Employee with 24 years of service reinstated after threatening to stab co-worker
Trying to stick around
Threatening to stab a co-worker and slit him open is a pretty serious thing to do and would likely result in dismissal, right? With such an emphasis on preventing workplace violence and threats — particularly in Ontario with its Bill 168 amendments to the Occupational Health and Safety Act —an employee who makes such a threat is likely to be removed from the workplace permanently. But not always.
In any case involving consideration of whether there’s just cause, an employee’s length of service and previous disciplinary record can be mitigating factors that can make dismissal too harsh. Even if the employee threatened to stab someone.
An Ontario company wrongfully dismissed an employee who threatened to stab a co-worker, an arbitrator has ruled.
Doug Scott, 57, was a shipper at a Guelph, Ont., plant run by Hood Packaging, a manufacturer of paper and plastic product packaging, where he had been employed since 1989. During his time with Hood, Scott had one disciplinary warning on his record.
On Feb. 15, 2012, Hood notified three employees that they were being laid off. Scott was on his way to lunch when he saw a co-worker, Steven Fox, drawing sad faces on a white board. Scott thought Fox was mocking the employees who had been laid off, though Fox was apparently intending to show empathy for them.
According to Fox, Scott leaned over to him and said in his ear, “If it was me losing my job I would stick a knife in you and slit you to the top.” Fox, who had been stabbed in the past, said he responded, “If you ever tried it I would knock you the f--- out. I would feed you (elbows) and have (a co-worker) stand over you and give you fingers.”
Scott, however, claimed he told Fox loudly, “Three people lost their jobs and if I was one of them I wouldn’t like it” and he should clean the board. He said he didn’t acknowledge any response from Fox.
Threat led to confrontation
Afterwards, Scott proceeded to have lunch with a co-worker and Fox told a supervisor he and another supervisor should be nearby after lunch. Later, when Scott came out of the lunchroom, Fox yelled a crude insult at him. Fox later claimed he had become more angry and upset while he thought about the comments, for both the stabbing threat and the fact Scott wouldn’t admit to what he said. Scott responded with a crude comment of his own telling Fox to shut up.
Scott and Fox were moving toward each other, and the supervisors came by and stepped between them. Scott claimed he was walking towards his work area and Fox was in the way and didn’t want a fight. Both employees were asked to write a statement about what happened and then return to their work stations. There were no further problems that day.
Fox reported he was threatened with stabbing by Scott, who was aware of his previous stabbing and knew it would intimidate him. He expressed a desire to file a harassment charge. Scott claimed he told Fox people would be upset and Fox took offence and later subjected him to “name calling, obscenities and threats.”
The next morning, management interviewed both employees. They each reiterated their versions of the altercation. Fox also added that Scott said if they weren’t in the plant he would “kick his arse,” to which Fox suggested they go outside. Another employee interviewed said Fox had mentioned at lunch that Scott had threatened to slit him with a knife.
When Scott was interviewed, Hood asked a union representative to be present because it felt there was a possibility of discipline due to the severity of the threat. During the interview, Scott started out calmly but, according to the supervisor, became agitated. Scott denied making any threats and said Fox threatened that he would “get him” after work. He also suggested Fox had smoked marijuana during lunch, which made him more upset. Scott then said many others smoked the drug and there was a “pot problem” at the plant.
The company felt Scott was being “dishonest, evasive and without remorse” about his behaviour and suspended him while it decided what to do.
Hood interviewed a few more employees regarding the comments and the altercation following lunch and learned Fox had gone back to Scott’s workstation to call him a liar. Scott had not done anything other than to gesture for a supervisor to come over, and Fox was told to go back to his workstation. Fox acknowledged the incident and said he had forgotten to mention it in his initial statement because he was upset.
The company called the police and Fox reluctantly gave a statement, as he was on probation. He told the police he didn’t think Scott would have carried out his threat and didn’t want to press charges. He also said he didn’t want to get Scott fired but just wanted an apology from him, though Scott later testified Fox had asked him to apologize. The police didn’t file any charges.
After considering all the interviews, Hood felt Fox was candid and believable while Scott’s account was questionable. Fox admitted to making his threats after lunch but Scott continued to deny making any threats. The company also felt Scott tried to deflect the issue by alleging a marijuana use problem in the plant, of which Fox was part. Fox showed remorse about the situation while Scott seemed not to, which was surprising given the seriousness of the threat he was accused of making. Though he had many years of service and was considered a good worker, Hood felt the threat was serious — particularly considering Ontario’s workplace violence laws introduced by Bill 168, Hood’s workplace threats and violence policy and Scott’s lack of remorse — and it terminated his employment on Feb. 23, 2012. Fox was suspended for one day as his behaviour was provoked and he was sorry for his actions.
The union grieved the dismissal, arguing Hood did not have just cause and the dismissal was motivated by the fact Scott was active in the union and was considered by management as “the kind of guy who gets under your skin.” This was an opportunity for Hood to get rid of him, the union said.
Threat was serious but not enough to dismiss long-term employee
The arbitrator found Scott made the threat, as Fox’s account was clearer while Scott’s was evasive. The specific threat was also believable, since Scott knew Fox had been stabbed in the past. Fox’s reactions following the incident were also consistent with the knife comment, and didn’t really make sense if Scott’s recollection of what he said was true, said the arbitrator.
“It was a vicious comment intended to intimidate and worthy of discipline,” said the arbitrator. “Furthermore, (Scott) made the comment quietly into Mr. Fox’s ear which heightened the intimidation and ensured that he could deny saying it because no one else could hear it.”
The arbitrator also found that, though it might have been tempting to use a union steward’s misconduct to get rid of him, the net benefit wouldn’t have been that much because he just would have been replaced by another steward. And since it was determined Scott made the threat, it was irrelevant how involved with the union he was — it was still serious misconduct.
The arbitrator looked to the Ontario Occupational Health and Safety Act, which defined violence as “a statement or behaviour” that a worker could interpret as a threat of physical force. Scott’s threat fell within this definition, as well as Hood’s workplace threats and violence policy — which prohibited “threatening remarks, verbal or written” — said the arbitrator.
However, despite the fact the arbitrator found Scott’s comment to be “very nasty and clearly intended to intimidate” and out of proportion to the perceived provocation of the sad faces drawn on the white board — the arbitrator also found no one seemed to believe he would carry it out. Fox said he just wanted an apology, and following the yelling they went back to work for the rest of the shift. The arbitrator also noted Scott’s many years of service with no previous discipline for harassment or violence, and found this was a “momentary flare-up” that wasn’t premeditated.
Hood was ordered to reinstate Scott to his position with the company. However, as an acknowledgment of the seriousness of the threat, the company was not required to pay any back pay to him, with the 16 months since his termination serving as an unpaid suspension.
“(Scott’s) service or ‘trust equity’ must be weighed against the seriousness of the comment and the lack of remorse. If (Scott) has only done this once in his 24 years of employment with the company it is unlikely he will do it again. It is particularly unlikely when he has lost 16 months’ pay and will have that suspension permanently on his record,” said the arbitrator.
For more information see:
