Worker fired after threat uttered and later denied despite witnesses

An Ontario arbitrator has upheld the firing of a municipal employee who denied uttering a threat against a superior that was heard by other employees.

Randy Mills was a recreation attendant for Loyalist Township in Ontario. He worked for the township for several years before becoming a full-time, permanent employee in 2015.

Mills was disciplined multiple times between  2016 and 2018, including two one-day suspensions, a two-day suspension, and four warning letters.

The collective agreement had a sunset clause stipulating that an employee’s discipline record could not be used against him after two years if there was “no recurrence of a similar and/or other infraction.”

On May 13, 2019, Mills attended a daily morning meeting at the township’s public works garage with about a dozen employees. The discussion turned to an upcoming staff wellness day, when the acting director of recreation would lead employees on a hike.

Another township employee sitting near Mills heard him and a coworker saying that they thought the wellness day concept was stupid. He heard Mills say about the acting director — who wasn’t at the meeting — that he “would like to take her down a side road and bash her head with a rock.” The employee was shocked, but didn’t report it to management because he was worried about retribution. However, two weeks later at a performance evaluation, he mentioned the comment as an example of a toxic work environment at the garage. The employee reluctantly wrote a report on the incident at his supervisor’s urging.

The township investigated by interviewing some of the employees who were at the meeting. The employee who wrote the report confirmed his account and a summer student said she also heard the comment. Two other employees said they hadn’t heard anything and the coworker to whom Mills had been talking said he didn’t recall any discussion of the wellness day.

Mills was interviewed but changed his story, first denying he made the comment while another time saying he didn’t recall. He later denied talking negatively about the wellness day and said he wasn’t “that type of person” to threaten physical violence.

When the acting director heard about the comment, it reminded her of an incident three months earlier when she had disciplined Mills and he was visibly angry and shaking, telling her he had to leave work “or he would do something he would later regret.”

The township dismissed Mills on July 4 for uttering a threat against a manager.

The arbitrator found that neither of the employees who reporting hearing the comment had any reason to make up a story making Mills look bad, as they didn’t work closely with him and were new. In fact, the reporting employee only mentioned it two weeks later when prompted, so it was unlikely he wanted to cause trouble. On the other hand, the coworker to whom Mills was talking was evasive and not credible when he said he didn’t recall discussing the wellness day, as it was covered in the meeting.

The arbitrator found that Mills made the comment threatening violence against the acting director. The comment fit the Occupational Health and Safety Act’s definition of workplace violence — “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.”

The arbitrator also found that Mills “had several opportunities to tell the truth” but continued to deny it. In addition, he was “a low-seniority employee with a long disciplinary record” — which was still valid because the sunset clause only wiped clean discipline after two years free of any discipline, said the arbitrator in upholding the dismissal.

Reference: Loyalist (Township) and CUPE, Local 2150. Lorne Slotnick — arbitrator. Steven Menard for employer. Christine Lang for union. July 14, 2020. 2020 CarswellOnt 9878