Arbitration award provides Bill 168 direction
A year after the Bill 168 amendments on workplace violence came into effect, an arbitrator in a lengthy award provides a lay of the land in this new era.
Kingston (City) v. CUPE Local 109 concerned an employee with 28 years’ service and a bad discipline record. She was terminated after she uttered a death threat to her local president during a meeting about her return to work in a previous matter.
Among the conclusions of arbitrator Elaine Newman is that there does not have to be an intent to carry out the threat. In fact, she found that the grievor had no such intent. However, there does not have to be a physical assault – or any likely possibility thereof – in order for there to be actual harm . The local president was shaken by the death threat. “The emotional impact of a death threat is considerable, and constitutes actual harm upon its victim,” Newman ruled.
The award also confirms that there is a duty on a worker to report if s/he becomes aware of an allegation of a threat. One of the ironic aspects of this case if that the person against whom the threat was uttered was the local president trying to the assist the grievor. He appears to have been a reluctant witness. No doubt, there will be qualms on most of us as union members to “squeal” on a fellow member. But Canada has seen too many cases of worker-on-worker violence over the past decade. Safety comes first.
As Newman notes, not all cases in which a threat is uttered will lead to termination. It depends on the facts of the case. However, the message for unions and our members is that uttering threats will be treated in the most serious manner – both by employers and by arbitrators .
You can read the complete text of the award at: http://canlii.org/en/on/onla/doc/2011/2011canlii50313/2011canlii50313.html
That was quite the read. Truth is indeed more entertaining than fiction!