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 picketers.
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 Safety Act.
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 arbitration hearing.
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.
Vale Canada Ltd v United Steelworkers of America, Local 6500, 2012 CanLII 81310 (ON LA)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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