Workplace Violence

December 2011

Introduction

Workplace violence encompasses a wide breadth of conduct. A commonly cited definition of workplace violence is “any incident in which an employee is abused, threatened or assaulted by fellow employees or by a member of the public in circumstances arising out of the course of his or her employment.”^[1]

Workplace violence is viewed as one of the most serious forms of misconduct in the workplace. This is because of the significant detrimental impact it can have on workplace relationships and the workplace environment in general. In addition, an employer is under an obligation to ensure that its employees are safe and not subject to any conduct that threatens their welfare. Thus, an employer will usually treat workplace violence as an offence likely to lead to summary dismissal. Despite the seriousness of workplace violence, an employer must still conduct a full and fair investigation into the incident. Similarly, there are certain circumstances in which the use of force in the workplace can be justifiable.

This theme explains the various types of conduct that may constitute workplace violence, circumstances when the use of force in the workplace may be justifiable, work policies on workplace violence and what actions an employer should take when investigating an allegation of workplace violence.

II.   Physical violence

Any work-related assault will be regarded seriously by the Employment Relations Authority and the courts. The seriousness of an assault will not be negated by the fact that the parties involved willingly engaged in fighting.^[2] A work-related assault can, and usually will, amount to serious misconduct.

Although this ground for dismissal overlaps with the criminal law, the technical points of criminal law do not need to be taken into account in considering the dismissal. Thus, for example, although a technical assault may be committed in terms of the criminal law, consideration of assault in the context of dismissal can include reference to whether the assault was trivial.^[3] Similarly, although an assault may be minor by criminal law standards it will be still be open for an employer to reasonably conclude that dismissal is appropriate.^[4]

While the courts will not take account of the technical points of criminal law in this context, it is important to note that an essential ingredient of a justified dismissal for physical violence is that the attacker intended to apply force to his or her victim. That is, in line with the criminal law interpretation of assault, the attacker’s state of mind is an important consideration.^[5]

Below are examples of the kind of conduct the Authority and courts have found sufficient or insufficient to justify dismissal for physical violence.

In Webster v Port Otago Ltd^[6] the Authority found that the applicant was justifiably dismissed for assaulting his supervisor, Mr Waugh. The applicant refused to carry out a proper work instruction and had used aggressive and inappropriate language in doing so. Shortly thereafter, the applicant approached Mr Waugh, abused him again and pushed him. Mr Waugh pushed the applicant back and then the applicant landed a heavy punch to Mr Waugh’s face. The respondent concluded that the applicant’s actions were capable of constituting serious misconduct justifying summary dismissal. The Authority found that the respondent was justified in reaching its conclusion. Of particular importance to the Authority was the fact the applicant started the fight and was left unharmed while Mr Waugh suffered noticeable injuries.

In Anaru v BOC Gases New Zealand Ltd^[7] the Authority found that the applicant was justifiably dismissed for assaulting a colleague, Mr Haaka. The applicant and Mr Haaka engaged in a heated verbal exchange about Mr Haaka’s abusive conduct towards another employee. Throughout the exchange the two men were goading each other to start a physical altercation. The two men ultimately lunged at each other and the applicant used physical force to propel Mr Haaka out the exit door, down some stairs and into a steel barrier where he continued to use force to prevent Mr Haaka from moving. Another employee managed to forcibly separate the two. The Authority thought it of some significance that the eye witnesses said they had not observed such a fierce altercation before at the respondent’s premises. The Authority found that it was reasonable for the respondent to conclude that the physical actions of the applicant towards Mr Haaka amounted to serious misconduct justifying summary dismissal.

In Heath v New Zealand Fire Service Commission^[8] the Employment Tribunal found that the applicant was unjustifiably dismissed for assaulting his supervisor, Mr McCormick. After a heated discussion with Mr McCormick about work the applicant ushered him out of his office, and in doing so came into minor physical contact with him. The respondent summarily dismissed the applicant for physical violence. The Tribunal found that while the applicant’s actions could perhaps have constituted a technical assault the contact was of a minor nature in context and was not something that could form the basis of a summary dismissal.

