Background info on Case Kingston (City) v Canadian Union of Public Employees.

The employee, Donna Hudson, began working for the employer, the City of Kingston, in 1983. Throughout her employment, Ms. Hudson received multiple non-disciplinary and disciplinary warnings from her employer for various reasons, including arguing and shouting at her supervisor, angrily confronting a coworker, and swearing at her co-workers. In September of 2009, the employer conducted Bill 168 training for its employees in preparation for the Bill 168 amendments. Ms. Hudson attended one of the training sessions held on September 11, 2009, during which she was informed of the concepts of harassment, verbal and physical violence, and the need to be mindful of how one's words and actions affect other people in the workplace. On July 28, 2010, two days after successfully completing a required anger management counseling course, Ms. Hudson made a verbal threat to her Union representative, John Hale, at the workplace. The threat was made after Mr. Hale requested that Ms. Hudson not talk about a friend of Mr. Hale's who was dead, to which Ms. Hudson responded by stating, "Yes, and you will be too." In accordance with Bill 168, Mr. Hale reported the threat to the employer. In response, the employer conducted a workplace investigation into the matter, interviewing Mr. Hale and Ms. Hudson. During her interview, Ms. Hudson denied threatening Mr. Hale prior to any of the investigators informing her that there was such an allegation. Additionally, Ms. Hudson did not apologize for having made the verbal threat to Mr. Hale. Following the conclusion of the workplace investigation, the employer determined that given Ms. Hudson's record of issues at the workplace, her having taken part in Bill 168 training, and having completed anger management counseling just two days prior to the day she made the threat against Mr. Hale, the appropriate disciplinary response was to terminate her employment. Ms. Hudson grieved her termination before an arbitration board. After concluding Hudson did make the alleged threat towards Hale, arbitrator Elaine Newman discussed the four ways Bill 168 has impacted the process used to determine the appropriate penalty for acts of workplace violence.Newman stated: "First, the Bill 168 amendments... make it clear that language that is vexatious and unwelcome is harassment and very serious in its own right. But language that is made in direct reference (sic) the end of a person's life or that suggests impending danger, falls into a category of its own. This is not just language, it is violence.

"Second, the Bill 168 amendments have changed the manner in which the employer and a worker must react to an allegation of a threat... The utterance of a threat is workplace violence and must be reported, investigated and addressed."

Third, the Bill 168 amendments impact the manner in which an arbitrator might assess the reasonableness of termination as an appropriate form of discipline when a threat is found to have been made, she said. As the union argued, the usual factors still apply to the analysis: Who was threatened or attacked? Was this a momentary flare-up or a premeditated act? How serious was the threat or attack? Was there a weapon involved? Was there provocation? What is the grievor's length of service? What are the economic consequences of a discharge on the grievor? Is there genuine remorse? Has a sincere apology been made? Has the grievor accepted responsibility for her actions?

"Fourth, and finally, I interpret the Bill 168 amendments to cause on (sic) additional factor to be added to the list of those usually considered when assessing the reasonability and proportionality of the discipline. That factor is workplace safety," said Newman.

After applying the above listed factors, the arbitrator found the employer was justified in terminating Hudson's employment and stated: "Having reviewed the evidence at length...it is with regret that I must conclude that the termination, in this case, is an appropriate and proportionate disciplinary response.

"This would not have been my conclusion if the grievor's actions or evidence had reflected an acceptance of responsibility for her misconduct, any appreciation of how serious her misconduct was or what she herself is going to have to do in order to gain control over her angry impulses."

The initial response to Bill 168 by both employees and employers was one of confusion around issues such as how the amendments would be correctly applied and enforced, how an employer would ensure it has appropriately satisfied all of the new requirements and what types of discipline would be considered a reasonable response to a breach of the Bill 168 requirements.

Though the above decision is context-specific, it has defined what an appropriate response may be from an employer in regards to an act of workplace violence and has also shed light on what is expected of both employees and employers when an act of workplace violence has occurred.

However, employers should take note of the arbitrator's concluding remarks regarding the possibility of an alternative finding if the employee had accepted responsibility, appreciated the seriousness of her misconduct or had known what she would do to gain control over her angry impulses.

On this basis, it appears termination may not be an appropriate response to a verbal threat in the above context if any of the above factors apply to the situation at hand, as it is assumed the above considerations are mitigating factors that may reduce the likelihood of future violence in the workplace by the same employee.

Background info on Case Ditchburn v Landis & Gyr Powers, Ltd. 1997.

Facts: D was a sales executive with 27 years of exemplary service. In 1993, employers implemented some workplace changes that required sales employees to rely more on computer skills and less on interpersonal skills. D was demoted to a less prestigious and less demanding position. D intended to resign and arranged to meet with a client during business hours to "tie up some loose ends". They had lunch, consumed several beers, and continued drinking for several hours at a strip club. Upon return to the client's place of business, D and the client had a physical altercation resulting in injuries to both. The employer dismissed D without notice. D sued for wrongful dismissal.

Prior Proceedings: At trial, in determining whether the employer had just cause to dismiss D, Epstein commented that the facts of the case must be examined in light of the concept of the evolution of contractual rights and obligations inherent in a relationship contract of this nature. She suggested that when D originally joined the company, he could reasonably expect very little from the company but, after 27 years of dedicated and competent service he could reasonably expect much more from the employer.

"[T]o an employee of almost 60 years of age who had devoted one half of his life to his employer; to a man who had made a significant contribution to the company; to a man who had no previous history of bad judgment exercised on the job; in a situation where the company was clearly not injured in any way - the employer had considerable obligations, even in the fact of a breach of company policy. It owes the employee more than the benefit of the doubt. In a situation as this, it owes a response of loyalty, support and then additional support if the employee provides to have a problem for which he or she requires assistance."

Held: Employer dismissed D without just cause and she awarded damages in the amount of 22 months salary in lieu of reasonable notice and an additional 2 months because the employer refused to provide a reference letter. She would have given an additional $15K for mental distress.

Appeal: ONCA upheld the 22 monthly notice award and the additional damages for mental distress. The judge on appeal stated that D's breach of company policy did not amount to just cause given his long and unblemished record of service and that the reasonable notice of 22 months was appropriate. The judge upheld the award of damages for mental distress on the grounds that the employer, by breaching an implied obligation under the contract to provide support such as counseling to a loyal and long-standing employee, committed an independent actionable wrong for which damages could be awarded. CA agrees that the employment relationship evolved to such a point that now we could say that the employer owed these obligations to D by the time of his dismissal. The employer had not only breached the obligation to provide reasonable notice of termination in the absence of just cause but also an implied term to support and provide assistance to a dedicated, long-term employee.

Ratio: Employment contracts differ from commercial contracts in that employment contracts can have implied terms based on the relationship's purpose and history. The same employee conduct that may amount to the dismissal of the employee early in the relationship may not have the same effect as it did in this case once the relationship proves to be long term. Courts are willing to read into the employment contract an obligation on employees and employers to cooperate and support one another in the spirit of continuing the relationship.

How does the common law approach this compared to how it may be dealt with under occupational health and safety?