THE LANDSCAPE IS CHANGING BUT THE FOUNDATIONS REMAIN THE SAME: VIOLENCE IN THE UNIONIZED WORKPLACE

Scott Mostoway SARC Senior Labour Relations Consultant

Amid legislative changes that will soon be having an impact on Saskatchewan employers, the landscape of violence in the workplace will be shifting to take a more proactive approach via legislation. Along with mandatory policies on violence in the workplace, employers will now be tasked with also having a prevention plan starting in May 2024. Will all these changes ultimately reduce the number of incidents related to violence and harassment in the workplace? Short answer, we hope so. Situations involving violence and harassment in the workplace not only impact the individuals involved, but also the greater workforce and their well-being. We as employers already have the obligation to provide a safe and healthy workplace, and the failure to do so can lead to negative impacts related to risk and liability through the legislation but also in morale, productivity, and engagement. Although the legislation is changing to include a proactive approach, the same foundational principles remain when dealing with violence in the workplace. What are some considerations we have to keep in mind when dealing with situations of violence while operating in a unionized environment?

Collective Agreement Language Specific to Violence in the Workplace

In what seems to becoming a more common trend in the Labour Relations context is the introduction of language into collective agreements that speak specifically to violence in the workplace. Although generally uncontroversial, it is important for employers to ensure that if they are going to agree to introduce language into their collective agreements, that they do so in a way that protects their ability to deal with situations of alleged violence. This would include avoiding language that may be:

• Onerous, which could hinder your ability to investigate in a timely manner; or

• Inconsistent with employer policies and legislation.

Common, and preferred, language in collective agreements includes a willingness of both the employer and the union in their commitment to eliminating violence in the workplace by fully complying with relevant legislation.

Collective Agreement Language Relevant to Dealing with Violence in the Workplace

Some collective agreements specifically spell out and contemplate violence in the workplace. In some cases, collective agreements are silent on specifics of violence but have several provisions that have to be taken into account when an employer is faced with an incident that involves allegations of violence. Some common relevant provisions to follow, in order to deal with these types of situations effectively, are:

1. Representation - Not unlike any other investigation process that we as employers undertake, many of our collective agreements include language that affords employees the ability to have union representation in all investigatory and disciplinary meetings. It is critical that if your collective agreement gives employees the right to union representation during these types of meetings that you ensure the union is present, as the failure to do so may result in any disciplinary action or evidence being void.

2. Timelines - Some collective agreements have stringent timelines attached to employers in which they must investigate and discipline an employee after knowing of such events. It’s once again imperative that you as an employer adhere to the timelines in the collective agreement. Avoiding a procedural breach could prevent or put your investigation results in jeopardy of being challenged and an appropriate disciplinary response being overturned.

What Considerations do Arbitrators Make when Deciding what Disciplinary Penalty is Appropriate?

Labour arbitrators have long reaffirmed that violent behaviour by employees in the workplace is serious misconduct and in general warrants severe discipline, if not termination. Not only do arbitrators have to consider an employer's right to an effective functioning workplace, but they also must take into account the legislative framework in which we as employers are required to provide a workplace free from violence. Below are some of the top considerations that arbitrators consider when deciding upon a case involving violence and what constitutes the appropriate disciplinary response:

1. Who was attacked? (Supervisor, fellow employee, or someone who the employee will have to work with in the future)

2. Was the situation a momentary lapse in judgment or a premeditated attack?

3. How serious was the attack?

4. Was there any provocation?

5. What is the employee’s previous discipline record?

6. What is the employee's length of service?

7. Does the employee have any other economic prospects?

8. Has the employee apologized or expressed any willingness to do so?

9. Has the employee been forthcoming and honest throughout the process?

Employers must determine each situation on a case-by-case basis. Each allegation of a violent incident should be investigated appropriately with strong emphasis on ensuring we are following any relevant provisions in the collective agreement to put ourselves in the best position to deal with employees that engage in violence. A safe workplace is a healthy workplace, and a healthy workplace is a productive workplace.