III.  Threats of violence

Threats of violence made against fellow employees have also been held to justify summary dismissal. This is because they too can have a destructive effect on the duty of trust and confidence. A threat of violence can either take the form of an intimidating action or, more commonly, a verbal statement. The essential consideration is whether the aggressor communicated intent to inflict harm on the victim.^[9] The inherent danger involved in the parties’ employment can be taken into account.^[10] The Court has nevertheless emphasised the need to distinguish “abusive” utterances from threats strictly so called.^[11] That is, any verbal tirade will not be sufficient: it is necessary to analyse each situation on a case-by-case basis.

Below are examples of the kind of threats of violence the Authority and courts have found sufficient or insufficient to justify dismissal.

In Clarke v AFFCO NZ Ltd^[12] the Court held that the plaintiff was justifiably dismissed for intimidating and endangering the safety of a supervisor, Ms Lloyd. The plaintiff ignored requests to stop his vehicle to allow it to be searched for illegal drugs. He drove into the staff car parking area where Ms Lloyd, standing about two meters in front of the plaintiff’s vehicle, asked him to stop. The plaintiff’s response to Ms Lloyd was to verbally abuse her and continue to drive towards her. The plaintiff denied being asked to stop or seeing Ms Lloyd. The defendant dismissed the plaintiff. The Court held the respondent had sufficient evidence to reach the conclusion it did and, given the seriousness of the misconduct, dismissal was a reasonable result to reach. In deciding this the Court took account of the fact that the workplace was one which contained access to dangerous tools and the respondent needed to be assured that employees would deal with conflict and anger safely and sensibly.

In McClelland v Supply Chain Ltd^[13] the Authority found that the applicant was unjustifiably dismissed for threatening a colleague, Mr Beynon. The respondent investigated the applicant’s complaint that Mr Beynon threatened him and kicked his car as he drove out of the workplace. The respondent found that the incident was triggered by an earlier altercation between the applicant and Mr Beynon, which created the perception that a physical confrontation with Mr Beynon was inevitable. The applicant had also made provocative comments to another colleague about Mr Beynon. The respondent decided that the applicant’s actions had breached its work rules on threatening behaviour and warranted dismissal. The applicant claimed he was never intending to fight Mr Beynon and comments were “just talk”. The Authority found the evidence which the respondent could have reasonably relied upon was not sufficient to support a finding that the applicant’s actions were outside the tolerated range of “workplace banter” and therefore dismissal was unjustified.

In Killick v Feltex Carpets Ltd^[14] the Court held that the appellant was justifiably dismissed for threatening another employee, W. An argument between the appellant and W occurred after the appellant inquired about the status of a machine that had not been operational for some time. W physically stood up to the appellant and entered his personal space. The appellant said words to the effect of “push off” and flicked in W's direction with the back of his hand. W responded by punching the appellant in the face. The respondent found that the appellant had acted in an aggressive, threatening and inappropriate manner which constituted serious misconduct justifying dismissal. The Court held that dismissal was open to the respondent and placed emphasis on the appellant’s employment status as involving a “higher obligation on him to conduct himself in a way which could not be seen as being in breach of the house rules” which listed threats as serious misconduct.

