to dismiss an employee who slapped a coworker in the face.
Two workers were engaged in “verbal jousting” described by other co-workers as “trash-talk”, “off-colour language”, “salty language” or acting like “two kids in a courtyard”. One worker, the plaintiff in the lawsuit, struck the other worker on the face with an open hand, apparently provoked by something that the other worker said. The judge found that the plaintiff, who had almost 6 years of service, enjoyed a clean disciplinary record and did not have a history of violence or anger management problems. The slap caused brief facial redness.
The employer fired the plaintiff and claimed just cause for dismissal without notice. The employee sued in the courts for wrongful dismissal.
The employer attempted to rely on the rules in its Employee Handbook prohibiting “threatening, intimidating, or coercing fellow employees” and “fighting or attempting to injure another employee”. The judge stated, however, that the employer did nothing to train its employees with respect to the intent and purpose of the rules and the consequences of breaking them “beyond distributing the Handbook, and revisions to it, to its employees and leaving them to read it and interpret it for themselves.” According to the judge, the employer could have sent a message to the plaintiff and other employees that workplace violence was not acceptable, by imposing progressive discipline – not dismissal – as referred to in the Employee Handbook.”
While the result in this case may seem inconsistent with the trend towards judges and arbitrators taking a harder line against workplace violence, the decision does show the importance of employers instructing employees on workplace violence rules – particularly if employers wish to rely on those rules to dismiss employees who violate them.
Shakur v. Mitchell Plastics, http://www.canlii.org/en/on/onsc/doc/2012/2012onsc1008/2012onsc1008.html
Categories: Caselaw Developments, Safety - Risk Management