In judging the employee capable of carrying out his death threats, the employer overlooked the effects of his depression and the behaviour that resulted from it.
A worker was fired after telling the participants in a conference call that he intended to “do in” his supervisor with a hammer.
When he was terminated March 31, 2008, G. had 20 years’ service with the company where he worked as a millwright.
Diagnosed with major depressive disorder, G. was particularly susceptible to work stress. He had been hospitalized a number of times due to his condition and had been required to be off work for periods of time.
G. began treatment with a psychiatrist in 2004. He regularly attended appointments and counselling sessions and complied with treatments as they were prescribed.
In 2007, G. was terminated for absenteeism but was returned under the terms of a conditional reinstatement that required him to continue under the treatment of his psychiatrist.
Shortly after his return, G. was involved in an incident with his supervisor. After reporting a back injury, G. became upset at how long it took his supervisor to arrive on the scene. G.’s behaviour was deemed to be intimidating and harassing and the company prepared a written warning. However, the company was unable to issue the warning. G. went on short-term disability as of the next day due to a significant relapse into depression.
After treatment and assertiveness training, G. returned to work on March 25, 2008. The next day, the company issued him the warning it had prepared earlier. G. left work stressed and upset. He did not return.
About one week later the occupational health nurse called G. to inquire about when he would be returning to work. A union representative also participated in the call.
Take a hammer to his head
The warning was referenced during the call and it was explained to G. that his mental health counsellor had also been informed about the warning. G. then stated that if he saw his supervisor near his toolbox that he would “take a hammer to his head and do him in.” The threat was repeated. G. was not yelling or screaming when he uttered it.
On May 26, G. was fired. The termination letter referenced his “ongoing anger management issues” and the specific threat against his supervisor.
The union grieved.
Before the Arbitrator, the employer argued that G.’s behaviour went beyond the scope of progressive discipline and that automatic termination was warranted. There was no connection between his medical condition and his behaviour, the employer said. G. was culpable and, if he proved unable to control his anger, he might seriously injure or kill someone, the employer said. The employer said it should not be required to bear that risk.
The union acknowledged the seriousness of G.’s misconduct but said that there was a link between his illness and his behaviour. Nevertheless, he was unlikely to repeat that kind of behaviour. He should be reinstated and progressive discipline should be applied, the union said.
The Arbitrator agreed. Whether made in jest or in seriousness, threats of violence are extremely serious and have no place in the workplace. It is not enough to say after the fact that such a threat was not seriously intended. To make the case that diminished mental capacity is responsible, it is necessary to establish a direct causal connection between an individual’s mental state at the time and the conduct at issue.
That was the case here. The testimony of G.’s psychiatrist was compelling, the Arbitrator said, and there was no principled basis for disregarding his opinion. “In my view, the medical evidence adduced proved that nexus, and provides a necessary context to assess [G.’s] behaviour on March 31.”
No intention to harm
G.’s statements were symptomatic of a maladaptive response to dealing with stress, the Arbitrator said. The threat was a product of frustration. He was trying to shock but he had no intention of harming anyone. The Arbitrator cited the psychiatrist’s assessment: “The risk of him actually acting out on these was quite low and primarily a product of his coping skills and way of dealing with frustration.”
The medical testimony did not support the employer’s estimation that the next step for G. would be to injure or kill someone.
“On the whole, the evidence compels the conclusion that it is just and reasonable in all the circumstances to substitute another penalty for the discharge,” the Arbitrator said.
G. had acknowledged that he had made an inappropriate remark and had apologized. He complied with prescribed treatments and presented a reasonable prospect for rehabilitation.
“In balancing the competing interests at stake, I believe a reinstatement with conditions can properly address any potential safety concern associated with [G.’s] return to the workplace.”
G. was reinstated without compensation and with conditions to assure his fitness to work and his ability to work safely with others.
Reference: Westcast Industries Inc. and CAW-Canada, Local 4207. Randy L. Levinson — Sole Arbitrator. Philip J. Wolfenden for the Employer and Jim Woods for the Union. February 7, 2011. 17 pp. Full Decision Order No. LVI3941-1.