IV.  Sexual harassment

Sexual harassment will be regarded very seriously by employers’ and the courts alike. Indeed, in almost all cases a proven incident of sexual harassment will lead to dismissal. In discussing the destructive nature of sexual harassment, Chief Judge Goddard in Z v Y Ltd and A^[15] observed that:

“…sexual harassment poisons the atmosphere in the workplace. It is wholly unacceptable and entirely devoid of any redeeming features. It follows that its occurrence can never be met with matters of justification, excuse, or mitigation. It is an attack on the basic human right that all persons must be supposed to have to pursue their economic well-being in conditions of freedom and dignity. Its victims are almost invariably women.”^[16]

Section 108 of the Employment Relations Act 2000 provides a definition of sexual harassment. The section essentially covers two forms of sexual harassment. The first is where an employer makes a request for some form of sexual activity which contains overt or implied threats or promises relating to the employee’s employment. The second is when, through the use of language, visual material or physical behaviour of a sexual nature, the employee is subjected to behaviour which is unwelcome or offensive to them and that, either by its nature or through repetition, has a detrimental effect on their employment, job performance, or job satisfaction. The second form of harassment is concerned with the creation of a hostile atmosphere for the employee and need not contain overt or implied threats or promises. The standard for offensiveness is that of the individual employee and the central point is whether the conduct has a detrimental effect.^[17] A single event may be sufficiently detrimental.^[18]

There is no higher standard of proof for claims based on sexual harassment complaints. That is, the standard of the balance of probabilities applies as in other workplace violence cases.^[19]

Below are examples of the kind of conduct the Authority and courts have found sufficient or insufficient to justify a finding of sexual harassment. The examples also express the main factors that are taken into account in a sexual harassment claim.

In Rodger v Fogelberg, Vice Chancellor of the University of Otago^[20] the Court held the plaintiff was justifiably dismissed for sexual harassment. The plaintiff removed certain photos of the complainant from a noticeboard at work. Three weeks later he cut out the complainant's image from the remaining photos. The complainant confronted the plaintiff about his actions, and the plaintiff replied by telling her she was beautiful and that he had taken her pictures home to fantasise about. After the confrontation the plaintiff made remarks about the complainant to other colleagues, and looked the complainant up and down when he saw her. The plaintiff claimed his behaviour did not amount to sexual harassment. The Court held that one of the requirements for sexual harassment was that the behaviour complained of was of a sexual nature and, taken on its own, the plaintiff's behaviour in relation to the photographs did not fit that description. However, it held that the plaintiff's reference to fantasising about the pictures was clearly sexual in nature. Further, the Court held that the behaviour did have a sufficient detrimental effect on the complainant’s employment.

In Doherty v Air New Zealand Ltd^[21] the Court held the plaintiff was justifiably dismissed for sexual harassment. The plaintiff was employed by the defendant as a cabin crew attendant. A passenger complained that the plaintiff had inappropriately commented on her legs by calling her “Miss Long Legs” and touched her thigh and knee. The plaintiff admitted making the comment and explained that he had touched the passenger’s knee by mistake while trying to steady himself during a period of turbulence. The Court held that the plaintiff’s comments were of a sexual nature as they were only directed towards the complainant because of her gender and it had a detrimental impact on the complainant.

In Kumar v Icehouse (NZ) Ltd^[22] the Court held that the plaintiff was unjustifiably dismissed for sexual harassment. The complainant had told her supervisor that she was uncomfortable working with the plaintiff as he would stand close to her and brush up against her. In consequence, the plaintiff was moved to a different work area. Later an incident occurred and the complainant told the assistant manager that the plaintiff had forcefully touched or bumped into her while she was bending down. The Court held that the actions of the plaintiff were not unequivocally sexual in nature and where equivocal behaviour was not repeated it was not likely to be objectively viewed as sexual in nature. Further, the Court held that if the plaintiff had been warned that any repetition of similar contact with the complainant could be regarded as sexual harassment, then the repetition of such actions could have led to a justifiable dismissal for sexual harassment. Thus, the Court held that the plaintiff was unjustifiably dismissed as a fair and reasonable employer could not have concluded objectively that the plaintiff’s actions were sexual in nature.

