For employers, determining what is an inappropriate comment worthy of discipline, and what comment should be seen as a joke, can be difficult. This is particularly so in the post-Bill 168 workplace, when there is heightened sensitivity about violence, and threats of violence.
This was indeed the dilemma at the centre of a recent arbitral decision Workers United Canada Council and Winners Merchants International LP 2015, Can LII 18977 (ON LA). The facts considered by Arbitrator Trachuk were straightforward, and involved the communication between two male co-workers in the men’s washroom. In an exchange witnessed by several people, one man said to another, “I am your worst nightmare”. This caused the person to whom the comment was directed to become too upset to return to work. He told the Lead Hand that he had been threatened in the washroom. The employer’s Risk Assessment team then took over, and conducted an investigation. They concluded that the man who made the comment had violated the employer’s Workplace Violence Policy (the “Policy”), in that the comment was a “statement that insinuates violence, contains a general threat of violence or contains a direct threat against one or more individuals”.
The employee who made the comment had already been disciplined once before for similar conduct six months earlier. The employer imposed a three day suspension on the employee. His union grieved the discipline.
The employee maintained that the comment was a joke, and his union argued that the comment was not a threat, as the words had nothing to do with the use of physical force. The union maintained that it was unreasonable for the recipient of the comment to understand it that way. Moreover, it maintained that there was no evidence that the comment was made in an aggressive or hostile manner. Indeed, two of the three witnesses said that it had been made in a joking manner. Therefore, the union argued, the employer was wrong to conclude the comment violated the Policy, and wrong to impose the discipline.
In her decision, Arbitrator Trachuk found that the words “I am your worst nightmare” meant that “I am someone you should be afraid of” and that saying that to the employee in question was “classic bullying” whether or not it intended to imply a physical threat.
In her reasons, she also noted that the men’s washroom was a “traditional hang out of bullies”, and observed that three men were there, two of whom were larger than the employee to whom the remark was made. This made the situation intimidating for him. She also indicated that any laughter on the part of the person who made the remark was not because he was laughing with the recipient of the comment, but at him. The recipient himself did not laugh. The “joke” she continued, was not for the recipient’s benefit. He was the “butt of the joke”.
The Arbitrator concluded that while the comment “was not specifically a threat of physical harm, it was a violation of the Policy because it was inappropriate behaviour that could insinuate violence and because it was hostile language that would be intimidating to a reasonable person”. Therefore, the comment was just cause for some discipline, and given that this was not a first offence, the three day suspension was appropriate.
What does this mean for employers?
Words Matter An employer’s obligation to provide a workplace that is safe, and where employees are protected from violence clearly extends to not only acts of physical violence, but to the words that employees choose to communicate with one another. If words can be reasonably interpreted to be threatening, there is a basis for imposing discipline;
Context Matters Here, the Arbitrator considered the entire context of when the words were used, by whom, and where. In this way, she was able to conclude that the comment “I am your worst nightmare” was not only a violation of the Policy, but, as she said, “classic bullying”;
Investigations Matter Although the Arbitrator did not comment on the sufficiency of the investigation itself, or whether it influenced her analysis, her decision details the steps the employer took to investigate the matter before it imposed discipline. This included interviewing the person who was on the receiving end of the comment, the person who made it, as well as the witnesses. It is clear from the decision that the two members of the Risk Assessment team who conducted the investigation took detailed notes of the interviews they conducted. In our view, these facts supported the employer’s course of action, and contributed to its ability to successfully justify its decision to impose discipline