Termination excessive for workplace threat

A worker at a retail grocery store was fired after telling a coworker that she would either shoot herself or someone else if she failed to get the workplace promotion that she had applied for.

“Jane Doe” (J.D.) was employed at the deli counter in a retail grocery outlet run by Husband Food Ventures Ltd. She had about nine years’ service when she was fired on Dec. 9, 2011. The only discipline on her record consisted of a years-old warning letter issued after she once arrived late for a shift.

On the morning of Nov. 29, 2011, J.D. was speaking to the assistant deli manager D.W., who was a friend.

D.W. reported that J.D. seemed agitated. She told him that if she was not selected for an assistant manager job that she had applied for through the store’s internal posting process that she would shoot herself — or “better yet,” someone else.

D.W. didn’t perceive the threat as serious, nor did he report the apparent threat to management.

However, several days later another worker approached D.W. to express concerns about J.D. On the same day, another assistant manager told D.W. that other employees were concerned about statements J.D. was making.

J.D. was called into a meeting with the store manager on Dec. 8, 2011. Also in attendance was another assistant manager along with a store clerk who was there to serve as a “witness” to the proceedings.

“Just kidding”

The manager asked J.D. if she had threatened to shoot people if she didn’t get the job she had applied for.

J.D. admitted she had but said she was “just kidding.”

J.D. was suspended. The police were called. The police report noted the threat attributed to J.D. However, it also noted that staff did not view the threat as “valid.”

J.D. was fired. The union grieved the termination.

J.D. was terminated for cause. Zero tolerance was the appropriate response in the circumstances — there were no jokes about workplace violence, the employer said. The employer said that its investigation into the incident revealed other examples of questionable behaviour on the part of J.D. Other workers viewed her as a bully, the employer said. She was intimidating and a negative force in the workplace. The employer claimed there were no mitigating factors to lessen the penalty. The work relationship had been “irretrievably fractured.”

The union argued that it was necessary to take context into account when assessing how to view and weigh workplace threats. In this case, the threat was vague and did not show any specificity with respect to any individual. J.D. owned no firearms, she had no history of owning or using firearms, nor did she have access to any. J.D. had no record of violence.

Moreover, the union said, the employer’s attempts to raise additional allegations of inappropriate behaviour against J.D. in order to situate her threat within a pattern of bullying was off the mark. These other alleged incidents were not properly investigated and J.D. was not disciplined for them.

The employer was also wrong in failing to acknowledge a number of mitigating factors that counted in J.D.’s favour. She had seven years’ service and a generally good disciplinary record. She acknowledged her misconduct and she had apologized for it. The union said that termination was excessive in the circumstances.

The Arbitrator agreed.

The Arbitrator acknowledged the serious nature of workplace threats and the union’s agreement that there was cause for discipline.

No target

J.D.’s words constituted an obvious threat, the Arbitrator said. However, it was a threat that was vague and imprecise with respect to any identified target. It was important to consider context in this case, as it was in Shoppers Drug Mart Store No. 22 v. Sidhu.

In that case, the Arbitrator stated: “There is always an important context to a threat that must be understood, in addition to the trigger event, particularly where the threat is of a vague nature, as in this case, in order to know how serious it might be. Some threats are empty… Some are in between but all threats constitute disciplinable conduct. The difference is that all must be weighed in the balance. The more serious the threat, the greater the discipline.”

In this case, the Arbitrator said, J.D.’s threats were not credible: “[T]he words were stated with no apparent reality, plan or intention behind them.”

The police report confirmed that J.D.’s coworkers did not take her threat seriously or believe that she would carry it out.

J.D. had friendships at the workplace and the Arbitrator accepted that she would work to repair them if reinstated.

“In light of the unusual circumstances that exist here, I find that the discharge imposed in this case was an excessive response in all the circumstances.”

J.D. was ordered reinstated without loss of seniority but with no pay and conditional upon her completing a course in anger management.