In Askin v Gulati & Anor^[23] the Authority found the applicant had not been sexually harassed by her manager, Mr Gulati. The complaint against Mr Gulati was that he sent a text message and phoned the applicant asking her to go for a drive in his car. The applicant responded by telling him she was not interested and the matter went no further. The Authority found that while Mr Gulati’s text message and phone call could possibly be regarded as an indirect request for some sexual activity they were not accompanied by any implied or overt threat about the applicant’s employment. In addition, the Authority found that although Mr Gulati’s advances were unwelcome they were not of such a nature, nor were they repeated, so as to have a detrimental effect. The Authority dismissed the applicant’s claim of sexual harassment.

V.    Violence outside work

An act of violence away from the workplace may justify dismissal if the conduct undermines the employer’s confidence in the employee to such an extent as to justify dismissal or where the employee’s conduct brings the employer into disrepute.^[24]

The essential consideration is whether the conduct is sufficiently connected to the employer’s business.^[25] This may be because the business may be damaged in some way, or the conduct is incompatible with the proper discharge of the employees’ duties, or it impacts upon the employer’s obligations to other employees’, or for some other reason it undermines the trust and confidence necessary between employer and employee.^[26] Where the actual conduct occurred is an important but not determinative consideration.^[27] It is not necessary for the act of violence to be committed against a colleague.^[28]

Violence is viewed as one of the most serious forms of misconduct and as such it will more often than not be found that there is a sufficient nexus between an act of violence outside of work and the attacker’s employment. Below are examples of the kind of violent out of work conduct that has been found sufficient or insufficient to justify dismissal.

In Smith v Christchurch Press Co Ltd^[29] the Court held that the appellant was justifiably dismissed for sexually harassing a colleague, S, outside of work. The appellant drove S back to his house after she had accepted a lunch invitation. As the dining room was cold the appellant suggested they shift into the bedroom. The appellant offered to massage S’s neck but she refused and told him she was in a relationship. After the appellant assured S she was safe the appellant began to massage S’s neck. He massaged under her top and commented on her breasts. S resisted and moved towards the door, but by this time the appellant had removed his shirt and was unbuckling his belt. He kissed her, placed his hand inside her skirt, and masturbated. S was scared and decided to acquiesce to prevent further trouble. Eventually, the appellant released her and she told him to take her back to work. The next day S made a formal complaint about the incident to the deputy general manager. The appellant was dismissed for serious misconduct. The Court held that there was ample basis for finding that there was a sufficient nexus between the appellant's conduct and his employment. That was because the conduct towards S was between two present employees, arose out of their employment, and had the potential to adversely affect the working environment. It was irrelevant that the actual sexual conduct occurred outside the workplace. There was no reasonable argument that the conduct did not amount to serious misconduct.

In Taurarii v Tyco New Zealand Ltd^[30] the Authority found that the applicant was justifiably dismissed for assaulting a guest at a work function. The respondent organised after-work drinks at a local tavern and made it clear that it was a work function and those attending would be representing the respondent. The applicant acted in a disorderly manner throughout the night. When a patron asked the applicant to calm down he punched the patron in the face which knocked him unconscious. The victim incurred a swollen lip, a graze on the top of his head, sore ribs and a knocked out tooth. The applicant argued that dismissal was inappropriate because he only hit the person once and the assault took place outside of work hours and outside the work function, namely on the pavement just outside the tavern. The Authority found that the applicant’s behaviour was extremely connected with his employment because he would not have been in contact with his victim were they both not in the process of leaving a work function and the applicant understood he was representing the respondent. The Authority found that the applicant’s actions clearly brought the respondent into disrepute because of the harm caused to the victim, the applicant’s conviction occurred in open court, the respondent had to deal with the police over the matter, and it was well known to the staff and thus would likely have been the subject of their conversation with friends, family and acquaintances. The Authority concluded that the respondent was justified in finding that the applicant’s conduct deeply impaired, and more likely destroyed, the trust and confidence the respondent needed to have in him.

