In a surprising decision, an Ontario arbitrator has
decided that a picketing employee's comment to his fellow
picketers that "I should have brought a gun to shoot" a
company security officer, who was nearby and overheard
the comment, did not justify his dismissal.
One suspects that many employers would take the opposite
position: that any workplace comment about shooting another
worker would be workplace violence.
After the picketing employee made the comment, the company
called in the police who laid charges against the employee that
were eventually dropped. The company fired the employee.
The arbitrator noted that the employee, when he made the
comment, did not use the security guard's name and did not
speak in a threatening tone. He was "trying to be
funny". Also, he addressed his comment to the group of
picketers, not to the security guard. Further, the arbitrator
decided that the security guard's actions showed that he had
not perceived the comments to be threatening; she thought that it
could have been a case of a "really bad sense of
humour". Lastly, the arbitrator decided that the
employee had not intended to threaten the security guard, although
he was unhappy that she was "hanging around" the
As a result, the arbitrator found that the employee's
conduct did not constitute workplace violence. Nevertheless, his
comments were "completely and totally inappropriate",
particularly given the heightened awareness about workplace
violence after Ontario's Bill 168 which added workplace
violence and harassment provisions to the Occupational Health and
The arbitrator reinstated the employee and directed that a
30-day suspension be placed on his file. The arbitrator also
awarded him 19 months of back pay due to delays, that the
arbitrator said were caused by the employer, in starting the
This decision, while based on its unique facts, appears to
conflict with some other arbitration decisions in which arbitrators
took a hard line against workplace violence.
Click here for our blog posts on some of those cases.
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