Workplace Violence

Upon the rare occasion I am consulted by someone who has experienced violence at his or her workplace. Although this is a not a normal situation, I thought it would useful to provide a general review of the legal issues relating to violence at the workplace.

First of all, violence is never the answer to our problems though apparently it is often tempting to resort to it. We are human afterall, and subject to our frustrations and emotions. In the heat of the moment, it is easy for some people to lose control and resort to less civilized methods of resolving their problems. Unfortunately, that can result in being fired when it occurs at the workplace. But not in every case. Over time, our Courts have developed criteria to determine whether physical altercations constitute a serious workplace offence. Remembering that summary dismissal without notice or pay in lieu is considered a serious move by an employer, the Courts go out of their way to consider the facts of each case. For instance, our Courts will consider, among other things, the identity of the person attacked, whether the assault was a one-time flare-up or a premeditated attack and whether there was an apology for the attack. Other factors Courts will review are whether there was provocation and what was the disciplinary record of the employee. In short, if you were fired because of a physical alteration at work, you may have an argument that your dismissal was not justified. Check with a lawyer before coming to your own conclusions.

If you are an employee who has been the victim of workplace violence, there are few things you can do. Firstly, you should complain immediately to your human resources department or manager. Do not hesitate to lay a complaint against your aggressor. Within the employment context, there is an implied obligation on your employer to ensure that the workplace is safe and free of hazards. This would include safety from your fellow employees. Failing to ensure a safe workplace is a serious breach of the employer’s implied obligation.

For federally regulated workplaces, the Canada Labour Code also provides protection. Some cases decided involving the Code have held that if a worker has a reasonable cause to believe that a danger existed, then the worker has the right to refuse to work. Other cases have found that the danger must be present, immediate and real and not merely an expected happening.

Another avenue of recovery for an employee who has been victimized by a fellow worker, is through the law of tort, or civil wrongs. Based on the general principle that employers are vicariously liable for the acts of their employees, an injured employee can sue his/her employer when assaulted by a fellow employee. Intrinsic in this situation, will be the issue of whether, during the assault, the employee was acting within the scope of employment.

As always, I recommend that whenever you are unsure of your legal rights, consult a lawyer who practises in the area. If you have been the victim of violence within the workplace, or you have been fired for committing an assault at work, please call me for advice.