In Craigie v Air New Zealand Ltd^[31] the Court held that the plaintiff was justifiably dismissed for an incident that occurred outside of work. The first incident concerned the plaintiff’s charge for intentional damage to property, unlawful possession of a restricted weapon, male assaults female,-and common assault. He pleaded guilty and was discharged without conviction on all charges. The second incident resulted in the Civil Aviation Authority (“CAA”) prosecuting the plaintiff for breaching CAA rules and regulations. The plaintiff was charged with flying without a certificate of airworthiness and operating an aircraft without a certificate of release to service. He pleaded not guilty but was convicted on five charges and fined. The third incident involved another charge for common assault. The plaintiff pleaded not guilty but was convicted and issued a modest fine. The CAA suspended the plaintiff’s licence and advised the defendant that a recommendation had been made to permanently revoke his licence. The director of CAA concluded that the plaintiff had moved on from his mistakes and lifted the suspension. However, after finding out about the three incidents the defendant dismissed the plaintiff. The Court held that the two domestic incidents did not bring the defendant into disrepute as there was no publicity regarding them and they had no link to the plaintiff’s work. The defendant’s view that it was likely to see a repeat of similar behaviour in the future, which could find its way into the media, did not justify its view that the two incidents amounted to serious misconduct. However, the CAA convictions and inquiry had a direct relationship to and potential impact on the plaintiff's employment. It was impossible to escape the conclusion that the CAA convictions and the adverse finding of credibility against the plaintiff in the District Court, compounded by the defendant’s own inquiries, completely destroyed the relationship of trust and confidence between him and the defendant. Dismissal was a decision that was open to a reasonable and fair employer, particularly given the nature of the defendant’s operations, the degree of responsibility held by pilots and their considerable obligations to act safely.

In NZ Meat Processors etc IUOW v Richmond Ltd^[32] the Court held that the grievant was unjustifiably dismissed for assaulting a colleague, Mr Stevenson, outside of work. The grievant held a position as the union’s safety officer and in that capacity he called a stopwork meeting due to concerns about the state of the first aid room. Mr Stevenson, the union treasurer, told several people that the grievant called the meeting to support two workers who had been dismissed for possession of drugs. The meeting went ahead in a room that was exclusively set aside for union business. At the meeting, the grievant clipped Mr Stevenson, damaging his glasses and causing minor injury. The grievant was dismissed under a disciplinary agreement for fighting on company property. The Court held that the incident was between union officials on property set aside for union business and therefore it more properly lent itself to appropriate action by the union executive. The Court held that looked at on its merits, in light of the agreement allowing a lesser penalty than dismissal, and the fact that the grievant had good reason to be angry at Mr=Stevenson, the dismissal was unjustified as too severe a penalty for the single minor blow delivered.

VI.  Justifiable application of force

In some circumstances it can be justifiable for an employee to apply physical force to another in the workplace. The three most prominent bases on which this is alleged are addressed below.

A.      Self-defence

The most common used defence to an allegation of unjustly applying physical force to another is self-defence. An employee is entitled to take reasonable steps in all the circumstances to protect themselves from violence.^[33] The courts have rejected a mechanistic approach taken by many employers whereby involvement in a fight in any capacity is automatically considered a valid reason for dismissal under a rule prohibiting violence.^[34]

A leading case on self-defence in the employment field is Housham v Juken New Zealand Ltd^[35]. In discussing the nature of self-defence the Court held:

“An employee attacked by another or reasonably fearing imminent physical attack by another is not required to offer no resistance at all, run away (especially if operating dangerous machinery), or meekly submit to the assault. Such an employee is entitled to take reasonable steps in all the circumstances to avoid actual or imminent assault. Such steps may include what would amount to a technical assault upon the aggressor, pushing the aggressor away, tackling the aggressor to prevent further blows, or the like. No hard and fast rules can or should be provided. Every case is different and what amounts to a reasonable response to actual or impending violence will depend on those unique circumstances as fairly and reasonably ascertained by the employer.”^[36]

