'It's hard to take a lesser stance… for something as serious as threats of this nature'
“Employers are always going to take threats of violence in their workplace towards any employee seriously, no matter how minimal they might seem - and they should take them seriously, because you never quite know how it can escalate.”
So says Jackie Laviolette, a labour and employment lawyer at Mathews Dinsdale in Calgary, after an Alberta arbitrator upheld the termination of a long-term employee for making violent threats in the workplace.
“Threats in the workplace are similar to harassment where there's a bit of a continuum,” says Laviolette. “I don't think that every single threat should result in termination - it always has to be contextual - but you can definitely say that threats should be taken seriously and are closer on the spectrum to violence and more egregious conduct.”
The worker was a lab analyst at Heidelberg Materials, a building material company based in Toronto with cement plants and pipe companies across Canada. The worker was employed at a cement plant in Alberta and was hired in 1998.
On May 29, 2022, the central control operator (CCO) decided to drop concrete dust created from the cement production process that afternoon. The worker disagreed with the decision as he felt the dust should be dumped earlier or not at all. The worker also had an acrimonious relationship with the CCO that had led Heidelberg to intervene and have the shift supervisor be a middleman rather than having them interact directly.
Allegation of workplace threat
Another lab analyst on the next shift reported to management that, after the CCO’s decision was made, the worker told him at the shift change that he was going to go home, get his gun, return to work, and shoot the CCO. The other lab analyst was surprised at the comment and, according to him, the worker then said he was serious and he would also shoot “that f---ing supervisor.”
Heidelberg investigated, interviewing both the worker and the other lab analyst who reported the comments. The worker claimed that the other lab analyst mentioned gun violence first, saying that he could understand how disgruntled employees could be pushed to violence. He acknowledged that he was angry about the dust dumping decision, but he said that the other lab analyst was also angry and ranting, and he himself only agreed with the other lab analyst’s statement.
The worker also said that “we were all mad” and he didn’t raise his voice, despite being upset when the dust was dumped. He then said that he commented that someone was going to punch the CCO in the face and he was serious, but then said “not.” He claimed it was “locker room banter.” However, the worker also said that he called HR and said he had to go home due to stress and he was “so upset that he deliberately did that.”
The supervisor stated that the worker didn’t seem too upset a little while later but he was displeased. Another employee reported that the worker had been upset and angry, appearing “distraught.” Yet another confirmed that the worker had been upset and frustrated about the CCO.
Heidelberg determined that the worker made the statement threatening to shoot a co-worker and a supervisor, which was a violation of its Respect in the Workplace policy and workplace safety. The company terminated the worker’s employment on June 27.
Credibility assessment
The union filed a grievance contesting the termination. It claimed that the other lab analyst falsified his report to create additional opportunities for overtime, as after the worker’s dismissal he worked on his days off to cover the worker’s shifts. The union also suggested that the other lab analyst falsified the report to help expedite a transfer the worker had requested to avoid working with the CCO with whom he didn’t get along.
At the heart of the dispute was a credibility assessment between the worker and the other lab analyst, who was the only direct witness to the alleged threats.
The arbitrator found that the other lab analyst’s account was more credible, noting that he had no apparent motive to fabricate the allegations, as there was no animosity between them, and his account remained consistent throughout the company’s investigation. The arbitrator rejected the union's theory that he might have reported the incident to help the worker secure a transfer to another shift and also concluded that it was implausible that the other lab analyst would risk making a false report about such serious threats, particularly given the “potential consequences associated with making gun threats against a co-worker and management.”
The union’s suggestion that the other lab analyst made a false report about the threats “places too great a strain upon one’s sense of the realities of life,” said the arbitrator.
The arbitrator also found that the worker lacked credibility. The worker had motivation to be dishonest given the potential for serious employment consequences and there were inconsistencies in his account, the arbitrator said, pointing out that the worker acknowledged that he was emotional but tried to minimize the evidence from other employees that he was angry. In the hearing, the worker initially said he wasn’t upset but then conceded he was unhappy, although he characterized his conversation as “joking around about [the CCO’s] antics.”
No accountability
The credibility analysis is good guidance to any workplace investigator on how to appropriately analyze credibility in a “he-said-she-said” situation, says Laviolette.
“The union essentially suggested that the person who allegedly heard the threats was lying, and the arbitrator looked at why would he have that motive to lie – the arbitrator really questioned the plausibility of what they were putting forward,” she says. “The other thing that wasn't favourable to the worker was, if any sort of threats were made, then he also wasn't illustrating accountability for any of it because he was challenging it so openly.”
The arbitrator found that the worker made the alleged threats and that "termination of his employment is an appropriate outcome."
The decision also addressed the broader context of the worker’s behaviour. Evidence showed that he had made aggressive comments in the past, including expressing a desire to punch the CCO, further supporting the employer’s decision to terminate him. The worker’s previous disciplinary record, including a warning for unprofessional behaviour, was considered relevant, though the arbitrator emphasized that, even without this, the severity of the threats justified the dismissal.
The union also argued that the threat was unlikely because the worker didn’t own a gun or have a gun licence, but the arbitrator found that this didn’t displace the evidence and didn’t preclude the worker from uttering the threat.
Just cause for termination
The arbitrator concluded that the threats, even if not intended to be acted upon, violated the employer's Respect in the Workplace Policy and were a serious breach of workplace safety protocols – Heidelberg had an obligation to ensure its employees weren’t subjected to workplace harassment or violence under the Alberta Occupational Health and Safety Act. The termination was deemed proportional to the misconduct, especially given the heightened awareness of workplace violence in today’s regulatory and social climate and the fact that the worker denied his misconduct and tried to downplay the incident.
The grievance was denied and the termination was upheld.
It’s a good decision for employers because sometimes when there’s a “he-said-she-said” incident with no other witnesses, employers aren’t willing to act because they think they can't prove the misconduct, according to Laviolette.
“There tends to be an employer view sometimes of ‘We can't prove it, so we shouldn't action it’ - in this particular case, the employer took the position that they were going to rely on their investigation and their findings that he said it, and take action to terminate him, because it's just not something that they can put up with in the workplace,” she says. “That's what makes this a bit of an anomaly, but it illustrates that [Heidelberg] took it really seriously and was prepared to go all the way to arbitration and risk having an arbitrator find differently.”
“It's a matter of recognizing that the employer's obligation in occupational health and safety is so high and they can be prosecuted or receive fines, so they have to action something like this,” adds Laviolette. “It's hard to take a lesser stance than termination for something as serious as threats of violence of this nature in the workplace - the exposure is so high for an employer that they have to draw a line that might be different than what an arbitrator would draw for regular discipline.”
See International Brotherhood of Biolermakers, Local Lodge Number D359 v. Heidelberg Materials, 2024 CanLII 81148.
