5 Years of Bill 168: Zero Tolerance for Zero Tolerance?

The Ontario government’s 2009 amendments to the Occupational Health & Safety Act –often referred to as Bill 168 – came into effect in 2010. These new rules expanded an employer’s responsibility to protect its employees from violence and harassment in the workplace, putting these safety risks on par with physical risks that were already addressed by the Act and various regulations.

Bill 168 defines workplace violence as “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.”

Employers across Ontario responded by creating policies to help them comply with their obligations under Bill 168. Many instituted “zero-tolerance” rules for violence, threats or harassment at work, claiming that the new law required this kind of strict approach.

But does Bill 168 mean that progressive discipline doesn’t apply to unionized workers accused of violence or harassment? Can an arbitrator still take the context or the personal characteristics of a grievor into account when deciding whether to order a violent grievor back to work?

Bill 168 at Arbitration

While the post-Bill 168 case law makes it clear that arbitrators, employers and unions are all taking the issue of workplace violence and harassment a lot more seriously than in decades past, it’s also clear that the new law doesn’t prevent an arbitrator from considering other relevant factors (things like the grievor’s length of service or positive employment record, for example).

In one of the first arbitration decisions issued after Bill 168 came into effect, the arbitrator found that a grievor had made a death threat in the workplace when her employer tried to deal with her absenteeism. In this decision, the arbitrator held that workplace safety was one of the factors she had to consider when deciding whether the discipline imposed – in this case, dismissal- was reasonable and proportional to the misconduct. In other words, an arbitrator could still consider the usual mitigating factors (length of service, good employment record, the employee’s age, etc) and aggravating factors (lack of remorse, damage to the employment relationship, etc), but she would also have to take the threat seriously and consider whether there was a risk that the grievor would re-offend.

Another decision addresses the issue of “zero tolerance” policies head-on, reminding employers that:

“arbitrators must continue to consider and balance various factors in assessing the appropriateness of the discipline imposed upon an employee who has committed an act of violence in the workplace. Workplace violence and harassment policies should not automatically be deemed to be “zero tolerance” policies so that any infraction will automatically lead to dismissal. This is especially true because the definition of what constitutes workplace violence is broad, and the spectrum of the severity of violent conduct is wide.”

So far this year, more than a dozen Ontario labour arbitration decisions have referenced Bill 168. These address a variety of grievances, including unions’ complaints that employers aren’t doing enough to protect their employees from harassment. In three of the four arbitration decisions addressing whether or not an employee could be dismissed after having been found to have committed some form of workplace violence or harassment, arbitrators held that termination was too severe and ordered the employers to issue a suspension instead.

In other words, while “zero tolerance” can send a strong message to employees about their employer’s commitment to preventing (or punishing) violent behavior at work, termination may not always be the appropriate response. As with any other type of serious misconduct, employers are advised to look at the whole picture before making their decisions about discipline.

DECISIONS DISCUSSED:

Kingston (City) v Canadian Union of Public Employees, Local 109, 2011 CanLII 50313 (ON LA)

Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2013 CanLII 89972 (ON LA)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

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