In Housham^[37] the plaintiff was dismissed following a physical altercation with another employee. The other employee alleged the plaintiff almost collided with him while operating a fork hoist, that he threw his gloves at the plaintiff, and that the plaintiff punched at him before he responded in kind. The plaintiff alleged the other employee verbally abused him, threw his gloves at him and as the other employee attempted to mount the moving fork hoist, he-attempted to push the other employee away as the other employee punched him. The Court held that the defendant wrongly assumed that the other employee’s account of the altercation was the more accurate. However, even if the other employee’s account was accepted the Court held the plaintiff’s response of applying force to the other employee’s head with his open hand was reasonable and legitimate in the circumstances. Similarly, on the plaintiff’s account, attempting to push the other employee away was a reasonable and legitimate reaction by the plaintiff to apprehend impending assault on him. Thus, the plaintiff’s argument of self-defence was successful.

B.      Provocation

While provocation is no longer a (partial) defence in the criminal realm,^[38] in the context of a personal grievance it may still be relevant to ask whether there was an element of provocation that could justify the conduct in question or at least mitigate its significance.^[39]The action that is taken in response to the provocation must be proportional. The courts are generally reluctant to conclude that a dismissal for violent conduct was unjustified on the basis that the attacker was provoked. Below are two cases which dealt with the issue of provocation.

In Nathan v Ports of Auckland Ltd^[40] the applicant claimed he was provoked into assaulting a colleague, Mr Dunsmore. The applicant made a complaint about Mr Dunsmore’s continual racist comments. The respondent met with the applicant and Mr Dunsmore and said that all racist comments had to cease immediately. However, the applicant claimed that after he moved back into Mr Dunsmore’s work area he was again subject to racist remarks. Shortly after Mr Dunsmore and the applicant had a verbal altercation about when breaks could be taken the applicant heard Mr Dunsmore say “f****** black c***”, which he understood to be a reference to him and their earlier disagreement. The applicant saw red and struck Mr Dunsmore numerous times in the face. The applicant was dismissed for violent conduct. The Authority found that the respondent was justified in dismissing the applicant. In reaching its decision the Authority took particular account of the extent of the applicant’s violent conduct and the fact the respondent had earlier unequivocally condemned racist comments and advised staff, including the applicant, of a process for complaining about such conduct which the applicant had not used.

In Clerical Workers Union v EV McConnell Ltd^[41] the grievant claimed her dismissal was unjustified because even if an assault occurred she was provoked into committing it. The grievant arranged an Engineers Union meeting after receiving a phone call from the usual organiser and attended a Clerical Workers Union meeting shortly thereafter. The respondent managers became suspicious that the grievant was working against them and the business generally. The managers were unhappy at the result of the Engineers Union meeting and considered the grievant to be the prime instigator, and vented their anger upon her. The following day, the grievant suggested to one of the managers that it might be better if she worked from home. A fierce argument, followed by a physical altercation ensued, in which the manager flailed her arms in close proximity to the grievant. The grievant tried to leave the office and pushed or struck the manager in doing so. The manager then pushed her out the door. The Court held that the respondent did not properly consider provocation in an industrial setting. It held that the events of the previous fortnight (including provocation) mitigated the attack’s significance. When that was combined with other deficiencies in the respondent’s investigation the Court concluded that the dismissal was unjustified.

