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Violent criminal acts in the workplace do not receive lenient treatment by the courts.

Unless you are extremely lucky, violence in the workplace will almost get you fired without a severance package.
 
Luck, however, appeared to have been with a gentleman we will call Joey.
 
Joey had worked as a machine operator for a plastics company for almost six years. By then he was almost 35 years old. Joey and another worker at the factory routinely engaged in verbal jousting. Some people described it as trash talk or off-colour language. Others described it as salty language and said that they acted like two kids in a playground.
 
The judge heard conflicting evidence about whether this verbal jousting was good natured or something more than that. What is known is that one day, as a result of something his co-worker said to him, Joey turned around and slapped him in the face hard enough to leave a red mark. At no time did he offer an apology.
 
The incident was reported to management and investigated. Joey was fired.
 
The employer argued at trial that even though Joey had a clean disciplinary record before this incident, the termination was warranted. The Occupational Health & Safety Act requires employers to provide a safe workplace and actually imposes criminal consequences for employers who fail to do so. There was a written policy that prohibited threatening or intimidating fellow employees or engaging in fighting or attempting to injure another employee.
 
Somewhat surprisingly, Joey won his case and was awarded four and a half months pay in lieu of notice. The judge noted that an employee’s misconduct does not inherently justify dismissal without notice unless it is so grievous that it intimates the employee’s abandonment of the intention to remain part of the employment relationship.
 
The judge found that there was not just cause for his termination without notice. Although the judge conceded that there was a policy prohibiting fighting in the handbook, the judge noted that the employer did not train its employees with respect to the intent and purpose of the rules and the consequences of breaking them.
 
One pauses to wonder what that training would look like; “Please don’t hit your fellow employees.”
 
It would appear that because Joey had no previous disciplinary record, even though he committed a criminal act in the workplace and assaulted a fellow employee and failed to apologize, the judge thought that some lesser disciplinary response was more appropriate than a termination.
 
 If Joey had been subjected to some lesser form of discipline, perhaps a suspension without pay and returned to work, the employer could have found itself  in a lot of trouble. If at some point down the road Joey assaulted another fellow employee but this time they sustained lasting bodily harm, there is a good chance the Ministry of Labour would have had the employer and some of its managers up on criminal charges for failing to provide a safe workplace. They would no doubt have a prosecutor argue that Joey should have been terminated the first and that the employer knew or ought to have known that Joey, being prone to violence, was a danger in the workplace.
 
Nobody should take this case as a sign that you get one slap for free. Violent criminal acts in the workplace do not usually receive such lenient treatment by the courts. Only Joey’s absolutely clean disciplinary record let him succeed in his claim and many judges would have decided that the employer was not obliged to accept the risk that Joey would slap someone else.
 
As published in the Hamilton Spectator, August 20, 2012
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com