In a decision that will be surprising to some employers, an Ontario arbitrator has decided that a picketing employee’s comment to his fellow picketers that “I should have brought a gun to shoot” a company security officer, who was nearby and overheard the comment, did not justify his dismissal.
Based on the definition, many employers would, quite reasonably, take the position that any workplace comment about shooting another worker would be workplace violence.
After the picketing employee made the comment, the company called in the police. The police laid criminal charges against the employee that were eventually dropped. The company discharged the employee from his employment.
The union grieved the discharge. The matter proceeded to arbitration, and the union argued that the factual context of the statement showed that the employee had not intended the comment as a threat. The decision is reported at Vale Canada Ltd. v. United Steelworkers of America, Local 6500, 2012 CanLII 81310 (ON LA).
Workplace Violence — Definition Includes Threats
The issue of workplace violence has taken on increasing prominence in Ontario since the passage of Ontario’s Bill 168 which added workplace violence provisions to the Occupational Health and Safety Act effective June 15, 2010. That Act defines “workplace violence” as:
- the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
- an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
- a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.
Arbitrator’s Decision: Statement was not Threat
The arbitrator noted that the employee, when he made the comment, did not use the security guard’s name and did not speak in a threatening tone. He was “trying to be funny”. Also, he addressed his comment to the group of picketers, not to the security guard. Further, the arbitrator decided that the security guard’s actions showed that she had not perceived the comments to be threatening; she thought that it could have been a case of a “really bad sense of humour”. Lastly, the arbitrator decided that the employee had not intended to threaten the security guard, although he was unhappy that she was “hanging around” the picketers.
As a result, the arbitrator found that the employee’s conduct did not constitute workplace violence. Nevertheless, his comments were “completely and totally inappropriate”, particularly given the heightened awareness about workplace violence after Ontario’s Bill 168.
No doubt to the company’s chagrin, the arbitrator reinstated the employee and directed that a 30-day suspension be placed on his file. The arbitrator also awarded him 19 months of back pay due to delays, that the arbitrator said were caused by the employer, in starting the arbitration hearing.
Contrasting Decisions: Harder Line against Threats
This decision, while based on its unique facts, may be contrasted with some other recent decisions in which arbitrators took a hard line against workplace violence.
For instance, in Humber River Regional Hospital v. O.N.A., 2012 CarswellOnt 8834, a nurse at a hospital became upset in a suspension meeting and threatened to retaliate, stating that he had “a plan” to deal with the management present. He stood up on a number of occasions and pointed his finger at the managers. He also raised his voice and spoke in a stern manner. The arbitrator decided that a reasonable person in the room would have had reason to believe the employee was threatening them. This was not a momentary flare-up, but was the second incident in which the employee was unable to control his emotions and acted inappropriately. Because the outburst was not premeditated and the threat was of legal action not violence, the arbitrator found that the discharge was without just cause, but he refused reinstatement.
U.S.W. v. Plastipak Industries Inc., 2012 CarswellOnt 7659 dealt with a perceived threat against an entire plant. In that case, an Ontario arbitrator upheld the discharge of a “modern day prophet” who stated, “the first element to attack is water —the next is fire” after being told that she was suspended for five days. The employer had issued the five-day suspension to the employee for carelessly packing defective product. The employee asked to speak with the plant manager, and then made the water-fire statement. Her statement had particular poignancy because of a serious flood at the facility approximately one year earlier. The employer discharged the employee. The union grieved. At the arbitration hearing, the employee testified that “there was too much wickedness in the plant” and that the manager’s disciplinary decisions had been wicked and unreasonable. She stated that she was a religious person and that she believed that bad things happen to wicked people. She also said that she had no intention of starting any fires and did not intend any threat. She refused to apologize. The arbitrator upheld her discharge because the employee’s statement was intended to intimidate the plant manager into reconsidering the five-day suspension.
Lastly, in a well-publicized decision from 2011, Kingston (City) v. Canadian Union of Public Employees, Local 109, 2011 CanLII 50313 (ONLA), arbitrator Elaine Newman held that workplace threats are now “violence” in Ontario and justify strong discipline. The case involved a long-service employee of the City of Kingston. In a heated discussion, she said to a co-worker, who was also her local union president, “Yes, and you will be [dead] too”, referring to a former local union president who had died. The employee’s discharge was upheld.
Employers remain justified in taking a hard line against workplace violence, including threats. In fact, the Occupational Health and Safety Act requires employers to do so. Some arbitrators and judges will have mercy on employees who make threatening-sounding comments that were not intended as a threat, while other arbitrators and judges, noting the impact on other employees, will not have mercy. In light of the recent and tragic mass shootings that have been widely reported, one expects that arbitrators will show decreasing tolerance for statements that could be interpreted as threats of violence. Employees who have difficulty controlling their tempers will increasingly face discipline or discharge for ill-considered, threatening-sounding comments.