C.      Nature of employment

In some circumstances, the nature of the employee’s employment may justify the use of reasonable force. That is, some employees work in an environment in which the use of reasonable force is, on occasion, a prescribed and necessary element of the job.^[42] This argument will most often be put forward by those working in the criminal or mental health fields. For example, in Chief Executive of the Department of Corrections v Tawhiwhirangi^[43] the defendant, a corrections officer, argued that his use of force against a prisoner was reasonable and necessary in the circumstances. A prisoner had asked the defendant to bring contraband into the prison. The defendant refused and ordered the prisoner to leave his office. As they exited the office another officer believed the prisoner was going to attack the defendant and initiated control and restraint on the prisoner. The respondent concluded it was probable the defendant had assaulted the prisoner prior to the control and restraint. The defendant said that he had placed his hand on the prisoner’s shoulder to guide him, but denied striking the prisoner. The defendant was dismissed. In considering justification the Court considered s83 of the Corrections Act 2004, which sets out the circumstances in which the use of force by corrections officers is acceptable. The Court held that dismissal would not have been a reasonable response even if the defendant had used the physical force as alleged due to the prisoner’s attitude at the time. That is, there was a strong possibility that the prisoner was passively resisting the defendant’s instruction. Accordingly, the defendant’s use of force in the circumstances was reasonable.

VII. Investigating violent conduct

Although the types of conduct addressed in this article are very serious it is still necessary for the employer to carry out a full and fair investigation into the conduct. A failure to do so will result in any disciplinary action being held to be unjustified.^[44] In New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd^[45] the Court stated that the minimum requirements for a full and fair investigation are:

“1. Notice to the worker of the specific allegation of misconduct to which the worker must answer and of the likely consequences if the allegation is established;
2. An opportunity, which must be a real as opposed to a nominal one, for the worker to attempt to refute the allegation or to explain or mitigate his or her conduct; and
3. An unbiased consideration of the worker’s explanation in the sense that that consideration must be free from pre-determination and=uninfluenced by irrelevant considerations.”^[46]

The obligation to conduct a proper investigation applies irrespective of what an employer’s work policy provides. That is, an investigation will not automatically be held to be fair and reasonable simply because it complied with internal procedures. An employer must objectively assess and investigate each incident on a case-by-case basis and not purely rely on internal procedures. However, if a work policy specifically provides for something during a disciplinary investigation then that must be complied with (for example, union representation). This issue is most apparent in cases where an employer has a zero tolerance policy towards workplace violence. On this topic Chief Judge Colgan in Housham^[47] stated:

“While a ‘zero tolerance’ policy towards workplace violence is admirable in principle, the devil is, as always, in the detail of what is meant by a policy that has been sloganised. It cannot be a reasonable policy if it purports to be applied to any involvement in any physical altercation whatsoever. Nor can it be a reasonable policy or practice for an employer to dismiss summarily all the employees in any way involved in any physical altercation. While an employer is entitled to have a ‘zero tolerance’ policy in the sense that employees engaged culpably in violence in a safety sensitive workplace should be liable to dismissal, that does not absolve that employer from the critical assessment of all of the relevant circumstances in which that employee may have been involved in the altercation. Such an analysis is especially important where there is a so-called ‘zero tolerance’ approach that will see offenders dismissed.”^[48]

Indeed, there have been many cases in which an employer’s decision to dismiss an employee was held to be unjustified due to its rigid application of a work policy.^[49] Thus, blanket prohibitions may be useful as a communication device to signal which behaviours will result in disciplinary consequences, but they are of limited value as the basis for dismissals, unless accompanied by a full and fair investigation into what occurred and why.

A subsequent acquittal to a charge relating to the same incident for which the employee was dismissed will not mean that an unreasonable investigation was conducted.^[50] This is primarily because the standard of proof in a criminal trial is much higher than the civil standard an employer must meet in a disciplinary hearing.^[51]

VIII.      Conclusion

Workplace violence is one of the most serious forms of misconduct due to the significant detrimental impact it can have on workplace relationships and the workplace environment in general. It can take many forms including physical violence, threat of violence and sexual harassment, and can extend to conduct outside of work provided it is sufficiently connected to the worker’s employment. However, there are certain circumstances in which the use of force in the workplace is justifiable. The most common of these circumstances are self-defence, provocation and the nature of the worker’s employment. Although workplace violence is an extremely serious form of misconduct an employer must still conduct a full and fair investigation into the incident.

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