Gun threat not serious, lying about it was (Legal View)

Employer didn’t take employee’s comment about bringing firearm to work very seriously, but her persistent denials provided just cause for dismissal
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 10/23/2012

A British Columbia company had just cause to fire an employee for making a threat even though the company didn’t take it too seriously, an arbitrator has ruled.

Between 2001 and 2009, a 30-year employee at Overwaitea Food Group, a Langley, B.C.-based operator of independent food chain stores, was disciplined for various misconduct. Discipline included a:

• verbal warning for using profanity and acting aggressively towards a co-worker

• three-day suspension for insubordination towards her assistant manager

• one-day suspension for swearing at the assistant manager

• written warning for not showing up to work.

The operations manager gave the employee positive performance evaluations, though she was aware the employee was prone to angry outbursts.

In April 2010, the employee had medical issues that required accommodation. As a result, she worked mainly in price changing and not at a checkout. A co-worker, who was a friend of the employee, was also being accommodated for a medical issue.

In May 2012, Overwaitea found it necessary to change the co-worker’s accommodation, but couldn’t do it at the existing store so the co-worker was transferred to another store. This upset the employee, both out of concern for her co-worker and for her own sake.

The employee was also worried about how her hours would be affected by an upcoming change to the start date of the store’s weekly sales — which would alter staff schedules.

Confrontation with assistant manager

On June 8, 2012, the employee asked the operations manager about the new hours, but the operations manager said she wouldn’t know until the next schedule was done. The employee responded by saying: “I don’t believe you guys are stupid enough not to have looked at it already.” She then used a profanity.

The employee went on to say she was upset with her co-worker’s transfer and she wanted more notice if her accommodation or her hours were changed so she could get more information from her doctor. She finished by telling the operations manager that if she did not receive 40 hours, she would find her boyfriend’s gun and come into the store. Her boyfriend was an RCMP officer.

The assistant manager reported feeling unsettled by the exchange and discussed it with the store manager later in the day. She worked with the employee the next day, claiming she wasn’t concerned about safety because the new schedule wasn’t posted yet and there was nothing to trigger the employee to act on the threat.

In an interview around midday on June 13, 2010, the exchange was discussed with the employee, but she denied making the comment about the gun and claimed she was calm during the conversation. She admitted she sometimes talked bluntly and didn’t always think before speaking, but said if she did make the comment, she would admit to it. She was asked a total of four times, but denied it each time.

On June 19, 2012, Overwaitea terminated the employee’s employment for “inappropriate workplace conduct and threat of violence.” The company said this comment raised “great concern for the safety of (the employee), our team members and our customers.”

The union grieved the dismissal, arguing the employee didn’t intend to make a threat and if she did make the comment, it wasn’t credible because the managers knew she was prone to blurting things out without thinking.

The arbitrator found the assistant manager had no reason to lie about the comment and the employee wasn’t always a calm person — as evidenced by her past discipline and her own admission. Both the employee and assistant manager had similar accounts of the conversation, except for the gun comment, and the assistant manager made notes about it afterwards. It was likely the employee did make the threat, but she insisted on denying she did so, said the arbitrator.

However, while the employee made the threat, it didn’t seem as if Overwaitea took it very seriously, found the arbitrator. The employee finished her shift that day and the assistant manager continued to work with her the next day. It wasn’t until a few days later that they had a meeting with the employee to discuss it. The company also didn’t take any measures to protect the safety of its staff and customers.

Though management claimed they didn’t act immediately because there was no new schedule to trigger the threat, this approach assumed the employee, who uttered an irrational act, would act rationally, said the arbitrator. This indicated that while the threat was made, Overwaitea didn’t take it as “an extremely serious threat.”

The fact the company didn’t take the employee’s comments as a serious threat could have warranted reinstatement, said the arbitrator. However, the employee continued to deny it multiple times and even insisted she remained calm, although she was known for aggressive and angry misconduct. Because she wasn’t forthright with the company, the employment relationship was irreparable and dismissal was appropriate, found the arbitrator.

For more information see:

Overwaitea Food Group and UFCW, Local 1518 (FS Grievance), Re, 2012 CarswellBC 2734 (B.C. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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