The plaintiff, Mr. Phanlouvong, was a 15-year employee working as a labourer/assembler at Northfield Metal Products. On Oct. 5, 2010, a co-worker, Mr. Bailey, complained to Mr. Phanlouvong about the manner in which he was doing his job. This resulted in an exchange of words, but nothing further occurred that day. However, on the following morning, before their shift commenced, Mr. Bailey passed by Mr. Phanlouvong while carrying dirty gloves for disposal. As they passed, Mr. Bailey's elbow came into contact with Mr. Phanlouvong. The Judge found that the co-worker's contact was "neither violent nor deliberate." What followed next was the subject of much conflicting evidence. However, the Judge concluded, on a balance of probabilities, that Mr. Phanlouvong "was the aggressor in the incident and did throw a punch striking Mr. Bailey on the nose, thereby causing Mr. Bailey to stumble backwards onto the floor, and his nose to bleed."

At trial, the Judge acknowledged the employer's duties under the Ontario Occupational Health and Safety Act ("OHSA") and the Bill 168 amendments concerning workplace violence, but also noted that the employer's Workplace Violence Policy and its accompanying Workplace Violence Prevention Program utilized progressive discipline up to an including termination of employment. Relying on the Supreme Court of Canada's decision in McKinley v. BC Tel, 2001 SCC 38, the Judge applied the "principle of proportionality," describing the test as whether the employee's conduct gives rise to a breakdown in the employment relationship. The Judge further described the employer's burden as follows: "The onus is on the employer to establish, on a balance of probabilities, that there was just cause for it to terminate the plaintiff's employment without notice, and in this connection, to prove that there were no other reasonable alternatives to termination..."

Having regard to the facts of the present case, the Judge was not satisfied that the employer had given due consideration to any alternatives to dismissal without notice. Although Mr. Phanlouvong was the aggressor in the altercation, the Judge found that "Mr. Bailey also participated in it by not walking away or extricating himself from the situation..." In addition, the Judge found that no consideration was given to Mr. Phanlouvong's "unblemished" work record before making a determination. Finally, the Judge noted: "Moreover, management did not consider whether the company's legitimate interest in demonstrating to Mr. Phanlouvong, and to the rest of the employees in the plant, that workplace violence would not be condoned could be adequately served through the imposition of progressive discipline..."

The employer countered that there were aggravating factors, including breach of the OHSA, and the plaintiff's failure to accept responsibility for his actions. However, the Judge dismissed these arguments. Regarding the failure to accept responsibility, the Judge noted that Mr. Phanlouvong was not afforded the opportunity of a face-to-face meeting, which may have resulted in some acceptance of wrongdoing. Further, the Judge found that the plaintiff's attempt to deflect responsibility for the incident did not constitute "an abandonment by him of an intention to remain part of the employment relationship."

Having found that the plaintiff was wrongfully dismissed, the Judge awarded 15 months pay in lieu of notice, subject to mitigation efforts by the plaintiff. However, the Judge dismissed the plaintiff's additional claims for aggravated and punitive damages, tort of battery, intentional or negligent infliction of mental suffering, and harassment contrary to the Ontario Human Rights Code.

Having regard to the critical balance between proportionate discipline and the employer's duty to provide a safe workplace free from violence, it is unfortunate that the decision does not speak to the important consideration of whether the employee could have been safely reintegrated into the workplace following the incident. In one of the leading arbitral decisions, Kingston (City) v. Canadian Union of Public Employees, Local 109, 2011 CanLII 50313 (ON LA), Arbitrator Newman provided the following analysis with respect to proportionality of discipline in the wake of Bill 168:

Fourth, and finally, I interpret the Bill 168 amendments to cause an 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.

In the past, this aspect of the evidence has traditionally been considered part of the question "to what extent can this employment relationship be repaired?" It is my view that a separate and distinct question must now focus that analysis. That question is this: "To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others"? Put another way, "to what extent is it predictable that the misconduct demonstrated here will be repeated?"

Arbitrator Newman's analysis may have influenced two factors in the present case: first, that physical violence in the workplace can be treated as a fundamental breakdown, if not abandonment, of the employment relationship; and second, that the plaintiff's failure to accept responsibility for his actions is an important consideration when asking to what extent is it likely that the plaintiff, if returned to the workplace, could be relied upon to conduct himself in a way that is safe for others.

Employers should take away from this decision the importance of conducting a full and thorough investigation of any violent incidents, even where what took place appears to be obvious. Most importantly, where a workplace violence policy calls for progressive discipline, it is imperative that employers engage in a genuine evaluation of the appropriate discipline in the specific circumstances. Dismissal for just cause may well be the appropriate outcome, but by skipping the consideration of alternative discipline, an employer may later fail to establish that there were in fact no reasonable alternatives to dismissal.

Note: This a reprint of an article by John Illingworth of Lafleur Henderson LLP.