No Damages Awarded For Unforeseeable Workplace Assault, But Employer Ordered To Rewrite Harassment Policy
24, March 24, 2015 - Filed in: Arbitration Cases
The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held in Shaw Pipe Protection Limited v Construction and General Workers' Local Union No 180, 2013 CanLII 94439 (SK LA). However, the company's harassment policy was deficient and needed to be rewritten.
The decision arose from a union grievance alleging that the employer had not provided an injury-free workplace. An employee, Kryzanowski, alleged that another employee, Wilson, had struck him in the head from behind with a "rather substantial sized plastic lunch pail". The union alleged that the company had breached the collective agreement and the Saskatchewan Occupational Health and Safety Act because of its actions or inactions both before and after the incident.
The arbitrator stated that there was no doubt that the assault constituted harassment as defined in the OHSA. "A serious physical assault, such as this one, is perhaps the most profound single incident of harassment that exists." However, according to the arbitrator, the core question was whether the company, through its management personnel and supervisors, knew or should have known that Wilson was a physical threat to other employees and failed to take steps to prevent it.
The arbitrator decided that although Wilson had demonstrated "meanness and bullying" behaviour towards Kryzanowski through numerous disrespectful comments, and the company's management were sufficiently aware of Wilson's conduct to know that he was mean-spirited and had anger problems, none of his previous actions were physical alterations and there was no evidence that he was on the verge of physically attacking a fellow employee. The assault was not foreseeable by the company.
As such, Kryzanowski was not entitled to damages for the assault. However, the company was ordered to keep Wilson and Kryzanowski on different shifts and direct Wilson to have no contact with Kryzanowski.
Lastly, the arbitrator found that the company's harassment policy did not comply with the OHSA and regulations in that it was not kept current and did not include specific contents required by the regulations. The arbitrator ordered the company to "take immediate steps to comply with the Occupational Health and Safety Act by writing its harassment policy to be compliant with the Act and regulations."
Note: This a reprint of an article by Adrian Miedema of Dentons (Canada).