Reasonable person wouldn't view 'bad, stupid comment' as threat; dismissal overturned
A worker’s inappropriate comment to a call-centre advisor was worthy of discipline but didn’t rise to the level of a threat of workplace violence, an Ontario arbitrator has ruled.
It’s an example of how a remark that might seem like a threat on its face may not be when context and intention are factored in, says Rishi Bandhu, an employment and labour lawyer at Bandhu Professional Law in Oakville, Ont.
“There's never any slam dunk, especially when we're talking about just cause,” he says. “Even when we're talking about this hot-button issue of workplace violence, bullying, and harassment, there's no bright-line test – everything is nuanced, everything is contextual, so we have to take care and not make knee-jerk reactions to certain types of misconduct.”
New benefits package
Enbridge Gas is a natural gas supplier based in Toronto. The company’s predecessor, Union Gas, hired the worker in 1987 and he worked in several positions in Cobourg, Ont., eventually becoming a utility services representative (USR) servicing the gas supply needs of commercial, industrial, and residential customers.
Enbridge had a policy emphasizing the core values of safety, integrity, and respect, which were communicated to employees upon their hiring and through refresher training programs.
In May 2019, the worker had an argument with his manager, after which he was given a letter of expectation. The letter emphasized the importance of respectful interactions.
In November 2019, a contractor and customer reported that the worker had used disparaging language in describing the work done by a co-worker that he had to redo. Enbridge suspended the worker for two days without pay.
When Enbridge merged with Union Gas, the latter’s benefits package was shifted into Enbridge’s, effective Jan. 1, 2020. Enbridge arranged a travelling roadshow to explain the change to employees, but when it came to eastern Ontario, the worker missed it because he wasn’t released from work.
On Jan. 9, 2020, the worker received his first paystub in which his employee savings plan deductions were harmonized with the new benefits provider. He couldn’t see Enbridge’s contribution, so he decided to call the human resources helpline the next day.
Call to helpline
The helpline was a service based out of Edmonton called MYHR. Previously, the worker would call administrative clerks in Kingston, Ont., with his queries, so he was apprehensive about speaking to someone he didn’t know about his benefits.
The advisor on the line didn’t ask if the worker had attended the informational roadshow, so he was unaware that the worker hadn’t been properly informed of the benefits transition.
The worker had trouble understanding what the advisor was explaining. They talked some more, but the worker gradually became frustrated, saying at one point that the advisor was “not doing a very good job.”
Read more: Discipline for workplace threats depends a lot on whether they can be reasonably interpreted as viable threats, the Ontario Labour Relations Board found.
The worker explained his understanding of how the company’s contributions were displayed on his paystub. The advisor tried to interrupt to say that was inaccurate, but the worker continued speaking. The worker then said, “If I wanted to go to your funeral because I reached through the phone and wrung your neck and you were dead, I would wanna take some money out of my employee savings plan. And I’d want to fly to Edmonton for your funeral.”
The comment was said in a calm tone and the worker didn’t seem angry. The advisor said the analogy wasn’t appropriate and they continued discussing the savings plan.
The advisor felt disturbed by the comment and reported it to his manager after the call. The manager listened to the call recording and reported it to Enbridge’s labour relations department.
Worker expresses remorse
Enbridge interviewed the worker, who said that he hadn’t been angry or intended any harm, he was just frustrated and the comment had slipped out. He said it was inspired by his supervisors when he was younger saying they would “come down the line and grab you and bring you into the office.”
The worker said his comment was meant to be a joke and he apologized. He later said that the remark was unnecessary and he would have apologized to the advisor if he had known that the advisor had been disturbed by it.
The investigation found that the worker violated Enbridge’s core values policy. It considered his previous discipline – which along with a few other incidents showed a pattern of losing his temper and acting aggressively – and decided to terminate his employment effective Jan. 20.
Enbridge initially proceeded properly in investigating the misconduct and giving the worker an opportunity to address it, but things went awry when it seemed not to consider mitigating factors, says Bandhu.
“It looks like they did everything right, investigated it, and made a conclusion, but then [there was] that second phase, where they have to put on the hat of an arbitrator and look at the facts through that lens to see if there are any mitigating factors that will reduce the penalty,” he says. “That's exactly where I think they may have gone wrong – they may not have engaged in that analysis, or maybe they did and they rolled the dice to see what happens.”
The worker grieved the termination, arguing that it was unfair and he fully accepted responsibility for the comment. He apologized and said that, if reinstated, he would “do his utmost to maintain respectful behaviour.” He also said that he wanted to change and would seek help to deal with his anger.
No threat of violence
The arbitrator found that the worker’s comment was intended to shock the advisor so that he paid attention, and a reasonable person would not find that it was a threat of violence. Instead, it was a “bad, stupid comment” that constituted poor behaviour rather than workplace violence, said the arbitrator.
The arbitrator’s view of the worker’s comment made sense, as it was clear that the worker’s intention was just to get the advisor’s attention, says Bandhu.
“He was trying to grab the guy's attention because they were they weren't quite speaking on the same page, so he used language that had been previously used by his supervisors [when he was younger] – which was, ‘I'm going to reach through the phone line and grab you’ or something like that,” he says. “So [the arbitrator] didn't see that as a genuine, sincere threat.”
Bandhu adds that in the context of the call centre, the circumstances seemed more like a customer-service type of situation than a co-worker situation – circumstances where people sometimes take more liberties.
The arbitrator noted that the worker had previously received a letter of expectation and a two-day suspension for similar behaviour related to losing his temper and making inappropriate comments. Between those and refresher training, the worker should have been aware that such behaviour was inappropriate.
Lengthy service record
However, the arbitrator pointed to the fact that the worker had a long service record and he apologized and acknowledged his conduct after the incident. He also demonstrated a desire to change his behaviour, which made him a candidate for rehabilitation.
“Anytime you're dealing with someone with 30-plus years of service, you're going to need really significant, intentional misconduct in order to justify termination,” says Bandhu. “There's previous discipline, but when you look at it in the context of a 32-year relationship, it's not overwhelming.”
Bandhu also points to the fact that, given that the comment wasn’t found to be an actual threat, the nature of the misconduct wasn’t as serious as one might initially think and the worker was immediately remorseful.
“[The worker] understood that what he did was inappropriate, and that’s a big one for arbitrators –someone who engages in any form of misconduct, no matter how serious it is, if they don't themselves see the seriousness of that, then how can the relationship continue?” says Bandhu. “I think the arbitrator was satisfied that [the worker] saw the seriousness of the issue and wanted to correct it.”
Read more: A B.C. arbitrator overturned a three-day suspension for making workplace threats after the target’s lack of concern indicated it wasn’t seen as a threat.
The arbitrator determined that the worker deserved discipline for breaching Enbridge’s policy, but the breach wasn’t just cause for termination. Enbridge was ordered to reinstate the worker with a three-month unpaid suspension on his record and compensation for any lost pay outside of the suspension.
“We're so sensitive to this stuff now – and rightly so – with respect to bullying, harassment and violence, and I think there's a temptation to think that anything that is perceived as mildly aggressive is going to be cause for dismissal,” says Bandhu. “But that's really not the case – we've got to look at the context of everything, and look pretty closely at those comments to see, is it in fact threatening?”
See Enbridge Gas Inc. and Unifor, Local 38-0 (Cushing), Re, 2022 CarswellOnt 9287.
