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Sticks and stones…

Should employees who make threats be fired or given another chance?

By Jeffrey R. Smith

“Why I oughtta… .”

It’s an often-used phrase in films and TV shows, as well as in real life, to express exasperation or for comedic effect. But it may not be so funny if it leads to a more serious description of physical harm that someone is threatening to do to someone else.

Workplaces are particularly sensitive to this, where the people involved are not necessarily friends but rather have a professional relationship. Regardless of how serious a threat in the workplace is intended to be, employers have to take notice.

In addition to the obligation of employers to provide a safe and healthy workplace to employees — a workplace free of threats, intimidation and harassment — there is also an increased awareness of workplace violence. Ontario is an example of a jurisdiction where employers have to do more to deal with workplace violence — see Bill 168, the province’s workplace violence and harassment legislation —and this can include the threat of violence.

Recently, a municipal employee in Kingston, Ont., was fired for making a threat against a co-worker. When the co-worker asked the employee to stop talking about a friend who was dead, the employee responded by saying: “Yes, and you will be, too.”

The employee had undergone anger management treatment and may have been annoyed without really meaning it, but the employer couldn’t take any chances. Bill 168 required the threat to be reported and investigated and an arbitrator upheld the employer’s decision to fire the employee, since she refused to acknowledge the gravity of her threat.

However, another recent case in British Columbia had a different result. An employee of a metal manufacturer got into some verbal jousting with a co-worker, during which the co-worker insulted the employee’s hair and threatened to shove it up his “arse.” The employee responded by threatening to track down the co-worker if he went hunting and “slit your throat, burn your quad (off-road vehicle) and bury the both of you in the back 40 where no one will ever find you.”

A little later, he confirmed he was serious. After some cooling off, they proceeded to continue the rest of the shift without any problems and it appeared neither took what the other said seriously.

The employer took the matter seriously, especially since the employee denied making the threat in two interviews and only owned up to it and apologized after witnesses confirmed he made the threat. Though the apology was late and motivated by a desire to save his job, the arbitrator found the employee recognized he shouldn’t have made the threat

So in one case, a quick angry response that was somewhat vague resulted in the employee’s termination. In another, an employee made not only a threat, but described how he would kill his co-worker and reiterated the threat, clearly conscious of what he was saying, but was reinstated. Neither employee owned up to the threat during the employer’s investigation, except for the latter’s last-minute apology.

So how should an employer treat verbal threats between employees? Given the sensitivity to workplace violence, should it be an offence worthy of dismissal, regardless of the circumstances? If there are degrees of seriousness that should warrant different forms of discipline, how should an employer interpret the differing results of the above cases?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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