An Ontario arbitrator has upheld the termination of a 58-year-old custodian with 36 years of discipline-free service (T.K.), finding that T.K.'s post-event counselling and anger-management training was insufficient to provide confidence he would not commit further acts of workplace violence.1
The workplace violence
T.K. was in the employer's lunchroom with three co-workers. When one co-worker, Mr. V, finished his lunch, he had difficultly closing a Tupperware container and banged on its lid making several loud noises. T.K., sitting opposite Mr. V, became greatly annoyed by Mr. V's efforts to close the Tupperware. In response, T.K. produced two knives and asked him, "Would you like the curved blade or the straight blade?"
Not recognizing T.K.'s growing rage, Mr. V began to laugh. T.K. then slashed several times at Mr. V's groin before connecting with his arm. Mr. V was able to exit the lunchroom and seek first aid. Shortly thereafter, Mr. V again encountered T.K. by chance and T.K. told Mr. V, "You are lucky I did not stab you in the heart."
Later that day T.K. was charged with assault causing bodily harm and uttering death threats. He subsequently pleaded guilty to both charges and received a 12-month suspended sentence, inclusive of court-ordered anger-management counselling.
But I am feeling much better now
At arbitration T.K. admitted to much of his misconduct. However, in support of his claim to reinstatement he argued that his voluntary participation in seven anger-management counselling sessions and completion of an additional nine sessions pursuant to his court-ordered sentence had given him the ability to control his rage. T.K. also produced evidence of his use of anti-depressants following the lunchroom attack.
Against this backdrop of clinically managed mental health, the union argued that the single incident of workplace violence and associated verbal threat were an anomaly in an otherwise unblemished 36 years of service. T.K. also assured the board of arbitration he would not re-offend.
Despite T.K.'s assurances of prospective good behaviour, his counseling and therapy records told a different story. More specifically, the records showed he identified "the workplace" as a continued source of anger. The same records also disclosed that T.K. continued to harbour a desire for "revenge" against his victim, Mr. V. Other anger triggers listed by T.K. included traffic, small children and overflowing garbage cans. In cross-examination T.K. admitted to kicking garbage cans with his steel-toed boots as a manifestation of generalized workplace anger.
Ultimately, the termination of employment was upheld and the grievance dismissed. The arbitrator was not satisfied that the counselling, medication and anger-management training provided sufficient confidence that T.K. would not engage in similar misconduct if he was returned to work.
What does this case mean for employers?
Mental health issues in the workplace continue to be among the most challenging matters for an employer to address. This is particularly so, as employers must operate within the confines of human rights legislation as well as privacy considerations. Further, recent policy papers such as the Ontario Human Rights Commission's "Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions"2 continue to place additional expectations on human resources staff.
From a remedial perspective the T.K. decision stands as a welcome contrast to other recent awards such as Hood Packaging3, wherein an employee was reinstated after making death threats on the basis of "trust equity." In Hood Packaging, the arbitrator found that 20 years of non-violent behaviour gave rise to an inference of prospective non-violence. The T.K. decision takes a different approach by endorsing a more rigorous prospective risk assessment, a welcome result for employers.
However, from a preventative perspective the facts of T.K. are a chilling reminder of the difficulties in detecting potential workplace violence before it occurs. Indeed, in T.K. the employer's records disclosed that T.K. received a perfect score on the employer's anti-workplace violence training seminar just a few months prior to slashing his co-worker and threatening him with death.
Footnotes
1.Firestone Textiles Company and United Food and Commercial Workers Canada, Local 175 (Grievance of T.K.), September 12, 2014 (Chauvin) ("T.K.").
2. See Norton Rose Fulbright 's July 2014 legal update: "Mental Health and the Workplace: Ontario Human Rights Commission Releases New Policy on Mental Health And Addiction."
3.Hood Packaging [2013] 233 L.A.C. (4th) 53 (Trachuk).
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
