'Why I oughta…'

Indirect threats are a risk to workplace safety that employers should take seriously

'Why I oughta…'

Work can be stressful. Depending on a someone’s responsibilities, workload, and interpersonal relationships, there can be several different stressors at work – particularly since many studies have found that workers have been feeling more stressed and burnt out over the past couple of years.

Some of them are normal and can be expected as part of the job, but others should not be, such as feeling unsafe. Employees should be able to feel safe at work, particularly from threats of violence.

Unfortunately, threats and bullying can happen at work. How an employer responds to threats made to employees can be crucial to workplace culture as well as legal liability.

Threats in the workplace usually count as workplace violence and strike at the heart of the employer’s obligation under health and safety legislation to ensure a safe workplace. Most jurisdictions require employers to treat threats as a safety issue and to take reasonable steps to address concerns.

Unapologetic and threatening behaviour

A recent B.C. arbitration case involved a worker who was displeased with the company’s HR director and, in a meeting with her, yelled at her and raised his hand towards her face. It left the HR director crying and shaking afterwards. He was fired after an investigation found his behaviour was bullying and harassment. An arbitrator upheld the dismissal when the worker was unapologetic for his misconduct.

An Alberta arbitrator also took a dim view of a worker who said he wanted to punch his manager in the head to two different co-workers. The arbitrator noted that although the worker didn’t directly threaten or act aggressively towards the manager, “no one should have to come to work under the threat of violence regardless of whether those threats are intended to be acted upon or not.”

In a case where a threat may not have been overt, the worker’s refusal to accept responsibility cast doubt on his ability to avoid similar misconduct. A worker with the Toronto Transit Commission, unhappy with the denial of a request for a day off, berated his supervisor over the phone and told him to come to his house so he could speak to him in person. The worker was fired for violating the TTC’s workplace violence policy and the union argued that the comments were on the “low side of the scale.”

However, an arbitrator upheld the dismissal since the worker had previously received sensitivity training but still couldn’t control his impulse to be insubordinate and to utter threats.

In another Ontario case, indirect threats along with other inappropriate comments were enough to justify dismissal. A City of Windsor worker told a colleague that he spent the weekend cleaning his gun and then mumbled, “There are a couple of flunkies in the lunch room that I’d like to take hunting.” This, along with other comments, made the city feel that the worker was a threat to the safety of employees and the public. Once again, the employee’s threatening comments and lack of remorse or apology made his misconduct worthy of termination, said the arbitrator.

Not viable threat

Despite some of the above decisions, an indirect comment may not be a viable threat that warrants termination or serious discipline. The Ontario Labour Relations Board heard a termination pay case where a worker got into an argument with a co-worker. The co-worker said that if the worker hit him, he would be put away for the rest of his life and the worker chuckled and replied, “I guess I’d have to kill you.” The employer called the police to escort him off the property and fired him the next day. The board found that the worker’s comment was serious, but it was provoked and it wasn’t reasonable to view it as a viable threat – the worker chuckled as he said it and they went back to work afterwards.

Unionized workplaces can be confrontational environments, particularly when there’s a strike. Sometimes tempers flare and people say things, but it shouldn’t always be taken seriously. Back in 2009, workers for mining company Vale Canada went on strike. One worker went to the picket line in the middle of the night to talk to some of his colleagues, but he had been drinking. He told a security officer that “someone will be hurt when the smelter shows signs of smoke” and started calling people who crossed the picket line vulgar names.

Vale dismissed the worker for uttering threats and insults on the picket line. An arbitrator found that the worker’s conduct was “troublesome,” but they shouldn’t be taken seriously. In the context of the strike, the worker’s threats were “little more than the frustrations of a troubled man who was under a great deal of personal, emotional and financial stress,” said the arbitrator.

However, whenever threats of violence are made in the workplace, safety should be the priority for employers, even if a mental disability may be involved. An Ontario employer accommodated a worker for various disabilities such as alcoholism and cardiac issues, but it wasn’t aware of a mental disability. The worker uttered violent threats against co-workers and the employer fired him for workplace violence. It was later shown that the worker had a mental disability, but the employer wasn’t aware of it and it was clear that the only reason for the dismissal was workplace violence, said the Ontario Court of Appeal.

Sometimes employees can say things in the heat of the moment or otherwise that threaten others. In any circumstance, such threats should be unacceptable in the workplace. Threats of workplace violence are workplace violence and undermine workplace safety. And employees don’t need one more thing to stress about.

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