Are pellet guns covered under regular workplace violence policies?
Question: We have an issue with an employee firing a pellet gun. Our company has a policy against violence at work but it doesn't cover weapons and there are no previous such incidents we can draw upon. Does an anti-violence policy have to specifically refer to weapons like this or is it covered under more general prohibitions like physical threats or fighting?
Answer: This is an important question, as the use of pellet guns in the workplace should be considered a serious safety concern for all employers, particularly in light of a 2005 report from the Canadian Pediatric Society that reported 11 deaths from pellet guns, 10 of which were as a result of the victim being shot in the eye or temple.
Based on this grim statistic, it is not surprising the Criminal Code of Canada has included pellet guns within its definitions of an "imitation firearm" and a "replica firearm", both of which fall under the "prohibited devices" heading. So, from the criminal law perspective, it seems the employee who discharged a pellet gun in your workplace could potentially be charged with numerous criminal offences including: possession of a prohibited device knowing its possession is unauthorized, possession of a prohibited device at an unauthorized place, careless use of a prohibited device, and possession of a weapon for a dangerous purpose.
Turning now to the employer's duty to those employed in its workplace, occupational health and safety legislation across the country makes it clear an employer must take every reasonable precaution to protect its workers. This obligation means an organization would not only be justified in taking disciplinary action against this employee, but may in fact have a duty to do so. Failing to act could result in liability.
Nevertheless, it may be difficult to persuade a court or an arbitrator that such behaviour warrants termination for just cause. In its 2002 decision in Bonneville v. Unisource Canada, the Saskatchewan Court of Queen's Bench ruled Unisource, a printing and graphic supply company, was not justified in terminating Reaud Bonneville, a warehouse manager, for discharging a pellet gun in the warehouse while on his lunch break. Even though Unisource had a policy in place that no rifles were allowed on company property, the court made note of the fact that Bonneville and other employees were not made aware of this policy and had previously brought unloaded weapons to work.
In the end, the court was persuaded termination was not justified on account of Bonneville's honesty with respect to the investigation, his efforts to minimize the potential risk to others of being injured, his unblemished 24 years of service and the unlikelihood of him obtaining comparable alternative employment. In other words, the court used a contextual analysis in reaching its decision. In a different context, dismissal for cause may have been appropriate for the same act. It is certainly possible the result in Bonneville may have been different had someone gotten hurt, or even killed, especially if Bonneville had used the pellet gun for harassing, intimidating or threatening a fellow employee.
A company does not need to have an anti-violence policy in place that specifically prohibits the possession or use of pellet guns in the workplace in order for this type of conduct to be disciplinable. Conversely, whether or not this type of behaviour constitutes just cause for termination is arguable and very much context-dependent, as is any allegation of just cause. In this case, the context includes the fact there was no company policy in place prohibiting weapons such as pellet guns on company property, there was no prior incident of this nature to serve as a precedent, presumably no injuries from the firing of the pellet gun and the pellet gun was not used to harass, intimidate, threaten or injure anyone.
In order to proactively address this concern, employers should include prohibitions against possession of weapons such as pellet guns in their anti-violence policies and also make the consequences of violating such policies clear to their employees. As I frequently remind our clients, it is not enough to simply have a policy in place. Employers must also ensure that employees are made aware of the policies and also ensure they are consistently enforced.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
Answer: This is an important question, as the use of pellet guns in the workplace should be considered a serious safety concern for all employers, particularly in light of a 2005 report from the Canadian Pediatric Society that reported 11 deaths from pellet guns, 10 of which were as a result of the victim being shot in the eye or temple.
Based on this grim statistic, it is not surprising the Criminal Code of Canada has included pellet guns within its definitions of an "imitation firearm" and a "replica firearm", both of which fall under the "prohibited devices" heading. So, from the criminal law perspective, it seems the employee who discharged a pellet gun in your workplace could potentially be charged with numerous criminal offences including: possession of a prohibited device knowing its possession is unauthorized, possession of a prohibited device at an unauthorized place, careless use of a prohibited device, and possession of a weapon for a dangerous purpose.
Turning now to the employer's duty to those employed in its workplace, occupational health and safety legislation across the country makes it clear an employer must take every reasonable precaution to protect its workers. This obligation means an organization would not only be justified in taking disciplinary action against this employee, but may in fact have a duty to do so. Failing to act could result in liability.
Nevertheless, it may be difficult to persuade a court or an arbitrator that such behaviour warrants termination for just cause. In its 2002 decision in Bonneville v. Unisource Canada, the Saskatchewan Court of Queen's Bench ruled Unisource, a printing and graphic supply company, was not justified in terminating Reaud Bonneville, a warehouse manager, for discharging a pellet gun in the warehouse while on his lunch break. Even though Unisource had a policy in place that no rifles were allowed on company property, the court made note of the fact that Bonneville and other employees were not made aware of this policy and had previously brought unloaded weapons to work.
In the end, the court was persuaded termination was not justified on account of Bonneville's honesty with respect to the investigation, his efforts to minimize the potential risk to others of being injured, his unblemished 24 years of service and the unlikelihood of him obtaining comparable alternative employment. In other words, the court used a contextual analysis in reaching its decision. In a different context, dismissal for cause may have been appropriate for the same act. It is certainly possible the result in Bonneville may have been different had someone gotten hurt, or even killed, especially if Bonneville had used the pellet gun for harassing, intimidating or threatening a fellow employee.
A company does not need to have an anti-violence policy in place that specifically prohibits the possession or use of pellet guns in the workplace in order for this type of conduct to be disciplinable. Conversely, whether or not this type of behaviour constitutes just cause for termination is arguable and very much context-dependent, as is any allegation of just cause. In this case, the context includes the fact there was no company policy in place prohibiting weapons such as pellet guns on company property, there was no prior incident of this nature to serve as a precedent, presumably no injuries from the firing of the pellet gun and the pellet gun was not used to harass, intimidate, threaten or injure anyone.
In order to proactively address this concern, employers should include prohibitions against possession of weapons such as pellet guns in their anti-violence policies and also make the consequences of violating such policies clear to their employees. As I frequently remind our clients, it is not enough to simply have a policy in place. Employers must also ensure that employees are made aware of the policies and also ensure they are consistently enforced.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
