Fits and Flare-ups: Appropriate responses to isolated acts of aggression or misconduct at work

When employees engage in out-of-character acts of aggression or misconduct, workplace parties are often caught off-guard and are unsure how to respond. Determining when isolated incidents of aggression or misconduct warrant discipline or discharge is often a complex and multi-faceted question. In this session, expert counsel will discuss the legal principles applicable to the workplace consequences of momentary flare-ups or isolated acts of misconduct, including:

• Fulfilling the duty to inquire and accommodate: When is an employer obliged to inquire as to whether disability played a role in an employee’s misconduct? Does the union bear any duty to make inquiries if it suspects workplace misconduct is disability-related? If an employee’s misconduct is related to a disability, how should workplace parties respond?
• Applying progressive discipline: When is progressive discipline the appropriate response to threats, violence, and harassment at work? When is summary discharge likely to be upheld for workplace violence and harassment? How has the response to workplace violence and harassment changed following the implementation of anti-harassment statutes such as Bills 132 and 168 in Ontario and Bill 14 in British Columbia?
• Aggravating and mitigating factors: What are the key distinguishing features between serious, solitary offences that are determined to merit discharge and those that are not? What factors aggravate isolated acts of misconduct or aggression in the workplace and support more severe disciplinary sanctions? Do adjudicators distinguish between general and specific threats of violence in the workplace? What are the key mitigating factors in assessing discipline for isolated acts of aggression/misconduct? Does it matter if the employee was under significant stress at the time of the incident?
• Social media flare-ups: What special considerations apply when employee misconduct occurs on social media platforms rather than in a physical work environment? Does it matter if an employee’s comments were intended to be private? In what circumstances can an employee be disciplined for publicly criticizing his or her employer? Where such behaviour has attracted public scrutiny, will the employer’s desire to distance itself from the misconduct warrant discharge?