Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 CSR | August 2014 | News Worker's self-defence comment not a threat of workplace violence, finds adjudicator By jeffrey r. sMitH an ontarIo Worker's comment that he would defend himself in response to threaten- ing behaviour by a manager did not violate his employer's vio- lence and harassment policy, an adjudicator has ruled. Corey Willcott worked as a truck driver for freeway trans- portation, a trucking company based in Brampton, ont. Will- cott was hired in May 2011, for his third stint with freeway. in March 2013, freeway implemented a violence-pre- vention policy, which included examples of violence such as threatening remarks, acting with hostility and threatening behav- iour. Harassment was also de- fined as "words or body language or behaviour" that was known or should reasonably be known to be "vexatious, abusive, intimi- dating or unwelcome." Discipline would depend on "the context and severity of the situation," would be progressive and could include immediate dismissal. Willcott and other employ- ees attended training on March 28, in which they were shown a video and slide show explaining the policy and the proper proce- dures, followed by a knowledge verification test. During the pre- sentation, Willcott was heard saying "this is bull shit." following the training, free- way offered Willcott support for developing coping skills for stress and anger management. Willcott declined and outlined the rea- sons for his anger to freeway's health and safety co-ordinator. Willcott expressed a lack of faith in the company's commit- ment to dealing with harassment and violence in the workplace, as he had been involved in inci- dents with a female dispatcher throughout 2012 and into early 2013, in which the dispatcher used abusive language and yelled at him. Willcott complained to the general manager but noth- ing was done, so he went to the health and safety co-ordinator and operations manager with his complaint in january 2013. However, in late february 2013, the general manager got angry at Willcott and began screaming at him and threat- ened to fire him or cut his hours. Willcott also reported instances when he was asked to work more than the 14-hour legal limit for truck drivers and faced anger when he balked. Willcott also reported an in- cident in March 2013 in which the general manager followed him out into the yard, yelling at him and clenching his fists after Willcott refused to deliver a load with a truck with a faulty tailgate that Willcott considered unsafe. Willcott claimed he felt the gen- eral manager was going to take a swing at him, was in his face and called him a "dirty indian." By the time freeway imple- mented its violence-prevention policy, Willcott felt he was work- ing in a toxic work environment and freeway management was "sweeping it under the rug." in May 2013, Willcott felt un- comfortable when the female dispatcher who had previously insulted him stroked his forearm with her fingernails. When Will- cott complained to his general manager, the general manager told him to keep his mouth shut and "nobody really cares about you, you are a native." later that month, the same dis- patcher asked him to go out and when he complained, the general manager called him a trouble- maker. in july, the dispatcher got "face-to-face" with Willcott and slid her hands down his chest. Willcott believed freeway wasn't doing anything about the harass- ment he was experiencing. on oct. 11, 2013, the health and safety co-ordinator encoun- tered Willcott in the company parking lot. the co-ordinator said they discussed the March incident when Willcott refused to drive the truck with the faulty tailgate. Willcott said he believed the general manager had been trying to provoke him and if the general manager took a swing at him, he would swing back to de- fend himself. the co-ordinator reported this as a threat against the general manager. on oct. 28, 2013, freeway decided to terminate Willcott's employment for violating its violence-prevention policy. one month later, he was dismissed with two weeks' pay in lieu of notice and one week's sever- ance pay. However, the company deemed it a layoff so he could receive employment insurance, and because it felt the layoff pro- gression to termination would reduce the threat of violence. Willcott acknowledged he had made the comment during the policy training session. He denied being offered assistance for anger management and that he told the co-ordinator he would defend himself if the gen- eral manager took a swing at him, but didn't make a direct threat against him. the adjudicator found Will- cott's accounts of the various incidents were truthful. With no action taken over his complaints, it was understandable and likely he would make a comment such as the one he reportedly said dur- ing the training. the adjudicator also found that the health and safety co-ordinator's account of the parking lot conversation didn't dispute Willcott's asser- tion he didn't threaten to start a fight with the general manager, but rather he said he would de- fend himself if a fight was started by the general manager — who was on vacation and wasn't even in the workplace. Ultimately, the adjudicator determined freeway's evidence of Willcott's violation of the vio- lence policy amounted to con- clusions the company reached, not actions by Willcott — par- ticularly since Willcott wasn't given an opportunity to address the company's conclusions. "Willcott was identifying to (the health and safety co-ordi- nator) a risk of violence in the workplace that stemmed not from himself but rather from (the general manager)," said the adjudicator. freeway was ordered to rein- state Willcott with compensation for loss of wages and benefits. for more information see: • Willcott and Freeway Transpor- tation Inc., Re, 2014 CarswellNat 2248 (Can. Labour Code Adj.). Credit: Kunal Mehta/Shutterstock

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