A worker's comment that "I guess I'd have to kill
you" was clearly inappropriate but did not constitute wilful
misconduct under the Ontario Employment Standards Act, the Ontario
Labour Relations Board has held. The case shows that not every
comment that is, on its face, threatening will constitute just
cause for dismissal. Context is important.
The worker, a machinist, got into an argument with a coworker
whom he thought had taken one of his tools. The coworker snapped at
him and told him to "f— off, I don't give a
f—". Another worker stepped between them and told them
to stop. The coworker said that if the worker hit him, he would be
"put away for the rest of your life". The worker then
chuckled and said, "I guess I'd have to kill
you". The confrontation lasted about five minutes. The worker
returned to work.
Apparently the company called the police. Two officers attended
at the workplace and confronted the worker about his comment. The
company assured the worker that it would not press charges, but had
the police escort him off the premises. The next day, the company
fired him, and returned his tool to him at the same time.
The worker filed a complaint with the Ontario Ministry of Labour
claiming his eight weeks of ESA termination pay. The company argued
that he was disentitled because he was fired for wilful misconduct.
An Employment Standards Officer decided that the worker was
dismissed for wilful misconduct and thus not entitled to ESA
termination pay. The employee challenged that decision at the
Ontario Labour Relations Board.
The OLRB held that the comment was very serious. However, it did
not constitute wilful misconduct. Firstly, the worker was
provoked by the coworker refusing to return his tool and then
swearing at him. Secondly, in the context, it was not reasonable to
interpret the comment as a viable threat. The worker had chuckled
as he said it. He changed the subject of the conversation
afterwards and then went back to work, putting an end to the
confrontation. The company had let him go back to work, suggesting
that the company did not believe that he posed an ongoing threat.
Thirdly, the worker had eight years of service and there was no
evidence of any misconduct justifying any written or verbal
As such, the comment did not constitute wilful misconduct under
the ESA, and the worker was entitled to his ESA termination
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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